MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                              Jul 09 2015, 9:31 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kurt A. Young                                             Gregory F. Zoeller
Nashville, Indiana                                        Attorney General of Indiana

                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Joshua Woodson,                                           July 9, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          49A04-1410-CR-475
        v.                                                Appeal from the Marion Superior
                                                          Court
                                                          Cause No. 49F18-1204-FD-24015
State of Indiana,
Appellee-Plaintiff.                                       The Honorable David Hooper,
                                                          Judge Pro-Tem




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1410-CR-475| July 9, 2015               Page 1 of 5
                                             Case Summary
[1]   Joshua Woodson appeals his conviction for Class D felony operating a vehicle

      while suspended as an habitual traffic violator. We affirm.


                                                     Issue
[2]   Woodson raises one issue, which we restate as whether the trial court properly

      denied his motion for a mistrial.


                                                     Facts
[3]   Woodson was an habitual traffic violator, and he was aware that his driving

      privileges were suspended. On April 11, 2012, Officer Marc Klonne of the

      Indianapolis Metropolitan Police Department saw a vehicle at a gas station, ran

      the license plate, and discovered that the owner, Woodson, was an habitual

      traffic violator. Officer Klonne then saw Woodson get in the vehicle and begin

      to pull forward. Officer Klonne stopped Woodson and arrested him.


[4]   The State charged Woodson with Class D felony operating a vehicle while

      suspended as an habitual traffic violator. During Officer Klonne’s deposition,

      he testified that Woodson’s vehicle did not move. At Woodson’s jury trial,

      Officer Klonne testified that Woodson’s vehicle pulled forward a couple of feet.

      The State questioned Officer Klonne about the discrepancy between his trial

      testimony and his deposition testimony. Officer Klonne acknowledged the

      discrepancy, stated that before the deposition he had very briefly reviewed the

      probable cause affidavit, and stated that before his trial testimony he had

      reviewed the report at length. Officer Klonne testified that his trial testimony
      Court of Appeals of Indiana | Memorandum Decision 49A04-1410-CR-475| July 9, 2015   Page 2 of 5
      was “based off the probable cause statement.” Tr. p. 56. Woodson objected to

      the officer’s testimony, and the trial court stated: “Ladies and gentlemen I’m

      going to strike . . . ask you not to consider what he’s basing anything on, um, he

      has talked about what he reviewed, but he is not to testify as to what’s in any

      documents. I will let him give what his testimony is today.” Tr. p. 56. After a

      discussion between the trial court and the parties, the trial court also said, “All

      right, again, I’ve given the jury instruction to disregard the officer’s statement

      about anything in a report or probable cause.” Id. at 57.


[5]   At some point during the trial, the parties and the trial court had an off-the-

      record discussion, and Woodson requested a mistrial. The trial court later

      allowed Woodson to make a record of the request. Woodson argued that “the

      officer testified that his testimony today was based on his PC which is basically

      saying what his PC said. Um, that’s obviously not under the rules of evidence,

      not admissible. Um, we think that that is . . . it calls for a mistrial and that the,

      the instruction not to consider it is not sufficient to correct the prejudice.” Id. at

      80. The trial court denied Woodson’s mistrial request, and the jury found him

      guilty as charged. Woodson now appeals.


                                                  Analysis
[6]   Woodson argues that the trial court erred by denying his mistrial request. A

      trial court is in the best position to evaluate whether a mistrial is warranted

      because it can assess first-hand all relevant facts and circumstances and their

      impact on the jury. Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014). We


      Court of Appeals of Indiana | Memorandum Decision 49A04-1410-CR-475| July 9, 2015   Page 3 of 5
      therefore review denial of a motion for mistrial only for abuse of discretion. Id.

      Reversal is required only if the defendant demonstrates that he was so

      prejudiced that he was placed in a position of grave peril. Inman v. State, 4

      N.E.3d 190, 198 (Ind. 2014). “The gravity of the peril turns on the probable

      persuasive effect of the misconduct on the jury’s decision, not on the degree of

      impropriety of the conduct.” Id.


[7]   Relying on Indiana Evidence Rule 803(8) and Tate v. State, 835 N.E.2d 499, 508

      (Ind. Ct. App. 2005), trans. denied, Woodson argues that the probable cause

      affidavit was inadmissible. Woodson contends that, even though the probable

      cause affidavit was not admitted into evidence at his trial, “its contents were

      placed before the jury.” Appellant’s Br. p. 7. According to Woodson, the trial

      court’s admonishment regarding Officer Klonne’s testimony was insufficient to

      cure any prejudice. Woodson argues that “[t]he probable impact of Klonne

      vouchsafing his own testimony by referring to his police report cannot be

      understated.” Id.


[8]   The State points out that the probable cause affidavit was not admitted at trial

      and that, pursuant to Indiana Evidence Rule 612, witnesses are entitled to use

      documents to refresh their memory. Further, the trial court admonished the

      jury to disregard the reference to the document, and such admonishments are

      presumed to cure any error. See Johnson v. State, 901 N.E.2d 1168, 1173 (Ind.

      Ct. App. 2009) (“[W]here the trial court adequately admonishes the jury, such

      admonishment is presumed to cure any error that may have occurred.”). We

      agree with the State. We further note that Woodson has failed to demonstrate

      Court of Appeals of Indiana | Memorandum Decision 49A04-1410-CR-475| July 9, 2015   Page 4 of 5
       that he was so prejudiced by Officer Klonne’s brief reference to the probable

       cause affidavit that he was placed in a position of grave peril. The jury was

       aware of Officer Klonne’s earlier testimony and the difference in his trial

       testimony and was entitled to judge his credibility. See, e.g., Roland v. State, 501

       N.E.2d 1034, 1038 (Ind. 1986) (holding that a “brief statement by the police

       officer did not place Appellant in the grave peril required for a mistrial”).

       Woodson failed to demonstrate that Officer Klonne’s mention of the probable

       cause affidavit had a probable persuasive effect on the jury’s decision. The trial

       court properly denied Woodson’s motion for a mistrial.


                                                 Conclusion
[9]    The trial court properly denied Woodson’s motion for a mistrial. We affirm.


[10]   Affirmed.


       Riley, J., and Bailey, J., concur.




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