MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Feb 06 2020, 5:40 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James Harper                                             Curtis T. Hill, Jr.
Harper & Harper, LLC                                     Attorney General of Indiana
Valparaiso, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Klement,                                         February 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3155
        v.                                               Appeal from the LaPorte Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Alevizos,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         46C01-1802-F4-136



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020               Page 1 of 11
[1]   Michael Klement appeals his conviction of Level 4 felony burglary of a

      dwelling. 1 He raises two issues on appeal, which we restate as: (1) whether

      reversible error occurred when the jury was not instructed on the definition of

      “dwelling,” which is an element of the crime of which Klement was convicted;

      and (2) whether the trial court committed reversible error when it denied

      Klement’s motion for mistrial after a witness mentioned prior bad acts by

      Klement. We affirm.



                                Facts and Procedural History
[2]   In October of 2017, Darleen Patrick had been living at her home in La Porte,

      Indiana, for 30 years. Off and on during these years, one or more of her

      children, including Michael Klement, have lived with her. On October 25,

      2017, Patrick was admitted to the hospital for a week. Before Patrick left her

      home, she forbade Klement entering her home while she was in the hospital.

      Patrick locked both of the exterior doors to her house and she locked the

      interior door to her bedroom. Patrick kept the keys for the doors on a chain

      around her neck during her hospital stay. The only spare key for the locks was

      in possession of her daughter, who lived in an RV on Patrick’s property.


[3]   Upon returning home from the hospital, Patrick discovered a number of

      possessions missing from her home, including prescription medicines Norco




      1
          Ind. Code § 35-43-2-1(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020   Page 2 of 11
      and Xanax, jewelry, an electronic tablet, a gun, and around $200.00 in cash.

      She also discovered Facebook messages in which Klement reached out to

      friends to inquire if they would be interested in buying a handgun. Patrick

      confronted Klement, and he admitted taking the missing items. Klement

      promised he would retrieve and return the items. He then sent a Facebook

      message to his ex-girlfriend, Bailee Hoops, stating he needed back the gun that

      he had given her to sell.


[4]   Patrick gave Klement the opportunity to pay her $2,500.00 as reimbursement

      for the stolen goods he could not retrieve. When Klement did not give her the

      money, Patrick printed out the incriminating Facebook messages from her

      phone and gave them to Detective James Ferguston, who was assigned to the

      case. The police then arrested Klement for the burglary. Klement was charged

      with Level 4 felony burglary 2 and Level 5 felony carrying a handgun without a

      license with a prior conviction within fifteen years. 3


[5]   While in jail, Klement told his cellmate that his mom had kicked him out and

      had forbidden him from coming into the house again. Klement also told his

      cellmate that he had broken into Patrick’s house using a butter knife and then

      he went on to discuss the details of his crime, including giving the gun to Hoops

      to sell in return for a share of the profit.




      2
          Ind. Code § 35-43-2-1(l).
      3
          Ind. Code § 35-47-2-l(e)(2).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020   Page 3 of 11
[6]   Klement sent letters to Patrick and called her while awaiting trial. Klement

      wanted Patrick to tell the police she was “overmedicated” at the time she filed

      the police report. (Tr. Vol. 2 at 79.) Klement sent an “Affidavit of Statement”

      for Patrick to fill out and submit. (Ex. 6.) Klement called Patrick several times,

      telling her to turn in the form and pay the $300.00 misdemeanor fine so he

      would be released.


[7]   During opening statements at trial, the State mentioned Klement’s history of

      stealing things from Patrick as the reason Patrick had barred him from entering

      and staying at her home. Klement objected, and the trial court overruled his

      objection. Klement responded to the State’s allegation by emphasizing that

      attorney statements are not evidence.


[8]   In her testimony, Patrick mentioned Klement recently had been released from

      jail. Klement objected, and the trial court instructed the State to tell Patrick not

      to mention it again. The State agreed to tell her again, but also advised the

      court “she’s been advised three or four times.” (Tr. Vol. 2 at 50.) Nevertheless,

      Patrick mentioned two more times that Klement had been in jail. After the first

      of those two additional mentions, Klement objected and requested a continuing

      objection. He also moved for a mistrial, which the court subsequently denied.

      Klement did not seek admonishment. After the State rested, Klement again

      moved for a mistrial, and once again, the court denied it. The State suggested

      Klement have the court give a limiting instruction regarding Patrick’s

      testimony, but Klement refused that suggestion. As the parties and court

      discussed final instructions, Klement again raised his motion for a mistrial,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020   Page 4 of 11
       which was denied, and Klement once again denied the offer of an

       admonishment.


[9]    During that discussion of final instructions, the trial court explicitly asked if

       either party wanted to include the definition of “dwelling” in the jury

       instructions. (Id. at 241.) Klement stated the definition was “self-explanatory.”

       (Id.) The court then commented it would prefer not to include the instruction,

       citing a recent Supreme Court case in which the trial court’s jury instructions

       had “erroneously amplified the statutory definition of dwelling by declaring that

       a specific set of facts constituted dwelling instead of leaving to the jury that

       issue.” (Id. at 242.)


[10]   The jury found Klement guilty of both burglary and carrying a handgun

       without a license with a prior conviction within fifteen-years. For burglary, the

       court sentenced Klement to nine years with two years suspended, and for

       carrying a handgun without a license with a prior conviction within fifteen-

       years, the court sentenced Klement to four years with two years suspended.

       The court ordered those sentences served consecutively.



                                  Discussion and Decision
                                  1. Omitted Jury Instruction
[11]   Instruction of the jury falls under the trial court’s discretion, and we will reverse

       only for an abuse of that discretion. Benefiel v. State, 716 N.E.2d 906, 914 (Ind.

       1999), reh’g denied, cert. denied 531 U.S. 830 (2000). “To constitute an abuse of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020   Page 5 of 11
       discretion, the instructions given must be erroneous, and the instructions taken

       as a whole must misstate the law or otherwise mislead the jury. We will

       consider jury instructions as a whole and in reference to each other, not in

       isolation.” Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010).


[12]   Klement asserts the trial court committed fundamental error when it failed to

       give a jury instruction defining “dwelling,” which is an element of Level 4

       felony burglary, 4 because a criminal defendant “is entitled to have the jury

       instructed on all the elements of the charged offense.” (Appellant’s Br. at 13

       (quoting Taylor v. State, 922 N.E.2d 710, 716 (Ind. Ct. App. 2010), reh’g denied,

       trans. granted, trans. vacated). Fundamental errors are those that occur only in

       “extraordinary circumstances” when the mistakes made are considered “so

       prejudicial to the rights of a defendant as to make a fair trial impossible.”

       Hardley v. State, 905 N.E.2d 399, 402 (Ind. 2009) (quoting Barany v. State, 658

       N.E.2d 60, 64 (Ind. 1995)).


[13]   The State argues Klement cannot raise this argument on appeal because he

       invited any error that occurred. Invited errors are those that a party commits or

       invites or that occur as “a natural consequence of [the party’s] own neglect or

       misconduct.” Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014) (quoting Wright

       v. State, 828 N.E.2d 904, 907 (Ind. 2005)), reh’g denied, cert. denied 574 U.S. 1077

       (2015), reh’g denied 135 S. Ct. 1524 (2015).                Invited error forecloses all future



       4
        Level 4 felony burglary, as charged against Klement occurs when one breaks and enters the dwelling of
       another with the intent to commit a felony or theft therein. Ind. Code § 35-43-2-1(1).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020               Page 6 of 11
       opportunity for appellate review. Batchelor v. State, 119 N.E.3d 550, 556 (Ind.

       2019). Klement claims he did not invite the trial court’s failure to instruct the

       jury on the term “dwelling.” We disagree.


[14]   During discussion of final jury instructions, the court and parties discussed

       including the definition of “dwelling” in the jury instruction for burglary.

       Klement indicated such an instruction seemed unnecessary and he answered in

       the negative when asked whether he wanted any additional instructions. (Tr.

       Vol. 2 at 241-242.) Klement was then asked if he had any problems with the

       proposed jury instructions, to which he replied no. (Id.) When asked directly

       whether he wanted a definition for “dwelling,” Klement stated there was no

       need for a definition because “it’s self-explanatory…. It’s any place of human

       habitation.” (Id. at 241.) Not only did Klement not object to the failure to

       include an instruction defining “dwelling,” he positively affirmed the decision

       to not include such a definition. Accordingly, Klement cannot challenge this

       alleged error on appeal. 5 See Durden v. State, 99 N.E.3d 645, 655-56 (Ind. 2018)

       (when party fails to object and expressly affirms the proposed jury instructions,

       error invited).




       5
         Nor could the failure to so instruct constitute reversible error under the facts herein. Indiana law defines a
       “dwelling” as “a building, structure, or other enclosed space, permanent or temporary, movable or fixed that
       is a persons home or place of lodging.” Ind. Code § 35-41-1-10. During direct examination, Patrick testified
       that she has lived in her home for thirty years. (Tr. Vol. 2 at 45.) Moreover, we reject Klement’s suggestion
       that a one-week absence from one’s home for a hospital stay could call into question whether Patrick’s house
       was her dwelling. See, e.g., Ferrell v. State, 565 N.E.2d 1070, 1072 (Ind. 1991) (temporary absence does not
       alter the character of a home as a “dwelling”). Accordingly, there was no evidentiary dispute at trial.
       Patrick’s home met the definition of “dwelling.”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020                    Page 7 of 11
                              2. Denial of Motion for Mistrial
[15]   The trial court is best situated to decide whether to grant or deny a motion for a

       mistrial because it is in the best position to assess the impact of an event on the

       jury. Myers v. State, 887 N.E.2d 170, 189 (Ind. Ct. App. 2008), reh'g denied,

       trans. denied. Declaring a mistrial is drastic and will occur only if there is no

       other remedy. Id. Denial of a motion for mistrial will be reversed only upon a

       showing of an abuse of discretion. Id. The defendant must demonstrate that he

       was placed in a position of grave peril to which he should not have been

       subjected and that no other action by the trial court could have remedied the

       perilous situation. Id.


[16]   Klement argues he was entitled to a mistrial because of prosecutorial

       misconduct. Review of a properly preserved claim of prosecutorial misconduct

       is conducted in two steps. Booher v. State, 773 N.E.2d 814, 817 (Ind. 2000).

       First, we determine whether the prosecutor engaged in misconduct. Id. If we

       conclude there was misconduct, then we determine whether said misconduct

       “placed the defendant in a position of grave peril to which he or she would not

       have been subjected.” Id. (quoting Coleman v. State, 750 N.E.2d 370, 374 (Ind.

       2001)). Misconduct is determined by reference to case law and the Rules of

       Professional Conduct.” Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), trans.

       denied. The likelihood of the misconduct having a persuasive effect on the

       jury’s decision determines the gravity of peril. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020   Page 8 of 11
[17]   A defendant properly preserves a claim of prosecutorial misconduct by first

       objecting and then seeking an admonishment. Id. If the defendant is

       unsatisfied with the admonishment, he should move for a mistrial. Id. “Failure

       to request an admonishment or to move for mistrial results in waiver.” Id.

       Klement had many opportunities to ask for an admonishment, but he did not.

       Moreover, he declined to have one given when suggested by the court. Because

       Klement did not properly preserve his claim of prosecutorial misconduct,

       Klement has to establish both the grounds for misconduct and the additional

       grounds for fundamental error. See Booher, 773 N.E.2d at 817.


[18]   Klement’s allegation of misconduct hinges on two events. First, the prosecutor

       alluded to Patrick’s tumultuous relationship with Klement during the opening

       statement. Specifically, the prosecutor said, “she had problems [with] her son,

       Michael Klement, in the past, stealing things from her, things disappearing.”

       (Tr. Vol. 2 at 15.) Second, when the State was questioning Patrick on direct

       examination, it asked if Klement was living at her house, and she mentioned

       Klement’s recent release from jail.


[19]   To prove misconduct, Klement must show the State placed him in a position of

       grave peril when it acted deliberately to prejudice the jury by eliciting

       inadmissible evidence. Jewell v. State, 672 N.E.2d 417, 424 (Ind. Ct. App.

       1996), trans. denied. Klement cannot meet this burden. The State did not ask a

       question intended to elicit an inadmissible answer from Patrick. The State

       attempted to redirect Patrick in order to get a response to the question actually

       asked. On cross-examination, Klement’s counsel similarly struggled with

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020   Page 9 of 11
       Patrick being non-responsive. The State did not elaborate on Patrick’s

       inappropriate testimony, focusing instead on moving Patrick away from the

       reference. Klement fails to make any showing of prosecutorial misconduct.


[20]   Furthermore, Facebook messages and witness testimony demonstrate Klement

       took and then tried to sell the items stolen from Patrick’s home. Two witnesses

       confirmed that Klement knew how to use a butter knife to break into Patrick’s

       home. Klement admitted to Patrick that he committed the burglary. In light of

       the overwhelming evidence of Klement’s guilt, Klement cannot demonstrate

       that he was placed in a position of grave peril to which he should not have been

       subjected. See, e.g., Norris v. State, 113 N.E.3d 1245, 1252-53 (Ind. Ct. App.

       2018) (defendant failed to show allegedly improper statements “subjected him

       to grave peril to which he would not have been subjected otherwise”), reh’g

       denied, trans. denied.



                                               Conclusion
[21]   Because Klement agreed a jury instruction defining “dwelling” was

       unnecessary, he cannot allege error in the trial court’s failure to include such an

       instruction. Klement failed to establish either the grounds for prosecutorial

       misconduct or fundamental error, and he did not properly preserve his claim of

       prosecutorial misconduct through jury admonishment. Therefore, the court did

       not err when it denied Klement’s motion for mistrial. The trial court’s judgment

       is affirmed.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020   Page 10 of 11
[22]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020   Page 11 of 11
