      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                               FILED
      this Memorandum Decision shall not be                            Jan 24 2017, 8:41 am
      regarded as precedent or cited before any
                                                                           CLERK
      court except for the purpose of establishing                     Indiana Supreme Court
                                                                          Court of Appeals
      the defense of res judicata, collateral                               and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Gregory L. Fumarolo                                      Curtis T. Hill, Jr.
      Fort Wayne, Indiana                                      Attorney General of Indiana
                                                               Ellen H. Meilaender
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Javonieo D. White,                                       January 24, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               02A03-1512-CR-2367
              v.                                               Appeal from the Allen Superior
                                                               Court
      State of Indiana,                                        The Honorable Frances C. Gull,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               02D04-1505-F5-157



      Mathias, Judge.


[1]   Javonieo White (“White”), then a young inmate in the Allen County jail,

      punched Cade Hetrick (“Hetrick”), his young jailer, while Hetrick was trying to


      Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 1 of 19
      discipline White for disobedience. White was convicted after a jury trial in

      Allen Superior Court of Level 5 felony battery. The jury hung on the question

      of whether White was a habitual offender. The trial court sentenced White to

      the maximum six-year term in the Department of Correction on the battery

      conviction and set a new trial on the habitual offender charge. In the meantime,

      White appealed. While the appeal was pending, a new jury found White to be a

      habitual offender, and the trial court imposed an additional term of four years

      for a ten-year aggregate sentence. White appealed again. His consolidated

      appeal is now before us.


[2]   White claims that the State did not disprove his affirmative defense of self-

      defense beyond a reasonable doubt, that the trial court abused its discretion in

      denying his motion for a mistrial, and that the trial court was without

      jurisdiction to try the habitual offender charge.


[3]   We affirm.


                                 Facts and Procedural Posture

[4]   The facts below were much disputed. We state them here in the light most

      favorable to White’s conviction.


[5]   Around lunchtime on April 20, 2015, White was standing outside his jail cell,

      number 1316 on the upper tier of the “B” block of the Allen County jail. Every

      day at 12:30 p.m., first-shift guards would “lock down” the jail — that is,

      ensure that all inmates were in their cells with the doors locked — to prepare for



      Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 2 of 19
      the regular shift change at 2:00 p.m. White was waiting for Hetrick to come

      lock down his cell.


[6]   White was frustrated with Hetrick. Earlier that morning, Hetrick had come to

      White’s cell and found him sleeping when he ought to have been up for roll

      call. Hetrick woke White and ordered him to show his identifying wristband,

      but White only stuck his head out from under the blanket. The two then

      exchanged heated language and White felt belittled. From White’s perspective,

      this was but the latest in a string of insults from Hetrick over the last few days in

      incidents that were not further described. From Hetrick’s perspective, before

      that morning he had “no reason to dislike” White, and he always tried to treat

      every inmate equally. Tr. p. 223.


[7]   White had vented his frustrations over the phone shortly before lunch in

      separate phone calls to two young women. “I might be in the hole1 by tonight,”

      he told the first. Ex. Vol., State’s Ex. 9.2 “Why?” she asked with alarm, “Don’t

      start that . . . , oh my gosh!” Id. “Because [Hetrick] was talking shit to me

      today,” White replied, and “I’m finna tryna3 fight [him]. . . . [He’s] disrespectful

      . . . . I’m gonna show [him].” Id. “What you gonna get outta that?” she asked




      1
       That is, “disciplinary segregation.” See Tr. pp. 202–03; Stucker v. State, No. 46A05-1403-CR-117, 2015 WL
      520911, at *4 fn.2 (Ind. Ct. App. Feb. 9, 2015).
      2
       Calls to and from inmates in the Allen County jail are recorded. Heavily edited recordings of the two phone
      calls made by White on April 20, 2015, were heard by the jury but not transcribed in the record.
      3
       That is, “intend to” or “will.” Mark Liberman, Finna and Tryna, Language Log (Aug. 5, 2005, 9:47 AM),
      http://itre.cis.upenn.edu/~myl/languagelog/archives/002378.html.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017         Page 3 of 19
      sensibly. Id. “I’m just gonna see,” White replied, “I’m just gonna go in the

      room, and when I go in the room, he come do his checks, I’m gonna just be

      like, ‘What’s up? You talking all that shit. Take your radio off and come in here

      and bump.”4 Id. “[Hetrick has] been telling all the older [inmates] on the block,

      like, ‘Yeah, y’all better get him. He’s gonna make me fuck him up,’” White told

      the second young woman, “I’m like, ‘Alright, we’re gonna see who gonna fuck

      who up.’” Id. “I love you,” White concluded, “and if I don’t call you later on

      today, it’s ’cause I’m in the fucking hole.” Id.


[8]   In the course of locking down “B” block, Hetrick climbed the stairs to the upper

      level and saw White standing outside his cell. Hetrick ordered White inside.

      White refused. “What was with all the shit you was talking this morning?”

      White demanded. Tr. p. 198. Hetrick persisted, and White eventually relented.

      Once White was inside the cell, Hetrick tried to shut the cell door. The door

      popped back open. Feeling resistance as he tried to shut the door, and

      concluding that White had pushed it back open, Hetrick decided to take White

      to disciplinary segregation for “refusing a lock down [and] disrupting normal

      jail operations,” Tr. p. 202, a decision the Allen County jail entrusts to the

      discretion of its guards. Tr. p. 220.




      4
        That is, “fight” or “provoke a fight.” See Tr. p. 422 (State: “[Y]ou said you were gonna fight Officer Hetrick
      . . . ?” White: “Yes, ma’am.” State: “[Y]ou were gonna bump with him?” White: “Yes, ma’am.”); J.B. v.
      State, No. 49A05-1410-JV-457, 2015 WL 4065808, at *1 (Ind. Ct. App. July 1, 2015).

      Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017             Page 4 of 19
[9]    Hetrick left the cell door open, backed away from the cell, and radioed for the

       help of Daniel Webb (“Webb”), a fellow corrections officer working nearby, in

       taking White to segregation. While Hetrick waited for Webb, Hetrick

       repeatedly ordered White to move to the back of his cell and face the wall to be

       handcuffed; White repeatedly told Hetrick to take his radio off, come into the

       cell, and fight him. White was “taking somewhat of a fighter stance towards”

       Hetrick. Tr. p. 204. Webb arrived within moments of hearing Hetrick’s call for

       help.


[10]   Seeing Webb, Hetrick entered White’s cell. Webb followed. Hetrick again

       ordered White to face the wall, but White still refused. “He had his hands

       balled up in a fist and was just staring Hetrick down.” Tr. p. 238. Finally, White

       turned to the wall, still keeping his hands in a fist. Hetrick and Webb then

       “decided to push [White] up against the wall to gain a tactical advantage on

       him.” Id. Hetrick grabbed or had already grabbed White and the two guards

       “tried to get [White against the wall] as quickly as [they] could.” Tr. p. 252. In

       response, White spun and flailed in an attempt to shake Hetrick’s grip on him,

       striking Hetrick in the face as he did, and grabbed the top rail of the cell’s

       double bunk bed, anchoring himself to it. “I’ll cuff up if he lets go,” White told

       Webb. Tr. p. 239. “We can’t do that,” Webb replied. Id.


[11]   Hetrick put out a general call over the radio for the immediate help of any

       available jail officer. Webb struck White once successfully on the forearm to

       loosen his grip on the bunk bed rail. Webb and Hetrick then took White to the

       ground face down, Webb restraining White’s lower body and Hetrick his upper.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 5 of 19
       As Hetrick struggled to control White’s left side, White turned and punched

       Hetrick from below in the left eye with his right fist. “It did not feel good,”

       Hetrick admitted. Tr. p. 209. At that moment, though he did not see the punch,

       Webb heard White say, “That’s what you get.” Tr. p. 243. To avoid getting

       punched again, Hetrick “placed [his] right arm around the back of [White’s]

       neck [so] as to have his head [close], and . . . had his right arm secured in with

       it [so] as to not choke him.” Tr. p. 225.

[12]   Webb gained or already had control of White’s left arm and started punching

       White’s left shoulder. “[Webb] just hit as much meat as [he] could until [the

       guards] got [control of White’s] right arm.” Tr. p. 245. These means eventually

       achieved their end, and White allowed himself to be handcuffed. At that

       moment, the jail officers responding to Hetrick’s general call for help, delayed

       by a miscommunication as to White’s cell number, entered White’s cell and

       relieved Hetrick and Webb.


[13]   Hetrick suffered redness, swelling, and bruising around his left eye where White

       had punched him. April 20, 2015, was Hetrick’s last scheduled work day that

       week, and he returned to work after his regular two days off. Neither Webb nor

       White had injuries requiring medical attention.


[14]   The State charged White with Level 5 felony battery to a public safety officer

       causing bodily injury. The State alleged further that White was a habitual

       offender. White’s case was tried to an Allen County jury over two days from

       October 27, 2015, to October 28, 2015.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 6 of 19
[15]   On the second day of trial, White took the stand in his own defense. On cross-

       examination, White said that he followed every order he was given by Hetrick

       and Webb to the extent he felt was consistent with his own safety. White grew

       frustrated with the State’s line of questioning in response to that claim and

       addressed Hetrick directly:


               [White:]    I’m just saying, is you — you have —you
               understand what you doing. You understand what you doing,
               Hetrick.


               [State:]         Excuse me—


               [White:]         You’re lying to these people—


               [State:]         Excuse me—


               [White:]         Listen, Judge—


               [Court:]         No, no—


               [State:]         Excuse me, Your Honor—


               [White:]         You’re lying to these people.


       Tr. p. 440. Confusion briefly reigned as White continued to protest that he did

       not “care about y’all procedure no more,” Tr. p. 441, until the court’s bailiffs

       dissuaded him and the judge had the jury removed from the courtroom. The

       judge acknowledged White’s frustration and the importance he attached to

       telling his side of the story to the jury, and recessed the court for lunch.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 7 of 19
[16]   After lunch, before the jury was brought back into the courtroom, White by

       counsel moved for a mistrial. Counsel argued that the court’s four bailiffs had

       responded too aggressively when they “pretty much surrounded” the witness

       stand as White spoke, Tr. p. 447, even though White had remained seated and

       had not shown or threatened any physical act. The bailiffs’ response, counsel

       argued, created a prejudicial impression on the jury that could not be dispelled.


[17]   The judge denied White’s motion, and put on the record the following account

       of the incident:


                There were four bailiffs . . . . [Only one was in uniform.] I put my
                hand up and indicated to [two of them] to stand down, basically,
                that it was well in hand and under control. And I think it’s
                important to note that the security concerns in this courtroom
                were heightened significantly by the disruption by the Public
                Defender’s investigator . . . .5 [S]o the officers’ concern was
                heightened by that disruption and that extraordinarily
                disrespectful show . . . . Mr. White was clearly agitated by the
                State’s questions . . . . I got the jury out of here as quickly as I
                could. . . . [White] wasn’t surrounded. There were two bailiffs,
                one on either side of him.




       5
         This earlier incident was not recorded as it happened, but was described by the court and defense counsel
       during the ruling on White’s mistrial motion. As defense counsel was examining White, an investigator from
       the public defender’s office, in a matter unconnected to White’s case, entered the courtroom unbidden and
       greatly agitated, trying to communicate something to defense counsel. The investigator was ejected over his
       loud protestation. Neither the court, nor the State, nor defense counsel knew why the investigator did so, and
       the court did not hold White or counsel responsible for it. See Tr. pp. 451–52, 454–55.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017           Page 8 of 19
       Tr. pp. 450-53, 455. When the jurors returned to the courtroom, the judge

       admonished them not to allow the bailiffs’ response to White’s outburst to enter

       into their deliberations.


[18]   At the end of the second day, both parties rested. The jury returned a verdict of

       guilty on the battery charge. The jury was then asked to find White a habitual

       offender but could not reach a unanimous verdict on that question. The jury

       was dismissed and the judge declared a mistrial as to the habitual offender

       phase.


[19]   A new trial on the habitual offender charge was set for January 12, 2016, but

       White asked to be sentenced on the battery conviction before then. The court

       agreed and sentenced him to the six-year statutory maximum term at a hearing

       on December 2, 2015. At that hearing, White said he intended to hire private

       counsel for an appeal but thought he would have to wait until after the new trial

       to do so. Defense counsel expressed concern that this court’s “inflexib[ility]”

       with respect to untimely notices of appeal could work forfeiture of White’s right

       to appeal before the new trial. Sentencing Tr. p. 15. The court agreed and

       appointed the public defender’s office to perfect White’s appeal before it became

       time-barred. White’s first notice of appeal was filed on December 30, 2015. The

       clerk of Allen Superior Court informed us that the record in that appeal was

       complete on January 26, 2016.


[20]   In the meantime, White’s new habitual offender trial was reset to March 29,

       2016. On that day, a new jury found White to be a habitual offender. On April


       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 9 of 19
       5, 2016, the court enhanced the six-year sentence imposed on White on

       December 2, 2015, by four years, for an aggregate sentence of ten years.

       White’s second notice of appeal was filed on April 8, 2016, together with a

       motion to consolidate the second and the first appeals. We granted the motion.

       Docket, “Order” (Apr. 18, 2016). The clerk of Allen Superior Court informed

       us that the second record was complete on June 10, 2016.


                                      Discussion and Decision

[21]   White claims that the State did not disprove his affirmative defense of self-

       defense beyond a reasonable doubt, that the trial court abused its discretion in

       denying his motion for a mistrial, and that the trial court was without

       jurisdiction to try the habitual offender charge.


       I. A Reasonable Jury Could Have Found That White Provoked Hetrick’s
       Conduct to Retaliate Against Him, Defeating His Claim of Self-Defense

[22]   We review challenges to the sufficiency of the evidence rebutting an accused’s

       defense under the same standard as any sufficiency challenge. Wilson v. State,

       770 N.E.2d 799, 801 (Ind. 2002). We neither reweigh evidence nor re-evaluate

       witness credibility. Id. The evidence is viewed in the light most favorable to the

       judgment below, which will not be disturbed unless no reasonable trier of fact

       could have reached the same conclusion. Id.


[23]   Due process puts the burden on the State to prove the elements of its case

       beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970); Powers v.

       State, 540 N.E.2d 1225, 1227 (Ind. 1989). Due process therefore requires careful


       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 10 of 19
       allocation of burdens of proof with respect to an accused’s defenses. See

       Mullaney v. Wilbur, 421 U.S. 684 (1975). In cases of self-defense, “[w]hen a

       claim of self-defense is raised and finds support in the evidence, the State has

       the burden of negating at least one of the necessary elements” of the defense.

       Wilson, 770 N.E.2d at 800.


[24]   To prove Level 5 felony battery, the State had to prove beyond a reasonable

       doubt that White knowingly or intentionally touched Hetrick, a public safety

       official, in a rude, insolent, or angry manner that caused Hetrick bodily injury

       while he was engaged in his official duties. Ind. Code §§ 35-42-2-1(a)(2)

       (“employee of a penal facility” as public safety official), (c)(1) (simple battery),

       (g)(5)(A) (battery to a public safety official).


[25]   Proof of these elements notwithstanding, White’s conduct was justified if it was

       done in self-defense. Moon v. State, 823 N.E.2d 710, 716 (Ind. Ct. App. 2005)

       (citing Jennings v. State, 262 Ind. 476, 477-78, 318 N.E.2d 358, 359 (1974) (self-

       defense as defense of justification to battery)), trans. denied. White was justified

       in using reasonable force against Hetrick if White reasonably believed it was

       necessary to protect himself from Hetrick’s use of unlawful force. I.C. § 35-41-3-

       2(i)(1) (self-defense against public servants). This justification was cut off,

       however, if White provoked Hetrick’s conduct with the intent to cause him

       bodily injury. Id. § (j)(2).


[26]   No published decision of this court or our supreme court has construed Section

       (j)(2) (provocation cuts off self-defense against public servants), but we take


       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 11 of 19
       guidance from decisions construing an identical provision applicable to simple

       self-defense claims. See I.C. § 35-41-3-2(g)(2) (provocation cuts off simple self-

       defense); see also, e.g., Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011)

       (Defendant cannot prevail on self-defense if he “provoke[d], instigate[d], or

       participate[d] willingly in the violence . . . .”), trans. denied.


[27]   In Henson v. State, our supreme court held that Henson, a prisoner, was not

       entitled to a self-defense instruction in a prosecution for battery to a prison

       officer. 786 N.E.2d 274, 276 (Ind. 2003). Henson had thrown urine and feces at

       the officer as the officer came to take Henson into “a more restrictive cell block

       . . . .” Id. Henson argued that the officer’s past acts had put him in reasonable

       fear of violence at the officer’s hands, justifying his conduct. The court

       disagreed, holding that Henson provoked the encounter by previously cursing

       prison officers, threatening to kill them, and “refus[ing] several orders to be

       locked up in his cell.” Id. at 278. Further, the court held, Hensons’s preparation

       for the officer’s arrival at his cell showed a retaliatory rather than defensive

       motive. “While the criminal code is willing to excuse the use of force in certain

       circumstances . . . , it does not countenance and will not sanction premeditated

       retaliation for past” wrongs. Id.


[28]   In Bryant v. State, we held that Bryant, a jail inmate, did not prevail on a claim

       of self-defense in a prosecution for battery to a fellow inmate. 984 N.E.2d 240,

       251 (Ind. Ct. App. 2013), trans. denied. Bryant had “provoked” the violence, “or

       at least participated willingly in it,” when inter alia he “challenged [his victim]

       to fight in his cell,” id., by saying, “[L]et’s go to the room . . . .” Id. at 244.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 12 of 19
[29]   Here, the jury had before it sufficient evidence to find beyond a reasonable

       doubt that White provoked Hetrick’s conduct with the intent to injure him.

       White’s own words over the telephone on April 20, 2015, and at trial were the

       most damning pieces of such evidence. Over the phone shortly before the jail

       was locked down at 12:30 p.m., White said that he intended to retaliate against

       Hetrick for his past perceived insults. Ex. Vol., State’s Ex. 9 (“[He’s]

       disrespectful . . . . I’m gonna show [him].”). White already anticipated the

       wrongfulness of his planned act, id. (“I might be in the hole by tonight.”),

       undermining White’s claim that he was afraid rather than angry when Hetrick

       approached his cell. As in Henson, White’s preparation for Hetrick’s arrival

       permitted the jury to find a retaliatory rather than defensive motive. Id.

       (“[W]hen I go in the room, he come do his checks, I’m gonna just be like, . . .

       ‘Take your radio off and come in here and bump.’”). White’s statement as he

       punched Hetrick, “That’s what you get,” Tr. p. 243, confirmed that White’s

       desire for retaliation still motivated him at the time of the struggle in his cell.


[30]   Further, White provoked and instigated Hetrick to come into his cell by

       pushing the cell door back open when Hetrick tried to close it and, as Hetrick

       claimed and White admitted, by “offer[ing] [Hetrick] to come into [White’s]

       room so [they] could settle it in a fight . . . .” Tr. p. 426. White’s “fighter

       stance” toward Hetrick, Tr. p. 204, as Hetrick stood outside White’s cell

       waiting on Webb, showed White’s willingness to fight even as Hetrick

       presented no imminent threat to him. In his own words, White was eager to see

       “who gonna fuck who up.” Ex. Vol., State’s Ex. 9.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 13 of 19
[31]   There was sufficient evidence for the jury to find that White, by disobeying and

       baiting Hetrick and Webb, manufactured an opportunity for a violent struggle,

       which White used to retaliate against Hetrick for perceived past wrongs.

       Accordingly, the jury was entitled to conclude that White’s defense of self-

       defense was cut off by his “provo[cation of Hetrick] with the intent to cause

       bodily injury to [Hetrick].” I.C. 35-41-3-2(j)(2). The law of self-defense does not

       and cannot sanction White’s premeditated retaliation. Henson, 786 N.E.2d at

       278. We reject White’s argument, that “amidst . . . conflicting testimony there

       is consistent evidence which supports the claim that White acted in self[-

       ]defense,” Appellant’s Br. p. 22, as an invitation to reweigh the evidence.


       II. The Bailiffs’ Measured Reaction to White’s Outburst on the Stand Did Not
       Prejudice or Inflame the Jury Against Him

[32]   Next, White urges us to find reversible error in the trial court’s denial of his

       motion for a mistrial after White addressed Hetrick from the stand and touched

       off an allegedly prejudicial reaction from court bailiffs in view of the jury. We

       find no error here.


[33]   Mistrial is an “extreme” remedy of last resort. Harris v. State, 824 N.E.2d 432,

       439 (Ind. Ct. App. 2005). Grant of a mistrial is within the sound discretion of

       the trial court. Id. In reviewing the trial court’s decision for an abuse of that

       discretion, we defer to the trial court’s unique ability to “gauge the

       circumstances and [their] probable impact on the jury.” Id. To prevail on

       appeal, White must establish that the bailiffs’ reaction so prejudiced and

       inflamed the jury against him that he was placed in a position of grave peril to

       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 14 of 19
       which he should not have been subjected. Id. The gravity of the peril is

       measured by the circumstances’ probable persuasive effect on the jury’s

       decision. Id. A trial court usually insulates itself from review by admonishing

       the jury to disregard the allegedly prejudicial and inflammatory event. Alvies v.

       State, 795 N.E.2d 493, 506 (Ind. Ct. App. 2003), trans. denied.


[34]   The State urges us to resolve White’s claim in reliance on the rule that a

       defendant may not premise a mistrial on his own misconduct. Appellee’s Br. p.

       19 (“Although [White] tries to frame his claim as one based on the response of

       courtroom security, the fact remains that it was [White’s] outburst that

       prompted that response.”). This is a correct statement of the law, see Reynolds v.

       State, 625 N.E.2d 1319, 1321 (Ind. Ct. App. 1993), but it is inapplicable here. A

       defendant is not made to suffer any and every act by court officers so long as it

       is arguably reactive. The contrary would give the State a kind of heckler’s veto

       over a defendant’s right to a fair and impartial trier of fact. Just as a defendant

       by his own conduct cannot manufacture grounds for a mistrial where none

       existed before, so officers of the State by their own conduct cannot

       simultaneously prejudice the fact-finder and deny a defendant relief from that

       prejudice.


[35]   The State has the better argument when it says the bailiffs’ reaction did not

       gravely imperil White, and that any potential prejudice was cured by the trial

       court’s admonition to the jury to disregard what the bailiffs did. Appellant’s Br.

       pp. 19-21. We agree, deferring to the trial court’s unique position to evaluate

       the likely impact of the bailiffs’ reaction on the jury. As described by the trial

       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 15 of 19
       court, that reaction was measured and went no further than necessary to restore

       order in the courtroom. Two bailiffs, neither in uniform, approached White and

       stood on either side of him to dissuade him from further disrupting the

       proceedings. The bailiffs did not harangue or demean White; they said only,

       “You’re done,” “Stop,” and “Stop talking.” Tr. p. 442. There is no evidence

       that the bailiffs physically restrained or physically threatened White to get his

       cooperation. When the jury returned to the courtroom, White was still present

       and physically unrestrained, as he had been before. In short, there is no

       evidence to support White’s contention that the “actions of the court officers

       here signaled to the jury their views on the guilt of White.” Appellant’s Br. p.

       25. To the extent that any such signal could have been received by a juror, it

       was dispelled by the judge’s immediate admonition to disregard the bailiffs’

       reaction from jury deliberations.


[36]   The trial court did not abuse its discretion when it denied White’s motion for a

       mistrial.


       III. The Trial Court Had Jurisdiction to Try the Habitual Offender Charge
       Because There Was No Final Judgment Before It Did

[37]   Finally, White claims that the trial court lacked jurisdiction over his case after

       January 26, 2016, and that its March 29, 2016, judgment against him on the

       habitual offender charge is therefore void. The clerk of Allen Superior Court

       notified us that the record in White’s first appeal was complete on January 26,

       2016. On that date, White argues, the trial court lost and we assumed

       jurisdiction over his case. Ind. Appellate Rule 8 (“The Court on Appeal

       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 16 of 19
       acquires jurisdiction on the date the Notice of Completion of Clerk’s Record is

       noted in the Chronological Case Summary.”); Appellant’s Br. p. 28.


[38]   White’s argument fails. Any jurisdictional defect in White’s case was in this

       court’s jurisdiction, not the trial court’s. We have jurisdiction over appeals

       “from Final Judgments.” App. R. 5(A). As relevant here, a final judgment

       “disposes of all claims as to all parties.” Id. 2(H)(1). It “reserves no further

       question or direction for future determination.” Bueter v. Brinkman, 776 N.E.2d

       910, 913 (Ind. Ct. App. 2002) (quoting Thompson v. Thompson, 259 Ind. 266,

       269, 286 N.E.2d 657, 659 (1972)). The December 4, 2015, judgment of

       conviction against White on the battery charge was not the final judgment of

       the trial court in his case because, by reserving the habitual offender charge for

       future determination, it did not dispose of all the State’s claims against White.


[39]   In criminal cases, sentences are final judgments. Hopkins v. State, 420 N.E.2d

       895, 896 (Ind. Ct. App. 1981) (“[D]efendant has never been sentenced. . . .

       Thus, we have no final judgment . . . .”); Terrell v. State, 180 Ind. App. 634, 636,

       390 N.E.2d 208, 209 (1979) (“[S]entencing is final judgment.”). The

       enhancement to the sentence of a habitual offender is inextricable from the

       sentence itself and travels with it. I.C. § 35-50-2-8(j) (“[Habitual offender status]

       results in an enhanced sentence. . . . The court shall attach the . . . enhancement

       to the felony conviction with the highest sentence imposed . . . . If [that

       conviction] is set side or vacated, the court shall . . . apply the . . . enhancement

       to the felony conviction with the next highest sentence . . . .”). Thus, no

       judgment in a criminal case is final and appealable under Appellate Rule

       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 17 of 19
       2(H)(1) until pending enhancements to the sentence have been decided and

       applied by the sentencing court.6


[40]   The clerk of Allen Superior Court notified us that the record in White’s second

       appeal, taken after imposition of the habitual offender enhancement, was

       complete on June 10, 2016. We acquired jurisdiction over White’s case on that

       date. App. R. 8. Before then, we took no action on White’s case other than to

       extend the time to file briefs, affecting no party’s substantial rights, see id. 66(A)

       (harmless error), and to consolidate the two appeals on April 18, 2016, in aid of

       our jurisdiction over one final judgment. See id. 8 (“Prior to [the] date [on which

       the Court on Appeal acquires jurisdiction], the Court on Appeal may . . .

       exercise limited jurisdiction in aid of its appellate jurisdiction . . .”).


[41]   The defect in our jurisdiction was cured on June 10, 2016. There was never any

       defect in the trial court’s jurisdiction before it decided and applied the habitual

       offender enhancement to White’s sentence, thereby disposing of all the State’s

       claims against White. Even if the unenhanced battery sentence had been

       sufficiently severable from the habitual offender enhancement to be an

       appealable final judgment, that would still have left the trial court’s jurisdiction




       6
        This does not, of course, allow the State in such cases to postpone indefinitely a defendant’s appeal of a
       conviction by delaying retrial on a sentence enhancement. A defendant in White’s position should seek entry
       of an appealable final judgment on fewer than all claims or issues under Indiana Trial Rule 54(B) and
       Appellate Rule 2(H)(2).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017       Page 18 of 19
       over the habitual offender charge undisturbed. We reject White’s contrary

       argument.


                                                 Conclusion

[42]   For these reasons, White’s defense of self-defense was disproved by sufficient

       evidence, the trial court did not abuse its discretion in denying White’s motion

       for a mistrial, and the trial court had jurisdiction to enhance White’s sentence as

       a habitual offender. White’s conviction is affirmed in all respects.


[43]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017   Page 19 of 19
