MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Feb 01 2016, 8:29 am
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
Victoria L. Bailey                                       Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Indianapolis, Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darnell Wilson,                                          February 1, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1504-CR-216
        v.                                               Appeal from the Marion Superior
                                                         Court, Criminal Division, Room 3
State of Indiana,                                        The Honorable Stanley Kroh,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1405-FB-28371



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016    Page 1 of 9
[1]   Following a jury trial, Darnell Wilson was convicted of Aggravated Battery, a

      Class B felony.1 The trial court subsequently determined Wilson to be a

      Habitual Offender. On appeal, Wilson presents one issue for our review: Did

      the trial court abuse its discretion in denying his motion for a mistrial based on

      prosecutorial misconduct?


[2]   We affirm.


                                          Facts & Procedural History


[3]   An ongoing dispute between two family groups underscores the events giving

      rise to Wilson’s conviction. On May 26, 2014, the Memorial Day holiday,

      Veronica Alexander and her partner, Anthony Moffitt, along with their family

      and a few friends, were having a cookout at their home on North Grant Street

      in Indianapolis. James Currin and his partner, Shante Bowie, and their five

      children were driving down Grant Street in a gray minivan. According to

      Alexander, Currin and Bowie were driving up and down the street “taunting”

      and “threatening” Alexander’s and Moffitt’s children. Transcript at 27. Bowie

      claimed that she and Currin were going to visit a friend who lived on Grant

      Street. When Currin came to a stop sign near Alexander’s home, Moffitt

      approached the vehicle and started shouting for Currin to get out.




      1
       Ind. Code § 35-42-2-1.5(2). Effective July 1, 2014, this offense was reclassified as a Level 3 felony. Because
      Wilson committed this offense prior to that date, it retains its prior classification as a Class B felony.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016              Page 2 of 9
[4]   Currin got out of the car and told Bowie, “you just leave,” “I’m about to whoop

      his ass.” Id. at 166. Currin and Moffitt then began trading punches. Bowie

      moved into the driver’s seat and as she turned the minivan around in a

      driveway, a window of the vehicle was broken out. Bowie then drove to her

      aunt’s home located one block over on Chester Avenue. When Bowie arrived,

      she saw Wilson, who is her uncle, and asked him to head over to Grant Street

      to help Currin. She also called the police. Currin then came running between

      houses and across an alleyway and met up with Wilson. As they headed back

      to the Chester Avenue house, Alexander, Moffitt, and others followed. When

      police arrived, they spoke with Alexander and Bowie. The responding officers

      told the people from Grant Street to go back to Grant Street and told the people

      from Chester Avenue to stay on Chester Avenue. Alexander, Moffitt, and the

      others returned to the North Grant Street home.


[5]   Shortly after the police left, Lamont Wilson, Vicky Brooks, and Shawn Bowie

      arrived at the Chester Avenue residence. Lamont spoke with those in the

      home, including Wilson, and told them, “I think we should go teach them a

      lesson.” Id. at 173. A group of individuals, including Wilson, walked across

      the alley and through a field to the Grant Street residence. Brooks had armed

      herself with a knife and at some point, Lamont and Wilson armed themselves

      with large sticks or two-by-fours. As the group approached the Grant Street

      residence, they exchanged words with Moffitt and others. Wilson was

      positively identified as one of the individuals that entered onto the Grant Street

      property prior to the ensuing melee. During the confrontation, Moffitt was


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016   Page 3 of 9
      struck with what appeared to be two-by-fours, punched, and stomped on after

      he fell to the ground. Wilson admitted to throwing a punch, but claimed he hit

      another individual involved in the altercation. Other witnesses identified

      Wilson as one of the individuals hitting, punching, and stomping on Moffitt.

      Alexander was also attacked and sustained knife wounds to her back, buttocks,

      upper legs, and arm.


[6]   A neighbor who was present at the Grant Street home called 911 while other

      neighbors ran from their homes to try to stop the violence. Wilson and the rest

      withdrew to the Chester Avenue residence. Moffitt, Alexander, and another

      were taken to the hospital where they were treated for various injuries. Moffitt

      was hospitalized for multiple fractures in his face and jaw; he underwent

      surgery, and at the time of trial, was still suffering from the effects of the attack.


[7]   On May 30, 2014, the State charged Wilson with aggravated battery as a Class

      B felony, and subsequently alleged him to be a habitual offender. A jury trial

      was held on March 5, 2015. During closing argument, the State focused

      primarily on Wilson’s liability as an accomplice to beating Moffitt and that the

      severity of Moffitt’s injuries qualified the offense as aggravated battery, not a

      lesser battery offense. The defense’s closing argument sought to highlight

      inconsistencies in witnesses’ testimonies and to paint those at the Grant Street

      residence, including Moffitt, as the aggressors. Defense counsel further argued,

      “[p]eople act consistent with their personalities. We know that [Moffitt’s]

      personality is, he starts fights.” Transcript at 302-03. Defense counsel

      suggested that Moffitt “lost a fight and now he’s using the justice system to

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016   Page 4 of 9
punish everyone in that family because of that.” Id. at 303. During rebuttal

argument, the State addressed what the defense claimed were inconsistencies

and the defense’s argument that Moffitt instigated the fight by suggesting that

defense counsel was “misstat[ing]” the evidence presented. Id. at 309. Defense

counsel objected and the following ensued:

        [DEFENSE COUNSEL]: Counsel, that is an improper argument.
        To accuse counsel of misstating - -


        [DEPUTY PROSECUTOR]: I didn’t say intentionally, Your
        Honor.


        THE COURT: All right. And ladies and gentlemen, again,
        remember the instruction that you’re given. What the lawyers
        say during closing argument or opening statement, it’s not
        evidence. They are allowed to discuss the evidence and the law
        and attempt to persuade you to a particular verdict. You can
        accept or reject those arguments as you see fit.


                 If you’ll continue.


        [DEPUTY PROSECUTOR]: Thank you, Judge.


               I am not saying he did this intentionally. I’m saying if he’s
        misstating the facts, though, as they came out from the witness
        stand, which is what counts, how can you believe any of the
        argument that he’s made.


        [DEFENSE COUNSEL]: Again - - I’m sorry, Judge. Can we
        approach?



Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016   Page 5 of 9
              THE COURT: Well, I - - the Court would sustain the objection
              and - -


              [DEFENSE COUNSEL]: Then I move for a mistrial.


              THE COURT: All right. Well, the Court would deny the
              request for mistrial.


                    And, again, ladies and gentlemen, when the lawyers are
              arguing the case, your recollection of the evidence is what is
              important here. The evidence came from the witness stand, the
              sworn testimony.


                     You know, the burden is with the State of Indiana and
              what the lawyers say is not evidence. You can accept or reject
              the arguments as you see fit.


      Id. at 309-10.


[8]   The jury ultimately found Wilson guilty of aggravated battery. Wilson waived

      his right to a jury trial on the habitual offender count, and the trial court heard

      evidence and took the matter under advisement. On March 20, 2015, the trial

      court found Wilson to be a habitual offender and sentenced him to an aggregate

      term of sixteen years.


                                          Discussion & Decision


[9]   Wilson argues that the trial court abused its discretion in denying his motion for

      mistrial made during closing argument. Wilson maintains that the deputy

      prosecutor’s suggestion that his defense counsel misstated the evidence


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016   Page 6 of 9
       amounted to prosecutorial misconduct. Because credibility of the witnesses,

       including himself, and by extension his attorney, was key, Wilson asserts that

       the deputy prosecutor’s statements placed him in a position of grave peril.


[10]   We begin by noting that a trial court’s decision to grant or deny a motion for

       mistrial is afforded great deference on appeal because the trial court is in the

       best position to gauge the surrounding circumstances of an event and its impact

       on the jury. Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001). A court on

       appeal therefore reviews the trial court’s decision solely for an abuse of

       discretion. Id. “After all, a mistrial is an extreme remedy that is only justified

       when other remedial measures are insufficient to rectify the situation.” Id.


[11]   When a mistrial request is based on a properly-preserved claim of prosecutorial

       misconduct, the defendant must establish (1) that the prosecutor engaged in

       misconduct and (2) that the questioned conduct was so prejudicial and

       inflammatory that he was placed in a position of grave peril to which he should

       not have been subjected. Id. The gravity of the peril is determined by

       considering the alleged misconduct’s probable persuasive effect on the jury’s

       decision, not the impropriety of the conduct. Id.


[12]   When an improper argument is alleged to have been made, the correct

       procedure is to request the trial court to admonish the jury. Dumas v. State, 803

       N.E.2d 1113, 1117 (Ind. 2004); Brewer v. State, 605 N.E.2d 181, 182 (Ind. 1993).

       If the party is not satisfied with the admonishment, then he or she should move




       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016   Page 7 of 9
       for mistrial. Dumas, 803 N.E.2d at 1117; see also Ryan v. State, 9 N.E.3d 663,

       667 (Ind. 2014).


[13]   Here, we need not determine whether the deputy prosecutor’s statements

       amounted to misconduct because such statements, which were defused by the

       trial court’s admonishment, did not place Wilson in a position of grave peril to

       which he would not otherwise have been subjected. During Wilson’s closing

       argument, defense counsel suggested that Moffitt, and by extension, the deputy

       prosecutor, were abusing the justice system to “punish” Wilson and everyone

       else in his family2 and further characterized Moffitt as the instigator. Transcript

       at 303. Defense counsel also outlined perceived inconsistencies in the

       testimony of the various witnesses. The deputy prosecutor responded to such

       arguments, characterizing defense counsel’s perceived inconsistencies as

       misstatements of the record.3


[14]   Upon defense counsel’s objection, the trial court immediately advised the jury

       that the statements during the closing arguments for both sides were not




       2
         It should be noted that improper argument is a two-way street. We agree with the State that an inference
       could be drawn from defense counsel’s statements that Moffitt, and by extension the prosecutor, were
       attempting to “pervert the course of justice” for personal reasons. Appellee’s Brief at 14. To this end, defense
       counsel’s argument was much closer to the line of misconduct than the deputy prosecutor’s comments. See
       generally Ind. R. Prof. Cond., Preamble ¶ 5 (“A lawyer should use the law’s procedures only for legitimate
       purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system
       and for those who serve it, including . . . other lawyers”).
       3
        “Prosecutors are entitled to respond to allegations and inferences raised by the defense even if the
       prosecutor’s response would otherwise be objectionable.” Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006).
       Here, the deputy prosecutor’s remarks were made during the rebuttal phase of closing arguments and in
       direct response to the contentious argument made by defense counsel.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016                Page 8 of 9
       evidence. The court reiterated to the jury that it could accept or reject the

       arguments “as you see fit.” Id. at 309. Upon denying defense counsel’s

       subsequent request for a mistrial, the trial court again admonished the jury that

       it was to consider its recollection of the evidence and not the arguments made

       by the attorneys. In closing, the deputy prosecutor even stated: “And I want to

       make it clear, folks, I’m not implying that anyone is doing anything nefarious

       here at all. I’m just saying the facts are what is [sic] the key.” Id. at 311.

       Having reviewed the entire record, it is unlikely that the jury was persuaded by

       the challenged comments and ignored its duty to independently examine and

       rely upon the evidence as it was presented.


[15]   Moreover, we note that the court admonished the jury as to its role as the

       factfinder and reiterated the State’s burden. Repeated admonishments are

       presumed to have cured any error that may have occurred. See Emerson v. State,

       952 N.E.2d 832, 840 (Ind. Ct. App. 2011), trans. denied. Wilson does not

       dispute the accuracy of the admonishment and has not offered any argument to

       rebut the presumption that the admonishment cured the error.


[16]   The trial court did not abuse its discretion in denying Wilson’s motion for

       mistrial.


       Judgment affirmed.


       Robb, J., and Barnes, J. concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016   Page 9 of 9
