MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Jul 16 2018, 10:14 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         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
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office                                        Attorney General of Indiana
Logansport, Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Ryan Fleming,                                     July 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         09A05-1712-CR-2813
        v.                                               Appeal from the Cass Superior
                                                         Court
State of Indiana,                                        The Honorable Richard A.
Appellee-Plaintiff.                                      Maughmer, Judge
                                                         Trial Court Cause No.
                                                         09D02-1702-F5-16



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A05-1712-CR-2813 | July 16, 2018             Page 1 of 12
                                                Case Summary
[1]   Robert Ryan Fleming (“Fleming”) appeals his conviction for Battery Resulting

      in Bodily Injury to a Public Safety Officer, a Level 5 felony,1 and his

      adjudication as a habitual offender.2 We affirm.



                                                         Issues
[2]   Fleming presents three issues for review, which we have restated as follows:


                 I.           Whether Fleming was entitled to a declaration of a
                              mistrial and a new trial for juror misconduct through
                              inattentiveness;


                 II.          Whether Fleming was entitled to a mistrial for
                              prosecutorial misconduct; and


                 III.         Whether sufficient evidence supports his battery
                              conviction.


                                  Facts and Procedural History
[3]   On February 8, 2017, Fleming was being booked into the Cass County Jail 3 and

      was asked to provide a medical history. His responses to certain questions

      caused Shift Supervisor Steve Taylor (“Officer Taylor”) to treat Fleming as a




      1
          Ind. Code § 35-42-2-1(c)(1); (g)(5)(A).
      2
          I.C. § 35-50-2-8.
      3
          The record does not reveal the reason for Fleming’s incarceration.


      Court of Appeals of Indiana | Memorandum Decision 09A05-1712-CR-2813 | July 16, 2018   Page 2 of 12
      suicide risk. Officer Jeffrey Harness (“Officer Harness”) took Fleming by the

      arm and escorted him to a padded cell.


[4]   Once inside the cell, Fleming was told to remove his clothing and hand the

      items back through a food slot. Rather than remove his clothing, Fleming flung

      his arms and insisted that he was not suicidal. Officer Harness and other

      officers entered the padded cell to “get compliance” from Fleming. (Tr. at 86.)

      Fleming grabbed Officer Taylor’s face. Officer Todd Cain (“Officer Cain”)

      deployed his taser and Fleming was taken to the ground and subdued. Officer

      Harness observed blood on Officer Taylor’s face; he had been scratched.


[5]   On February 15, 2017, the State charged Fleming with Battery Resulting in

      Bodily Injury to a Public Safety Officer. On April 17, 2017, the State alleged

      Fleming to be a habitual offender. In bifurcated proceedings, a jury found

      Fleming guilty of the charge against him and adjudicated him a habitual

      offender. On November 6, 2017, the trial court imposed a sentence of three

      years imprisonment, enhanced by six years due to Fleming’s status as a habitual

      offender. Fleming now appeals.



                                 Discussion and Decision
                   Motion for Mistrial – Juror Inattentiveness
[6]   The Cass County Jail was equipped with recording equipment that captured the

      events inside the padded cell. During his testimony, Officer Taylor described

      events based upon his recollection and with reference to the recording. During

      Court of Appeals of Indiana | Memorandum Decision 09A05-1712-CR-2813 | July 16, 2018   Page 3 of 12
      the testimony, and apparently as the recording was playing, defense counsel

      brought it to the trial court’s attention that there “may [be] a sleeping juror.”

      (Tr. at 125.) The matter was summarily resolved with defense counsel saying,

      “I think we’re fine” and the trial court advising the jurors to stand up if they

      desired. (Tr. at 125.)


[7]   When the evidentiary part of the guilt phase of trial concluded, the jurors retired

      to deliberate. During deliberations, the jury notified the trial court that it

      wished to review the jail recording. The State and the defense agreed on what

      would be played for the jury and the jury was brought back into open court

      where the recording was played. The jury returned its verdict and the matter

      proceeded to the habitual offender phase.


[8]   The trial court read instructions pertinent to the habitual offender phase and

      asked the parties if there were outstanding matters to be addressed. Defense

      counsel responded that he would like to make a “belated motion for a mistrial”

      based upon his having received post-verdict information that the episode of

      juror sleeping had not been an isolated event. (Tr. at 168.) Fleming was invited

      to present testimony in support of the allegation of juror inattentiveness and he

      called as a witness his mother, Carol Ramirez (“Ramirez”). Ramirez, who had

      been present during the entire guilt phase, reported that a juror fell asleep three

      times and only the first time had been mentioned in open court. She estimated

      that the juror napped for four minutes, two during the first episode and one in

      each of the other episodes. She was uncertain what was being presented during



      Court of Appeals of Indiana | Memorandum Decision 09A05-1712-CR-2813 | July 16, 2018   Page 4 of 12
      the first nap but recalled that the jury was “looking at the video” during the

      second and third naps. (Tr. at 175.)


[9]   The trial court denied the motion for a mistrial, finding the motion to be

      untimely and that there had been no showing of prejudice to Fleming.

      Generally, the trial court’s denial of a motion for mistrial is to be reviewed by

      application of the following considerations:


              Because the trial court is in the best position to evaluate the
              relevant circumstances of an event and its impact on the jury, the
              trial court’s determination of whether to grant a mistrial is
              afforded great deference on appeal. To succeed on appeal from
              the denial of a motion for mistrial, the appellant must
              demonstrate the statement or conduct in question was so
              prejudicial and inflammatory that he was placed in a position of
              grave peril to which he should not have been subjected. Mistrial
              is an extreme remedy invoked only when no other measure can
              rectify the perilous situation. We determine the gravity of the
              peril based upon the probable persuasive effect of the misconduct
              on the jury’s decision rather than upon the degree of impropriety
              of the conduct. Moreover, reversible error is seldom found when
              the trial court has admonished the jury to disregard a statement
              made during the proceedings.


      Warren v. State, 757 N.E.2d 995, 998 (Ind. 2001). Here, we are concerned not

      with a statement or conduct improperly introduced to the jury but rather with

      “juror misconduct through inattentiveness.” Id. at 1001. Fleming argues that

      he was “denied his right to fair trial by an impartial jury,” and that the

      “structural error” is not “subject to harmless error review.” Appellant’s Brief at

      11.


      Court of Appeals of Indiana | Memorandum Decision 09A05-1712-CR-2813 | July 16, 2018   Page 5 of 12
[10]   In Warren, the appellant likewise contended that a sleeping juror violated his

       rights to a fair trial and trial by jury. 757 N.E.2d at 1001. After his conviction,

       Warren made a motion to correct error, supported by an affidavit from one

       juror averring that she had observed another juror fall asleep on multiple

       occasions and had nudged him with her arm or knee to wake him. The trial

       court denied the motion to correct error and Warren appealed. See id.


[11]   Our Indiana Supreme Court observed, “[t]o prevail on a claim of juror

       misconduct through inattentiveness, the defendant must demonstrate that the

       juror was actually inattentive and that the juror’s inattention resulted in actual

       prejudice.” Id. The trial court had made certain findings – that no specific

       times or length of sleep were indicated, another juror awakened the sleeper, the

       court had noticed inattentiveness only once during a bench conference, defense

       counsel and the defendant had not noticed inattentiveness, and the issue had

       not been raised during trial. Id. The Court determined that these findings were

       supported by the record, and found no abuse of discretion in the denial of the

       motion to correct error. Id.


[12]   Here, the juror was alleged to have slept for four minutes, a relatively brief time.

       However, it was also alleged that the juror slept for two minutes during which a

       material and potentially exculpatory recording was played. The trial court did

       not make a factual finding as to whether the juror slept; rather, the trial court

       rested its ruling upon untimeliness and lack of prejudice.




       Court of Appeals of Indiana | Memorandum Decision 09A05-1712-CR-2813 | July 16, 2018   Page 6 of 12
[13]   Fleming insists that it is “especially unfair” to require him to prove prejudice

       because courts are unable to look into the minds of jurors. Appellant’s Brief at

       13. But it was not necessary for the trial court to do so in this case. During

       deliberations, the jury asked to view the recording a second time and the jurors

       were brought into open court to observe the relevant portion as agreed upon by

       both parties. This had been accomplished before the trial court was asked to

       grant a mistrial, and Fleming did not contend that the juror was inattentive or

       sleeping during this second showing. In the absence of a showing of prejudice,

       Fleming cannot prevail on his claim that juror misconduct by inattentiveness

       entitled him to a new trial.


                  Motion for Mistrial – Prosecutorial Misconduct
[14]   During the prosecutor’s opening statement in the habitual offender phase, the

       following commentary and response ensued:


               Prosecutor: Now, you may have heard of three strikes and
               you’re out laws. I want to tell you right now that that’s not the
               law in the State of Indiana. Jurors are sometimes afraid that if
               they convict somebody of being a habitual offender, that means
               they’re going to go to prison for life, life without parole or
               something like that. That’s not the case. It changes the range of
               potential sentence, but life without parole or life in prison is not
               something we’re talking about.


               Defense Counsel: Your Honor, I’m going to object to this.


               Court: Sustained, sustained.



       Court of Appeals of Indiana | Memorandum Decision 09A05-1712-CR-2813 | July 16, 2018   Page 7 of 12
       (Tr. at 183.) The prosecutor then advised the jury that sentencing was the

       court’s task and continued opening argument to its conclusion. Thereafter,

       defense counsel moved for a mistrial, arguing:


               Because here’s the thing. I don’t want to be Mr. Cliché man
               here, but we have the whole un-ring the bell thing. Basically Mr.
               Schafer told the jury that “hey, don’t worry, you’re not sending
               away this guy for life” or strongly implied that when you’re
               making this deliberation and in spite of the objection sustaining
               [sic], you can’t undo that statement and I simply waited for him
               to finish his closing and then approached the bench before we
               started presenting evidence so I could put that on the record. I, I
               wasn’t trying to be delaying. But I just, I just think that I don’t
               [know] how in the world you can get around even with a limiting
               instruction once you, once the jury hears and perceives “it’s
               okay. You’re not really throwing this guy away lock and key.
               There’s a light at the end of the tunnel.” That’s, that’s a huge
               concern for us, Your Honor.


[15]   (Tr. at 212.) The prosecutor argued that “three strikes and you’re out” was a

       legitimate juror concern. (Tr. at 212.) The trial court denied the motion for a

       mistrial.


[16]   On appeal, Fleming argues that the prosecutor committed misconduct that

       placed him in grave peril by “inappropriately interject[ing] the issue of duration

       of punishment” to encourage the jury to adjudicate Fleming a habitual

       offender. Appellant’s Brief at 16. He claims that he was deprived of the




       Court of Appeals of Indiana | Memorandum Decision 09A05-1712-CR-2813 | July 16, 2018   Page 8 of 12
       opportunity to argue that a habitual offender adjudication would be unduly

       harsh in hopes that the jury would engage in jury nullification.4


[17]   As previously observed, “to succeed on appeal from the denial of a motion for

       mistrial, the appellant must demonstrate the statement or conduct in question

       was so prejudicial and inflammatory that he was placed in a position of grave

       peril to which he should not have been subjected.” Warren, 757 N.E.2d at 998.

       In reviewing a properly preserved claim of prosecutorial misconduct, the Court

       must determine: (1) whether the prosecutor engaged in misconduct and (2)

       whether the misconduct, under all the circumstances, placed the defendant in a

       position of grave peril to which he or she should not have been subjected.

       Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002).


[18]   The State points out that Fleming did not identify to the trial court any grounds

       for his contemporaneous objection and belatedly moved for a mistrial; he then

       presented argument but made no request for an admonition to the jury. “A

       party’s failure to present a contemporaneous trial objection asserting

       prosecutorial misconduct preludes appellate review of the claim.” Id. The

       default may be avoided if the prosecutorial misconduct amounts to

       fundamental error; as such, the appellant must establish both misconduct and

       fundamental error. Id. at 817-18. For prosecutorial misconduct to constitute




       4
         Jury nullification has been described as “power to acquit a defendant despite evidence and judicial
       instructions to the contrary.” Holden v. State, 788 N.E.2d 1253, 1254 (Ind. 2003). The Court clarified that
       power to ignore judicial instructions is not equivalent to a right to disregard the law. Id.

       Court of Appeals of Indiana | Memorandum Decision 09A05-1712-CR-2813 | July 16, 2018              Page 9 of 12
       fundamental error, it must “make a fair trial impossible or constitute clearly

       blatant violations of basic and elementary principles of due process and present

       an undeniable and substantial potential for harm.” Id. at 817.


[19]   Here, the prosecutor’s comments, even if considered misconduct, do not

       amount to fundamental error. Advising the jury that Fleming would not spend

       life in prison upon adjudication as a habitual offender does not rise to the level

       of egregiousness at issue in the cases cited by Fleming. See Dailey v. State, 406

       N.E.2d 1172, 1174 (Ind. 1980) (argument presented that thirty-to-sixty years

       was effectively only fifteen-to-thirty years with good time credit); Feggins v.

       State, 359 N.E.2d 517, 523 (1977) (recognizing danger to be avoided is that the

       jury, informed of the possibility of factors that could diminish the defendant’s

       sentence, will convict of a more serious offense than that which they actually

       believe him to be guilty of, in order to provide a penalty which they consider

       more appropriate); and Rowe v. State, 237 N.E.2d 576 (Ind. 1968) (prosecutor

       argued to the jury that if the defendant were convicted of manslaughter instead

       of murder, he could be paroled in two years).


[20]   Finally, the prosecutor’s commentary did not preclude Fleming from arguing

       that, pursuant to the Indiana Constitution, Article 1, Section 19, jurors are

       permitted to determine the law as well as the facts. The trial court instructed

       the jury, in a preliminary instruction and a final instruction for the habitual

       offender phase, that the jury was to determine both the law and the facts,

       according to the Indiana Constitution. Fleming has not demonstrated his

       entitlement to a mistrial.

       Court of Appeals of Indiana | Memorandum Decision 09A05-1712-CR-2813 | July 16, 2018   Page 10 of 12
                                  Sufficiency of the Evidence
[21]   When reviewing a claim of insufficient evidence, we neither reweigh the

       evidence nor assess the credibility of witnesses. Bell v. State, 31 N.E.3d 495, 499

       (Ind. 2015). We will affirm a conviction if there is probative evidence and

       reasonable inferences drawn therefrom from which a reasonable fact-finder

       could have found the defendant guilty beyond a reasonable doubt. Id.


[22]   To convict Fleming of Battery, as a Level 5 felony, as charged, the State was

       required to establish beyond a reasonable doubt that Fleming knowingly or

       intentionally touched Officer Taylor in a rude, insolent, or angry manner and

       the offense resulted in bodily injury to Officer Taylor while he was engaged in

       his official duties. I.C. § 35-42-2-1(c)(1); (g)(5)(A). Fleming claims that the

       State failed to establish that he acted with the requisite mens rea, knowingly or

       intentionally.


[23]   Indiana Code Section 35-41-2-2 provides in relevant part:


               (a) A person engages in conduct “intentionally” if, when he
                   engages in the conduct, it is his conscious objective to do so.


               (b) A person engages in conduct “knowingly” if, when he
                   engages in the conduct, he is aware of a high probability that
                   he is doing so.


               (c) ***


               (d) Unless the statute defining the offense provides otherwise, if a
                   kind of culpability is required from commission of an offense,

       Court of Appeals of Indiana | Memorandum Decision 09A05-1712-CR-2813 | July 16, 2018   Page 11 of 12
                   it is required with respect to every material element of the
                   prohibited conduct.


[24]   Fleming directs our attention to the recording made inside the padded cell,

       which he describes as irrefutable evidence that the scratching of Officer Taylor’s

       face occurred as Fleming’s muscles tensed in response to the taser. The State

       responds that Fleming need only have intended the touching and not the

       resultant injury. We agree with the State. “The culpability requirement [of I.C.

       § 35-42-2-1] applies to the conduct prohibited by the statute, not to the result of

       that conduct.” Lowden v. State, 51 N.E.3d 1220, 1223 (Ind. Ct. App. 2016).


[25]   The conduct prohibited by the battery statute is touching in a rude, insolent, or

       angry manner. Officer Cain testified that Fleming was agitated and grabbed

       Officer Taylor’s face before Officer Cain warned “taser, taser” and deployed the

       taser. (Tr. at 98.) Thus, the evidence favorable to the judgment is that Fleming

       touched Officer Taylor before the taser was employed. Sufficient evidence

       supports Fleming’s conviction.



                                               Conclusion
[26]   Fleming did not demonstrate his entitlement to a mistrial. Sufficient evidence

       supports his conviction of Battery Resulting in Bodily Injury to a Public Safety

       Officer.


[27]   Affirmed.


       Crone, J., and Brown, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 09A05-1712-CR-2813 | July 16, 2018   Page 12 of 12
