MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               Apr 11 2016, 9:10 am

this Memorandum Decision shall not be                                     CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
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
Philip R. Skodinski                                      Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Emerson Wade Bixler,                                     April 11, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A05-1509-CR-1512
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable J. Jerome Frese,
Appellee-Plaintiff,                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-1410-F4-17



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 71A05-1509-CR-1512 | April 11, 2016         Page 1 of 11
[1]   On October 22, 2014, there was a fire at a South Bend home belonging to

      Jennifer Daniels. Daniels’s neighbor, Appellant-Defendant Emerson Wade

      Bixler, had been seen walking around the back of Daniels’s house minutes

      before the fire was first reported wearing an orange ski-mask and a teal hat.

      Appellee-Plaintiff the State of Indiana charged Bixler with Level 4 felony arson.

      As he was leaving the courthouse following the first day of trial, Bixler made a

      comment to one of the jurors. Bixler later moved for a mistrial based on the

      extra-judicial comments, which was denied by the trial court. The jury found

      Bixler guilty as charged. Bixler raises the following issues on appeal: (1) the

      trial court should have declared a mistrial based on his extra-judicial statements

      to the juror; (2) the trial court should not have admitted into evidence an orange

      ski mask and teal hat which he argues were illegally seized from his garage; and

      (3) there was insufficient evidence to sustain his conviction. We affirm the trial

      court in all respects.



                            Facts and Procedural History
[2]   On October 22, 2014, Jennifer Daniels left her South Bend house around 11:00

      a.m. to go to work. Approximately an hour later, Troy Orban, who lives across

      the street from Daniels and next door to Bixler, was outside doing yardwork.

      Orban saw Bixler standing at the back, southwest corner of Daniels’s house

      with his three-wheel motorized mobility scooter parked nearby. Although

      Bixler was wearing an orange ski mask and a teal cap, Orban recognized it was

      him because he was wearing the same clothes Orban had seen him wearing


      Court of Appeals of Indiana | Memorandum Decision 71A05-1509-CR-1512 | April 11, 2016   Page 2 of 11
      earlier in the day and he recognized Bixler’s scooter. Orban saw Bixler toss a

      red container behind the vacant house adjacent to Daniels’s house before

      returning home. About five minutes later, Orban saw Bixler carrying a gasoline

      canister, which belonged to Orban. Orban asked Bixler what he had been

      doing on Daniels’s property because he was aware that Daniels had told Bixler

      to stay off the property. Bixler responded only by saying “boo.” Tr. p. 181,

      182.


[3]   Orban took the gas can from Bixler and returned home. Shortly thereafter,

      Orban’s wife told Orban that there was smoke coming from Daniels’s house.

      At approximately 12:20 p.m., St. Joseph Police Officer Rick Morton was

      dispatched to Daniels’s house in response to a reported fire. After the fire was

      extinguished, Officer Morton approached the back of Daniels’s house where he

      observed three-wheeled scooter tracks in the lawn leading to two broken

      windows, one of which was on the southwest corner of the house where the fire

      had been. Officer Morton recovered a red laundry detergent container from the

      yard of the vacant house adjacent to Daniels’s home and noted that the

      container had a strong odor of gasoline. Officer Morton spoke to Bixler, who

      was sitting in his garage, and noticed Bixler’s three-wheel scooter parked

      nearby. Officer Morton then arrested Bixler and questioned him about the fire.


[4]   Just prior to Bixler’s arrest, Officer Morton’s partner observed an orange ski

      mask and teal hat in the garage matching Orban’s description of what Bixler

      had been wearing earlier, and collected the items as evidence. The mask and

      hat were in plain sight of the officers as they were speaking to Bixler. At trial,

      Court of Appeals of Indiana | Memorandum Decision 71A05-1509-CR-1512 | April 11, 2016   Page 3 of 11
      Bixler objected to the admission of these items, arguing that they were obtained

      via an illegal search of his property prior to his arrest. The trial court allowed

      the items to be admitted.


[5]   Michael Vogely, a fire investigator for the Indiana State Fire Marshal’s Office,

      investigated the fire and determined that it had been intentionally set using an

      ignitable liquid, such as gasoline. Vogely also concluded that the fire had been

      started near the exterior southwest corner of the house.


[6]   The State charged Bixler with Level 4 felony arson and a jury trial began on

      July 27, 2015. At trial, Daniels testified that she had repeatedly told Bixler to

      stay off of her property because he had made inappropriate comments and

      advances towards her. On two occasions prior to the fire, Daniels had called

      the police to report Bixler’s inappropriate conduct. Orban testified that in

      January of 2015, Bixler had told him “he wished he would have burned the

      whole damn house down.” Tr. p. 202.


[7]   As he was leaving the courthouse following the first day of trial, Bixler yelled to

      one of the jurors something to the effect of, “hey, take a look at me. Do I look

      like somebody that would do that?” Tr. p. 102. The juror recounted the

      incident to the other jurors the next day. The trial court repeatedly admonished

      the jury that they were to disregard any out-of-court statements made by Bixler.

      The State then asked the jury members whether “anything [they] heard outside

      the courtroom yesterday or heard about going on outside the courtroom

      yesterday, [would] influence [them] one way or the other in this trial,” and they


      Court of Appeals of Indiana | Memorandum Decision 71A05-1509-CR-1512 | April 11, 2016   Page 4 of 11
      indicated that it would not. Tr. p. 110-111. Bixler moved for a mistrial,

      arguing that the trial court’s admonition of the jury was insufficient to remedy

      the alleged bias created by Bixler’s comments. The trial court denied Bixler’s

      motion. On July 29, 2015, the jury found Bixler guilty as charged. The trial

      court sentenced Bixler to six years of incarceration with two years suspended to

      probation.



                                 Discussion and Decision
[8]   Bixler raises the following three issues on appeal: (1) whether the trial court

      erred in denying Bixler’s motion for a mistrial; (2) whether the trial court erred

      in admitting the hat and ski mask into evidence; and (3) whether there was

      sufficient evidence to support Bixler’s conviction.


                                   I. Extra-Judicial Contact
[9]   The decision to grant a motion for mistrial lies within the sound discretion of

      the trial court. Palmer v. State, 486 N.E.2d 477, 483 (Ind. 1985). The trial

      court’s decision is afforded great deference on appeal because the trial court is

      in the best position to gauge the surrounding circumstances of the event and its

      impact on the jury. Mack v. State, 736 N.E.2d 801, 803 (Ind. Ct. App. 2000),

      trans. denied. The declaration of a mistrial is an extreme action which is

      warranted only when no other recourse could remedy the perilous situation.

      Palmer, 486 N.E.2d at 483. “In order to prevail on appeal from the denial of a

      motion for mistrial, a defendant must establish that the questioned information

      or event was so prejudicial and inflammatory that he or she was placed in a
      Court of Appeals of Indiana | Memorandum Decision 71A05-1509-CR-1512 | April 11, 2016   Page 5 of 11
       position of grave peril to which he or she should not have been subjected.”

       Bisard v. State, 26 N.E.3d 1060, 1068 (Ind. Ct. App. 2015) (citing Burks v. State,

       838 N.E.2d 510, 519 (Ind. Ct. App. 2005)) trans. denied.


[10]   Bixler’s argument fails for several reasons. First, because Bixler was the person

       responsible for the extra-judicial communication with the juror, he is not

       entitled to a mistrial. “A defendant who creates his own cause for mistrial

       presents no error.” Reynolds v. State, 625 N.E.2d 1319, 1321 (Ind. Ct. App.

       1993) (finding that defendant’s own outbursts were the source of the alleged

       jury bias and that defendant could not “predicate error upon his own

       volunteered statements”).


[11]   Additionally, the alleged bias did not place Bixler in a position of grave peril.

       The contact with the jury was minimal and the jury was repeatedly admonished

       by the trial court. Furthermore, the jury was asked by both the State and

       Bixler’s counsel whether Bixler’s comments would in any way affect their

       determination of the issues, to which the jury indicated that it would not.

       Bixler offers no explanation on what impact, if any, his statements may have

       had on the jury, much less how he was put in grave peril. The trial court did

       not abuse its discretion in denying Bixler’s motion for a mistrial.


                                   II. Admission of Evidence
[12]   “We review a trial court’s decision to admit or exclude evidence for an abuse of

       discretion. An abuse of discretion occurs if a trial court’s decision is clearly

       against the logic and effect of the facts and circumstances before the court.”

       Court of Appeals of Indiana | Memorandum Decision 71A05-1509-CR-1512 | April 11, 2016   Page 6 of 11
       Payne v. State, 854 N.E.2d 7, 13 (Ind. Ct. App. 2006) (citations omitted). We

       will not reweigh evidence and consider conflicting evidence most favorable to

       the trial court’s ruling. Gray v. State, 982 N.E.2d 434, 437 (Ind. Ct. App. 2013).


[13]   Bixler argues that the hat and ski mask recovered from his garage were obtained

       without a warrant and so should not have been admitted at trial.

               To justify a warrantless seizure under the plain view doctrine, a
               law enforcement officer must not have violated the Fourth
               Amendment in arriving at the place where items are in plain
               view, the “incriminating character” of the items must be
               “immediately apparent,” and the officer must have “a lawful
               right of access” to the items in plain view. See [Horton v.
               California, 496 U.S. 128, 133, 110 S.Ct. 2301, 110 L.Ed.2d 112
               (1990)]; [Middleton v. State, 714 N.E.2d 1099, 1101 (Ind. 1999)]. If
               such requirements are met, the items discovered in “plain view”
               may be seized without a warrant.


       Justice v. State, 765 N.E.2d 161, 165 (Ind. Ct. App. 2002). In Justice, we found

       that a police officer’s warrantless seizure of compact discs from defendant’s car

       was permitted because the officer “had probable cause to believe that the

       compact discs would be useful as evidence of the burglary he was there to

       investigate.” Id. at 166.


[14]   In the instant case, Bixler was seated in his garage when the officers

       investigating the fire approached to speak with him. While standing in Bixler’s

       driveway, one of the officers observed a teal hat and orange ski mask in plain

       view in Bixler’s garage. Based on the information provided by Orban, i.e. that

       he had seen Bixler behind Daniels’s house wearing a teal hat and orange ski

       Court of Appeals of Indiana | Memorandum Decision 71A05-1509-CR-1512 | April 11, 2016   Page 7 of 11
       mask minutes prior to the fire, the incriminating character of the items was

       immediately apparent, and the officers had probable cause to believe that the

       items would be useful as evidence of the arson.


[15]   Furthermore, we find that the officers were lawfully on Bixler’s property when

       they observed the hat and ski mask. “[P]olice entry onto private property and

       their observations do not violate the Fourth Amendment when the police have

       a legitimate investigatory purpose for being on the property and limit their entry

       to places visitors would be expected to go, such as walkways, driveways, and

       porches.” State v. Seidl, 939 N.E.2d 679, 683-84 (Ind. Ct. App. 2010) (quoting

       Trimble v. State, 842 N.E.2d 798, 802 (Ind. Ct. App. 2006). The officers were

       legitimately pursuing an arson investigation when they entered upon Bixler’s

       property and, in doing so, ventured only onto Bixler’s driveway. Bixler was

       sitting in his garage with the garage door open when the officers approached.

       The incriminating items were nearby in the garage and plainly visible to the

       officers. Accordingly, we find that the trial court did not abuse its discretion in

       admitting the hat and ski mask.


[16]   Even if the trial court abused its discretion in admitting the ski mask and hat,

       any such error was harmless. We do not reverse convictions based on the

       improper admission of evidence where that evidence is harmless. Edmond v.

       State, 790 N.E.2d 141, 146 (Ind. Ct. App. 2003). Orban testified that despite

       the ski mask and hat, he was “one hundred percent sure” the man behind

       Daniels’s house was Bixler because he had on the same clothes as earlier in the

       day and he was using the motorized scooter that Bixler regularly used. Tr. p.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1509-CR-1512 | April 11, 2016   Page 8 of 11
       182. Additionally, a picture of the hat and ski mask as they were found in

       Bixler’s garage was admitted into evidence without objection by Bixler. Any

       possible error in the admission of these items was harmless.


                                  III. Sufficiency of Evidence
[17]           When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

       original).


[18]   The probative evidence and reasonable inferences supporting the verdict are as

       follows: Orban witnessed Bixler at the back of Daniels’s house near the origin

       point of the fire just minutes before Orban’s wife noticed the fire. Orban saw

       that Bixler had his three-wheeled motorized scooter with him and saw Bixler
       Court of Appeals of Indiana | Memorandum Decision 71A05-1509-CR-1512 | April 11, 2016   Page 9 of 11
       throw a red container into the adjacent yard before returning home. Some

       minutes later, Orban saw Bixler carrying his five-gallon gas container and

       Orban’s wife saw smoke coming from Daniels’s house. Officer Morton

       investigated the scene and found three-wheeled scooter tracks across Daniels’s

       yard leading to the corner of the house where the fire originated. Officer

       Morton also found a red laundry detergent bottle behind the adjacent house

       which smelled like gasoline. While emergency responders were arriving, Bixler

       was sitting in his garage across the street from Daniels’s house with his three-

       wheel scooter nearby. Daniels testified that there had been several incidents

       between her and Bixler and that she had repeatedly told Bixler to stay off her

       property. Orban also testified that Bixler told him “he wished he would have

       burned the whole damn house down.” Tr. p. 202.


[19]   Bixler argues that there was insufficient evidence to support his conviction

       because the State’s case relied heavily on Orban’s testimony and Bixler called

       into question Orban’s credibility as a witness. Specifically, Bixler argues that at

       the March 2015 deposition, Orban declined to mention Bixler’s statement that

       “he wished he would have burned the whole damn house down.” Tr. p. 202.

       Orban testified that he was not asked specifically about that statement at the

       deposition and forgot to mention it until afterward. It is the fact-finder’s job to

       make determinations regarding witness credibility and we do not reweigh those

       determinations on appeal. Drane, 867 N.E.2d at 146.


[20]   The judgment of the trial court is affirmed.



       Court of Appeals of Indiana | Memorandum Decision 71A05-1509-CR-1512 | April 11, 2016   Page 10 of 11
Bailey, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 71A05-1509-CR-1512 | April 11, 2016   Page 11 of 11
