       MEMORANDUM DECISION

       Pursuant to Ind. Appellate Rule 65(D),                         Aug 20 2015, 8:58 am
       this Memorandum Decision shall not be
       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
       Tia R. Brewer                                            Gregory F. Zoeller
       Grant County Public Defender                             Attorney General of Indiana
       Marion, Indiana                                          Ian McLean
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Maurice Knight,                                          August 20, 2015
       Appellant-Defendant,                                     Court of Appeals Case No.
                                                                27A02-1411-CR-816
               v.                                               Appeal from the Grant Superior
                                                                Court
       State of Indiana,                                        The Honorable Jeffrey D. Todd,
       Appellee-Plaintiff.                                      Judge
                                                                Trial Court Cause No.
                                                                27D01-1407-F6-21



       Mathias, Judge.

[1]!   Maurice Knight (“Knight”) was convicted in Grant Superior Court of

       attempted obstruction of justice as a Level 6 felony and sentenced to two and


       Court of Appeals of Indiana | Memorandum Decision 27A02-1411-CR-816 | August 20, 2015   Page 1 of 11
       one-half years incarceration. Knight appeals and presents two issues, which we

       restate as: (1) whether the trial court erred in denying Knight’s motion to

       dismiss because his prosecution was barred by the successive prosecution

       statute; and (2) whether the trial court abused its discretion in denying Knight’s

       motion for mistrial based on the State’s reference to his prior convictions for

       invasion of privacy and intimidation.

[2]!   We affirm.


                                     Facts and Procedural History

[3]!   As explained in the companion to this case, Knight v. State, No. 27A02-1411-

       CR-814 (Ind. Ct. App. 2015), Knight was in a romantic relationship with

       Deanna Foreman (“Deanna”). On April 25, 2014, Deanna obtained a

       protective order against Knight. Despite this, Knight contacted Deanna on May

       18, 2014, by sending her a text message on her phone. He contacted Deanna

       again on May 20, 2014, by calling Deanna on her phone. As a result, Knight

       was arrested on May 22, 2014, for violating the protective order and charged

       with two counts of Class D felony invasion of privacy in Cause No. 27D01-

       1405-FD-196 (“Cause No. FD-196”).

[4]!   From May 28, 2014 to July 24, 2014, while he was in jail, Knight made

       numerous telephone calls to Deanna in which he threatened her. In some of the

       calls, Knight urged Deanna not to cooperate with the prosecuting attorneys and

       to not appear at his upcoming trial. Specifically, after Deanna told Knight that

       she had been subpoenaed to appear at his trial, Knight told her, “if you get me


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       sent to prison, I’m going to think about you every day, and I’m going to do

       something to you when I get out. I promise you that.” Tr. p. 140. He also told

       Deanna, falsely, that she would not be in trouble if she failed to appear as a

       witness.

[5]!   On July 8, 2014, the State amended the charging information in Cause No. FD-

       196 to add twenty-nine counts of Class D felony invasion of privacy and six

       counts of Class D felony intimidation. Anticipating that Deanna would not

       appear at the trial, the State prepared two charging informations, charging both

       Deanna and Knight with obstruction of justice if Deanna failed to appear.


[6]!   A bench trial was held in Cause No. FD-196 on July 25, 2014, and Deanna

       appeared as a reluctant witness against Knight. At the conclusion of the trial,

       the court found Knight guilty of two counts of Class D felony invasion of

       privacy and four counts of Class D felony intimidation.

[7]!   After Deanna did appear as a witness, the State changed the charging

       information against Knight to allege attempted obstruction of justice as a Level 6

       felony and filed this information on July 31, 2014, under Cause No. 27D01-

       1407-F6-21 (“Cause No. F6-21”).

[8]!   On October 8, 2014, prior to trial in Cause No. F6-21, Knight filed a motion to

       dismiss alleging that the charges against him were barred by the successive

       prosecution statute and the constitutional prohibitions against double jeopardy.

       The trial court denied the motion to dismiss. A jury trial was held on October

       14, 2014. At trial, Grant County Deputy Sheriff Kristen Sprunger (“Deputy

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        Sprunger”) testified regarding the monitoring and recording of Knight’s jail

        telephone calls, the preparation of possible charges against Deanna, and

        Deanna’s appearance at the trial in Cause No. FD-196. During this testimony,

        the prosecuting attorney asked Deputy Sprunger if Knight had been convicted

        in Cause No. FD-196. Deputy Sprunger responded that Knight had been

        convicted. Knight then requested a mistrial. Following a hearing outside the

        presence of the jury, the trial court denied the motion for a mistrial, but did

        admonish the jury as follows:


                Ladies and Gentlemen, this witness was asked if the Defendant
                was found guilty at a July 25, 2014, trial. I instruct you to
                disregard her answer to that question. The verdict in the July 25,
                2014, trial is, is of no relevance in the case now before you. The
                verdict in the July 25 trial is not to be discussed or mentioned
                during recess or in deliberations. It must have no influence on
                the verdict you render in this case.

        Tr. p. 153.

[9]!    At the conclusion of the trial, the jury found Knight guilty as charged. The trial

        court sentenced Knight to two and one-half years incarceration and ordered the

        sentence to be served concurrent with the six-year aggregate sentence imposed

        in Cause No. FD-196. Knight now appeals.

                                   I. Successive Prosecution Statute

[10]!   Knight claims that the trial court should have granted his motion to dismiss

        because his prosecution in Cause F6-21 was barred by the successive

        prosecution statute. This statute provides:

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                (a) A prosecution is barred if all of the following exist:
                      (1) There was a former prosecution of the defendant for a
                      different offense or for the same offense based on different
                      facts.
                      (2) The former prosecution resulted in an acquittal or a
                      conviction of the defendant or in an improper termination
                      under section 3 of this chapter.
                      (3) The instant prosecution is for an offense with which the
                      defendant should have been charged in the former
                      prosecution.
                (b) A prosecution is not barred under this section if the offense
                on which it is based was not consummated when the trial under
                the former prosecution began.

        Ind. Code § 35-41-4-4 (1977).1


[11]!   The phrase “should have been charged” as used in this statute must be read in

        conjunction with the statutes governing joinder. Thompson v. State, 966 N.E.2d

        112, 118 (Ind. Ct. App. 2012), trans. denied (citing Williams v. State, 762 N.E.2d

        1216, 1219 (Ind. 2002)). One of the joinder statutes, Indiana Code section 35-

        34-1-10 (1981), provides in relevant part:



        1
          Knight makes a brief argument that his prosecution was also barred by operation of Indiana Code section
        35-41-4-3 (1977), which generally bars prosecution “if there was a former prosecution of the defendant based
        on the same facts and for commission of the same offense.” First, this argument is not fully developed and is
        therefore waived. See Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005) (concluding that defendant’s
        argument was waived where he cited no authority in support of his position); Ind. Appellate Rule 46(A)(8)(a)
        (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent
        reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or
        parts of the Record on Appeal relied on[.]”). More importantly, here, the subsequent prosecution was not for
        the “same offense,” and section 35-41-4-3 is inapplicable.
        The same is true with regard to Knight’s brief references to double jeopardy; these references contain no
        citation to authority and no cogent reasoning and are therefore waived. See Davis, 835 N.E.2d at 1113; App.
        R. 46(A)(8)(a).

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                (c) A defendant who has been tried for one (1) offense may
                thereafter move to dismiss an indictment or information for an
                offense which could have been joined for trial with the prior
                offenses under section 9 of this chapter. The motion to dismiss
                shall be made prior to the second trial, and shall be granted if the
                prosecution is barred by reason of the former prosecution.

[12]!   The relevant portion of Indiana Code section 35-34-1-9 in turn provides:


                (a) Two (2) or more offenses may be joined in the same
                indictment or information, with each offense stated in a separate
                count, when the offenses:
                     (1) are of the same or similar character, even if not part of a
                     single scheme or plan; or
                     (2) are based on the same conduct or on a series of acts
                     connected together or constituting parts of a single scheme or
                     plan.

        Ind. Code § 35-34-1-9 (1981).


[13]!   To determine whether contemporaneous crimes are part of a “single scheme or

        plan,” for purposes of Section 9, we look to whether the offenses are connected

        by a distinctive nature, have a common modus operandi, and a common

        motive.” Thompson, 966 N.E.2d at 118 (citations and internal quotations

        omitted). In construing these statutes, we have noted before:


                [O]ur legislature has provided that, where two or more charges
                are based on the same conduct or on a series of acts constituting
                parts of a single scheme or plan, they should be joined for trial.
                [Indiana Code section 35-41-4-4] serves as a check upon the
                otherwise unlimited power of the State to pursue successive
                prosecutions. Where the State chooses to bring multiple


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                prosecutions for a series of acts constituting parts of a single
                criminal transaction, it does so at its own peril.

        Thompson, 966 N.E.2d at 118 (citing Williams, 762 N.E.2d at 1219) (internal

        quotations omitted).


[14]!   On appeal, we review the trial court’s decision on a motion to dismiss for an

        abuse of discretion. Schmidt v. State, 986 N.E.2d 857, 860 (Ind. Ct. App. 2013),

        trans. denied. We will not reweigh the evidence and will resolve any conflicts in

        the evidence in favor of the trial court’s ruling, and we will affirm the trial court

        on any basis apparent in the record. Id.


[15]!   In the present case, Knight argues that the intimidation charges in Cause No.

        FD-196 and the obstruction of justice charge in F6-21 were based on a single

        scheme or plan and should have been charged in the same case. Because they

        were not, he claims that the charge in F6-21 was barred by the successive

        prosecution statute. We disagree.


[16]!   It is true that an overlap exists between the timing of the acts underlying both

        cases. The acts underlying the charges in Cause No. FD-196 were alleged to

        have occurred from May 28 to June 30, 2014. In Cause No. F6-21, the acts

        were alleged to have occurred from May 28 through July 25, 2014.


[17]!   However, to determine whether the crimes in both cases were part of a single

        scheme or plan, we look to whether the offenses are connected by a distinctive

        nature, have a common modus operandi, and a common motive. Thompson, 966

        N.E.2d at 118. Here, we cannot say that the offenses were connected by a

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        distinctive nature. Nothing is terribly distinctive about speaking to someone

        over the telephone. Neither can we say that the crimes had a common modus

        operandi. Modus operandi means “method of working” and refers to a pattern of

        criminal behavior so distinctive that separate crimes may be recognized as the

        work of the same wrongdoer. Wilkerson, 728 N.E.2d at 246. Again, talking to

        someone on the telephone from jail is behavior so distinctive that the separate

        crimes may be recognized as the work of the same person.


[18]!   Perhaps more importantly, the crimes do not share a common motive. The

        motive of the crimes in Cause No. FD-196 was to contact Deanna and

        intimidate her into maintaining her relationship with Knight. The motive in the

        current case was to prevent Deanna from appearing as a witness and testifying

        against Knight.


[19]!   We also note that the State could not have charged Knight with obstruction of

        justice until after Deanna had been legally summoned as a witness. See Ind.

        Code § 35-44.1-2-2(a)(1)(C) (2013) (“A person who . . . knowingly or

        intentionally induces, by threat, coercion, false statement, or offer of goods,

        services, or anything of value, a witness or informant in an official proceeding

        or investigation to . . . absent the person from a proceeding or investigation to

        which the person has been legally summoned . . . commits obstruction of justice, a

        Level 6 felony.”) (emphasis added). Despite the State’s attempts to serve her

        with a subpoena earlier, the State was unable to properly serve her with the

        subpoena until July 1, 2014—just over three weeks before Knight’s trial in

        Cause No. FD-196. If the State were required to charge Knight with obstruction

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        of justice in Cause No. FD-196, a late amendment to the charging information

        would present its own difficulties. See Gaby v. State, 949 N.E.2d 870, 874 (Ind.

        Ct. App. 2011) (noting that Indiana Code section 35-34-1-5(b) generally allows

        the State to amend a charging information any time before the start of trial if

        the amendment does not prejudice the defendant’s substantial rights, which

        include a right to sufficient notice, i.e., whether the defendant had a reasonable

        opportunity to prepare for and defend against the charges).


[20]!   Further, until Deanna did or did not appear to testify as a witness, the State did

        not know whether it would be able to file the charge of obstruction of justice.

        Once Deanna appeared as a witness, the State could only charge Knight with

        attempted obstruction of justice. Under these facts and circumstances, we cannot

        say that the State should have brought the obstruction of justice charge against

        Knight in Cause No. FD-196. Thus, Knight’s prosecution in Cause No. F6-21

        was not barred by the successive prosecution statute, and the trial court did not

        err in denying Knight’s motion to dismiss.

                                                   II. Mistrial

[21]!   Knight also argues that the trial court erred in denying his motion for a mistrial

        which was made after Deputy Sprunger testified, in response to a question by

        the prosecution, that Knight was convicted after the trial in Cause No. FD-196.

[22]!   A trial court’s discretion in determining whether to grant a 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.


        Court of Appeals of Indiana | Memorandum Decision 27A02-1411-CR-816 | August 20, 2015   Page 9 of 11
        State, 742 N.E.2d 927, 929 (Ind. 2001). A court on appeal therefore reviews the

        trial court’s decision solely for 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. To prevail on appeal from the denial of

        a motion for mistrial, the defendant must establish 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.


[23]!   The State does not argue that the evidence regarding Knight’s prior conviction

        was properly before the jury. Instead, the State argues that Knight waived the

        issue by not requesting an admonishment and that the admonishment given by

        the trial court was adequate. With regard to the issue of waiver, the State is

        correct that, generally speaking, the failure to request an admonishment or to

        move for mistrial results in waiver. Dumas v. State, 803 N.E.2d 1113, 1117 (Ind.

        2004). Here, however, the trial court admonished the jury sua sponte. We cannot

        fault Knight for not requesting an admonishment when the trial court did in fact

        admonish the jury.


[24]!   We do agree with the State, however, that Knight has not demonstrated that

        the trial court’s admonishment was insufficient. A timely and accurate

        admonition is presumed to cure any error in the admission of evidence. Banks v.

        State, 761 N.E.2d 403, 405 (Ind. 2002). Here, the trial court instructed the jury

        to disgregard Deputy Sprunger’s response and informed the jury that the verdict

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        in the prior case was irrelevant, was not to be discussed or even mentioned in

        the deliberations, and was to have no influence on the jury’s verdict. Tr. p. 153.

        Knight does not explain why the trial court’s admonishment did not suffice

        under these circumstances. See Banks, 761 N.E.2d at 405. The trial court did not

        abuse its discretion in denying Knight’s motion for mistrial.


                                                   Conclusion

[25]!   The trial court did not err in denying Knight’s motion to dismiss the charges

        against him, as the current charges were not barred by the successive

        prosecution statute. The trial court did not abuse its discretion in denying

        Knight’s motion for a mistrial because the trial court’s admonishment to the

        jury was adequate.


[26]!   Affirmed.


        May, J., and Robb, J, concur.




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