MEMORANDUM DECISION                                                                    FILED
                                                                                  May 25 2016, 5:59 am
Pursuant to Ind. Appellate Rule 65(D),                                                 CLERK
this Memorandum Decision shall not be                                              Indiana Supreme Court
                                                                                      Court of Appeals
regarded as precedent or cited before any                                               and Tax Court


court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
David W. Stone, IV                                      Benjamin D. Ice
Stone Law Office & Legal Research                       William A. Ramsey
Anderson, Indiana                                       Barrett McNagny, LLP
                                                        Fort Wayne, Indiana
Edward R. Reichert
Nunn Law Office
Bloomington, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jodie Meyer,                                            May 25, 2016
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        27A04-1510-CT-1664
        v.                                              Appeal from the Grant Superior
                                                        Court
Elizabeth Cochran,                                      The Honorable Dana J.
Appellee-Defendant.                                     Kenworthy, Judge
                                                        Trial Court Cause No.
                                                        27D02-1403-CT-19



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A04-1510-CT-1664 | May 25, 2016             Page 1 of 7
[1]   In this personal injury action, plaintiff Jodie Meyer asked for a mistrial and a

      new trial after the jury heard references to insurance coverage and the

      defendant Elizabeth Cochran’s student loan debt. As Meyer has not

      demonstrated the trial court’s admonitions were insufficient to cure any error,

      we affirm. 1



                             Facts and Procedural History
[2]   Meyer was driving on an interstate highway when Cochran’s car hit the rear of

      Meyer’s car. During jury selection Cochran’s attorney was interviewing a

      prospective juror who had been a plaintiff in a personal injury action. The

      prospective juror was asked whether anything about that experience would

      affect how he viewed the position of either party in this case. He said “No.

      When I hear insurance companies, yes.” (Tr. at 115.) Cochran’s counsel then

      said “Alright. Well, there’s not an insurance company in this case.” (Id. at

      115-16.) In fact, the car Cochran was driving was owned by her parents and

      was insured.


[3]   Meyer’s counsel objected and the trial court sustained the objection. Meyer’s

      counsel asked that the prospective jurors be admonished, and the trial court told



      1
        Because the errors were cured by the trial court’s admonitions, we need not address whether the trial court
      should have permitted Meyer to present 1) evidence of insurance coverage “to counter [Cochran’s] improper
      claim an insurance company was not in the case and [Cochran’s] poor-mouthing defense,” (Br. of Appellant
      at 5), and 2) evidence of interest on a loan Meyer had to secure to pay for treatment of her injuries. As
      explained below, we presume the jury disregarded the challenged statements about insurance and financial
      status. The trial court was therefore not obliged to allow Meyer to present her own inadmissible evidence to
      “counter” the challenged statements.

      Court of Appeals of Indiana | Memorandum Decision 27A04-1510-CT-1664 | May 25, 2016               Page 2 of 7
      them to “disregard [counsel’s] comment about insurance. In this case, the jury 2

      is to not consider whether there was or was not insurance coverage in this case

      in coming to a decision, so insurance and whether or not there was any is not

      relevant to them, to the issues in this case.” (Id. at 118) (footnote added).

      Meyer’s counsel resumed voir dire. He noted a “jury is expected to not to [sic]

      consider whether there’s insurance available or at play at all in these types of

      cases,” (id.), and again asked the prospective juror whether anything about his

      experience as a personal injury plaintiff would affect his ability to be impartial.

      The prospective juror said “I don’t think so.” (Id.)


[4]   After the collision, Cochran was ticketed for driving at an unsafe speed. She

      did not contest the ticket. At trial Meyer’s counsel questioned Cochran about

      why she did not contest the ticket. She responded “I had a preconceived notion

      that I needed a lawyer, and I’m a student with several thousands of dollars in

      debt already.” (Id. at 182.) Meyer’s counsel objected on the ground Cochran’s

      statement violated motions in limine submitted by both parties that would

      prevent mention of the financial circumstances of the parties.


[5]   Meyer asked for a mistrial based on the mention of insurance during voir dire

      and the mention at trial of Cochran’s debt. Meyer’s counsel also told the court




      2
          This happened during voir dire. The jury had not yet been selected.




      Court of Appeals of Indiana | Memorandum Decision 27A04-1510-CT-1664 | May 25, 2016   Page 3 of 7
      Meyer overheard the jury talking in the jury room with the door shut during the

      lunch hour and “there was some statement made to the effect of ‘What’s this

      with no insurance?’” (Id. at 186.)


[6]   The trial court denied a mistrial but admonished the jury. 3 It ordered the jury

      to disregard Cochran’s answer and then said:

               I’m also going to give you a little bit of instruction. Okay? In
               this case, the financial circumstances of the parties is not
               admissible and it is not relevant of [sic] the issues that you’re here
               to decide. You’re here to decide if there’s one, one party or
               another party at fault for the wreck. You’re here to determine
               damages if you find someone at fault, but financial circumstances
               are not relevant to that issue. Also the existence or nonexistence
               of insurance is not admissible and that’s very important that you
               understand why. A lot of people are very concerned about the
               amount of funding on one side or the other or could be, and that
               becomes a red herring. That takes your eye off what the issue in
               this case is and the issue here is is there fault, are there damages .
               . . throughout the trial you won’t know if either party has
               insurance. You won’t know if one is a millionaire. You won’t
               know if one is in, in poverty because those issues are just not
               relevant here.


      (Id. at 197.) The final instructions told the jury it must not consider testimony

      that was not admitted into evidence and must not consider or speculate about




      3
        Meyer’s counsel made an “alternative request” that those portions of the motion in limine concerning
      insurance and the parties’ financial status “be not in effect anymore,” (Tr. at 192), because “defendants have
      opened the door to insurance in this case and have opened the door to the financial status of both parties.”
      (Id.) The court responded it was “not inclined to open the door to additional impermissible evidence based
      on the admission of other inadmissible evidence.” (Id. at 192-93.)

      Court of Appeals of Indiana | Memorandum Decision 27A04-1510-CT-1664 | May 25, 2016                 Page 4 of 7
      whether either party has insurance. The jury found for Cochran and against

      Meyer.



                                   Discussion and Decision
[7]   When faced with a circumstance that a defendant believes might warrant a

      mistrial, generally the correct procedure is to request an admonition. Isom v.

      State, 31 N.E.3d 469, 482 (Ind. 2015), reh’g denied, cert. denied. If counsel is

      unsatisfied with the admonition or it is obvious that the admonition will not be

      sufficient to cure the error, then counsel may move for mistrial. 4 Id.


[8]   A mistrial is an extreme remedy warranted only when a less severe remedy will

      not correct the error. Piatek v. Beale, 994 N.E.2d 1140, 1145 (Ind. Ct. App.

      2013), aff'd on reh’g, 999 N.E.2d 68 (Ind. Ct. App. 2013), trans. denied. We give

      great deference to a trial judge’s discretion in determining whether to grant a

      mistrial because the judge is in the best position to gauge the surrounding



      4
        Meyer alleges error based on the “cumulative effect” of the statement during voir dire about insurance and
      Cochran’s testimony at trial about her debt. Any error in either statement was cured by the trial court’s
      admonitions.
      As for the statement about insurance, we addressed the effect of such a statement during voir dire in Stone v.
      Stakes, 749 N.E.2d 1277, 1280 (Ind. Ct. App. 2001), on reh’g, 755 N.E.2d 220 (Ind. Ct. App. 2001), trans.
      denied:

               It is important to note at this juncture the precise timing of the reference. The reference
               was made during voir dire, while the parties were questioning the prospective jurors, and
               not made during the trial itself. The trial court is afforded broad discretion in regulating
               the form and substance of voir dire examination.


      Because voir dire is not part of the trial, Meyer should have moved to strike or discharge the jury panel. See
      Hillenburg v. State, 777 N.E.2d 99, 106 (Ind. Ct. App. 2002), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 27A04-1510-CT-1664 | May 25, 2016                     Page 5 of 7
       circumstances of an event and its impact on the jury. Id. When determining

       whether a mistrial is warranted, we consider whether the defendant was placed

       in a position of grave peril to which she should not have been subjected. Id.

       The gravity of the peril is determined by the probable persuasive effect on the

       jury’s decision. Id.


[9]    A timely and accurate admonition is presumed to cure any error in the

       admission of evidence, so reversible error will seldom be found if the trial court

       has admonished the jury to disregard a statement made during the proceedings.

       Id. The same is true of jury instructions; on appeal we presume the jury

       followed the law contained within the trial court’s instruction and applied that

       law to the evidence before it. Tipmont Rural Elec. Membership Corp. v. Fischer,

       697 N.E.2d 83, 90 (Ind. Ct. App. 1998), reh’g denied, aff’d, 716 N.E.2d 357 (Ind.

       1999). And see Kinney v. Butcher, 131 S.W.3d 357, 360 (Ky. Ct. App. 2004)

       (absent evidence to the contrary, we must assume the admonition achieved the

       desired effect). The Wisconsin Supreme Court applied similar reasoning in

       Roehl v. State, 253 N.W.2d 210, 217 (Wis. 1977): “We have frequently said that

       possible prejudice to a defendant is presumptively erased from the jury’s

       collective mind when admonitory instructions have been properly given by the

       court.” As Meyer has not demonstrated either presumption is overcome, we

       cannot say denial of a mistrial was error.


[10]   We noted in Piatek that there is little Indiana authority addressing in depth

       when such a presumption is overcome, but we found guidance in decisions

       from other states. In Jones v. State, 100 S.W.3d 1, 4-5 (Tex. App. 2002), pet. for

       Court of Appeals of Indiana | Memorandum Decision 27A04-1510-CT-1664 | May 25, 2016   Page 6 of 7
       discretionary review denied, the court held an instruction to disregard is presumed

       to cure error except in extreme circumstances where the evidence is “clearly

       calculated to inflame the minds of the jury and is of such a character as to

       suggest the impossibility of withdrawing the impression produced on their

       minds.” Id. Jones did not overcome the presumption because he presented no

       cogent argument demonstrating evidence the State elicited regarding a defense

       witness’s prior criminal record “was of such a character that it was impossible

       for jurors to withdraw the impression created by the evidence from their

       minds.” Id. at 5.


[11]   Nor has Meyer, as she has not demonstrated that the references to insurance or

       Cochran’s debt were “calculated to inflame the minds of the jury” or that the

       jury would be unable to put the references to insurance or Cochran’s debt out of

       its “collective mind.” The trial court did not abuse its discretion by denying the

       motion for a mistrial.



                                               Conclusion
[12]   The trial court’s admonitions cured any error in the admission of statements

       about insurance or Cochran’s debt and thus it did not abuse its discretion when

       it denied Meyer’s motion for mistrial. We accordingly affirm the trial court.


[13]   Affirmed.


       Baker, J., and Brown, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 27A04-1510-CT-1664 | May 25, 2016   Page 7 of 7
