Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose                                May 28 2014, 9:50 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

MARCE GONZALEZ, JR.                                  GREGORY F. ZOELLER
Dyer, Indiana                                        Attorney General of Indiana

                                                     BRIAN REITZ
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JORY D. PETERS,                                      )
                                                     )
        Appellant-Defendant,                         )
                                                     )
               vs.                                   )     No. 45A03-1305-CR-177
                                                     )
STATE OF INDIANA,                                    )
                                                     )
        Appellee-Plaintiff.                          )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                        The Honorable Thomas P. Stefaniak, Jr., Judge
                               Cause No. 45G04-1202-MR-2


                                            May 28, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Jory Peters appeals his conviction for murder. We affirm.

                                           Issues

       Peters raises three issues, which we restate as:

              I.     whether the trial court properly admitted evidence of a
                     prior incident between Peters and the victim;

              II.    whether the trial court properly precluded Peters from
                     questioning a witness regarding disputes between
                     Peters and the victim; and

              III.   whether Peters was denied his Sixth Amendment rights
                     by the jury’s short deliberation.

                                           Facts

       In July 2011, Crystal Mendez was driving in Gary with her mother and her

brother, Juan Nieves. They noticed that a white Grand Prix was following them. The

vehicle pulled beside Mendez’s vehicle, and they saw Peters, who was driving the

vehicle, look directly at them.

       On August 7, 2011, Mendez saw Peters again. She was driving with Nieves when

they saw Peters driving a Chrysler 300 with a distinctive green paint pattern. Peters was

driving slowly in front of them, so Mendez passed Peters and drove toward their home.

When Mendez pulled into a gas station, Peters stopped in the middle of the street.

Peters’s passenger got out of the vehicle, and Mendez heard gunshots. Nieves told

Mendez to go home, and he ran into the gas station.

       On August 14, 2011, Mendez was with her boyfriend’s sister, Tiyona Dennie.

Mendez again saw Peters driving the green Chrysler 300. Mendez and Dennie started

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looking for Nieves to warn him that Peters was in the area. They located Nieves, warned

him, and told him to go home. Mendez and Dennie then went to Mendez’s house. As

they reached the porch, they heard gunshots. Soon a girl rode up on her moped and said

that Nieves’s truck had crashed nearby. Mendez went to the scene, where she found

Nieves’s truck crashed into a tree and Nieves with several gunshot wounds, which were

fatal.

         On the same day, Annette Harmon was driving down 25th Avenue in Gary headed

toward Broadway. In her rearview mirror, Harmon noticed a Chrysler 300 with a “funny

green paint job” approaching at a high rate of speed. Tr. p. 257. The vehicle passed

Harmon, and she heard gunshots. Harmon “ducked” and, when she looked back up, she

saw the Chrysler 300 driving the wrong way into oncoming traffic. Id. at 259. The

vehicle ran a red light and made a right turn on Broadway. Harmon saw a truck that was

two cars in front of her turn a corner and drive into some bushes. Harmon and her

passenger stopped to see if they needed help and called 911. The incident was recorded

on video surveillance cameras of nearby businesses.

         The State charged Peters with the murder of Nieves. The State also charged Peters

and Roosevelt Franklin with two counts of Class A felony attempted murder, two counts

of Class C felony attempted battery, and Class D felony criminal recklessness, all related

to the August 7th incident. At Peters’s first trial, a jury found him not guilty of the

charges related to the August 7th incident, and the jury deadlocked on the murder charge.

A second trial was held in November 2012 on the murder charge. At the second jury

trial, Peters objected to the direct examination of Mendez regarding the August 7, 2011

                                             3
incident based on Indiana Evidence Rule 404(b), and the trial court overruled the

objection. During cross-examination of Mendez, Peters’s attorney attempted to question

Mendez regarding alleged accusations by Peters that Nieves and Mendez’s boyfriend had

been robbing people.      The State objected to the cross-examination, the trial court

sustained the objection, and Peters made an offer of proof. Peters’s statement to the

police, in which he conceded that he was driving the green Chrysler 300 on August 14th,

was admitted. The jury found Peters guilty of murder, and the trial court sentenced him

to fifty-five years in the Department of Correction.

       Peters filed a motion to correct error, alleging in part that the jury had deliberated

for “approximately five (5) minutes” and that the jury’s “haste” indicated “a lack of

careful consideration.” App. p. 243. Peters alleged that the short deliberation violated

his due process rights and “trial by jury as guaranteed by the Fifth, Sixth and Fourteenth

Amendments” and Article 1, Sections 12 and 13 of the Indiana Constitution. Id. at 243-

44. Peters’s attorney filed an affidavit that the jury “deliberated approximately five (5)

minutes.” Id. at 252a. At a hearing on the matter, the State disputed that the jury

deliberated five minutes and stated, “it was somewhere about fifteen minutes before I was

notified that there was a verdict.” Tr. p. 619. The trial court denied Peters’s motion to

correct error. The trial court found:

              1.     The fact that the jury deliberated for a short period of
                     time, in and of itself, does not on its face, indicate that
                     the jury failed to follow the Court’s final instructions;

              2.     The length of deliberations of less than twenty minutes
                     taken by itself is insufficient to overturn a jury verdict .
                     ...

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App. p. 256. The trial court noted that “just because the jury arrives at a quick verdict

does not necessarily point to the fact that the jury failed to follow the Court’s final

instructions.” Id. Peters now appeals.

                                          Analysis

                       I. Evidence Regarding August 7th Incident

       Peters asserts that the trial court erred by allowing the admission of evidence

regarding the August 7th incident. Peters contends that the evidence was inadmissible

under Indiana Evidence Rule 404(b). We afford the trial court wide discretion in ruling

on the admissibility of evidence. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012).

We review evidentiary decisions for an abuse of discretion and reverse only when the

decision is clearly against the logic and effect of the facts and circumstances. Id.

       At the time of Peters’s trial, Evidence Rule 404(b) provided:

              Evidence of other crimes, wrongs, or acts is not admissible to
              prove the character of a person in order to show action in
              conformity therewith. It may, however, be admissible for
              other purposes, such as proof of motive, intent, preparation,
              plan, knowledge, identity, or absence of mistake or accident,
              provided that upon request by the accused, the prosecution in
              a criminal case shall provide reasonable notice in advance of
              trial, or during trial if the court excuses pre-trial notice on
              good cause shown, of the general nature of any such evidence
              it intends to introduce at trial.

Rule 404(b) “is designed to prevent the jury from making the ‘forbidden inference’ that

prior wrongful conduct suggests present guilt.” Halliburton v. State, 1 N.E.3d 670, 681

(Ind. 2013). “In assessing the admissibility of 404(b) evidence [the] trial court must: (1)

determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at

                                              5
issue other than the defendant’s propensity to commit the charged act and (2) balance the

probative value of the evidence against its prejudicial effect pursuant to Rule 403.” Id. at

681-82.

       The trial court concluded that evidence concerning the August 7th incident was

admissible to show Peters’s motive.           “Numerous cases have held that where a

relationship between parties is characterized by frequent conflict, evidence of the

defendant’s prior assaults and confrontations with the victim may be admitted to show

the relationship between the parties and motive for committing the crime.” Iqbal v. State,

805 N.E.2d 401, 408 (Ind. Ct. App. 2004). We agree with the trial court that the August

7th incident was relevant to show the relationship between Peters and Nieves and motive

for Nieves’s murder.

       Even if evidence is relevant to show motive and the relationship between the

parties, it may still be inadmissible under the second prong of the Evidence Rule 404(b)

test if its probative value is substantially outweighed by the danger of unfair prejudice

pursuant to Evidence Rule 403. See Iqbal, 805 N.E.2d at 408-09. When inquiring into

relevance, the trial court “may consider any factor it would ordinarily consider under

Rule 402.” Id. at 409. “Such factors include the similarity and proximity in time of the

prior act, as well as tying the prior act to the defendant.” Id.

       According to Peters, the evidence of the August 7th incident was unfairly

prejudicial because he had been acquitted of charges brought related to the incident. The

State points out, and Peters acknowledges, that the United States Supreme Court held in

Dowling v. United States, 493 U.S. 342, 348 (1990), that relevant and probative evidence

                                               6
that is otherwise admissible under the Rules of Evidence is not excluded by the Double

Jeopardy Clause or the Due Process Clause simply because it relates to alleged criminal

conduct for which a defendant has been acquitted. Further, we note that our supreme

court addressed a similar issue in Underwood v. State, 722 N.E.2d 828, 833 (Ind. 2000),

and held:

              To determine whether evidence relating to an acquitted
              offense should be admitted, the trial court must (1) determine
              what facts were necessarily decided in the first trial by
              examining prior proceedings and considering the pleadings,
              evidence, the charge and other relevant matters; and (2)
              decide whether the government in a subsequent trial
              attempted to relitigate facts necessarily established against it
              in the first trial. If so, evidence of the former offense must be
              suppressed.

There is no argument or indication that the State was attempting to relitigate the facts

surrounding the August 7th incident. The State made clear while presenting its case that

Peters was not accused of shooting at Nieves during that incident, and the State did not

mention the previous charges against Peters related to the incident. We conclude that the

probative value of the evidence concerning the August 7th incident outweighed the danger

of unfair prejudice. The trial court did not abuse its discretion by admitting the evidence.

                            II. Cross-Examination of Mendez

       During his cross-examination of Mendez, Peters sought to question her regarding

allegations that Peters accused Nieves and Mendez’s boyfriend of robbing people. The

scope and extent of cross-examination is within the discretion of the trial court. Palmer

v. State, 654 N.E.2d 844, 848 (Ind. Ct. App. 1995). We will reverse only upon finding an

abuse of that discretion. Id.

                                             7
       During cross-examination, Peters asked Mendez: “You became aware that Jory

Peters believed that both of them [Nieves and Mendez’s boyfriend] were responsible for

thefts and burglaries and robberies in the Midtown area, is that correct?” Tr. p. 99. The

State objected based on hearsay and speculation. The trial court sustained the objection,

finding that the evidence sought to be admitted was double hearsay and violated

Evidence Rules 404, 609, and 403. Peters made the following offer of proof:

              If allowed to have the question answered, I believed based
              upon her statement to Sergeant Robertson of the Gary Police
              Department, that on August 14, 2011, Crystal Mendez said,
              when asked the question, “Do you know what this is about?”
              “Jory said my brother, Juan, robbed him a while back.” If she
              answered in the negative, that she didn’t say that, or didn’t
              recall it, we would then present the testimony of Sergeant
              Robertson to establish that on that date, August 14, 2011, in
              fact that is what she said.

Id. at 150.

       On appeal, Peters argues that the evidence was admissible to show why Mendez

was afraid of Peters and to show Mendez’s bias toward Peters. We first note that Peters

cites no authority to support his argument.      Consequently, Peters has waived the

argument. Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006); Ind. Appellate Rule

46(A)(8)(a) (requiring argument to be supported by coherent reasoning with citations to

authority). Waiver notwithstanding, we conclude that the trial court did not abuse its

discretion by excluding the evidence.

       Peters argues that he should have been allowed to present evidence regarding

Mendez’s knowledge of the “bad blood” between Peters and Nieves, Mendez’s bias

against Peters to protect her brother, and how Nieves and Peters knew each other.

                                           8
Appellant’s Br. p. 13.      According to Peters, this evidence “would have explained

Mendez’s state of mind and her bias.” Id. The State argues, in part, that any error in the

exclusion of the evidence was harmless. An error is harmless if its probable impact on

the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect

the substantial rights of the parties. Gault v. State, 878 N.E.2d 1260, 1267-68 (Ind.

2008). The jury was well aware that Mendez was the victim’s sister, and as the State

points out, “it surely would not have been surprising to the jury that Mendez would take

her brother’s side against her brother’s murderer.” Appellee’s Br. p. 21. Further, Peters

extensively cross-examined Mendez and pointed out inconsistencies in her testimony.

Other testimony and video surveillance established that Peters pulled alongside Nieves’s

vehicle, Nieves’s vehicle swerved off of the road, and Peters sped away. Nieves was then

found with several bullet wounds. Peters admitted to driving his vehicle at the scene of

the incident. In light of the evidence presented, even if the trial court erred by excluding

the cross-examination, any error was harmless.

                             III. Length of Jury Deliberations

       Next, Peters argues that the short length of the jury’s deliberations was

“insufficient in this case to satisfy his Sixth Amendment right to a fair and impartial

jury.” Appellant’s Br. p. 14. According to Peters, the jury deliberated for approximately

five minutes. However, the trial court found that the jury deliberated for “less than

twenty minutes.” App. p. 256.

       The Sixth Amendment to the United States Constitution guarantees that a

defendant is entitled to an impartial jury. Few Indiana cases have discussed the adequacy

                                               9
of a short jury deliberation. In Shields v. State, 523 N.E.2d 411, 413 (Ind. 1988), our

supreme court rejected a defendant’s argument that a fifty-minute deliberation violated

his right to a jury trial and due process. The court held: “Considering the length of the

trial and the facts in this case, we do not find the deliberation period to be so short that

the jury could not have conscientiously and thoroughly complied with their instructions

to reach a verdict.” Shields, 523 N.E.2d at 413. Also, in Wilson v. State, 253 Ind. 585,

590-91, 255 N.E.2d 817, 821 (1970), our supreme court rejected an assertion that a

twelve-minute deliberation amounted to jury misconduct.          The State notes that the

Seventh Circuit addressed a similar argument in U.S. v. Cunningham, 108 F.3d 120, 123-

24 (7th Cir. 1997), cert. denied. There, the Seventh Circuit held that the “time it takes the

jury to decide is not the relevant factor. The weight of the evidence is.” Cunningham,

108 F.3d at 123-24. “Before attaching great significance to the short time the jury took

for deliberations, we must have reason to suspect that the jury in some way disregarded

its instructions or otherwise failed in its duty.” Id. at 124. “A brief deliberation cannot,

alone, be a basis for an acquittal.” Id. The Seventh Circuit rejected an argument that a

ten-minute deliberation after a day and a half trial was sufficient to overturn a jury’s

guilty verdict.

       According to Peters, we should consider whether the factual issues at trial were

complex and the “closeness” of the case. Appellant’s Br. p. 15. Even if we consider

those issues, given the eyewitness testimony, the video surveillance evidence, and

Peters’s own statement to the police, we cannot say that the issues were particularly

complex or that the case was “close.” In the light of the evidence, we cannot say that

                                             10
Peters’s Sixth Amendment rights were violated by the short duration of the jury’s

deliberations. See State v. Lumbra, 177 A.2d 356, 358 (Vt. 1962) (“We think that the

trial court might well have considered, in the light of the evidence, that it was the strength

of the State’s case which affected the duration of the jury’s deliberation rather than any

failure on their part to give the case adequate consideration.”).

                                        Conclusion

       The trial court did not abuse its discretion by admitting evidence about the August

7th incident between Peters and the victim, and the trial court did not abuse its discretion

by excluding Peters’s proposed cross-examination of the victim’s sister. Further, the

jury’s short deliberation did not violate Peters’s Sixth Amendment rights. We affirm.

       Affirmed.

BAKER, J., and CRONE, J., concur.




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