MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                   Jun 07 2018, 8:17 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Chris M. Teagle                                          Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Greg E. Griffin,                                         June 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         05A02-1712-CR-2793
        v.                                               Appeal from the Blackford Circuit
                                                         Court
State of Indiana,                                        The Honorable Dean A. Young,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         05C01-1703-F5-64



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 05A02-1712-CR-2793 | June 7, 2018        Page 1 of 11
                                          Case Summary
[1]   Greg E. Griffin (“Griffin”) appeals his convictions of (1) Unlawful Possession

      of a Syringe,1 elevated to a Level 5 felony; (2) Possession of Marijuana, as a

      Class B misdemeanor;2 (3) Possession of a Device or Substance Used to

      Interfere with a Drug or Alcohol Screening Test, as a Class B misdemeanor; 3

      and (4) Possession of Paraphernalia, as a Class C misdemeanor.4


[2]   We affirm in part, reverse in part, and remand for resentencing.



                                                    Issues
[3]   Griffin presents several issues, which we restate as follows:


                 I.        Whether the trial court abused its discretion in denying his
                           motion for a mistrial, determining that an admonishment
                           was an adequate remedy for testimony suggesting that
                           Griffin previously used methamphetamine with a syringe.


                 II.       Whether the trial court abused its discretion by giving a
                           jury instruction defining joint possession.




      1
          Ind. Code § 16-42-19-18.
      2
          I.C. § 35-48-4-11(a)(1).
      3
          I.C. § 35-43-5-18.
      4
          I.C. 35-48-4-8.3(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 05A02-1712-CR-2793 | June 7, 2018   Page 2 of 11
               III.     Whether Griffin’s conviction of Unlawful Possession of a
                        Syringe could be elevated to a Level 5 felony.5


                              Facts and Procedural History
[4]   On March 8, 2017, Griffin, a probationer, submitted to a urine screen, and was

      seen putting something in his pocket. When asked to remove the item, Griffin

      pulled out a small squeeze bottle. Griffin was advised of his rights and spoke

      with the police. Griffin admitted that the bottle contained clean urine that he

      brought with him for the test. Griffin also admitted that he had a syringe in his

      bedroom. The police then accompanied Griffin to his residence, and Griffin

      directed the police to a glasses case inside a dresser drawer. The case contained

      two hypodermic syringes and a spoon with white residue; later testing revealed

      the presence of methamphetamine on the spoon and inside a syringe. On top of

      the dresser, police found a hollowed-out pen with burn marks. Nearby, there

      was a pill bottle with Griffin’s name on it. The bottle contained a green, leafy

      material that later testing revealed was marijuana.


[5]   The State charged Griffin with Count 1—Unlawful Possession of a Syringe, as

      a Level 5 felony; Count 2—Possession of Marijuana, as a Class A

      misdemeanor; Count 3—Possession of a Device or Substance Used to Interfere

      with a Drug or Alcohol Screening Test, as a Class B misdemeanor; and Count



      5
        Our resolution of this issue leads us to conclude that Griffin’s conviction was elevated by an inapplicable
      statute. We therefore do not address Griffin’s assertion that the court abused its discretion by rejecting a plea
      agreement that contemplated pleading guilty only to that “elevated” crime. Moreover, because we remand
      for resentencing, we do not reach Griffin’s contention that the court abused its sentencing discretion.

      Court of Appeals of Indiana | Memorandum Decision 05A02-1712-CR-2793 | June 7, 2018                 Page 3 of 11
      4—Possession of Paraphernalia, as a Class C misdemeanor. Both Count 1 and

      Count 2 involved elevations based upon alleged prior convictions.


[6]   Prior to trial, the court issued orders in limine specifying, among other things,

      that no party or witness could “make reference to other crimes, wrongs, or acts

      committed by any witness or person without first receiving” permission. App.

      Vol. 2 at 50. During the eventual jury trial, the State asked a law enforcement

      officer how syringes came up in a conversation with Griffin. The officer

      responded that another officer had asked Griffin “if he, how he used his

      Methamphetamine.” Tr. at 24-25. Griffin objected, and the court concluded

      that the State had violated an order in limine. Griffin sought a mistrial, and the

      trial court determined that it would instead give an admonishment to the jury.


[7]   At trial, Griffin’s strategy was to admit to much of the alleged conduct—just

      not possession of the syringes; Griffin testified that the syringes belonged to a

      woman who had been staying with him. The State later sought a jury

      instruction explaining that possession can be sole or joint. Griffin objected,

      asserting that he had not been charged with joint possession of the contraband.


[8]   The jury found Griffin guilty of the charges tried to it, and Griffin waived his

      right to a jury for the ensuing elevation phase of his trial. After the presentation

      of evidence, the trial court determined that Griffin was guilty of the elevated

      charge of Unlawful Possession of a Syringe, but that Griffin was not guilty of

      the elevated charge of Possession of Marijuana. As a result, Count 1 was

      elevated to a Level 5 felony and Count 2 remained a Class B misdemeanor.


      Court of Appeals of Indiana | Memorandum Decision 05A02-1712-CR-2793 | June 7, 2018   Page 4 of 11
       Thereafter, the trial court held a sentencing hearing and imposed an aggregate

       sentence of six years in the Indiana Department of Correction.


[9]    Griffin now appeals.



                                  Discussion and Decision
                                Denial of Motion for Mistrial
[10]   To prevail in seeking a mistrial, “the defendant must show he was placed in a

       position of grave peril to which he should not have been subjected.” Hall v.

       State, 514 N.E.2d 1265, 1267 (Ind. 1987). Moreover, “[t]he gravity of the peril

       is determined by the probable persuasive effect on the jury’s decision.” West v.

       State, 758 N.E.2d 54, 56 (Ind. 2001). “[T]he correct legal standard for a mistrial

       is a pure question of law, which we review de novo.” Weisheit v. State, 26

       N.E.3d 3, 15 (Ind. 2015). However, “[a] trial court is in the best position to

       evaluate whether a mistrial is warranted because it can assess first-hand all

       relevant facts and circumstances and their impact on the jury.” Ramirez v. State,

       7 N.E.3d 933, 935 (Ind. 2014). “We accordingly review the trial court’s denial

       of a motion for a mistrial for an abuse of discretion.” Weisheit, 26 N.E.3d at 15.

       In conducting our review, we afford “great deference” to the trial court’s

       decision, Hall, 514 N.E.2d at 1267, recognizing that “[a] mistrial is an extreme

       remedy that is warranted only when less severe remedies will not satisfactorily

       correct the error,” Banks v. State, 761 N.E.2d 403, 405 (Ind. 2002). Moreover,




       Court of Appeals of Indiana | Memorandum Decision 05A02-1712-CR-2793 | June 7, 2018   Page 5 of 11
       “[a] timely and accurate admonition is presumed to cure any error in the

       admission of evidence.” James v. State, 613 N.E.2d 15, 22 (Ind. 1993).


[11]   In the instant case, the court issued orders in limine requiring that the parties

       obtain permission before introducing evidence of prior bad acts, which our

       Rules of Evidence allow only in limited circumstances. See Ind. Evid. R. 404.

       The purpose of preliminary orders “is to prevent the display of potentially

       prejudicial material to the jury until the trial court has the opportunity to rule

       on its admissibility.” Herrera v. State, 710 N.E.2d 931, 935 (Ind. Ct. App. 1999).


[12]   At trial, the State engaged in the following exchange with a witness, without

       first seeking permission from the trial court:


               Q:               Okay. Alright. So, after the discussion about the
                                urine screen, did there – was there a discussion
                                about syringes?


               A:               There was.


               Q:               Okay. And how does that –. How did the syringes
                                first come up?


               A:               The syringes first came up –. Major Heflin had
                                asked him if he, how he used his
                                Methamphetamine.


       Tr. at 24-25. After sidebar discussion and recess, the trial court issued the

       following admonishment to the jury:



       Court of Appeals of Indiana | Memorandum Decision 05A02-1712-CR-2793 | June 7, 2018   Page 6 of 11
               When we recessed, we were still in the State’s case in chief. We
               discussed [a] certain question and answer that was put to Officer
               Crouse, he was asked a question regarding his discussion with
               the defendant regarding syringes, and Officer Crouse made a
               reference to a statement purportedly made by Deputy Heflin.
               The jury is admonished to disregard that statement, any reference
               to Deputy Heflin or any matters involving Deputy Heflin are to
               be disregarded by the jury.


       Id. at 30-31.


[13]   According to Griffin, the State committed prosecutorial misconduct by

       engaging in the quoted line of questioning, ultimately violating the orders in

       limine by eliciting testimony suggestive of prior use of methamphetamine.

       Griffin asserts that a mistrial was the only adequate remedy for the alleged

       misconduct. Upon an allegation of prosecutorial misconduct, we first consider

       whether the prosecutor engaged in misconduct and then consider whether a

       mistrial is warranted. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). Here, it

       does not appear that the State deliberately elicited testimony concerning any

       prior bad act. See, e.g., Frentz v. State, 875 N.E.2d 453, 468 (Ind. Ct. App. 2007),

       trans. denied. Nonetheless, as with forms of evidentiary error, when there is an

       allegation of misconduct, “admonishments are presumed to cure error which

       may have occurred.” Dresser v. State, 454 N.E.2d 406, 409 (Ind. 1983).


[14]   Griffin asserts that an admonishment was inadequate because he was placed

       “in a position of peril in that his defense to the Possession of a Syringe was that

       the syringe . . . belonged to his roommate.” Appellant’s Br. at 17. Yet, any

       potential prejudicial effect from the testimony would have been relatively minor
       Court of Appeals of Indiana | Memorandum Decision 05A02-1712-CR-2793 | June 7, 2018   Page 7 of 11
       in light of other evidence—in particular, a recording from the search of Griffin’s

       residence in which Griffin told his mother, “I had a needle.” State’s Exh. 18.

       Ultimately, we are not persuaded that the court’s prompt admonition was

       inadequate and that the extreme remedy of a mistrial was warranted. See James,

       613 N.E.2d at 22. We therefore decline to disturb the trial court’s decision.


                                                  Jury Instruction
[15]   “We review a trial court’s instructions to the jury for an abuse of discretion,”

       which occurs “when the instruction is erroneous and the instructions taken as a

       whole misstate the law or otherwise mislead the jury.” Isom v. State, 31 N.E.3d

       469, 484-85 (Ind. 2015). Griffin briefly argues that the court abused its

       discretion by instructing the jury on joint possession.6 In so arguing, Griffin

       does not challenge the accuracy of the instruction. Rather, Griffin argues that

       the instruction was improper because the charging information alleged “that

       Griffin solely possessed the syringes.” Appellant’s Br. at 18. According to

       Griffin, because the State did not specifically allege that Griffin jointly

       possessed the contraband, the State could not obtain a conviction based upon a

       theory of joint possession. We disagree. The State alleged that Griffin

       “did . . . possess” each item of contraband, App. Vol. 2 at 18-19, and it is well-

       settled that “possession” occurs for the purposes of a criminal conviction




       6
           Griffin has not provided a copy of the final jury instructions.


       Court of Appeals of Indiana | Memorandum Decision 05A02-1712-CR-2793 | June 7, 2018   Page 8 of 11
       whether possession is joint or sole, actual or constructive. E.g., Goodner v. State,

       685 N.E.2d 1058, 1061 (Ind. 1997) (“[E]xclusive possession is not required.”).


                                           Felony Elevation
[16]   Griffin next argues that there is insufficient evidence to elevate his Unlawful

       Possession of a Syringe conviction from a Level 6 felony to a Level 5 felony.

       However, we identify a more basic issue that this Court recently analyzed in

       Knutson v. State, No. 12A04-1709-CR-2246 (Ind. Ct. App. May 31, 2018)—

       namely, whether the elevation is permitted by statute. The issue requires

       statutory interpretation, which we conduct de novo. Johnson v. State, 87 N.E.3d

       471, 472 (Ind. 2017).


[17]   The statute used to support the elevation provides:


               Unless otherwise specified, a person who knowingly violates this
               chapter . . . commits a Level 6 felony. However, the offense is a
               Level 5 felony if the person has a prior conviction under this
               subsection or IC 16-6-8-10(a) before its repeal.


       I.C. § 16-42-19-27(a) (emphasis added). Yet, the criminalization of

       Unlawful Possession of a Syringe—though set forth in the same

       chapter—is specifically addressed in a separate section, which states:



               (a) A person may not possess with intent to . . . violate this
               chapter . . . a hypodermic syringe or needle or an instrument
               adapted for the use of a controlled substance or legend drug by
               injection in a human being.


       Court of Appeals of Indiana | Memorandum Decision 05A02-1712-CR-2793 | June 7, 2018   Page 9 of 11
               (b) A person who violates subsection (a) commits a Level 6
               felony.


       I.C. § 16-42-19-18. This section does not provide for elevation. See id.


[18]   In Knutson, this Court engaged in statutory interpretation and concluded that

       Unlawful Possession of a Syringe cannot be elevated “pursuant to the general

       offense-level statute.” Slip op. at 8. In reaching this conclusion, the Court

       noted the language of exception—“Unless otherwise specified”—set forth in the

       broader “catch all” statute. Id. at 5-7. The Court observed that “in back-to-

       back sections of the same public law, the legislature specified that it is a Level 6

       felony to possess a syringe (but notably did not add offense levels to any of the

       other sections in Chapter 19) and then added the phrase ‘Unless otherwise

       [specified]’ to the general offense-level statute.” Id. at 7 (referring to Pub. L.

       No. 187-2015, §§ 23, 24). The Court reasoned that the General Assembly may

       have wanted to avoid “crowd[ing] our prisons with drug addicts” and thus

       attached a lower sentencing range to the offense, id. at 8, an objective consistent

       with the recent revisions to our criminal code that reduced penalties for certain

       drug-related offenses. Id. at 7-8 (citing Pub. L. No. 158-2013).


[19]   We concur with the analysis in Knutson, and therefore conclude that it was

       improper to elevate the offense of Unlawful Possession of a Syringe to a Level 5

       felony. Otherwise affirming Griffin’s convictions, we reverse the elevation and

       remand for resentencing within the Level 6 felony range.




       Court of Appeals of Indiana | Memorandum Decision 05A02-1712-CR-2793 | June 7, 2018   Page 10 of 11
                                               Conclusion
[20]   The trial court did not abuse its discretion by denying Griffin’s motion for a

       mistrial or by instructing the jury on joint possession. However, it was

       improper to elevate Griffin’s conviction of Unlawful Possession of a Syringe.


[21]   Affirmed in part, reversed in part, and remanded for resentencing.


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




       Court of Appeals of Indiana | Memorandum Decision 05A02-1712-CR-2793 | June 7, 2018   Page 11 of 11
