MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Aug 27 2018, 10:10 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Zachary J. Stock                                         Curtis T. Hill, Jr.
Zachary J. Stock, Attorney at Law, P.C.                  Attorney General of Indiana
Indianapolis, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Kochowiec,                                          August 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A01-1712-CR-2910
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Rhett Stuard,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         32D02-1703-CM-440



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018            Page 1 of 16
                                Case Summary and Issue
[1]   Following a jury trial, John Kochowiec was convicted of battery causing bodily

      injury, a Class A misdemeanor. At trial, the victim testified Kochowiec was “a

      felon” in violation of an order in limine. Kochowiec now appeals, raising the

      sole issue of whether the trial court abused its discretion by denying his motion

      for a mistrial. Concluding the trial court did not abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   Kochowiec and Robert Couch have a long-running antagonistic relationship—

      often requiring police involvement. Couch is married to Angela Couch, the

      mother of Kochowiec’s two children. On December 28, 2016, Kochowiec met

      Couch, who was joined by Angela, at a Speedway gas station for a custody

      exchange. After the children entered Kochowiec’s vehicle, Kochowiec “flipped

      off” Couch as he pulled away. Transcript, Volume II at 124. Couch exited his

      vehicle and returned the gesture. Couch followed Kochowiec’s vehicle on foot

      and began videotaping with his cellphone. After Kochowiec stopped at a red

      light, Couch crossed the street and approached Kochowiec’s vehicle “to try to

      [videotape] his license plate because he had just got a new car.” Id. at 125.


[3]   Kochowiec eventually exited his vehicle and confronted Couch on the street.

      After a brief period of yelling, Kochowiec grabbed Couch’s phone and threw it

      to the ground. Then, as Couch attempted to retrieve his phone, Kochowiec

      punched him in the side of the face. Couch fell to the ground before


      Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 2 of 16
      immediately standing back up, yelling to onlookers, “you saw what he did, you

      saw what he did[!]” Id. at 104. The two continued yelling back and forth and

      Kochowiec returned to his vehicle, briefly drove away, and then returned to the

      parking lot of a gas station across the street.


[4]   The State charged Kochowiec with battery resulting in bodily injury, a Class A

      misdemeanor. After Kochowiec demanded a jury trial, the case was transferred

      from Plainfield Town Court to Hendricks Superior Court. Kochowiec filed a

      pleading advising the State of his intent to claim self-defense as well as a motion

      in limine seeking to exclude any reference to his criminal history. Without

      objection, the trial court granted Kochowiec’s motion in limine.


[5]   At trial, Couch testified regarding the December 28, 2016, incident, and the

      State introduced photographs of Couch’s injuries. During defense counsel’s

      cross-examination of Couch regarding prior legal actions between the parties,

      the following exchange occurred:


              [Counsel]:               Okay. How many times have the police been
                                       involved between you two?


              [Couch]:                 Lots.


              [Counsel]:               Okay, did you threaten him and tell him that
                                       you carry a gun?


              [Couch]:                 No.


              [Counsel]:               Did you ever tell him you’ll use a gun?

      Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 3 of 16
        [Couch]:                 No.


        [Counsel]:               Do you have a license to carry a gun?


        [Couch]:                 Yes, ma’am, I do.


        [Counsel]:               And do you have a gun?


        [Couch]:                 On me now?


        [Counsel]:               In general, not right now.


        [Couch]:                 Yes, I have a gun.


        [Counsel]:               Okay. Do you carry it?


        [Couch]:                 Yes, I do, where it’s legal.


        [Counsel]:               Okay. Did you carry it that night?


        [Couch]:                 I never carry my gun when I’m with the kids,
                                 dropping them off or picking them up.


        [Counsel]:               Okay. So you represent to this Court and to
                                 the jury that you’ve told him, I’ve got a gun
                                 and I’m not afraid to use it on you?


        [Couch]:                 Uh, yes, that’s exactly what I’m saying. I’ve
                                 never said that.


        [Counsel]:               Okay. Uh, and in fact when you said about
                                 the Morgan County Sheriff that was because
Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 4 of 16
                                 you and Angela were trying to – to raise
                                 other criminal accusations against Mr.
                                 Kochowiec; isn’t that accurate?


        [Couch]:                 That I was trying to raise criminal actions
                                 against him?


        [Counsel]:               You and Angela.


        [Couch]:                 No, ma’am.


        [Counsel]:               Was Angela trying to?


        [Couch]:                 I can’t answer for Angela.


        [Counsel]:               Okay. Isn’t it true that she had pursued
                                 something in Morgan County and filed
                                 something against him saying there’s a
                                 protective order and in fact there wasn’t a
                                 protective order in place?


        [Couch]:                 Yes, there was a protective order and yes, she
                                 did give that information to the Sheriff’s
                                 Department and they arrested him, she
                                 didn’t.


        [Counsel]:               Was it in fact that case dismissed in Morgan
                                 County because there was no protective
                                 order?


        [Couch]:                 Uh, that was dismissed because Morgan
                                 County makes you redo it but Marion


Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 5 of 16
                                 County doesn’t. And it was in two different
                                 counties.


        [Counsel]:               I’m asking a different question. It was
                                 dismissed and –


        [Couch]:                 Yes, it was dismissed.


        [Counsel]:               -- there was no protective order; is that
                                 correct?


        [Couch]:                 There was a protection order.


        [Counsel]:               Okay.


        [Couch]:                 But he was not re-served --


        [Counsel]:               Okay.


        [Couch]:                 -- through Morgan County.


        [Counsel]:               So when you were going up the stairs at the
                                 boys’ basketball game, you said Morgan
                                 County wants you back, you were referencing
                                 some other -


        [Couch]:                 No, I said he – they would like him back.


        [Counsel]:               What were you referring to?




Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 6 of 16
        [Couch]:                 He was – he was laughing at me. And he’s
                                 done threatened me over the internet that he
                                 was gonna shoot me if I came to Haughville -


        [Counsel]:               Okay.


        [Couch]:                 -- where he lives. But he’s a felon; he’s not
                                 suppose to have a gun so how is he going to
                                 shoot me?


Tr., Vol. II at 141-43. Defense counsel objected to Couch’s reference to

Kochowiec’s criminal history. The following sidebar discussion ensued:


        [Defense Counsel]: It looks like to me it’s a mistrial.


        [The Court]:             Are you saying it’s a violation of the Motion
                                 in Limine?


        [Defense Counsel]: (Inaudible).


        [State]:                 (Inaudible).


        [Defense Counsel]: I didn’t ask him that. (Inaudible).


        [The Court]:             Well you did ask him about a gun. . . . You
                                 did ask him about a gun; you did ask him
                                 about – you did ask him about protective
                                 orders. You asked him about threatening
                                 him in the past. I mean you’re – you’re –


        [Defense Counsel]: I have to get into his history. I didn’t ask him
                           (inaudible).

Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 7 of 16
        [The Court]:             You asked him if he carried a gun.


        [Defense Counsel]: Him, not Mr. Kochowiec.


        [The Court]:             If you asked him if he carried a gun, you
                                 asked him –


        [Defense Counsel]: Yes, Mr. Couch.


        [The Court]:             You?


        [Defense Counsel]: Yes. (Inaudible) Mr. Kochowiec carried a
                           gun (inaudible) supposed to be carrying a
                           gun.


        [The Court]:             He didn’t say that.


        [Defense Counsel]: He – he just did, yeah.


        [The Court]:             No, no, he didn’t he carried – he can’t carry a
                                 gun because he’s a felon. He just said he’s a
                                 felon; he didn’t say anything about carrying a
                                 gun. I understand but you’re the one that
                                 opened the door to it, Counsel. You’re the
                                 one that sit [sic] here and talking about the
                                 issues between and criminal history. I mean
                                 you’re the one that’s cracking the door for all
                                 this. We didn’t have to go into any of this
                                 stuff, her basketball games or anything like
                                 that. You’re the one that’s opened the door
                                 to all this.


        [Defense Counsel]: (Inaudible).

Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 8 of 16
        [The Court]:             Well you can’t talk about the bad blood and
                                 not expect to get into what’s gone on before.
                                 Counsel, and I don’t see how you can walk
                                 both sides of that street.


        [Defense Counsel]: But he still can’t speak about prior criminal
                           convictions from that aspect because that’s a
                           violation.


        [The Court]:             I understand it’s about it’s a violation of the
                                 Motion in Limine that was granted but if you
                                 guys are going to walk that line and get right
                                 up to it, it – I mean at this point you’re the
                                 one that’s pushed him to that point of talking
                                 about it. I don’t see how this is something
                                 that we’re going to have a mistrial over. I
                                 mean you’re asking about his prior things and
                                 the minute he steps over the line and says
                                 something under questioning from you all,
                                 uh, that – we’re going to have a mistrial.
                                 (Inaudible) I mean I just don’t see how that’s
                                 going to happen.


        [Defense Counsel]: I’m just trying to (inaudible).


        [The Court]:             We can move to strike and I’ll admonish the
                                 – certainly admonish the jury but I’m not
                                 going to grant a mistrial at this point.



Id. at 143-46. Immediately thereafter, the trial court offered the following

admonishment to the jury:




Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 9 of 16
              [L]adies and gentlemen, that, last bit of testimony, that was
              offered, there was some testimony about, possibly Mr.
              Kochowiec’s prior criminal history. I’m going to admonish the
              jury – that’s going to be stricken from the record. The jury is to
              disregard that. That has absolutely no bearing on this case
              whatsoever. [T]he jury is to treat that as if that wasn’t mentioned
              and never happened and is not to be considered by you in any
              way, shape or form in this case. It has no bearing on the case
              whatsoever. Is everyone clear on that; does everyone
              understand? Thank you.


      Id. at 146.


[6]   At the conclusion of the one-day trial, the jury found Kochowiec guilty as

      charged. The trial court entered judgment of conviction and imposed a

      sentence of 365 days of incarceration with 362 days suspended to probation.

      Kochowiec now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[7]   The grant or denial of a motion for mistrial rests within the sound discretion of

      the trial court and is reviewed for an abuse of discretion. Brittain v. State, 68

      N.E.3d 611, 619 (Ind. Ct. App. 2017), trans. denied. We afford the trial court

      great deference on appeal because the trial court is in the best position to

      evaluate the relevant circumstances of an event and its impact on the jury. Id.

      at 620. To prevail on appeal from the denial of a motion for a mistrial, the

      appellant must demonstrate that the statement or conduct in question was so


      Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 10 of 16
      prejudicial and inflammatory that she was placed in a position of grave peril to

      which she should not have been subjected. Id. The declaration of a mistrial is

      an extreme action that is warranted only when no other action can be expected

      to remedy the situation. Kemper v. State, 35 N.E.3d 306, 309 (Ind. Ct. App.

      2015), trans. denied.


                                         II. Prior Bad Acts
[8]   Kochowiec contends the trial court erred in denying his motion for mistrial

      after Couch violated the order in limine by referring to his criminal history, i.e.,

      that he was a “felon,” and that the violation was so prejudicial that it denied

      him a fair trial. Specifically, Kochowiec argues Couch’s reference to

      Kochowiec as a “felon” had a significant effect on the jury given Kochowiec’s

      self-defense argument because “[i]f the jury had never heard that Kochowiec

      was a felon, they certainly could have seen Kochowiec as the person who was

      provoked into violence.” Corrected Appellant’s Brief at 8.


[9]   Motions in limine are useful tools to prevent the admission of evidence of prior

      bad acts pursuant to Indiana Rule of Evidence 404(b), which prohibits the

      admission of “other crimes, wrongs, or acts . . . to prove the character of a

      person in order to show action in conformity therewith.” Owens v. State, 937

      N.E.2d 880, 895 (Ind. Ct. App. 2010), trans. denied. The rule is intended to

      prevent the “forbidden inference,” whereby the jury uses a defendant’s past

      propensities to determine whether he or she is guilty of the current crime.

      Wilhelmus v. State, 824 N.E.2d 405, 414 (Ind. Ct. App. 2005). Generally,


      Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 11 of 16
       therefore, we view evidence of a defendant’s prior criminal history as highly

       prejudicial and it should not be admitted. Hyppolite v. State, 774 N.E.2d 584,

       593 (Ind. Ct. App. 2002), trans. denied. Although we agree, of course, that

       Couch’s reference to Kochowiec as a “felon” was improper under Indiana Rule

       of Evidence 404(b)(1) and a violation of the order in limine, we cannot

       conclude that the violation was so prejudicial as to place Kochowiec in “grave

       peril.” Brittain, 68 N.E.3d at 619.


[10]   First and foremost, “The gravity of the peril is measured by the conduct’s

       probable persuasive effect on the jury.” Pittman v. State, 885 N.E.2d 1246, 1255

       (Ind. 2008). Here, the trial court made no observations regarding the effect

       Couch’s reference to Kochowiec as a “felon” had on the jury and thus we

       cannot defer to the trial court’s determination of this issue. Lehman v. State, 777

       N.E.2d 69, 73 (Ind. Ct. App. 2002). Given the totality of the evidence,

       however, we think it unlikely the violation had any significant effect on the

       jury. See Pittman, 885 N.E.2d at 1255 (holding it was unlikely that a State

       witness’s reference to the defendant having served time in prison “had any

       significant effect on the jury” given the evidence presented).


[11]   In addition to Couch’s testimony, the State produced the testimony of Andrew

       Arrowood, a local minister who had stopped for gas while returning from

       vacation with his family. Arrowood testified that as Kochowiec left the gas

       station, Couch pursued his vehicle on foot while recording the events on his cell

       phone. Kochowiec became agitated and yelled at Couch to stop. Arrowood

       left the gas station to approach the scene and Kochowiec exited his car so that

       Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 12 of 16
       both he and Couch were standing in traffic. Kochowiec and Couch were

       yelling at each other and Kochowiec appeared “angry.” Tr., Vol. II at 103.

       Arrowood attempted to intervene and asked them to return to their vehicles.

       Kochowiec then “put his hands on [Couch],” and eventually landed “one

       devastating punch.” Id. Arrowood did not see Couch hit Kochowiec at all.

       The State also presented Couch’s cellphone recording depicting the events

       leading up to the parties’ confrontation. Id. at 125, State’s Exhibit 1.

       Considering the totality of the evidence, therefore, we cannot conclude the

       violation was so prejudicial as to place Kochowiec in “grave peril.” Brittain, 68

       N.E.3d at 619; see James v. State, 613 N.E.2d 15, 22 (Ind. 1993) (“On appeal,

       where the jury’s verdict is supported by independent evidence of guilt such that

       we are satisfied that there was no substantial likelihood that the evidence in

       question played a part in the defendant’s conviction, any error in admission of

       prior criminal history may be harmless.”)


[12]   Second, we adhere to “strong presumptions that juries follow courts’

       instructions and that an admonition cures any error,” Lucio v. State, 907 N.E.2d

       1008, 1011 (Ind. 2009), so reversible error will seldom be found if the trial court

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

       Warren v. State, 757 N.E.2d 995, 999 (Ind. 2001). Here, the trial court offered a

       prompt admonishment, instructing the jury that it was to disregard Couch’s

       statement and that it had “absolutely no bearing on this case whatsoever” and

       that it was “to treat that as if that wasn’t mentioned and never happened and is

       not to be considered . . . in any way, shape or form in this case.” Tr., Vol. II at


       Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 13 of 16
       146. On appeal, Kochowiec argues the problem with the trial court’s

       admonishment “is that it confirms for the jury that Kochowiec had a ‘prior

       criminal history,’” which Kochowiec describes as “the proverbial skunk in the

       jury box.” Corrected Appellant’s Br. at 9 (citing United States v. Lowis, 174 F.3d

       881, 885 (7th Cir. 1999) (“If you throw a skunk into the jury box, you can’t

       instruct the jury not to smell it.”)). To the contrary, however, the trial court

       stated, “there was some testimony about possibly Mr. Kochowiec’s prior

       criminal history.” Tr., Vol. II at 146 (emphasis added). We do not view the

       trial court’s admonishment as confirming the fact that Kochowiec had a prior

       criminal history, and even if could be perceived as such, Kochowiec failed to

       object to the court’s admonishment on that basis or to cite precedent that such

       an admonishment would be inadequate. Accordingly, we conclude the trial

       court’s admonishment was sufficient to cure any error.


[13]   Third, as the trial court observed, Couch’s reference to Kochowiec’s criminal

       history came during a line of questioning by defense counsel regarding the

       hostility between the two men, prior threats, Couch’s possession of a gun, and

       prior legal involvement between the two. As such, we view Couch’s statement

       as an inadvertent disclosure rather than a spontaneous, willful violation of the

       order in limine. See Greenlee v. State, 655 N.E.2d 488, 490 (Ind. 1995) (noting

       whether the testimony was intentionally injected or inadvertent plays a role is

       determining whether a violation of an order in limine merits a new trial). Even

       more telling, however, is the fact that Couch’s reference came in response to an

       opened-ended question, namely, “What were you referring to?” Tr., Vol. II at


       Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 14 of 16
       143. As Chief Judge Brook aptly noted in his separate concurring opinion in

       Lehman,


               A cardinal rule of effective trial advocacy is never to ask a
               question to which one does not know the answer. Indiana
               Evidence Rule 611 permits the use of leading questions on cross-
               examination, and a well-prepared advocate will skillfully employ
               this technique to control adverse witnesses and thereby shape
               their testimony to her client’s advantage.


       777 N.E.2d at 74 (Brook, C.J., concurring). By asking Couch, “What were you

       referring to?,” defense counsel lost control of the witness and may well have

       invited any error. Tr., Vol. II at 143. In any event, effective advocates will be

       wise to heed Chief Judge Brook’s advice by “meticulously plotting a course for

       a witness’s testimony on cross-examination and by using carefully chosen

       leading questions” thereby avoiding “the possibility of a witness violating an

       order in limine” and the possibility of mistrial. Lehman, 777 N.E.2d at 74.


[14]   Fourth and finally, Couch’s reference was fleeting, vague, and the State made

       no further mention of it during the trial. See Lucio, 907 N.E.2d at 1011 (holding

       that denial of mistrial was not abuse of discretion where statement was fleeting,

       inadvertent, and only a minor part of the evidence against the defendant and

       the trial court admonished jury to disregard the statement). Accordingly, we

       conclude the trial court did not abuse its discretion by denying Kochowiec’s

       motion for a mistrial.



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 15 of 16
[15]   For the reasons discussed above and in light of the trial court’s wide discretion,

       the totality of the evidence, and the trial court’s admonishment to the jury, we

       conclude the trial court did not abuse its discretion by denying Kochowiec’s

       motion for a mistrial.


[16]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1712-CR-2910 | August 27, 2018   Page 16 of 16
