MEMORANDUM DECISION                                              FILED
                                                             Jun 30 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony C. Lawrence                                      Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jerome D. Seward,                                        June 30, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         33A01-1510-CR-1754
        v.                                               Appeal from the Henry Circuit
                                                         Court
State of Indiana,                                        The Honorable Mary G. Willis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         33C01-1501-F1-1



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A01-1510-CR-1754 | June 30, 2016   Page 1 of 7
[1]   Jerome Seward appeals his convictions for Rape, a Level 1 Felony; 1 Criminal

      Confinement, a Level 3 Felony;2 and Battery, a Level 6 Felony.3 He argues that

      the trial court should have declared a mistrial after the victim, on cross-

      examination, referred to his previous time in jail. Finding no error, we affirm.


                                                     Facts
[2]   In December 2014, Seward and M.W. lived together in Henry County with

      M.W.’s five children, one of whom is Seward’s biological daughter. Their

      relationship began in 2009 and was off and on, due partly to a period Seward

      spent in jail.


[3]   On December 30, 2014, M.W. came home from work around 9:00 p.m. She

      and Seward drank beers, played cards, and talked. During the conversation,

      Seward gave M.W. a “one-time pass to be honest with him” about anything she

      might have done during their separation. Tr. p. 32-33. She told him that she

      had slept with a man Seward knew.


[4]   Seward became enraged, and pushed M.W.’s chair back against the refrigerator.

      He began punching her in the face, and when she fell out of the chair, he jerked

      her up and down by her hair and stomped on her. Seward grabbed a large

      kitchen knife. M.W. tried to run out the back door, but Seward caught her and




      1
          Ind. Code § 35-42-4-1(a)(1), (b)(2).
      2
          I.C. § 35-42-3-3(a), (b)(2)(A).
      3
          I.C. § 35-42-2-1(b)(1), (d)(1).


      Court of Appeals of Indiana | Memorandum Decision 33A01-1510-CR-1754 | June 30, 2016   Page 2 of 7
      threw her back inside. Around this time, one of the children came downstairs

      and witnessed the assault, but Seward told him to go back upstairs.


[5]   Seward picked up the knife and ordered M.W. to go upstairs. When they

      reached the bedroom, Seward anally raped M.W. In total, M.W. estimated

      that the beating and the rape lasted three and a half hours.


[6]   M.W. spent the next day in bed. Her eye was swollen shut and she could not

      move her neck. She did not leave the house for the next three days because she

      did not want anyone to see her face. She returned to work on January 3, and,

      despite the three-day recovery, her coworkers could tell something had

      happened. A manager told her to go to the hospital. On January 5, she went to

      a sexual assault clinic. The Nurse Examiner later testified that the bruising she

      observed corroborated M.W.’s account of the anal rape. She also testified that

      the physical evidence was consistent with a three-and-a-half-hour beating and

      rape.


[7]   On January 6, 2015, the State charged Seward with rape, a Level 1 Felony;

      criminal confinement, a Level 3 Felony; and battery, a Level 6 Felony. Prior to

      trial, Seward filed several motions in limine, one of which sought to exclude

      any evidence of his prior misconduct. The trial court granted this motion,

      which included an instruction for the State to explain this limitation to its

      witnesses.


[8]   A jury trial was held on August 17-18, 2015. During Seward’s cross-

      examination of M.W., he asked her why she did not initially go to the hospital.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1510-CR-1754 | June 30, 2016   Page 3 of 7
       She responded that she was afraid of losing her children because Seward was

       violent and had just been released from jail. Seward stopped her answer, but

       did not object. Seward then asked her when she had been in a relationship with

       the other man. She answered that she was in a relationship with the other man

       while Seward was in jail. This time, Seward moved to strike the testimony.

       The trial court granted the motion, explaining that “[t]he jury is to disregard

       that volunteered statement of the witness which was unresponsive to the

       question.” Tr. p. 105. Seward also moved for a mistrial, which the trial court

       denied.


[9]    Following the trial, the jury found Seward guilty as charged. After a September

       22, 2015, sentencing hearing, the trial court sentenced Seward to thirty-five

       years for the rape, twelve years for the criminal confinement, and two years for

       the battery, with all terms to run concurrently. Seward now appeals.


                                    Discussion and Decision
[10]   Seward has one argument on appeal, namely, that the trial court should have

       declared a mistrial after M.W. referenced his jail time. He argues that the trial

       court’s admonishment to the jury was insufficient because it failed to specify

       which part of the statement the jury was to disregard.


[11]   A mistrial is an extreme remedy that is warranted only when less severe

       remedies will not satisfactorily correct the error. Randolph v. State, 755 N.E.2d

       572, 575 (Ind. 2001). A timely and accurate admonishment is presumed to cure

       any error in the admission of evidence. Id. The decision to grant or deny a

       Court of Appeals of Indiana | Memorandum Decision 33A01-1510-CR-1754 | June 30, 2016   Page 4 of 7
       motion for a mistrial lies within the discretion of the trial court. Id. To prevail,

       the appellant must establish that he was placed in a position of grave peril to

       which he should not have been subjected. Id.


[12]   Seward also argues that the mention of jail amounted to an “evidentiary

       harpoon.” An evidentiary harpoon occurs when the prosecution places

       inadmissible evidence before the jury for the deliberate purpose of prejudicing

       the jury against the defendant. Evans v. State, 643 N.E.2d 877, 879 (Ind. 1994).


[13]   Seward’s argument is unavailing. The two brief mentions of jail time do not

       come anywhere close to necessitating the extreme remedy of a mistrial.


[14]   First, this testimony was provided by a witness, not the prosecution. To be

       sure, Seward has cited a line of cases in which witnesses, rather than the

       prosecution, have produced an evidentiary harpoon. See, e.g., Perez v. State, 728

       N.E.2d 234, 237 n.7 (Ind. Ct. App. 2000) (where police officer witness

       volunteers inadmissible evidence regarding prior convictions, “[w]e do not

       place distinguishing significance upon the fact that the deliberate act was that of

       the police officer witness rather than of the prosecution itself”). But all of the

       cases cited involve police officers who were experienced with the trial process.

       E.g, id. at 237 (“Detective Toney, who has undoubtedly testified for the

       prosecution in many cases, understood the significance of his statements to the

       jury”).


[15]   Second, the evidence regarding Seward’s previous jail time was not

       volunteered; it was a direct response to a question asked by the defense. The

       Court of Appeals of Indiana | Memorandum Decision 33A01-1510-CR-1754 | June 30, 2016   Page 5 of 7
       testimony to which Seward objected was produced when the defense asked

       M.W. when she was in a relationship with the other man, and she responded

       that it was during Seward’s incarceration. We cannot say that this was

       testimony volunteered out of the blue; M.W.’s answer was a perfectly

       reasonable way to respond. Insofar as the defense elicited this testimony, and

       insofar as this testimony violated the motion in limine, it was invited error,

       which is not reversible. Dumas v. State, 803 N.E.2d 1113, 1121 (Ind. 2004).


[16]   We also find that any error was cured by the trial court’s admonishment.

       Seward’s argument that the admonishment was so vague “that [it] was the

       equivalent of no admonish [sic] at all” is unpersuasive. Appellant’s Br. p. 15.

       The admonishment was given directly after the statement in question. The jury

       surely knew that it was to disregard the statement it had just heard. Seward

       seems to suggest that the trial court was obligated to repeat the statement to the

       jury in order to direct their attention to the portion it was to disregard. If

       anything, this approach would have been worse for Seward because the jury

       would have heard the statement twice instead of once.


[17]   Insofar as M.W.’s statement was responsive to Seward’s cross-examination, it

       was invited error. And insofar as M.W.’s statement was unresponsive to

       Seward’s cross-examination, the trial court’s admonishment to disregard the

       statement “which was unresponsive to the question,” tr. p. 105, cured any error.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1510-CR-1754 | June 30, 2016   Page 6 of 7
[18]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1510-CR-1754 | June 30, 2016   Page 7 of 7
