MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Nov 30 2018, 11:26 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
John R. Watkins                                         Curtis T. Hill, Jr.
Arata Law Firm                                          Attorney General of Indiana
Fort Wayne, Indiana
                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Teresa D. Baker,                                        November 30, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1025
        v.                                              Appeal from the Huntington
                                                        Superior Court
State of Indiana,                                       The Honorable Jennifer E.
Appellee-Plaintiff                                      Newton, Judge
                                                        Trial Court Cause No.
                                                        35D01-1704-CM-217



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1025 | November 30, 2018                   Page 1 of 8
[1]   Teresa Baker appeals her conviction for Class A Misdemeanor Operating a

      Vehicle While Intoxicated,1 arguing that the trial court erred when it provided

      the jury with an instruction signed by the arresting officer, and erred when it

      denied her motion for a mistrial. Finding no error, we affirm.


                                                   Facts
[2]   On April 19, 2017, Huntington Police Officer Richard Winter responded to a

      “wrong way driver” dispatch. The report indicated that an individual was

      driving westbound down the eastbound lane of US 24 from Roanoke to

      Huntington.


[3]   After driving to the scene, Officer Winter saw a car driving the wrong way

      down US 24, made a U-Turn, followed the errant car a short distance, and

      stopped the vehicle. The officer approached the vehicle and asked the driver,

      Baker, to roll down her window. Once the window was rolled down, he could

      smell alcohol coming from inside the car. Trial Tr. Vol. II p. 117. Officer

      Winter informed Baker that she was driving on the wrong side of the road, but

      Baker claimed she did not know that. Id. The officer noticed that Baker’s speech

      was slurred, her eyes were glassy, and her movements overall were slow in

      response to his questions. Suspecting that she was intoxicated, he asked Baker

      to step out of the vehicle.




      1
          Ind. Code § 9-30-5-2(b).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1025 | November 30, 2018   Page 2 of 8
[4]   Officer Winter administered three standard field sobriety tests: the horizontal

      nystagmus test, the walk-and-turn test, and the one-legged stand test. After

      Baker failed all three tests, Officer Winter concluded that Baker was

      intoxicated. Id. at 130. The officer arrested Baker and transported her to jail.


[5]   On April 19, 2017, the State charged Baker with two counts: (1) Class A

      misdemeanor operating a vehicle with an ACE of .15 or more; and (2) Class A

      misdemeanor operating a vehicle while intoxicated. On November 7, 2017, the

      State dismissed the first count. The jury trial took place on January 25 and 26,

      2018. During the trial, the trial court provided the jury, over Baker’s objection,

      with a preliminary instruction about the criminal charge that stated, in pertinent

      part, as follows:


              Operating While Intoxicated-Endangerment
              On or about April 19, 2017, in Huntington County, Indiana, said
              Defendant [Baker] operated a vehicle while intoxicated and in a manner
              that endangered a person. All of which is contrary to the law of the State
              of Indiana. Signed: Richard S. Winter, Huntington Police Department


      Id. at 65.

[6]   The jury found Baker guilty as charged. After Baker was sentenced to 365 days

      with 359 days suspended to probation, the prosecutor, Baker’s counsel, and the

      judge spoke with jurors in the deliberation room. It was revealed that Juror

      Number 12 had watched videos online about standard field sobriety tests during

      the trial and that Juror Number 2 had used Google Maps to determine the

      location of the US 24 highway. Baker immediately moved for a mistrial,

      claiming that the actions of these jurors constituted improper jury taint that

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1025 | November 30, 2018   Page 3 of 8
      denied her a fair trial. The trial court denied the motion. Thereafter, on

      February 8, 2018, Baker filed a motion to correct error, which the trial court

      later denied. Baker now appeals.


                              Discussion and Decision
[7]   Baker makes two arguments on appeal: (1) the trial court erred when it

      provided the jury with an instruction signed by the arresting officer; and (2) the

      trial court erred when it denied her motion for a mistrial. We will address each

      argument in turn.


                                I. Improper Instruction
[8]   First, Baker argues that the trial court erred when it provided the jury with an

      instruction signed by the arresting officer. We will reverse based on a jury

      instruction only if the instruction given is erroneous and, taken as a whole,

      misstates the law or otherwise misleads the jury. Mayes v. State, 744 N.E.2d 390,

      394 (Ind. 2001).


[9]   As a general matter, any error in instructing the jury is subject to the harmless

      error analysis. Randolph v. State, 802 N.E.2d 1008, 1011 (Ind. Ct. App. 2004).

      Errors in the giving or refusing of instructions are harmless where a conviction

      is clearly sustained by the evidence and the instruction would not likely have

      affected the jury verdict. Dixson v. State, 22 N.E.3d 836, 840 (Ind. Ct. App.

      2014). An instruction error will result in reversal only when the reviewing court

      cannot say with complete confidence that a reasonable jury would have
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1025 | November 30, 2018   Page 4 of 8
       rendered a guilty verdict had the instruction not been given. Dill v. State, 741

       N.E.2d 1230, 1233 (Ind. 2001).


[10]   Baker takes issue with the fact that the instruction informing the jury about the

       charge against her is signed by Officer Winter. To Baker, the instruction

       appears to definitively affirm that Baker is guilty of the alleged charge. Trial Tr.

       Vol. II p. 65. Officer Winter is also a witness in the case and testified about

       what happened on the night Baker was arrested. Baker claims that Officer

       Winter is acting as both witness and juror in this case because he not only

       testified about what happened that night, but he has also “decided” an ultimate

       issue at trial—namely, whether Baker was operating a vehicle while

       intoxicated—by signing the jury instruction.


[11]   Assuming for argument’s sake that the inclusion of this signature was

       erroneous, we find that any error was harmless. The record contains a wealth of

       evidence supporting Baker’s guilt, including Officer Winter’s testimony, proof

       that Baker failed three separate sobriety tests during the traffic stop, and

       corroborating testimony from other officers who assisted Officer Winter with

       the arrest and administration of the sobriety tests. Trial Tr. Vol. II p. 75-82. We

       find that a reasonable jury would have rendered a guilty verdict

       notwithstanding the inclusion of the jury instruction signed by Officer Winter.

       In other words, we find that the instruction would not likely have affected the

       verdict. Therefore, the trial court’s introduction of this jury instruction was

       harmless error.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1025 | November 30, 2018   Page 5 of 8
[12]   However, we advise trial courts against including references to signatures of

       arresting officers in jury instructions. Not only could the inclusion have a

       prejudicial effect on jurors in future cases where the evidence is ambiguous, but

       the inclusion is unnecessary and potentially distracting. Nevertheless, we hold

       that the trial court’s manner of instructing the jury as it pertains to the statement

       signed by Officer Winter was at most harmless error, and we decline to reverse.


                                   II. Juror Misconduct
[13]   Second, Baker argues that the trial court erred when it denied her motion for a

       mistrial. In Ramirez v. State, 7 N.E.3d 933 (Ind. 2014), our Supreme Court

       established the test for defendants seeking a mistrial for suspected jury taint.

       Defendants are entitled to the presumption of juror prejudice only after showing

       that: (1) there was extra-judicial contact or communications between jurors and

       unauthorized persons; and (2) the contact or communications pertained to a

       matter before the jury. Id. at 939. If the defendant satisfies both prongs, she

       receives the presumption of prejudice. Id. The burden then shifts to the State,

       which must rebut the presumption by showing that any contact or

       communication was harmless. Id. If the State does not rebut the presumption,

       the trial court must grant a new trial. Id.


[14]   Baker claims that when Juror Number 12 and Juror Number 2 sought out

       information on the Internet, they committed juror misconduct that denied her a

       fair trial. Juror Number 12 watched online videos about standard field sobriety



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1025 | November 30, 2018   Page 6 of 8
       tests, and Juror Number 2 accessed Google Maps to reference where US 24 was

       located.


[15]   In its order on the motion to correct error, the trial court found that the first

       prong of the Ramirez test was met because the jurors consulted Internet sources,

       which constituted extra-judicial communications;2 and the second prong of the

       Ramirez test was met because the communications pertained to matters before

       the jury. Appellant’s App. Vol. II p. 145-46. Therefore, Baker was entitled to

       the rebuttable presumption of prejudice, and the burden then shifted to the

       State.3


[16]   Baker argues that the trial court erred by finding that the State failed to rebut the

       presumption of prejudice. We disagree. First, we note that the State offered the

       testimony of Juror Number 12, who said that her decision to look at the online

       videos was not a “primary decision [in] making [a] finding [of] guilt[y] or not

       guilt[y] for the Defendant.” Hearing Tr. Vol. II p. 213; see also Ramirez, 7




       2
         The trial court could not identify a case that directly established that jurors who conduct Internet searches
       are engaged in extra-judicial communications. Appellant’s App. Vol. II p. 145. However, the trial court
       referenced Bisard v. State, 26 N.E.3d 1060 (Ind. Ct. App. 2015), in which we held that a named juror
       “committed juror misconduct by performing an internet search on the reliability of blood tests,” id. at 1069,
       as heavily persuasive.
       3
         Baker also argues in the alternative that irrebuttable prejudice occurred and that she is entitled to a mistrial
       because the juror misconduct “fundamentally compromise[d] the appearance of juror neutrality.” Appellant’s
       Br. p. 7. Since the trial court found that both parts of the Ramirez test were met, and that Baker was entitled to
       the rebuttable presumption of prejudice, we decline to address Baker’s argument in the alternative. Baker’s
       argument in the alternative is only available if both prongs of the Ramirez test are not satisfied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1025 | November 30, 2018                     Page 7 of 8
       N.E.3d at 941 (holding that a trial court may rely on a juror’s own statements of

       impartiality in misconduct investigations).


[17]   Additionally, at trial, the jury saw multiple maps detailing the location of the

       incident and heard multiple witnesses testify about the location, the field

       sobriety tests, and Baker’s failure on all three tests. Therefore, any extra-judicial

       research conducted by the jurors was cumulative in nature, and consequently,

       harmless. Id. at 213. The trial court admonished the jurors for engaging in juror

       misconduct but ultimately found that “the contact or communications are

       simple misconduct and were harmless.” Appellant’s App. Vol. II p. 146. We

       find no error in this conclusion, and we decline to reverse on this basis.


[18]   The judgment of the trial court is affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1025 | November 30, 2018   Page 8 of 8
