MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Jun 26 2020, 11:49 am
court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
Megan J. Schueler                                        Vincent S. Taylor
Ferguson & Ferguson                                      Bloomington, Indiana
Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kyung Sil Choi, Bo Kang Park,                            June 26, 2020
and Han Chong,                                           Court of Appeals Case No.
Appellants-Defendants,                                   19A-PL-1429
                                                         Appeal from the Monroe Circuit
        v.                                               Court
                                                         The Honorable Elizabeth Cure,
Jung Hee Kim,                                            Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         53C04-1611-PL-2260



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020                       Page 1 of 17
                                STATEMENT OF THE CASE
[1]   Appellants-Defendants, Kyung Sil Choi (Choi), Bo Kang Park (Park), and Han

      Chong (Chong) (collectively, Appellants), appeal the trial court’s denial of their

      motion to correct error thereby affirming the jury’s verdict in favor of Appellee-

      Plaintiff, Jung Hee Kim (Kim).


[2]   We reverse.


                                                   ISSUES
[3]   Appellants raise three issues on appeal, which we consolidate and restate as the

      following two issues:


          (1) Whether the trial court abused its discretion in tendering certain

              information to the jury after jury deliberations commenced; and

          (2) Whether sufficient evidence exists to support the theft verdict against

              Appellants.


                      FACTS AND PROCEDURAL HISTORY
[4]   In February 2012, Kim, a South Korean national and Choi’s sister-in-law,

      visited the United States on a tourist visa. She attempted to return to the

      United States in January 2014 with her children to visit Choi. However, due to

      an immigration violation during a previous visit, Kim and her children were

      denied entry into the country and had to leave immediately. Choi was

      travelling to South Korea at the same time and therefore Kim and her children




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020   Page 2 of 17
      left on the same flight as Choi. During the flight, Choi and Kim discussed

      different possibilities for Kim to potentially return to the United States.


[5]   Park was the sole shareholder of Oya, which owned two restaurants: the Sake

      Bar and Japonee. The restaurants operated in leased space in a building

      managed by Chong. In 2012, a fire partially destroyed Japonee. While

      Japonee was being rebuilt, Park opened the Sake Bar. Upon Japonee’s

      reopening, Park was no longer interested in operating the Sake Bar and started

      searching for a purchaser. Choi contacted Kim and they talked about Kim’s

      interest in investing in the Sake Bar. An investment in the Sake Bar would

      permit Kim to apply for an E-2 visa, an investor visa which allows an individual

      to enter and work in the United States based on an investment the individual

      will be controlling while residing in the country. In March 2014, Choi directed

      Kim to send $15,000 to Oya as payment for the Sake Bar, with another

      $135,000 in April 2014. Park and Chong used the money from the sale of the

      sake bar to build a hibachi grill in the same building that housed Japonee. Park

      provided Chong with a budget of $150,000 to complete the grill portion of the

      restaurant.


[6]   Meanwhile, Kim, at Choi’s advice, contacted an immigration attorney to

      commence Kim’s E-2 visa application. Choi paid Kim’s attorney expenses.

      During the trial proceedings, Kim denied reviewing her E-2 visa application

      and denied signing most of the application documents, including the Asset

      Purchase Agreement for the purchase of the Sake Bar from Oya, the entry of

      appearance, and the DS-156, which acknowledges that the E-2 visa packet was

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020   Page 3 of 17
      true to the best of her knowledge, as well as several other items. However,

      Kim’s immigration attorney testified that he met with Kim for about an hour to

      an hour and a half to review the E-2 visa application. He explained important

      parts of the application to Kim, including the Asset Purchase Agreement, which

      supported Kim’s investment or purchase of a business in the United States. The

      first visa application was denied. At Choi’s request, Chong assisted Kim with

      the second visa application by sending her bank statements from Oya, reflecting

      that Kim had invested money in the United States, that this money was spent

      and that she would not be able to get it back. After an immigration interview in

      January 2015, Kim received an E-2 visa for entry into the United States.


[7]   In July 2015, Kim and her children entered the United States on the E-2 visa.

      She lived with Choi, rent-free, and worked at Sobon, Choi’s restaurant. She did

      not inquire about the Sake Bar at that time and did not talk to Park, the

      principal of Oya, about taking over the Sake Bar although Park informed her

      that she needed to change the utilities at the Sake Bar into her name and to

      open a bank account. While Kim resided with Choi, Choi provided her with

      $1,240 for working at Sobon and with an additional $9,000 to $10,000. Because

      Kim did not enjoy working at Sobon, she discussed with Chong, whom she

      thought owned Japonee, whether she could work at Japonee.


[8]   Chong assisted Kim in working at Japonee, obtaining a phone, using his car,

      and assisting her children. In October 2015, Chong helped Kim secure an

      apartment. However, by the end of October or the beginning of November

      2015, Kim became afraid of Chong and alleged that he sexually harassed her.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020   Page 4 of 17
[9]    On November 7, 2016, Kim filed a Complaint sounding in contract,

       conversion, and fraud. On March 8, 2017, Appellants filed an amended motion

       to dismiss based on Kim’s failure to sue the proper party in interest, as well as

       her failure to properly plead fraud. On June 22, 2017, the trial court ruled that

       Count II, fraud and conversion, should be dismissed based upon a failure to

       properly plead. On June 28, 2017, Oya intervened, alleging breach of contract

       against Kim because she had failed to meet the contractual provisions of the

       Asset Purchase Agreement. On September 19, 2018, Kim moved to amend her

       Complaint to include a theft and conversion allegation. Subsequently, from

       April 8 to April 16, 2019, a jury trial was conducted. At the close of the

       evidence, the jury returned a verdict on the sole issue of theft, finding

       Appellants responsible for theft and assessing them with an amount of

       $350,000. The trial court awarded Kim attorney fees in the amount of

       $38,648.54. On May 17, 2019, Appellants filed a motion to correct error. In

       the absence of the trial court ruling on the motion within forty-five days, the

       motion was deemed denied pursuant to Indiana Trial Rule 53.3.


[10]   Appellants now appeal. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[11]   While legal proceedings are seldom perfect, this case has been fraught with

       difficulties from the beginning, with the overall tone being set by the trial court

       mentioning that the proceedings could transform into a possible “shit show.”

       (Transcript Vol. I, p. 71). The theatrical stage was set by Kim’s counsel who,

       during the final pre-trial conference on March 3, 2019, instead of addressing
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020   Page 5 of 17
       Appellants’ motion in limine on its merits, resorted to an ad hominin attack by

       advising the trial court that Appellants’ counsel “is an example of everything

       about attorneys that people hate.” (Tr. Vol. I, p. 14). Kim’s counsel elaborated

       that Appellants’ counsel “is going to object to every question I ask and to put a

       jury through that,” is “disgusting.” (Tr. Vol. I, p. 8). He added that counsel

       “won’t listen to anything, our depositions are like wars[.]” (Tr. Vol. I, p. 15).

       Although Appellants’ counsel was silent during this litany and only responded

       when invited to by the trial court, Kim’s counsel’s complaints nevertheless

       resulted in the trial court’s warning to Appellants’ counsel to not “object to

       everything he says. I’ll shut you down if you try that.” (Tr, Vol. I, p. 8).


[12]   Kim’s counsel continued his diatribe on the morning of trial. The weekend

       prior to trial, the parties had agreed to stipulate to a list of exhibits, but on the

       morning of trial, Kim’s counsel withdrew all stipulations. Kim’s counsel

       explained to the trial court that “maybe we could both try to be cooperative.

       But that’s getting back to that piss-ant stuff, and I don’t want to and I agree with

       you that I don’t want to go back to that again. But I don’t think I have

       objections to hardly any of those things to tell you the truth.” (Tr. Vol. II, pp.

       36-37). At that point, Appellants’ counsel became emotional and her co-

       counsel reminded the court that:


               At that pretrial [], he had filed that motion where he had alleged
               that [Appellants’ counsel] acted in bad faith and you gave him
               plenty of time to explain how and he couldn’t really come up
               with a good reason, but he did talk for about an hour about how
               [Appellants’ counsel] had supposedly not been acting in good
               faith.
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020   Page 6 of 17
       (Tr. Vol. II, p. 38). Noticing the emotional breakdown, the trial judge

       reprimanded Kim’s counsel and required him to apologize without trivializing

       his egregious attitude. “Having irritated her to the point that she’s going to lose

       it, I need you to talk to her nicely and not giggle about it.” (Tr. Vol. II, p. 39).

       Later during the trial, Kim’s counsel omitted to inform the trial court of an out-

       of-courtroom conversation with one of the alternate jurors, which ultimately

       resulted in the alternate juror being dismissed from the proceedings.


[13]   During these proceedings, the trial judge did not conduct herself in the patient,

       dignified, and courteous manner expected of judicial officers either. Her

       comments ranged from chiding counsel as “the children are not playing nice

       again” and making derogatory remarks by congratulating counsel when she

       “behaved very well,” to advising the jurors that the court and the attorneys were

       “going to have a courtroom brawl first” before they would be allowed to view a

       certain exhibit. (Tr. Vol. I, pp. 132, 38; Vol. II, p. 158). The trial judge denied

       Appellants’ counsel’s request to develop her objections on the record, referring

       to her judicial power to “cut her off” in front of the jury, but allowed Kim’s

       counsel to testify for his client and allowed him to use leading questions on

       direct interrogation over Appellants’ objection. (Tr. Vol. III, p. 13).


[14]   While some of these problems, standing alone or cumulatively, could create

       reversible prejudice against the Appellants, we nonetheless prefer to reverse this

       cause on a point of law.


                                     I. Information Requested by the Jury


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020   Page 7 of 17
[15]   One of the contentions raised by Appellants is the trial court’s emphasis on

       certain jury instructions when, after deliberations commenced, the jury

       requested advice on the theft charge. 1 The record reflects that the jurors

       requested clarification on jury Instruction No. 14, which comprised the

       elements for theft, and whether the jury had to consider


                each one individually or could someone be part of a theft even if
                they, if they only helped someone, rather than actually got some
                of the money themselves. They asked [the trial judge] that
                question. I proposed to just tell them to read [instruction] 14 and
                20 together, because 20 was the further definition of theft.
                [Appellants’ counsel] objected to that and said that was, would
                be error to do that, and over her objections, what I said to them
                was simply, read 14 and read 20. That’s all I said, then I left. So
                that’s what we have. I don’t think there’s anything else we have
                to put on the record is there?


       (Tr. Vol. IV, p. 165).


[16]   In Cameron v. State, 383 N.E.2d 1039, 1041 (Ind. 1979), our supreme court held

       that


                The law is clear that final instructions are not to be orally
                qualified, modified, or in any manner orally explained to the jury
                by the trial judge. Instructions given to the jury should be
                considered and construed as an entirety. Thus, by calling back
                the jury during deliberations, and emphasizing a particular




       1
        Although Appellants did not raise this contention in their motion to correct error, it was included in their
       appellate brief. As this ground for appeal is not a mandatory issue to be raised by a motion to correct error, it
       was appropriately preserved for appeal and this court’s review. See Indiana Trial Rule 59(D).

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020                       Page 8 of 17
               instruction or a particular aspect of the case, the trial court
               commits reversible error.


       “A better solution is the employment of the accepted procedure which has been

       used effectively to respond to any type of problem occasioned by a jury during

       its deliberations.” Ind. State Highway Com. v. Vanderbur, 432 N.E.2d 418, 426

       (Ind. Ct. App. 1982) (quoting Lewis v. State, 424 N.E. 2d 107, 111 (Ind. 1981)).

       The proper procedure is for the court to call the jury back in open court in the

       presence of all of the parties and their counsel, if they desire to be there, and to

       reread all instructions given to them prior to their deliberations, without

       emphasis on any of them and without further comment. Id.


[17]   However, in previous years, trial courts have been “given greater leeway to

       ‘facilitate and assist jurors in the deliberative process, in order to avoid

       mistrials.’” Ronco v. State, 862 N.E. 2d 257, 259 (Ind. 2007) (quoting Tincher v.

       Davidson, 762 N.E.2d 1221, 1224 (Ind. 2002)). Recently, we have started to

       recognize that there are potentially two protections involved in communicating

       with the jury after deliberations begin: a statutory protection and a common

       law protection. Bouye v. State, 699 N.E.2d 620 (Ind. 1998). The statutory

       protection is found in Indiana Code section 34-1-21-6, which provides:


               After the jury ha[s] retired for deliberation, if there is a
               disagreement between them as to any part of the testimony, or if
               they desire to be informed as to any point of law arising in the
               case, they may request the officer to conduct them into court,
               where the information required shall be given in the presence of,
               or after notice to, the parties or their attorneys.


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020   Page 9 of 17
       Where the jury does not explicitly manifest any disagreement about the

       testimony or does not ask for clarification of a legal issue, the statute does not

       apply. Id. at 627; see also Riggs, v. State, 689 N.E. 2d 460 (Ind. Ct. App. 1997).


[18]   Unlike the statutory protection, the common law protection applies whenever

       jurors request any type of additional guidance from the court. Bouye, 699

       N.E.2d at 628. We have repeatedly noted that the proper procedure is for the

       judge to notify the parties so they may be present in court and be informed of

       the court’s proposed response to the jury before the judge ever communicates

       with the jury. Id. When this procedure is not followed, it is an ex parte

       communication and such communications between the judge and the jury

       without informing the parties are prohibited. Id. In Moffat v. State, 542 N.E. 2d

       971, 975 (Ind. 1989), the jury sent a note requesting several definitions and

       asked to see the State’s exhibits again. The trial court reconvened the jury in

       open court and answered the first questions by rereading the final jury

       instructions. Id. at 974. The trial court denied the jury’s request to see the

       exhibits without comment. Id. Our supreme court held that, “no reversible

       error occurred [] even if an ex parte communication in fact occurred between the

       jury and the trial court. The trial court simply reread the instructions without

       further comment.” Id. at 975.


[19]   The record reflects that, upon receiving the jury’s request for clarification on a

       point of law in the jury instructions, the trial court telephoned counsel for the

       respective parties to discuss the request off the record. The trial court suggested

       to advise the jurors to read instructions 14 and 20 together. Appellants’ counsel

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020   Page 10 of 17
       objected, but the trial court proceeded with its advice to the jury over

       Appellants’ objection and without giving respective counsel an opportunity to

       be present.


[20]   As the jury sought clarification on a point of law, the statutory protection

       against ex parte communications comes into play. See Ind. Code § 34-1-21-6.

       Pursuant to the statute, counsel was notified and informed of the trial court’s

       suggested communication to the jury. However, “the process of jury

       deliberations is a sensitive point in the trial. Deliberation is the process by

       which the jury resolves the dispute before it on the basis of evidence and

       instructions given in open court. When this process is interrupted by an ex parte

       communication, the presumption is that the jury is influenced.” Smith v.

       Convenience Store Distrib. Co., 583 N.E.2d 735, 738 (Ind. 1992). Thus, the danger

       of an ex parte communication is the extraneous influence the judge may have

       over the jury by his communication. Id. Instructions given to the jury should

       be considered and construed as an entirety. Cameron, 383 N.E.2d at 1041. As

       such, by instructing the jury to read jury instructions 14 and 20, the trial court

       emphasized these particular instructions and aspects of the case. In this regard,

       the judge’s communication presented an extraneous influence on the jury’s

       deliberation and amounted to reversible error.


                                                     II. Theft


[21]   After deliberations, the jury returned a verdict on the theft charge, finding

       Appellants responsible for the theft of Kim’s $150,000 intended for the purchase


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020   Page 11 of 17
       of the Sake Bar. Appellants now contend that there is insufficient evidence to

       support this verdict.


[22]   Theft requires proof that a person knowingly or intentionally exerted

       unauthorized control over the property of another person … with the intent to

       deprive the owner of the property of any part of the property’s value or use.

       I.C. § 35-43-4-1. In accordance with Indiana Code section 35-41-2-2(a), “A

       person engages in conduct intentionally if, when he engages in the conduct, it is

       his conscious objective to do so.” Subsection (b) of the statute provides that “A

       person engages in the conduct knowingly if, when he engages in the conduct,

       he is aware of a high probability he is doing so.” And a person’s control over

       the property of another is unauthorized if it is exerted in a manner or to an

       extent other than that to which the other person has consented. I.C. § 35-43-4-

       1(b)(2). It should be noted that a criminal conviction for theft is not a condition

       precedent to a civil action for theft. Cf. Breinig v. Harkness, 872 N.E.2d 155, 159

       (Ind. Ct. App. 2007) (discussing establishment of civil action for conversion),

       trans. denied. Rather, a claimant must merely prove commission of the crime

       by a preponderance of the evidence. Id.


[23]   The record reflects that in 2014, Kim was investigating a legal way to re-enter

       the United States after previously having been denied entry. Because the E-2

       visa provided her with such an opportunity on the condition that she made a

       business investment in the United States, Kim became interested in purchasing

       the Sake Bar after talking with Choi. As such, Kim testified that she entered

       into an agreement to purchase the Sake Bar and sent a total of $150,000 to Oya,

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020   Page 12 of 17
       the company owning the Sake Bar and of which Park was the sole shareholder.

       Although she disclaimed her signature on the Asset Purchase Agreement—

       which she affirmed under oath was true to her knowledge for immigration

       purposes—Kim testified that she “wanted to buy Sake Bar.” (Tr. Vol. III, p.

       17).


[24]   After arriving in the United States in July 2015, Kim lived with Choi and

       worked at Sobon, Choi’s restaurant. She testified that she expected Appellants

       to assist her in operating the Sake Bar, although she admitted that she never

       asked them explicitly. Kim acknowledged that Park advised her to change the

       utilities of Sake Bar into her name upon arriving in the United States. Park

       testified that he informed her to open up a bank account for the Sake Bar so she

       could start operating the business. Kim never changed the utilities into her

       name but did obtain a bank account for the Sake Bar. There is no evidence in

       the record that Kim ever demanded the return of the purchase price. Rather, on

       November 15, 2016, pursuant to the terms of the Asset Purchase Agreement,

       Park provided Kim with a notice of breach of contract because she had “neither

       taken affirmative steps to take over the Sake Bar nor has she fulfilled her

       obligations to start taking over the running or liabilities of Sake Bar, including

       but not limited to starting up utilities in her name, taking on the lease payments

       and providing workers and management for the restaurant.” (Exh. Vol. III, p.

       78).


[25]   Kim now contends that although she sent the purchase amount of $150,000 to

       Oya, the funds were used by Chong to build the hibachi grill. The purchase

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020   Page 13 of 17
       amount was received into the account of Oya, of which Park was the sole

       shareholder. The record reflects that Park, as owner of Japonee and the Sake

       Bar, directed Chong, as manager of the building housing the restaurants, to use

       the $150,000 purchase price to build the hibachi grill. As Kim had voluntarily

       sent the money to Oya with the intent to purchase the Sake Bar, and Park had

       received the money with intent to sell Kim the Sake Bar, Park legally received

       the funds and could provide them to Chong with the authorization to use them

       for the hibachi grill.


[26]   Accordingly, in light of the facts before us, Appellants did not gain

       unauthorized control over Kim’s funds with the intent to deprive Kim of this

       property. Kim paid the purchase price with intent to buy the Sake Bar. Park,

       as sole shareholder of Oya, received the funds and intended to sell her the Sake

       Bar. Appellants advised her on numerous occasions to make the necessary

       arrangements to take control of the Sake Bar. Kim never requested the return

       of the funds; instead, Park notified her that she was in breach of contract by

       failing to take control of the Sake Bar. As Kim failed to establish the elements

       of theft by a preponderance of the evidence, we reverse the verdict. 2




       2
        Because Kim is no longer the prevailing party, we also reverse the attorney fees awarded to her by the trial
       court.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020                    Page 14 of 17
                                             CONCLUSION
[27]   Based on the foregoing, we hold that the trial court committed reversible error

       by emphasizing certain jury instructions after deliberations commenced and

       Kim failed to establish theft by a preponderance of the evidence.


[28]   Reversed.


[29]   Mathias, J. concurs


[30]   Tavitas, J. concurs in part and dissents in part with separate opinion




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020   Page 15 of 17
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Kyung Sil Choi, Bo Kang Park,                            Court of Appeals Case No.
       and Han Chong,                                           19A-PL-1429

       Appellants-Defendants,

               v.

       Jung Hee Kim,
       Appellee-Plaintiff.



       Tavitas, Judge, concurs in part and dissents in part.


[31]   I respectfully concur in part and dissent in part with the majority’s opinion.


[32]   I agree that the trial court’s communication with the jury during deliberations

       amounted to reversible error. The majority opinion, however, merely reverses

       the judgment. The proper resolution of this issue is to reverse and remand for a

       new trial. See Dowell v. State, 973 N.E.2d 58, 62 (Ind. Ct. App. 2012) (reversing

       and remanding for a new trial); Jenkins v. State, 424 N.E.2d 1002, 1004 (Ind.

       1981) (reversing and remanding for a new trial). Because Appellants are

       entitled to a new trial, it is unnecessary to address the parties’ remaining

       arguments. I would not address the sufficiency of the evidence given the need

       for a new trial at which different evidence could be presented.


[33]   Even if it was necessary to address the sufficiency of the evidence, I disagree

       with the result reached by the majority on this issue. In a civil case, an
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020        Page 16 of 17
       argument that the evidence is insufficient is generally presented by way of a

       motion for judgment on the evidence. See Ind. Trial Rule 50. Trial Rule 50(A)

       also allows the argument to be presented in a motion to correct error. See Henri

       v. Curto, 908 N.E.2d 196, 206 (Ind. 2009) (noting that Trial Rule 50(A)(4)

       authorizes a party to move for a judgment on the evidence in a motion to

       correct error). Here, after the jury’s verdict, Appellants filed both a motion for

       judgment on the evidence and a motion to correct error. The trial court denied

       the motions and found: “Defendants’ counsel is asking this Court to invade the

       province of the jury and direct a verdict in favor of her clients. The jury was

       completely within its rights to disbelieve the Defendants and believe the

       Plaintiff. There is no basis for saying otherwise, unless one reweighs the

       evidence and the credibility of the parties. The Court cannot do what

       Defendants’ counsel asks.” Appellants’ App. Vol. II p. 19. I agree with the

       trial court and conclude that the majority opinion reweighs the evidence and

       judges the credibility of the witnesses.


[34]   For these reasons, I concur in part and dissent in part.


[35]




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1429 | June 26, 2020   Page 17 of 17
