      MEMORANDUM DECISION
                                                                        Apr 23 2015, 9:26 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any 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
      Stacy R. Uliana                                           Gregory F. Zoeller
      Bargersville, Indiana                                     Attorney General of Indiana
                                                                Justin R. Roebel
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Travis Ley,                                               April 23, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                84A05-1405-CR-206
              v.                                                Appeal from the Vigo Superior
                                                                Court.
                                                                The Honorable Michael Rader,
      State of Indiana,                                         Judge.
      Appellee-Plaintiff.                                       Cause No. 84D05-1205-FB-1723




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Travis Ley appeals from his convictions after a jury trial contending that the

      trial court improperly denied his motion for discharge under Indiana Criminal



      Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015     Page 1 of 21
      Rule 4(C) and that the trial court erred by denying his motion to correct error

      requesting a new trial based on juror misconduct. We affirm.


                               Facts and Procedural History
[2]   Somewhere between 9:00 and 9:30 p.m. on May 22, 2012, Ley, who had been

      visiting with his mother in Terre Haute, decided to eat dinner at Charlie’s Bar.

      Ley, who had consumed two or three beers after 4:30 p.m. prior to going out for

      dinner, drank a pitcher of beer with his dinner. After finishing his dinner, Ley

      proceeded to drive home to rest because he was scheduled to work the next

      morning.


[3]   After leaving the bar, Ley drove north on 17th Street, which intersects with

      Hulman Street. The traffic on 17th Street must stop for stop signs while the

      traffic on Hulman Street has no traffic signals and has the right of way. After

      stopping at the stop sign at the Hulman Street intersection, Ley proceeded into

      the intersection. Within seconds, he felt and heard two impacts into the driver’s

      side of the vehicle he was driving. Motorcycles driven on Hulman Street by

      Jacob Quinn and Leyland Owens had collided with Ley’s vehicle. According

      to Quinn, there was not enough time to brake, drop their bikes, or slide in

      reaction to Ley’s vehicle proceeding into the intersection.


[4]   Owens died from the injuries he sustained in the collision. Quinn suffered a

      broken left tibia and left fibula requiring eighteen screws in his lower leg, severe

      damage to the skin on his elbow and right knee, and required reconstructive

      plastic surgery on one of his hands.

      Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 2 of 21
[5]   After the collision, Ley consented to a chemical test and was taken to Terre

      Haute Regional Hospital for blood and urine testing. The blood test conducted

      at the hospital revealed that Ley’s blood alcohol content was .169 grams per

      deciliters. Testing by the Indiana State Department of Toxicology revealed a

      blood alcohol level of .13. Testing further revealed that Ley’s blood contained

      pseudoephedrine, amphetamines, methamphetamine, and hydrocodone.


[6]   After Owens was taken off life support, the initial charges filed against Ley were

      amended. He was charged with one count (“Court I”) of Class B felony

      causing the death of another person when operating a motor vehicle with a
                                                                                                  1
      schedule I or II controlled substance or its metabolite in the person’s blood,

      one count (“Count II”) of Class B felony causing death when operating a motor
                                               2
      vehicle while intoxicated, one count (“Count III”) of Class D felony causing
                                                         3
      serious bodily injury while intoxicated, and one count (“Count IV”) of Class D

      felony causing serious bodily injury when operating a motor vehicle with a
                                                                                                  4
      schedule I or II controlled substance or its metabolite in the person’s blood.




      1
          Ind. Code § 9-30-5-5(b)(2) (2010).
      2
          Ind. Code §9-30-5-5(a)(3).
      3
          Ind. Code § 9-30-5-4(a)(3) (2004).
      4
          Ind. Code § 9-30-5-4(a)(2).


      Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 3 of 21
[7]    Ley filed a motion for discharge, which the trial court ultimately denied. Ley’s

       motion to reconsider that decision was also denied. The matter then proceeded

       to trial.


[8]    At the conclusion of Ley’s jury trial, the jury found him guilty as charged. At

       sentencing, the trial court vacated Ley’s convictions on Count III and Count

       IV. The trial court sentenced Ley to an aggregate sentence of seventeen years

       with twelve years executed in the Indiana Department of Correction and five

       years suspended to probation. Ley now appeals. Additional facts will be set

       forth below as needed.


                                    Discussion and Decision
                                      I. Motion for Discharge
[9]    Ley argues that the trial court erred by denying his motion for discharge under

       Indiana Criminal Rule 4(C). “The broad goal of Indiana’s Criminal Rule 4 is to

       provide functionality to a criminal defendant’s fundamental and

       constitutionally protected right to a speedy trial.” Austin v. State, 997 N.E.2d

       1027, 1037 (Ind. 2013). “It places an affirmative duty on the State to bring the

       defendant to trial, but at the same time is not intended to be a mechanism for

       providing defendants a technical means to escape prosecution.” Id.


[10]   Our Supreme Court, recognizing conflicts in the analysis of the appropriate

       standard of review in challenges involving Criminal Rule 4, has clarified the

       appropriate appellate analysis in Austin. Although that appeal involved a

       challenge under Criminal Rule 4(B), the Supreme Court expressed the view that

       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 4 of 21
       the analysis should be applied in the context of challenges brought under

       Criminal Rule 4 (A) and 4 (C) as well. Id. at 1038 n.8. Therefore, adhering to

       that analysis, we apply a de novo standard of review to questions of law applied

       to undisputed facts, and a clearly erroneous standard of review to the trial

       court’s factual findings of congestion or emergency based on disputed facts. Id.

       at 1039-40.


[11]   Criminal Rule 4(C) provides as follows:


               No person shall be held on recognizance or otherwise to answer
               a criminal charge for a period in aggregate embracing more than
               one year from the date the criminal charge against such
               defendant is filed, or from the date of his arrest on such charge,
               whichever is later; except where a continuance was had on his
               motion, or the delay was caused by his act, or where there was
               not sufficient time to try him during such period because of
               congestion of the court calendar; provided, however, that in the
               last-mentioned circumstance, the prosecuting attorney shall file a
               timely motion for continuance as under subdivision (A) of this
               rule. Provided further, that a trial court may take note of
               congestion or an emergency without the necessity of a motion,
               and upon so finding may order a continuance. Any continuance
               granted due to a congested calendar or emergency shall be
               reduced to an order, which order shall also set the case for trial
               within a reasonable time. Any defendant so held shall, on
               motion, be discharged.


[12]   “The time period for Criminal Rule 4(C) begins on the later of the date the

       information is filed or the date of the defendant’s arrest.” Brown v. State, 725

       N.E.2d 823, 825 (Ind. 2000). Charges were filed against Ley and his initial



       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 5 of 21
       hearing was held on May 23, 2012. At that time a trial date was set for October

       4, 2012.


[13]   Ley challenges three periods of delay the trial court attributed to him in the trial

       court’s Criminal Rule 4(C) calculation resulting in the denial of his motion for

       discharge. The trial court found that the delays beginning on 1) February 6,
                                                                                                                       5
       2013—lasting for forty-two days, 2) March 19, 2013—lasting for fifty-six days,

       and 3) September 10, 2013—lasting for forty-two days, were attributable to Ley.


[14]   On September 10, 2012, the parties appeared at a hearing and requested a new

       trial setting by joint motion. The new trial date was set for December 11, 2012.
                                                                                  6
       This time period counts toward the 4(C) calculation.




       5
        The trial court’s order reflects fifty-six days. However, fourteen days were attributable to other
       continuances and will be discussed in the calculation. Therefore, we are treating the delay as another forty-
       two days.
       6
         In State ex rel. O’Donnell v. Cass Superior Court, 468 N.E.2d 209 (Ind. 1984) the Supreme Court discussed the
       effect of a defendant’s agreement to a State-sought continuance for purposes of Criminal Rule 4(C). In
       O’Donnell, the trial date had not yet been set when the defendant agreed to the continuance. The trial date
       was later set outside the time limits of the rule. The defendant objected and the trial court denied his motion
       to dismiss. The Supreme Court reversed the trial court and found that when the defendant had agreed to a
       continuance in that circumstance, i.e. before a trial date had been set, the delay “shall not be attributed to the
       defendant for purposes of Ind. R.Cr.P. 4(C).” 468 N.E2d at 211.
       Later, in Cook v. State, 810 N.E.2d 1064 (Ind. 2004), the Supreme Court resolved conflicting authority and
       held that delays caused by a defendant prior to any trial date being set extend the deadline for bringing a
       defendant to trial under Criminal Rule 4(C). The Court considered the language of O’Donnell, and held that
       O’Donnell should be read for the proposition that “a defendant’s agreement to a continuance sought by the
       State is not chargeable to the defendant and does not extend the time period of Crim. R. 4(C).” 810 N.E.2d
       at 1067 n.3.
       However, in Moreno v. State, 336 N.E.2d 675, 684 (Ind. Ct. App. 1975), a panel of this Court followed
       Supreme Court cases and held that “[r]egardless of [defendant’s] counsel’s motives for agreeing to the
       continuance, this is a delay chargeable to [the defendant].” In Henderson v. State, 647 N.E.2d 7, 14 (Ind. Ct.
       App. 1995) trans. denied, we held that a joint motion for continuance, filed by the State and agreed to by the
       defendant, was chargeable to the defendant. Further, our Supreme Court, in Sweeney v. State, 704 N.E.2d 86,
       101 (Ind. 1998), determined that a delay was not attributable to the State where the defendant and the State

       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015                  Page 6 of 21
[15]   On November 19, 2012, however, at a hearing where both parties were present,

       the trial court reset the trial date due to congestion of the trial court’s calendar,

       as there was another speedy trial set ahead of Ley’s trial and additional

       discovery was needed by the defense. The new trial date was set for February

       5, 2013. “[C]ourt congestion or emergency does not count toward the Criminal

       Rule 4(C) period.” Curtis v. State, 948 N.E.2d 1143, 1151 (Ind. 2011).

       Therefore, the time period between December 11, 2012, the previously

       scheduled trial date, and January 28, 2013, the next event starting the Criminal

       Rule 4(C) time period, or forty-nine days, is not chargeable against the Criminal

       Rule 4(C) period.


[16]   At a hearing on January 28, 2013, the parties discussed Ley’s motion for

       sanctions based on the inability to take Quinn’s taped statement. Although

       Quinn failed to appear for two scheduled dates for his statement—the first

       because of pending criminal charges and the second because an inaccurate

       address was used by the State on the subpoena—the State made Quinn

       available for a taped statement, but Ley declined to follow through. Prior to the

       hearing, Ley and the State discussed the need to continue the trial date because

       additional information was discovered during other taped statements. Ley

       agreed to file a motion to continue the trial date without objection by the State.




       filed a joint motion seeking a continuance of the trial indefinitely and attributing the resulting delay to the
       defendant.
       Based on the unique facts of this particular case, we are not charging the continuances sought by joint motion
       to Ley.

       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015                  Page 7 of 21
       However, Ley filed a motion for sanctions against the State and at the hearing,

       the continuance was characterized as a joint motion. The trial was reset for

       March 19, 2013.


[17]   Both Ley and the State indicated that additional discovery was needed. To the

       extent that this request for a continuance can be characterized as a joint motion,

       the time is chargeable against the Criminal Rule 4 calculation. The joint

       motion of the September 10, 2012 hearing was treated similarly.


[18]   On March 11, 2013, at a hearing before the trial court, the State addressed two

       issues that needed to be resolved prior to trial. Ley’s expert accident

       reconstructionist had not yet completed his report and the State could not

       depose him until after the report was completed. Second, the State was missing

       hospital records pertaining to Ley, and a necessary witness could only be

       identified through those medical records. Without objection, the trial court

       granted the State’s motion to continue the March 19, 2013 trial date and set the

       matter for trial on April 30, 2013.


[19]   On March 15, 2013, the State moved to continue the trial date based on a

       scheduling conflict. The trial court reset the trial for May 7, 2013. On April 15,

       2013, Ley filed a motion to continue the trial date due to a scheduling conflict

       and the trial was reset for May 14, 2013. Ley filed another motion to continue

       the trial date on May 6, 2013. The trial court set the trial date for June 4, 2013.

       “If a defendant seeks or acquiesces in a delay that results in a trial date beyond

       the one-year limit, the time limitations set by Criminal Rule 4 are extended by


       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 8 of 21
       the length of such delays.” See Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind.

       1999). The continuances requested by Ley extended the Criminal Rule 4(C)

       time period by 47 days leading up to the next event triggering the Criminal Rule

       4(C) calculation.


[20]   On May 31, 2013, the trial court granted the State’s motion to continue the trial

       setting in order to conduct testing for controlled substances on Ley’s blood

       samples. Ley objected to that continuance. The trial court granted the State’s

       motion and ultimately set the matter for trial on September 10, 2013. Criminal

       Rule 4(D) allows the trial court to continue the trial date if there is evidence for

       the State which can be obtained within 90 days. Although the trial court’s

       order does not explicitly connect the additional period of time under Criminal

       Rule 4(D) with this specific motion for a continuance, the record supports that

       conclusion. Pursuant to Criminal Rule 4, however, the trial court released Ley

       from the Vigo County Jail pending his trial.


[21]   On July 2, 2013, the State filed its amended information against Ley based on

       the blood testing results. While it is the State’s responsibility to bring a

       defendant to trial within the time period of Criminal Rule 4(C), on August 23,

       2013, it was Ley who filed a request for an initial hearing and omnibus date on

       the new charges or a denial of the new charges. The trial court held a hearing

       on the matter on August 27, 2013. The trial court reset the trial date based

       upon Ley’s request for an initial hearing and omnibus date on the new charges

       citing Indiana Code section 35-36-8-1(a) (1985), which provides in pertinent

       part that the omnibus date for a person charged with a felony must be “no

       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 9 of 21
       earlier than forty-five (45) days and no later than seventy-five (75) days after the

       completion of the initial hearing. . . .” Although the State had filed the new

       charges against Ley on July 2, 2013, no initial hearing had been held on the

       charges. Ley did not object to the trial court’s setting of the omnibus date on

       October 10, 2013, 45 days later, or to the new trial date of October 22, 2013 at

       that time.


[22]   However, on August 29, 2013, Ley filed a written objection to the new trial

       date. The trial court ordered the State to respond to Ley’s objection, and

       indicated that it was treating the objection as a motion for discharge under

       Criminal Rule 4. On September 10, 2013, Ley filed a notice with the trial court

       clarifying that Ley was not yet moving for discharge, but would “file a formal

       Motion for Discharge . . . at the appropriate time.” Appellant’s App. p. 193.

       The State filed its response on September 13, 2013.


[23]   Ley filed his motion for discharge on October 16, 2013, along with a supporting

       memorandum. After the State filed its response, the trial court denied Ley’s

       motion. The trial court also denied Ley’s motion to reconsider. Ley’s jury trial

       began on October 22, 2013.


[24]   Ley was charged on May 23, 2012. The Criminal Rule 4(C) time period was

       extended by ninety days pursuant to Criminal Rule 4(D), to allow the State

       time to complete additional blood testing. Even though the trial court charged

       Ley with eighty-four days’ worth of delay from joint motions to continue the

       trial setting, we have excluded them here. Continuances Ley sought further


       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 10 of 21
       extended the time period by forty-seven days. Additionally, Ley’s request for

       an omnibus date not earlier than forty-five days after the initial hearing, which

       was held on August 27, 2013, extended the Criminal Rule 4(C) period by those

       forty-five days. Furthermore, the trial court continued the trial due to

       congestion of the trial court’s calendar ultimately resulting in forty-nine days

       that did not count against the Criminal Rule 4(C) time period. Based on our

       calculation of the time that counts against the Criminal Rule 4(C) time period,

       the trial court correctly concluded that Ley was not entitled to be discharged.


                                            II. Juror Misconduct
[25]   Ley contends that the trial court erred by denying his motion to correct error.

       On December 27, 2013, Ley filed a motion to correct error requesting the trial

       court to set aside Ley’s convictions and order a new trial because of alleged

       juror misconduct. In denying the motion, the trial court found that the juror

       had engaged in extra-judicial communication in violation of the trial court’s

       rules and admonishments, which amounted to gross misconduct because the

       communication pertained to the matter before the jury, but that the misconduct
                                        7
       likely did not harm Ley.




       7
         We note that the trial court’s order was issued the same day that our Supreme Court issued its opinion in
       Ramirez v. State, 7 N.E.3d 933 (Ind. 2014), which clarified the application of the presumption of prejudice in
       issues involving alleged juror taint from extra-judicial communication. We set forth that language from
       Ramirez and acknowledge that the trial court issued its order without the benefit of that decision.

       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015              Page 11 of 21
[26]   We review a trial court’s denial of a motion to correct error in a criminal case

       for an abuse of discretion. Gregor v. State, 646 N.E.2d 52, 53 (Ind. Ct. App.

       1994). An abuse of discretion occurs “when the trial court’s action is against

       the logic and effect of the facts and circumstances before it and the inferences

       which may be drawn therefrom” or its “decision . . . is without reason or is

       based upon impermissible reasons or considerations.” Id.


[27]   In Ramirez, the Supreme Court clarified the showings necessary to be entitled to

       a presumption of prejudice when extra judicial contact or communications by a

       juror is alleged to have occurred as follows:


               An impartial jury is the cornerstone of a fair trial, guaranteed by
               the Sixth Amendment and Article 1, Section 13 of our Indiana
               Constitution. See Turner v. State of Louisiana, 379 U.S. 466, 472,
               85 S. Ct. 546, 13 L. Ed. 2d 424 (1965); Caruthers v. State, 926
               N.E.2d 1016, 1020 (Ind. 2010). To preserve impartiality and
               prevent taint, we prohibit unauthorized contacts and
               communications with jurors. Yet no trial is perfect, and we have
               long held that “[w]hile courts have a duty to ensure an impartial
               jury . . . jurors need not be absolutely insulated from all
               extraneous influences. . . .” Id. at 1021 (quoting Lindsey v. State,
               260 Ind. 351, 356, 295 N.E.2d 819, 823 (1973)). We therefore
               entrust trial courts with the difficult responsibility of discerning
               when extraneous influences become irreparable taint warranting
               a new trial. See id.


               ....


               Defendants seeking a mistrial for suspected jury taint are entitled
               to the presumption of prejudice only after making two showings,
               by a preponderance of the evidence: (1) extra-judicial contact or

       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 12 of 21
        communications between jurors and unauthorized persons
        occurred, and (2) the contact or communications pertained to the
        matter before the jury. Currin, 497 N.E.2d at 1046. The burden
        then shifts to the State to rebut this presumption of prejudice by
        showing that any contact or communications were harmless. See
        Myers v. State, 240 Ind. 641, 646, 168 N.E.2d 220, 223 (1960);
        Oldham v. State, 249 Ind. 301, 305, 231 N.E.2d 791, 793 (1967).
        If the State does not rebut the presumption, the trial court must
        grant a new trial. On the other hand, if a defendant fails to make
        the initial two-part showing, the presumption does not apply.
        Instead, the trial court must apply the probable harm standard for
        juror misconduct, granting a new trial only if the misconduct is
        “gross and probably harmed” the defendant. Henri v. Curto, 908
        N.E.2d 196, 202 (Ind. 2009) (internal quotation marks omitted).
        But in egregious cases where juror conduct fundamentally
        compromises the appearance of juror neutrality, trial courts
        should skip Currin’s two-part inquiry, find irrebuttable prejudice,
        and immediately declare a mistrial. May, 716 N.E.2d at 422-23;
        Kelley, 555 N.E.2d at 142; Woods, 233 Ind. at 323-24, 119 N.E.2d
        at 560–61. At all times, trial courts have discretion to decide
        whether a defendant has satisfied the initial two-part showing
        necessary to obtain the presumption of prejudice or a finding of
        irrebuttable prejudice. See May, 716 N.E.2d at 421-22.
        Trial courts should apply the presumption of prejudice analysis of
        Currin in the context of the procedures we established in Lindsey,
        260 Ind. at 358-59, 295 N.E.2d at 823-24. Joyner v. State, 736
        N.E.2d 232, 239 (Ind. 2000) (recognizing that the Lindsey
        procedures apply to cases of extra-judicial jury communications).
        Trial courts must immediately investigate suspected jury taint by
        thoroughly interviewing jurors collectively and individually, if
        necessary.
                 If any of the jurors have been exposed, he must be
                 individually interrogated by the court outside the
                 presence of the other jurors, to determine the degree
                 of exposure and the likely effect thereof. After each
                 juror is so interrogated, he should be individually

Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 13 of 21
                        admonished. After all exposed jurors have been
                        interrogated and admonished, the jury should be
                        assembled and collectively admonished, as in the
                        case of a finding of “no exposure.” If the imperiled
                        party deems such action insufficient to remove the
                        peril, he should move for a mistrial.
                        Lindsey, 260 Ind. at 359, 295 N.E.2d at 824.
               Once defendants move for mistrial, the trial courts should assess
               whether or not there is enough evidence to meet the two-part showing
               under Currin. If so, then the presumption of prejudice applies and the
               burden shifts to the State to prove harmless error. If not, then trial
               courts should determine whether a juror’s misconduct was gross or
               probably harmed the defendant.
       7 N.E.3d at 936-40.


[28]   Pursuant to Indiana Jury Rule 20(b), the trial court instructed the jury in

       pertinent part as follows:

               Jurors are not investigators and are not permitted to seek out
               information about the case on their own. Specifically jurors are
               prohibited from seeking information. By using online search
               engines.[sic] If the trial attracts public notice in the newspaper,
               radio or television, the jury should avoid accounts reported by
               the media concerning the case. You are expected to keep an
               open mind, you must not form or express any conclusion about
               the case and you must not talk about the case amongst yourselves
               until you receive further notice from the court. . . . Until your
               jury service is complete, you shall not use computers, laptops,
               cellular phones or other electronic communication devices while
               in attendance at trial, during discussion or during deliberations
               unless you are specifically authorized by the court to do so. In
               addition while you are not in the courtroom, you shall not use
               computers, laptops, cellular phones or other electronic
               communication devices or any other methods to: 1. [c]onduct
               research on your own or as a group regarding the case[;] 2.

       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 14 of 21
                [g]ather information about the issues in the case[;] 3.
                [i]nvestigate the case, conduct experiments or attempt to gain any
                specialized knowledge about the case[;] 4. [r]eceive assistance in
                deciding the case from any outside source[;] 5. [r]ead, watch or
                listen to anything about the case from any source[;] 6. [l]isten to
                discussion among or receive any information from other people
                about the case. And finally our, 7. [t]alk to any of the parties,
                their lawyers, any of the witnesses or members of the media or
                anyone else about the case, including posting information, text
                messaging, emailing, posting on the internet chat rooms or social
                websites. . . .
       Tr. pp. 114-17. In addition, the trial court admonished the jury before each

       break.


[29]   In support of his motion to correct error, Ley attached screen shots of text

       messaging between L.S., the jury foreman, and his friend, J.J., taken from J.J.’s

       cell phone. The relevant exchange between L.S. and J.J. was as follows:


                        iMessage
                        Thursday 11:50 AM
                JJ:     What kind of case are u on? I know u can’t talk about it . .
                        a double homicide? Lol
                LS:     Vehicle accident resulting in death
                        12:29 PM
                JJ:     Oh Travis ley! I went to school with him
                        12:29 PM
                LS:     Great
                        12:31 PM
                LS:     Do you know him. . . ever been with him. . .what kind of
                        person is he?
                        12:35 PM
       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 15 of 21
               JJ:      I know him a little. He younger. I’m friends with his sons
                        mom. His sister was in my grade and he was a couple
                        behind me. No I’ve never been with him.
                        12:35 PM
               LS:      Do you know him as a bad drinker? Drug user?
                        12:42 PM
               JJ:      No not at all.
                        12:43 PM
               JJ:      That I know of
       Appellant’s App. pp. 536-39. The text messaging occurred Thursday, October

       24, 2013, during Ley’s trial. A detective interviewed L.S. and J.J., and both

       acknowledged texting each other about the trial.


[30]   The trial court held a hearing on Ley’s motion to correct error on March 20,

       2014. During the hearing, both parties acknowledged that an extra-judicial

       communication occurred and that it pertained to the matter before the jury.

       The disagreement surrounded the degree of harm. The State argued that the

       information provided to L.S. actually favored the defendant because J.J. told

       L.S. that she did not know Ley very well and that she did not know him to be a

       drinker or drug user. Therefore, under the analysis in Ramirez, Ley established

       his entitlement to the rebuttable presumption of prejudice. However, the State

       rebutted that presumption with the argument that the information actually

       harmed the State’s case and did not harm Ley’s defense. The trial court did not

       abuse its discretion by denying Ley’s motion to correct error based on juror

       misconduct.



       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 16 of 21
                                                Conclusion
[31]   In light of the foregoing, we affirm the decision of the trial court.


[32]   Affirmed.


       Baker, J., concurs.


       Riley, J., concurring in part and dissenting in part.




       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 17 of 21
                                           IN THE
    COURT OF APPEALS OF INDIANA

Travis Ley,                                              Court of Appeals Cause No.
                                                         84A05-1405-CR-206
Appellant-Defendant,

        v.

State of Indiana,
Appellee-Plaintiff.




Riley, Judge concurring in part and dissenting in part




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[33]   While I concur with the majority’s conclusion affirming the trial court’s denial

       of Ley’s motion for discharge pursuant to Indiana Criminal Rule 4(C), I

       respectfully dissent from its result reached in Ley’s claim of juror misconduct. I

       applaud the majority’s thoughtful discussion of our supreme court’s decision in

       Ramirez v. State, 7 N.E.3d 933 (Ind. 2014), but based on the facts of this case, I

       reach the opposite result and would remand for a new trial.


[34]   The parties do not dispute that a presumption of prejudice existed after

       communications between a juror and an unauthorized person occurred and that

       these communications squarely pertained to the matter before the jury.

       Accordingly, pursuant to the guidelines proponed by Ramirez, the State had the

       burden to rebut this presumption of prejudice by showing that any contact or

       communication was harmless. See id. at 939. However, Ramirez also instructs

       that “in egregious cases where juror conduct fundamentally compromises the

       appearance of juror neutrality,” the prejudice becomes irrebuttable. Id. I

       believe this to be the case here.


[35]   L.S. was elected to serve as the jury foreman during trial and had the task to

       lead the deliberations in the jury room after receiving all the evidence in order

       to reach a verdict. As is customary, the trial court cautioned the jurors

               [n]ot [to] discuss the case with anyone other than your fellow jurors
               during the trial. . . . Do not permit others to mention the case to you or
               in your presence during the trial. You should not enter into
               conversations with any of the attorneys or parties connected with the
               case or with any of the witnesses. And while it is permissible to
               exchange ordinary greetings, further conversation is inappropriate.
               Jurors are not investigators and are not permitted to seek out

       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 19 of 21
               information about the case on their own. Specifically jurors are
               prohibited from seeking information by using online search engines. .
               . . In addition, while you are not in the courtroom, you shall not use
               computers, laptops, cellular phones or other electronic communication
               devices or any other methods to: 1. Conduct research on your own or
               as a group regarding the case. 2. Gather information about the issues
               in the case. 3. Investigate the case, conduct experiments or attempts to
               gain any specialized knowledge about the case. 4. Receive assistance
               in deciding the case from any outside source. 5. Read, watch or listen
               to anything about the case from any source. 6. Listen to discussion
               among or receive any information from other people about the case.
               And finally, our 7. Talk to any of the parties, their lawyers, any of the
               witnesses or members of the media or anyone else about the case,
               including posting information, text messaging, emailing, posting on
               the internet chat rooms or social websites.
       (Transcript pp. 116-17). This caution was repeated at least twelve times over

       the course of the proceedings. Nonetheless, during Ley’s trial and prior to

       deliberations, an exchange by iMessage occurred between L.S. and his friend,

       J.J., in which L.S. asked J.J. whether he knew the defendant and whether he

       was known as a bad drinker or drug user.


[36]   Accordingly, despite the trial court’s repeated warnings—including one

       immediately before the iMessage—the jury foreman actively sought out

       information about the defendant. While I might have reached a different

       outcome if L.S. had merely received the iMessage without entering into further

       conversation, this is clearly not the case here as L.S. curiously and repeatedly

       inquired after Ley’s character in blatant violation of the trial court’s

       instructions. The State’s argument that the information transmitted during the

       iMessage actually harmed the State’s case is irrelevant. A juror who, in the face

       of repeated admonishments by the trial court, still seeks out inadmissible


       Court of Appeals of Indiana | Memorandum Decision 84A05-1405-CR-206 | April 23, 2015   Page 20 of 21
character evidence of the defendant, regardless of which party is disadvantaged

by this evidence, lacks the appearance of neutrality and taints the trial with an

appearance of unfairness. That appearance is exacerbated by the fact that the

juror is the foreman who presides over the process to reach the ultimate verdict.

As L.S.’s conduct “fundamentally compromised the appearance of juror

neutrality,” the prejudice became irrebuttable and a new trial should be granted.

See Ramirez, 7 N.E.3d at 939.




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