FOR PUBLICATION
                                                                      Jul 25 2014, 9:30 am




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

DALE W. ARNETT                                GREGORY F. ZOELLER
Winchester, Indiana                           Attorney General of Indiana

                                              JODI KATHRYN STEIN
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

JENNIFER L. PATCH,                            )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 68A05-1309-CR-460
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE RANDOLPH SUPERIOR COURT
                          The Honorable Peter D. Haviza, Judge
                            Cause No. 68D01-1203-FB-153


                                    July 25, 2014

                             OPINION - FOR PUBLICATION

MAY, Judge
          Jennifer L. Patch appeals her conviction of Class B felony conspiracy to commit

burglary.1 She asserts two issues on appeal:

          1.      Whether the evidence was sufficient to support her conviction, and

          2.      Whether the trial court properly denied her motion for mistrial when the

               prosecutor conferred with a State’s witness between direct and cross examinations.

We affirm.

                            FACTS AND PROCEDURAL HISTORY

          In March 2011, Patch, a correctional officer, was dating Cheryl Guise, a percussionist.

    Guise did not use a bank, but instead kept her cash inside a safe. The safe was located in

Guise’s house, under a large xylophone and clothing, and the key was in the lock. Only two

people knew where Guise kept her safe: her friend, Ann Hicks, and Patch.

          After a rehearsal, it was customary for Guise to meet several friends at IHOP. Guise

told Patch that she was meeting friends at IHOP on March 16, 2011. Guise emailed Patch

two days in advance and put the event on her Google calendar, to which Patch had access.

Patch met Guise at IHOP and, while they were there, Guise’s house was burglarized and her

safe was stolen.

          Unbeknownst to Guise, Patch was also dating Sarah Reese, a fellow correctional

officer. Over the course of text conversations, Patch told Reese about Guise’s safe and they

discussed how Reese would steal it. Patch told Reese she would leave the window unlocked

in Guise’s house and that she and Guise would be at IHOP. Reese burglarized Guise’s home


1
    Ind. Code § 35-41-5-2 (2012) (conspiracy); Ind. Code § 35-43-2-1 (2012) (burglary).
                                                     2
taking only her safe.

          Reese could not get the safe open, so she took it to a friend, Curtis Sharp, who was

able to open it. Reese told Sharp that she had stolen the safe. Once Sharp opened the safe,

Reese found $2000.00 along with a variety of legal papers. Reese gave the money to Patch

the next day.

          When Guise realized her home had been burglarized, she immediately called the

police. Reese admitted she burglarized the home and Patch was involved.

          The State charged Patch with Class B felony conspiracy to commit burglary and Class

D felony conspiracy to commit theft.2 Prior to trial, a witness separation order was entered.

During trial, between the direct and cross-examinations of Reese, the court took a recess.

During this recess, Reese met with her counsel and the prosecutor. Patch’s mother, husband,

and a friend overheard some of the conversation, which prompted Patch to move for a

mistrial when the trial reconvened. Patch asserted Reese’s conversation with her attorney

and the prosecutor violated the witness separation order and amounted to prosecutorial

misconduct. The trial court denied a mistrial and stated there was no prosecutorial

misconduct. The jury found Patch guilty of Class B felony conspiracy to commit burglary.

                                   DISCUSSION AND DECISION

          1.      Sufficiency of Evidence

          When reviewing sufficiency of evidence, we do not reweigh evidence or judge witness

credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider the evidence most


2
    Ind. Code § 35-41-5-2 (2012) (conspiracy); Ind. Code § 35-43-4-2 (2012) (theft).
                                                      3
favorable to the judgment, and will not reverse if a reasonable fact-finder could find the

elements of the crime had been proven beyond a reasonable doubt. Id. Our review “respects

the jury’s exclusive province to weigh conflicting evidence.” Allen v. State, 844 N.E.2d 534,

536 (Ind. Ct. App. 2006), trans. denied.

         To prove Patch committed Class B felony conspiracy to commit burglary, the State

had to present evidence that she had the intent to commit the felony, she had an agreement

with another person to commit the felony, and either she or the other person committed an

overt act in furtherance of the conspiracy. Ind. Code § 35-41-5-2. Patch disputes only that

there was an agreement with Reese to commit burglary.

         Patch asserts the evidence is not sufficient to support her conviction because Reese’s

testimony was incredibly dubious.3 The “incredible dubiosity” rule applies “where a sole

witness presents inherently contradictory testimony that is equivocal or coerced and there is a

lack of circumstantial evidence of guilt.” Whedon v. State, 765 N.E.2d 1276, 1278 (Ind.

2002).

         Reese testified she exchanged text messages with Patch about the burglary, Patch told

her where the safe was, and Patch unlocked the window for her. Guise testified she had told

only Patch and Hicks of the safe’s location. Reese confirmed she learned about the safe and

its location from Patch. Both Guise and Reese testified that Reese had never met Guise and

had never been to her residence. As there was circumstantial evidence of guilt, we find that


3
 Patch also asserts Reese was motivated to lie and try to frame her because of jealousy and retaliation. That is
an invitation to judge the credibility of the witness, which we cannot do. Drane, 867 N.E.2d at 146.

                                                       4
Patch has not demonstrated Reese’s testimony was incredibly dubious and affirm. See

Jacobs v. State, 802 N.E.2d 995, 998 (Ind. Ct. App. 2004) (holding the incredible dubiosity

rule is precluded when circumstantial evidence supports a conviction).

       2.      Prosecutorial Misconduct

       Whether to grant a mistrial is a decision left to the sound discretion of the trial court.

Pavey v. State, 764 N.E.2d 692, 698 (Ind. Ct. App. 2002), trans. denied. “The trial court’s

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

gauge the surrounding circumstances of the event and its impact on the jury.” Id. “The

declaration of a mistrial is an extreme action which is warranted only when no other recourse

could remedy the perilous situation.” Id. Patch asserts the trial court committed reversible

error when it denied her motion for a mistrial, because there was prosecutorial misconduct.

       “In reviewing a claim of prosecutorial misconduct, we determine (1) whether the

prosecutor engaged in misconduct, and if so (2) whether that misconduct, under all of the

circumstances, placed the defendant in a position of grave peril to which he or she should not

have been subjected.” Coleman v. State, 750 N.E.2d 370, 374 (Ind. 2001). Patch asserts

prosecutorial misconduct occurred when Reese met with the prosecutor and her counsel

between her direct and cross examinations.

       Patch cites Perry v. Leeke, 488 U.S. 272 (1989), in support of her motion for mistrial

on the basis that “[i]t talks about its common practice for a Judge to instruct a witness not to

discuss his testimony third [sic] parties [. . .] and it also talks about not be [sic] entitled to the

right to advice of counsel between cross examination or direct examination and cross

                                                  5
examination[.]” (Tr. at 141.) After the motion, the testimony of Patch’s mother, husband,

and friend were taken. Each said they heard something about text messages, but could not

determine what the conversation was about or exactly what was being said. Patch repeatedly

referred to the order to separate witnesses during the ruling on her motion for a mistrial, but

such orders presumably apply to witnesses, not counsel or the prosecutor. Jiosa v. State, 755

N.E.2d 605, 608 (Ind. 2001) (stating that the witness separation order “does not prohibit

counsel from consulting with the witness.”). The trial court so stated in its denial of the

motion for a mistrial. (See Tr. at 167-68) (court states the separation of witnesses applies

only to witnesses and there was no violation of that order).

       In Perry, the Court stated, “[o]ur conclusion does not mean that trial judges must

forbid consultation between a defendant and his counsel during such brief recesses. As a

matter of discretion in individual cases, or of practice for individual trial judges, or indeed, as

a matter of law in some States, it may well be appropriate to permit such consultation.” 488

U.S. at 284. As there was no order to separate Reese from her counsel or from the

prosecutor, Patch has not demonstrated prosecutorial misconduct, and we agree the court was

within its discretion to deny the motion for a mistrial. See id. (holding the trial judge has

discretion to allow or disallow consultation between direct and cross examination).

                                            CONCLUSION

       The evidence is sufficient to convict Patch of Class B felony conspiracy to commit




                                                6
burglary, and the trial court did not abuse its discretion when it denied Patch’s motion for a

mistrial. Accordingly, we affirm.

       Affirmed.

KIRSCH, J., and BAILEY, J., concur




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