                                                                   Jun 19 2015, 8:41 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Kurt A. Young                                              Gregory F. Zoeller
Nashville, Indiana                                         Attorney General of Indiana
                                                           Katherine Modesitt Cooper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Alexander K. Jerden,                                      June 19, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          07A05-1410-CR-498
        v.                                                Appeal from the Brown Circuit Court
                                                          Lower Court Cause No.
State of Indiana,                                         07C01-1405-CM-162
                                                          The Honorable Wendy W. Davis,
Appellee-Petitioner.
                                                          Judge




Pyle, Judge.




Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015                   Page 1 of 17
                                         Statement of the Case
[1]   Appellant/Defendant, Alexander K. Jerden (“Jerden”), appeals his convictions

      for two counts of Class B misdemeanor reckless driving. 1 On appeal, he argues

      that several of the prosecutor’s statements during closing argument constituted

      misconduct because they inflamed the passions and prejudices of the jury and

      encouraged the jury to convict him for reasons other than his guilt. He also

      argues that the trial court erred in notifying the Indiana Bureau of Motor

      Vehicles (“BMV”) that he received guilty verdicts for all four of his charges,

      when two of the verdicts merged, and the trial court entered judgments of

      conviction for only two of his charges. We conclude that, regardless of whether

      the prosecutor committed misconduct, Jerden did not object to the closing

      argument, and the prosecutor’s statements did not amount to fundamental

      error. However, we find that the trial court erred in notifying the BMV of all

      four of Jerden’s guilty verdicts because the trial court’s notification did not

      identify that two of the verdicts merged with the other two and did not result in

      convictions. We reverse in part and remand with instructions for the trial court

      to correct its notice to the BMV.


      We affirm in part, reverse in part, and remand with instructions.




      1
       IND. CODE § 9-21-8-52(a)(1), (3). We note that this statute was amended effective January 1, 2015.
      However, because Jerden committed his offenses in 2014, we will apply the statute in effect at the time.
      Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015                           Page 2 of 17
                                                      Issues
              1. Whether the prosecutor’s statements during closing argument
              constituted prosecutorial misconduct.

              2. Whether the trial court erred in notifying the BMV that Jerden
              was found guilty of all four of his charges, even though the trial
              court merged two of the guilty verdicts and entered judgments of
              conviction on only two of the counts.

                                                       Facts
[2]   At about 9:00 or 10:00 a.m. on the morning of April 13, 2014, Jason Woods

      (“Woods”), was driving eastbound on State Road 46 to Bloomington, Indiana,

      when a silver BMW came up behind him. The BMW crossed the double solid

      yellow lines separating the eastbound lane from oncoming traffic and passed

      Woods, driving “at a high rate of speed.” (Tr. 57). Soon thereafter, a black

      Chevrolet also came up behind Woods, crossed the double solid yellow lines,

      and passed Woods, also driving “at a high rate of speed.” (Tr. 57). Woods

      pulled over at his grandfather’s house on State Road 46 and called the Sheriff’s

      Department to report the two cars.


[3]   The Nashville Police Department sent out a dispatch about the two vehicles to

      its police officers. Ben Seastrom (“Deputy Seastrom”), the Chief Deputy of the

      Department, heard the dispatch and started to travel westward to intercept the

      drivers. He stopped at a red traffic light at the intersection of State Road 46 and

      saw that there were two cars traveling on State Road 46—one in the eastbound

      lane and one in the turn lane. Deputy Seastrom then heard a revving noise and

      Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015   Page 3 of 17
      observed a dark-colored pickup truck, a silver BMW, and a black passenger

      car—the Chevrolet—cross the double yellow lines and pass the two cars. The

      three passing cars were traveling “[w]ell above the forty (40) mile[s] an hour

      [speed limit] zone,” such that Deputy Seastrom estimated that they were

      driving seventy-five or eighty miles per hour, or “[a]t least double” the speed

      limit. (Tr. 66, 67).


[4]   After witnessing the three cars, Deputy Seastrom activated his lights and siren

      and turned onto State Road 46 to intercept the vehicles. He followed the cars,

      driving at a speed of ninety to one hundred miles per hour, but the drivers did

      not stop. Deputy Seastrom notified dispatch that they were refusing to stop.

      However, as he got closer to the cars, the Chevrolet pulled to the side of the

      road. At that point, the Deputy continued to follow the truck and BMW, still

      driving at around ninety to one hundred miles per hour. He saw the truck and

      BMW pass another car but, eventually, as he got closer, the BMW pulled to the

      side of the road.


[5]   Deputy Seastrom stopped behind the BMW and learned that Jerden was the

      driver. He asked Jerden “why he [had been driving] that way[,]” and Jerden

      said that “he did [not] know what [Deputy Seastrom] was talking about.” (Tr.

      74). The deputy wrote Jerden a ticket for improper passing within one hundred

      feet of an intersection. He considered charges for aggressive driving and

      reckless driving but did not have his legal book available to cite either of those

      statutes.
      Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015   Page 4 of 17
[6]   In the meantime, an additional police officer, Sergeant Michael Moore

      (“Sergeant Moore”), conducted a traffic stop of the black Chevrolet that had

      previously stopped. When Deputy Seastrom finished his traffic stop of Jerden,

      he went to meet Sergeant Moore. Joseph Durre (“Durre”), the driver of the

      Chevrolet, told Deputy Seastrom that he and Jerden had met the driver of the

      truck outside of town and were on their way to Columbus, Indiana, to go to a

      car race. Deputy Seastrom wrote a ticket for Durre, also with the charge of

      improper passing within one hundred feel of an intersection.


[7]   Subsequently, on May 20, 2014, the State charged Jerden with Count I, Class B

      misdemeanor reckless driving; Count II, Class A misdemeanor reckless driving;

      Count III, Class C infraction passing in a no passing zone; and Count IV, Class

      C infraction speeding. The trial court held a joint jury trial for Jerden and

      Durre, whom the State had also charged, on September 24, 2014.


[8]   At trial, Deputy Seastrom testified that he believed the manner the truck,

      BMW, and Chevrolet had been driving had endangered others on the road. He

      said that at their speeds and the way they were driving, he did not feel that they

      would have been able to avoid another vehicle if it had come out of one of the

      turns.


[9]   Jerden testified to his version of events, which was that the truck in front of him

      had been driving erratically. He testified that when he reached the intersection

      where Deputy Seastrom had been, the truck suddenly pulled out into the other

      Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015   Page 5 of 17
       lane, revealing a stopped car in Jerden’s lane. Jerden said that he had to swerve

       to avoid the car. Then, “in a fit of fury” he accelerated to forty miles per hour

       in an attempt to capture the truck’s license plate number, but he was not able to

       read the number. (Tr. 103).


[10]   At the conclusion of the presentation of evidence, the prosecutor made his

       closing argument, and Jerden did not object to any portion of the argument.

       Thereafter, the jury found Jerden guilty as charged. The court held a

       sentencing hearing and found that Jerden’s convictions for Counts III and IV

       merged with Counts I and II. It entered written judgments of conviction for

       Counts I and II only and sentenced Jerden to 180 days for each count, all

       suspended to probation with forty (40) hours of community service. The trial

       court also ordered the sentences to run concurrently. On September 30, 2014,

       the Clerk transmitted to the BMV SR-16 forms showing that Jerden was found

       guilty of all four Counts, including Counts III and IV. Jerden now appeals.


                                                     Decision
[11]   On appeal, Jerden argues that: (1) several of the prosecutor’s statements during

       closing argument constituted prosecutorial misconduct because, according to

       Jerden, they were meant to inflame the passions and prejudices of the jury so

       that the jury would convict him for reasons other than his guilt; and (2) the trial

       court erred by notifying the BMV that Jerden had been found guilty on all four



       Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015   Page 6 of 17
       of his charges, when the trial court entered a judgment of conviction on only

       two of the charges. We will address each of these arguments in turn.


       1. Prosecutorial Misconduct

[12]   First, Jerden asserts that several of the prosecutor’s closing statements

       constituted prosecutorial misconduct. In reviewing a claim of prosecutorial

       misconduct properly raised in the trial court, we determine: (1) whether

       misconduct occurred, and, if so, (2) “‘whether the misconduct under all of the

       circumstances, placed the defendant in a position of grave peril to which he or

       she would not have been subjected otherwise.’” Ryan v. State, 9 N.E.3d 663,

       667 (Ind. 2014) (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)), reh’g

       denied. A prosecutor has the duty to present a persuasive final argument; thus,

       placing a defendant in grave peril, by itself, is not misconduct. Id. Instead,


               “[w]hether a prosecutor’s argument constitutes misconduct is
               measured by reference to case law and the Rules of Professional
               Conduct. The gravity of peril is measured by the probable
               persuasive effect of the misconduct on the jury’s decision rather than
               the degree of impropriety of the conduct.”


       Id. (quoting Cooper, 854 N.E.2d at 835) (emphasis added in Ryan).


[13]   To preserve a claim of prosecutorial misconduct, the defendant must—at the

       time the alleged misconduct occurs—request an admonishment to the jury, and

       if further relief is desired, move for a mistrial. Id. Failure to do so results in

       waiver. Stevens v. State, 691 N.E.2d 412, 420 (Ind. 1997). Our standard of
       Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015          Page 7 of 17
       review is different where a claim of prosecutorial misconduct has been waived

       for a failure to preserve the claim of error. Id. In such a case, the defendant

       must establish not only the grounds for prosecutorial misconduct but also that

       the prosecutorial misconduct constituted fundamental error. Id. at 667-68.


[14]   Fundamental error is an extremely narrow exception to the waiver rule where

       the defendant faces the heavy burden of showing that the alleged errors are so

       prejudicial to the defendant’s rights as to “‘make a fair trial impossible.’” Id. at

       668 (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). In evaluating

       the issue of fundamental error, our task is to look at the alleged misconduct in

       the context of all that happened and all relevant information given to the jury—

       including evidence admitted at trial, closing argument, and jury instructions—

       to determine whether the misconduct had “such an undeniable and substantial

       effect on the jury’s decision that a fair trial was impossible.” Id. (emphasis in

       original). Fundamental error is meant to permit appellate courts “a means to

       correct the most egregious and blatant trial errors that otherwise would have

       been procedurally barred, not to provide a second bite at the apple for defense

       counsel . . . .” Id. Here, Jerden acknowledges that he did not object to the

       prosecutor’s closing argument at trial. Accordingly, we must determine

       whether the prosecutor’s statements during his closing argument were

       fundamental error. See id. at 667-68.


[15]   Jerden asserts that the prosecutor’s arguments resulted in fundamental error

       because they were calculated to inflame the passions and prejudices of the jury
       Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015       Page 8 of 17
and to encourage the jury to convict him for reasons other than his guilt.

Specifically, he cites the following statements:


        You heard Deputy Seastrom talk about how he believed they
        were going seventy-five (75) miles an hour through that
        intersection. That it took him ninety (90) to a hundred (100)
        miles an hour to catch up to them out by Snyder . . . out past
        Snyder farms and past Parkview Road and past Eagle Creek and
        on a Sunday morning pulling them over in front of Parkview
        Nazarene at eight o’clock (8:00) in the morning. They put people
        in danger.
                                           *        *       *
        Our roads are nor playgrounds. Our roads are not places for
        young men who think that they can drive faster and better than
        other people. Our roads are used by families going to church on
        Sunday mornings. They are used by people going to and from
        work.


(Tr. 119-23). Jerden argues that these statements were inappropriate because

there was no evidence at trial that he was pulled over by a church, and the fact

that it was Sunday morning was not relevant to whether he was driving

recklessly. He also cites the prosecutor’s arguments:


        So, on April 13th of this year these two (2) men went racing
        through our community. To them it was just a thirty (30) mile
        stretch of road. To us, though, it’s the safety of our neighbors.
        The [defendants] put us in danger by the way they were driving
        that day.
                                           *        *       *


Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015     Page 9 of 17
               Ladies and Gentlemen, these two (2) men thought that they
               could race on our tr [sic] . . . on our road. They thought that
               they could use their well[-]honed driving skills, but in fact what
               they did is they put us in danger, and that’s what danger . . .
               reckless driving is.


       (Tr. 116-17). He contends that there was no evidence produced at trial to show

       that he viewed the road as “just a thirty . . . mile stretch of road.” (Tr. 115). In

       addition, he argues that these passages highlighted the fact that he was not from

       the community, emphasized to the jury that he viewed himself as a superior

       driver, and told the jury that he viewed the community as only a stretch of road

       to be traveled. Jerden asserts that the prosecutor’s emphasis on these factors

       inflamed the prejudices of the jury and convinced the jury to convict him for

       reasons other than his guilt.


[16]   As Jerden argues, it is misconduct for a prosecutor to request a jury to convict a

       defendant for any reason other than his guilt or to phrase a final argument in a

       manner calculated to inflame the passions or prejudice of a jury. Neville v. State,

       976 N.E.2d 1252, 1264 (Ind. Ct. App. 2012), trans. denied. Indiana Professional

       Conduct Rule 3.4(e) provides that:

               A lawyer shall not . . . in trial, allude to any matter that the
               lawyer does not reasonably believe is relevant or that will not be
               supported by admissible evidence, assert personal knowledge of
               facts in issue except when testifying as a witness, or state a
               personal opinion as to the justness of a cause, the credibility of a
               witness, the culpability of a civil litigant or the guilt or innocence
               of an accused.
       Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015      Page 10 of 17
       While Jerden is correct regarding the legal standard to be applied, we disagree

       that prosecutorial misconduct occurred here. See Booher v. State, 773 N.E.2d

       814, 819 (Ind. 2002) (prosecutors are free to make arguments from which a jury

       can draw reasonable inferences from the evidence).

[17]   However, we need not address whether the prosecutor’s statements constituted

       misconduct because none of the statements Jerden contests were such that they

       would have made a fair trial impossible within the context of the rest of the

       information given to the jury. As we stated above, to qualify as fundamental,

       an error must have “such an undeniable and substantial effect on the jury’s decision

       that a fair trial [is] impossible.” Ryan, 9 N.E.3d at 668 (quoting Benson, 762

       N.E.2d at 756) (emphasis in original). Where there is overwhelming

       independent evidence of a defendant’s guilt, error made by a prosecutor during

       the closing argument is harmless. Coleman v. State, 750 N.E.2d 370, 375 (Ind.

       2001).


[18]   In light of the information given to the jury here, the prosecutor’s statements

       did not result in fundamental error. First, we must note that, even though

       Jerden disputes the prosecutor’s emphasis on the fact that he considered himself

       to be a superior driver, Jerden admitted as much in his own closing argument.

       It was also uncontroverted at trial that Jerden and Durre were from out of town

       and were traveling to a car racing event. The prosecutor’s references to these

       factors were a permissible characterization of the evidence.

       Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015     Page 11 of 17
[19]   Second, there is overwhelming independent evidence to support the jury’s

       verdict. For Count I, the State was required to prove that Jerden “operate[d] a

       vehicle” and “recklessly: (1) [drove] at such an unreasonably high rate of speed

       . . . under the circumstances as to: (A) endanger the safety of others; or (B)

       block the proper flow of traffic.” I.C. § 9-21-8-52(a)(1). For Count II, the State

       was required to prove that Jerden “operated a vehicle” and recklessly “[drove]

       in and out of a line of traffic, except as otherwise permitted[.]” I.C. § 9-21-8-

       52(a)(3). Woods testified that a silver BMW passed him on State Road 46

       driving “at a high rate of speed,” and Deputy Seastrom also observed Jerden’s

       BMW cross the double yellow lines and pass cars on two occasions. (Tr. 57).

       In addition, the deputy testified that Jerden was driving “[w]ell above the forty

       (40) mile an hour [speed limit] zone,” to the point that he estimated Jerden was

       driving “[a]t least double” the speed limit. (Tr. 66, 67). Deputy Seastrom had

       trouble catching up with Jerden, even though he was driving ninety to one

       hundred miles per hour. In light of this overwhelming independent evidence,

       we conclude that there was no error, and, even if there was, any error in the

       prosecutor’s closing argument was harmless. See Coleman, 750 N.E.2d at 375.


[20]   Third, prior to deliberation, the trial court instructed the jury that its decision

       should not be based on sympathy or bias and that “[s]tatements by the

       [p]rosecuting [a]ttorney or a [d]efendant, when he was not under oath, [were]

       not evidence.” (Tr. 129). One remedy for prosecutorial misconduct is to

       admonish the jury, see Ryan, 9 N.E.2d at 667, and these final jury instructions

       Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015    Page 12 of 17
       accomplished the same ends because they emphasized that the prosecutor’s

       statements were not evidence and that the jury should reach its verdict based on

       the evidence and law. Accordingly, in light of these instructions and the above

       factors, we conclude that the prosecutor’s statements were not fundamental

       error.


       2. Notification to BMV


[21]   Next, Jerden argues that the trial court erred when it sent SR-16 forms, showing

       that he was found guilty of all four of his charges, to the BMV even though the

       trial court had entered judgments of conviction on only two of the four counts.

       The State responds by citing our supreme court’s holding that a merged offense

       for which a defendant is found guilty, but on which there is neither a judgment

       nor a sentence, is “unproblematic” as far as double jeopardy is concerned.

       Green v. State, 856 N.E.2d 703, 704 (Ind. 2006). The State also notes that it does

       not seem possible to notify the BMV that no convictions were entered on

       Jerden’s Counts III and IV because the SR-16 form only has options to notify

       the BMV of findings of “guilty,” “dismissed,” “not guilty,” “nolle prosecui [sic],”

       “vacated,” and “deferred”—none of which apply here. (App. 89-92).


[22]   INDIANA CODE § 9-30-13-0.5 provides that:


                (a) A court shall forward to the bureau a certified abstract of the
                record of the conviction of a person in the court for a violation of a
                law relating to motor vehicles.
                                                  *        *       *
       Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015      Page 13 of 17
               (e) An abstract required by this section must be in the form
               prescribed by the bureau and, when certified, shall be accepted by
               an administrative agency or a court as prima facie evidence of the
               conviction and all other action stated in the abstract.2


       (Emphasis added). Jerden directs us to the “form prescribed by the bureau,”

       which is the SR-16 form. Ind. Bureau Motor Vehicles, Suspension, Reinstatement

       and Insurance Forms, IN.GOV, http://www.in.gov/bmv (last visited May 29,

       2015); I.C. § 9-30-13-0.5. According to the BMV’s website,


               [The SR-16 form] is used by courts to notify the BMV that a
               driver has been convicted of a citation, failed to appear for a
               citation, or failed to pay a citation for violating a motor vehicle
               law. This form also notifies the BMV when matters have been
               dismissed or orders have been vacated. Drivers may not submit
               SR-16 forms at license branches. SR-16 forms may only be
               submitted by a court directly to the BMV.


       Ind. Bureau Motor Vehicles, Suspension, Reinstatement and Insurance Forms,

       IN.GOV, http://www.in.gov/bmv (last visited May 29, 2015) (emphasis added).


[23]   As the State notes, our supreme court has previously held that a merged offense

       for which a defendant is found guilty, but on which there is neither a judgment

       nor a sentence, is “unproblematic” as far as double jeopardy is concerned. See




       2
         This provision has been amended, effective July 1, 2015. However, we will apply the version of the statute
       in effect at the time of Jerden’s offenses.
       Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015                        Page 14 of 17
       Green, 856 N.E.2d at 704. However, the issue here is not whether the trial court

       violated the prohibition against double jeopardy, as it is undisputed that the

       court entered judgments of conviction and sentenced Jerden on only Counts I

       and II. Instead, the issue is whether the trial court erred by reporting the jury’s

       findings of “guilty” on Counts III and IV to the BMV. We conclude that it did.


[24]   Our basis for this conclusion rests on the difference between a guilty verdict and

       a judgment of conviction, which we have previously noted are not equivalent.

       Haddix v. State, 827 N.E.2d 1160, 1165 (Ind. Ct. App. 2005), trans. denied. “A

       verdict is the jury’s finding of guilt, but such finding carries no legal

       consequences unless the trial court enters a judgment of conviction on the

       verdict.” Id. The language of INDIANA CODE § 9-30-13-0.5 refers to

       “convictions.” Specifically, it provides that a court need only forward to the

       BMV “a certified abstract of the record of the conviction of a person.”

       (Emphasis added). Because the plain language of INDIANA CODE § 9-30-13-0.5

       only refers to “convictions,” we conclude that the trial court erred in notifying

       the BMV of Jerden’s guilty verdicts that did not result in conviction, as that

       action was not authorized by statute.


[25]   The placement and purpose of INDIANA CODE § 9-30-13-0.5 within the Code

       support this conclusion. Section 9-30-13-0.5 is located in Chapter 13, which is

       titled “Miscellaneous Criminal Offenses; Suspension of Driver’s License” and

       concerns the legal consequences of convictions, such as the revocation and

       suspension of driver’s licenses. As guilty verdicts, unlike convictions, do not
       Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015     Page 15 of 17
       have legal consequences, an interpretation of the statute requiring the trial court

       to notify the BMV of a guilty verdict that does not result in a conviction would

       not support the purpose of this chapter.


[26]   Accordingly, based on the language of INDIANA CODE § 9-30-13-0.5 and its

       placement and purpose, we conclude that the trial court erred in sending the

       BMV SR-16 forms for the two of Jerden’s guilty verdicts that did not result in

       convictions. We affirm his convictions but reverse in part and remand with

       instructions for the trial court to correct its notice to the BMV.


[27]   We must note, though, that the reason for this error seems to be the fact that the

       BMV’s SR-16 form does not track the statute. Although the statute requires

       trial courts to notify the BMV of only “convictions,” the BMV’s form includes

       additional options to notify the BMV of “dismissed,” “not guilty,” “nolle

       prosecui [sic],” “vacated,” and “deferred” charges. (App. 89-92). One problem

       with this format is that, because the form does not distinguish between guilty

       verdicts and verdicts that result in convictions, there is a potential for guilty

       verdicts that do not result in judgments of conviction to be entered into BMV

       records as convictions. This potential is problematic as the contents of the

       BMV’s records act as prima facie evidence for determining the legal

       consequences of future offenses. See, e.g., I.C. § 9-30-3-15 (stating that the

       BMV’s records that a defendant has a prior conviction are prima facie evidence

       of such). While we have found here that the trial court should not have notified


       Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015    Page 16 of 17
       the BMV of the two guilty verdicts that did not result in convictions, we would

       recommend that the BMV also update the SR-16 form to avoid confusion.


[28]   Affirmed in part, reversed in part, and remanded with instructions.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 07A05-1410-CR-498 | June 19, 2015   Page 17 of 17
