Brent Porter v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 06 2020, 8:23 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew Bernlohr Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Josiah Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brent Porter, April 6, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1303
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Barbara Cook
Appellee-Plaintiff, Crawford, Judge
Trial Court Cause No.
49G01-1811-F3-39582
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Brent Porter was convicted of kidnapping committed by
using a vehicle and kidnapping causing bodily injury, both Level 5 felonies, and
domestic battery, a Class A misdemeanor. He was sentenced to three years for
kidnapping committed by using a vehicle, one and one-half years for
kidnapping causing bodily injury, and one year for domestic battery, all to be
served concurrently. Porter appeals his convictions, raising two issues for our
review: 1) whether the trial court abused its discretion when it denied Porter’s
motion for mistrial following an objectionable statement during trial testimony;
and 2) whether the entry of judgment of conviction and sentence for both
counts of kidnapping violate Indiana’s prohibition against double jeopardy.
Concluding the trial court did not abuse its discretion in denying a mistrial but
that the two convictions for kidnapping do constitute double jeopardy, we
affirm in part, reverse in part, and remand.
Facts and Procedural History
[2] Porter and Candace Wright were involved in a relationship and lived together
as of November 2018. On November 7, Wright decided to end the relationship
and went to a relative’s house to talk. In the early morning hours of November
8, she made her way to the apartment of her cousin, Nicki Horton. Wright and
Horton left the apartment to pick up a friend of Horton’s, with Wright driving
Horton’s truck. When they returned to Horton’s apartment, Wright saw the
headlights of a car nearby, but “it didn’t dawn on [her] to know who it was.”
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Transcript, Volume II at 94. All three occupants had to exit the truck through
the passenger door because the driver’s door was not functional. Horton and
her friend got out and headed toward the apartment. As Wright exited the
truck, Porter ran up to her and struck her from behind. Wright explained, “he
hit me so hard that I fell, and my knee fractured and was out. Pushed all the
way out.” Id. at 95. The fall also caused her mouth and nose to bleed. Horton
saw the altercation and yelled at Porter, who told her to shut up. Porter then
dragged Wright by her hair to his car. Wright was holding on to the doorframe
because she did not want to get in, but Porter kicked and pushed her into the
back seat as she tried to resist. Porter drove away, hitting Wright in the face
with his fist as he drove. Wright was in and out of consciousness until they
eventually arrived at the apartment they shared. Wright’s left eye was swollen
shut and she was unable to walk by herself. Porter assisted her up the stairs to
their apartment and into bed. Horton did not call the police after Porter drove
away with Wright, but she did call Wright’s daughter to apprise her of what
had happened.
[3] While Wright was in bed, “hurtin’ bad[,]” she heard a knock at the door. Id. at
100. Wright was unable to get out of bed and Porter did not answer, but
Wright was able to hear the voices of her daughter and another cousin outside
the apartment. Wright’s daughter called the police when no one came to the
door and neither Wright nor Porter answered their phone. When police
arrived, they repeatedly knocked and announced their presence but again Porter
did not answer, so the police breached the door and entered the apartment.
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Porter was arrested and Wright was transported to the hospital by ambulance.
Wright suffered a fracture to her left kneecap.
[4] The State charged Porter with kidnapping with serious bodily injury, a Level 3
felony; battery resulting in serious bodily injury, a Level 5 felony; kidnapping
committed by using a vehicle and kidnapping causing bodily injury, both Level
5 felonies; and domestic battery as a Class A misdemeanor. With respect to the
domestic battery charge, the State also alleged that Porter had a prior battery
conviction which, if proved, would elevate the Class A misdemeanor to a Level
6 felony. At Porter’s jury trial, Horton testified about what she saw the
morning of November 8. When asked by the State if she called the police after
Porter dragged Wright away, Horton said, “No, at the time . . . I was
intoxicated, and I don’t know exactly what happened between them right there.
They had altercations every now and then and I –” Id. at 121. Defense counsel
interrupted and objected on Evidence Rule 404(b) grounds. The trial court
sustained the objection, but then defense counsel asked to approach the bench
and informed the court that he would be moving for a mistrial. The court sent
the jury back to the jury room and heard argument on the motion:
[Defense counsel]: [T]he objection was to 404B, prior bad act
evidence. The testimony did come out before the Court made its
ruling. Since the prior bad acts are not before the jury, it’s also
more prejudicial than probative in this case. A limiting
instruction or striking from the record –
The Court: I’m quite frankly she was talking so fast, I didn’t
even catch anything that she said.
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[Defense counsel]: We believe that some of the jurors at least
may have caught it. And we don’t believe that a limiting
instruction or striking the record can unring that bell in this case.
***
[The State]: The State’s position that I believe what Miss Horton
said is (inaudible). But it didn’t go any further than that. I think
that an admonishment would be sufficient in this case. . . .
The Court: What was your original question?
[The State]: My question was, Why didn’t she call the police?
***
[Defense Counsel]: . . . I don’t think [the State’s] question called
for that [answer]. So, we’re not . . . saying that is the state in any
way, shape or form. Just the response to that was they have been
in altercation[s] in the past. And we are concerned that that
evidence in front of the jury leads them to speculate that there
have been prior bad acts that my client has participated in.
The Court: . . . The Court at this time is going to deny your
request for Mistrial. [F]irst of all the question that was asked did
not – was not designed to elicit that specific response. And . . .
she did not complete her answer. So, and she . . . talks fast so
I’m not sure most of the jurors even caught it. But even those
that did, I don’t think that it was anything that would prejudice
[Porter] that much. I am willing to give a – admonish the jury to
disregard that portion of her response. . . .
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Id. at 122-23. When the jury returned to the courtroom, the trial court gave
them the following admonishment:
All right, ladies and gentlemen, the Court has sustained the
Defendant’s objection with regard to that portion of the
witnesses’ [sic] response where she said they got into altercations
from time to time. You are to disregard that portion of her
response. And do not consider it as part of your deliberation. . . .
That will be stricken from the record.
Id. at 124.
[5] The jury found Porter not guilty of kidnapping as a Level 3 felony and battery
as a Level 5 felony; it found him guilty of the remaining charges. The State
then dismissed part two of the domestic battery information. The trial court
entered judgment of conviction for two Level 5 kidnapping convictions and
domestic battery and sentenced Porter to three years for kidnapping committed
by using a vehicle, one and one-half years for kidnapping causing bodily injury,
and one year for domestic battery, all to be served concurrently through
community corrections on home detention. Porter now appeals.
Discussion and Decision
I. Motion for Mistrial
[6] Porter contends that the trial court erred in denying his motion for mistrial after
Horton made a statement referencing previous altercations between Porter and
Wright in violation of Indiana Evidence Rule 404(b). He claims he suffered
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prejudice as a result of the comment that was not cured by the trial court’s
admonishment because a “significant, serious, and appropriate connotation is
assigned to the concept of being a domestic batterer [and i]t cannot be known
how significant, and damning, the inferences drawn [by the jury] were.” Brief
of Defendant-Appellant at 15.
[7] The grant or denial of a motion for mistrial rests within the sound discretion of
the trial court and we therefore review the trial court’s decision only for an
abuse of discretion. Brittain v. State, 68 N.E.3d 611, 619 (Ind. Ct. App. 2017),
trans. denied. The trial court is entitled to great deference on appeal because the
trial court is in the best position to evaluate the relevant circumstances of a
given event and its probable impact on the jury. Id. at 620. To prevail on
appeal from the denial of a motion for mistrial, a defendant must demonstrate
that the statement in question was so prejudicial that he was placed in a
position of grave peril. Id. The gravity of peril is measured by the probable
persuasive effect of the statement on the jury. Smith v. State, 140 N.E.3d 363,
373 (Ind. Ct. App. 2020). Granting a mistrial “is an extreme remedy that is
warranted only when no other action can be expected to remedy the situation.”
Kemper v. State, 35 N.E.3d 306, 309 (Ind. Ct. App. 2015), trans. denied.
[8] Evidence Rule 404(b) provides, “Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” The purpose of
Rule 404(b) is “to prevent the jury from indulging in the ‘forbidden inference’—
that a defendant must be guilty of the charged crime because, on other
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occasions, he acted badly.” Fairbanks v. State, 119 N.E.3d 564, 565 (Ind. 2019).
Porter contends Horton’s statement that he and Wright “had altercations every
now and then” is prior bad act evidence that subjected him to grave peril. Tr.,
Vol. II at 121. We disagree.
[9] In Lucio v. State, a witness was asked how long the defendant and a third party
had been acquainted. The witness replied, “As far as I know they had met in
Boone County jail.” 907 N.E.2d 1008, 1009 (Ind. 2009). Defense counsel
immediately moved for a mistrial, arguing the evidence was highly prejudicial.
The trial court found the violation was unintentional and denied the mistrial
but struck the answer and instructed the jury, “You must not consider that
evidence as to any matter before you for consideration. In fact, such matter is
to be treated as though you have never heard of it.” Id. at 1010. The jury found
the defendant guilty of two counts of murder and one count of conspiracy to
commit murder. The defendant appealed, raising the sole issue of whether the
trial court erred in denying his request for a mistrial. Our supreme court noted
that “everyone agrees” the witness’s testimony was improper. Id. However,
because the trial court immediately and clearly told the jury not to consider the
evidence, because there is a strong presumption that juries follow a court’s
instructions and that an admonition cures any error, and because the statement
“was fleeting, inadvertent, and only a minor part of the evidence against the
defendant[,]” the court held the trial court did not abuse its discretion. Id. at
1011.
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[10] Here, the implication of the statement in question is much less direct than that
of the statement in Lucio. That Porter and Wright had been involved in
“altercations” in the past does not necessarily mean that Porter is a bad actor,
and the possible prejudice from such a vague statement is substantially less than
from the direct statement in Lucio which was still not prejudicial enough to
warrant a mistrial. See Greenlee v. State, 655 N.E.2d 488, 489-91 (Ind. 1995)
(holding mistrial not warranted where trial court instructed jury to disregard
witness’s testimony that he was familiar with the defendant because he “had
arrested him in the past”). In addition, all parties here agreed that Horton’s
statement was not elicited purposely – both the trial court and Porter’s counsel
noted that the State’s question did not beg the answer. Moreover, the trial court
noted that because the witness spoke quickly, the court barely registered her
answer and it was likely the same for the jury. Finally, the trial court
immediately gave a clear instruction to the jury that it should not consider the
statement. When a trial court adequately admonishes the jury, such
admonishment is presumed to cure any error that may have occurred. Cherry v.
State, 971 N.E.2d 726, 733 (Ind. Ct. App. 2012), trans. denied.
[11] Wright’s testimony alone that Porter struck her and took her from one place to
another when she did not wish to go was substantial. In light of that evidence,
it is likely the jury would have returned guilty verdicts regardless of Horton’s
statement. Horton’s inadvertent mistake in referencing prior altercations was
brief, was not used by the State thereafter in any manner, and was presumably
cured by the trial court’s admonishment to the jury. The trial court did not
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abuse its discretion in denying the extreme remedy of a mistrial under these
circumstances.
II. Double Jeopardy
[12] Porter also contends his convictions and sentences for kidnapping committed
by using a vehicle and kidnapping causing bodily injury cannot both stand, as
the two convictions violate Indiana’s prohibition on double jeopardy. The State
concedes the two convictions are based upon the same act. See Brief of
Appellee at 8.
[13] Both counts of kidnapping alleged that Porter knowingly removed Wright by
force or threat of force from one place to another, that being from an area near
Horton’s apartment to Porter’s residence. See Appellant’s Appendix, Volume II
at 22. The additional elements of using a car and causing bodily injury are
alternative means by which the basic charge of kidnapping, a Level 6 felony,
can be elevated to a Level 5 felony. Ind. Code § 35-42-3-2(a) (basic elements of
kidnapping); -2(b)(1) (elements that increase the seriousness of the basic crime).
But the act of kidnapping itself is simply the removal by force of a person from
one place to another. Conviction and punishment for a crime which consists of
the very same act as another crime for which the defendant has been convicted
and punished is a double jeopardy violation. Guyton v. State, 771 N.E.2d 1141,
1143 (Ind. 2002).
[14] When two convictions are found to violate the principles of double jeopardy,
we may remedy the violation by reducing either conviction to a less serious
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form of the same offense if doing so will eliminate the violation. Richardson v.
State, 717 N.E.2d 32, 54 (Ind. 1999). If it will not, then the conviction with less
severe penal consequences should be vacated. Id. Even though there is a less
serious form of kidnapping, given the facts of this case, reducing either
conviction to a Level 6 felony would not remedy the double jeopardy violation.
Therefore, one conviction must be vacated. However, both crimes are Level 5
felonies and therefore, of equal severity when considering the class of crime. In
such case, the severity of the penal consequences can be determined by the
length of the sentence imposed. Moala v. State, 969 N.E.2d 1061, 1066 (Ind. Ct.
App. 2012); see also Richardson, 717 N.E.2d at 54 (in remedying a double
jeopardy violation, the reviewing court should be “mindful of the penal
consequences that the trial court found appropriate.”) Because the trial court
sentenced Porter to three years for kidnapping by using a vehicle and only one
and one-half years for kidnapping causing bodily injury, we remand for the trial
court to vacate Porter’s conviction for kidnapping causing bodily injury. As a
practical matter, because the trial court ordered all of Porter’s sentences to be
served concurrently, the length of his sentence will not change. 1
1
Although not raised by either party, we note that the sentencing order states that Porter was convicted of
domestic battery as a Level 6 felony. However, the jury found him guilty of domestic battery as a Class A
misdemeanor, and the State dismissed the second part of the domestic battery information that could have
elevated the crime to a Level 6 felony. See Tr., Vol. II at 177 (the State confirming at the sentencing hearing
that it did not proceed on part two of the information for domestic battery). Because the trial court sentenced
Porter within the bounds of a Class A misdemeanor conviction, see Ind. Code § 35-50-3-2 (stating a person
who commits a Class A misdemeanor shall be imprisoned for a term of not more than one year), we assume
this is a scrivener’s error and we instruct the trial court on remand to amend the sentencing order to reflect
the appropriate conviction.
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Conclusion
[15] The trial court did not abuse its discretion in denying Porter’s motion for
mistrial based on an inadvertent and unsolicited statement by a witness.
However, Porter’s convictions for both kidnapping by using a vehicle and
kidnapping causing bodily injury violate Indiana’s prohibition against double
jeopardy as both convictions are based on the same act. We therefore remand
to the trial court to vacate Porter’s conviction and sentence for kidnapping
causing bodily injury and issue a new sentencing order. In all other respects,
the judgment of the trial court is affirmed.
[16] Affirmed in part, reversed in part, and remanded.
Bradford, C.J., and Altice, J., concur.
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