Kenton B. Myers v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 26 2018, 9:28 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ryan P. Dillon Curtis T. Hill, Jr.
Maritza K. Webb Attorney General of Indiana
Dillon Legal Group, P.C.
Franklin, Indiana Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenton B. Myers, March 26, 2018
Appellant-Defendant, Court of Appeals Case No.
55A01-1709-CR-2157
v. Appeal from the Morgan Superior
Court
State of Indiana, The Honorable Brian H. Williams,
Appellee-Plaintiff. Judge
Trial Court Cause No.
55D02-1507-F4-1071
Najam, Judge.
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Statement of the Case
[1] Kenton Myers appeals his convictions following a jury trial for burglary, as a
Level 4 felony; resisting law enforcement, as a Level 6 felony; and resisting law
enforcement, as a Class A misdemeanor. Myers presents the following issues
for our review:
1. Whether the trial court abused its discretion when it
denied his motion for a mistrial.
2. Whether the jury’s verdicts are fatally inconsistent.
3. Whether the State presented sufficient evidence to support
his burglary conviction.
We affirm.
Facts and Procedural History
[2] On July 13, 2015, at approximately 5:00 a.m., Myers broke and entered the
attached garage of Timothy Dunbar’s residence in Martinsville. Once inside,
Myers found Dunbar’s 1965 Chevrolet truck, which Myers then stole. Dunbar
was asleep inside his house and awoke to the sound of the truck engine starting.
Dunbar watched through a window as Myers drove the truck down the
driveway, struck a vehicle parked there, veered into the yard, and then drove
away. Dunbar called law enforcement to report the incident.
[3] Morgan County Sheriff’s Deputy Jeremy Long arrived at Dunbar’s house, and
Dunbar showed him damage to the garage door, which was the result of Myers’
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backing out of the garage; damage to the parked vehicle in the driveway; and
tire tracks in the lawn. Deputy Long then drove around the area to see whether
the burglar had abandoned the truck, and he quickly found it parked at the edge
of a nearby cornfield.
[4] In the meantime, Deputy Walter Stuart responded to a report of a man riding a
lawnmower on Bain Road. At approximately 6:20 a.m., Deputy Stuart found
the man, later identified as Myers, and tried to initiate a traffic stop by turning
on his lights and siren, but Myers continued to drive the lawnmower for
approximately one mile before he stopped in a ditch, dismounted the
lawnmower, and “took off running over a gate into a field.” Tr. Vol. II at 200.
Deputy Stuart pursued Myers on foot for approximately one-quarter of a mile
before Myers “ran out of energy” and stopped. Id. at 203.
[5] Deputy Stuart then
ordered [Myers] to the ground several times. He was acting real
erratic [sic], and just wasn’t making much sense, and [Deputy
Stuart and Myers] kind of stood off facing each other. [Deputy
Stuart] had [his] taser out. [He] ordered him to the ground
several times. [Myers] wouldn’t go to the ground. He told
[Deputy Stuart that] he wasn’t going to go to the ground.
[Myers] lunged at [Deputy Stuart]. That’s when [Deputy Stuart]
tased him and put him to the ground.
Id. At that point, Deputy Stuart placed Myers in handcuffs, and he led Myers
to his vehicle. Deputy Long arrived to assist in the arrest, and Deputy Long
conducted a pat-down search of Myers’ person. In the course of that search,
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Deputy Long found in Myers’ pocket a gas cap and a set of keys with an
address tag attached to it. Myers told the deputies that he had “t[aken the]
lawnmower from a yard because he was tired of walking.” Id. at 172. Dunbar
subsequently identified the gas cap as having been removed from his truck, and
he identified the set of keys as belonging to him.
[6] The State charged Myers with burglary, as a Level 4 felony; auto theft, as a
Level 6 felony; resisting law enforcement, as a Level 6 felony; and resisting law
enforcement, as a Class A misdemeanor. Prior to trial, the trial court granted
Myers’ motion in limine, which, among other things, prohibited the State from
referring to the lawnmower that Myers was driving just prior to his arrest as
“stolen.” Id. at 8. Nonetheless, during his opening statement at the ensuing
jury trial, the prosecutor stated as follows:
And then this guy steals [Dunbar’s] truck, drives it through the
back roads, blows the engine up so that it’s stuck on the side of
the road, and then takes off on a riding lawn mower. Now, Mr.
Myers, when he’s apprehended by the police, denied stealing the
truck. He did admit that he’d stolen the lawn tractor. He said that
he’d been walking and walking and walking, and just got tired, so
he walked up into a yard and drove off with the lawnmower.
That’s what he told the police.
Id. at 118 (emphasis added). At the conclusion of that argument, defense
counsel requested a sidebar to object to the prosecutor’s reference to the stolen
lawnmower, and defense counsel moved for a mistrial. The prosecutor
acknowledged the error, but stated that he would introduce testimony that
Myers “said that he took the lawn tractor.” Id. at 119. The trial court stated
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that it wanted to “ponder this a little bit,” and defense counsel proceeded with
his opening argument. Id.
[7] At the conclusion of defense counsel’s opening argument, the trial court
excused the jury, and the following colloquy ensued:
Defense counsel: Your Honor, we had a hearing before trial
started specifically delineating that evidence about the lawn
mower would not be coming in about the word stolen or talking
about where it was returned to, based on the fact that the State
had not actually disclosed the witness who they’ve now identified
as, you know . . . I would ask the Court at this point, based on
the direct knowing and intentional violation of your order to at
least admonish the jury, but I don’t believe it’s enough, I ask for a
mistrial charged to the State.
State: Judge, I apologize for using the word, the magic word
stolen, in the heat of the moment. The fact of the matter is is that
my understanding, and I guess I was wrong, but my
understanding of the Court’s ruling was that we weren’t
supposed to go into anything that suggested a particular victim
that the lawnmower was stolen from. It was a bad choice of
words, I’ll concede that. But, I didn’t talk about how close it was
to where the vehicle was ditched, literally ditched. And my
reference to it being stolen was simply a paraphrasing from what
Mr. Myers actually said at the scene. But it was a poor choice of
words, and I apologize. If the Court wants to admonish the
jurors, that there is not any evidence and will not be any evidence
that the thing was actually stolen, I’m fine with that.
Court: Well this is frustrating. We have a pretrial motion, you
know, this very same day, we have a discussion, you get your say
so, didn’t really contest about using that word, and then you turn
right around and do it. And you can say it’s the heat of the
moment, but you’re a seasoned, decades professional at this.
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And we shouldn’t be having these kinds of things pop up because
you get riled up. You know. You ought to be the cool hand
Luke in the room on all of this at this point in time. I don’t think
it rises to the level of a mistrial. I’m curious what you do to
admonish the jury without getting into the Streisand effect of
pulling it out at this point. In some ways, it’s not that big of deal.
I’m going to find an admonishment that I think works and we’ll
present that to the jury before the commencement of evidence.
The Motion for a Mistrial is denied. I don’t think that given the
fact the evidence is going to be that he’s going to be described as
stating that he took it out of someone’s yard, I think the event is
part of the res gestae of the case. Characterizing and highlighting
it as yet another crime that was committed is improper. And I
don’t think that it rises to the level of a mistrial. But the State is
warned that you need to be very factual about what happened,
rather than characterizing that act when you can be talking about
the charged offenses.
State: Understood.
Id. at 122-24. Then, before the State presented its first witness, the following
colloquy occurred:
Court: I have provided the copy of the admonishment that I
intend to give to the jury to both sides. Without waiving your
objection, are you requesting any changes to that?
Defense counsel: Judge, I have no improvements to offer to it.
Court: Okay. Do you wish to renew your Motion?
Defense counsel: We do. I have to object to it in the grounds as
not sufficient at this point. I just . . . I don’t think this bell can be
unrung. It’s loud and clear, Liberty Bell ringing out from
Philadelphia, so . . . .
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Court: Well, I think the bell was already rung, because the
evidence of this was going to going to come in as part of the res
gestae of the case. I don’t appreciate the State highlighting it to
the extent one could then argue that it’s creating evidence of
another crime or wrong with the inference being that if one thing
was stolen, another thing must have been. But, to me, the
problem is the State highlighting it, and that was a very minor
describing what it was in layman’s terms. I think the instruction
is cured of . . . sufficient that a Jury can disregard the forbidden
inference, so . . . .
Defense counsel: I just move . . . renew the Motion for a
Mistrial, or alternatively move to continue.
Court: All right, well, those will both be denied. I don’t see any
benefit to the continuance at this point. We’re now to the
evidentiary portion of the trial. Before that commences, the
Court would like to admonish the Jury as follows:
[T]he State of Indiana, in its opening statement, referred to the
defendant as having stolen a lawnmower described in his
possession at the time that he encountered the sheriff’s deputy.
This infers a legal conclusion that does not and will not exist
in this case. While the evidence regarding the defendant’s
actions and statements will be a part of this case for your
consideration, you may not speculate as to the possible existence
of unpresented surrounding facts, or the possibility of other
uncharged and unproven allegations. You may not rely on or
consider this possibility in any way in determining whether the
State has proven the crimes charged in this case.
Id. at 125-27.
[8] At the conclusion of trial, the jury found Myers guilty of burglary, as a Level 4
felony; resisting law enforcement, as a Level 6 felony; and resisting law
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enforcement, as a Class A misdemeanor. The jury acquitted Myers of auto
theft. The trial court entered judgment of conviction accordingly and sentenced
Myers to an aggregate sentence of eight years executed. This appeal ensued.
Discussion and Decision
Issue One: Mistrial
[9] Myers first contends that the trial court abused its discretion when it denied his
motion for a mistrial. “Because the trial court is best positioned to assess the
circumstances of an error and its probable impact on the jury, ‘[t]he denial of a
mistrial lies within the sound discretion of the trial court,’ and this Court
reviews only for abuse of that discretion.” Lucio v. State, 907 N.E.2d 1008, 1010
(Ind. 2009) (quoting Gill v. State, 730 N.E.2d 709, 712 (Ind. 2000)). “The
overriding concern is whether the defendant ‘was so prejudiced that he was
placed in a position of grave peril.’” Id. (quoting Gill, 730 N.E.2d at 712)). The
gravity of peril is measured by the probable persuasive effect of the misconduct
on the jury’s decision, not on the degree of impropriety of the conduct. Coleman
v. State, 750 N.E.2d 370, 374 (Ind. 2001) (internal citations omitted).
[10] Myers maintains that the prosecutor committed prosecutorial misconduct when
he referred to the “stolen” lawnmower during his opening argument. Myers
asserts that, “[n]ot only did this violate the verbal limine order, but it was a
blatant violation of Ind. Evidence Rule 404(b).” Appellant’s Br. at 12. Myers is
correct that the trial court had granted the motion in limine and prohibited the
prosecutor from describing the lawnmower as “stolen.” Tr. Vol. II at 8. But
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the court did not prohibit the prosecutor from presenting Deputy Long’s
testimony that Myers told the deputies that he “took a lawnmower from a yard
because he was tired of walking.” Id. at 172 (emphasis added). Indeed, Myers
made no objection either to that testimony from Deputy Long or to Deputy
Stuart’s testimony that Myers “took” the lawnmower from someone’s yard. Id.
at 207. Given that the clear inference of the deputies’ testimony is that Myers
stole the lawnmower, Myers cannot show that the prosecutor’s limine violation
placed him in a position of grave peril. As the trial court observed when it
denied the mistrial motion, “I don’t think that given the fact the evidence is
going to be that he’s going to be described as stating that he took [the
lawnmower] out of someone’s yard, I think the event is part of the res gestae of
the case.” Id. at 123.
[11] Further, it is well settled that, “where the trial court adequately admonishes the
jury, such admonishment is presumed to cure any error that may have
occurred.” Johnson v. State, 901 N.E.2d 1168, 1173 (Ind. Ct. App. 2009). Here,
following defense counsel’s opening argument, the trial court admonished the
jury as follows:
[T]he State of Indiana, in its opening statement, referred to the
defendant as having stolen a lawnmower described in his
possession at the time that he encountered the sheriff’s deputy.
This infers a legal conclusion that does not and will not exist in
this case. While the evidence regarding the defendant’s actions
and statements will be a part of this case for your consideration,
you may not speculate as to the possible existence of unpresented
surrounding facts, or the possibility of other uncharged and
unproven allegations. You may not rely on or consider this
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possibility in any way in determining whether the State has
proven the crimes charged in this case.
Tr. Vol. II at 126-27. And, both during voir dire and in the preliminary
instructions, the trial court instructed the jury that arguments made by counsel
are not evidence. We hold that the trial court did not abuse its discretion when
it denied Myers’ motion for a mistrial.
Issue Two: Verdicts
[12] Myers next contends that, because the jury acquitted him of auto theft but
convicted him of burglary, the verdicts are fatally inconsistent. In particular,
Myers points out that, in order to prove burglary, the State was required to
prove that Myers broke and entered the Dunbars’ garage with the “intent to
commit a felony or theft in it” by “exerting unauthorized control over the motor
vehicle of Timothy Dunbar[.]” Appellant’s Br. at 16. Myers maintains that the
inconsistent verdicts indicate that “the jury disregarded or misunderstood their
instruction as it relates to” the burglary charge. Id. at 18.
[13] However, as the State correctly points out, our Supreme Court has held that
“[j]ury verdicts in criminal cases are not subject to appellate review on grounds
that they are inconsistent, contradictory, or irreconcilable.” Beattie v. State, 924
N.E.2d 643, 649 (Ind. 2010) (emphasis added). In Beattie, a jury acquitted the
defendant of possession of cocaine, but convicted her of possession of “the
same cocaine” within 1,000 feet of a family housing complex. Id. at 644. On
appeal, the defendant argued that her acquittal rendered her conviction based
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on possession of the same cocaine “extremely contradictory.” Id. at 645. But
the Court explained as follows:
When a jury returns logically inconsistent verdicts, such a result
could mean that it misunderstood its instructions. But it is more
likely that the jury chose to exercise lenity, refusing to find the
defendant guilty of one or more additionally charged offenses,
even if such charges were adequately proven by the evidence.
Such right of a criminal jury to decline to convict is well
recognized.
Id. at 648. And the Court concluded,
even if we assume, arguendo, that the defendant’s jury verdicts of
not guilty of the lesser-included offense of Possession of Cocaine
and guilty of Possession of Cocaine Within 1,000 Feet of a
Family Housing Complex were inherently inconsistent, such
verdicts are permissible and are insulated from review on this
ground.
Id. at 649. Likewise here, assuming that the jury verdicts acquitting Myers of
auto theft but convicting him of burglary were inherently inconsistent, they are
not reviewable on appeal. Id.
[14] Further, to the extent Myers asks us to “consider the inconsistency [here] as a
limited exception to the Beattie holding,” we decline his invitation. Appellant’s
Br. at 18. In support of that request, Myers cites to Marsh v. State, 393 N.E.2d
757 (Ind. 1979), and Owsley v. State, 769 N.E.2d 181 (Ind. Ct. App. 2002), trans.
denied. But in Beattie, the Court expressly “overrule[d] the standard advanced in
Marsh and disapprove[d] of Owsley.” 924 N.E.2d at 649.
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Issue Three: Sufficiency of the Evidence
[15] Finally, Myers contends that the State presented insufficient evidence to
support his burglary conviction. Our standard of review on a claim of
insufficient evidence is well settled:
For a sufficiency of the evidence claim, we look only at the
probative evidence and reasonable inferences supporting the
verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
not assess the credibility of witnesses or reweigh the evidence. Id.
We will affirm the conviction unless no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable
doubt. Id.
Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[16] To prove that Myers committed burglary, as a Level 4 felony, the State was
required to show that Myers broke and entered Dunbar’s dwelling with the
intent to commit a felony therein. See Ind. Code § 35-43-2-1 (2018). Myers
maintains that, while he was in possession of “relatively recent[ly]” stolen
property, namely the gas cap and set of keys, there was no evidence that he
broke into the garage. Appellant’s Br. at 20. In particular, Myers asserts that
“[t]here was no admitted evidence of an observation made that the [garage]
door had been closed the night before,” and there was otherwise no “visible
signs of a break” into the garage. Id. at 18, 20. Myers also avers that there is no
evidence that he was the person who stole the items from the garage.
[17] First, it is well settled that, “[u]sing even the slightest force to gain unauthorized
entry satisfies the breaking element of the crime” of burglary. Davis v. State, 770
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N.E.2d 319, 322 (Ind. 2002). “For example, opening an unlocked door or
pushing a door that is slightly ajar constitutes a breaking.” Id. Here, the State
presented evidence that Dunbar kept the garage door to his house closed every
night and that, at the time of the burglary, a side door to the garage was closed,
but may not have been locked. We hold that the State presented sufficient
evidence to prove the breaking element of the burglary conviction.
[18] Second, to the extent Myers contends that he was not the person who
burglarized Dunbar’s garage, that contention amounts to a request that we
reweigh the evidence, which we cannot do. Our Supreme Court has held that,
while
the mere unexplained possession of recently stolen property
standing alone does not automatically support a conviction for
theft[,] . . . such possession is to be considered along with the
other evidence in a case, such as how recent or distant in time
was the possession from the moment the item was stolen, and
what are the circumstances of the possession (say, possessing
right next door as opposed to many miles away).”
Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010). Further, it is well settled
that evidence of flight may be considered as circumstantial evidence of
consciousness of guilt. Brown v. State, 563 N.E.2d 103, 107 (Ind. 1990).
[19] Here, the State presented evidence that someone broke into Dunbar’s garage at
approximately 5:00 a.m., and at approximately 6:20 a.m., Deputy Stuart
initiated a traffic stop of Myers in the vicinity of both Dunbar’s house and the
abandoned truck. Myers did not stop, but proceeded for another mile before
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getting off of the lawnmower and leading Deputy Stuart on a foot chase. Once
Myers was apprehended, Deputy Long found a gas cap from Dunbar’s truck
and a set of keys belonging to Dunbar in Myers’ pocket. We hold that the State
presented sufficient evidence to support Myers’ burglary conviction.
[20] Affirmed.
Mathias, J., and Barnes, J., concur.
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