Robert Ryan Fleming v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 16 2018, 10:14 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
Mark K. Leeman Curtis T. Hill, Jr.
Leeman Law Office Attorney General of Indiana
Logansport, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Ryan Fleming, July 16, 2018
Appellant-Defendant, Court of Appeals Case No.
09A05-1712-CR-2813
v. Appeal from the Cass Superior
Court
State of Indiana, The Honorable Richard A.
Appellee-Plaintiff. Maughmer, Judge
Trial Court Cause No.
09D02-1702-F5-16
Bailey, Judge.
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Case Summary
[1] Robert Ryan Fleming (“Fleming”) appeals his conviction for Battery Resulting
in Bodily Injury to a Public Safety Officer, a Level 5 felony,1 and his
adjudication as a habitual offender.2 We affirm.
Issues
[2] Fleming presents three issues for review, which we have restated as follows:
I. Whether Fleming was entitled to a declaration of a
mistrial and a new trial for juror misconduct through
inattentiveness;
II. Whether Fleming was entitled to a mistrial for
prosecutorial misconduct; and
III. Whether sufficient evidence supports his battery
conviction.
Facts and Procedural History
[3] On February 8, 2017, Fleming was being booked into the Cass County Jail 3 and
was asked to provide a medical history. His responses to certain questions
caused Shift Supervisor Steve Taylor (“Officer Taylor”) to treat Fleming as a
1
Ind. Code § 35-42-2-1(c)(1); (g)(5)(A).
2
I.C. § 35-50-2-8.
3
The record does not reveal the reason for Fleming’s incarceration.
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suicide risk. Officer Jeffrey Harness (“Officer Harness”) took Fleming by the
arm and escorted him to a padded cell.
[4] Once inside the cell, Fleming was told to remove his clothing and hand the
items back through a food slot. Rather than remove his clothing, Fleming flung
his arms and insisted that he was not suicidal. Officer Harness and other
officers entered the padded cell to “get compliance” from Fleming. (Tr. at 86.)
Fleming grabbed Officer Taylor’s face. Officer Todd Cain (“Officer Cain”)
deployed his taser and Fleming was taken to the ground and subdued. Officer
Harness observed blood on Officer Taylor’s face; he had been scratched.
[5] On February 15, 2017, the State charged Fleming with Battery Resulting in
Bodily Injury to a Public Safety Officer. On April 17, 2017, the State alleged
Fleming to be a habitual offender. In bifurcated proceedings, a jury found
Fleming guilty of the charge against him and adjudicated him a habitual
offender. On November 6, 2017, the trial court imposed a sentence of three
years imprisonment, enhanced by six years due to Fleming’s status as a habitual
offender. Fleming now appeals.
Discussion and Decision
Motion for Mistrial – Juror Inattentiveness
[6] The Cass County Jail was equipped with recording equipment that captured the
events inside the padded cell. During his testimony, Officer Taylor described
events based upon his recollection and with reference to the recording. During
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the testimony, and apparently as the recording was playing, defense counsel
brought it to the trial court’s attention that there “may [be] a sleeping juror.”
(Tr. at 125.) The matter was summarily resolved with defense counsel saying,
“I think we’re fine” and the trial court advising the jurors to stand up if they
desired. (Tr. at 125.)
[7] When the evidentiary part of the guilt phase of trial concluded, the jurors retired
to deliberate. During deliberations, the jury notified the trial court that it
wished to review the jail recording. The State and the defense agreed on what
would be played for the jury and the jury was brought back into open court
where the recording was played. The jury returned its verdict and the matter
proceeded to the habitual offender phase.
[8] The trial court read instructions pertinent to the habitual offender phase and
asked the parties if there were outstanding matters to be addressed. Defense
counsel responded that he would like to make a “belated motion for a mistrial”
based upon his having received post-verdict information that the episode of
juror sleeping had not been an isolated event. (Tr. at 168.) Fleming was invited
to present testimony in support of the allegation of juror inattentiveness and he
called as a witness his mother, Carol Ramirez (“Ramirez”). Ramirez, who had
been present during the entire guilt phase, reported that a juror fell asleep three
times and only the first time had been mentioned in open court. She estimated
that the juror napped for four minutes, two during the first episode and one in
each of the other episodes. She was uncertain what was being presented during
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the first nap but recalled that the jury was “looking at the video” during the
second and third naps. (Tr. at 175.)
[9] The trial court denied the motion for a mistrial, finding the motion to be
untimely and that there had been no showing of prejudice to Fleming.
Generally, the trial court’s denial of a motion for mistrial is to be reviewed by
application of the following considerations:
Because the trial court is in the best position to evaluate the
relevant circumstances of an event and its impact on the jury, the
trial court’s determination of whether to grant a mistrial is
afforded great deference on appeal. To succeed on appeal from
the denial of a motion for mistrial, the appellant must
demonstrate the statement or conduct in question was so
prejudicial and inflammatory that he was placed in a position of
grave peril to which he should not have been subjected. Mistrial
is an extreme remedy invoked only when no other measure can
rectify the perilous situation. We determine the gravity of the
peril based upon the probable persuasive effect of the misconduct
on the jury’s decision rather than upon the degree of impropriety
of the conduct. Moreover, reversible error is seldom found when
the trial court has admonished the jury to disregard a statement
made during the proceedings.
Warren v. State, 757 N.E.2d 995, 998 (Ind. 2001). Here, we are concerned not
with a statement or conduct improperly introduced to the jury but rather with
“juror misconduct through inattentiveness.” Id. at 1001. Fleming argues that
he was “denied his right to fair trial by an impartial jury,” and that the
“structural error” is not “subject to harmless error review.” Appellant’s Brief at
11.
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[10] In Warren, the appellant likewise contended that a sleeping juror violated his
rights to a fair trial and trial by jury. 757 N.E.2d at 1001. After his conviction,
Warren made a motion to correct error, supported by an affidavit from one
juror averring that she had observed another juror fall asleep on multiple
occasions and had nudged him with her arm or knee to wake him. The trial
court denied the motion to correct error and Warren appealed. See id.
[11] Our Indiana Supreme Court observed, “[t]o prevail on a claim of juror
misconduct through inattentiveness, the defendant must demonstrate that the
juror was actually inattentive and that the juror’s inattention resulted in actual
prejudice.” Id. The trial court had made certain findings – that no specific
times or length of sleep were indicated, another juror awakened the sleeper, the
court had noticed inattentiveness only once during a bench conference, defense
counsel and the defendant had not noticed inattentiveness, and the issue had
not been raised during trial. Id. The Court determined that these findings were
supported by the record, and found no abuse of discretion in the denial of the
motion to correct error. Id.
[12] Here, the juror was alleged to have slept for four minutes, a relatively brief time.
However, it was also alleged that the juror slept for two minutes during which a
material and potentially exculpatory recording was played. The trial court did
not make a factual finding as to whether the juror slept; rather, the trial court
rested its ruling upon untimeliness and lack of prejudice.
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[13] Fleming insists that it is “especially unfair” to require him to prove prejudice
because courts are unable to look into the minds of jurors. Appellant’s Brief at
13. But it was not necessary for the trial court to do so in this case. During
deliberations, the jury asked to view the recording a second time and the jurors
were brought into open court to observe the relevant portion as agreed upon by
both parties. This had been accomplished before the trial court was asked to
grant a mistrial, and Fleming did not contend that the juror was inattentive or
sleeping during this second showing. In the absence of a showing of prejudice,
Fleming cannot prevail on his claim that juror misconduct by inattentiveness
entitled him to a new trial.
Motion for Mistrial – Prosecutorial Misconduct
[14] During the prosecutor’s opening statement in the habitual offender phase, the
following commentary and response ensued:
Prosecutor: Now, you may have heard of three strikes and
you’re out laws. I want to tell you right now that that’s not the
law in the State of Indiana. Jurors are sometimes afraid that if
they convict somebody of being a habitual offender, that means
they’re going to go to prison for life, life without parole or
something like that. That’s not the case. It changes the range of
potential sentence, but life without parole or life in prison is not
something we’re talking about.
Defense Counsel: Your Honor, I’m going to object to this.
Court: Sustained, sustained.
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(Tr. at 183.) The prosecutor then advised the jury that sentencing was the
court’s task and continued opening argument to its conclusion. Thereafter,
defense counsel moved for a mistrial, arguing:
Because here’s the thing. I don’t want to be Mr. Cliché man
here, but we have the whole un-ring the bell thing. Basically Mr.
Schafer told the jury that “hey, don’t worry, you’re not sending
away this guy for life” or strongly implied that when you’re
making this deliberation and in spite of the objection sustaining
[sic], you can’t undo that statement and I simply waited for him
to finish his closing and then approached the bench before we
started presenting evidence so I could put that on the record. I, I
wasn’t trying to be delaying. But I just, I just think that I don’t
[know] how in the world you can get around even with a limiting
instruction once you, once the jury hears and perceives “it’s
okay. You’re not really throwing this guy away lock and key.
There’s a light at the end of the tunnel.” That’s, that’s a huge
concern for us, Your Honor.
[15] (Tr. at 212.) The prosecutor argued that “three strikes and you’re out” was a
legitimate juror concern. (Tr. at 212.) The trial court denied the motion for a
mistrial.
[16] On appeal, Fleming argues that the prosecutor committed misconduct that
placed him in grave peril by “inappropriately interject[ing] the issue of duration
of punishment” to encourage the jury to adjudicate Fleming a habitual
offender. Appellant’s Brief at 16. He claims that he was deprived of the
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opportunity to argue that a habitual offender adjudication would be unduly
harsh in hopes that the jury would engage in jury nullification.4
[17] As previously observed, “to succeed on appeal from the denial of a motion for
mistrial, the appellant must demonstrate the statement or conduct in question
was so prejudicial and inflammatory that he was placed in a position of grave
peril to which he should not have been subjected.” Warren, 757 N.E.2d at 998.
In reviewing a properly preserved claim of prosecutorial misconduct, the Court
must determine: (1) whether the prosecutor engaged in misconduct and (2)
whether the misconduct, under all the circumstances, placed the defendant in a
position of grave peril to which he or she should not have been subjected.
Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002).
[18] The State points out that Fleming did not identify to the trial court any grounds
for his contemporaneous objection and belatedly moved for a mistrial; he then
presented argument but made no request for an admonition to the jury. “A
party’s failure to present a contemporaneous trial objection asserting
prosecutorial misconduct preludes appellate review of the claim.” Id. The
default may be avoided if the prosecutorial misconduct amounts to
fundamental error; as such, the appellant must establish both misconduct and
fundamental error. Id. at 817-18. For prosecutorial misconduct to constitute
4
Jury nullification has been described as “power to acquit a defendant despite evidence and judicial
instructions to the contrary.” Holden v. State, 788 N.E.2d 1253, 1254 (Ind. 2003). The Court clarified that
power to ignore judicial instructions is not equivalent to a right to disregard the law. Id.Court of Appeals of Indiana | Memorandum Decision 09A05-1712-CR-2813 | July 16, 2018 Page 9 of 12
fundamental error, it must “make a fair trial impossible or constitute clearly
blatant violations of basic and elementary principles of due process and present
an undeniable and substantial potential for harm.” Id. at 817.
[19] Here, the prosecutor’s comments, even if considered misconduct, do not
amount to fundamental error. Advising the jury that Fleming would not spend
life in prison upon adjudication as a habitual offender does not rise to the level
of egregiousness at issue in the cases cited by Fleming. See Dailey v. State, 406
N.E.2d 1172, 1174 (Ind. 1980) (argument presented that thirty-to-sixty years
was effectively only fifteen-to-thirty years with good time credit); Feggins v.
State, 359 N.E.2d 517, 523 (1977) (recognizing danger to be avoided is that the
jury, informed of the possibility of factors that could diminish the defendant’s
sentence, will convict of a more serious offense than that which they actually
believe him to be guilty of, in order to provide a penalty which they consider
more appropriate); and Rowe v. State, 237 N.E.2d 576 (Ind. 1968) (prosecutor
argued to the jury that if the defendant were convicted of manslaughter instead
of murder, he could be paroled in two years).
[20] Finally, the prosecutor’s commentary did not preclude Fleming from arguing
that, pursuant to the Indiana Constitution, Article 1, Section 19, jurors are
permitted to determine the law as well as the facts. The trial court instructed
the jury, in a preliminary instruction and a final instruction for the habitual
offender phase, that the jury was to determine both the law and the facts,
according to the Indiana Constitution. Fleming has not demonstrated his
entitlement to a mistrial.
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Sufficiency of the Evidence
[21] When reviewing a claim of insufficient evidence, we neither reweigh the
evidence nor assess the credibility of witnesses. Bell v. State, 31 N.E.3d 495, 499
(Ind. 2015). We will affirm a conviction if there is probative evidence and
reasonable inferences drawn therefrom from which a reasonable fact-finder
could have found the defendant guilty beyond a reasonable doubt. Id.[22] To convict Fleming of Battery, as a Level 5 felony, as charged, the State was
required to establish beyond a reasonable doubt that Fleming knowingly or
intentionally touched Officer Taylor in a rude, insolent, or angry manner and
the offense resulted in bodily injury to Officer Taylor while he was engaged in
his official duties. I.C. § 35-42-2-1(c)(1); (g)(5)(A). Fleming claims that the
State failed to establish that he acted with the requisite mens rea, knowingly or
intentionally.
[23] Indiana Code Section 35-41-2-2 provides in relevant part:
(a) A person engages in conduct “intentionally” if, when he
engages in the conduct, it is his conscious objective to do so.
(b) A person engages in conduct “knowingly” if, when he
engages in the conduct, he is aware of a high probability that
he is doing so.
(c) ***
(d) Unless the statute defining the offense provides otherwise, if a
kind of culpability is required from commission of an offense,
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it is required with respect to every material element of the
prohibited conduct.
[24] Fleming directs our attention to the recording made inside the padded cell,
which he describes as irrefutable evidence that the scratching of Officer Taylor’s
face occurred as Fleming’s muscles tensed in response to the taser. The State
responds that Fleming need only have intended the touching and not the
resultant injury. We agree with the State. “The culpability requirement [of I.C.
§ 35-42-2-1] applies to the conduct prohibited by the statute, not to the result of
that conduct.” Lowden v. State, 51 N.E.3d 1220, 1223 (Ind. Ct. App. 2016).
[25] The conduct prohibited by the battery statute is touching in a rude, insolent, or
angry manner. Officer Cain testified that Fleming was agitated and grabbed
Officer Taylor’s face before Officer Cain warned “taser, taser” and deployed the
taser. (Tr. at 98.) Thus, the evidence favorable to the judgment is that Fleming
touched Officer Taylor before the taser was employed. Sufficient evidence
supports Fleming’s conviction.
Conclusion
[26] Fleming did not demonstrate his entitlement to a mistrial. Sufficient evidence
supports his conviction of Battery Resulting in Bodily Injury to a Public Safety
Officer.
[27] Affirmed.
Crone, J., and Brown, J., concur.
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