Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Sep 16 2014, 9:00 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN T. WILSON GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TRAVIS BOOKER, )
)
Appellant-Defendant, )
)
vs. ) No. 48A05-1312-CR-623
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48C03-1111-FB-2039
September 16, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Travis Booker (“Booker”) challenges his conviction and sentence for Robbery, as a
Class B felony.1 We affirm.
Issues
Booker raises three issues for review, which we restate as:
I. Whether the trial court abused its discretion when it denied Booker’s request to
replace a juror with an alternate;
II. Whether the trial court abused its discretion when it excluded evidence related
to a witness’s drug use; and
III. Whether his sentence is inappropriate.
Facts and Procedural History
On July 5, 2011, a friend of Marcus Hayes-Patterson (“Hayes-Patterson”) drove
Booker and Hayes-Patterson to a Key Bank in Anderson, Indiana. Booker and Hayes-
Patterson entered the bank, each wearing a mask and armed with a handgun. Hayes-
Patterson also carried a police radio scanner. The two men drew their weapons and ordered
the bank employees and customers to get down on the ground. Booker jumped behind the
teller counter. Meanwhile, the bank manager pushed the alarm button. After Hayes-
Patterson heard the robbery reports on the police scanner, he and Booker exited the bank with
over $5,000 in cash. They attempted to flee using a getaway car Hayes-Patterson had parked
behind the bank earlier that morning. However, Hayes-Patterson had forgotten the keys.
1
Ind. Code § 35-42-5-1 (2011). In light of the significant revisions to the Indiana Code effective July 1, 2014,
all statutory citations to substantive criminal provisions refer to the versions of these statutes effective at the
time of the trial-level proceedings.
2
Booker and Hayes-Patterson instead fled on foot to the nearby home of Kylie
Stephenson (“Stephenson”), a friend of Hayes-Patterson. They told her they had been in a
fight and needed a place to wait for a ride. Hayes-Patterson called his friend Antwoine
Kimbrough, who picked up Hayes-Patterson and Booker from Stephenson’s home and took
them to Booker’s girlfriend’s house. Booker and Hayes-Patterson divided equally the
robbery proceeds.
A police investigation of the robbery eventually led to Booker’s arrest. On November
4, 2011, Booker was charged with Robbery, as a Class B felony. A jury trial was held on
October 29 and 30, 2013.
During a recess on the first day, juror Lisa Moore (“Moore”) spoke with one of the
State’s witnesses, Johnathon Terhune (“Terhune”), outside of the courtroom while Terhune
was waiting to testify. Terhune managed the McDonald’s restaurant at which Booker
worked in 2011. Moore was acquainted with Terhune because he was her husband’s boss at
the time of trial. Moore began talking with Terhune, but when she realized that he was there
to testify, she terminated the conversation. Outside the presence of the other jurors, the trial
court interrogated Moore about the relationship and conversation and whether these
interactions would affect her ability to be fair and impartial. Moore said they would not.
Booker then requested that Moore be replaced by an alternate juror. The trial court denied
his request.
During the State’s case-in-chief, Stephenson testified on direct examination that she
used drugs and drank alcohol on July 4, 2011, the night before the robbery. On cross
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examination, outside the presence of the jury, defense counsel made an offer of proof
regarding the specific drug paraphernalia recovered by the police at Stephenson’s home—
including a water bong, glass pipe, pills, white powder residue, and a small scale—and that
the specific drug Stephenson used that night was marijuana. The trial court did not admit the
evidence.
Booker was convicted on October 30, 2013. At a hearing on November 18, 2013, the
trial court sentenced Booker to twenty years imprisonment in the Indiana Department of
Correction. He now appeals his conviction and sentence.
Discussion and Decision
Juror Contact with State’s Witness
Article 1, Section 13 of the Indiana Constitution guarantees a defendant’s right to an
impartial jury. May v. State, 716 N.E.2d 419, 421 (Ind. 1999). A biased juror must be
dismissed. Id. Indiana Trial Rule 47(B) provides in part that “[a]lternate jurors in the order
in which they are called shall replace jurors who, prior to the time the jury returns its verdict,
become or are found to be unable or disqualified to perform their duties.” Ind. Trial Rule
47(B). Trial courts have significant leeway under Trial Rule 47(B) in determining whether to
replace a juror with an alternate. Jervis v. State, 679 N.E.2d 875, 881 (Ind. 1997). Trial
courts see jurors firsthand and are in a much better position to assess a juror’s ability to serve
without bias or intimidation and decide the case according to law. Id. at 881-82. A trial
court’s decision to replace a juror with an alternate is reviewed for an abuse of discretion.
Barnes v. State, 693 N.E.2d 520, 523 (Ind. 1998). “An abuse of discretion occurs only if the
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decision placed the defendant in substantial peril.” Harris v. State, 659 N.E.2d 522, 525 (Ind.
1995).
Booker argues that the trial court abused its discretion when it denied his request to
replace Moore with an alternate juror. The timely disclosure of a juror’s casual relationship
with a witness, coupled with an assertion that the juror will remain impartial, adequately
protects a defendant’s right to an impartial jury. Spears v. State, 811 N.E.2d 485, 489 (Ind.
Ct. App. 2004) (citing McCants v. State, 686 N.E.2d 1281, 1285 (Ind. 1997)). This is the
case here, where Moore and Terhune knew each other casually because he was her husband’s
boss. The court interrogated Moore outside the presence of the other jurors regarding their
relationship. Moore testified that she would judge Terhune as any other witness and that her
association with him would not inhibit her ability to be fair and impartial.
Booker further argues that “the prejudice resulting from [Moore’s] association with
[Terhune] may be impossible to remove.” (Appellant’s Br. at 5). He cites May, which held
that “juror conduct with witnesses occurring contemporaneous to the trial proceeding are of a
different character and more directly implicate the public’s trust and confidence in our
criminal justice system.” 716 N.E.2d at 422. “Under certain circumstances, the extra-
judicial juror conduct is so fundamentally harmful to the appearance of the fair and impartial
administration of justice, it will be considered ‘prima facie prejudicial’ to the defendant,
irrespective of whether the communication concerned a matter pending before the jury.” Id.
(citations omitted).
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In May, a material State’s witness, the arresting police officer, struck up a
conversation with a juror during a recess that occurred in the middle of the witness’s cross-
examination. Id. The conversation culminated in the juror inviting the witness to the juror’s
home the weekend after trial. Id. at 423. The witness did not disclose to the court the full
extent of the conversation, which was only discovered after defense counsel questioned the
juror. Id. at 422. The trial court did not dismiss the juror, but our supreme court held that the
juror displayed such comradery and potential partiality that he should have been replaced. Id.
at 422-23.
Here, unlike the facts in May, Terhune was a minor witness who testified only that
Booker suddenly quit employment on July 5, 2011. Moore initiated a brief conversation with
Terhune before she knew he was a witness. The trial court found that Moore “terminated the
conversation when she realized that he might’ve been up here [to testify].” (Tr. at 192.) The
conversation was immediately disclosed. After the court interrogated Moore and was
satisfied that she could remain impartial, the court admonished her not to speak to the other
jurors about the incident. Thus, we cannot say Moore’s incidental contact with Terhune rises
to the level of prima facie prejudice. Accordingly, the trial court did not abuse its discretion
in declining to replace Moore with an alternate juror.
Exclusion of Evidence
Booker also argues that the trial court abused its discretion by excluding evidence
related to Stephenson’s drug use that Booker sought to introduce on cross-examination. The
right to cross-examine witnesses is guaranteed by both the Sixth Amendment to the United
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States Constitution and Article 1, Section 13 of the Indiana Constitution. Jenkins v. State,
729 N.E.2d 147, 148 (Ind. 2000). This right, however, is subject to reasonable limitations
placed at the discretion of the trial court. Id. (citing McQuay v. State, 566 N.E.2d 542, 543
(Ind. 1991)).
Pursuant to Indiana Evidence Rule 401, evidence is relevant if: (a) it has any tendency
to make a fact more or less probable than it would be without the evidence, and (b) the fact is
of consequence in determining the action. Evid. R. 401. Relevant evidence is generally
admissible. Evid. R. 402. However, a trial court may exclude relevant evidence “if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.” Evid. R. 403.
The standard for relevancy under Evidence Rule 401 is liberal, and we review a trial
court’s ruling as to relevance for an abuse of discretion. Konopasek v. State, 946 N.E.2d 23,
27 (Ind. 2011). An abuse of discretion occurs where the court’s decision is clearly against
the logic and effect of the facts and circumstances before it. Southern v. State, 878 N.E.2d
315, 321 (Ind. Ct. App. 2007), trans. denied.
The trial court excluded Booker’s proffered evidence of the drug paraphernalia found
in Stephenson’s home and Stephenson’s marijuana use. Booker argues that this evidence
was relevant because it pertains to Stephenson’s ability to perceive and recall the events to
which she testified. Booker also contends that the jury’s ability to assess Stephenson’s
credibility was impaired by the court’s exclusion of the evidence. Although our supreme
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court has consistently upheld trial court decisions excluding evidence of a witness’s past drug
use as irrelevant, Jenkins, 729 N.E.2d at 149, Booker correctly asserts that a witness’s prior
drug use “may be relevant as to (1) the witness’[s] ability to recall the events on the date in
question, (2) the witness’[s] inability to relate the facts at trial, or (3) the witness’[s] mental
capacity.” West v. State, 755 N.E.2d 173, 185 (Ind. 2001).
In this case, the jury heard Stephenson’s testimony on direct examination that she used
drugs and was drinking the night before the robbery. Stephenson also testified that her drug
use did not affect her ability to recognize and identify Booker and Hayes-Patterson because
she was “completely sober” when they came to her home after the robbery. (Tr. at 217.)
Absent Booker’s proffered evidence, the jury was still able to assess Stephenson’s credibility
in light of her admitted drug use. Therefore, the trial court did not abuse its discretion in
excluding the evidence as unfairly prejudicial, misleading to the jury, or needlessly
cumulative. See Evid. R. 403.
Sentence
Article 7, Section 6 of the Indiana Constitution grants this Court authority to
independently review and revise a sentence imposed by the trial court. Indiana Appellate
Rule 7(B) provides: “The Court may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Ind. Appellate Rule
7(B). The analysis is not whether another sentence is more appropriate, but whether the
sentence imposed is inappropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). The
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principal role of our review is to leaven the outliers, and our review is very deferential to the
trial court. Id. The defendant bears the burden of persuading the appellate court that his or
her sentence is inappropriate. Id.
Booker was convicted of a Class B felony, and sentenced to the maximum term of
twenty years imprisonment. I.C. § 35-50-2-5 (2011). Booker contends that his sentence was
inappropriate because it was disproportionate to Hayes-Patterson’s ten year sentence imposed
pursuant to a plea agreement. Specifically, Booker argues his sentence is comparatively
inappropriate because Hayes-Patterson was “more culpable” than he. (Appellant’s Br. at 10).
“When a defendant proceeds to trial and his accomplice pleads guilty, ‘the sentences need not
be identical’ and ‘there is no requirement of consistency.’” Williams v. State, 631 N.E.2d
485, 488 (Ind. 1994) (quoting Morgan v. State, 419 N.E.2d 964, 969 (Ind. 1981)). The fact
that Hayes-Patterson received a lesser sentence for the same crime pursuant to a plea
agreement does not bear on the appropriateness of Booker’s sentence.
As to the nature of the offense, Booker robbed a bank at gun point while putting bank
employees and customers in fear for their lives. Booker actively participated by jumping
behind the counter and absconding with more than $5,000. Regarding the character of the
offender, Booker has a well-documented criminal history. In his youth, he was on three
occasions adjudicated delinquent of acts that, if committed by an adult, constituted felony
possession of cocaine (once as a Class A felony and once as a Class D felony) and
misdemeanor criminal recklessness. As an adult, Booker has felony convictions for burglary,
theft, robbery, and robbery resulting in bodily injury. In addition to numerous other
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encounters with law enforcement, Booker has violated probation multiple times. In light of
the fact that Booker’s conviction for armed robbery in this case represents his fifth felony
conviction for a theft crime, we cannot say that Booker’s sentence was inappropriate.
Conclusion
We hold that the trial court did not abuse its discretion by declining to replace a juror
with an alternate or by excluding evidence related to a witness’s drug use. We also conclude
that Booker’s sentence is not inappropriate.
Affirmed.
NAJAM, J., and PYLE, J., concur.
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