MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Aug 20 2015, 8:58 am
this Memorandum Decision shall not be
regarded as precedent or cited before 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
Tia R. Brewer Gregory F. Zoeller
Grant County Public Defender Attorney General of Indiana
Marion, Indiana Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Maurice Knight, August 20, 2015
Appellant-Defendant, Court of Appeals Case No.
27A02-1411-CR-816
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Jeffrey D. Todd,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27D01-1407-F6-21
Mathias, Judge.
[1]! Maurice Knight (“Knight”) was convicted in Grant Superior Court of
attempted obstruction of justice as a Level 6 felony and sentenced to two and
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one-half years incarceration. Knight appeals and presents two issues, which we
restate as: (1) whether the trial court erred in denying Knight’s motion to
dismiss because his prosecution was barred by the successive prosecution
statute; and (2) whether the trial court abused its discretion in denying Knight’s
motion for mistrial based on the State’s reference to his prior convictions for
invasion of privacy and intimidation.
[2]! We affirm.
Facts and Procedural History
[3]! As explained in the companion to this case, Knight v. State, No. 27A02-1411-
CR-814 (Ind. Ct. App. 2015), Knight was in a romantic relationship with
Deanna Foreman (“Deanna”). On April 25, 2014, Deanna obtained a
protective order against Knight. Despite this, Knight contacted Deanna on May
18, 2014, by sending her a text message on her phone. He contacted Deanna
again on May 20, 2014, by calling Deanna on her phone. As a result, Knight
was arrested on May 22, 2014, for violating the protective order and charged
with two counts of Class D felony invasion of privacy in Cause No. 27D01-
1405-FD-196 (“Cause No. FD-196”).
[4]! From May 28, 2014 to July 24, 2014, while he was in jail, Knight made
numerous telephone calls to Deanna in which he threatened her. In some of the
calls, Knight urged Deanna not to cooperate with the prosecuting attorneys and
to not appear at his upcoming trial. Specifically, after Deanna told Knight that
she had been subpoenaed to appear at his trial, Knight told her, “if you get me
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sent to prison, I’m going to think about you every day, and I’m going to do
something to you when I get out. I promise you that.” Tr. p. 140. He also told
Deanna, falsely, that she would not be in trouble if she failed to appear as a
witness.
[5]! On July 8, 2014, the State amended the charging information in Cause No. FD-
196 to add twenty-nine counts of Class D felony invasion of privacy and six
counts of Class D felony intimidation. Anticipating that Deanna would not
appear at the trial, the State prepared two charging informations, charging both
Deanna and Knight with obstruction of justice if Deanna failed to appear.
[6]! A bench trial was held in Cause No. FD-196 on July 25, 2014, and Deanna
appeared as a reluctant witness against Knight. At the conclusion of the trial,
the court found Knight guilty of two counts of Class D felony invasion of
privacy and four counts of Class D felony intimidation.
[7]! After Deanna did appear as a witness, the State changed the charging
information against Knight to allege attempted obstruction of justice as a Level 6
felony and filed this information on July 31, 2014, under Cause No. 27D01-
1407-F6-21 (“Cause No. F6-21”).
[8]! On October 8, 2014, prior to trial in Cause No. F6-21, Knight filed a motion to
dismiss alleging that the charges against him were barred by the successive
prosecution statute and the constitutional prohibitions against double jeopardy.
The trial court denied the motion to dismiss. A jury trial was held on October
14, 2014. At trial, Grant County Deputy Sheriff Kristen Sprunger (“Deputy
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Sprunger”) testified regarding the monitoring and recording of Knight’s jail
telephone calls, the preparation of possible charges against Deanna, and
Deanna’s appearance at the trial in Cause No. FD-196. During this testimony,
the prosecuting attorney asked Deputy Sprunger if Knight had been convicted
in Cause No. FD-196. Deputy Sprunger responded that Knight had been
convicted. Knight then requested a mistrial. Following a hearing outside the
presence of the jury, the trial court denied the motion for a mistrial, but did
admonish the jury as follows:
Ladies and Gentlemen, this witness was asked if the Defendant
was found guilty at a July 25, 2014, trial. I instruct you to
disregard her answer to that question. The verdict in the July 25,
2014, trial is, is of no relevance in the case now before you. The
verdict in the July 25 trial is not to be discussed or mentioned
during recess or in deliberations. It must have no influence on
the verdict you render in this case.
Tr. p. 153.
[9]! At the conclusion of the trial, the jury found Knight guilty as charged. The trial
court sentenced Knight to two and one-half years incarceration and ordered the
sentence to be served concurrent with the six-year aggregate sentence imposed
in Cause No. FD-196. Knight now appeals.
I. Successive Prosecution Statute
[10]! Knight claims that the trial court should have granted his motion to dismiss
because his prosecution in Cause F6-21 was barred by the successive
prosecution statute. This statute provides:
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(a) A prosecution is barred if all of the following exist:
(1) There was a former prosecution of the defendant for a
different offense or for the same offense based on different
facts.
(2) The former prosecution resulted in an acquittal or a
conviction of the defendant or in an improper termination
under section 3 of this chapter.
(3) The instant prosecution is for an offense with which the
defendant should have been charged in the former
prosecution.
(b) A prosecution is not barred under this section if the offense
on which it is based was not consummated when the trial under
the former prosecution began.
Ind. Code § 35-41-4-4 (1977).1
[11]! The phrase “should have been charged” as used in this statute must be read in
conjunction with the statutes governing joinder. Thompson v. State, 966 N.E.2d
112, 118 (Ind. Ct. App. 2012), trans. denied (citing Williams v. State, 762 N.E.2d
1216, 1219 (Ind. 2002)). One of the joinder statutes, Indiana Code section 35-
34-1-10 (1981), provides in relevant part:
1
Knight makes a brief argument that his prosecution was also barred by operation of Indiana Code section
35-41-4-3 (1977), which generally bars prosecution “if there was a former prosecution of the defendant based
on the same facts and for commission of the same offense.” First, this argument is not fully developed and is
therefore waived. See Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005) (concluding that defendant’s
argument was waived where he cited no authority in support of his position); Ind. Appellate Rule 46(A)(8)(a)
(“The argument must contain the contentions of the appellant on the issues presented, supported by cogent
reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or
parts of the Record on Appeal relied on[.]”). More importantly, here, the subsequent prosecution was not for
the “same offense,” and section 35-41-4-3 is inapplicable.
The same is true with regard to Knight’s brief references to double jeopardy; these references contain no
citation to authority and no cogent reasoning and are therefore waived. See Davis, 835 N.E.2d at 1113; App.
R. 46(A)(8)(a).
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(c) A defendant who has been tried for one (1) offense may
thereafter move to dismiss an indictment or information for an
offense which could have been joined for trial with the prior
offenses under section 9 of this chapter. The motion to dismiss
shall be made prior to the second trial, and shall be granted if the
prosecution is barred by reason of the former prosecution.
[12]! The relevant portion of Indiana Code section 35-34-1-9 in turn provides:
(a) Two (2) or more offenses may be joined in the same
indictment or information, with each offense stated in a separate
count, when the offenses:
(1) are of the same or similar character, even if not part of a
single scheme or plan; or
(2) are based on the same conduct or on a series of acts
connected together or constituting parts of a single scheme or
plan.
Ind. Code § 35-34-1-9 (1981).
[13]! To determine whether contemporaneous crimes are part of a “single scheme or
plan,” for purposes of Section 9, we look to whether the offenses are connected
by a distinctive nature, have a common modus operandi, and a common
motive.” Thompson, 966 N.E.2d at 118 (citations and internal quotations
omitted). In construing these statutes, we have noted before:
[O]ur legislature has provided that, where two or more charges
are based on the same conduct or on a series of acts constituting
parts of a single scheme or plan, they should be joined for trial.
[Indiana Code section 35-41-4-4] serves as a check upon the
otherwise unlimited power of the State to pursue successive
prosecutions. Where the State chooses to bring multiple
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prosecutions for a series of acts constituting parts of a single
criminal transaction, it does so at its own peril.
Thompson, 966 N.E.2d at 118 (citing Williams, 762 N.E.2d at 1219) (internal
quotations omitted).
[14]! On appeal, we review the trial court’s decision on a motion to dismiss for an
abuse of discretion. Schmidt v. State, 986 N.E.2d 857, 860 (Ind. Ct. App. 2013),
trans. denied. We will not reweigh the evidence and will resolve any conflicts in
the evidence in favor of the trial court’s ruling, and we will affirm the trial court
on any basis apparent in the record. Id.
[15]! In the present case, Knight argues that the intimidation charges in Cause No.
FD-196 and the obstruction of justice charge in F6-21 were based on a single
scheme or plan and should have been charged in the same case. Because they
were not, he claims that the charge in F6-21 was barred by the successive
prosecution statute. We disagree.
[16]! It is true that an overlap exists between the timing of the acts underlying both
cases. The acts underlying the charges in Cause No. FD-196 were alleged to
have occurred from May 28 to June 30, 2014. In Cause No. F6-21, the acts
were alleged to have occurred from May 28 through July 25, 2014.
[17]! However, to determine whether the crimes in both cases were part of a single
scheme or plan, we look to whether the offenses are connected by a distinctive
nature, have a common modus operandi, and a common motive. Thompson, 966
N.E.2d at 118. Here, we cannot say that the offenses were connected by a
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distinctive nature. Nothing is terribly distinctive about speaking to someone
over the telephone. Neither can we say that the crimes had a common modus
operandi. Modus operandi means “method of working” and refers to a pattern of
criminal behavior so distinctive that separate crimes may be recognized as the
work of the same wrongdoer. Wilkerson, 728 N.E.2d at 246. Again, talking to
someone on the telephone from jail is behavior so distinctive that the separate
crimes may be recognized as the work of the same person.
[18]! Perhaps more importantly, the crimes do not share a common motive. The
motive of the crimes in Cause No. FD-196 was to contact Deanna and
intimidate her into maintaining her relationship with Knight. The motive in the
current case was to prevent Deanna from appearing as a witness and testifying
against Knight.
[19]! We also note that the State could not have charged Knight with obstruction of
justice until after Deanna had been legally summoned as a witness. See Ind.
Code § 35-44.1-2-2(a)(1)(C) (2013) (“A person who . . . knowingly or
intentionally induces, by threat, coercion, false statement, or offer of goods,
services, or anything of value, a witness or informant in an official proceeding
or investigation to . . . absent the person from a proceeding or investigation to
which the person has been legally summoned . . . commits obstruction of justice, a
Level 6 felony.”) (emphasis added). Despite the State’s attempts to serve her
with a subpoena earlier, the State was unable to properly serve her with the
subpoena until July 1, 2014—just over three weeks before Knight’s trial in
Cause No. FD-196. If the State were required to charge Knight with obstruction
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of justice in Cause No. FD-196, a late amendment to the charging information
would present its own difficulties. See Gaby v. State, 949 N.E.2d 870, 874 (Ind.
Ct. App. 2011) (noting that Indiana Code section 35-34-1-5(b) generally allows
the State to amend a charging information any time before the start of trial if
the amendment does not prejudice the defendant’s substantial rights, which
include a right to sufficient notice, i.e., whether the defendant had a reasonable
opportunity to prepare for and defend against the charges).
[20]! Further, until Deanna did or did not appear to testify as a witness, the State did
not know whether it would be able to file the charge of obstruction of justice.
Once Deanna appeared as a witness, the State could only charge Knight with
attempted obstruction of justice. Under these facts and circumstances, we cannot
say that the State should have brought the obstruction of justice charge against
Knight in Cause No. FD-196. Thus, Knight’s prosecution in Cause No. F6-21
was not barred by the successive prosecution statute, and the trial court did not
err in denying Knight’s motion to dismiss.
II. Mistrial
[21]! Knight also argues that the trial court erred in denying his motion for a mistrial
which was made after Deputy Sprunger testified, in response to a question by
the prosecution, that Knight was convicted after the trial in Cause No. FD-196.
[22]! A trial court’s discretion in determining whether to grant a mistrial is afforded
great deference on appeal, because the trial court is in the best position to gauge
the surrounding circumstances of an event and its impact on the jury. Mickens v.
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State, 742 N.E.2d 927, 929 (Ind. 2001). A court on appeal therefore reviews the
trial court’s decision solely for abuse of discretion. Id. “After all, a mistrial is an
extreme remedy that is only justified when other remedial measures are
insufficient to rectify the situation.” Id. To prevail on appeal from the denial of
a motion for mistrial, the defendant must establish that the questioned conduct
was so prejudicial and inflammatory that he was placed in a position of grave
peril to which he should not have been subjected. Id. The gravity of the peril is
determined by considering the alleged misconduct’s probable persuasive effect
on the jury’s decision, not the impropriety of the conduct. Id.
[23]! The State does not argue that the evidence regarding Knight’s prior conviction
was properly before the jury. Instead, the State argues that Knight waived the
issue by not requesting an admonishment and that the admonishment given by
the trial court was adequate. With regard to the issue of waiver, the State is
correct that, generally speaking, the failure to request an admonishment or to
move for mistrial results in waiver. Dumas v. State, 803 N.E.2d 1113, 1117 (Ind.
2004). Here, however, the trial court admonished the jury sua sponte. We cannot
fault Knight for not requesting an admonishment when the trial court did in fact
admonish the jury.
[24]! We do agree with the State, however, that Knight has not demonstrated that
the trial court’s admonishment was insufficient. A timely and accurate
admonition is presumed to cure any error in the admission of evidence. Banks v.
State, 761 N.E.2d 403, 405 (Ind. 2002). Here, the trial court instructed the jury
to disgregard Deputy Sprunger’s response and informed the jury that the verdict
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in the prior case was irrelevant, was not to be discussed or even mentioned in
the deliberations, and was to have no influence on the jury’s verdict. Tr. p. 153.
Knight does not explain why the trial court’s admonishment did not suffice
under these circumstances. See Banks, 761 N.E.2d at 405. The trial court did not
abuse its discretion in denying Knight’s motion for mistrial.
Conclusion
[25]! The trial court did not err in denying Knight’s motion to dismiss the charges
against him, as the current charges were not barred by the successive
prosecution statute. The trial court did not abuse its discretion in denying
Knight’s motion for a mistrial because the trial court’s admonishment to the
jury was adequate.
[26]! Affirmed.
May, J., and Robb, J, concur.
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