FILED
MEMORANDUM DECISION Mar 21 2016, 8:17 am
CLERK
Pursuant to Ind. Appellate Rule 65(D), this Indiana Supreme Court
Court of Appeals
Memorandum Decision shall not be regarded as and Tax Court
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
Donald C. Swanson, Jr. Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kulon N. Lewis, Jr., March 21, 2016
Appellant-Defendant, Court of Appeals Case No.
02A03-1508-CR-1140
v. Appeal from the Allen Superior
Court.
The Honorable Frances C. Gull,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 02D06-1409-F1-1
Friedlander, Senior Judge
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1
[1] Kulon Lewis, Jr. appeals his conviction of attempted murder, a Level 1 felony ,
and the sentencing enhancement for using a firearm in the commission of an
2
offense. We affirm.
[2] Lewis raises two issues for our review, which we restate as:
1. Whether the trial court’s admission of 404(b) testimony at
trial amounted to fundamental error.
2. Whether the trial court erred by denying Lewis’ motion for
mistrial.
[3] On September 4, 2014, Dytrell Allen was loading items into a car outside his
girlfriend’s grandmother’s house in Fort Wayne when he was shot multiple
times. As a result of this incident, Allen is now confined to a wheelchair.
Lewis and Trayshaun Pernell were charged with firing the shots that injured
Allen. Prior to trial, the State filed a Notice of Intent to Use 404(b) Evidence,
upon which the trial court held a hearing. At the hearing, the State indicated its
desire to present testimony at trial regarding three prior incidents involving
Lewis and Allen. The State alleged several purposes for the testimony other
than to show Lewis’ propensity to commit the acts charged in this case, and
Lewis’ counsel objected to the admission of the testimony. The trial court ruled
that the testimony would be allowed at trial, and the State and Lewis’ counsel
1
Ind. Code §§ 35-41-5-1 (2014), 35-42-1-1 (2014).
2
Ind. Code § 35-50-2-11 (2014).
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agreed that Lewis’ counsel could present evidence of the disposition of any legal
action taken as a result of the three incidents.
[4] Following trial and during deliberations, the jurors were found to be consulting
a map of Fort Wayne streets that one of the jurors had brought with her. At the
direction of the trial judge, the bailiff removed the map from the jury room.
Counsel and the trial judge reviewed the map, noting that five areas had been
circled. Lewis moved for a mistrial. The court questioned and admonished the
jury and then denied Lewis’ motion for mistrial. This appeal ensued.
1. Admission of 404(b) Evidence
[5] Lewis first contends that the trial court erred in the admission of the testimony
regarding the three prior incidents involving him and Allen. Although Lewis
objected to admission of the testimony at the pre-trial hearing, he failed to lodge
an objection when the testimony was presented at trial. Thus, Lewis’ claim of
3
error is waived. See Brown v. State, 929 N.E.2d 204 (Ind. 2010) (to preserve
challenge to admissibility of evidence for appeal, defendant must make
3
We further note that although Lewis objected to the testimony at the 404(b) hearing, he never argued that
the testimony did not fulfill the 404(b) purposes as proffered by the State. Rather, he objected to admission of
the testimony on grounds of lack of indicia of reliability and prejudicial effect. See Tr. 404(b) Hrg. pp. 11-13.
Thus, his objection was not based on Evidence Rule 404 but was instead based on foundational aspects and
Evidence Rule 403, which allows the court to exclude relevant evidence if its probative value is substantially
outweighed by a danger of unfair prejudice. See Halliburton v. State, 1 N.E.3d 670 (Ind. 2013) (determining
that defendant waived error by objecting on one ground at trial and arguing different ground on appeal where
he argued on appeal improper admission of evidence based upon Rule 404(b) and had objected at trial based
on Rule 403 with no claim that evidence did not fit Rule 404(b) exceptions or that evidence was bad
character evidence prohibited by Rule 404(b)).
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contemporaneous objection when evidence is introduced at trial). To avoid
waiver, Lewis claims that admission of the testimony constitutes fundamental
error. The fundamental error doctrine is extremely narrow and applies only
when the error amounts to a blatant violation of basic principles, the harm or
potential for harm is substantial, and the resulting error denies the defendant
fundamental due process. Lehman v. State, 926 N.E.2d 35 (Ind. Ct. App. 2010),
trans. denied. This doctrine is available only in egregious circumstances. Brown,
929 N.E.2d 204.
[6] Lewis argues that admission of the testimony was fundamental error because it
amounts to improper character evidence prohibited by Indiana Evidence Rule
404(b). The Rule 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.
Evid. R. 404(b)(1). This rule is designed to prevent the jury from assessing a
defendant’s present guilt on the basis of his past propensities — the “forbidden
inference.” Remy v. State, 17 N.E.3d 396, 399 (Ind. Ct. App. 2014), trans.
denied. Such evidence, however, may be admitted to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Evid. R. 404(b)(2). This list of permissible purposes is
illustrative but not exhaustive. Freed v. State, 954 N.E.2d 526 (Ind. Ct. App.
2011).
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[7] In assessing the admissibility of 404(b) evidence, the court must: (1) determine
that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue
other than the defendant’s propensity to commit the charged act; and (2)
balance the probative value of the evidence against its prejudicial effect
pursuant to Evidence Rule 403. Bishop v. State, 40 N.E.3d 935 (Ind. Ct. App.
2015), trans. denied. Rule 403 provides, in part, that relevant evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice.
[8] The testimony at issue set forth the following events:
(1) On July 13, 2013, Allen and Lewis were both at Cancun, a nightclub in
Fort Wayne. They were involved in a verbal encounter inside the
nightclub where Lewis threatened Allen. Both men were thrown out of
the club, and a physical encounter occurred between the two. Then as
Allen walked to his car, Lewis fired shots at him from a vehicle. Police
officers pursued the vehicle and an individual who exited the car. The
individual was apprehended and identified as Lewis. Officers recovered
a handgun from Lewis’ seat in the vehicle, and shell casings found in the
area were matched to this gun.
(2) Some time between July 13, 2013 and July 26, 2014, Allen encountered
Lewis at a gas station in Fort Wayne. When Allen exited the gas station
mart, Lewis was standing by a car waving a gun at him. Allen did not
report the incident to the police.
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(3) On July 26, 2014, Allen was walking near Eden Green apartments in
Fort Wayne. He heard his name yelled and turned to see Lewis hanging
out of a car window shooting at him. Allen was hit in his side by a
bullet, and he called his father to take him to the hospital. Allen
identified Lewis as the shooter to police.
At the hearing on the State’s Notice of Intent to Use 404(b) Evidence, the State
argued and the trial court found that the evidence was relevant to motive,
intent, identity, defendant’s state of mind, and the relationship of the parties.
Tr. 404(b) Hrg. pp. 9, 16. The court further determined that although the
evidence was prejudicial, the probative value of the evidence was not
substantially outweighed by the prejudicial impact. Id. at 16.
[9] The State may offer evidence of motive to prove that the act was committed, to
prove the identity of the actor, or to prove the requisite mental state. Embry v.
State, 923 N.E.2d 1 (Ind. Ct. App. 2010), trans. denied. This Court has held that
when evidence of motive is offered for these purposes and there exists a
relationship between the parties that is characterized by frequent conflict,
evidence of the defendant’s prior assaults and confrontations with the victim
may be admitted to show the relationship between the parties as well as motive
for committing the crime. Id. Our Supreme Court has made clear that
“hostility is a paradigmatic motive for committing a crime.” Hicks v. State, 690
N.E.2d 215, 222 (Ind. 1997). Here, the testimony regarding the three prior
incidents demonstrates Lewis’ pattern of hostility and violence toward Allen
and his motive for the present offenses. Accordingly, the testimony regarding
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the prior incidents was admissible under the motive, defendant’s mental state,
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and relationship of the parties exceptions to 404(b).
[10] Additionally, Lewis acquiesced in part to the admission of the testimony of the
prior incidents by making an agreement with the State that if the testimony was
admitted, he could then present evidence of the circumstances and disposition
of the prior incidents. Lewis did indeed elicit evidence at trial that he was never
charged with the shooting in the July 13, 2013 incident, and he used the police
reports from that night to vigorously cross-examine Allen and point out
discrepancies in his version of the events. Lewis also presented evidence that
Allen did not report the gas station incident to police and that Allen did not
initially report the July 26, 2014 incident to police. Lewis elicited evidence that
Allen had been taken to the hospital by his father where, when questioned, he
told a police officer he did not know who shot him. Later, he told a different
officer that it was Lewis who shot him. In closing, defense counsel argued that
Allen had repeatedly lied — about Lewis’ involvement in the prior incidents, as
well as the present shooting — and asked that the jury hold him accountable for
his lies. In light of these circumstances, we conclude that Lewis has not met his
burden of showing that admission of the testimony made it impossible for him
to receive a fair trial. Accordingly, we find no fundamental error.
4
In his brief, Lewis argues that all five grounds proposed by the State and set forth by the trial court in its
pretrial ruling are invalid. Because we conclude that the evidence is relevant on at least some of these
grounds, we need not address the remaining grounds.
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2. Motion for Mistrial
[11] Lewis argues that the trial court erred by denying his motion for mistrial. A
mistrial is an extreme remedy warranted only when no other curative measure
will rectify the situation. Donnegan v. State, 809 N.E.2d 966 (Ind. Ct. App.
2004), trans. denied. The denial of a mistrial is a determination within the trial
court’s discretion, and we will reverse its decision only for an abuse of that
discretion. 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. Williams v. State, 755 N.E.2d 1128 (Ind. Ct. App.
2001), trans. denied. The gravity of the peril is determined by considering the
misconduct’s probable persuasive effect on the jury’s decision. Id. The trial
judge is in the best position to gauge the circumstances and the probable impact
on the jury. Donnegan, 809 N.E.2d 966.
[12] Specifically, Lewis claims that the trial court erred by failing to grant a mistrial
after jurors impermissibly viewed and discussed the Fort Wayne street map.
Our Supreme Court recently clarified the procedure to be followed in instances
of juror misconduct:
Trial courts must immediately investigate suspected jury taint by
thoroughly interviewing jurors collectively and individually, if
necessary. If any of the jurors have been exposed, he must be
individually interrogated by the court outside the presence of the
other jurors, to determine the degree of exposure and the likely
effect thereof. After each juror is so interrogated, he should be
individually admonished. After all exposed jurors have been
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interrogated and admonished, the jury should be assembled and
collectively admonished, as in the case of a finding of “no
exposure.” If the imperiled party deems such action insufficient
to remove the peril, he should move for a mistrial.
Ramirez v. State, 7 N.E.3d 933, 940 (Ind. 2014).
[13] The Court additionally held that a defendant seeking a mistrial for suspected
jury taint is entitled to a presumption of prejudice only after making two
showings by a preponderance of the evidence: (1) extra-judicial contact or
communications between jurors and unauthorized persons occurred and (2) the
contact or communications pertained to the matter before the jury. Id. at 939.
The burden then shifts to the State to rebut this presumption of prejudice by
showing that any contact or communications were harmless. Id. If the State
does not rebut the presumption, the trial court must grant a new trial. Id.
Conversely, if the defendant fails to make the initial two-part showing, the
presumption does not apply. Id. In that case, the trial court grants a new trial
only if the misconduct is “gross and probably harmed” the defendant. Id. In
egregious cases where juror conduct fundamentally compromises the
appearance of juror neutrality, trial courts should skip the initial two-part
inquiry, find irrebuttable prejudice, and immediately declare a mistrial. Id.
[14] Here, the parties do not dispute that the initial two-part inquiry set forth in
Ramirez was fulfilled, thereby shifting the burden to the State to rebut the
presumption of prejudice by showing that any exposure was harmless. Once
the map was retrieved from the jury room and examined by counsel and the
trial judge, Lewis moved for mistrial. The trial court then individually
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questioned and admonished each juror, beginning with the juror who brought
the map. The judge asked each juror if he or she was able to set aside the map
and any discussions had thereon and make a decision solely on the evidence
that they heard in the courtroom. Each juror replied affirmatively to the judge’s
question. Before releasing each juror back to the jury room, the judge
admonished them to have no further discussions about the map. Once each
juror had been individually questioned and admonished, the full jury was
brought into the courtroom where the judge admonished them as a group to
resume their deliberations and reach a decision based on the evidence presented
and not on any discussions they may have had about the map. The trial court
then determined that it had made the necessary inquiry of the jury and that each
juror had indicated he or she could make a decision based only upon the
evidence presented, and it denied Lewis’ motion for mistrial.
[15] The trial court remedied any possible harm by interviewing and admonishing
the jurors by the procedure as set forth in Ramirez. Further, we presume that
each juror abided by the trial court’s admonishment not to consider or discuss
the map. See Street v. State, 30 N.E.3d 41 (Ind. Ct. App. 2015) (it is presumed
jury followed trial court’s admonishment), trans. denied. All jurors stated they
could set aside the map and their discussion of the map and make a decision
based only on the evidence presented in the courtroom; thus, the State was not
put in the position of having to present additional evidence demonstrating the
exposure was harmless. Further, Lewis has given us no reason to doubt the
juror’s assurances, and, as the trial court is in the best position to gauge the
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circumstances of an event and its impact on the jury, we will not second-guess
its decision. See Weisheit v. State, 26 N.E.3d 3 (Ind. 2015) (stating trial court in
best position to evaluate whether mistrial is warranted because it evaluates first-
hand relevant facts and circumstances and their impact on jury), cert. denied, 136
S. Ct. 901 (2016). We find no error with the trial court’s determination that a
mistrial was not warranted in this case.
[16] In light of the foregoing, we affirm the judgment of the trial court.
[17] Judgment affirmed.
Kirsch, J., and Bailey, J., concur.
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