Opinion
23A-CR-160
06-22-2023
Co Bik T. Achong, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Sarah Medlin Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Angela Dow Davis, Judge Trial Court Cause No. 49D27-1908-F5-33921
ATTORNEY FOR APPELLANT Sarah Medlin Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
RILEY, JUDGE.
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, Co Bik Achong (Achong), appeals his conviction and sentence for domestic battery resulting in serious bodily injury, a Level 5 felony, Ind. Code § 35-42-2-1.3(a)(1).
[¶2] We affirm.
ISSUES
[¶3] Achong presents this court with two issues, which we restate as:
(1) Whether the trial court abused its discretion in denying Achong's motion for a mistrial after his victim alluded to calling the police on a previous occasion; and
(2) Whether the trial court committed reversible error when it failed to ask Achong if he would exercise his right to allocution prior to sentencing.
FACTS AND PROCEDURAL HISTORY
[¶4] Achong and S.S. married in June 2017 and have one son together, N.J., who was born in September 2017. In August 2019, Achong, S.S., and N.J. were living together in a home in the 4300 block of Declaration Drive in Indianapolis, Indiana. On August 22, 2019, S.S. returned from work around 6:30 p.m. Achong was resting in his bedroom while N.J. played. S.S. began to cook dinner in the kitchen, where N.J. sought her out and wanted attention. S.S. found she could not cook with hot oil over the stove while holding N.J., so she asked Achong to watch N.J. Achong told S.S. that he was resting and did not wish to be bothered. Achong and S.S. argued about the fact that Achong's cellphone use was interfering with his caring for N.J. S.S. grabbed Achong's cellphone from Achong's hand, whereupon Achong struck S.S. once in her left eye with a closed fist.
[¶5] To diffuse the situation and create distance between herself and Achong, S.S. went to a nearby grocery store. S.S. spoke to a security guard there but did not call law enforcement that day. Instead, S.S. went back to her residence, where Achong only allowed her in to retrieve a few personal belongings. S.S. spent the night at a hotel and sought help at her medical clinic the next morning due to the increased pain and swelling she was experiencing in her left eye. The clinic referred S.S. for emergency treatment, and S.S. reported to the ER at Community South Hospital. S.S. was diagnosed with a fracture in her left eye socket and was referred to a specialist. While at the hospital, S.S. provided a statement to law enforcement identifying Achong as the person who had injured her, and the injury to her eye was photographed.
[¶6] On August 27, 2019, the State filed an Information, charging Achong with Level 5 felony domestic battery resulting in serious bodily injury, Class A misdemeanor domestic battery, which was elevated to a Level 5 felony due to having a prior conviction for domestic battery against the same victim, and Level 6 felony domestic battery committed in the presence of a child less than sixteen years of age. On October 4, 2022, Achong filed a motion in limine seeking to exclude evidence of any of his prior bad acts, including his prior conviction for domestic battery against S.S. During a hearing on the motion in limine, the deputy prosecutor advised the trial court and the defense that S.S. had been warned not to testify about Achong's prior battery. The deputy prosecutor stated that, if S.S. were asked directly why she did not immediately report the instant offense to law enforcement, she would likely answer that the previous time Achong had battered her, she had reported it, but nothing had happened as a result. The deputy prosecutor had instructed S.S. not to answer that question if she were asked, and Achong's defense counsel advised he did not plan on asking S.S. that question. The trial court granted Achong's motion in limine.
[¶7] On October 5, 2022, the trial court held Achong's jury trial which was bifurcated so that the jury was not initially presented with Achong's prior conviction that the State alleged enhanced his Class A misdemeanor domestic battery charge to a Level 5 felony. S.S. testified regarding the offense and identified Achong as the person who had punched her in her left eye. On crossexamination, Achong's defense counsel questioned S.S. about her discussion with the grocery store security guard immediately after the offense, which culminated in the following exchange:
Defense Counsel: Okay. And you asked for help?
S.S.: Yes. Yes, I did.
Defense Counsel: She did not call the police?
S.S.: She told me that it's better for me to call the police.
Defense Counsel: Okay. You had to - she had to call an interpreter to help you talk to her, correct?
* * * S.S.: Yes. The security lady called the interpreter.
Defense Counsel: Okay. And then she just told you to call the police, and that was it?
S.S.: I told her that previously I called the police and when I came out of-
Defense Counsel: Judge, can we approach?
Trial Court: Yeah. Is there an objection?
Defense Counsel: There is an objection.
Achong and S.S. were born in Burma and speak limited English.
(Transcript Vol. III, pp. 102-03). During a subsequent sidebar, Achong's counsel moved for a mistrial based on S.S.'s last statement before the jury. The trial court denied the motion. In the presence of the jury, the trial court sustained Achong's objection, admonished S.S. to "[l]isten to the question, and only answer the question that is asked," and instructed the jury to disregard S.S.'s answer to the previous question. (Tr. Vol. III, p. 104). The jury found Achong guilty, and the State declined to try Achong for the felony enhancement to the Class A misdemeanor conviction.
The basis for the trial court's ruling is unclear because it is only partially transcribed.
[¶8] On December 9, 2022, Achong's presentence investigation report (PSI) was filed. On January 9, 2023, the trial court held Achong's sentencing hearing. Due to double jeopardy concerns, the trial court vacated Achong's convictions Class A misdemeanor and Level 6 felony domestic battery. Prior to issuing its sentence, the trial court asked the parties if they had any evidence or argument to offer, and Achong's counsel did not respond. The trial court did not specifically ask Achong's counsel or Achong himself if Achong would exercise his right of allocution. For Achong's remaining Level 5 felony domestic battery resulting in serious bodily injury conviction, the trial court sentenced Achong to 730 days, with credit for twenty-nine days of time served and the remainder suspended to probation.
[¶9] Achong now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Mistrial
[¶10] Achong contends that the trial court erred when it denied his motion for a mistrial. The grant of a mistrial is "an extreme remedy that is only justified when other remedial measures are insufficient to rectify the situation." Isom v. State, 31 N.E.3d 469, 481 (Ind. 2015). A mistrial is only warranted when a defendant is placed in a position of grave peril to which he should not have been subjected. Baumholser v. State, 186 N.E.3d 684, 692 (Ind.Ct.App. 2022), trans. denied. An assessment of the gravity of the peril to the defendant focuses on the persuasive effect of the conduct at issue, not the degree of the impropriety of the conduct. Rochefort v. State, 177 N.E.3d 113, 118 (Ind.Ct.App. 2021), trans. denied. A trial court's decision to deny a mistrial is accorded great deference on appeal due to the trial court's superior position to assess all the circumstances and their impact on the jury, and we review the trial court's decision only for an abuse of discretion. Smith v. State, 140 N.E.3d 363, 373 (Ind.Ct.App. 2020), trans. denied.
[¶11] Achong argues that a mistrial was merited in his case because S.S.'s statement during cross-examination that she had previously called the police violated "Evidence Rule 404(b) and the trial court's order in limine." (Appellant's Br. p. 8). Achong likens his case to Lehman v. State, 777 N.E.2d 69, 73 (Ind.Ct.App. 2002), wherein this court reversed the denial of a motion for mistrial. Lehman was charged with four counts of child molesting. Id. at 71. At his trial, the investigating detective was asked on cross-examination what else he did to investigate, and the detective testified in violation of a motion in limine, "This investigation broadened into a numerous other [sic] nine (9) victims." Id. The trial court denied Lehman's motion for mistrial but struck the testimony and instructed the jury to disregard it. Id. We reversed the trial court's ruling because we found that the reference to nine other victims to be so prejudicial and inflammatory that its effect on the jury was likely to be significant and uncured by the trial court's admonishment. Id. at 73.
[¶12] However, here, S.S.'s statement that "I told [the security guard] that previously I called the police and when I came out of-" did not place Achong in grave peril. (Tr. Vol. III, p. 102). S.S. did not testify that she had called the police previously because of Achong's conduct, let alone that she had previously called the police because Achong had battered her. Citizens call the police for a variety of reasons and to report a variety of crimes, not just to report domestic battery. Therefore, S.S.'s statement is qualitatively different from the explicit and inflammatory statement at issue in Lehman, and we do not credit Achong's assertion that S.S.'s testimony "was prejudicial, directly related to the alleged criminal conduct, and likely to have a significant impact on the jury." (Appellant's Br. p. 10). Rather, this one-time, vague reference by S.S. to calling the police for an unspecified reason was very unlikely to have had an effect on the jury, given S.S.'s pre-trial statement identifying Achong as the person who punched her, her in-trial testimony, and the admission of photographs of her injury. In addition, the trial court sustained Achong's objection to the testimony, provided a neutral admonishment to S.S. to simply answer the question, and admonished the jury to disregard S.S.'s prior answer. We presume that a trial court's admonishment to the jury to disregard testimony is followed and that it cures any error. See Isom, 31 N.E.3d at 481 (rejecting Isom's bald assertion that the jury would not follow the trial court's admonishment to disregard improper testimony, noting that "clear instruction, together with strong presumptions that juries follow courts' instructions and that an admonition cures any error, severely undercuts the defendant's position."). Therefore, we conclude that the trial court acted within its discretion when it denied Achong's motion for a mistrial.
II. Allocution
[¶13] Achong argues that he is entitled to a new sentencing hearing because the trial court did not provide him with an opportunity to exercise his right of allocution. The "right of allocution" refers to a defendant's right to make a statement on his or her behalf before the trial court issues its sentence. Abd v. State, 120 N.E.3d 1126, 1136 (Ind.Ct.App. 2019), trans. denied. The right to allocution is codified at Indiana Code section 35-38-1-5, which provides as follows:
When the defendant appears for sentencing, the court shall inform the defendant of the verdict of the jury or the finding of the court. The court shall afford counsel for the defendant an opportunity to speak on behalf of the defendant. The defendant may also make a statement personally on the defendant's own behalf and, before pronouncing sentence, the court shall ask the defendant whether the defendant wishes to make such a statement. Sentence shall then be pronounced, unless a sufficient cause is alleged or appears to the court for delay in sentencing.
A defendant who claims that his right to allocution has been denied faces a "strong burden in establishing his claim." Vicory v. State, 802 N.E.2d 426, 429 (Ind. 2004), disapproved of on other grounds by Strack v. State, 186 N.E.3d 99, 103 n.1 (Ind. 2022).
[¶14] Although the State does not contest that the trial court failed to ask either Achong's counsel or Achong himself if Achong would make a statement, the State argues that Achong waived this claim by failing to object or speak out when the trial court proceeded to sentence him without offering him an opportunity to speak. We agree. In Robles v. State, 705 N.E.2d 183, 187 (Ind.Ct.App. 1998), the trial court did not ask Robles or Robles' counsel if either wished to make a statement prior to sentencing, but Robles did not object. This court concluded that Robles had waived any alleged error for failing to object at sentencing, noting that "[m]oreover, Robles has not made any assertion as to the content of any purported statement that he might have made, how a statement may have benefited him, or that he intended to call any witnesses to testify on his behalf." Id. Our supreme court reached a similar conclusion in Angleton v. State, 714 N.E.2d 156, 159 (Ind. 1999), where Angleton failed to object at sentencing to the trial court's failure to enquire if he wished to make a statement, holding that a defendant "may not sit idly at a sentencing hearing, fail to object to a statutory defect in the proceeding, then seek a new sentencing hearing on that basis on appeal." The Angleton court also noted that Angleton, who had been an attorney, did not contend that he was unaware of his right to allocution or that he would have made a statement if asked. Id.
[¶15] Here, Achong's counsel was asked if he had any witnesses or evidence, and none were offered. There was no objection lodged by Achong when the trial court proceeded to sentencing without offering Achong an opportunity for allocution. In his reply brief, Achong implies for the first time that he may not have been aware of his right to allocution. However, we observe that the Robles court found waiver where Robles was represented at the hearing by counsel, without discussing Robles' personal knowledge of his allocution right. Robles, 705 N.E.2d at 187; see also Angleton, 714 N.E.2d at 159 n.2 (noting that Fields v. State, 676 N.E.2d 27, 31 (Ind.Ct.App. 1997), in which this court remanded for resentencing where the defendant was not advised of his right to speak before sentencing, may have been decided on the basis that Fields proceeded pro se at sentencing). We conclude that Achong waived his claim for failing to object at sentencing.
[¶16] However, even if Achong had not waived his claim, we would not have remanded for a new sentencing hearing. Error in failing to advise a defendant of his right to allocution is subject to harmless error analysis. See Woods v. State, 98 N.E.3d 656 (Ind.Ct.App. 2018) (citing Vicory, 802 N.E.2d at 430, and Biddinger v. State, 868 N.E.2d 407, 410 (Ind. 2007)), trans. denied. Here, Achong does not argue, beyond the deprivation of the right itself, that he was prejudiced by the trial court's failure to advise him of his right to allocution. We observe that the "Defendant Version" section of Achong's PSI contains two versions, one told to the PSI investigator by Achong and one submitted directly by Achong through his interpreter for inclusion in the PSI. (Appellant's App. Vol. II, p. 178). On appeal, Achong does not contend that he would have made a statement at sentencing had he been asked, nor does he identify any statement he would have made that was in addition to, or different from, the direct statement he provided for his PSI through his interpreter. Accordingly, while it is undisputed that the trial court failed to follow the statutory procedure in this case, we conclude that, in addition to waiving his claim, Achong has failed to demonstrate that he was prejudiced by the trial court's error. See Robles, 705 N.E.2d at 187; Angleton, 714 N.E.2d at 159.
Achong cites Jones v. State, 79 N.E.3d 911, 915-17 (Ind.Ct.App. 2017), wherein another panel of this court compared the right to allocution with the right to a jury trial and addressed Jones' claims of allocution error as fundamental error, not requiring Jones to demonstrate prejudice flowing from the error. Inasmuch as Jones conflicts with Woods, we find Woods to be more persuasive. See Abd, 120 N.E.3d at 1137 (following Woods and holding that Abd's claim was subject to waiver and harmless error analysis).
CONCLUSION
[¶17] Based on the foregoing, we hold that the trial court did not abuse its discretion in denying Achong's motion for mistrial and that Achong waived his claim of error based on the trial court's failure to advise him of his right to allocution.
[¶18] Affirmed.
[¶19] Bradford, J. concurs Weissmann, J. concurs in result without separate opinion