Opinion
23A-CR-1839
05-15-2024
Vance Parviz McDowell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Caroline B. Briggs Lafayette, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Supervising 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Tippecanoe Superior Court The Honorable Kristen E. McVey, Judge Trial Court Cause No. 79D05-2210-F6-1077
ATTORNEY FOR APPELLANT
Caroline B. Briggs
Lafayette, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Foley, Judge.
[¶1] Following a jury trial, Vance Parvis McDowell ("McDowell") was convicted of Level 6 felony resisting law enforcement. McDowell now appeals, presenting the following two restated issues for our review:
I. Whether it was an abuse of discretion to deny McDowell's motion for a mistrial; and
II. Whether there was sufficient evidence identifying McDowell as the person who resisted law enforcement.
[¶2] Concluding that the trial court did not abuse its discretion in declining to order a mistrial and that there was sufficient evidence supporting the conviction, we affirm.
Facts and Procedural History
[¶3] In October 2022, the State charged McDowell with Level 6 felony resisting law enforcement. Ahead of his jury trial, McDowell filed a motion in limine prohibiting the State from introducing evidence of McDowell's prior bad acts. The trial court granted the motion in limine, in part, and specified that the State could introduce evidence that McDowell's driver's license had been suspended.
[¶4] A jury trial was held in June 2023, where the sole witness was Trooper Benjamin Fike of the Indiana State Police ("Trooper Fike"). Trooper Fike testified that, in the early morning hours of October 5, 2022, he was parked along I-65 in a marked police vehicle, monitoring traffic. When he clocked a red SUV speeding, Trooper Fike pulled out behind the vehicle and activated his emergency lights. The vehicle stopped on the shoulder, and Trooper Fike noticed that the vehicle had a temporary license plate. At some point, Trooper Fike corresponded with dispatch and relayed information from the temporary plate. When Trooper Fike exited his police vehicle to approach the driver of the red SUV, the vehicle "accelerated away from the stop." Tr. Vol. 2 p. 38. Trooper Fike then returned to his police vehicle and pursued the red SUV.
[¶5] The red SUV slowed as it exited onto State Road 38, then the vehicle accelerated and "reached speeds in excess of one hundred miles [per] hour[.]" Id. at 44. Trooper Fike continued to pursue the red SUV, which eventually turned into a car dealership, drove to the back of the "well[-]lit parking lot," and approached a "concrete berm" next to "a drainage ditch with rocks at the bottom." Id. The red SUV "jumped over the concrete and down into the ditch," then drove "up onto a small access road on the other side." Id. Trooper Fike declined to follow the red SUV, believing his police vehicle could not traverse the concrete. However, as the red SUV slowed to cross the drainage ditch-at which point the vehicle was about thirty feet from Trooper Fike-the driver "turned and looked over" toward Trooper Fike, who could see the driver "through the driver's window." Id. at 45. Trooper Fike noticed that the driver was a "[t]hinner black male with scruffy facial hair on his chin." Id. at 46. The State asked Trooper Fike if the driver of the red SUV was in the courtroom, and
Trooper Fike identified McDowell as the driver. The State also played a segment of the dashcam footage captured by Trooper Fike's police vehicle.
[¶6] Trooper Fike testified that, after the red SUV crossed the ditch, the police initially could not find the vehicle. However, based on the location of the access road, the investigation focused on the Windemere apartment complex. At one point, Trooper Fike saw a fluid trail, which is something "commonly see[n] after a vehicle has crashed." Id. at 51. Amid the investigation, Trooper Fike learned that the red SUV was registered to McDowell, which led him to view a BMV photo of McDowell. When asked whether that photo showed "the same man that [he] had seen cross the ditch in a red [SUV]," Trooper Fike said: "I believed it was[,] yes." Id. at 53. The following exchange ensued:
Q: . . . Was there any other information that dispatch gave you regarding the owner of the red [SUV,] . . . McDowell?
A: Yes[,] they advised that he had an active warrant.
Q: Okay.
[Defense Counsel]:
Objection. [Trial Court]:
Alright[,] let's have a brief sidebar.Id. During the sidebar discussion, McDowell asserted that the State had violated the motion in limine. The State responded that it had intended to elicit evidence that McDowell's license was suspended-which was evidence the trial court specifically said it would allow-and Trooper Fike's "response . . . as to the warrant . . . was something the [S]tate was not intending to get into." Id. at 56. McDowell "ask[ed] for a mistrial," contending that the testimony about his warrant status was "so powerful" that it would persuade the jury to convict him, "even though he may not be the one" who evaded Trooper Fike. Id. at 57. The State ultimately argued that, under the circumstances, a mistrial was not warranted because "an admonishment is sufficient in this case." Id. at 56.
[¶7] The trial court recessed for lunch. After the recess, the sidebar discussion resumed, and the State said it spoke with Trooper Fike, who acknowledged that he "misspoke" and "didn't mean warrant, he meant [McDowell] was driving while suspended[.]" Id. at 58. The State added that it investigated McDowell's warrant status and "[t]here was no warrant at the time of the stop." Id. The State maintained that a jury admonishment was sufficient to address the misstatement, arguing: "[I]f the jury is informed that the officer misspoke and it wasn't a warrant[,] it was driving while suspended and there was no warrant[,] then there's no issue." Id. at 59. McDowell maintained that a mistrial was warranted. He pointed out that, in arguing the case to the jury, his theory was "going to be identity"- i.e., "[w]as [McDowell] driving the vehicle." Id. at 63. McDowell argued that neither his warrant status nor his license status bore on "whether he was the one driving that day." Id. McDowell asserted that, "by allowing this [type of evidence] in[,] we're just prejudicing him." Id. at 64.
[¶8] The trial court decided that it would issue a jury admonishment and show "a continuing objection" regarding the line of evidence. Id. at 69. At that point, the jury returned, and the State resumed its questioning of Trooper Fike:
Q: Trooper Fike[,] before the break you mentioned a warrant. When you mentioned that warrant did you misspeak?
A: I did.
Q: Was . . . McDowell's license suspended?
A: It was.
[Defense]: Objection.
....
The Court: . . . Alright jurors[,] you have heard that this witness has made a misstatement as to the existence of a warrant. That th[e] [statement] is not accurate. There was no warrant for [McDowell] on that date and time. You are admonished not to consider that information as I am striking it from the record. And you may not in any way consider it as evidence of guilt against [McDowell].Id. at 70. Thereafter, Trooper Fike testified that law enforcement located the red SUV in the apartment complex, in a place where a vehicle would not usually be parked. The vehicle was running with its lights on, but no driver was present.
[¶9] On cross-examination, McDowell focused on the dashcam footage, specifically, just before the red SUV jumped the concrete berm, at which point Trooper Fike said he could see the driver. McDowell asked whether the footage was "pretty accurate as to how much of a view you had," and Trooper Fike said: "It captures the image[,] but it's not accurate [as] to what the human eye can see[,] no." Id. at 73. Earlier, Trooper Fike was asked on direct examination whether there were "any differences" between the dashcam footage and "the way you view things with your eyes[.]" Id. at 42. Trooper Fike said that the dashcam footage was a fair and accurate representation of his encounter with the red SUV, but that[,] "similar to as if you were looking into a mirror[,] [o]bjects can seem not quite as they would actually appear to the naked eye." Id.
[¶10] The trial court later gave the jury its final instructions, one of which stated: "You must not consider an exhibit or testimony which the court ordered stricken from the record. In fact, such matter is to be treated as though you had never heard it." Id. at 94. The jury ultimately found McDowell guilty of Level 6 felony resisting law enforcement. The trial court later held a sentencing hearing and imposed a two-year sentence. McDowell now appeals.
Discussion and Decision
I. Motion for a Mistrial
[¶11] McDowell claims that the trial court abused its discretion in denying the motion for a mistrial, which was premised on Trooper Fike's misstatement that McDowell had an active warrant for his arrest.
[¶12] As our Supreme Court has explained, "not every error . . . entitles a party to have a mistrial declared." Canaan v. State, 541 N.E.2d 894, 908 (Ind. 1989). "The overriding concern is whether the defendant 'was so prejudiced that he was placed in a position of grave peril.'" Lucio v. State, 907 N.E.2d 1008, 1010 (Ind. 2009) (quoting Gill v. State, 730 N.E.2d 709, 712 (Ind. 2000)). "Grave peril is measured by the probable persuasive effect on the jury of the challenged action, evidence[,] or misconduct." Mack v. State, 736 N.E.2d 801, 803 (Ind.Ct.App. 2000), trans. denied. Moreover, because the trial court is "best positioned to assess the circumstances of an error and its probable impact on the jury, '[t]he denial of a mistrial lies within the sound discretion of the trial court[.]'" Lucio, 907 N.E.2d at 1010 (first alteration in original) (quoting Gill, 730 N.E.2d at 712). Put differently, "[t]he trial court has broad discretion in determining whether to declare a mistrial, and ordinarily the prerogative to declare one will be exercised only as a last resort." Canaan, 541 N.E.2d at 908. We review the trial court's ruling for an abuse of discretion. Id. The trial court abuses its discretion when a ruling is "clearly against the logic and effect of the facts and circumstances[.]" Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014), cert. denied.
[¶13] Here, Trooper Fike mistakenly testified that dispatch informed him that McDowell had an active warrant for his arrest when he instead meant to testify that McDowell had a suspended driver's license. Trooper Fike's testimony generally focused on his pursuit of the red SUV, and the misstatement was brief and only a minor part of his testimony. Further, when Trooper Fike misspoke, there was an immediate sidebar discussion. The sidebar discussion led the trial court to strike the misstatement from the record and admonish the jury, telling the jury to disregard the stricken testimony. The jury was also specifically instructed to disregard all stricken evidence, treating stricken evidence "as though [the jury] had never heard it." Tr. Vol. 2 p. 94.
[¶14] In general, 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) (quoting Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001)). Furthermore, on appeal, "we must presume that the jury obeyed the court's instructions in reaching its verdict." Id. (quoting Tyson v. State, 386 N.E.2d 1185, 1192 (1979)). Thus, when a witness's misstatement was "fleeting, inadvertent, and only a minor part of the evidence against the defendant," and the trial court promptly admonished the jury not to consider the misstatement in its deliberations, our Supreme Court has previously concluded that the trial court did not abuse its discretion in denying a motion for a mistrial. Lucio, 907 N.E.2d at 1011. In so concluding, the Court noted that a mistrial is "strong medicine that should be prescribed only when 'no other action can be expected to remedy the situation 'at the trial level[.]'" Id. at 1010-11 (quoting Gambill v. State, 436 N.E.2d 301, 304 (Ind. 1982)). Pointing out that the trial court had given a "clear instruction" to disregard the misstatement, the Court determined that this curative measure "severely undercut[]" the defendant's position that he was placed in grave peril because the law recognizes "strong presumptions" that "juries follow courts' instructions" and "an admonition cures any error[.]" Id.
[¶15] McDowell contends that, despite the trial court's curative measures, "he was subjected to grave peril and a mistrial should have been granted." Appellant's Br. p. 20. McDowell directs us to Mack, wherein the defendant was on trial for dealing in cocaine, and a detective testified that he identified the defendant from a group of photographs of known drug dealers. 736 N.E.2d at 803. The defendant appealed, seeking a new trial. In resolving the appeal, we focused on the materiality of the testimony and the lack of other evidence bearing on the issue of identity, pointing out that "the State's case rested wholly upon [the detective's] identification" of the defendant. Id. at 804. We noted that, "[b]ecause there was no independent evidence of [the defendant's] guilt, there was a substantial likelihood that the evidence in question played a part in [the] conviction." Id. We added that, "[t]o be tagged as a known drug dealer in this sparse evidentiary situation was not harmless." Id. We ultimately determined that the defendant had been subjected to grave peril, necessitating a retrial. See id. In a footnote, we observed that "upon hearing the officer's testimony, the trial court properly instructed the jury to disregard the officer's statement." Id. at 803 n.4. However, we stated that reversal was "required" under the circumstances because we were "unable to dismiss the possibility that the tainted testimony, which was the sole evidence connecting [the defendant] to the crime, had a substantial influence on the jury in arriving at its verdict. Id.
[¶16] Here, McDowell argues that reversal is warranted because he "suffers from the same prejudice" as the defendant in Mack. Appellant's Br. p. 16. However, Mack is distinguishable in several key respects. That is, in Mack, the improper testimony was intertwined with the only evidence connecting the defendant to the crime. Here, however, the improper testimony related to ancillary steps in the investigation, and there was independent testimony that Trooper Fike observed McDowell driving the red SUV that accelerated from a traffic stop. Along these lines, whereas Mack involved scant evidence regarding the defendant's participation in the offense, this case not only involved Trooper Fike's testimony that McDowell was the person he saw driving the red SUV, but also evidence that the red SUV was registered to McDowell. Beyond that, in Mack, the defendant was accused of dealing drugs and the improper testimony indicated that the defendant was a known drug dealer. But, here, McDowell was on trial for resisting law enforcement and the inaccurate testimony did not indicate that he previously committed the charged offense. In light of these distinctions, we are unpersuaded that Mack compels reversal.
[¶17] McDowell also relies on Garcia v. State, 509 N.E.2d 888 (Ind.Ct.App. 1987), but that case involved the State's misapprehension that the defendant had been convicted of burglary. There, the State introduced the prejudicial information when attempting to impeach the defendant. Here, however, the State sought to elicit admissible evidence, and it was the witness who misspoke. Moreover, to the extent McDowell claims that the trial court "did not make a clear statement to the jury about the warrant," we disagree with McDowell's characterization of the record. Appellant's Br. p. 18. After the State elicited testimony that Trooper Fike misspoke about the warrant, the trial court plainly said: "Alright jurors[,] you have heard that this witness has made a misstatement as to the existence of a warrant. That th[e] [statement] is not accurate. There was no warrant for [McDowell] on that date and time." Tr. Vol. 2 p. 70.
[¶18] All in all, in light of the unique evidentiary complexion of this case, the trial court's prompt admonishment to disregard the stricken testimony, and the final jury instruction concerning the treatment of stricken evidence, we conclude that the trial court did not abuse its discretion in denying the motion for a mistrial.
At one point, McDowell asserts that "[i]n addition . . . to the prejudice of the warrant evidence, the State told the jury that [McDowell] had not provided alternatives to the State's case." Appellant's Br. p. 19. McDowell claims the State engaged in improper "burden shifting" and he suggests "a mistrial should have been granted" on this basis. Id. at 20. Yet, although McDowell objected to the State's argument, he did not request an admonishment or seek a mistrial on that basis. See Tr. Vol. 2 pp. 88-89. In general, "[f]ailure to request an admonishment or move for a mistrial results in waiver of the issue." Isaacs v. State, 673 N.E.2d 757, 763 (Ind. 1996). And although there is a limited exception to waiver if the alleged error was fundamental, see, e.g., id., in this case, McDowell declined to present a claim of fundamental error. Thus, based on the limited briefing, we conclude that McDowell waived any appellate claim regarding the allegedly improper line of argument. See Ind. Appellate Rule 46(A)(8)(a) (specifying that "[t]he argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning"); Tate v. State, 161 N.E.3d 1225, 1230 (Ind. 2021) (identifying appellate waiver due to the failure to develop cogent argument).
II. Sufficiency of the Evidence
[¶19] McDowell challenges the sufficiency of the evidence supporting his conviction for Level 6 felony resisting law enforcement. McDowell focuses on whether there is sufficient evidence that he drove the red SUV that evaded Trooper Fike. McDowell acknowledges that Trooper Fike identified him as the person who drove the red SUV. However, McDowell directs us to dashcam footage and points out that McDowell cannot be seen as the driver in any of the footage.
[¶20] In every case, the State must prove beyond a reasonable doubt that the accused was the person who committed the charged offense. Cf., e.g., Taylor v. State, 86 N.E.3d 157, 163 (Ind. 2017). When reviewing a challenge to the sufficiency of evidence supporting a conviction, "we neither reweigh the evidence nor assess the credibility of witnesses." Fix v. State, 186 N.E.3d 1134, 1138 (Ind. 2022). Rather, we consider the evidence and reasonable inferences favorable to the judgment, and will affirm unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). Under this highly deferential standard of review, "[a] conviction may be sustained by the uncorroborated testimony of a single witness." Hobbs v. State, 548 N.E.2d 164, 168 (Ind. 1990).
[¶21] Moreover, to the extent that a sufficiency challenge relates to the interpretation of video evidence, we defer to the fact-finder's interpretation of the evidence "unless the video evidence at issue indisputably contradicts the . . . [factfinder's] findings." Love v. State, 73 N.E.3d 693, 700 (Ind. 2017). There is an indisputable contradiction "when no reasonable person can view the video and come to a different conclusion." Id. Thus, "[i]n cases where the video evidence is somehow not clear or complete or is subject to different interpretations, we defer to the [fact-finder's] interpretation" of the evidence. Id. at 699-700. Applying this standard in Love, the Indiana Supreme Court rejected a claim that video evidence indisputably contradicted eyewitness testimony where the video evidence was "dark" and it was "hard to see much." Id. at 700. Indeed, because the video evidence was unclear and not subject to a single interpretation that contradicted the findings, our Supreme Court deferred to the role of the fact-finder to weigh the evidence presented in the case. See id.
[¶22] Here, the video evidence is also fairly dark, and the face of any person-let alone McDowell-is not visible through the window of the red SUV. On appeal, McDowell contends that the dashcam footage "shows that it is not possible to identify the driver of the red [SUV]." Appellant's Br. p. 23. He asks us to reject Trooper Fike's identification evidence and "find that the video indisputably shows that the driver could not be identified." Id. at 22. However, the State asserts that the footage supports Trooper Fike's testimony in that he "testified that he was able to identify [McDowell] as the driver" around the time the red SUV jumped the concrete berm, and the footage shows a red SUV "perpendicular" to Trooper Fike's police vehicle around that time, illuminated by Trooper Fike's headlights. Appellee's Br. p. 16. The State ultimately argues that the dashcam footage does not indisputably contradict Trooper Fike's testimony, so we must defer to the fact-finder's interpretation of the evidence.
[¶23] We agree with the State. Here, Trooper Fike testified that he was able to see the driver's face, and Trooper Fike identified McDowell as the person he saw driving the red SUV. Just because the dashcam footage did not capture McDowell's face, that does not "indisputably show[]" that Trooper Fike was unable to see McDowell from his vantage point. Appellant's Br. p. 22. Put differently, the footage does not indisputably contradict Trooper Fike's testimony that he saw McDowell driving the red SUV. Therefore, we must decline McDowell's request to reweigh evidence regarding his identification.
[¶24] All in all, based on Trooper Fike's testimony identifying McDowell as the driver of the red SUV, the State presented sufficient evidence that McDowell was the person who committed Level 6 felony resisting law enforcement.
Conclusion
[¶25] The trial court did not abuse its discretion in electing to strike the inaccurate testimony and admonish the jury, rather than grant the motion for a mistrial. Furthermore, because the dashcam footage did not indisputably contradict Trooper Fike's testimony identifying McDowell as the driver of the red SUV, there is no failure of proof with respect to the identification of McDowell.
[¶26] Affirmed.
Riley, J., and Brown, J., concur.