Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 1 of 24

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

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

Deborah Markisohn

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum 

Deputy Attorney General 

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Kevin Jones,

Appellant-Defendant,

v.

State of Indiana, 

Appellee-Plaintiff.

May 6, 2019

Court of Appeals Case No.

18A-CR-1320

Appeal from the Marion Superior 

Court

The Honorable Kurt Eisgruber, 

Judge

Trial Court Cause No.

49G01-1609-F3-36200

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 2 of 24

Case Summary and Issue

[1] Following an incident with his girlfriend, Kevin Jones was charged with 

multiple counts of battery and kidnapping. After a jury was selected and sworn, 

but before the trial began, the trial court recessed for a lunch break. As Juror 11 

returned from break, he was approached by a member of Jones’ family who 

whispered something about self-defense. Juror 11 told the bailiff, who informed 

the court and counsel about the contact. Juror 11 also told the other jurors that 

he was probably going to be removed as a juror because someone said 

something to him but he assured the other jurors “[i]t wasn’t anything bad[.]” 

The trial court and counsel questioned Juror 11 about the communication and 

ultimately dismissed him. The trial court and counsel also questioned each 

remaining juror individually about what they had heard from Juror 11 and what 

impact it had on their ability to remain on the jury. After questioning, the State 

orally moved for a mistrial and defense counsel joined, but the trial court 

denied the motion. The jury found Jones guilty of aggravated battery, battery, 

and domestic battery, but not guilty of kidnapping. Jones now appeals and 

presents the sole issue of whether the trial court abused its discretion in denying 

the State and Jones’ joint motion for a mistrial due to suspected jury taint. 

Concluding the trial court did not abuse its discretion, we affirm.
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Facts and Procedural History1

[2] Jones and Ashley Glover had been in a relationship for “[f]ive years on and 

off.” Transcript, Volume II at 115. On September 9, 2016, Jones and Glover 

were at Jones’ house and both had been drinking and using drugs. While in the 

bedroom, the two got into an argument and Glover got her phone and 

attempted to call someone. Jones “snatched the phone out of [Glover’s] hand 

and threw it.” Id. at 120. Glover gathered her things and said, “Well, I’m 

going to go. I’ll call you. Call me when you cool down.” Id. Jones responded, 

“You think you [sic] going to walk out of this door, this will be the last door 

you walk out of.” Id. Jones then hit Glover in the face. Glover stood up and 

realized she had been cut on her leg and she began to bleed “uncontrollably.” 

Id. at 121. She fell to the ground and crawled to the bed to get her phone to call 

911. She lost consciousness. The next thing Glover remembered was that 

Jones returned to the room, grabbed her arms, and began to drag her to the 

porch. She thought he dragged her to the front room and “didn’t know that 

[she] was outside . . . until the paramedics came.” Id. at 122. Glover had 

injuries to her face and lost a significant amount of blood and was taken by 

ambulance to Eskenazi Hospital where she underwent surgery, but ultimately 

survived.

 

1 We held an oral argument on March 19, 2019 at the Hammond Academy of Science and Technology in 

Hammond, Indiana. We thank the students, faculty, and staff for their hospitality and gracious reception

and commend counsel on their effective advocacy.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 4 of 24

[3] On September 14, 2016, the State charged Jones with the following: Count I, 

aggravated battery, a Level 3 felony; Count II, kidnapping, a Level 6 felony; 

Count III, battery resulting in bodily injury, a Class A misdemeanor; and Count 

IV, domestic battery, a Class A misdemeanor. Later, the State added Count V, 

aggravated battery, a Level 3 felony, and alleged Jones was an habitual 

offender. On May 13, 2018, the State filed a motion to dismiss Count I, which 

the trial court granted. See Appellant’s Appendix, Volume II at 107, 17.

[4] A jury trial on the remaining counts began on May 14 and concluded on May 

15. Following the voir dire process, a jury was selected, sworn, and recessed for 

a lunch break. As Juror 11 returned from lunch, he was approached by a 

person who identified himself as a member of Jones’ family and mentioned 

something about self-defense. Juror 11 promptly told the bailiff, who in turn 

informed the court and counsel about the encounter. After the break, the court 

reconvened without the jury and the trial court informed the parties that a juror 

had been approached by someone. The trial court stated, “I was going to bring 

that juror out, talk to him, see what’s going on and take it from there.” Tr., 

Vol. II at 24. Juror 11 was called in to the courtroom and described the 

encounter:

[Juror No. 11]: I was coming into the security and a 

gentleman just said, he said, “Oh, you’re a 

juror.” I said, “Yeah, Are you?” “No.” He 

said, “My uncle’s the Defendant,” and then 

he kind of under his breath just said, “selfdefense (inaudible).” Like something to that 

effect, kind of . . .
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[Court]: Okay. And that is the extent of it?

[Juror No. 11]: Yes.

[Court]: Okay. And then you parted ways and you 

came up here?

[Juror No. 11]: Yes.

[Court]: . . . [D]o you think it will impact your ability 

to be fair and impartial in this case?

[Juror No. 11]: Yes.

* * *

[State]: Sir, when you got back, did you talk to any of 

the other jurors about that?

[Juror No. 11]: Yeah, I did tell the other jurors that I might 

be dispensed because someone came up and 

spoke to me, and then I said, “It wasn’t 

anything bad,” and then they’re like, “No, we 

don’t want to hear it.” I’m like, “No, that’s 

not what I’m saying.” I just said, “It wasn’t –

I don’t want anybody to be scared.”

* * *

[Defense]: Did you happen to tell who said something to 

you or just state it like that, that someone 

approached you?
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[Juror No. 11]: I just said “someone.” That’s it.

* * *

Juror No. 11 is removed from the presence of the courtroom[.]

[Court]: Okay, discussions from the State?

[State]: Judge, I think we’re at a mistrial. He told 

that he was approached and then told all the 

other jurors what happened, and I think that 

that – we don’t know how they’re 

interpreting it. They could interpret it either 

way. I think regardless, there’s going to be 

something else in the jury room that’s not 

evidence.

[Court]: Okay.

[Defense]: I agree, Judge. I mean, I don’t know if it will 

negatively impact my client. I don’t know if 

there were other jurors that were in the line 

that heard or witnessed.

Id. at 25-27. After this discussion, the trial court explained, “I’m in the rare 

position I don’t think we’re at a mistrial. I’m willing to individually voir dire 

jurors and see what they know, what they don’t know. I think we are in a 

position to dismiss this juror, but I don’t know if he’s tainted this whole jury 

pool.” Id. at 27. 
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[5] Juror 11 was dismissed and escorted back to the jury room to gather his things. 

The trial court then called each juror individually into the courtroom to “see 

where their minds are and the way they feel about [what Juror 11 told them].” 

Id. at 28. Although all the prospective jurors were sworn in at the beginning of 

voir dire, the jurors were not placed under oath again during individual 

questioning regarding the communication at issue. All jurors were questioned 

in the presence of the observers in the gallery.

[6] Juror 1 was informed by the trial court that a juror had been dismissed and 

asked if she knew why. She responded, “I just had heard that he had been 

spoken to by a family member” but “didn’t catch” whose family. Id. at 29. 

Juror 1 stated she was not influenced by this and felt comfortable sitting on the 

jury. The trial court cautioned her “not [to] talk about what we’ve just 

discussed here . . . until we get going.” Id. at 30. After the juror left, defense 

counsel expressed concern, stating “we already have a discrepancy. He said he 

didn’t say who approached. [Juror 1] says it was by a family member.” Id.

[7] Juror 2 knew that Juror 11 had been dismissed because “[h]e was spoken to by 

the family of the accused[,]” but did not know what was said. Id. at 31. When 

asked whether it would impact her ability to serve, she stated “I don’t think so, 

no.” Id. at 32. She explained that when Juror 11 came back “[h]e was already 

in the room and he just said that he was approached by a family member” and 

recalled that every juror was in the room at the time, but she was “not totally 

certain.” Id. Juror 2 stated she was comfortable sitting on the jury and the trial 
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court asked that she “not discuss what [they] just talked about with the jurors.” 

Id.

[8] When Juror 3 was brought into the courtroom, she did not know a juror had 

been dismissed. The trial court asked if she heard Juror 11 say anything to the 

jury and she replied that she “didn’t hear anything.” Id. at 33. Juror 3 stated it 

would “not really” impact her ability to be fair and impartial and she was 

comfortable serving on the jury. Id. Before Juror 3 was removed, the trial court 

stated: “Please don’t discuss what we talked about out here with the other 

jurors, for now anyway.” Id. After Juror 3 was removed, defense counsel 

stated, “as soon as [the court] asked that question, she looked over at us and 

then she said she didn’t hear anything, but the other jurors said everybody was 

in there.” Id. at 34.

[9] Juror 4 knew a juror has been dismissed because “[s]omeone from the 

Defendant’s party, family contacted him[,]” but did not know anything else. Id. 

When asked whether “dismissing that juror or what you heard about what was 

said or what you know” would impact his ability to be fair and impartial, he 

responded “I don’t think so.” Id. Juror 4 was comfortable being a juror in the 

case and the trial court “ask[ed] that [he] not discuss with the other jurors what 

[he] talked about here.” Id. at 35.

[10] Juror 5 was also aware a juror had been dismissed: “He said a family member 

talked to him. He did not tell us why, because I didn’t want to know, because 

no one talked to me so I was good.” Id. at 36. Juror 5 stated she was 
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comfortable serving on the jury and the interaction did not impact her ability to 

be fair and impartial. The trial court asked that Juror 5 “not discuss what we 

talked about here with the rest of the jury.” Id.

[11] Next, Juror 6 was called into the courtroom. Juror 6 stated, “I heard in the jury 

room . . . that someone came up and talked to him.” Id. at 37. He continued, 

“I didn’t hear exactly what they said. It was a family member of the accused. 

He didn’t really say what was said.” Id. Juror 6 stated the incident did not 

impact his ability to sit on the jury and he could be fair and impartial. When 

the State asked, “[D]oes anything about what you heard make you 

uncomfortable sitting on this jury today?,” he responded, “Not markedly . . . 

[s]omewhat but not very much.” Id. at 38. The trial court asked what Juror 6 

meant when he stated “somewhat[.]” Id. Juror 6 responded, “Well, I mean, I 

imagine an incident in my head – an impassioned plea on the part of a family 

member, but really, I didn’t really hear much of what happened and I think it 

would be pretty easy for me to dismiss that image from my mind during 

deliberation.” Id. He believed he could make a decision based on the facts of 

the case rather than the “the image in [his] mind.” Id. Juror 6 was removed 

from the courtroom without being instructed not to discuss the conversation

with other jurors. 

[12] Juror 7 was aware Juror 11 had been dismissed because he was approached 

during lunch by a family member but did not know what was said. Juror 7 

stated her ability to be fair and impartial was not impacted and she felt 
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comfortable sitting on the jury. Juror 7 was asked not to discuss the 

conversation in the courtroom with the other jurors.

[13] Juror 8 knew Juror 11 had been dismissed because “someone approached him” 

but he did not know who. Id. at 41. When asked whether he knew what was 

said when Juror 11 was approached, Juror 8 stated, “No. We told him, you 

know, say no more at that point.” Id. He stated the incident would not impact 

his ability to be fair and impartial and he was comfortable sitting on the jury. 

The trial court did not admonish Juror 8 not to discuss the conversation.

[14] Juror 9 was called into the courtroom and questioned but did not know that a 

juror had been dismissed and had no knowledge of the incident. Juror 9 stated 

he could be fair and impartial. Juror 9 was asked not to discuss the 

conversation with the other jurors and was then returned to the jury room. 

Juror 10 was also unaware a juror had been dismissed, did not hear about the 

incident, and said he could be a fair and impartial juror. The trial court stated, 

“I ask that you not discuss . . . what we’ve talked about out here with the other 

jurors[.]” Id. at 43.

[15] After informing Juror 12 that a juror had been dismissed, Juror 12 guessed the 

juror was dismissed because “he had had contact with somebody . . . someone 

from the Defendant’s family.” Id. at 43-44. However, Juror 12 did not know 

what the individual said to Juror 11 and stated he could be a fair and impartial 

juror and was not uncomfortable sitting on the jury. The trial court did not 

admonish Juror 12 to refrain from discussing the conversation.
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[16] Alternate Juror 1 was not aware a juror had been dismissed or of the incident. 

He stated he could be fair and impartial, and the trial court informed him that 

he was officially part of the jury and asked him not to discuss the conversation 

with the other jurors. Alternate Juror 2 was the remaining and now only 

alternate. When called into the courtroom, she stated that she was aware a 

juror had been removed because “somebody talked to him.” Id. at 46. She did 

not know what was said but felt she could be a fair and impartial juror and was 

comfortable sitting on the jury. Alternate Juror 2 was returned to the jury room 

without the trial court asking her not to discuss the conversation. 

[17] After each juror was individually questioned, the following colloquy ensued:

[State]: I don’t think that changes my position. . . . [One 

juror] said that it would make him somewhat 

uncomfortable and he said he thinks he can set it 

aside but he still expressed concern.

[Another juror] . . . was looking directly at the 

Defendant’s family and the entire time she is telling 

us she didn’t hear anything and didn’t know 

anything.

I think it’s somewhat unfair to ask these jurors to sit 

and listen to evidence for two days knowing that 

someone was approached. I know that would make 

me uncomfortable, and I definitely wouldn’t 

probably say that, but I would just have concerns 

that even if they want to be on this jury and they 

want to be fair and impartial and they want to say 

they’re fine with it, it’s still asking them to kind of 
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take something back to the jury room with them 

that’s not in evidence. 

And I would be concerned that if the State secured a 

conviction on this case, it would be a ripe issue for 

appeal.

[Court]: Okay.

[State]: And it would be back here again. And this case is 

old, I get it. I’m the fourth prosecutor on it. I am so 

ready to get it over with. [The victim] is so ready to 

get this over with. I just don’t – [Jones] is ready to 

get this over with, and I want to make sure that we 

are giving all parties a fair trial that is deserved.

So that is my record. I would have concerns after 

this that the jury is going to be focused on other 

issues.

* * *

[Defense]: I agree, Judge. I don’t – regardless of what was 

stated here as you polled the jury, I believe the jury 

has been tainted. I don’t think all of the jurors were 

actually honest about – I mean, some jurors said he 

told everybody, some jurors said they didn’t hear 

anything. I know the Court said that’s possible, but 

they’re all discussing – human nature, they’re 

discussing the issues, especially being polled.

I think my client is at a disadvantage. You know, 

while they’re considering hearing the evidence, 

there may – human nature, be looking out in the 
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audience to see if they can read individuals’ [sic] in 

the audience position, and I just think it’s going to –

my client is disadvantaged, is biased, I agree with 

the State.

And I know my client would, if we are not 

successful, would be appealing on this very issue, 

especially because of the record that’s being made. 

We believe that the pool has been tainted.

[Court]: Okay. All right. Counsel both have made their 

record. I guess I still stand against it. After talking 

to all the jurors, I don’t think that the initial was 

sufficiently egregious to warrant a mistrial. I think 

talking to the jurors gave me more . . . confidence 

that those who were aware of it are not disturbed by 

it. 

We’ve had other juries where jurors have been, you 

know, exposed to various things. I don’t think this 

rises to those levels. I can’t think of any in 

particular, but they did not warrant a mistrial. I 

don’t believe the circumstances under this case as I 

understand them to be warrant a mistrial.

So I appreciate the argument of counsel, both state 

and defense. The mistrial is denied and we’ll 

proceed.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 14 of 24

Id. at 46-49.2 After a recess, the trial court admonished the gallery: “We, 

obviously, had an incident involving someone in the gallery. I don’t know if it 

was the folks here or someone that’s not here, but you can’t interact with the 

jurors. You just can’t do it. It puts everything at jeopardy for no reason. It 

usually harms the people you intend to help, so however well-intentioned it 

may be, it just can’t be done.” Id. at 50. The State requested the trial court 

admonish the jury as well, but the trial court declined the request and stated, “I 

think we reviewed it sufficiently with the jury. I may speak to it briefly, but it 

will not be in the form of an admonishment.” Id. 

[18] The trial commenced. At the end of the first day of trial, the State again 

addressed its concern of jury taint: “The entire trial today, through all of the 

evidence, the Defendant’s family has been speaking, making comments. If I 

can hear it, the jury definitely can. They can see it. Specifically when the Court 

is sustaining State’s objections, they are reacting. Given the issues that we have 

already had today, I am really concerned at how this is affecting the jury and 

that its [sic] not being addressed.” Id. at 161-62. The trial court then addressed 

the gallery and asked everyone to keep their thoughts to themselves or they 

would be removed. 

[19] Following the two-day trial, the jury found Jones guilty of Counts III through 

V, namely battery resulting in bodily injury, domestic battery, and aggravated 

 

2 The Chronological Case Summary (“CCS”) indicates that, on May 14, a motion for mistrial was orally and 

jointly made by defense counsel and the State. See Appellant’s App., Vol. II at 17. 
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battery. The jury found Jones not guilty of Count II, kidnapping. On May 24, 

the trial court held a sentencing hearing where Jones stipulated that he was an 

habitual offender. See Tr., Vol. III at 60. Jones received one year each for 

Counts III and IV, to be served concurrently; nine years for Count V, 

aggravated battery, to run consecutively to the sentences for Counts III and IV. 

The sentence for Count V was enhanced by ten years for the habitual offender 

finding for a total of twenty years in the Indiana Department of Correction. See

id. at 73; Appealed Order at 1. Jones now appeals.

Discussion and Decision 

I. Standard of Review

[20] In order to prevail on appeal from the denial of a motion for mistrial, a 

defendant must establish that the questioned information or event was so 

prejudicial and inflammatory that he or she was placed in a position of grave 

peril to which he or she should not have been subjected. Bisard v. State, 26 

N.E.3d 1060, 1068 (Ind. Ct. App. 2015), trans. denied. “The gravity of the peril 

is determined by the probable and persuasive effect on the jury’s decision.” Id. 

A trial court is in the best position to evaluate whether a mistrial is warranted 

“because it can assess first-hand all relevant facts and circumstances and their 

impact on the jury.” Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014). We, 

therefore, review a trial court’s decision to deny a motion for a mistrial for an 

abuse of discretion. Id. An abuse of discretion occurs when the trial court’s 
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decision is clearly against the logic and effect of the facts and circumstances 

before the court. Vaughn v. State, 971 N.E.2d 63, 68 (Ind. 2012). 

II. Motion for Mistrial

[21] “An impartial jury is the cornerstone of a fair trial, guaranteed by the Sixth 

Amendment and Article 1, Section 13 of our Indiana Constitution.” Ramirez, 7 

N.E.3d at 936. To preserve impartiality and prevent taint, we prohibit 

unauthorized contacts and communications with jurors. Id. “Yet, no trial is 

perfect, and we have long held that [w]hile courts have a duty to ensure an 

impartial jury . . . jurors need not be absolutely insulated from all extraneous 

influences.” Id. (quotation omitted). Therefore, a trial court is entrusted with 

the difficult responsibility of determining when extraneous influences become 

irreparable taint warranting a new trial. Id. We acknowledge that a mistrial is 

“an extreme remedy warranted only when no other curative measure will 

rectify the situation.” Bisard, 26 N.E.3d at 1067-68.

[22] Our supreme court recently clarified the proper procedure for trial courts to

follow in instances of juror misconduct. A defendant who moves for a mistrial 

due to suspected jury taint is entitled to a presumption of prejudice only upon 

showing, by a preponderance of the evidence,3that: (1) extra-judicial contact or 

communications between jurors and unauthorized persons occurred, and (2) the 

 

3

Preponderance of the evidence “simply means the greater weight of the evidence.” Kishpaugh v. Odegard, 17 

N.E.3d 363, 373 (Ind. Ct. App. 2014) (internal quotations omitted).
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contact or communications pertained to the matter before the jury. Ramirez, 7 

N.E.3d at 939 (citing Currin v. State, 497 N.E.2d 1045, 1046 (Ind. 1986)). Once 

a defendant makes these two showings, the burden shifts to the State to rebut 

this presumption of prejudice by demonstrating that any contact or 

communications were harmless, id., namely that the defendant was convicted 

by an impartial jury, Wahl v. State, 51 N.E.3d 113, 116 (Ind. 2016) (noting the 

constitutional right to an impartial jury is “so basic to a fair trial its infraction 

can never be treated as harmless error.”). If the State does not rebut this 

presumption, the trial court is required to grant the defendant a new trial. 

Ramirez, 7 N.E.3d at 939. Additionally, our supreme court explained:

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 

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. 

Id. at 940 (quotation omitted).

[23] However, if the defendant fails to meet the two-part showing, the presumption 

of prejudice is inapplicable and the trial court must apply the probable harm 

standard for juror misconduct, in which a new trial should be granted only if 

the misconduct is “gross and probably harmed” the defendant. Id. at 939. In 
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egregious cases, in which juror conduct “fundamentally compromises the 

appearance of juror neutrality,” the trial court should skip the two-part test, find 

irrebuttable prejudice, and declare a mistrial. Id. “At all times, trial courts have 

discretion to decide whether a defendant has satisfied the initial two-part 

showing necessary to obtain the presumption of prejudice or a finding of 

irrebuttable prejudice.” Id. This standard is applicable whenever a defendant 

seeks a mistrial due to suspected jury taint, regardless of when the alleged taint 

occurred. Wahl, 51 N.E.3d at 116. 

[24] Jones maintains the two-part inquiry has been met here and he was therefore 

entitled to a presumption of prejudice. Jones then goes on to argue that because 

the State failed to rebut the presumption and “actively sought to establish the 

jury was not impartial[,]” it cannot demonstrate harmlessness. Brief of the 

Appellant at 30. The State does not challenge that Jones has met the two-part 

inquiry. The State repeatedly expressed concern at trial that the jury might not 

be impartial due to the extra-judicial communication and moved for a mistrial, 

but on appeal it argues that the trial court did not abuse its discretion in denying 

the motion for a mistrial because the extra-judicial contact was harmless and 

Jones was convicted by an impartial jury. Brief of Appellee at 12. “If the State 

is able to demonstrate that a jury was impartial, the presumption of prejudice is 

rebutted and the contact or communications can be treated as harmless.” Wahl, 

51 N.E.3d at 116. 

[25] Our court’s decision in Bisard guides our analysis in this case. During Bisard’s 

operating while intoxicated trial, Juror 8-2 conducted an internet search 
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regarding the instruments used to analyze blood samples for alcohol and 

reversals in another state. Juror 8-2 shared this information with the other 

jurors. 

As soon as the trial court learned of Juror 8-2’s misconduct, the 

court brought Juror 8-2 into the courtroom and inquired into his 

actions. Juror 8-2 admitted to conducting independent research 

and informed the court of his findings. The trial court 

immediately removed Juror 8-2 from the jury and had him 

escorted from the building. The trial court then summoned the 

remaining jurors, one at a time, into the courtroom, where the 

trial court questioned each of them about what they knew of 

Juror 8-2’s actions. Some of the jurors knew nothing of Juror 8-

2’s conduct. Those jurors who were somewhat aware of what 

Juror 8-2 had done assured the trial court that they could set 

aside anything they had heard and decide the case based solely 

on the evidence they had heard or had seen in the courtroom.

* * *

. . . Based on its questioning of the jurors, the jurors’ assurances 

that they could decide the case on the evidence presented in the 

courtroom, in conjunction with its assessment of the jurors’ 

demeanor, the trial court determined that it was “perfectly 

comfortable” with allowing the jury to begin deliberations. 

Given the trial court’s assessment that the dismissal of Juror 8-2 

removed any taint on the jury, the State was not put in the 

position to have to present additional evidence demonstrating 

that Juror 8-2’s conduct was harmless.

26 N.E.3d at 1069. Therefore, the trial court’s dismissal of Juror 8-2 was 

sufficient to remove any taint. The State did not dispute that misconduct 

occurred or that it pertained to an issue before the jury; therefore, the defendant 
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was entitled to a presumption of prejudice and the burden shifted to the State to 

rebut the presumption pursuant to Ramirez. However, the court explained that 

based on the trial court’s assessment that the juror’s dismissal removed any 

taint, the State was not put in the position of demonstrating additional evidence 

that the contact was harmless. Id. Similarly here, the trial court ultimately

determined the extra-judicial communication was essentially harmless and it 

did not merit the extreme measure of a mistrial. In fact, the trial court stated it 

was confident that the jurors who were aware of the incident were not 

influenced by it. 

[26] Moreover, the evidence in the record establishes that the jury was impartial. 

After Juror 11 was removed, each remaining juror indicated that the incident 

would not impact their ability to be impartial and felt comfortable sitting on the 

jury. The record also reveals that none of the jurors knew the content of the 

communication. 

[27] We acknowledge that the trial court did not place the jurors under oath during 

questioning, it failed to provide consistent admonishments or in some cases 

failed to provide an admonishment altogether, and the individual questioning 

transpired in the presence of those in the gallery. The record also establishes 

that there were inconsistencies between Juror 11’s statement regarding the 

information he relayed to the other jurors and statements by several jurors

about what they heard. Ultimately, however, we must determine whether these

failures of the trial court and inconsistencies between the juror’s statements 

warrant a mistrial. We conclude they do not. Although a defendant is 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 21 of 24

constitutionally entitled to a trial by an impartial jury, “no trial is perfect[.]” 

Ramirez, 7 N.E.3d at 936. Because the trial court is in the best position to view 

the jurors, assess their credibility, and “gauge the surrounding circumstances of 

an event and its impact on the jury,” Bisard, 26 N.E.3d at 1069, it is entrusted

with the difficult responsibility of determining when extraneous influences 

become irreparable taint warranting a new trial, Ramirez, 7 N.E.3d at 936. 

Here, the trial court questioned each juror individually, determined they were 

impartial, and confidently denied the parties’ motion for a mistrial. Therefore, 

we will not second-guess the trial court’s determination that the “extreme 

remedy of a mistrial was unnecessary here.” Woods v. State, 98 N.E.3d 656, 672 

(Ind. Ct. App. 2018), trans. denied; see also Bisard, 26 N.E.3d at 1069. 

Conclusion

[28] Because the trial court properly removed Juror 11 and the remaining jurors 

indicated they could be impartial, we conclude that the trial court’s 

determination that the extreme remedy of a mistrial was unnecessary is 

supported by the record and therefore, was not an abuse of discretion. 

Accordingly, we affirm.

[29] Affirmed.

Riley, J., concurs.

Mathias, J., dissents with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 22 of 24

I N T H E

COURT OF APPEALS OF INDIANA

Kevin Jones,

Appellant-Defendant,

v.

State of Indiana, 

Appellee-Plaintiff.

Court of Appeals Case No.

18A-CR-1320

Mathias, Judge, dissenting.

[30] Because I believe that the trial court abused its discretion by denying the State’s 

and Jones’s joint request for a mistrial, I respectfully dissent. 

[31] As set forth by the majority, a defendant is entitled to a presumption of 

prejudice if he or she shows by a preponderance of the evidence that extrajudicial contact or communications between jurors and unauthorized persons 

occurred and that the contact or communications pertained to the matter before 

the jury. Ramirez, 7 N.E.3d at 939 (citing Currin, 497 N.E.2d at 1046). The State 

acknowledges on appeal that Jones met this burden, as the evidence clearly 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 23 of 24

shows that one of Jones’s family members contacted Juror 11 and spoke to him 

about the case against Jones. It was then the State’s burden to rebut this 

presumption of prejudice. Id. But here, the State made no attempt at trial to 

meet this burden because it too requested a mistrial.4 And the efforts by the trial 

court to ensure that the jury was untainted by the contact fell short of rebutting 

this presumption of prejudice. 

[32] The trial court rightly dismissed Juror 11, who had been contacted by Jones’s 

relative. But when the trial court questioned the remaining jurors, it failed to 

place them under oath as required by Indiana Jury Rule 24, and it 

inconsistently admonished the jurors with regard to the propriety of discussing 

the incident amongst themselves. The trial court also denied the State’s request 

to admonish the jury as a whole. 

[33] Furthermore, after Juror 11 was removed, five of the remaining jurors gave 

what I consider to be only half-hearted assurances as to whether the incident 

with Juror 11 would impact their ability to act as jurors. When asked if she felt 

comfortable sitting on the jury after the incident with Juror 11, Juror 1 stated, “I 

believe so.” Tr. Vol. 2, p. 30. Although Juror 2 stated that the she felt she could 

be fair and impartial, when asked if the incident with Juror 11 had an impact on 

her, Juror 2 replied, “I don’t think so, no.” Id. at 31–32. Juror 3 stated that the 

 

4

I do not mean to suggest that a trial court must always grant a request for mistrial that is joined by both 

parties. But the fact that both parties here requested a mistrial indicates that neither party felt that the jury 

was untainted. And the State made no effort at trial to rebut the presumption of prejudice. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 24 of 24

incident with Juror 11 would “not really” impact her ability to be fair and 

impartial. Id. at 33. And when asked if dismissing Juror 11 for the extra-judicial 

communications Juror 11 had with Jones’s family member would impact his 

ability to be fair and impartial, Juror 4 stated, “I don’t think so.” Id. at 34. And 

although Juror 6 stated that the incident would not impact his ability to be fair 

and impartial, when asked if the incident made him uncomfortable to be on the 

jury, he replied, “Not markedly . . . [s]omewhat but not very much.” Id. at 38. 

None of these are exactly unequivocal responses. 

[34] After the jurors were individually questioned, the State still maintained the need 

for a mistrial, noting that Juror 6 stated that he would be “somewhat” 

uncomfortable sitting on the jury and that another juror had been looking at 

Jones’s family while being questioned. Id. at 47. The defense noted that there 

was also some inconsistency among the remaining jurors as to whether they 

had heard Juror 11 tell them what had happened. Still, the trial court decided 

not to declare a mistrial. 

[35] Given the procedural irregularities governing the questioning of the jurors and 

the equivocal responses of several of the jurors regarding the effect the incident 

involving Juror 11 had on their ability to comfortably sit as jurors, I must 

conclude that the presumption of prejudice was not rebutted. Indeed, as noted, 

at trial, the State made no attempt to rebut the presumption because it too 

believed a mistrial was required. Accordingly, I would hold that the trial court 

abused its discretion by denying the State’s and defense’s joint requests for a 

mistrial, and I would reverse Jones’s convictions and remand for a retrial.