Pursuant to Ind.A ppellate 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 : ATTORNEYS FOR APPELLEE : SUZY ST. JOHN GREGORY F. ZOELLER Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

PRINCE SANTIAGO, ) ) Appellant

- Defendant, ) ) vs. ) No. 49A05

- 1312

- CR

- 619 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Christina Klineman, Commissioner Cause No. 49F10

- 1307

- CM

- 045417

August 18, 2014 MEMORANDUM DECISION
- NOT FOR PUBLICATION FRIEDLANDER, Judge2

Prince Santiago appeals following his conviction of Resisting Law Enforc e ment 1 as a class A misdemeanor. Santiago presents the following issue for our review: Did the trial court abuse its discretion in denying Santiago’s motion for a mistrial?
We affirm. On the afternoon of July 11, 2013, Officer Lee Rabensteine of the Indianapolis Metropolitan Police Department was dispatched to respond to a report of a theft. The suspect was described as a light

- skinned black man wearing grey shorts and no shirt, with long dreadlocks and multiple tattoos. The suspect was r eported to be running west on 34th Street. Officer Rabensteine drove toward the area he believed the s uspect would be he aded and saw a man matching the description he had been given , who was later identified as Santiago, crossing the street. Santiago looked directly at Officer
Rabensteine and then took off run ning. Officer Rabensteine activated his patrol car’s
emergency lights and drove alongside Santiago. Officer Rabensteine then exited his patrol car and yelled for Santiago to stop. Santiago did not comply and continued to flee. Officer Rabenstein e pursued Santiago on foot , but lost sight of him as he cut between hou ses. Other officers then joined Officer Rabensteine and set up a perimeter. Officer Rabenstei ne waited in an alley for abou t one minute before he spotted Santiago running westbound. Officer Rabensteine again yelled for Santiago to stop and pursued him o n foot. Officer Rabensteine lost sight of Santiago as he ran around the side of a duplex, which Officer Rabensteine believed Santiago had entered

. Officers

1 Ind. Code Ann. § 35

- 44.1

- 3

- 1 (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular Session and Second Regular Technical Sessio n of the 118th General Assembly).3

surrounded the duplex and Officer Rabensteine knocked on the front door, asking the occupants to c ome out. The owner of t he adjoining apartment came out and consented to a search of his apartment. When the officers confi rmed that Santiago was not inside , they continued shouting for the occupants of the other apartment to come out. Eventually, a

woma n stuck her head out an upstairs window, and Officer Rabensteine saw Santiago walk by behind her. Eventually, Santiago came downstairs and surrendered to the police. When he did so, Officer Rabensteine observed that Santiago’s hair had been roughly cut

a nd that there were hair clippings along the collar of his shirt and the back of his neck. As a result of these events, the State charged Santiago with class A misdemeanor resisting law enforcement. A jury trial was he ld on November 25, 2013. Santiago ’ s theory of defense was that he was not the individual who had run from Officer Rabensteine, and that he had been inside th e apartment with his girlfriend. Santiago claimed that when he saw that police had surrounded the apartment, he cut off his dreadloc ks in an attempt to conceal his identity because he knew that a warrant had been issued for his arrest due to a probation violation

. Specifically, in opening statements, defense counsel stated that Santiago had “freak[ed] out” because he knew he had a “pr obation violation warrant, and the police [were] probably coming to take him to jail.” Transcript at 84. After discussing the matter with counsel , the trial court ruled that the State was free to elicit testimony from Officer Rabensteine that there was a warrant for Santiago’s arrest for a prob ation violation, but that evidence concerning the crime for which Santiago was on probation wa s not admissible.4

On the State’s direct examination of Officer Rabensteine, the following exchange occurred : Q: And did he have any warrants for his arrest? A. He did have a warrant for his arrest. Q: Do you know what that was for? A: It was either a C or B felony . . . . Id. at 108. At that point, Santiago objected and requested a mistrial. The trial court denied th e motion for a mistrial and instructed the jury to disregard the testimony concerning the crime for which Santiago was on probation, noting specifically that it was irrelevant and “very well may not be accurate.” Id. at 112

- 13. At the conclusion of the

e vidence, the jury found Santiago guilty as charged . Santiago now appeals. Santiago argues that the trial court abused its discretion in deny ing his motion for a mistrial. “We review a trial court’ s decision to deny a mistrial for abuse of discretion bec ause the trial court is in ‘ the best position to gauge the surrounding circumstances of an event and its impact on the jury. ’ ” Pittman v. State , 885 N.E.2d 1246, 1255 (Ind. Ct. App. 2008) (quoting McManus v. State , 814 N.E.2d 253, 260 (Ind. 2004)). “ A mi strial is an extreme remedy that is warranted only when less severe remedies will not satisfactorily correct the error. ” Banks v. State , 761 N.E.2d 403, 405 (Ind. 2002). To prevail on an appeal from the denial of a motion for a mistrial, a defendant must establish that the event or information precipitating the motion was so prejudicial and inflammatory that he was placed in a position of grave peril to which he should not have been subjected. Burks v. State , 838 N.E.2d 510 (Ind. Ct. App. 2005), trans. d enied . We determine the gravity of the peril by considering the probable persuasive effect on the5

jury’s decision. Id. Reversible error is seldom found where the trial court has admonished the jury to disregard the questioned statement. Id. Santiago argues that the testimony set forth above amounted to an evidentiary harpoon. “An evidentiary harpoon is the placing of inadmissible evidence before the jury with the deliberate purpose of prejudicing the jurors against the defendant.” Kirby v.
State , 7 74 N.E.2d 523, 535 (Ind. Ct. App. 2002), trans. denied

. In certain circumstances, the injection of an evidentiary harpoon may constitute prosecutorial misconduct requiring a mistrial. Roberts v. State , 712 N.E.2d 23 (Ind. Ct. App. 1999). To prevail on s uch a claim, the defendant must show that: (1) the prosecution acted deliberately to prejudice the jury; and (2) the evidence was inadmissible. Id. Moreover, as with any other request for a mistrial , a defendant alleging an evidentiary harpoon must furth er establish that he was “placed in a position of grave peril to which he should not have been subjected.” Jewell v. State , 672 N.E.2d 417, 424 (Ind. Ct. App. 1996), trans. denied

. As an initial matter, we are unconvinced by Santiago’s argument that the prosecuting attorney deliberately elicited testimony concerning the crime for which Santiago was on probation. The trial court had previously ruled that the prosecution could “ask the officer about the warrant, and that it’s a probation violation.” Trans cript at 87. The prosecuting attorney did not ask Officer Rabensteine about the crime for which Santiago was on probation; instead, the State asked Officer Rabensteine whether there was a warrant for Santiago’s arrest and, upon receiving an affirmative re sponse, what the warrant was for . In other words, the State’s question was designed to elicit testimony that the warrant had been issued for a probation violatio n, which the trial court6

had previously ruled admissible

. The fact that the prosecuting attor ney subsequently argued that the defense had opened the door to the admission of evidence concerning the crime for which Santiago was on probation does nothing to alter the nature of the question it actually asked. Because Santiago has not established tha t the prosecution acted deliberately, he has not established prosecutorial misconduct amounting to an evidentiary harpoon. Moreover, even assuming that the prosecuting attorney and/or Officer Rabensteine acted deliberately, we cannot conclude that Santiago was placed in a position of grave peril. By informing the jury that there was a warrant out for his arrest for a probation violation, Santiago had already put the jury on notice that he had a criminal history. Moreover, the trial court adequately admoni shed the jury that it was to disregard Officer Rabensteine’s testimony concerning the crime for which Santiago was on probation, noting specifically that it was irrelevant and “very well may not be accurate.” Id. at 112

- 13. We are unconvinced by Santiago ’s arguments that the admonishment in this case was insufficient to cure the error ; i ndee d, the trial court stated that it believed the jury understood the admonishment because the jurors nodded when it was given. We therefore conclude that Santiago has n ot rebutted the presumption that the admonishment cured the error. See Emerson v. State , 952 N.E.2d 832, 840 (Ind. Ct. App. 2011) (explaining that “where the trial court adequately admonishes a jury, an admonishment is presumed to cure any error that may have occurred” ), trans. denied

. Under these circumstances, we cannot conclude that Officer Rabensteine’s brief reference to a “C or7

B felony” prejudiced Santiago to such a degree as to necessitate the extreme remedy of a mistrial. Transcript at 108. Jud gment affirmed. VAIDIK, C.J., and MAY, J., con c ur.