Michael Klement v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 6, 2020
• Docket: 18A-CR-3155
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Feb 06 2020, 5:40 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James Harper Curtis T. Hill, Jr. Harper & Harper, LLC Attorney General of Indiana Valparaiso, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Klement, February 6, 2020 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3155 v. Appeal from the LaPorte Circuit Court State of Indiana, The Honorable Thomas Alevizos, Appellee-Plaintiff Judge Trial Court Cause No. 46C01-1802-F4-136

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020 Page 1 of 11 [1] Michael Klement appeals his conviction of Level 4 felony burglary of a

dwelling. 1 He raises two issues on appeal, which we restate as: (1) whether

reversible error occurred when the jury was not instructed on the definition of

“dwelling,” which is an element of the crime of which Klement was convicted;

and (2) whether the trial court committed reversible error when it denied

Klement’s motion for mistrial after a witness mentioned prior bad acts by

Klement. We affirm.

Facts and Procedural History [2] In October of 2017, Darleen Patrick had been living at her home in La Porte,

Indiana, for 30 years. Off and on during these years, one or more of her

children, including Michael Klement, have lived with her. On October 25,

2017, Patrick was admitted to the hospital for a week. Before Patrick left her

home, she forbade Klement entering her home while she was in the hospital.

Patrick locked both of the exterior doors to her house and she locked the

interior door to her bedroom. Patrick kept the keys for the doors on a chain

around her neck during her hospital stay. The only spare key for the locks was

in possession of her daughter, who lived in an RV on Patrick’s property.

[3] Upon returning home from the hospital, Patrick discovered a number of

possessions missing from her home, including prescription medicines Norco

1 Ind. Code § 35-43-2-1(1).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020 Page 2 of 11 and Xanax, jewelry, an electronic tablet, a gun, and around $200.00 in cash.

She also discovered Facebook messages in which Klement reached out to

friends to inquire if they would be interested in buying a handgun. Patrick

confronted Klement, and he admitted taking the missing items. Klement

promised he would retrieve and return the items. He then sent a Facebook

message to his ex-girlfriend, Bailee Hoops, stating he needed back the gun that

he had given her to sell.

[4] Patrick gave Klement the opportunity to pay her $2,500.00 as reimbursement

for the stolen goods he could not retrieve. When Klement did not give her the

money, Patrick printed out the incriminating Facebook messages from her

phone and gave them to Detective James Ferguston, who was assigned to the

case. The police then arrested Klement for the burglary. Klement was charged

with Level 4 felony burglary 2 and Level 5 felony carrying a handgun without a

license with a prior conviction within fifteen years. 3

[5] While in jail, Klement told his cellmate that his mom had kicked him out and

had forbidden him from coming into the house again. Klement also told his

cellmate that he had broken into Patrick’s house using a butter knife and then

he went on to discuss the details of his crime, including giving the gun to Hoops

to sell in return for a share of the profit.

2 Ind. Code § 35-43-2-1(l). 3 Ind. Code § 35-47-2-l(e)(2).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020 Page 3 of 11 [6] Klement sent letters to Patrick and called her while awaiting trial. Klement

wanted Patrick to tell the police she was “overmedicated” at the time she filed

the police report. (Tr. Vol. 2 at 79.) Klement sent an “Affidavit of Statement”

for Patrick to fill out and submit. (Ex. 6.) Klement called Patrick several times,

telling her to turn in the form and pay the $300.00 misdemeanor fine so he

would be released.

[7] During opening statements at trial, the State mentioned Klement’s history of

stealing things from Patrick as the reason Patrick had barred him from entering

and staying at her home. Klement objected, and the trial court overruled his

objection. Klement responded to the State’s allegation by emphasizing that

attorney statements are not evidence.

[8] In her testimony, Patrick mentioned Klement recently had been released from

jail. Klement objected, and the trial court instructed the State to tell Patrick not

to mention it again. The State agreed to tell her again, but also advised the

court “she’s been advised three or four times.” (Tr. Vol. 2 at 50.) Nevertheless,

Patrick mentioned two more times that Klement had been in jail. After the first

of those two additional mentions, Klement objected and requested a continuing

objection. He also moved for a mistrial, which the court subsequently denied.

Klement did not seek admonishment. After the State rested, Klement again

moved for a mistrial, and once again, the court denied it. The State suggested

Klement have the court give a limiting instruction regarding Patrick’s

testimony, but Klement refused that suggestion. As the parties and court

discussed final instructions, Klement again raised his motion for a mistrial,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020 Page 4 of 11 which was denied, and Klement once again denied the offer of an

admonishment.

[9] During that discussion of final instructions, the trial court explicitly asked if

either party wanted to include the definition of “dwelling” in the jury

instructions. (Id. at 241.) Klement stated the definition was “self-explanatory.”

(Id.) The court then commented it would prefer not to include the instruction,

citing a recent Supreme Court case in which the trial court’s jury instructions

had “erroneously amplified the statutory definition of dwelling by declaring that

a specific set of facts constituted dwelling instead of leaving to the jury that

issue.” (Id. at 242.)

[10] The jury found Klement guilty of both burglary and carrying a handgun

without a license with a prior conviction within fifteen-years. For burglary, the

court sentenced Klement to nine years with two years suspended, and for

carrying a handgun without a license with a prior conviction within fifteen-

years, the court sentenced Klement to four years with two years suspended.

The court ordered those sentences served consecutively.

Discussion and Decision 1. Omitted Jury Instruction [11] Instruction of the jury falls under the trial court’s discretion, and we will reverse

only for an abuse of that discretion. Benefiel v. State, 716 N.E.2d 906, 914 (Ind.

1999), reh’g denied, cert. denied 531 U.S. 830 (2000). “To constitute an abuse of

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020 Page 5 of 11 discretion, the instructions given must be erroneous, and the instructions taken

as a whole must misstate the law or otherwise mislead the jury. We will

consider jury instructions as a whole and in reference to each other, not in

isolation.” Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010).

[12] Klement asserts the trial court committed fundamental error when it failed to

give a jury instruction defining “dwelling,” which is an element of Level 4

felony burglary, 4 because a criminal defendant “is entitled to have the jury

instructed on all the elements of the charged offense.” (Appellant’s Br. at 13

(quoting Taylor v. State, 922 N.E.2d 710, 716 (Ind. Ct. App. 2010), reh’g denied,

trans. granted, trans. vacated). Fundamental errors are those that occur only in

“extraordinary circumstances” when the mistakes made are considered “so

prejudicial to the rights of a defendant as to make a fair trial impossible.”

Hardley v. State, 905 N.E.2d 399, 402 (Ind. 2009) (quoting Barany v. State, 658

N.E.2d 60, 64 (Ind. 1995)).

[13] The State argues Klement cannot raise this argument on appeal because he

invited any error that occurred. Invited errors are those that a party commits or

invites or that occur as “a natural consequence of [the party’s] own neglect or

misconduct.” Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014) (quoting Wright

v. State, 828 N.E.2d 904, 907 (Ind. 2005)), reh’g denied, cert. denied 574 U.S. 1077

(2015), reh’g denied 135 S. Ct. 1524 (2015). Invited error forecloses all future

4 Level 4 felony burglary, as charged against Klement occurs when one breaks and enters the dwelling of another with the intent to commit a felony or theft therein. Ind. Code § 35-43-2-1(1).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020 Page 6 of 11 opportunity for appellate review. Batchelor v. State, 119 N.E.3d 550, 556 (Ind.

2019). Klement claims he did not invite the trial court’s failure to instruct the

jury on the term “dwelling.” We disagree.

[14] During discussion of final jury instructions, the court and parties discussed

including the definition of “dwelling” in the jury instruction for burglary.

Klement indicated such an instruction seemed unnecessary and he answered in

the negative when asked whether he wanted any additional instructions. (Tr.

Vol. 2 at 241-242.) Klement was then asked if he had any problems with the

proposed jury instructions, to which he replied no. (Id.) When asked directly

whether he wanted a definition for “dwelling,” Klement stated there was no

need for a definition because “it’s self-explanatory…. It’s any place of human

habitation.” (Id. at 241.) Not only did Klement not object to the failure to

include an instruction defining “dwelling,” he positively affirmed the decision

to not include such a definition. Accordingly, Klement cannot challenge this

alleged error on appeal. 5 See Durden v. State, 99 N.E.3d 645, 655-56 (Ind. 2018)

(when party fails to object and expressly affirms the proposed jury instructions,

error invited).

5 Nor could the failure to so instruct constitute reversible error under the facts herein. Indiana law defines a “dwelling” as “a building, structure, or other enclosed space, permanent or temporary, movable or fixed that is a persons home or place of lodging.” Ind. Code § 35-41-1-10. During direct examination, Patrick testified that she has lived in her home for thirty years. (Tr. Vol. 2 at 45.) Moreover, we reject Klement’s suggestion that a one-week absence from one’s home for a hospital stay could call into question whether Patrick’s house was her dwelling. See, e.g., Ferrell v. State, 565 N.E.2d 1070, 1072 (Ind. 1991) (temporary absence does not alter the character of a home as a “dwelling”). Accordingly, there was no evidentiary dispute at trial. Patrick’s home met the definition of “dwelling.”

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020 Page 7 of 11 2. Denial of Motion for Mistrial [15] The trial court is best situated to decide whether to grant or deny a motion for a

mistrial because it is in the best position to assess the impact of an event on the

jury. Myers v. State, 887 N.E.2d 170, 189 (Ind. Ct. App. 2008), reh'g denied,

trans. denied. Declaring a mistrial is drastic and will occur only if there is no

other remedy. Id. Denial of a motion for mistrial will be reversed only upon a

showing of an abuse of discretion. Id. The defendant must demonstrate that he

was placed in a position of grave peril to which he should not have been

subjected and that no other action by the trial court could have remedied the

perilous situation. Id.

[16] Klement argues he was entitled to a mistrial because of prosecutorial

misconduct. Review of a properly preserved claim of prosecutorial misconduct

is conducted in two steps. Booher v. State, 773 N.E.2d 814, 817 (Ind. 2000).

First, we determine whether the prosecutor engaged in misconduct. Id. If we

conclude there was misconduct, then we determine whether said misconduct

“placed the defendant in a position of grave peril to which he or she would not

have been subjected.” Id. (quoting Coleman v. State, 750 N.E.2d 370, 374 (Ind.

2001)). Misconduct is determined by reference to case law and the Rules of

Professional Conduct.” Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), trans.

denied. The likelihood of the misconduct having a persuasive effect on the

jury’s decision determines the gravity of peril. Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020 Page 8 of 11 [17] A defendant properly preserves a claim of prosecutorial misconduct by first

objecting and then seeking an admonishment. Id. If the defendant is

unsatisfied with the admonishment, he should move for a mistrial. Id. “Failure

to request an admonishment or to move for mistrial results in waiver.” Id.

Klement had many opportunities to ask for an admonishment, but he did not.

Moreover, he declined to have one given when suggested by the court. Because

Klement did not properly preserve his claim of prosecutorial misconduct,

Klement has to establish both the grounds for misconduct and the additional

grounds for fundamental error. See Booher, 773 N.E.2d at 817.

[18] Klement’s allegation of misconduct hinges on two events. First, the prosecutor

alluded to Patrick’s tumultuous relationship with Klement during the opening

statement. Specifically, the prosecutor said, “she had problems [with] her son,

Michael Klement, in the past, stealing things from her, things disappearing.”

(Tr. Vol. 2 at 15.) Second, when the State was questioning Patrick on direct

examination, it asked if Klement was living at her house, and she mentioned

Klement’s recent release from jail.

[19] To prove misconduct, Klement must show the State placed him in a position of

grave peril when it acted deliberately to prejudice the jury by eliciting

inadmissible evidence. Jewell v. State, 672 N.E.2d 417, 424 (Ind. Ct. App.

1996), trans. denied. Klement cannot meet this burden. The State did not ask a

question intended to elicit an inadmissible answer from Patrick. The State

attempted to redirect Patrick in order to get a response to the question actually

asked. On cross-examination, Klement’s counsel similarly struggled with

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020 Page 9 of 11 Patrick being non-responsive. The State did not elaborate on Patrick’s

inappropriate testimony, focusing instead on moving Patrick away from the

reference. Klement fails to make any showing of prosecutorial misconduct.

[20] Furthermore, Facebook messages and witness testimony demonstrate Klement

took and then tried to sell the items stolen from Patrick’s home. Two witnesses

confirmed that Klement knew how to use a butter knife to break into Patrick’s

home. Klement admitted to Patrick that he committed the burglary. In light of

the overwhelming evidence of Klement’s guilt, Klement cannot demonstrate

that he was placed in a position of grave peril to which he should not have been

subjected. See, e.g., Norris v. State, 113 N.E.3d 1245, 1252-53 (Ind. Ct. App.

2018) (defendant failed to show allegedly improper statements “subjected him

to grave peril to which he would not have been subjected otherwise”), reh’g

denied, trans. denied.

Conclusion [21] Because Klement agreed a jury instruction defining “dwelling” was

unnecessary, he cannot allege error in the trial court’s failure to include such an

instruction. Klement failed to establish either the grounds for prosecutorial

misconduct or fundamental error, and he did not properly preserve his claim of

prosecutorial misconduct through jury admonishment. Therefore, the court did

not err when it denied Klement’s motion for mistrial. The trial court’s judgment

is affirmed.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020 Page 10 of 11 [22] Affirmed.

Najam, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3155 | February 6, 2020 Page 11 of 11