MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 25 2018, 10:00 am regarded as precedent or cited before any 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 Andrew L. Teel Curtis T. Hill, Jr. Haller & Colvin, P.C. Attorney General of Indiana Fort Wayne, Indiana Larry Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ricky L. Williford, January 25, 2018 Appellant-Defendant, Court of Appeals Case No. 17A04-1608-CR-1852 v. Appeal from the DeKalb Superior Court State of Indiana, The Honorable Kevin P. Wallace, Appellee-Plaintiff. Judge Trial Court Cause No. 17D01-1504-F2-1
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 1 of 16 Statement of the Case [1] Ricky L. Williford (“Williford”) appeals his conviction for Level 2 felony
possession of a destructive device or explosive with intent to kill, injure,
intimidate, or to destroy property (“possession of a destructive device”) 1 and his
status as an habitual offender.2 On appeal, he argues that: (1) the trial court
abused its discretion when it denied his motion for a mistrial on his possession
of a destructive device conviction because, during the habitual offender phase of
his trial, a juror impeached the possession of a destructive device verdict; (2) the
trial court erred when it impaneled a new jury to hear the habitual offender
phase of his trial after the first jury could not reach a determination; and (3)
there was insufficient evidence to support his possession of a destructive device
conviction. Because we conclude that the trial court did not abuse its discretion
or err and because there was sufficient evidence, we affirm Williford’s
conviction.
[2] We affirm.
Issues 1. Whether the trial court abused its discretion when it denied Williford’s motion for a mistrial after the first phase of his trial.
2. Whether the trial court erred when it impaneled a new jury to hear the habitual offender phase of Williford’s trial.
1 IND. CODE § 35-47.5-5-8. 2 I.C. § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 2 of 16 3. Whether the State produced sufficient evidence to convict Williford of Level 2 felony possession of a destructive device.
Facts [3] At some point in 2014, Williford began to believe that Joshua Rupert
(“Rupert”), whom he had known for “quite a few years,” owed him four
hundred dollars. (Tr. Vol. 1 at 163). Rupert disputed the debt, so he did not
pay Williford the money. As a result, Williford began sending Rupert
threatening text messages and making threatening calls, demanding the money.
[4] One day in late September or early October 2014, Williford came to the garage
where Rupert worked on vehicles in Auburn, Indiana and “beat[]” on the door
demanding to be let in. (Tr. Vol. 1 at 166). When Rupert answered the door,
Williford pushed him backwards, pulled out a gun, and began “ranting and
raving” that Rupert owed him money. (Tr. Vol. 1 at 166). He fired a round
from the gun and threatened to shoot Rupert’s dog if Rupert did not pay him
back by the end of the week. Williford then tipped over a display case and ran
out the garage door. Later, Williford sent Rupert a text asking if he “had the
money yet,” and Rupert told him that he did not. (Tr. Vol. 1 at 168).
[5] On the night of October 13, 2014 and into early morning of October 14,
Williford spent time hanging out with his friends Doug Bishop (“Bishop”) and
Ryan Likens (“Likens”). Around 5:00 a.m. on October 14, Bishop and
Williford drove Likens home so that he could go to work. After dropping off
Likens, they drove by Rupert’s garage and noticed that his light was on.
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 3 of 16 Williford directed Bishop, who was driving, to “keep going and turn down
Indiana South.” (Tr. Vol. 1 at 107). Bishop continued to drive down a couple
more streets and then parked in a cul-de-sac. At that point, Williford “jumped
out and took off,” carrying a bag and heading “north towards Rupert’s
[house].” (Tr. Vol. 1 at 107). Bishop sat in his van “wondering what [was]
going on,” and a couple of minutes later he heard a “pretty good size[d]”
explosion. (Tr. Vol. 1 at 108). After that, Williford came back, running and
“out of wind.” (Tr. Vol. 1 at 108). He told Bishop to take off, so they drove
away from the cul-de-sac.
[6] Williford told Bishop where to drive, and they eventually turned onto Eighth
Street in Auburn. There, Williford asked Bishop to pull over. He took off his
shoes and discarded them in a trash bin on Eighth Street. Bishop asked him
why he had done that, and Williford said that “he just wanted to get rid of
them.” (Tr. Vol. 1 at 111). Williford then pulled another pair of shoes out of
the bag he had taken with him when he had left the van and put those shoes on.
[7] In the meantime, at around 5:45 to 5:50 a.m., an explosion had occurred in
Rupert’s truck, which was parked outside of his garage. Detective Richard
Page (“Detective Page”), a detective and bomb technician with the Fort Wayne
Police Department, responded to the scene. In the truck, he discovered a blue
cooler with damage indicating that it had contained an explosive device. The
lid of the cooler was gone, and its zipper was torn apart. As a result of the
explosion, the door and roof of the truck had “buckled outward.” (Tr. Vol. 1 at
216). The windshield and rear window of the truck were missing, and there
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 4 of 16 were “little dents” in the top of the truck and in the seat, which were consistent
with damage from BBs or fragments that would have been inside of the device
when it exploded. (Tr. Vol. 1 at 217). There were BBs and debris in the truck
and on the asphalt next to the truck, and the truck’s windshield was found
seventy feet to the north.
[8] Based on the evidence at the scene, Detective Page determined that the
explosive device had been a “low explosive”— an explosive made from “things
you can buy off the shelf” that “detonate at a rate slower than thirty-three
hundred feet per second.” (Tr. Vol. 1 at 226). He estimated that the device had
been made of at least six to ten grams of flash powder, a mix of chemicals used
mostly in the pyrotechnics industry.
[9] Investigators interviewed Bishop several times after the explosion and learned
about his activities with Williford on the morning of October 14, although
Bishop gave differing accounts about their activities. The investigators also
found shoes matching the description of Williford’s shoes in a trash bin on
Eighth Street.
[10] On April 7, 2015, the State charged Williford with Level 2 felony possession of
a destructive device and with being an habitual offender.3 The trial court held a
jury trial from May 10-12, 2016. At trial, Bishop testified to his activities with
3 The State also charged Williford with a second count of Class A felony possession of a destructive device based on a separate incident regarding an explosive device. However, because the jury found Williford not guilty of that charge, we have not included the facts or charging information for that incident here.
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 5 of 16 Williford, as described above, on the morning that Rupert’s truck had exploded.
On cross-examination, he admitted that this account of events did not match
previous accounts he had given to the police. Bishop explained that he had
previously “not wanted to say anything at first” because he had been “freaked
out” and “trying to protect [himself]” and “everybody else involved.” (Tr. Vol.
1 at 125-26).
[11] Also during Bishop’s testimony, the State admitted a recording and transcript of
a phone call that Williford had made from jail to Bishop. During the call, the
following exchange occurred:
Williford: Hey, did they ahh get ahold of you and harass you a bit?
Bishop: Yeh.
Williford: Yeh. What ja tell them? What’d they say?
Bishop: Aw they were just – I don’t know man. They already knew everything.
Williford: Like what?
Bishop: About me and, it was strange.
Williford: About what?
Bishop: About me.
Williford: What do you mean about you?
Bish[op]: They were just – I don’t know – they were really strange about what they were saying.
Williford: They were trying to lead you on bro.
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 6 of 16 Bishop: Yep.
Williford: They were fishing.
Bishop: That’s what I figured.
Williford: [T]hey were fishing.
Bishop: Ri-right.
Williford: Hey remember that day in the van? I told – hey – You said, uh – you said “To the grave, beserk?”
Bishop: Right.
Williford: Hey, tha-that’s how it is bro. There ain’t nothing but you and me.
(State’s Ex. 11) (Misspellings and improper grammar in original). Bishop
testified that Bezerk had been a best friend of his. He explained that, during the
conversation in the van mentioned in the phone call, he had told Williford that
“they could take it to the grave like [he] and Bezerk did.” (Tr. Vol. 1 at 122).
However, he did not clarify what he had told Williford that they could take to
the grave.
[12] Cari Ann Day (“Day”), a woman who lived on Seventh Street in Auburn, also
testified. She said that the back of her house was on Eighth Street and that, on
October 14, 2014, she had seen a suspicious van drive “really slow[ly]” up
Eighth Street sometime between 6:00 and 8:00 a.m. (Tr. Vol. 1 at 155). The
van had stopped at the trash bins on the street, and the passenger had thrown a
pair of shoes into the trash. Day testified that she had reported the incident
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 7 of 16 because, when she told her mother about it, her mother had told her it might be
connected to the truck explosion. When Williford asked Day on cross-
examination whether she could narrow down the time frame for when she saw
the van, she responded that her mother had been at work when she called her,
so it must have been after 7:00 a.m. However, Day did not clarify how much
time had elapsed after seeing the van before she had called her mom.
[13] At the conclusion of the trial, the jury found Williford guilty of Level 2 felony
possession of a destructive device. The trial court asked whether the State or
Defense “wish[ed] to have the Jurors individually polled regarding the verdict,”
and Williford’s counsel responded “No your Honor.” (Tr. Vol. 2 at 85).
[14] After the jury returned its verdict, the trial court proceeded to the second phase
of the trial regarding Williford’s habitual offender allegation. During the jury
deliberations on the habitual offender charge, the trial court received a note
from a juror that said “I am feeling sicker and sicker. I cannot [] give him the
Habitual Offender vote[,] so I need you to excuse me and use one of the
alternates.” (Tr. Vol. 2 at 94). The trial court questioned the juror outside of
the presence of the rest of the jury, and she said that her blood pressure was
“going higher” because she did not “like being the only one who d[id not] agree
with everybody else.” (Tr. Vol. 2 at 98). She further explained that she had
gone along with the other jurors in finding Williford guilty of possession of a
destructive device but could not “put him in the Habitual Offender class”
because she did not “believe he was that bad.” (Tr. Vol. 2 at 98, 99). She said
she had had “some reasonable doubts” as to his guilt of the possession of a
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 8 of 16 destructive device but had concluded, after hearing Williford’s “intimidation”
in the jail phone call, that Williford “could be guilty of all the rest of it.” (Tr.
Vol. 2 at 99, 101).
[15] After the trial court talked to the juror, Williford moved for a mistrial on the
grounds that the juror had been coerced into agreeing to a guilty verdict on the
underlying offense. The trial court denied the motion for a mistrial as to phase
one, but it found that there was a mistrial as a result of a hung jury with respect
to the habitual offender phase.
[16] Thereafter, on June 28, 2016, the trial court convened a second jury to hear the
evidence regarding the habitual offender charge. During this second phase of
the trial, the State introduced Williford’s judgment of conviction for his 2002
Class B felony dealing in cocaine or a narcotic drug conviction and the
sentencing order for his 2007 Class C felony attempted robbery conviction.
Detective John Phillip Snover of the Auburn Police Department also testified
that Williford had been convicted of Level 2 felony possession of a destructive
device in the instant cause on May 12, 2016. At the conclusion of the
presentation of evidence, the jury found Williford to be an habitual offender.
[17] The trial court sentenced Williford to an executed term of twenty-five (25) years
for his possession of a destructive device conviction. This sentence was
enhanced by an additional ten (10) years for his habitual offender finding. The
trial court also ordered Williford to serve this sentence consecutively to any
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 9 of 16 previously imposed sentences, for an aggregate sentence of thirty-five (35)
years. Williford now appeals.
Decision [18] On appeal, Williford argues that: (1) the trial court abused its discretion when
it denied his motion for a mistrial; (2) the trial court erred when it impaneled a
second jury to try his habitual offender allegation; and (3) there was insufficient
evidence to prove that he possessed a destructive device. We will address each
of these arguments in turn.
1. Motion for Mistrial
[19] As stated above, Williford moved for a mistrial during the second phase of his
trial after a juror came forward and said that she had had “some reasonable
doubts” as to his guilt of possession of a destructive device. (Tr. Vol. 2 at 99).
He argued that the juror had impeached the jury’s verdict and that, accordingly,
the trial court should have declared a mistrial as to the first phase of the trial.
Because the trial court denied his motion, Williford now argues that the trial
court abused its discretion.
[20] First, we note that “‘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)), reh’g denied, cert. denied. Whether to grant or deny a motion for a
mistrial lies within the sound discretion of the trial court, and we will review the
trial court’s decision for an abuse of discretion. Id. at 480. “‘We accord great Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 10 of 16 deference to the trial court’s decision, as it is in the best position to gauge the
circumstances and the probable impact on the jury.’” Phillips v. State, 22 N.E.3d
749, 757-68 (Ind. Ct. App. 2014) (quoting Evans v. State, 855 N.E.2d 378, 386
(Ind. Ct. App. 2006) (internal quote omitted)), trans. denied. In determining
whether a mistrial is warranted, the relevant inquiry is whether the defendant
was placed in a position of grave peril to which he should not have been
subjected; the gravity of the peril is determined by the probable persuasive effect
on the jury’s decision. Id. at 758.
[21] It is a well-established rule in Indiana that a jury’s verdict may not be
impeached by jurors who subsequently submit a contradictory affidavit or
testimony. See Shaw v. State, 82 N.E.3d 886 (Ind. Ct. App. 2017). Our Indiana
Supreme Court has explained the policy concerns behind this rule as follows:
If this Court were to permit individual jurors to make affidavits or give testimony disclosing the manner of deliberation in the jury room and their version of the reasons for rendering a particular verdict, there would be no reasonable end to litigation. Jurors would be harassed by both sides of litigation and find themselves in a contest of affidavits and counter-affidavits and arguments and rearguments as to why and how a certain verdict was reached. Such an unsettled state of affairs would be a disservice to the parties litigant and an unconscionable burden upon citizens who serve on juries.
Stinson v. State, 313 N.E.2d 699, 704 (Ind. 1974).
[22] While Williford recognizes this precedent, he argues that the instant case is
different because the juror in this case volunteered information impeaching her
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 11 of 16 verdict while the jury was still impaneled. He claims that “[p]ermitting a juror
to change her mind while still empaneled [sic] is not meaningfully different
from permitting a juror to change her mind during polling.” (Williford’s Br.
27). We disagree.
[23] In Ward v. St. Mary Medical Ctr. of Gary, 658 N.E.2d 893, 895 (Ind. 1995), our
supreme court held that a jury’s verdict may not be impeached by the testimony
of a juror, even when the testimony is voluntary and the jury is still impaneled.
Williford asserts that this precedent does not apply because Ward was a civil
case rather than a criminal case. However, in support of its determination that
testimony while the jury is still impaneled may not impeach the verdict, the
Ward Court cited Karlos v. State, 476 N.E.2d 819, 824 (Ind. 1985), a criminal
case. Id. As a result, whether the case is criminal or civil, the general rule
remains the same: a jury’s verdict cannot be impeached by the voluntary
testimony of a juror, even when the jury is still impaneled. To create even a
limited exception “would perpetuate unending litigation ‘where no jury verdict
would ever be lasting or conclusive.’” Ward, 658 N.E.2d at 895 (internal
quotation omitted). Accordingly, we decline to deviate from Ward based on the
criminal context of the jury’s verdict.
[24] Further, “permitting a juror to change her mind while still impaneled” here
would not be, as Williford argues, equivalent to “permitting a juror to change
her mind during polling.” (Williford’s Br. 27). The object of polling the jury is
to “give the parties an opportunity to ascertain with certainty that a unanimous
verdict has been reached before the verdict is recorded and the jury discharged.”
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 12 of 16 Jelks v. State, 720 N.E.2d 1171, 1173 (Ind. Ct. App. 1999). If, during polling,
any juror dissents from the verdict, the remedy is that “the jury shall be sent out
to deliberate” again. I.C. § 34-36-1-9. See Jelks, 720 N.E.2d at 1173, 1174
(noting that INDIANA CODE § 34-36-1-9 applies to criminal cases through
INDIANA CODE § 35-35-2-2 and that “[t]he statute clearly provides that the
remedy for juror dissent that arises during the polling procedure is to return the
jury for deliberations . . .”).
[25] Here, Williford rejected the opportunity to poll the jury, so the trial court
moved on to the second phase of the trial. We have previously noted that
“[o]ne of the purposes of bifurcation is to keep convictions away from the jury
in their initial determination of guilt for the substantive crime charged.” Russell
v. State, 997 N.E.2d 351, 354 (Ind. 2013). Accordingly, during the habitual
offender phase of the trial, the jury members learned additional information
about Williford’s past convictions that they did not know during their
deliberation of his possession of a destructive device charge. Therefore, they
could no longer be sent back to deliberate on the possession of a destructive
device charge based on the same evidence that they had originally considered.
[26] In light of these factors, we conclude that the juror could not later impeach the
jury’s verdict, even though the jury was still impaneled. Thus, the trial court
did not abuse its discretion when it denied Williford’s motion for a mistrial.
2. Habitual Offender Adjudication
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 13 of 16 [27] Williford next argues that the trial court erred when it impaneled a second jury
to try the habitual offender charge after the second phase of the first trial ended
in a mistrial due to a hung jury. He asks us to interpret the relevant statutory
provision, INDIANA CODE § 35-50-2-8(h), as requiring the same jury who heard
the underlying offense phase of a trial to also hear the habitual offender phase.
However, this argument directly contradicts our supreme court’s holding that
INDIANA CODE § 35-50-2-8(h) permits the retrial by a second jury on a habitual
offender charge when the first jury cannot reach a verdict. See Stewart v. State,
688 N.E.2d 1254, 1258 (Ind. 1997). We decline Williford’s request to re-
evaluate this precedent.
3. Sufficiency of the Evidence
[28] Finally, Williford argues that there was insufficient evidence to support his
conviction for possession of a destructive device. Our standard of review for
sufficiency of the evidence claims is well-settled. We consider only the
probative evidence and reasonable inferences supporting the verdict. Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh the evidence or
judge witness credibility. Id. We will affirm the conviction unless no
reasonable fact finder could find the elements of the crime proven beyond a
reasonable doubt. Id. The evidence is sufficient if an inference may be
reasonably drawn from it to support the verdict. Id. at 147.
[29] In order to convict Williford of possession of a destructive device, the State had
to prove beyond a reasonable doubt that he: “possesse[d]” a “destructive device
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 14 of 16 or explosive with the knowledge or intent that it [would] be used to kill, injure,
or intimidate an individual or to destroy property.” I.C. § 35-47.5-5-8.
[30] Williford claims that there was insufficient evidence to support his conviction
because his conviction was based on Bishop’s testimony at trial, which was,
according to Williford, incredibly dubious. In general, the uncorroborated
testimony of one victim is sufficient to sustain a conviction. Holeton v. State, 853
N.E.2d 539, 541 (Ind. Ct. App. 2006). However, the incredible dubiosity rule
allows the appellate court to impinge upon the fact-finder’s assessment of
witness credibility when the testimony at trial was “so contradictory that the
verdict reached would be inherently improbable.” Moore v. State, 27 N.E.3d
749, 751 (Ind. 2015). “For the incredible dubiosity rule to apply, the evidence
presented must be so unbelievable, incredible, or improbable that no reasonable
person could ever reach a guilty verdict based upon that evidence alone.” Id. A
court will impinge upon the jury’s duty to judge witness credibility only “‘where
a sole witness presents inherently contradictory testimony which is equivocal or
the result of coercion and there is a complete lack of circumstantial evidence of the
appellant’s guilt.’” Id. (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind.
1994)) (emphasis added in Moore).
[31] We conclude that the incredible dubiosity rule does not apply here because
Bishop was not the sole witness, and there was circumstantial evidence of
Williford’s guilt. In addition to Bishop’s testimony, Rupert testified that
Williford had previously threatened him in his garage, and there was evidence
of a jail phone call in which Williford told Bishop to take it “[t]o the grave,
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 15 of 16 beserk.” (State’s Ex. 11). Day also corroborated Bishop’s testimony that
Williford had dumped his shoes in the garbage can on Eighth Street after the
explosion, and shoes matching the description of Williford’s shoes were found
in the garbage bin.4
[32] Based on these additional witnesses and evidence supporting Williford’s guilt,
we conclude that the incredible dubiosity rule does not apply. As Williford
does not otherwise challenge the sufficiency of the evidence, we find that there
was sufficient evidence to support Williford’s conviction.
[33] Affirmed.
May, J., and Brown, J., concur.
4 Williford claims that Day’s testimony did not corroborate Bishop’s testimony because too much time passed between the time when the explosion happened and the time when Day said Williford abandoned the shoes. However, Williford bases this argument on Day’s testimony that she called her mother to tell her about the van and that her mother was at work, which would have been after 7:00 a.m. This argument fails to account for the fact that Day did not clarify during her testimony how much time had passed after she saw the van on Eighth Street before she called her mother. Moreover, she testified that she saw the van between 6:00 and 8:00 a.m., which was consistent with the timeline to which Bishop testified. Accordingly, we conclude that Day’s testimony did corroborate Bishop’s testimony.
Court of Appeals of Indiana | Memorandum Decision 17A04-1608-CR-1852 | January 25, 2018 Page 16 of 16