SIZEMORE v. STATE (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Daniel Sizemore repeatedly contacted Darla Butcher, despite knowledge of a protective order that prohibited such conduct. During Sizemore's ensuing jury trial on stalking and invasion of privacy charges, Butcher testified that Sizemore had been looking for a gun around the time he was sending her Facebook messages. This testimony violated a standing in limine order, and Sizemore moved for a mistrial. The trial court denied that motion, and Sizemore was ultimately convicted of stalking. Sizemore now appeals, raising one issue for our review: Whether the trial court abused its discretion when it denied Sizemore's motion for a mistrial.

[2] We affirm.

Facts and Procedural History

[3] Sizemore and Butcher began dating in 2019, and Sizemore moved in with Butcher soon after. Problems in the relationship arose, and over the next five years, the relationship was “on again off again,” although the two were still “living in the same home.” Tr. Vol. II at 87. In 2023, Sizemore “physically hurt” Butcher, so Butcher obtained a protective order. Id. at 88. The protective order prohibited Sizemore from having contact with Butcher and was valid until July 14, 2025.

[4] Despite the protective order, Sizemore continued to have contact with Butcher over the next year and a half. In one incident, Sizemore “attacked” Butcher when she was leaving work.¹ Tr. Vol. II at 89. Sizemore “struck [Butcher] in the face with his fist and dragged [her] by [the] hair to [her] car.” Id. Sizemore got in the seat behind Butcher and “had his arm around [her] neck restricting [her] breathing.” Id. Butcher “jumped out of the moving vehicle to get away from” Sizemore. Id.

[5] Sizemore also frequently contacted Butcher telephonically and electronically. Sizemore called Butcher dozens of times between late November and early December 2024. The calls typically lasted only a few seconds, as Butcher would tell Sizemore she was “going to report him and to leave [her] alone,” and she would then “immediately hang up.” Tr. Vol. II at 92. Sizemore also sent Butcher more than 100 text messages, in which he repeatedly urged Butcher to meet with him. When Butcher did not respond to Sizemore's texts and calls, he would “show up to [her] home [at] all hours of the night screaming through [her] windows” or would “pac[e] outside [her] office screaming [her] name.” Id. at 90.

[6] In early December 2024, although Butcher had blocked Sizemore on Facebook, Sizemore created a new profile to send Butcher messages. Sizemore accused Butcher of having relations with other men and threatened to hurt those men. Sizemore stated that “everybody involved is going to get what they deserve,” Ex. Vol. IV at 114; he was “going to put a pistol to” one of the men, id. at 108; and he was “probably going to have to carry a gun in public,” id. at 110.

[7] Sizemore also sent Butcher “e[xp]licit sexual messages,” Tr. Vol. II at 96; informed her that he was close to her home; and urged Butcher to have sexual intercourse with him. Butcher repeatedly told Sizemore to stop contacting her and reminded him of the protective order, but Sizemore continued to send her messages and call her through the Facebook app.

[8] Sizemore's messages made Butcher feel “[u]nsafe” and “uncomfortable.” Tr. Vol. II at 115. Working with law enforcement, Butcher arranged to meet Sizemore at a public location, where he was arrested. The State charged Sizemore with stalking as a Level 4 felony, stalking as a Level 5 felony, stalking as a Level 6 felony, invasion of privacy as a Level 6 felony, and invasion of privacy as a Class A misdemeanor.

[9] In preparation for trial, Sizemore filed a motion in limine, and during the ensuing pre-trial hearing, Sizemore requested that the trial court preclude evidence regarding Sizemore's attempts to obtain a gun because the evidence would be unfairly prejudicial.² The trial court granted the motion.

[10] During Sizemore's jury trial, the Facebook messages were admitted as evidence. After the messages were admitted, the prosecutor elicited testimony from Butcher regarding the messages, and Butcher volunteered that somebody told her Sizemore was “looking for a gun.” Tr. Vol. II at 116. Sizemore objected and moved for a mistrial on the grounds that this testimony violated the in limine order. After dismissing the jury from the courtroom, the trial court determined that it would not order a mistrial. The trial judge and counsel for Sizemore then together prepared an admonishment for the jury. The trial court brought the jury into the courtroom and admonished them that there was “no evidence that [Sizemore] was looking for a gun,” that any suggestion of this was “hearsay,” and that the jury was “to disregard that question and that answer as though you never heard it, and it is to play no part in your decision.” Id. at 129.

[11] At the conclusion of the trial, the jury found Sizemore guilty of stalking as a Level 5 felony, stalking as a Level 6 felony, and invasion of privacy as a Class A misdemeanor. Sizemore then admitted to having a prior stalking conviction against Butcher.³ Due to double jeopardy concerns, the trial court ultimately entered a conviction for one count, stalking as a Level 4 felony,⁴ for which it sentenced Sizemore to ten years in prison. This appeal ensued.

Discussion and Decision

The Trial Court Did Not Abuse Its Discretion by Declining to Order a Mistrial

[12] Sizemore argues that the trial court abused its discretion by denying his motion for a mistrial. “Because the trial court evaluates first-hand the relevant facts and circumstances at issue and their impact on the jury, it is in the best position to evaluate whether a mistrial is warranted.” Weisheit v. State, 26 N.E.3d 3, 15 (Ind. 2015) (citing Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014)). “We accordingly review the trial court's denial of a motion for a mistrial for an abuse of discretion.” Id. (citing Ramirez, 7 N.E.3d at 935).

[13] The “overriding concern” in determining whether a mistrial is warranted 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)). This is because “ ‘[t]he remedy of mistrial is ‘extreme.’ ” Id. (quoting Warren v. State, 757 N.E.2d 995, 998–99 (Ind. 2001)). It is “strong medicine that should be prescribed only when ‘no other action can be expected to remedy the situation’ at the trial level.” Id. (quoting Gambill v. State, 436 N.E.2d 301, 304 (Ind. 1982)).

[14] Here, Butcher volunteered testimony that somebody told her Sizemore was “looking for a gun.” Tr. Vol. II at 116. This was clearly an “inadvertent mistake by a civilian witness,” Lucio, 907 N.E.2d at 1011, rather than a deliberate violation of the in limine order. “Innocent violation of a motion in limine does not automatically warrant a mistrial.” Pittman v. State, 885 N.E.2d 1246, 1255 (Ind. 2008) (citing Bradley v. State, 649 N.E.2d 100, 108 (Ind. 1995); Williams v. State, 387 N.E.2d 1317, 1320–21 (Ind. 1979)).

[15] Moreover, this inadvertent violation did not prejudice Sizemore to the extent that he was placed in a position of grave peril. As relevant here, to prove that Sizemore committed stalking, the State had to prove that he (1) engaged in a “knowing or an intentional course of conduct involving repeated or continuing harassment of” Butcher; (2) “that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened”; and (3) that “actually cause[d]” Butcher “to feel terrorized, frightened, intimidated, or threatened.” Ind. Code § 35-45-10-1 (defining “stalk”); see also id. § 35-45-10-5 (criminal stalking statute). “Harassment” is defined as “conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress.” Id. § 35-45-10-2.

[16] The State presented ample evidence that, despite knowledge of the protective order, Sizemore physically attacked Butcher when she was leaving work, showed up to her house uninvited several times, and sent her a deluge of unsolicited sexual and other messages. Moreover, Sizemore mentioned carrying or using a gun in several of the Facebook messages that were admitted without objection. Any prejudice from Butcher's testimony that Sizemore was looking for a gun was cumulative of this evidence. See Short v. State, 539 N.E.2d 939, 942 (Ind. 1989) (holding that testimony regarding defendant's prior criminal activity that formed the basis for denied mistrial motion was cumulative of defendant's own testimony regarding such criminal activity).

[17] Last, the trial court admonished the jury not to consider Butcher's testimony regarding Sizemore looking for a gun. A “clear instruction, together with strong presumptions that juries follow courts’ instructions and that an admonition cures any error, severely undercuts” the need for a mistrial. Lucio, 907 N.E.2d at 1011 (collecting cases).

[18] For all these reasons, Butcher's testimony did not place Sizemore “in a position of grave peril.” Lucio, 907 N.E.2d at 1010. The trial court thus did not abuse its discretion by declining to order a mistrial, and we affirm Sizemore's conviction.

[19] Affirmed.

FOOTNOTES

1.   Butcher testified that the attack occurred after the protective order was issued but did not provide a specific date.

2.   Sizemore's original motion in limine did not list his attempts to obtain a gun as evidence sought to be precluded. Sizemore supplemented his motion with this request during the hearing.

3.   Sizemore's admission obviated the need to hold a second phase of the trial on the remaining two charged counts.

4.   The Level 5 felony offense was elevated to a Level 4 felony based on Sizemore's prior conviction. See Ind. Code § 35-45-10-(c) (providing that stalking is a Level 4 felony when “the person has an unrelated conviction for an offense under this section against the same victim.”)

Felix, Judge.

Brown, J., and Scheele, J., concur.