Phillip Keck, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2023)

MEMORANDUM DECISION

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Phillip Keck (Keck), appeals his conviction for invasion of privacy, a Class A misdemeanor, Ind. Code § 35-46-1-15.1(a)(2), and harassment, a Class B misdemeanor, I.C. § 35-45-2-2(a)(4)(A).

[2] We affirm.

ISSUE

[3] Keck presents this court with one issue on appeal, which we restate as: Whether the trial court abused its discretion by denying Keck's motion for a mistrial.

FACTS AND PROCEDURAL HISTORY

[4] During the summer of 2019, Keck and L.W. began dating. However, in March 2021, the two ended their relationship. L.W. obtained a protective order against Keck on March 26, 2021. That order was served on Keck on March 29, 2021, at 3:25 p.m. Among other things, the protective order prohibited Keck from contacting or harassing L.W. On the same day the protective order was served on Keck, L.W. found a package containing a camera along with a letter when she arrived home that evening. Because of the letter's signature, “Him,” which was how she had stored Keck's phone number, as well as the letter's content, L.W. believed the package was from Keck. (Transcript Vol. II, p. 63).

[5] On April 1, 2021, Keck called L.W. Keck additionally called L.W. twice the following day and tried to Facetime her. On April 3, 2021, Keck called L.W. twice and texted her once. Keck texted L.W. again on April 4. On April 6, 2021, while L.W. was visiting her mother in Jeffersonville, L.W.’s car caught fire. The fire department was called, and L.W.’s car had to be towed. Immediately after the tow truck left, Keck was observed standing in the empty parking lot. When L.W. attempted to confront Keck, he ran away. L.W. reported the incident to the Sellersburg Police Department.

[6] Around April 17, 2021, a friend reached out to L.W. about two Instagram accounts and one OnlyFans account that appeared to have been created with L.W.’s name. The accounts featured explicit semi-naked images of L.W. in her underwear. After the friend shared screenshot photos of the accounts, L.W. reported the accounts to Instagram and OnlyFans. L.W. also contacted the police.

[7] When L.W. spoke with Officer Jarin Dodds (Officer Dodds), she reported that “someone” was “posting explicit images of her on various social media websites.” (Tr. Vol. II, p. 69). L.W. believed that her “ex-boyfriend” Keck could have created those accounts to post her pictures, and she provided Officer Dodds with Keck's contact information. In the course of the ensuing investigation, Detective Drew LaMaster (Detective LaMaster) found seven pictures of L.W. that had been posted on one of the Instagram accounts on Keck's phone. Also, between April 8, 2021, and April 11, 2021, Keck's web browsing history showed he visited OnlyFans 421 times, 17 of which were associated with an OnlyFans account in L.W.’s name.

[8] On June 8, 2021, the State filed an Information, charging Keck with Class A misdemeanor distribution of an intimate image, distribution or exhibition of obscene matter, and invasion of privacy, and Class B misdemeanor harassment. The State sought to introduce evidence of Keck's prior bad acts under Indiana Evidence Rule 404(b). Keck then filed several motions in limine, one of which demanded that the State limit its case to acts by Keck between March 29, 2021, and April 17, 2021.

[9] On May 10, 2022, the trial court convened Keck's two-day jury trial. On the morning of the first day of his trial, the State moved to dismiss the Class A misdemeanor distribution of an obscene image charge. Outside the presence of the jury, the trial court granted Keck's motion in limine, and prohibited the State from admitting evidence that he had set fire to L.W.’s car or any other pending criminal charges involving Keck.

[10] L.W. testified that despite the protective order, Keck contacted her by phone calls and texts. L.W. stated that Keck had left a camera, along with a letter outside her house, and she also testified about the time she saw Keck standing in the parking lot after her car was towed. L.W. further testified that she did not create the Instagram and OnlyFans pages and that the images posted on those sites were taken during the time she dated Keck, and that she and Keck were the only people who had access to those images.

[11] Officer Dodds testified that L.W. believed that the Instagram and OnlyFans accounts had been created by her ex-boyfriend. The following exchange then occurred:

[State]: So, [L.W.] described this as an ex-boyfriend. Did she say who that was?

[Officer Dodds]: Yes.

[State]: Who was it?

[Officer Dodds]: [ ] Keck.

[State]: Okay and have you ever met [ ] Keck?

[Officer Dodds]: I've met him on another call that we had dealt with where he was chasing---

(Tr. Vol. II, p. 71). The State immediately cut off Officer Dodds and directed him to answer another question. Keck objected before the State could finish the redirect question and said, “Your Honor, I'd move for a mistrial at this point. We went over this in our [m]otions in limine ․ I'd move to dismiss with prejudice.” (Tr. Vol. II, p. 71). Once the jury was excused, Keck argued that Officer Dodds’ testimony alluded to a prior bad act not between March 29, 2021, and April 17, 2021. After hearing arguments, the trial court determined that Officer Dodds’ impermissible testimony did not rise to the “standard of grave peril” and stated:

I'm going to deny the [m]otion [for mistrial], but any testimony about [ ] Keck, you are prohibited from bringing up any other police contacts with him in any other cases. You just can't do that unless I change that Order. This case is about this case, these particular charges and that's it.

(Tr. Vol. II, pp. 73-74). When the jury returned, the trial court admonished it by stating:

Alright, Ladies and Gentlemen, we're going to proceed with the evidence. I'm going to instruct you to disregard the last statement [ ] Officer [Dodds] made about having some other contact in some other sense. It's not relevant at all in this case so that is not to be considered as evidence for any reason by you.

(Tr. Vol. II, p. 75). After that, Detective LaMaster testified that not only had Keck's phone been used to sign into one of the Instagram accounts with semi-naked images of L.W., but there were also seven similar images of L.W. on Keck's phone matching those that had been posted in that account. Detective LaMaster added that Keck's web browsing history indicated he had visited L.W.’s OnlyFans page seventeen times.

[12] At the close of the evidence, the jury acquitted Keck of distribution of an intimate image but found him guilty of Class A misdemeanor invasion of privacy conviction and Class B misdemeanor harassment. On June 27, 2022, during the sentencing hearing, the trial court sentenced Keck to a consecutive term of one year on the Class A misdemeanor and six months on the Class B misdemeanor.

[13] Keck now appeals. Additional information will be provided as necessary.

DISCUSSION AND DECISION

[14] Keck argues that the trial court erred in denying his motion for mistrial. We review the trial court's denial of a motion for mistrial for an abuse of discretion. Caruthers v. State, 926 N.E.2d 1016, 1020 (Ind. 2010). We afford the trial court such deference on appeal because the trial court is in the best position to evaluate the relevant circumstances of an event and its impact on the jury. Lehman v. State, 777 N.E.2d 69, 72 (Ind. Ct. App. 2002). When appealing from the denial of a motion for mistrial, the appellant must prove that the statement or conduct in question was so prejudicial and inflammatory that he found himself in grave peril. Alvies v. State, 795 N.E.2d 493, 506 (Ind. Ct. App. 2003), trans. denied. We determine the gravity of the peril based upon the probable persuasive effect of the misconduct on the jury's decision rather than upon the degree of impropriety of the conduct. Id. A motion for mistrial is an extreme remedy that can only be used when no other action can be taken to resolve the issue. Lucio v. State, 907 N.E.2d 1008, 1010-11 (Ind. 2009).

[15] Keck was granted his motion in limine pursuant to Evid. Rule 404(b), which prohibited the admission of evidence of other crimes, wrongs, or bad acts that he had allegedly committed. The testimony of Officer Dodds, that he had encountered Keck previously, clearly violated the motion in limine. However, the question is whether a mistrial was warranted as a result.

[16] Where the trial court adequately admonishes a jury, an admonishment is presumed to cure any error that may have occurred. Cherry v. State, 971 N.E.2d 726, 733 (Ind. Ct. App. 2012) trans. denied. Furthermore, “[o]n appeal, where the jury's verdict is supported by independent evidence of guilt such that we are satisfied that there was no substantial likelihood that the evidence in question played a part in the defendant's conviction, any error in admission of prior criminal history may be harmless.” James v. State, 613 N.E.2d 15, 22 (Ind. 1993).

[17] Keck contends that the “admonishment was not sufficient to cure the error[,]” “the likelihood that [Officer] Dodds’ utterance contributed to the jury's finding is substantial[,]” and that the appropriate remedy was to declare a mistrial. (Appellant's Br. pp. 11, 14). We disagree. Other than his speculative argument that the trial court's prompt admonition was inadequate to cure any potential prejudice, there is nothing in the record to overcome the presumption that the jury obeyed the trial court's admonishment. Moreover, Keck offers no specific argument as to how Officer Dodds’ impermissive statement probably had a persuasive effect on the jury's decision as it pertained to his convictions. See Underwood v. State, 644 N.E.2d 108, 111 (Ind. 1994) (finding that the defendant failed to demonstrate prejudice that likely influenced the jury's verdict based on an officer's testimony that violated the motion in limine where the trial court admonished the jury and overwhelming evidence supported defendant's guilt). There was strong evidence of Keck's guilt for his invasion of privacy and harassment convictions, and Officer Dodds’ impermissible brief statement did not pose a grave peril to which he should not have been exposed. See, e.g., Lucio, 907 N.E.2d at 1011 (holding that denial of mistrial was not abuse of discretion where statement that defendant had previously been in jail was fleeting, inadvertent, and only a minor part of evidence against defendant and trial court admonished jury to disregard statement).

[18] Here, the trial court was in the best position to gauge the impact of Officer Dodds’ testimony and issue an appropriate remedy to cure the error. Under the circumstances, we hold that Keck's claim of error cannot be sustained in light of the trial court's admonition, coupled with the strong presumption that the jury followed the trial court's instructions. Consequently, we hold that the trial court did not abuse its discretion by denying Keck's motion for mistrial.

CONCLUSION

[19] Based on the foregoing, we conclude that the trial court did not abuse its discretion by denying Keck's motion for mistrial.

[20] Affirmed.

[21] Altice, C. J. and Pyle, J. concur

Memorandum Decision by Judge Riley

Chief Judge Altice and Judge Pyle concur.