author: KIRSCH, Judge.

text:
    Gladys E. CURRY and Thomas Curry, Appellants-Plaintiffs, v. D.A.L.L. ANOINTED, INC., Appellee-Defendant.
    No. 45A04-1106-CT-290.
    Court of Appeals of Indiana.
    March 8, 2012.

      Joseph Banasiak, Highland, IN, Attorney for Appellants.
    Joseph Stalnack, Joseph Stalmack & Associates, P.O., Munster, IN, Attorney for Appellee.
   OPINION

KIRSCH, Judge.

Gladys E. Curry (“Gladys”) and her husband, Thomas Curry (“Thomas”)(eollee-tively “the Currys”), appeal from the trial court’s order dismissing their complaint for injuries and loss of consortium against D.A.L.L. Anointed, Inc. (“D.A.L.L.”). The Currys present several issues for our review, the folloving of which is dispositive: Whether the trial court erred by dismissing the complaint for lack of subject matter jurisdiction based on the exclusivity provision of the Indiana Worker’s Compensation Act (“the Act”).

We affirm.

FACTS JJVD PROCEDURAL HISTORY

The facts that were before the trial court follow. D.A.L.L. operated a McDonald’s Restaurant located in Hammond, Indiana. Gladys was employed by D.A.L.L. at that McDonald’s Restaurant. On October 15. 2007, Gladys went to the restaurant to a Tend an employee meeting scheduled to begin at 5:00 p.m., but arrived at the restaurant at approximately 3:45 p.m. in older to eat a meal beforehand. Some of the employee meetings were mandatory, but Gladys could not recall whether that meeting was mandatory. She was not scheduled to work and did not clock in as she would if she were working. Gladys could not recall if she received any pay for attendance at the meeting.

After ordering her meal, Gladys went outside the restaurant to eat her food in an outdoor dining area. While Gladys was outdoors, other employees gathered for the upcoming meeting. Gladys finished her meal and got up to take her tray and garbage to an outdoor garbage can when she tripped over a hazard on the ground in the outdoor dining area. Gladys fell to the ground and sustained injuries. A fellow employee drove Gladys to a hospital for treatment for her injuries.

D.A.L.L.’s worker’s compensation insurance carrier requested that she treat with a physician selected by the carrier and she did so. The medical bills related to that treatment were paid by D.A.L.L.’s worker’s compensation insurance carrier, as were additional medical bills submitted by Gladys. The worker’s compensation insurance carrier also made wage payments to her.

The Currys filed a complaint against D.A.L.L., McDonald’s Corporation, and Franchise Realty Corporation, seeking damages for injuries sustained by Gladys and for medical expenses incurred by Thomas for her care and for his related loss of consortium claim. By stipulation of the parties, McDonald’s Corporation and Franchise Realty Corporation were dismissed from the case. D.A.L.L. filed a motion to dismiss pursuant to Indiana Trial Rule 12(B)(1) and designated evidence in support. The Currys filed their response to the motion to dismiss and a list of evidence. D.A.L.L. filed a reply in support of the motion to dismiss and moved to strike certain portions of Gladys’s affidavit to the extent it conflicted with her deposition testimony, which was also designated. The trial court held a hearing on the motion to dismiss and entered an order dismissing the complaint with prejudice, but did not rule on the motion to strike. The Currys now appeal.

DISCUSSION AND DECISION

The Currys appeal claiming that the trial court erred by dismissing their complaint with prejudice. In particular, the Currys argue that: (1) Gladys never made a worker’s compensation claim with D.A.L.L. or its worker’s compensation carrier for her injuries; (2) Gladys was not on the clock with her employer at the time of her injury; and (3) although Gladys came to the restaurant for the employer-called meeting, her injuries occurred before the meeting had begun and while she was having a meal outside the scope of the employment-related activity.

Our Supreme Court has stated the following regarding the standard of review in situations such as this:

When an employer defends against an employee’s negligence claim on the basis that the employee’s exclusive remedy is to pursue a claim for benefits under the Indiana Worker’s Compensation Act, the defense is properly advanced through a motion to dismiss for lack of subject matter jurisdiction under Indiana Trial Rule 12(B)(1). In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court may consider not only the complaint and motion but also any affidavits or evidence submitted in support. In addition, the trial court may weigh the evidence to determine the existence of the requisite jurisdictional facts.
A review of the case authority shows that the standard of appellate review for Trial Rule 12(B)(1) motions to dismiss is indeed a function of what occurred in the trial court. That is, the standard of review is dependent upon: (i) whether the trial court resolved disputed facts; and (ii) if the trial court resolved disputed facts, whether it conducted an eviden-tiary hearing or ruled on a “paper record.”
If the facts before the trial court are not in dispute, then the question of subject matter jurisdiction is purely one of law. Under those circumstances no deference is afforded the trial court’s conclusion because appellate courts independently, and without the slightest deference to trial court determinations, evaluate those issues they deem to be questions of law. Thus, we review de novo a trial court’s ruling on a motion to dismiss under Trial Rule 12(B)(1) where the facts before the trial court are undisputed.
If the facts before the trial court are in dispute, then our standard of review focuses on whether the trial court conducted an evidentiary hearing. Under those circumstances, the court typically engages in its classic fact-finding function, often evaluating the character and credibility of witnesses. Thus, where a trial court conducts an evidentiary hearing, we give its factual findings and judgment deference. And in reviewing the trial court’s factual findings and judgment, we will reverse only if they are clearly erroneous. Factual findings are clearing erroneous if the evidence does not support them, and a judgment is clearly erroneous if it is unsupported by the factual findings or conclusions of law.
However, where the facts are in dispute but the trial court rules on a paper record without conducting an evidentia-ry hearing, then no deference is afforded the trial court’s factual findings or judgment because under those circumstances a court of review is in as good a position as the trial court to determine whether the court has subject matter jurisdiction. Thus, we review de novo a trial court’s ruling on a motion to dismiss where the facts before the court are disputed and the trial court rules on a paper record.

GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind.2001) (internal quotations and citations omitted).

In this case, the trial court held a hearing on the motion to dismiss, but did not receive additional evidence. The point of contention between the parties was whether Gladys’s injuries arose out of her employment or occurred in the course of the employment. Thus, in dismissing the Currys’ complaint, the trial court resolved factual disputes on a paper record. We, therefore, review de novo the trial court’s ruling here.

“[A] motion to dismiss for lack of subject matter jurisdiction presents a threshold question concerning the court’s power to act.” Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1286 (Ind. 1994). Actions taken by a court lacking subject matter jurisdiction are void. Id. The opponent of subject matter jurisdiction carries the burden of proving that the Worker’s Compensation Board and not the trial court had jurisdiction over the matter. Id.

The Act provides the exclusive remedy for recovery of personal injuries arising out of and in the course of employment. Ind.Code § 22-3-2-6. “If the Act covers an injury, the courts have no jurisdiction to entertain common law claims against the employer or a fellow employee.” Knoy v. Cary, 813 N.E.2d 1170, 1171 (Ind.2004). An injury “arises out of’ employment if there is a causal connection between the injuries sustained by the employee and the duties or services performed by the injured employee. Id. That causal connection exists when a reasonable person would consider the injury to be the result of a risk incidental to employment or where there is a connection between the employment and the injury. Id. An accident leading to injury occurs “in the course of employment” when it occurs at the time and place of employment while an employee is fulfilling his or her employment duties. Id.

Case law involving whether injuries that occurred during after-hours work activities were compensable has evolved since the enactment of the Act. Our Supreme Court noted in Knoy, that in the early days of worker’s compensation, injuries sustained by employees during after-hours work activities were for the most part not compen-sable. 813 N.E.2d at 1171. In 1957, the Supreme Court allowed recovery under the Act for an employee’s death that occurred at an after-hours activity sponsored by the employer. Noble v. Zimmerman, 237 Ind. 556, 146 N.E.2d 828 (1957). The rationale for allowing recovery was that “employers are more and more utilizing recreational programs for their employees ... in aiding and promoting better business relations with persons in their employ.” Id. at 569-70, 146 N.E.2d at 834.

In a subsequent opinion by this court, Ski World, Inc. v. Fife, 489 N.E.2d 72, 73 (Ind.Ct.App.1986), recovery under the Act was allowed for injuries sustained by an employee during an after-hours party for employees that was sponsored by the employer. We explained that the rationale for recovery in Noble did not depend upon whether attendance at the party was required, but on the connection between the employee’s employment and the party. Id. at 77. The mandatory nature of the after-hours work-related activity is not required in order for there to be recovery under the Act; rather the focus is on the connection between the employer’s interests in improving the business by holding the after-hours work-related activity and the employee’s employment. Knoy, 813 N.E.2d at 1172. If that is the situation, then the after-hours work-related activity may be incidental to the employee’s employment. Id.

In this case, D.A.L.L. held an employee meeting attended by several employees, such as Gladys, who were not “on the clock.” Gladys’s deposition testimony revealed that meetings were held regularly at the restaurant, some of which were mandatory, while others were not. Some of the meetings led by the managers involved discussions of customer complaints and how to improve the business in response to those complaints, while others involved issues related to the operation of the restaurant, e.g., cleanliness issues. Gladys stated that she was on the premises to attend the meeting, but arrived early to eat a meal beforehand. Other employees were also present in advance of the meeting. We conclude that the trial court did not err by dismissing the complaint. The connection between D.A.L.L.’s interest in improving the business by holding employee meetings and Gladys’s presence on the premises as an employee waiting for the meeting to begin, places jurisdiction of her claim for compensation for injuries sustained while on those premises squarely within the Act. Because of our resolution of this issue we do not address the other issue raised.

Affirmed.

BARNES, J., and BRADFORD, J., concur.

      . See Ind.Code § 22-3-2-6.


source: Caselaw Access Project

license: Public Domain

text:
    Athena Y. COLLINS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 45A03-1104-CR-168.
    Court of Appeals of Indiana.
    March 23, 2012.
    Ordered Published April 19, 2012.

      Maree Gonzalez, Jr., Dyer, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

Athena Y. Collins (“Collins”) appeals from her conviction after a jury trial for voluntary manslaughter, a Class A felony. Collins presents the following restated issues for our review:

I. Whether the trial court erred in instructing the jury;
II. Whether the trial court erred by admitting evidence of a prior out-of-state battery conviction from 1979; and
III. Whether the prosecutor committed fundamental error by engaging in prosecutorial misconduct during closing arguments.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

On the morning of August 5, 2008, Collins and her husband, McKinley Collins (“McKinley”), received a telephone call from an automobile repair shop. McKinley had previously arranged to have Collins’s car towed to have it repaired. The estimated cost of the repairs was between $500.00 and $700.00. After receiving the estimate, Collins and McKinley began to argue about their financial matters. The argument escalated and became physical. Next, either Collins hit McKinley with a clothes iron, or McKinley hit Collins with it, or both. At some point during the fracas in the hallway, Collins tore the control panel for the house alarm system from the wall and sot off the alarm. The two continued to fight in the kitchen where McKinley grabbed a knife. McKinley used the knife to slash at Collins, cutting her several times on the arm and on her chest below her right breast.

Collins was able to break away from him and ran upstairs to retrieve a gun she had purchased a few days after having obtained a protect ive order against McKinley in 2006. Collins ran back downstairs with the gun and found McKinley standing near the bathroom. Collins then shot McKinley five times, killing him.

After Collins set off the alarm, ADT, the alarm company, was notified of the alarm. A person working for ADT twice unsuccessfully attempted to reach Collins or McKinley on their telephone line. ADT then notified the Hammond Police Department and reported the alarm. After notifying the local police, ADT called Collins’s son, who then spoke to his sister about the alarm.

Sergeant John Muta was dispatched to Collins’s house in response to the residential alarm call. Sergeant Ray Finley also responded to the dispatch, and the two arrived at about the same time. Collins’s daughter, Natasha Collins (“Natasha”), also arrived at the house at approximately the same time. The officers checked the exterior of the house for signs of forced entry because .\DT had received an alert for broken glass, but found no such signs. Natasha, who was carrying a baby in her arms, approached the officers and asked what was happening. The three then proceeded to the front door of the house, and Natasha knocked on the door. Collins yelled from inside the house, “Go away. Everything is okay.” Tr. at 365. Natasha opened the front door, which was unlocked. As she opened it, Collins told her, “[G]et the baby out of here.” Id. at 428.

The officers went inside the home and found Collins sitting on a couch to the right of the front door, wearing a bloody house dress. Collins had a blank, expressionless look on her face, often described by officers as “a thousand-yard stare.” Id. at 430. One of the officers asked Collins if anyone else was in the house, to which Collins replied yes. She told them that she had a fight with her husband and shot him. She pointed to the rear of the house and said, “[OJver there by the bathroom in the hallway.” Id. at 368. Sergeant Muta turned and walked down the hallway where he found McKinley, nude and lying face down. McKinley, who was unresponsive and breathing shallowly, was lying halfway in the hallway and halfway in the bathroom, with a knife under his right hand. Sergeant Muta then called for backup and for an ambulance.

Sergeant Muta returned to the living room area and asked Collins for the location of the gun. Collins told him she had placed the gun on the table in the kitchen. Additional officers arrived and conducted a protective sweep of the remainder of the house. They found no one else inside the home. There were massive amounts of blood leading from the kitchen area to the bathroom area. The officers observed that Collins had a slashing-type wound on her lower am and a few smaller wounds on her upper arm. Collins was also bleeding from her head above the left eye. McKinley was taken to a local hospital where he died a short time later of multiple gunshot wounds.

The State charged Collins with murder, a felony. At trial, the State advanced a theory that Collins had killed McKinley and then cut herself and pulled braids out of her head to make it appear as if she were the victim of domestic violence. Collins advanced the theory that she was the victim of more than twenty years of domestic violence at the hands of McKinley and that, on the morning of his death, she just snapped. In support of her argument, Collins presented evidence of Battered Woman Syndrome. She offered the testimony of multiple witnesses that there had been numerous calls to the police over the years and complaints of domestic violence involving McKinley as the aggressor and Collins as the victim. Family members also testified that McKinley was the aggressor between the two. Over Collins’s objection, the State presented rebuttal evidence that Collins had been arrested and charged in a battery incident in 1979 involving an alleged attack of a co-worker with a butcher knife, cutting the co-worker several times. At the conclusion of the jury trial, Collins was found guilty of voluntary manslaughter, and the trial court sentenced her to twenty-two years executed with two years suspended to probation. Collins now appeals. Additional facts will be supplied as needed.

DISCUSSION AND DECISION

I. Jury Instructions

Collins contends that the trial court erred in instructing the jury. She claims that the trial court erred by instructing the jury on voluntary manslaughter and by denying her tendered instruction on involuntary manslaughter.

The manner of instructing a jury lies largely within the sound discretion of the trial court, and we review the trial court’s decision only for an abuse of that discretion. Stringer v. State, 853 N.E.2d 543, 548 (Ind.Ct.App.2006). An abuse of the trial court’s discretion occurs “when ‘the instructions as a whole mislead the jury as to the law in the case.’ ” Ham v. State, 826 N.E.2d 640, 641 (Ind.2005) (quoting Carter v. State, 766 N.E.2d 377, 382 (Ind.2002)). A defendant is only entitled to a reversal if he affirmatively demonstrates that the instructional error prejudiced his substantial rights. Hero v. State, 765 N.E.2d 599, 602 (Ind.Ct.App. 2002). In reviewing a trial court’s decision to give or refuse tendered jury instructions, we consider: “(1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions that are given.” Chambers v. State, 734 N.E.2d 578, 580 (Ind.2000).

When a trial court is requested to instruct a jury on a lesser included offense of the charged crime, the trial court conducts a tripartite analysis. Wright v. State, 658 N.E.2d 563, 566-67 (Ind.1995). First, the trial court must compare the statutes defining the crime charged and the lesser included offense. Id. at 566. If the lesser included offense may be established by proof of- the same material elements or less than all the material elements of the crime charged, or if the only difference is that a lesser culpability is required to establish the lesser included offense, then the lesser included offense is inherently included in the crime charged. Id. If the proffered lesser included offense is inherently included in the charged crime, then the trial court proceeds to the third step of the analysis. Id. at 566-67.

The trial court then proceeds to the second step of the analysis if the proposed lesser included offense is determined not to be inherently included in the crime charged under the first part of the analysis. Id. at 567. This second step involves a comparison of the statute defining the alleged lesser included offense with the charging information. Id. If the charging information alleges that the means used to commit the crime charged includes all of the elements of the lesser included offense, then the lesser included offense is factually included in the charged crime. Id. The trial court should then proceed to the third step of the analysis. Id. If the alleged lesser included offense is neither inherently nor factually included in the crime charged, then the trial court should refuse to give the tendered instruction on the proposed lesser included offense instruction. Id.

Once the trial court determines that the lesser included offense is either factually or inherently included in the crime charged, the trial court must proceed to the third step of the analysis, examination of the evidence presented by both parties in the case. Id. If there is a serious evidentiary dispute about the elements distinguishing the lesser offense from the greater offense, and a jury could reach the conclusion that the lesser offense was committed, but not the greater, then the trial court commits reversible error by refusing to give the instruction on the inherently or factually included lesser offense. Id. However, if the evidence does not support the giving of the instruction on the inherently or factually included lesser offense, then the trial court should decline the tendered instruction. Id.

Here, the trial court instructed the jury on voluntary manslaughter. Voluntary manslaughter is an inherently included lesser offense of murder because proof of the same material elements is required. Champlain v. State, 681 N.E.2d 696, 701-02 (Ind.1997); compare Ind.Code § 35-42-1-1 (murder) with Ind.Code § 35-42-1-3 (voluntary manslaughter). Voluntary manslaughter is a knowing or intentional killing committed while acting under sudden heat, a mitigating factor, but not an element of the crime. Champlain, 681 N.E.2d at 702. Sudden heat has been defined as “sufficient provocation to excite in the mind of the defendant such emotions as anger, rage, sudden resentment, or terror, and that such excited emotions may be sufficient to obscure the reason of an ordinary man.” Fox v. State, 506 N.E.2d 1090, 1093 (Ind.1987). The trial court should instruct the jury on voluntary manslaughter “if there is any appreciable evidence of sudden heat.” Champlain, 681 N.E.2d at 702 (quoting Griffin v. State, 644 N.E.2d 561, 563 (Ind.1994)).

Although Collins argues otherwise, there is sufficient evidence from which the jury could conclude that Collins acted in sudden heat. Collins and McKinley argued about money on the morning of August 5, 2008. The argument escalated from a verbal argument to a physical assault. The two fought with each other in the hallway, then in the kitchen. McKinley picked up a knife and slashed Collins with the knife, cutting her several times. Collins then escaped from McKinley, ran upstairs, retrieved her gun, and shot McKinley as he continued to threaten to kill her and to curse at her. Collins told police in a voluntary statement given the day after the killing that she retrieved the gun because she thought McKinley was going to kill her. She stated that McKinley had abused her for years, but that this was the first time he had stabbed her. Although Collins stated that she thought she had shot McKinley twice, when told that McKinley suffered six gunshot wounds resulting from no fewer than three shots and likely five shots, she claimed she must have blacked out.

Collins relies on Watts v. State, 885 N.E.2d 1228 (Ind.2008) to support her position that the trial court committed reversible error by giving the voluntary manslaughter instruction. However, Waits factually distinguishable. In that case, there was no evidence of sudden heat, and that defendant’s all-or-nothing strategy was thwarted by the option of a voluntary manslaughter conviction. Id. at 1283. There was evidence of sudden heat present in this case. The trial court did not abuse its discretion by giving this instruction.

Collins also claims that the trial court erred by refusing to give her tendered instruction on involuntary manslaughter. “Involuntary manslaughter is not an inherently included lesser offense of murder, but it may be a ‘factually included’ lesser offense” if the charging information alleges that a battery was the means of accomplishing the killing. Wilson v. State, 765 N.E.2d 1265, 1271 (Ind.2002). “The only element distinguishing murder from involuntary manslaughter is what the defendant intended to do-batter or kill.” McEwen v. State, 695 N.E.2d 79, 86 (Ind. 1998).

In the present case, there was no serious evidentiary dispute that Collins, by shooting McKinley several times, only intended to commit a battery. Collins presented evidence that McKinley was the aggressor and that she shot him in self-defense. She also introduced evidence regarding the Battered Woman Syndrome. When one shoots another person multiple times at close range, a reasonable jury could infer that the shooter’s intent was to kill, not batter, the victim. Further, the charging information stated that Collins “knowingly or intentionally kill[ed] McKinley by means of a handgun.” Appellant’s App. at 17. The trial court did not abuse its discretion .by refusing to give the tendered instruction on involuntary manslaughter.

II. Admission of Evidence

Collins argues that the trial court erred by admitting Indiana Evidence Rule 404(b) evidence of an out-of-state battery charge brought against her in 1979. Indiana Evidence Rule 404(b) provides in part: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....” The rule is designed to prevent the jury from assessing a defendant’s present guilt on the basis of past propensities. Hicks v. State, 690 N.E.2d 215, 218 (Ind.1997).

The admission or exclusion of evidence is entrusted to the discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67 (Ind.Ct.App.2004). We will reverse a trial court’s decision only for an abuse of discretion. Id. We will consider the conflicting evidence most favorable to the trial court’s ruling and any uncontested evidence favorable to the defendant. Taylor v. State, 891 N.E.2d 155, 158 (Ind.Ct.App.2008). An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court or it misinterprets the law. Id. In determining whether an error in the introduction of evidence affected an appellant’s substantial rights, we assess the probable impact of the evidence on the jury. Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct.App.2002). Admission of evidence is harmless and is not grounds for reversal where the evidence is merely cumulative of other evidence admitted. Pavey v. State, 764 N.E.2d 692, 703 (Ind.Ct.App.2002).

Our Supreme Court has stated the following regarding the admissibility of 404(b) evidence:

[T]he standard for assessing the admissibility of 404(b) evidence in Indiana is: (1) the courl must determine that the evidence of oiher crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity to commit the charged act; and (2) the court must balance the probative value of the ■ evidence against its prejudicial effect pursuant to Rule 403. When inquiring into relevance, the court may consider any factor it would ordinarily consider under Rule 402. These may include the similarity and proximity in time of the prior bad act to the charged conduct, and will presumably typically include tying the act to the defendant. But these factors are simply illustrative of the many aspects that may, depending on the context, be required to show relevance.

Hicks, 690 N.E.2d at 221.

Here, the State introduced evidence of what it believed was Collins’ prior misdemeanor conviction involving the use of a knife in the commission of a battery against a co-v orker. In particular, the State introduced certified police records from Omaha, Nebraska that included a booking sheet, several pages of officer narratives, a righis advisory form, a fingerprint card, an order of release showing that the original felony charge had been dismissed, and a disposition of felony charges form that showed the felony charges against Collins had been dismissed, but that Collins had been rebooked with misdemeanor charges (“State’s Exhibit 158”). Collins objected to the introduction of State’s Exhibit 158 on the basis that there had been no sufficient notice of the State’s intent to use the evidence and that the crimes were too old to qualify for admission under Indiana Evidence Rule 609. The trial court admitted the evidence, finding ⅜ to be relevant and not a surprise to Collins.

Assuming without deciding that Collins placed her character at issue, this evidence of a battery charge involving a co-worker, and not McKinley, made almost thirty years prior to the incident at issue, is not relevant or probative to the crime charged. Furthermore, the admission of such evidence can be highly prejudicial and lead to the forbidden inference of present guilt based upon prior propensities.

“Numerous cases have held that where a relationship between parties is characterized by frequent conflict, evidence of the defendant’s prior assaults and confrontations with the victim may be admitted to show the relationship between the parties and motive for committing the crime.” Iqbal v. State, 805 N.E.2d 401, 408 (Ind.Ct.App.2004) (citing Hicks, 690 N.E.2d at 222; Haggenjos v. State, 441 N.E.2d 430, 431 (Ind.1982)). Where a defendant claims self-defense, the State may use evidence of the defendant’s prior misconduct to disprove that argument that the victim was the initial aggressor. Perry v. State, 956 N.E.2d 41, 59 (Ind.Ct.App.2011). Before the alleged prior misconduct can be properly admitted for a permissible purpose under 404(b), however, there must be sufficient proof from which a jury could find that the defendant committed the acts. Id. “The relevant point, here, is that, where evidence of prior misconduct consists only of an arrest or charge, the fact of the arrest or charge alone will not suffice to sustain admission under Rules 404(b) and 104(b).” Id. at 60.

Here, Detective Stephen Guernsey (“Detective Guernsey”) was allowed, over objection, to read from the documents contained in State’s Exhibit 158. More specifically, Detective Guernsey testified that the 1979 incident occurred because Collins was upset that someone, a co-worker and not McKinley, had put sugar in the gas tank of her car and Collins believed she knew who had done so. He testified that Collins stated in the report that she became enraged at the victim, pulled a knife from her purse, and began cutting the victim with the knife. He further testified that Collins was having trouble with an ex-husband, also not McKinley, and put the knife in her purse because he had been bothering her. Detective Guernsey testified on cross-examination that the certified documents did not contain the disposition of the case, so he could not testify with certainty if a conviction had been entered on those charges. This evidence was highly prejudicial to Collins and not harmless error. We conclude that the trial court abused its discretion in admitting the evidence of the 1979 battery arrest and charge.

III. Prosecutorial Misconduct

Collins asserts that the prosecutor engaged in prosecutorial misconduct during closing arguments. When reviewing a claim of prosecutorial misconduct, we must first consider whether the prosecutor engaged in misconduct. Williams v. State, 724 N.E.2d 1070, 1080 (Ind.2000). We then consider whether the alleged misconduct placed the defendant in a position of grave peril to which she should not have been subjected. Id. “Whether a prosecutor’s argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct.” Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006). “The gravity of the peril is measured by the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct.” Id.

A prompt objection to alleged prosecutorial misconduct allows the trial court an opportunity to prevent or remedy any prejudice to a defendant without the waste of time and resources involved in the reversal of a conviction. Etienne v. State, 716 N.E.2d 457, 461 (Ind.1999) (citing Maldonado v. State, 265 Ind. 492, 498, 355 N.E.2d 843, 848 (1976)). If a defendant does not object to the alleged misconduct, any claim of error is waived. Id. In addition to objecting to alleged misconduct, a defendant must also request an appropriate remedy. Id. In general, the correct procedure involves a request for an admonishment. Id. If trial counsel is not satisfied that an admonishment will be sufficient to cure the error, then counsel may move for a mistrial. Id. The failure to request either an admonishment or mistrial results in waiver of the issue. Id.

Collins argues that even though there was no objection to the error, we may review the alleged misconduct under a fundamental error analysis. Fundamental error “must constitute a blatant violation of basic principles, the harm or potential harm must be substantial, and the resulting error must deny the defendant fundamental due process.” Id. at 462. (quoting Wilson v. State, 514 N.E.2d 282, 284 (Ind.1987)). Fundamental error is error “so prejudicial to the rights of the defendant as to make a fair trial impossible.” Barany v. State, 658 N.E.2d 60, 64 (Ind.1995). “It is error that makes ‘a fair trial impossible or constitute^] clearly blatant violations of basic and elementary principles of due process ... presenting] an undeniable and substantial potential for harm.’ ” Cooper, 854 N.E.2d at 835 (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind.2002)).

Defense counsel’s closing argument relating to the evidence of the 1979 charge, and the State’s objection follow:

Remember when I asked Detective Guernsey when did this occur? Well, I don’t realty [sic] know. I think it was 1979. Okay. Was she ever convicted? I really don’t know that either. But, you know, the certifieds are in. Well, read one of the last pages and it tell [sic] you, disposition, declined by the county attorney. What does that mean? This evidence, maybe there’s a flaw. They didn’t even prosecute. Where is the conviction? What is she convicted of? I don’t know. There is no conviction. [THE STATE]: Judge, I’m going to object Counsel knows that that — very well that her client was convicted. It was reduced to a misdemeanor, and that is contained within the psychiatric records as well as the other health records that we received.
[DEFENSE COUNSEL]: No, I disagree, your Honor, because as we had this discussion at the bench, I didn’t know about this stuff until we walked in here, and this says cleared by arrest. And it says declined by the prosecutor. I do not know that to be a fact. And that’s one of the reasons I objected to this evidence.
[THE COURT]: All right. Let’s continue.

Tr. at 1688-39.

The prosecutor’s statement that Collins’s attorney knew that Collins had been convicted of the 1979 battery charge compounded the prejudice to her from the admission of State’s Exhibit 158. The comment cast defense counsel in a derogatory fashion, portraying her as a liar, or at least suggesting that she was dishonest with the jury. In our view there is no question that the prosecutor’s disparaging comments about defense counsel constituted prosecutorial misconduct. We remind counsel that disparaging opposing counsel seldom brings about good results.

There was nothing in the record to establish that Collins was in fact convicted of the charge or that defense counsel knew there was a conviction. Although the prosecutor admittedly was uncertain about whether there was a conviction, she was aware that there was no evidence introduced at trial to establish that there was in fact a conviction related to the 1979 charge. However, the State, by arguing that there was a conviction, impermissibly put that information before the jury during its argument.

Collins’s defense to the murder charge was that she acted in self-defense and was a battered woman. The introduction of the evidence of the 1979 arrest and charge was highly prejudicial to her defense. The State’s comments disparaging defense counsel and mischaracterizing the evidence to reflect that Collins had a prior conviction presented an undeniable and substantial potential for harm. We believe that Collins has met her burden of establishing that fundamental error occurred here. Therefore, we reverse and remand for a new trial.

Affirmed in part, reversed in part, and remanded.

BARNES, J., and BRADFORD, J., concur.

      . See Ind.Code § 35-42-1-3.


author: DARDEN, Judge.

text:
    Earl ARNOLD, Sr., Appellant, v. ROSE ACRE FARMS, INC., Appellee.
    No. 93A02-1109-EX-874.
    Court of Appeals of Indiana.
    March 27, 2012.

      Randal M. Klezmer, Klezmer Maudlin, P.C., Indianapolis, IN, Attorney for Appellant.
    Paul L. Fields, The Law Offices of The Liberty Mutual Group, Carmel, IN, Attorney for Appellee.
   OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Earl Arnold, Sr. (“Arnold”) appeals from the denial by the Worker’s Compensation Board of Indiana (“the Board”) of his claim under the Worker’s Compensation Act (“the Act”) alleging injuries arising out of and in the course of his employment with Rose Acre Farms, Inc. (“Rose Acre”).

We affirm.

ISSUE

Whether the Board erred in concluding that Arnold did not sustain an injury arising out of and in the course of his employment with Rose Acre.

FACTS

On June 25, 2006, Arnold was employed as a night security guard at Rose Acre’s Cortland facility. Arnold drove his automobile from hk home to Rose Acre’s location on County Road 800 North (“the public road”). Arnold drove westbound on the public road to a point in front of the gravel road that serves as the only entrance into Rose Acre’s Cortland facility.

As Arnold crossed the center line of the public road and entered the eastbound lane in making his left-hand turn into the Rose Acre facility, his automobile was struck by a pick-up truck. Although the collision occurred on the public road, the vehicles came to rest partially in the public road and partially in Rose Acre’s driveway. The collision resulted in multiple injuries to Arnold, including broken bones and cognitive impairment.

Arnold filed a claim with the Board alleging that the collision was an accident that arose out of and in the course of his employment. After a hearing, a Single Hearing Member made the following findings:

3. In general, for an accident to have occurred within the course of the employment, an injury must occur during work and on the employer’s premises, and therefore, most injuries sustained in route to or from the workplace are not covered under workers’ compensation law.
4. Parking lots and employer owned driveways which provide ingress and egress are considered an extension of the employer’s premises wherein an accident occurring in these locations is typically considered in the course of employment.
5. An accident occurring on a public thoroughfare, where the general public is exposed to the same risks as the employee, is not considered in the course of the employment. When the accident is not on the employer’s premises, the Act only applies when there is an increased risk or the employee is engaged in activities incidental to the employment.
6. [Arnold’s] accident did not occur on the employer’s premises. Additionally, [Arnold] did not meet his burden of showing that the circumstances at the time of the accident created an increased risk causally related to the employment.
7. [Arnold] argued that [his] view could have been obstructed by a truck pulling out from the driveway of the employer causing an increased risk. However, Arnold was unable to testify as to this fact himself; the truck driver testified that he did not believe that [Arnold’s] view would have been obstructed, and the police report which notes an obstructed view is hearsay evidence that cannot by itself support a finding on this matter.
8. In conclusion, because [Arnold] was subject to the risks of the general public and has been unable to show an increased risk, he was not in the course of his employment at the time of his accident and therefore is not entitled to benefits or compensation under the Indiana Worker’s Compensation Act.

(App. 7-9) (citations omitted). The Full Board adopted the Single Hearing Member’s findings and conclusions as its own.

DECISION

When reviewing a decision made by the Worker’s Compensation Board, we neither reweigh the evidence nor assess the credibility of the witnesses. Obetkovski v. Inland Steel Industries, 911 N.E.2d 1257, 1260 (Ind.Ct.App.2009), trans. denied. We are bound by the factual determinations of the Board and may only consider errors in the Board’s conclusions. Id. While we are not bound by the Board’s legal conclusions, we will disturb the conclusions only if the Board incorrectly interpreted the Act. Id. In other words, it is within our province to draw our own legal conclusions. Ag One Co-op v. Scott, 914 N.E.2d 860, 863 (Ind.Ct.App.2009).

The Act provides compensation for employees who suffer injuries that occur “by accident arising out of and in the course of the employment....” Ind.Code § 22-3-2-2(a). “Arising out of’ and “in the course of’ are two separate and distinct elements: the “arising out of’ element refers to the causal connection between the accident and the employment, while the “in the course of’ element refers to the time, place, and circumstances of the accident. Smith v. Boh Evans Farms, Inc., 754 N.E.2d 18, 24-25 (Ind.Ct.App.2001), trans. denied. Both elements must be met before compensation is awarded, and the person seeking compensation bears the burden of proving the elements. Mueller v. DaimlerChrysler Motors Corp., 842 N.E.2d 845, 848 (Ind.Ct.App.2006).

In Global Construction, Inc. v. March, 813 N.E.2d 1163, 1166 (Ind.2004), our supreme court stated that “in general, to arise ‘in the course’ of employment, an injury must occur during work and on the employer’s premises.” The court went on to express the general rule that “most injuries sustained on route to or from the workplace are not covered.” Id. (citing Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, § 13.01, at 13-3 (2004)). The rule “is grounded in recognition that injuries suffered while going to or coming from work are essentially similar to other injuries suffered off duty away from the employer’s premises and, like those other injuries, are usually not work related.” 82 Am.Jur.2d Worker’s Compensation § 271 (2011) (citing Brack v. Glen Johnson, Inc., 418 So.2d 1209 ,1211 (Fla.Dist.Ct.App.1982)). Thus, “the hazards encountered by an employee while going to or coming from the regular place of employment are not ordinarily incidental to the employment since the employee is exposed to dangers and risks to which all traveling persons are exposed.” 1 Modern Workers Compensation § 111.1 (1993).

In Global, our supreme court cited Donahue v. Youngstown Sheet & Tube Co., 474 N.E.2d 1013, 1014 (Ind.1985) as an example of the general rule. In Donahue, the Court affirmed the denial by the Board of benefits for an injury an employee sustained on the way home from work. The Court reasoned that the claimant had completed her duties and clocked out and was crossing a public street when she was injured. The Court explained that because the claimant was on a public street open to and used by members of the general public, she was exposed to the same dangers as any member of the public and her injury therefore fell outside of the employment relationship. Id. at 1016.

The Global court also recognized that Indiana courts have developed exceptions to the general rule. The court cited Reed v. Brown, 129 Ind.App. 75, 152 N.E.2d 257 (1958), the primary case relied upon by Arnold, as an example of an exception to the rule. The Court noted that in Reed, this court

early explained [that] “employment is not limited to the exact moment when the workman reached the place where he is to begin his work, or to the moment when he ceases that work. It necessarily includes a reasonable amount of time and space before and after ceasing actual employment, having in mind all the circumstances connected with the accident.”

Id. at 1167 (quoting Reed, 152 N.E.2d at 259) (citation omitted). The Court con-eluded that under the reasoning in Reed “employer-controlled parking lots and private drives used by employees have been held to be extensions of the employer’s operating premises for purposes of coverage under the Act.” Id. In Reed, we held that worker’s compensation coverage applied after the claimant entered the employer’s premises and was injured on a railroad easement that bisected the private drive on the employer’s property.

Arnold recognizes that the accident in the instant case did not occur in Rose Acre’s employer-controlled parking lot or private drive or on an easement bisecting Rose Acre’s property; however, he argues that the public road was an extension of Rose Acre’s operating premises. Specifically, he points to the stipulated evidence that Rose Acre’s property line “goes to approximately the center of the roadway and that the right of way of the [public road] extends fifteen feet on each side of the center.” (Tr. 20). He also points out that anyone going to Rose Acre’s Cortland facility had to use the public road to access Rose Acre’s driveway. Arnold argues that because the gravel drive serving as Rose Acre’s sole driveway ended at the public road, the road “was the sole ingress/egress point for Rose Acre’s employees to report to work, [and] both the eastbound and westbound lanes in front of this entry point are premises used by Rose Acre’s employees.” Arnold’s Br. at 10-11.

We cannot say that the Board erred in concluding that the public road was not part of Rose Acre’s premises for purposes of the Act. Although Rose Acre technically owned the soil beneath the public road, it had no control over the use of the road as a public thoroughfare. As the Donahue court held in denying worker’s compensation coverage, “[The claimant] was injured while on a public road, and the hazards and dangers of his accident were common to all persons using the public road since [the employer] had no control over the use of the public right-of-way by either [the claimant] or the public at large.” 474 N.E.2d at 1016. All persons using a public road experience the hazard occasioned by a left hand turn against traffic. We reject Arnold’s argument that the left-hand turn into Rose Acre distinguished his use of the public road from the use made by the public at large.

Arnold also argues that he is entitled to compensation under the reasoning of Clemans v. Wishard Mem’l Hosp., 727 N.E.2d 1084 (Ind.Ct.App.2000), trans. denied. In Clemans, the employer owned the property on both sides of a public street and the claimant, after completing her duties as an employee, was injured while crossing the public street to get to the employer-owned parking garage. We held that Clemans was entitled to worker’s compensation because the injury did not occur while Clemans was a member of the general public but as she crossed from her primary place of employment to the employer-provided parking garage. The holding in Clemans is consistent with a second general rule that a claimant is eligible for worker’s compensation benefits where “the employee travels along or across a public road between two portions of the employer’s premises, whether going or coming, or pursuing other duties.” Larson, § 13.01(4) at 13-24. In short, Cle-mans is consistent with the rule that an employee is in the course of employment when he is traveling from one part of.the employer’s premises to another. It does not stand for the proposition that an employee may be eligible for benefits from injuries occurring when traveling a public road from his home to his employer’s sole piece of property. Thus, Clemans does not support Arnold’s position that he was injured “in the course of’ employment as he traveled to work on a public road.

CONCLUSION

Arnold has failed to show that the Board erred in determining that he was not injured in the course of his employment with Rose Acres.

Affirmed.

BAKER, J., and BAILEY, J., concur.

      . We make no determination as to whether Arnold's injuries "arose out of” his employment with Rose Acres.


author: BAILEY, Judge.

text:
    Ronyai THOMPSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1106-CR-323.
    Court of Appeals of Indiana.
    March 29, 2012.

      Stephen Gerald Gray, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Ronyai Thompson (“Thompson”) was convicted of Dealing in Cocaine, as a Class A felony. He now appeals.

We affirm.

Issue

Thompson raises three issues for our review, which we restate as:

I.Whether the trial court abused its discretion when it denied his motion to dismiss the charges against him under Indiana’s statute barring successive prosecutions;

II.Whether the trial court improperly denied his Batson challenges to the State’s peremptory striking of two African-American jurors; and

III.Whether there is sufficient evidence to support the conviction.

Facts and Procedural History

In the early morning hours of March 8, 2010, Thompson’s cousin, Antwan Rush (“Antwan”), was driving on 38th Street in Indianapolis, when Officer Travis Hunter (“Officer Hunter”) observed that Antwan’s vehicle had a cracked taillight. Officer Hunter initiated a traffic stop and learned that Antwan’s driving privileges had been suspended. Antwan was arrested and the vehicle was towed from the scene to an impound yard.

Also on March 8, 2010, Detective Matthew Stevenson (“Detective Stevenson”) of the Indianapolis Metropolitan Police Department’s Violent Crimes Unit (“VCU”) sought to make contact with Antwan in the course of an ongoing investigation in an unrelated matter. Detective Stevenson learned that Antwan was at the Marion County Jail’s Arrest Processing Center (“APC”), but Antwan was released from the APC before Detective Stevenson could make contact with him. Detective Stevenson requested that other members of the VCU place Antwan under surveillance as he walked through downtown Indianapolis. The detectives were able to observe Rush for only a brief period before losing sight of him.

While VCU detectives attempted on-foot surveillance of Antwan, Detective Stevenson learned of several Indianapolis addresses connected to Antwan. Among these was a unit in a residential duplex on North Carrollton Avenue (“4210 Carroll-ton”). Detective Stevenson requested that VCU detectives place 4210 Carrollton under surveillance after the VCU team lost sight of Antwan in downtown Indianapolis. Detectives Jean Deddish (“Detective Ded-dish”), Steven Scott (“Detective Scott”), Tanya Terry (“Detective Terry”), and Henry Gregory (“Detective Gregory”) conducted surveillance on the residence. Detective Stevenson remained mobile and coordinated the surveillance operations.

During the afternoon of March 8, detectives saw an individual they would later identify as Thompson twice drive to the duplex in a black Dodge Charger and enter 4210 Carrollton. The detectives also observed very heavy foot and vehicular traffic to and from 4210 Carrollton that was uncharacteristic of the neighborhood — by one detective’s estimate, nearly thirty-five persons — with each visitor remaining at the residence for only a few minutes before leaving. Detectives recognized this conduct as characteristic of individuals purchasing drugs from the occupants of 4210 Carrollton.

At around 4:30 that afternoon, Detective Stevenson requested that several of the detectives conducting surveillance on 4210 Carrollton meet at the Indiana State Fairgrounds to discuss a plan for making contact with Antwan and any other individuals at 4210 Carrollton. As the detectives prepared to leave the Fairgrounds, a member of the surveillance team reported that a vehicle was leaving 4210 Carrollton.

Detective Stevenson requested that uniformed police officers stop the car, and he and several other detectives traveled to the scene of the traffic stop. Police arrested Antwan and his brother Antonio Rush (“Antonio”) at this time. Each had large sums of cash on his person.

While the traffic stop was under way, Detectives Scott and Gregory approached the front of 4210 Carrollton. Detective-Sergeant Kerry Buckner (“Sergeant Buckner”) and two other detectives placed themselves at the back of the building to ensure no one left undetected. Detective Gregory knocked on the front door in an attempt to make contact with any individuals inside, while Detective Scott stood next to him. After receiving no reply, Detective Gregory knocked louder. He and Detective Scott heard loud noises coming from inside the house.

Shortly after this, Thompson, who was still inside the residence, opened a space in the blinds to see who was at the door. Detective Scott saw Thompson through the space in the blinds, and observed Thompson had a surgical glove covering the hand that had opened the blinds. After he saw Detective Scott, Thompson snapped the blinds closed. The detectives heard further noise from inside the house, including Thompson’s voice, but no one came to the door.

While Detectives Gregory and Scott stood at the door of 4210 Carrollton, Patricia Thompson (“Patricia”), mother of Antwan and Antonio and Thompson’s aunt, arrived by car at the house and explained that she had a contractual interest in the duplex. Detective Gregory and Detective-Sergeant Garth Schwomeyer (“Sergeant Schwomeyer”), another VCU member, spoke with Patricia and requested her consent to enter the house; Patricia refused.

Knowing that older duplexes like the one at 4210 Carrollton often allowed attic access to the adjacent unit in the building, Detective Gregory knocked on the door of the other unit in the duplex, 4212 Carroll-ton. One of its occupants admitted him to the residence. Detective Gregory explained that police suspected criminal activity in 4210 Carrollton, and obtained identification information from the occupants of 4212 Carrollton.

Among those in 4212 Carrollton was Thompson, who first appeared to Detective Gregory only briefly by peeking his head around a corner. Thompson later came into the living room of the home, identified himself to Detective Gregory as Sam Jones, and provided a date of birth and social security number. After advising the occupants to remain inside for their safety, Detective Gregory left 4212 Carrollton.

Detective Gregory ran each of 4212 Car-rollton’s occupants names through police computers and determined that the information Thompson had provided was false. At some point after Detective Gregory left the house, a male occupant of the house emerged, asked to smoke a cigarette, and returned to the interior of 4212 Carrollton after finishing the cigarette. Soon after this, Thompson left the house carrying a child in his arms and in the company of an adult female. Detective Gregory called Thompson over to ask him about the false identification information he had provided.

After handing the child over to his female companion, Thompson provided correct identification information. Detective Gregory checked the correct information in police computers and determined that Thompson’s driving privileges had been suspended. Because detectives had seen Thompson driving the black Dodge Charger earlier that day, Detective Terry arrested him. When asked why he was at 4212 Carrollton, Thompson stated that he was there to speak with a female occupant of the house.

In the interim, Detective Stevenson sought and obtained search warrants for 4210 Carrollton, another location, and vehicles associated with Antwan and Patricia. During their search of 4210 Carrollton, police found drug-related items and weapons throughout the first floor of the house, including 281.243 grams of powder cocaine and 90.639 grams of crack cocaine; cooking pans with cocaine residue; numerous rubber gloves and plastic baggies, several of which contained crack cocaine; a twenty-gauge shotgun and shotgun shells; and a loaded .38 Special revolver. Police also found a panel in the second floor of the house allowing access into the shared attic between 4210 Carrollton and 4212 Carroll-ton, which permitted Thompson to move between the two units in the duplex while avoiding police observation.

On March 9, 2010, under Cause Number 49G20-1003-CM-18160 (“CM-18160”), the State charged Thompson with Driving While Suspended, as a Class A misdemeanor, based upon the detectives’ observation of his conduct on March 8.

In the instant case, on March 23, 2010, under Cause Number 49G20-1003-FA-23467 (“FA-23467”), the State charged Thompson with Conspiracy to Commit Dealing in Cocaine, as a Class A felony; Dealing in Cocaine, as a Class A felony; Possession of Cocaine, as a Class C felony ; Possession of Cocaine and a Firearm, as a Class C felony; Carrying a Handgun without a License, as a Class C felony; Driving while Suspended, as a Class A misdemeanor; and Carrying a Firearm without a License, as a Class A misdemeanor. The Driving While Suspended charge in FA-23467 was for the same offense as the charge in CM-18160. Antwan, Antonio, and Patricia were charged with related offenses.

On September 9, 2010, Thompson pled guilty to the single count of Driving While Suspended in CM-18160. On January 24, 2011, Thompson filed a motion to dismiss the charges against him in FA-23467 under Indiana’s successive prosecution statute, Indiana Code section 35-41-4-4. The trial court demed the motion on January 28, 2011.

On April 18, 2011, in FA-23467, the State moved to dismiss both counts of Carrying a Handgun without a License and the count of Driving While Suspended, which the trial court granted that day. The trial court also conducted jury selection on April 18, 2011. During voir dire, the State peremptorily challenged two African-American jurors from the venire. The trial court raised sua sponte whether the State’s peremptory challenges discriminated against the potential jurors under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After the trial court granted the State’s challenges, Thompson and the other defendants objected, and the trial court overruled the objections.

At a pre-trial hearing on April 29, 2011, Thompson and the other defendants filed a joint motion for mistrial based upon the alleged Batson violations, which the trial court denied. Also during the hearing, Thompson orally renewed his motion to dismiss the charges in FA-23467 under the successive prosecution statute. The trial court again dismissed the charges.

A jury trial was conducted from May 2, 2011 to May 6, 2011. After the close of the State’s evidence, all four defendants moved for judgment on the evidence. The trial court granted Patricia’s motion and dismissed all the charges against her, but denied the others’ motions. On May 6, 2011, the jury found Thompson guilty of all the remaining charges.

On May 31, 2011, the trial court conducted a sentencing hearing, at the conclusion of which it entered judgment of conviction against Thompson for only one count of Dealing in Cocaine, as a Class A felony. The trial court then sentenced Thompson to thirty-five years imprisonment, with ten years suspended to probation.

This appeal followed.

Discussion and Decision

Denial of Thompson’s Motion to Dismiss

Thompson contends that the trial court improperly denied his motion to dismiss, which relied upon Indiana’s successive prosecution statute, because he was convicted of Driving While Suspended in a prior prosecution for the same Driving While Suspended offense that was charged and later dismissed in this case. Because Thompson appeals the trial court’s denial of a motion to dismiss, we review the trial court’s decision for an abuse of discretion. Haywood v. State, 875 N.E.2d 770, 772 (Ind.Ct.App.2007). An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it, or when the court misinterprets the law. Id.

The successive prosecution statute provides, in relevant part:

A prosecution is barred if all of the following exist:
(1) There was a former prosecution of the defendant for a different offense or for the same offense based on different facts.
(2) The former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 of this chapter.
(3)The instant prosecution is for an offense with which the defendant should have been charged in the former prosecution.

I.C. § 35-41-4-4(a). The State and Thompson agree that subsections 35-41-4-4(a)(1) and (2) have been satisfied; their dispute centers on whether subsection (a)(3) has been met, that is, whether the drug charges for which Thompson was prosecuted should have been charged in the prior case in which Thompson was convicted for Driving While Suspended.

The statute’s use of the phrase, “ ‘should have been charged’ must be read in conjunction with Indiana’s joinder statute.” Williams v. State, 762 N.E.2d 1216, 1219 (Ind.2002). The joinder statute provides:

A defendant who has been tried for one (1) offense may thereafter move to dismiss an indictment or information for an offense which could have been joined for trial with the prior offenses under section 9 of this chapter. The motion to dismiss shall be made prior to the second trial, and shall be granted if the prosecution is barred by reason of the former prosecution.

I.C. § 35 — 34—1—10(c).

This section of the Indiana Code relies upon the prior section, which states:

Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses:
(1) are of the same or similar character, even if not part of a single scheme or plan; or
(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

I.C. § 35-34-l-9(a). To determine whether contemporaneous crimes are part of a single scheme or plan, we look to whether the offenses are “connected by a distinctive nature, have a common modus operands and a common motive.” Allen v. State, 956 N.E.2d 195, 197 (Ind.Ct.App.2011) (quoting Williams, 762 N.E.2d at 1220) (quotation marks omitted).

“ ‘Thus, our legislature has provided that, where two or more charges are based on the same conduct or on a series of acts constituting parts of a single scheme or plan, they should be joined for trial.’” Williams, 762 N.E.2d at 1219 (quoting with approval State v. Wiggins, 661 N.E.2d 878, 880 (Ind.Ct.App.1996)) (emphasis in original). The statute serves as “a check upon the otherwise unlimited power of the State to pursue successive prosecutions.” Wiggins, 661 N.E.2d at 881. “Where the State chooses to bring multiple prosecutions for a series of acts constituting parts of a single criminal transaction, it does so at its own peril.” Williams, 762 N.E.2d at 1219.

Thompson contends that the Driving While Suspended charge was part of a scheme or plan — “a single criminal transaction.” Id. The State charged Thompson with the same Driving While Suspended offense in two different charging instruments — once in CM-18160 and once in this case. Thompson was convicted in CM-18160 before trial commenced in this case. The Driving While Suspended charge in the present case remained pending until the State dismissed the charge on April 18, 2011, the day on which voir dire was conducted.

Though the procedural aspects of Thompson’s case are not unlike those of cases like Williams and Allen, we cannot conclude that the Driving While Suspended offense is part of a single scheme or plan along with the drug-related offenses from which he presently appeals.

Detectives arrested Thompson for Driving While Suspended because they recognized him as the driver of the black Charger before they entered 4210 Carrollton and discovered the cocaine and firearms that led to his conviction in this case. While Thompson’s Driving While Suspended offense is close in time and location to the offenses that led to his convictions here, there is no evidence that his Driving While Suspended offense was part of “a single criminal transaction.” Officers twice saw Thompson drive the black Charger to 4210 Carrollton over the course of several hours on the afternoon of March 8, 2010. Police had placed the residence under surveillance in order to make contact with Antwan for purposes unrelated to the narcotics charges in the present case. Upon providing accurate identification to police after exiting 4212 Carrollton, Thompson was determined to have been driving while his license was suspended.

Yet Thompson’s driving had no apparent connection to the drug manufacturing and sales occurring in the house; it was merely transportation to and from 4210 Carroll-ton. There is no evidence that Thompson transported any supplies for the manufacturing or sale of the drugs, and the police recovered no drugs or associated paraphernalia when they searched the black Charger. Thompson’s case is therefore unlike those cases in which this court and our supreme court have concluded that the State was barred from pursuing charges that should have been joined. Cf. Williams, 762 N.E.2d at 1217-18, 1220 (concluding sequential prosecution was barred when the defendant was convicted of Residential Entry and Possession of Cocaine and in a separate action with Dealing in Cocaine and Possession of Cocaine, all stemming from a single drug transaction); Allen, 956 N.E.2d at 196,198 (concluding sequential prosecution was barred where defendant was convicted of Visiting a Common Nuisance and prosecuted in a separate case for Dealing in Heroin, where the defendant was charged with selling heroin in the course of conduct that gave rise to the Visiting a Common Nuisance offense).

Better practice might have been for the State to join all the charges against Thompson. But because there was no evidence that Thompson’s Driving While Suspended offense in CM-18160 was part of a single scheme or plan with the drug offenses in this case, we conclude that the trial court did not abuse its discretion when it denied Thompson’s motion to dismiss the charges against him.

Batson Challenges

Thompson also contends that the trial court erred when it overruled his objection to the State’s use of peremptory challenges to strike two African-American jurors from the venire and denied his subsequent motion for a mistrial.

The Indiana Code provides that, in prosecutions for offenses other than murder, the State may use as many as five peremptory challenges to exclude venirepersons from the jury. I.C. §§ 35 — 37—1—3(c) & 35-37-1-4. Generally, “a peremptory challenge may be [exercised] for no cause whatsoever.” Bond v. State, 273 Ind. 233, 237, 403 N.E.2d 812, 816 (1980). In Batson v. Kentucky, however, the United States Supreme Court qualified that principle to preclude the use of peremptory challenges to exclude venirepersons from a jury solely on the basis of race. 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), modified by Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (extending Batson to cases where the defendant and excluded juror were of different races).

In Batson, the Court “determined that the prosecutor’s use of a peremptory challenge to strike a potential juror solely on the basis of race violated the Equal Protection Clause of the Fourteenth Amendment.” Jeter v. State, 888 N.E.2d 1257, 1262 (Ind.2008). Batson set forth a three-step test to determine whether the State has used a peremptory challenge to strike improperly a juror from the venire solely because of that individual’s race. First, the party contesting the use of a peremptory challenge must make a prima facie showing of discrimination based upon race against the member of the venire. Batson, 476 U.S. at 96-97, 106 S.Ct. 1712. Next, the party using a peremptory challenge may “present a race-neutral explanation for using the challenge.” Jeter, 888 N.E.2d at 1263 (citing Batson, 476 U.S. at 97, 106 S.Ct. 1712). If the party seeking to strike a member of the venire provides a race-neutral explanation, “the trial court must then decide whether the challenger has carried its burden of proving purposeful discrimination.” Id. (citing Batson, 476 U.S. at 98, 106 S.Ct. 1712).

Even a single instance of discrimination because of a venireperson’s race is grounds for reversal where a trial court improperly rejects a Batson challenge. Killebrew v. State, 925 N.E.2d 399, 401 (Ind.Ct.App.2010), trails, denied. Because of the importance of the demeanor of potential jurors and the prosecutor when the trial court evaluates a race-neutral explanation for a peremptory challenge, we afford broad latitude to the trial court’s decision in such matters. Thus, we reverse only where the trial court’s decision is clearly erroneous. Id.

Here, the trial court raised sua sponte the question of whether the Batson line of cases rendered the State’s peremptory challenges improper. Thompson contends that the State’s use of peremptory challenges to exclude two African-American members of the venire were violations of the Fourteenth Amendment and requests that we reverse his conviction and remand for a new trial. The State argues that Thompson waived this issue on appeal and that the peremptory challenges were nonetheless not improperly granted.

While we cannot agree with the State that Thompson waived this issue on appeal, we conclude that the trial court did not err when it granted the State’s peremptory challenges as to the two African-American members of the venire. This court’s decision in Killebrew is instructive, where we applied the Supreme Court’s decision in Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), and ordered a new trial. In Kille-brew, the State used peremptory challenges to strike all five African-American members of the venire. Killebrew, 925 N.E.2d at 400-401. On appeal, another panel of this court compared the answers given by non-white members of the venire who were stricken from the jury to those of white members of the venire whom the State did not strike. Based upon these comparisons with regard to one of the venirepersons, the Killebrew panel concluded that the trial court erroneously permitted the State to exercise a peremptory challenge in violation of the Fourteenth Amendment, reversed Killebrew’s convictions, and remanded the case for a new trial. Id. at 402-403.

The result ir Killebrew depended upon changes announced by the Supreme Court’s opinior in Snyder. The Snyder Court looked at the prosecutor’s use of peremptory challenges to strike five African Americans from the venire, giving close scrutiny to the state’s race-neutral reasons for striking potential jurors when those explanations applied equally — if not more urgently — to white jurors whom the state did not seek to strike from the panel. The Court looked not only at the conduct of voir dire itself, but also at the course of the trial as a whole when it reversed Snyder’s conviction. Snyder, 552 U.S. at 477-86, 128 S.Ct. 1203.

Here, the trial court requested sua sponte that the State explain its peremptory challenges as to the two African-American venirepersons. The State pointed to both individuals’ statements that they wanted to be presented with scientific evidence connecting Rush to the drugs at issue in the case or other evidence of actual possession. When the trial court observed that other members of the venire had also expressed that wish, the deputy prosecutor further noted that a brother of one of the two potential jurors was a police officer with whom the deputy prosecutor had worked in the past and indicated that she had a bad relationship with him. The deputy prosecutor was therefore concerned that the potential juror might be biased against her. After listening to the State’s race-neutral explanations and the defendants’ responses, and observing that the State’s reasons were of special concern because we had recently reversed the trial court’s rejection of a Batson challenge in another case,, the trial court granted the State’s peremptory strikes. On appeal, Thompson contends that the State’s race-neutral rationale was pretextual and that the trial court’s determination to the contrary was in error.

With an eye toward the record as a whole, as in Killebrew and Snyder, we cannot agree. As to the juror with whose brother the prosecutor had prior dealings, Thompson does not point to any disparate treatment of similarly-situated non-blacks on the jury — indeed, our review of the record reveals that several individuals whose close relatives were associated with law enforcement were stricken from the venire. So too were other individuals who, like the other black juror whom the State sought to strike with a peremptory challenge, expressed difficulty with constructive possession, a concept central to the State’s case. Moreover, the State sought to strike these venirepersons in the first round of voir dire, and two subsequent rounds of jury selection passed without further event. Finally, the trial court’s expressed sensitivity to Raison-related issues and its decision to permit the peremptory strikes after raising those issues sua sponte further weighs against a conclusion that the trial court erred when it granted the State’s peremptory challenges over Thompson’s objection.

In view of the entirety of the trial record and in light of the issues presented at trial, we cannot conclude that the trial court erred when it permitted the State to use its peremptory challenges to strike two African-American members of the venire.

Sufficiency of the Evidence

Finally, Thompson contends that there was insufficient evidence to support his conviction, arguing specifically that there was insufficient evidence of his constructive possession of the cocaine in 4210 Carrollton to support the conviction.

Our standard of review when a defendant challenges the sufficiency of the evidence 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 assess the credibility of witnesses or reweigh evidence. Id. We will affirm the conviction unless “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” hi (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.2000)). “The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.” Id. (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind.Ct.App.2001)).

Thompson challenges his conviction for Dealing in Cocaine, as a Class A felony. In order to obtain a conviction, the State was required to prove beyond a reasonable doubt that Thompson knowingly possessed, with intent to deliver, cocaine in an amount greater than three grams. I.C. § 35-48^-l(a)(2) & (b)(1); App. 16-17.

Thompson contends only that there was insufficient evidence of his constructive possession of the drugs in 4210 Carrollton. Constructive possession occurs when an individual does not have an object on his person but nevertheless “ ‘has direct physical control over the item.’ ” Massey v. State, 816 N.E.2d 979, 989 (Ind.Ct.App.2004) (quoting Henderson v. State, 715 N.E.2d 833, 835 (Ind.1999)). “In order to prove constructive possession, the State must show that the defendant has both (1) the intent to maintain dominion and control and (2) the capability to maintain dominion and control over the contraband.” Iddings v. State, 772 N.E.2d 1006, 1015 (Ind.Ct.App.2002), trans. denied.

Here, Thompson concedes that he had the capability to control the cocaine in 4210 Carrollton, but he argues that there is insufficient evidence of his intent to exercise control. “The State must demonstrate the defendant’s knowledge of the presence of the contraband to prove the intent element.” Grim v. State, 797 N.E.2d 825, 832 (Ind.Ct.App.2003). Where the defendant has possession of the premises where contraband is discovered, but that possession is not exclusive, the defendant’s knowledge may be inferred from additional circumstances, and must be “able to reduce the controlled substance to his personal possession.” Id. “In a manufacturing type [sic] setting, a defendant’s presence does not compel a conviction but it does present a prima facie case of possession.” Moore v. State, 613 N.E.2d 849, 851 (Ind.Ct.App.1993). Additional circumstances that Indiana courts have found to support an inference that a defendant had “ ‘knowledge of the nature of the controlled substances and their presence’ ” include:

(1) incriminating statements made by the defendant, (2) attempted flight or furtive gestures, (3) location of substances like drugs in settings that suggest manufacturing, (4) proximity of the contraband to the defendant, (5) location of the contraband within the defendant’s plain view, and (6) the mingling of the contraband with other items owned by the defendant.

Gee v. State, 810 N.E.2d 338, 341 (Ind. 2004) (quoting Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind.1997), modified on reh’g, 685 N.E.2d 698 (Ind.1997)).

Thompson concedes that the evidence establishes that he was present in 4210 Carrollton. As to his knowledge of the presence of the drugs and his ability to reduce those drugs to his possession, testimony and photographs established that the first floor of the house was relatively small, with three rooms arranged in a straight line from front to back. The middle room had a couch, chair, and television. In the rear room was a kitchen with a serving window facing the middle room. The middle room on the first floor of the small residence had a shotgun leaning against the wall near the kitchen, and a .38 revolver tucked into the couch with the grip of the pistol protruding from underneath a cushion. In the kitchen, cooking implements with drug residue on them, powder and crack cocaine in various amounts, and baking soda, which cocaine dealers often use to dilute pure or nearly pure cocaine for manufacture and sale, were all in plain view. So too were used surgical gloves, a Walgreens bag, and a box of Walgreens brand surgical gloves. Antonio had purchased gloves from a Wal-greens store that day.

Detectives testified that they observed Thompson drive to and enter 4210 Carroll-ton on two separate occasions that day. Thompson was alone at the residence when Antwan and Antonio left and were apprehended by police at a traffic stop. Drugs were processed and packaged for consumption in the kitchen; both powder and crack cocaine were in plain view in the kitchen. Cf. Gee, 810 N.E.2d at 341 (listing among factors establishing intent to exercise control over contraband the item’s presence in plain view).

Detective Scott testified that he observed an individual whom he later recognized as Thompson look through the blinds at him, and that Thompson opened the blinds with a hand that was wearing a surgical glove like those discovered in the kitchen of the residence. Detectives Ded-dish and Terry testified that they observed upwards of thirty individuals briefly visit 4210 Carrollton, a pattern of conduct that officers testified was indicative of a location where occupants were selling drugs. This evidence permits an inference that Thompson intended to exercise control of the cocaine in 4210 Carrollton.

Thompson acknowledges that he was present in both 4210 Carrollton and 4212 Carrollton, and also acknowledges that he used the attic to travel between the two. Detective Gregory testified that his first direct contact with Thompson came when Thompson peeked around a corner soon after Detective Gregory entered 4212 Car-rollton. When Detective Gregory spoke with Thompson in 4212 Carrollton, Thompson provided false identification information. Unlike the first individual who stepped outside of 4212 Carrollton to smoke a cigarette, when Thompson attempted to leave the house he had no apparent plans to remain outside temporarily, despite Detective Gregory’s request that the house’s occupants remain inside for their safety. Taken together, this evidence permits an inference that Thompson used the connection between 4210 Carroll-ton and 4212 Carrollton to attempt to avoid police — that is, Thompson attempted to evade or flee the detectives multiple times on March 8, 2010. Cf. Gee, 810 N.E.2d at 341 (including as evidence of intent to exercise control over contraband a defendant’s attempted flight from law enforcement).

In light of this evidence, we cannot conclude that there was insufficient evidence from which the jury could infer that Thompson intended to exercise control over the cocaine in 4210 Carrollton.

Conclusion

The trial court did not abuse its discretion when it denied Thompson’s motion to dismiss the charges against him. There was no error in the trial court’s denial of Thompson’s motion for mistrial after it denied Thompson’s Batson challenges. Finally, there was sufficient evidence of Thompson’s intent to exercise control over the cocaine in 4210 Carrollton to sustain his conviction for Dealing in Cocaine.

Affirmed.

BAKER, J., and DARDEN, J., concur.

      . Ind.Code§ 35-48-4-1.

      .I.C. § 9-24-19-2.

      . I.C. §§ 35-41-5-2 & 35-48-4-1.

      . I.C. § 35-48-4-6.

      . I.C. § 35-47-1

      . I.C. § 35-48-4-6.

      . Antwan and Antonio were also found guilty of numerous charges.

      . The State argues that it lacked an opportunity to obtain confirmation that cocaine had been found in 4210 Carrollton in time to join the charges into a single case. The State relies on State v. McDonald, 954 N.E.2d 1031 (Ind.Ct.App.2011), where nearly two years elapsed between the State's initial prosecution of the defendant for a sex offense against one of his children in 2008 and a subsequent prosecution as to another child in 2010. The two-year delay in that case was a result of the second child’s inability to communicate verbally in a manner sufficient to give rise to probable cause to pursue a prosecution. Here, the delay between the Driving While Suspended charge in CM-18160 and the charges in this case was a mere two weeks. Thompson was not convicted in CM-18160 until January 2011, nearly nine months after his arrest. Thus, we find the State's argument unpersuasive.