PRENTICE, Justice.
This cause is before us upon the petition of the Defendant (Appellant) to transfer the cause from the Court of Appeals, Third District, that court having determined that the trial court erred in failing to reassemble the jury, following its discharge and to conduct a Lindsey hearing (Lindsey v. State, (1973) 260 Ind. 351, 295 N.E.2d 819) in response to a motion to correct errors and a supporting affidavit which, if accepted as true, disclosed only a possibility that the jury had been improperly exposed to deleterious materials during its deliberations. It was, and continues to be, the position of the defendant that the Court of Appeals should have ordered a new trial.
The opinion of the Court of Appeals erroneously decides a new question of law, i.e. that Lindsey is applicable to post-verdict disclosures and inferentially contravenes ruling precedents of this Court holding jurors may not impeach their verdicts. Accordingly, the decision and opinion of the Court of Appeals are now ordered vacated, and the petition to transfer is granted, but
the judgment of the trial court is, nevertheless, affirmed.
The appeal presents four issues, including the aforementioned one upon which we disagree with the Court of Appeals' determination. In all other respects, however, we adopt that court's opinion, as authored by Judge Garrard, as hereinafter quoted:
"Verdell Fox was charged with robbery while armed with a handgun. She was tried by jury and was convicted of the lesser offense of robbery, a Class C felony.
"At trial the victims, two young men, testified essentially that they became lost in South Bend trying to return to Michigan from Michigan City, Indiana, and that in the early morning hours of April 1, 1981, they found themselves at the corner of Michigan and Broadway Streets. According to them Ms. Fox came over to their automobile and asked them if they 'wanted to have a good time.' They said no and asked for directions. The defendant gave them directions then pulled a gun and ordered them from the car. They complied and the defendant then took Rebelez' wallet from which she removed a twenty dollar bill. She then ran off into an alley and the victims 'jumped into the car and took off.' Several minutes later the victims saw a South Bend police car, stopped it, and reported the incident. A short time later Fox was identified and arrested. The weapon was never located.
"Fox' version of what occurred was substantially different. She testified that she was a prostitute. She stated she was standing near the corner of Michigan and Broadway when Rebelez called to her to come over to his automobile. She walked over and began talking to the boys. She asked if they wanted a date and Rebelez asked how much it would cost. She testified they agreed to $75, but she told them she would not get into the car since there were two of them. According to Fox the boys then followed her at her request to a house on Franklin Street. All three then went into the house. Fox stated that as she was leaning on the dresser the boys were huddled together talking. Rebelez then told her they did not have the money agreed upon. Fox testified she became upset and went back downstairs. She told the boys she deserved something for her trouble and Rebelez handed her a twenty dollar bill. She then let them out of the house, but several minutes later noticed they were still sitting in front of the house. The driver asked how to get back to Michigan Street and she told them. A short time later she returned to the corner of Michigan and Haney. Shortly thereafter a police car drove up, Rebelez identified Fox and she was arrested.
"Although we have condensed our recital of the evidence we might also observe that neither version of what occurred was lacking in credibility problems.
"The case went to the jury at 3:30 p.m. At about 9:15 p.m. the jury reported it was deadlocked and asked how to proceed. Pursuant to agreement of the parties the court then gave to the jury an instruction similar to that approved in Lewis v. State (1981), Ind., 424 N.E.2d 107. At 10:58 p.m. the jury again reported that they were unable to agree. The court advised them that it could give them no further instructions on the law to assist them and asked that they continue their deliberations. At 12:01 a.m. the jury returned a verdict of guilty of robbery.
"Fox urges four errors on appeal: (1) the verdict was not sustained by the evidence; (2) the court erred in refusing to grant a mistrial after the jury's second report that it was deadlocked; (3) appellant was denied a fair trial because of the presence of extraneous prejudicial material in the jury room while the jury was deliberating; and (4) the court erred at sentencing in considering a 1977 conviction for prostitution as a felony.
"Applying our traditional standard for appellate review of the evidence requires us to conclude the evidence was sufficient to sustain the conviction. The evidence favorable to the verdict established all the elements of robbery with Fox as the perpetrator. Contrary to Fox' appellate assertion the record does not require us to conclude that Fox committed armed robbery or nothing at all. Applying the standard of proof beyond a reasonable doubt, the jury could have concluded that Fox committed a robbery, but that the state failed to establish that she used a handgun in doing so.
"We also reject Fox' contention that the court erred in refusing to declare a mistrial when the jury reported for the second time that it was unable to agree. It is firmly established in Indiana that the length of time a jury should be permitted to deliberate is within the sound discretion of the trial court. Cade v. State (1976), 264 Ind. 569, 348 N.E.2d 394. Permitting the jury to deliberate for eight and one half hours does not constitute an abuse of discretion even in view of two reports from the jury that they were unable to agree. (In this latter regard we note that the jury reported its position to the judge on both occasions and the second report indicated a shift in position, rather than a continuance of the original 'deadlock.')
"The Lewis instruction was given with the express consent of the parties and no error is predicated upon it. We do not agree with Fox that after the second report the court's advising the jury it could give them no further instructions on the law to assist them and requesting them to continue their deliberations constituted an impermissible single instruction under Lewis, supra. Nor do we believe that this communication considered with all the other circumstances was so likely to coerce a verdict that denial of a mistrial was an abuse of discretion. Ayad v. State (1970), 254 Ind. 430, 261 N.E.2d 68. Fox has failed to demonstrate that the court abused its discretion in refusing to grant a mistrial.
"We come now to Fox' contention that she was denied a fair trial because of the jury's exposure to extraneous prejudicial material.
"At about 8:00 o'clock in the morning after the jury returned its verdict the court bailiff discovered a copy of the March 23, 1981 edition of Newsweek magazine in the jury room. The magazine cover is blue with the word 'Newsweek' in red at the top. Below this in bright yellow print appear the words, 'The Epidemic of Violent Crime.' The remaining two-thirds of the cover contains an oversize photograph of a gloved hand pointing a revolver directly at the viewer. Bullets are clearly visible in the cylinder. Inside the magazine is an eight page feature consisting of text, photos, statistics on violent crime and the results of a poll indicating spreading fear of crime and lack of public confidence in the criminal justice system.
* * *
* * *
"Finally, Fox argues that the court erred at sentencing in considering a 1977 conviction for prostitution. In part she argues that the conviction should not be deemed a felony. It was, and her brief so concedes.
"She also urges that there was an insufficient showing that she committed the offense. In support she cites a footnote in Davis v. State (1980), Ind.App., 398 N.E.2d 704 and her representation through counsel at the sentencing hearing that she could not remember what offenses she had committed prior to December 1978.
"The sentencing hearing, occurring after guilt has been determined, does not impose upon the state the heavy burden it must discharge to establish the guilt of an accused. In Gardner v. State (1979) Ind. 388 N.E.2d 513, 517-18 our Supreme Court observed that the presentence investigation report is a theoretically neutral document and that the matters set forth in the report will be accepted as true unless challenged by the defendant. The court then held that the
initial burden of production rests with the defendant in disputing the information contained in the report.
"Here the court presented counsel with a copy of the docket sheet from the prostitution conviction. After conferring with Fox, counsel responded that Fox 'does not recall that particular incident. She is not contesting the accuracy or validity of the docket sheet, [she] just admits no recollection.'
"Under these circumstances we believe that pursuant to Gardner the court properly considered the conviction." Fox v. State, (1982) Ind., 439 N.E.2d 1385, 1386-88, 1389-90.
Upon the third issue, the Court of Appeals remanded the cause with instructions to reassemble the jury for a voir dire examination with guidelines prescribed in Lindsey v. State, (1973) 260 Ind. 351, 295 N.E.2d 819, if practical to do so, and alternatively to grant a new trial.
Lindsey has been misapplied. The Lindsey problem arose...
