May, J.
….
This exchange followed:
[Beale’s counsel]: Your Honor I’m not asking Doctor Piatek to practice law, he answered request for admissions and maybe we should do that, because remember when you plead [sic] the 5th6 and said you don’t remember pleading the 5th, and said you don’t remember pleading the 5th?
[Piatek’s counsel]: Objection permission to approach?
The Court: All right.
Beale’s counsel: In his request for admissions.
COUNSELS APPROACH THE BENCH
[Piatek’s counsel]: I want a mistrial; she’s not allowed to do that in a civil case bringing up that someone claimed [. . . ]
The Court: Ladies and gentlemen I think we’re going to conclude for today.
(Id. at 625) (footnote added). At that point, the trial court dismissed the jury and heard further argument on Piatek’s Motion for Mistrial.
After hearing arguments of counsel, the trial court admonished the jury, over the objection of Piatek’s counsel, as follows, “I want to admonish at this time that Dr. Piatek has never pleaded the Fifth in this case, and is not pleading the Fifth in this case. So disregard the question and the inference that could be made from that question.” (Id. at 653.) [Footnote omitted.]
A mistrial is an “extreme remedy that is warranted only when less severe remedies will not satisfactorily correct the error.” Suding v. State, 945 N.E.2d 731, 737 (Ind. Ct. App. 2011), trans. denied. We give great deference to a trial judge’s discretion in determining whether to grant a mistrial because the judge is in the best position to gauge the surrounding circumstances of an event and its impact on the jury. Id. When determining whether a mistrial is warranted, we consider whether the defendant was placed in a position of grave peril to which he should not have been subjected. Id. The gravity of the peril is determined by the probable persuasive effect on the jury’s decision. Id. A timely and accurate admonition is presumed to cure any error in the admission of evidence, id., so reversible error will seldom be found if the trial court has admonished the jury to disregard a statement made during the proceedings. Id.
Piatek acknowledges the “only disputed issue is whether the Trial Court’s admonishment [sic] cured the prejudice.” (Piatek Br. at 10.) As Piatek has not demonstrated that presumption is overcome, we cannot hold denial of a mistrial was error.
….
…We acknowledge a reference to “pleading the Fifth” suggests some underlying criminal activity and may be prejudicial. But “pleading the Fifth” is not itself a criminal act; it is an assertion of a constitutional protection. Nor did counsel offer her personal opinion on a material issue as did the counsel in Border Brook. The trial court’s admonition to Beale’s jury was adequate.
….
Affirmed.
BAKER, J., and MATHIAS, J., concur.