Brown, J.
The next issue is whether the court erred in denying Beasley’s motion for mistrial after Juror No. 9 told the other jurors that she recognized a person in the gallery and was concerned for her safety and well-being. . . . .
Beasley argues that “[t]he prejudice caused by juror number 9 stemmed . . . from the impact of the comments she made to her fellow jurors regarding the character of this man and, implicitly, the character of the defendants with whom he associated.” Appellant’s Brief at 19. Beasley suggests that although “[t]he other jurors professed . . . that the comments . . . did not influence their opinion or their deliberations . . . . this would be impossible.” Id. at 20. He argues that “[t]he egregious circumstances in this case,” including the fact that the jury was “well into deliberations before [Juror No. 9] told the court about this man she knew from the past” in violation of the jury instructions, warrant “an irrebuttable presumption” of prejudice as enunciated in Ramirez[v. State, 7 N.E.3d 933(Ind. 2014)], and that even if the irrebuttable presumption did not apply, he is entitled to a presumption of prejudice under Ramirez. Id. at 21. He further asserts that even if no presumption applies “there has still been an adequate showing to warrant reversal” pursuant to “a probable harm standard for juror misconduct ‘… granting a new trial only if the misconduct is gross and probably harmed the defendant.’” Id. at 24 (quoting Ramirez, 7 N.E.3d at 939). In support of this argument, Beasley asserts that “[t]his case is analogous to cases where a juror lies on voir dire about knowing about the case.” Id. at 25.
The State contends that the concept of “an irrebuttable presumption of prejudice . . . applies only in the arena of extraneous influences on the jury, such as unauthorized contacts and communications with jurors,” which did not occur. Appellee’s Brief at 15. It argues that trial courts “are given significant leeway under Indiana Trial Rule 47(B) in determining whether to replace a juror with an alternate juror.” Id. The State notes that “[r]emoval of a juror after deliberations have commenced . . . raises a number of considerations not present when a juror is removed prior to deliberations” and that in such instances “discharge of a juror is warranted only in the most extreme situations . . . .” Id. at 16. It states that “a trial court is in the best position to gauge the impact of a particular event upon the jury; therefore, the decision whether to grant or deny a mistrial is committed to the sound discretion of the trial court . . . .” Id. The State further says that “[h]ere, the remaining jurors all informed the trial court that Juror #9’s safety concerns would not have any influence on their deliberations,” noting further that the court “admonished the jurors not to discuss or consider Juror #9’s concerns while deliberating” which “is usually considered a sufficient curative measure so that the refusal to grant a mistrial motion is not reversible error.” Id. at 17.
In Ramirez, the Indiana Supreme Court set out to clarify the law regarding the various standards courts should apply on suspected jury taint, noting that previous decisions were inconsistent. 7 N.E.3d at 935. . . . .
The Court discussed the historical underpinnings of Indiana’s case law on the subject of when a presumption of prejudice applies, specifically discussing Currin v. State, which held that “‘a rebuttable presumption of prejudice arises from juror misconduct involving out-of-court communications with unauthorized persons’—but that ‘such misconduct must be based on proof, by a preponderance of the evidence, that an extra-judicial contact or communication occurred, and that it pertained to a matter pending before the jury.’” Id. at 936-937 (quoting Currin v. State, 497 N.E.2d 1045, 1046 (Ind. 1986)). The Court also noted that Indiana precedent has “carved out a very narrow set of egregious circumstances in which [] prejudice . . . is not merely presumed, but automatically found; and the State will never be able to show harmless error.” . . . .
In Part III, titled “Clarification of Our Precedent,” the Court stated:
Defendants seeking a mistrial for suspected jury taint are entitled to the presumption of prejudice only after making two showings, by a preponderance of the evidence: (1) extra-judicial contact or communications between jurors and unauthorized persons occurred, and (2) the contact or communications pertained to the matter before the jury. The burden then shifts to the State to rebut this presumption of prejudice by showing that any contact or communications were harmless. If the State does not rebut the presumption, the trial court must grant a new trial. On the other hand, if a defendant fails to make the initial two-part showing, the presumption does not apply. Instead, the trial court must apply the probable harm standard for juror misconduct, granting a new trial only if the misconduct is “gross and probably harmed” the defendant. Henri v. Curto, 908 N.E.2d 196, 202 (Ind. 2009) (internal quotation marks omitted). But in egregious cases where juror conduct fundamentally compromises the appearance of juror neutrality, trial courts should skip Currin’s two-part inquiry, find irrebuttable prejudice, and immediately declare a mistrial. At all times, trial courts have discretion to decide whether a defendant has satisfied the initial two-part showing necessary to obtain the presumption of prejudice or a finding of irrebuttable prejudice.
Id. at 939 (certain internal citations omitted). The Court instructed trial courts to apply the presumption analysis of Currin according to the procedures outlined in Lindsey v. State, which requires courts to “immediately investigate suspected jury taint by thoroughly interviewing jurors collectively and individually, if necessary.” Id. (citing Lindsey v. State, 260 Ind. 351, 358-359, 295 N.E.2d 819, 823-824 (1973)). The Court quoted Lindsey as follows:
If any of the jurors have been exposed, he must be individually interrogated by the court outside the presence of the other jurors, to determine the degree of exposure and the likely effect thereof. After each juror is so interrogated, he should be individually admonished. After all exposed jurors have been interrogated and admonished, the jury should be assembled and collectively admonished, as in the case of a finding of “no exposure.” If the imperiled party deems such action insufficient to remove the peril, he should move for a mistrial.
Id. at 940 (quoting Lindsey, 260 Ind. at 359, 295 N.E.2d at 824). It noted that “[o]nce defendants move for mistrial, the trial courts should assess whether or not there is enough evidence to meet the two-part showing under Currin” and: “If so, then the presumption of prejudice applies and the burden shifts to the State to prove harmless error. If not, then trial courts should determine whether a juror’s misconduct was gross or probably harmed the defendant.” Id.
….
To the extent Beasley argues that the circumstances here warranted an irrebuttable presumption of prejudice, we find that nothing about Juror No. 9’s conduct fundamentally compromised the appearance of neutrality. Again, an irrebuttable presumption is reserved for instances of egregious juror conduct involving witnesses occurring contemporaneous to the trial proceeding. Here, not only was the person concerning Juror No. 9 not a witness, but also she did not have contact with that person. We cannot say that an irrebuttable presumption of prejudice applies in this case. . . . .
Regarding whether Beasley is entitled to a presumption of prejudice under Currin, we find that Beasley is not entitled to such a presumption because he failed to show that extra-judicial contact or communications between jurors and unauthorized persons occurred. Indeed, the record does not suggest that any extra-judicial contact or communications occurred at all. The record reflects that Juror No. 9 noticed a person sitting in the gallery who she recognized and who caused concern for her safety. Beyond sitting in proximity of one another while in the courtroom, the record does not suggest any type of interaction between Juror No. 9 and the person in the gallery. In order for the Currin presumption to attach, the defendant must show by a preponderance of the evidence that extra-judicial contact occurred. Not having done so, Beasley is not entitled to a presumption of prejudice.
We must therefore apply the probable harm standard for juror misconduct, granting a new trial only if the misconduct is “gross and probably harmed” the defendant, which we review for an abuse of discretion.6 See Henri, 908 N.E.2d at 202. . . . .
….
. . . Juror No. 9 did not lie or otherwise make misrepresentations. She became concerned for her safety late in the trial, and she divulged her concerns during deliberations. When the court learned of her concerns, it ordered that deliberations cease and interviewed each juror individually, starting with Juror No. 9. Each of the remaining jurors assured the court that the statements by Juror No. 9 would not influence their deliberations. Juror No. 2 noted that “it’s a personal concern for” Juror No. 9. Transcript at 738. Juror No. 5, stated that it did not change his/her “perspective in any way” and that, other than with respect to Juror No. 9, it would not change the other jurors’ “ability to deliberate or their perspective.” Id. at 743. Juror No. 6 stated that the other jurors were “just showing concern for [Juror No. 9] really.” Id. at 746. Juror No. 10 stated: “I do not think it changed anyone’s verdict.” Id. at 753. The court then decided to remove Juror No. 9 and replace her with Alternate Juror No. 1 and admonished the jury by instructing them not to discuss the reasons for Juror No. 9’s dismissal.
Based on the foregoing, we cannot say that the court abused its discretion when it denied Beasley’s motion for mistrial. . . . .
Bailey, J., and Robb, J., concur.