MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                    Aug 21 2017, 5:20 am

precedent or cited before any court except for the                   CLERK
purpose of establishing the defense of res judicata,             Indiana Supreme Court
                                                                    Court of Appeals
collateral estoppel, or the law of the case.                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony C. Lawrence                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Bryson Terrell Rolling,                                  August 21, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A04-1612-CR-2848
        v.                                               Appeal from the Madison Circuit
                                                         Court.
                                                         The Honorable Mark Dudley, Judge.
State of Indiana,                                        Trial Court Cause No.
Appellee-Plaintiff.                                      48C06-1604-F5-845




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017   Page 1 of 15
                                            Statement of the Case
[1]   Bryson Terrell Rolling appeals his conviction of aggravated battery, a Level 3
                 1
      felony. We affirm.


                                                    Issues
[2]   Rolling raises two issues, which we restate as:

                 I.       Whether the prosecutor engaged in misconduct during
                          voir dire and closing argument.
                 II.      Whether the trial court erred in failing to give a jury
                          instruction on a lesser included offense.

                                   Facts and Procedural History
[3]   On February 25, 2016, Rolling was incarcerated at the Madison County Jail.

      He entered a cell that had been assigned to Christopher Barrett and David

      Scarberry. Jail rules forbade an inmate from entering another inmate’s cell

      without permission, and neither Barrett nor Scarberry had given Rolling

      permission to enter.


[4]   Barrett and Scarberry were in the cell. Barrett was lying in his bunk with a

      blanket over his head. Rolling struck a metal desk repeatedly, making a loud

      noise. He yelled at Barrett to wake up. Barrett stood up and moved toward

      Rolling, telling him to stop making noise and leave. Barrett did not make any

      threatening moves because Rolling was “a lot bigger” than him. Tr. Vol. I, p.




      1
          Ind. Code § 35-42-2-1.5 (2014).


      Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017   Page 2 of 15
      241. Barrett was five feet, six inches tall and weighed 130 pounds, while

      Rolling was six feet, four inches tall and weighed 300 pounds.


[5]   Rolling punched Barrett in the face, hitting his jaw. Barrett fell to the ground,

      bleeding profusely from his mouth. He was in “excruciating pain” and had

      never felt anything like it before. Id. at 242. Rolling told Barrett to tell jail

      officials that he injured himself by falling off the bed during a seizure. In

      addition, Rolling told Scarberry to “be quiet and shut up.” Tr. Vol II, p. 52.

      Rolling left the cell and Barrett sought medical assistance.


[6]   Jail officials transferred Barrett to a hospital in Indianapolis. An examination

      revealed Rolling had broken Barrett’s jaw. A doctor implanted a steel plate in

      Barrett’s jaw and wired his mouth shut. The wires stayed in place for six to

      eight weeks. Barrett was on a liquid diet for five weeks and was restricted to

      soft foods for two to three weeks after that. During that period of time, a “fairly

      good size [sic] piece of necrotic bone,” or dead bone, worked its way out of the

      jaw. Id. at 125. At the time of Rolling’s trial, the steel plate was still in place

      and Barrett had to monitor his mouth for infections.


[7]   The State initially charged Rolling with battery resulting in serious bodily

      injury, a Level 5 felony. Rolling filed a notice of intent to raise a claim of self-

      defense. The State later amended the information to add a claim of aggravated

      battery, a Level 3 felony, and to delete the Level 5 felony. Rolling testified in

      his own defense at trial, claiming he struck Barrett in self-defense. The jury




      Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017   Page 3 of 15
       determined Rolling was guilty of aggravated battery, the court imposed a

       sentence, and this appeal followed.


                                    Discussion and Decision
                                   I. Prosecutorial Misconduct
[8]    Rolling argues the prosecutor engaged in misconduct during voir dire and

       closing arguments. The State responds that Rolling has waived his claims and

       that none of the prosecutor’s statements amount to fundamental error.


[9]    When reviewing a claim of prosecutorial misconduct, we determine (1) whether

       the prosecutor engaged in misconduct and, if so, (2) whether the misconduct,

       under the circumstances, placed the defendant in a position of grave peril to

       which he or she would not have been subjected. Cooper v. State, 854 N.E.2d

       831, 835 (Ind. 2006). The gravity of 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.


[10]   To preserve a claim of prosecutorial misconduct, the defendant must object and

       request an admonishment of the jury at the time the alleged misconduct occurs.

       Neville v. State, 976 N.E.2d 1252, 1258 (Ind. Ct. App. 2012) trans. denied. If

       further relief is required, the defendant must also move for a mistrial. Jerden v.

       State, 37 N.E.3d 494, 498 (Ind. Ct. App. 2015). Failure to object and request an

       admonishment results in waiver. Id.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017   Page 4 of 15
[11]   If a defendant waives a claim of prosecutorial misconduct, we will review the

       alleged misconduct only for fundamental error. Deaton v. State, 999 N.E.2d 452,

       454 (Ind. Ct. App. 2013), trans. denied. The defendant must establish both

       prosecutorial misconduct and fundamental error. Id. To be fundamental error,

       the misconduct must have made a fair trial impossible or have been a clearly

       blatant violation of basic and elementary principles of due process that presents

       an undeniable and substantial potential for harm. Id. Fundamental error is an

       extremely narrow exception to the waiver rule, and the defendant must show

       that under the circumstances, the trial court erred by not raising the issue sua

       sponte. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). Fundamental error review

       is meant to permit appellate courts a means to correct “the most egregious and

       blatant trial errors that otherwise would have been procedurally barred.” Id.


                                                  A. Voir Dire

[12]   Rolling argues the prosecutor engaged in misconduct during voir dire by: (1)

       indoctrinating potential jurors to accept the State’s view of the law and the

       evidence; (2) inappropriately educating the jurors about legal issues in the case;

       and (3) inflaming the jury by discussing crimes not relevant to this case.


[13]   The purpose of voir dire is to discover whether any prospective juror has an

       opinion, belief, or bias that would affect or control his or her determination of

       the issues to be tried, thus providing a basis for a challenge. Malloch v. State, 980

       N.E.2d 887, 906 (Ind. Ct. App. 2012), trans. denied. Voir dire examination is

       not intended to “educate” or “indoctrinate” jurors. Coy v. State, 720 N.E.2d

       370, 372 (Ind. 1999) (quotation omitted).
       Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017   Page 5 of 15
[14]   Proper examination of potential jurors may include questions designed to

       disclose attitudes about the type of offense charged. Malloch, 980 N.E.2d at

       906. In addition, the parties may also attempt to uncover the voir dire

       panelists’ preconceived ideas about a defense the defendant intends to use.

       Gregory v. State, 885 N.E.2d 697, 707 (Ind. Ct. App. 2008), trans. denied. The

       parties may pose hypothetical questions, provided they do not suggest

       prejudicial evidence not presented at trial. Id.


[15]   Rolling concedes he did not object to every instance of alleged prosecutorial

       misconduct during voir dire. He stated two objections supported by reasons.

       The first occurred when the prosecutor was questioning jurors about the

       elements of the offense, as follows:

               [Prosecutor]: The next word I want define [sic] and talk with
               you about it is [sic] the word protracted. Does anyone know
               what protracted means? What does that word mean? [Potential
               Juror], what do you think? What does the word protracted
               mean?
               [Potential Juror]: I couldn’t tell you.
               [Prosecutor]: Couldn’t tell you?
               [Potential Juror]: Nope.
               [Prosecutor]: Okay. Does anybody know what the word
               protracted means?
               [Potential Juror]: Does that mean he fought back, or no?
               [Prosecutor]: No.
               [Potential Juror]: Pulling evidence?
               [Prosecutor]: I’m sorry?
               [Potential Juror]: Protracting, pulling evidence?


       Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017   Page 6 of 15
               [Prosecutor]: Protracted, yeah. It’s a hard - It’s sort of - I mean,
               you know, - Let me just define it, okay? Cause this is important.
               Protracted, loss, or impairment is what we have to prove, you
               know. You inflict injury and by doing so you cause somebody to
               have protracted loss or impairment. Protracted means to draw
               out or lengthen in time. Right? It means the injury sort of - it’s
               not momentary. Right? It’s sort of something that lasts for a
               while. Um, how long do you think an injury would have to last
               in order for it to be protracted?
               [Rolling]: Objection, Your Honor, I think this may go to the
               issue of the case and I’m not sure that it’s proper for the jury to
               express an opinion in regard to that.
               [Trial Court]: Mr. Kopp?
               [Prosecutor]: I think it’s absolutely relevant. I think it’s not
               (indiscernible). We need to know what they would basically
               think of this protracted. How is that an inappropriate question,
               asking them to - their opinion of an element that I just defined
               that is, uh, charged in this case.

       Tr. Vol. I, pp. 61-63. The trial court overruled Rolling’s objection after a bench

       conference.


[16]   The prosecutor’s discussion and questioning about the term “protracted” did

       not amount to misconduct. The nature and extent of the injury was at issue in

       the case, and the prosecutor was entitled to ask potential jurors about that topic.

       Further, the prosecutor provided a definition of “protracted” only after the

       panelists indicated they did not know what the word meant. The prosecutor

       would have been hard pressed to question the jurors about a term they did not

       understand. Finally, the prosecutor also told the jurors that the judge would be

       giving them definitions of terms and the judge is “the best source of the law,


       Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017   Page 7 of 15
       absolutely.” Id. at 60. The prosecutor’s actions did not place Rolling in grave

       peril to which he should not have been subjected.


[17]   The second occasion Rolling objected and stated a supporting reason occurred

       during the prosecutor’s questioning of potential jurors about self-defense, as

       follows:

               [Prosecutor]: Right? I used the example of the bank robber. The
               guy goes into to rob the bank. You know? He’s got a gun out,
               he’s robbing the back [sic], police officer walks in, shoots at him
               because he’s like using deadly force on somebody something, and
               then he shoots back and hits the police officer. Do you think that
               guy can’t be prosecuted for killing a police officer because he was
               defending himself because the police officer shot first? Does
               anybody here think that? No, of course not. Right? And that
               person was, you know, defending himself in a sort of way when
               people think about. Well, he shot at me so I shot back. Well,
               yeah, you know, I mean - but you didn’t have a right to be there
               and you were at fault because you were robbing the bank and
               committing a crime so you don’t get to claim self defense when
               you come into this courtroom or any other courtroom.
               [Rolling]: I object, again -
               [Trial Court]: That’s more of an argument -
               [Rolling]: Yes.
               [Trial Court]: - than question.
               [Rolling]: Thank you.
               [Trial Court]: That’s -
               [Prosecutor]: I’m asking if they agree with that.
               [Rolling]: I think -
               [Trial Court]: Objection is sustained.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017   Page 8 of 15
                     2
       Id. at 165.


[18]   The prosecutor’s statement may not have been good strategy. See Gregory, 885

       N.E.2d at 707 (“A more effective voir dire would incorporate the use of open-

       ended questions that allow prospective jurors in response to freely express an

       opinion on the point of inquiry.”). Poor strategy does not amount to

       prosecutorial misconduct. The prosecutor asked the panel several questions

       during the statement, attempting to draw out their views on the subject of

       Rolling’s claim of self-defense. The prosecutor’s statement did not place

       Rolling in grave peril to which he should not have been subjected.


[19]   Next, Rolling alleges several instances of prosecutorial misconduct to which he

       did not object during voir dire. Having reviewed the record, we conclude none

       of the instances rise to the level of fundamental error. The prosecutor asked the

       jurors about crimes not at issue in this case, as part of a discussion on self-

       defense. The State needed to ascertain potential jurors’ thoughts on Rolling’s

       defense. Further, the court had previously told all potential jurors that the

       offense of battery was the only alleged crime at issue in the case.


[20]   In addition, there were several instances where the prosecutor appeared to be

       explaining points of law rather than asking the panelists to answer open-ended

       questions, but those instances were more isolated than pervasive over the course




       2
         Rolling objected three other times during the prosecutor’s questioning of potential jurors about self-defense,
       but the record does not reflect the reasons for the objections. As a result, the objections did not preserve any
       issue for appellate review.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017              Page 9 of 15
       of voir dire. See Emerson v. State, 952 N.E.2d 832, 837 (Ind. Ct. App. 2011) (no

       fundamental error in prosecutor’s questioning panel about bullying; even if the

       questions were improper, they were merely one topic in a lengthy procedure),

       trans. denied. We cannot conclude the instances cited by Rolling were clearly

       blatant violations of basic and elementary principles of due process that

       presented an undeniable and substantial potential for harm. We find no error.


                                            B. Closing Arguments

[21]   Rolling challenges three comments by the prosecutor during closing arguments,

       but he did not object to any of them. He must thus demonstrate that the

       comments amounted to both misconduct and fundamental error.


[22]   It is proper for a prosecutor to argue both law and fact during final argument

       and to propound conclusions based upon his or her analysis of the evidence.

       Ellison v. State, 717 N.E.2d 211, 213 (Ind. Ct. App. 1999), trans. denied. “Ours is

       an adversarial process, and comments of counsel are not evidence.” Nevel v.

       State, 818 N.E.2d 1, 5 (Ind. Ct. App. 2004).


[23]   The prosecutor began his rebuttal to Rolling’s closing argument as follows:

       “That’s called a shotgun defense, that’s what that is. Throw a bunch of crap at

       the wall and see if any of it, any of it sticks, that’s exactly what that is.” Tr.

       Vol. III, p. 14. He later repeated, “This is what I’m talking [sic], throw crap at

       the wall and see what sticks.” Id. at 21. The prosecutor later said again,

       “That’s just more stuff being thrown at the wall.” Id. at 23.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017   Page 10 of 15
[24]   The prosecutor’s insulting characterization of defense counsel’s tactics cannot

       be condoned, but the comments did not amount to misconduct, let alone

       fundamental error. The Indiana Supreme Court has determined that remarks

       similar to those at issue here do not place defendants in grave peril under all of

       the circumstances of the case. See Ryan, 9 N.E.3d at 670 (prosecutor’s

       characterization of defense strategy as a “trick” was not misconduct); Brock v.

       State, 423 N.E.2d 302, 305 (Ind. 1985) (prosecutor’s statement that defense

       counsel was “pulling the most low life tricks” was improper but did not amount

       to misconduct). There is no reversible error.


                    II. Jury Instruction on Lesser Included Offense
[25]   Rolling argues the trial court erred in refusing to give a jury instruction on the

       lesser included offense of battery resulting in serious bodily injury, a Level 5

       felony. The State claims Rolling has waived his right to raise this claim on

       appeal. We agree with the State.


[26]   In general, when a party objects to a proposed instruction by the trial court or

       an opposing party, the party need not tender an alternative instruction to

       preserve a claim of error for appellate review. Minor v. State, 36 N.E.3d 1065,

       1072 (Ind. Ct. App. 2015), trans. denied; see also McDowell v. State, 885 N.E.2d

       1260, 1262-63 (Ind. 2008) (challenge to instruction given by trial court

       preserved for appellate review by objection alone). By contrast, where, as in

       this case, a party asks the court to instruct the jury on an omitted point of law,

       the failure to tender a proposed written instruction waives any potential error in


       Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017   Page 11 of 15
       the court’s omission of the instruction. White v. State, 687 N.E.2d 178, 179

       (Ind. 1997); see also Ortiz v. State, 766 N.E.2d 370, 375 (Ind. 2002) (claim of

       failure to instruct jury on territorial jurisdiction waived because defendant failed

       to tender proposed instruction).


[27]   Rolling concedes he did not give the trial court a proposed written instruction

       on lesser included offenses. He asserts he did not waive his jury instruction

       claim because: (1) the parties discussed the issue at length with the trial court;

       and (2) the State did not object at trial to the lack of a written instruction.

       Neither of these assertions provides a basis for the Court to disregard the

       Indiana Supreme Court’s precedent on the question of waiver. Rolling has
                                                    3
       waived his jury instruction claim.


                                                  Conclusion
[28]   For the foregoing reasons, we affirm the judgment of the trial court.


[29]   Affirmed.


       Altice, J., concurs.


       Riley, J., concurs in result with opinion.




       3
        The State further claims the omission of the jury instruction does not amount to fundamental error, but we
       need not address this point because Rolling is not presenting a claim of fundamental error on this issue.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017         Page 12 of 15
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Bryson Terrell Rolling,                                  Court of Appeals Case No.
                                                                48A04-1612-CR-2848
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Riley, Judge, concurring in part and concurring in result in part.

[30]   While I largely concur with the majority’s conclusions in this case, I must

       concur only in result with the majority’s determination that certain conduct by

       the prosecuting attorney was appropriate. Specifically, I disagree that the

       prosecutor’s questions and discussion surrounding the term “protracted” during

       voir dire did not amount to misconduct. (Tr. Vol. I, p. 62). It is well established

       that “the function of voir dire examination is not to educate jurors.” Perryman v.

       State, 830 N.E.2d 1005, 1008 (Ind. Ct. App. 2005). Rather, it “is to ascertain

       Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017   Page 13 of 15
       whether prospective jurors can render an impartial verdict based upon the law

       and the evidence, and ‘weed out’ those who show they cannot be fair to either

       side.” Gibson v. State, 43 N.E.3d 231, 238 (Ind. 2015). Thus, “questions should

       be limited to ‘testing the capacity and competency of prospective jurors.’” Id.

       Questions “that ‘seek to shape the favorable jury by deliberate exposure to the

       substantive issues in the case’ are not permitted.” Id.


[31]   In this case, the prosecutor imparted his understanding of the definition of the

       term for the potential jurors, specifically adding that it “is important” to the

       case. (Tr. Vol. I, p. 62). In fact, “protracted loss or impairment of the function

       of a bodily member or organ” was an element of the charged offense that the

       State was obligated to prove beyond a reasonable doubt. Ind. Code § 35-42-2-

       1.5(2). Thus, the prosecutor’s discussion of the meaning of “protracted”

       amounted to an attempt to educate the jurors on a substantive issue of the case,

       which goes beyond exploring juror biases. (Tr. Vol. I, p. 62).


[32]   It is not the role of the prosecutor during voir dire to instruct the jury on the law

       and facts of a case. Instead, in all criminal cases, it is the right of the jury “to

       determine the law and the facts.” Keller v. State, 47 N.E.3d 1205, 1208 (Ind.

       2016) (quoting Ind. Const. Art I, § 19). In addition to defining “protracted” for

       the venire, the prosecutor took it upon himself to educate the jury panel on

       other substantive matters of the law—even to the point that the trial court

       admonished him for “lecturing more than . . . asking questions.” (Tr. Vol. II, p.

       72). As the trial court aptly stated, voir dire is “designed to [e]licit opinions from

       the jurors.” (Tr. Vol. II, p. 72). Nevertheless, while I find that the prosecutor’s

       Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017   Page 14 of 15
use of voir dire to lecture on the meaning of “protracted” amounted to

misconduct, I agree with the majority that the misconduct did not place Rolling

in a position of grave peril to which he should not have been subjected. (Tr.

Vol. I, p. 62). Thus, I concur in result.




Court of Appeals of Indiana | Memorandum Decision 48A04-1612-CR-2848 | August 21, 2017   Page 15 of 15
