MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             Sep 15 2015, 8:21 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Hilary Bowe Ricks                                        Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Cynthia L. Ploughe
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bobby Lee Dean,                                          September 15, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1409-CR-669
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C04-0807-FA-401



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 1 of 30
[1]   Bobby Lee Dean appeals his convictions for dealing in cocaine as a class A

      felony, maintaining a common nuisance as a class D felony, and resisting law

      enforcement as a class A misdemeanor. Dean raises five issues which we

      consolidate and restate as:


           I.    Whether the court abused its discretion in admitting certain evidence;

          II.    Whether the court’s final instruction resulted in fundamental error; and

      III.       Whether the prosecutor committed misconduct during closing argument
                 which resulted in fundamental error.



      We affirm.


                                          Facts and Procedural History

[2]   On June 15, 2008, Anderson Police Detective Kevin Earley, a member of the

      Madison County Drug Task Force, received a phone call on his cell phone at

      home from an individual telling him that Dean and Anwar Hopgood were at a

      house on Horton Drive in the Brentwood Addition in Anderson, Indiana, that

      they were cooking crack cocaine, and that they were about to leave the

      residence in a white four door Buick and would be going to Dean’s address on

      West 34th Street. Detective Earley was familiar with the caller who had

      provided reliable information to him in the past, specifically, information

      leading to multiple search warrants and arrests.1 Detective Earley was familiar




      1
          At the December 12, 2013 hearing, Detective Earley testified that the source had previously provided:


      Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015           Page 2 of 30
      with Dean and Hopgood, had prior dealings with them, including three

      previous arrests of Dean, was aware that Dean had drugs on him during these

      previous contacts, and was also aware that Dean was staying at a residence on

      34th Street.


[3]   Detective Earley left his residence, drove to the area in an undercover vehicle,

      and arrived there in approximately three minutes. Upon arriving, he observed a

      white four door Buick going south on Raible a half a block to a block south of

      Horton Drive. He followed the vehicle as it turned west on 34th Street and

      pulled into a residential driveway on its own. He called for backup, parked and

      exited his vehicle, walked up to the driver’s side window of the Buick, and

      observed Hopgood whom he recognized in the driver’s seat and Dean in the

      front passenger seat. Detective Earley’s vehicle was parked in a position where

      Hopgood could not have backed straight out but “[t]here could have been”

      room for Hopgood to turn and “get out.” Transcript at 357.


[4]   At this time, Detective Earley was dressed in shorts, tennis shoes, and a t-shirt,

      but was wearing a badge hanging on a chain around his neck. The driver’s side




               Information which later led to a search warrant of a residence that resulted in the arrest
               of, I believe, three (3) individuals with marijuana. Two (2) other search warrants that
               were obtained. On one search warrant one individual was arrested with marijuana and a
               scale that tested positive for cocaine residue, and another search warrant in which three
               (3) people were arrested, uh, one (1) for possession of marijuana and two (2) for
               possession of marijuana and, uh, maintaining a common nuisance.


      Transcript at 9-10.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015          Page 3 of 30
      window was down, and Detective Earley and Hopgood engaged in a

      conversation. Dean looked and saw Detective Earley, turned away, then stuck

      his right hand in his pants pocket, and started digging in his pocket. Dean’s

      action caused Detective Earley concern because he “didn’t know if he was

      possibly in possession of a handgun.” Id. at 24. He asked Dean to remove his

      hand from his pocket, and Dean “[t]otally ignored” him. Id. at 25. He made

      the request “a couple times real quick,” and with his right hand still in his right

      pants pocket Dean reached across his body and opened the front passenger

      door, jumped from the car, and took off running towards the front door of a

      house. Id.


[5]   Detective Earley pursued Dean because he “felt like he had drugs or a weapon

      on him,” announced that he was a police officer, and told Dean to stop. Id. at

      311. Dean continued to run, opened the front door of the house, and, just as he

      slammed the door closed, Detective Earley forced the door open with his

      shoulder. Detective Earley saw Dean run to the kitchen, turn behind a

      refrigerator, and make a throwing motion with his hand. A clear baggie

      containing a white substance “came over the refrigerator landing on the floor

      out into the kitchen.” Id. at 27. Detective Earley then grabbed Dean and took

      him to the ground. Dean screamed and yelled for his girlfriend, Olympia

      Hindman, and she appeared.


[6]   At this point, Detective Earley had his gun in his right hand and Dean was

      seated with his back against a cabinet. Dean yelled at Hindman to pick up the

      baggie, and she “was moving like she was going to do so.” Id. at 29. Dean

      Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 4 of 30
      then grabbed Detective Earley’s gun. Detective Earley pulled back, Dean

      reached and grabbed the gun a second time, and Detective Earley struck Dean

      on the forehead with his gun. Dean remained conscious and “continued

      fighting trying to get away from” Detective Earley, who was eventually able to

      secure him. Id. at 214.


[7]   Anderson Police Officer Nick Durr took Dean into custody and rode in the

      ambulance with him and the medics to the hospital. At some point, Dean said

      that he wanted to speak to Detective Earley or Detective Stephon Blackwell and

      was transported to the police station.


[8]   At the station, Detective Earley advised Dean of his Miranda rights, and Dean

      stated that he understood his rights. He was not stumbling or having trouble

      speaking. Detective Blackwell showed Dean a written rights waiver, which he

      refused to sign, stating that he did not want to sign it because he thought it

      would violate his probation or parole. He did not want to talk about his current

      case, but said that he wanted to work with Detective Earley and Detective

      Blackwell in exchange for charges being dropped against him and his girlfriend,

      Hindman. He said that he had been to Chicago with another individual

      numerous times to pick up kilos of cocaine and that they were due to make a

      trip two days later to pick up more cocaine. Dean did not talk about the facts of

      the instant case. Detective Earley did not record the interview because Dean

      did not want it to be recorded.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 5 of 30
[9]    Meanwhile, Detective Earley obtained a search warrant for the residence. The

       police discovered a box in a bedroom closet containing digital scales with white

       residue later determined to be cocaine residue. The police also discovered a

       gun and $14,000 in cash. Approximately 156 grams of cocaine were collected.


[10]   On July 9, 2008, the State charged Dean with dealing in cocaine as a class A

       felony, maintaining a common nuisance as a class D felony, and resisting law

       enforcement as a class A misdemeanor. At some point, Dean bonded out and

       was not apprehended until more than four years later. On July 2, 2013, he filed

       a motion to suppress all property seized by the arresting officers, all

       observations made by the arresting officers, and all statements made by Dean.

       On December 12, 2013, the court held a hearing on the motion, and on April

       24, 2014, denied it. The court’s order stated: “The Court agrees with the

       opinion of the judge who issued the search warrant that the police conduct

       which led to observations of information establishing probable cause was

       justified.” Appellant’s Appendix at 26.


[11]   In August 2014, Dean filed a motion to suppress any oral or written

       communications, confessions, statements, or admissions he had made. The

       court held a hearing on his motion at which his counsel argued that Dean’s

       statements were not voluntary. The court denied the motion.


[12]   On August 12, 2014, the court began a jury trial. During the testimony of

       Detective Earley, Dean’s counsel objected to every piece of evidence discovered

       after Detective Earley’s entry into the home based upon the arguments made at


       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 6 of 30
       the suppression hearing. The court overruled the objection and showed the

       objection as continuing. Detective Earley and Detective Blackwell as well as a

       number of other officers testified to the foregoing.


[13]   Irene Nunn, the mother of Dean’s girlfriend, testified that she owned the house

       where Dean was arrested and that she did not know the origin of the $14,000.

       Hindman testified that she took a buyout from a prior employer which closed

       its business of $70,000, that she had $22,000 at her house, and that the police

       took $22,000. She also testified that Dean never threw a bag of drugs or asked

       her to take it for him, that she lived in the house into which Dean had ran, that

       she saw mail delivered to that residence addressed to Dean, and that a

       prescription bottle in her room with Dean’s name on it might have been left

       when Dean visited.


[14]   Dean testified that Hopgood asked him to hold on to something for him after

       they arrived at the house on 34th Street, and that in response he opened the

       glove box, grabbed two bags of cocaine, and stuck one in each of his pockets.

       He testified that he opened the door, jumped out of the car, and ran towards the

       door of the house because he had crack in his pocket and because he was on

       probation. He said that Detective Earley never told him to stop. On recross-

       examination, Dean testified that he lied when he said that his address was the

       house where he was arrested.


[15]   After the defense rested, the court and the attorneys discussed final instructions.

       State’s Proposed Final Instruction No. 6 stated: “A warrantless arrest in the


       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 7 of 30
       home for a misdemeanor is permitted where there is immediate or continuous

       pursuit from the scene of a misdemeanor crime to the door of the home.” Id. at

       67. Defense counsel stated: “I don’t have any legal basis for objecting to that

       one either, Judge.” Transcript at 784. The trial court later read this instruction

       to the jury and provided the instruction as Final Instruction No. 12.


[16]   During closing argument, the prosecutor made argument without objection.

       The jury found Dean guilty as charged. The court sentenced him to forty-three

       years for dealing in cocaine as a class A felony, three years for maintaining a

       common nuisance as a class D felony, and one year for resisting law

       enforcement as a class A misdemeanor, to be served concurrently for an

       aggregate sentence of forty-three years, with five years suspended to probation.


                                                   Discussion

                                                         I.


[17]   The first issue is whether the court abused its discretion by admitting the

       evidence obtained after Dean left the car. We review the trial court’s ruling on

       the admission or exclusion of evidence for an abuse of discretion. Roche v. State,

       690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We reverse only where the

       decision is clearly against the logic and effect of the facts and circumstances.

       Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. Even if the trial

       court’s decision was an abuse of discretion, we will not reverse if the admission

       constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App.

       1999), reh’g denied, trans. denied. Also, we may affirm a trial court’s decision to

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 8 of 30
       admit evidence seized as a result of a search based on any legal theory

       supported by the record. Edwards v. State, 724 N.E.2d 616, 620-621 (Ind. Ct.

       App. 2000), trans. denied. We review de novo a ruling on the constitutionality of

       a search or seizure, but we give deference to a trial court’s determination of the

       facts, which will not be overturned unless clearly erroneous. Campos v. State,

       885 N.E.2d 590, 596 (Ind. 2008); see also Carpenter v. State, 18 N.E.3d 998, 1001

       (Ind. 2014) (holding that the ultimate determination of the constitutionality of a

       search or seizure is a question of law that we consider de novo).


[18]   In ruling on admissibility following the denial of a motion to suppress, the trial

       court considers the foundational evidence presented at trial. Carpenter, 18

       N.E.3d at 1001. If the foundational evidence at trial is not the same as that

       presented at the suppression hearing, the trial court must make its decision

       based upon the trial evidence and may consider hearing evidence only if it does

       not conflict with trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind.

       2014). It also considers the evidence from the suppression hearing that is

       favorable to the defendant only to the extent it is uncontradicted at trial.

       Carpenter, 18 N.E.3d at 1001.


       A. Encounter


[19]   Dean does not argue that Detective Earley’s initial encounter with him, was

       unconstitutional under the Fourth Amendment. Rather, he contends that the

       initial encounter was consensual and that Detective Earley should have known

       that Dean was free to walk or even run away. He focuses on Detective Earley’s


       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 9 of 30
       entry into the home. He asserts that neither a hunch that a defendant may have

       a weapon or concern for officer safety standing alone are sufficient to change a

       consensual encounter into an investigatory stop, nor can either justify a

       warrantless entry into a private home. He contends that the right to refuse a

       consensual encounter loses all meaning if doing so permits the police to change

       it to a second or third level investigation by giving chase and then arresting the

       person for fleeing. His position is that all evidence obtained after he left the car

       was inadmissible because it was all fruit of Detective Earley’s violation of

       Dean’s constitutional right to decline to engage in a consensual encounter. He

       also alleges that the evidence obtained following the search warrant is

       inadmissible because the probable cause for the warrant presumably came from

       the illegal entry.


[20]   The State argues that the record is devoid of any showing by Dean that he had

       any expectation of privacy in the house into which Detective Earley pursued

       him. The State contends that, notwithstanding the lack of expectation of

       privacy, the trial court did not abuse its discretion because the encounter was

       initially consensual and Dean’s conduct transformed the encounter into

       reasonable suspicion that criminal activity was afoot and allowed Detective

       Earley to stop him. The State asserts that Dean’s actions were not merely a

       simple demonstration that he did not wish to engage with the officer or he was

       ignoring the officer, and that Dean’s headlong flight and the information

       received by Detective Earley provided a sufficient reasonable basis for the

       detective to suspect that Dean was up to some criminal activity.


       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 10 of 30
[21]   In his brief, Dean mentions both the Fourth Amendment and Article 1, Section

       11 of the Indiana Constitution. However, he fails to provide an independent

       analysis of the Indiana Constitution. Failure to make a cogent argument under

       the Indiana Constitution constitutes waiver of the issue on appeal. See Abel v.

       State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (holding that because the defendant

       presented no authority or independent analysis supporting a separate standard

       under the state constitution, any state constitutional claim is waived). Thus, we

       focus on the Fourth Amendment to the United States Constitution which

       provides:

               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,
               shall not be violated, and no warrants shall issue, but upon
               probable cause, supported by oath or affirmation, and
               particularly describing the place to be searched, and the persons
               or things to be seized.


[22]   Encounters between law enforcement officers and public citizens take a variety

       of forms, some of which do not implicate the protections of the Fourth

       Amendment and some of which do. Clark v. State, 994 N.E.2d 252, 261 (Ind.

       2013) (citing Finger v. State, 799 N.E.2d 528, 532 (Ind. 2003)). Consensual

       encounters in which a citizen voluntarily interacts with an officer do not compel

       Fourth Amendment analysis. Id. Nonconsensual encounters do, though, and

       typically are viewed in two levels of detention: a full arrest lasting longer than a

       short period of time, or a brief investigative stop. Id. The former of these




       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 11 of 30
       requires probable cause to be permissible; the latter requires a lower standard of

       reasonable suspicion. Id.


[23]   Dean concedes that the initial encounter was consensual. Thus, we address

       Detective Earley’s order that Dean stop and the statute governing resisting law

       enforcement. At the time, the offense of resisting law enforcement as a class A

       misdemeanor was governed by Ind. Code § 35-44-3-3, which provided that “[a]

       person who knowingly or intentionally . . . flees from a law enforcement officer

       after the officer has, by visible or audible means . . . identified himself or herself

       and ordered the person to stop . . . commits resisting law enforcement, a Class

       A misdemeanor . . . .”2 In its charging information, the State alleged that Dean

       “did knowingly or intentionally flee from Kevin Earley, a law enforcement

       officer, after said officer identified themselves [sic] by visible or audible means

       and visibly or audibly ordered said defendant to stop . . . .” Appellant’s

       Appendix at 17.


[24]   The Indiana Supreme Court has held that in order to interpret the resisting law

       enforcement statute as constitutional the “statutory element ‘after the officer

       has . . . ordered the person to stop’ must be understood to require that such

       order to stop rest on probable cause or reasonable suspicion, that is, specific,

       articulable facts that would lead the officer to reasonably suspect that criminal

       activity is afoot.” Gaddie v. State, 10 N.E.3d 1249, 1255 (Ind. 2014).



       2
        Subsequently repealed by Pub. L. No. 126-2012, § 53 (eff. July 1, 2012), and replaced by Ind. Code § 35-
       44.1-3-1.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015       Page 12 of 30
       Reasonable suspicion must be comprised of more than hunches or

       unparticularized suspicions. Clark, 994 N.E.2d at 263. “In other words, the

       stop ‘must be justified by some objective manifestation that the person stopped

       is, or is about to be, engaged in criminal activity.’” Id. at 263-264 (quoting

       United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690 (1981)). “[T]he totality

       of the circumstances—the whole picture—must be taken into account. Based

       upon that whole picture the detaining officers must have a particularized and

       objective basis for suspecting the particular person stopped of criminal activity.”

       Id. at 264 (quoting Cortez, 449 U.S. at 417-418, 101 S. Ct. 690). In discussing

       evidence of reasonable suspicion, the Court has held that refusal to cooperate

       with police must be distinguished from unprovoked flight. Gaddie, 10 N.E.3d at

       1256. “Nervous, evasive behavior is another pertinent factor in determining

       reasonable suspicion . . . and headlong flight is the consummate act of evasion.”

       Illinois v. Wardlow, 528 U.S. 119, 119, 120 S. Ct. 673, 674 (2000). In assessing

       the whole picture, we must examine the facts as known to the officer at the

       moment of the stop. Clark, 994 N.E.2d at 264. We review findings of

       reasonable suspicion de novo. Id. This is necessarily a fact-sensitive inquiry. Id.


[25]   We disagree with Dean’s characterization that he was merely attempting to

       avoid a consensual encounter. Rather, the record reveals that Dean jumped

       from the car and took off running. Based upon the record, including that the

       caller had previously provided reliable information leading to arrests, Detective

       Earley’s confirmation of the caller’s statements regarding the location and

       vehicle of Dean and Hopgood, and Dean’s behavior, including refusing to

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 13 of 30
       remove his hand from his pocket and headlong flight, we conclude that

       Detective Earley had reasonable suspicion to suspect that criminal activity was

       afoot and to order Dean to stop.3 See Hardister v. State, 849 N.E.2d 563, 570-571

       (Ind. 2006) (holding that the residents’ headlong flight toward the rear of the

       house coupled with the anonymous tip and the location in an area known for

       narcotics traffic furnished reasonable suspicion justifying an investigatory stop

       of the fleeing occupants and that the officers’ efforts to intercept the fleeing pair

       were therefore justified as necessary to pursue the investigation); see also

       Murdock v. State, 10 N.E.3d 1265, 1268 (Ind. 2014) (holding that while refusal to

       cooperate, without more, does not furnish the minimal level of objective

       justification needed for a detention or seizure, “nervous, evasive behavior is a

       pertinent factor in determining reasonable suspicion,” and concluding that

       reasonable suspicion existed where the defendant ran when the officer

       appeared, engaged in furtive and evasive activity in a high-crime area, was

       uncooperative, and matched the description of the suspect).


[26]   We next turn to Detective Earley’s entry into the house. To the extent that the

       State argues the record is devoid of any showing by Dean that he had any

       expectation of privacy in the house into which Detective Earley pursued him,

       we note that the State acknowledges that this argument was not made to the




       3
         Dean argues that the evidence was insufficient to sustain his conviction for resisting law enforcement as a
       class A misdemeanor because Detective Earley did not have a reasonable and articulable suspicion that Dean
       was, had been, or was about to be engaged in criminal activity. Because we conclude that Detective Earley
       had reasonable suspicion to order Dean to stop and the facts most favorable to the conviction reveal that
       Dean continued running, we cannot say that the evidence was insufficient.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015        Page 14 of 30
       trial court. We further note that, while Dean testified that he never stayed at

       the residence on 34th Street, that he did not live there, and that he lied when he

       said that his address was the house where he was arrested, the prosecutor

       argued in closing that “[t]hat’s his house. He has an ownership interest in it.”

       Transcript at 801. The Indiana Supreme Court has held that, “[w]here the

       prosecution has failed to make any trial court challenge to standing, the

       government may not raise the issue for the first time on appeal” and that

       “[l]ikewise, in resolving a claim of unlawful search and seizure, an appellate

       court should not invoke lack of standing, sua sponte.” Everroad v. State, 590

       N.E.2d 567, 569 (Ind. 1992), reh’g denied. Even assuming that Dean’s testimony

       admitting that he did not live at the house allowed the State to argue a lack of

       an expectation of privacy in the house on appeal, we need not address the issue

       of waiver because we conclude that Detective Earley did not improperly enter

       the house.


[27]   When there is probable cause to believe a person has just committed a crime

       and is in a particular dwelling, police may make a warrantless arrest in the

       home. Hardister, 849 N.E.2d at 571. In addressing the warrantless entry into a

       home, the United State Supreme Court has held that an action is reasonable

       under the Fourth Amendment, regardless of the individual officer’s state of

       mind, as long as the circumstances, viewed objectively, justify the action.

       Brigham City, Utah v. Stuart, 126 S. Ct. 1943, 1948 (2006).


[28]   Further, “officers may enter the home if they are in ‘hot pursuit’ of the arrestee

       or if exigent circumstances justified the entry.” Barnes v. State, 946 N.E.2d 572,

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 15 of 30
       576 (Ind. 2011), adhered to on reh’g, 953 N.E.2d 473 (Ind. 2011). See also United

       States v. Santana, 427 U.S. 38, 43, 96 S. Ct. 2406, 2410 (1976) (holding that a

       suspect may not defeat an arrest which has been set in motion in a public place

       by the expedient of escaping to a private place). “Traditionally, exigent

       circumstances have been found [] where: 1) a suspect is fleeing or likely to take

       flight in order to avoid arrest; 2) incriminating evidence is in jeopardy of being

       destroyed or removed unless an immediate arrest is made; and 3) in cases that

       involve hot pursuit or movable vehicles.” Snellgrove v. State, 569 N.E.2d 337,

       340 (Ind. 1991). This court has previously held:


               Law enforcement is not a child’s game of prisoners base, or a
               contest, with apprehension and conviction depending upon
               whether the officer or defendant is the fleetest of foot. A police
               officer in continuous pursuit of a perpetrator of a crime
               committed in the officer’s presence, be it a felony or a
               misdemeanor, must be allowed to follow the suspect into a
               private place, or the suspect’s home if he chooses to flee there,
               and effect the arrest without a warrant. A contrary rule would
               encourage flight to avoid apprehension and identification, even
               at dangerously high speeds as here, with the natural destruction
               of evidence accomplished while the officer interrupted his pursuit
               to obtain a warrant.


       State v. Blake, 468 N.E.2d 548, 553 (Ind. Ct. App. 1984).


[29]   Given our conclusion that Detective Earley had reasonable suspicion to order

       Dean to stop, Detective Earley’s testimony that Dean continued running after

       he had ordered him to stop, as well as the other circumstances noted, we

       conclude that Detective Earley had probable cause to believe that Dean had just

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 16 of 30
committed a crime and was in hot pursuit. Under the circumstances, we

cannot say that the challenged evidence is inadmissible based upon Detective

Earley’s pursuit of Dean. See Lepard v. State, 542 N.E.2d 1347, 1350 (Ind. Ct.

App. 1989) (holding that the officers had probable cause to believe the

defendant had committed the misdemeanors of driving while intoxicated and

resisting law enforcement and that there was an immediate and continuous

pursuit which created an exigent circumstance permitting them to enter the

defendant’s home and affirming the trial court’s denial of the defendant’s

motion to suppress), reh’g denied; Blake, 468 N.E.2d at 550-553 (observing that a

police officer had probable cause to believe the defendant had committed

resisting law enforcement as a class A misdemeanor and the officer had good

reason to believe that the defendant would continue his flight if he left the site

to procure an arrest warrant, and holding that the officer’s pursuit of the

defendant into his home in order to apprehend him without a warrant was

justified).4




4
  We note that the United States Supreme Court recently observed that federal and state courts nationwide
are sharply divided on the question whether an officer with probable cause to arrest a suspect for a
misdemeanor may enter a home without a warrant while in hot pursuit of that suspect. Stanton v. Sims, 134
S. Ct. 3, 5 (2013). The Court specifically expressed no view on whether the officer’s entry into a yard in
pursuit of a suspect was constitutional. Id. at 7. Lepard and Blake cited above both held that entries by the
police into a house were proper when they had probable cause to believe that the person had just committed
a misdemeanor. See Lepard, 542 N.E.2d at 1350; Blake, 468 N.E.2d at 550-553. We need not revisit this issue
as Dean raises no argument that Detective Earley’s entry into the house was improper because Detective
Earley had only probable cause that Dean had committed a misdemeanor.

Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015       Page 17 of 30
       B. Statements


[30]   Dean argues that the trial court erred in admitting his statements to Detective

       Earley and Detective Blackwell because Ind. Evidence Rule 617(a)(2) was not

       followed. Dean acknowledges that Rule 617 was enacted in 2011, but argues

       that it should be applied retroactively because it established a new rule for the

       conduct of criminal prosecutions and his case was pending on direct review or

       not yet final. He also asserts that he was prejudiced by the admission of his

       statements. The State argues that Dean waived his claim that the statements

       were inadmissible due to a violation of Rule 617 because he never linked the

       lack of recording to Rule 617. The State also argues that Rule 617 is not

       applicable to Dean’s June 15, 2008 interview with the police.


[31]   Ind. Evidence Rule 617 provides:


               (a) In a felony criminal prosecution, evidence of a statement
               made by a person during a Custodial Interrogation in a Place of
               Detention shall not be admitted against the person unless an
               Electronic Recording of the statement was made, preserved, and
               is available at trial, except upon clear and convincing proof of
               any one of the following:


                                                         *****


                        (2) Before or during a Custodial Interrogation, the person
                        agreed to respond to questions only if his or her
                        Statements were not Electronically Recorded, provided
                        that such agreement and its surrounding colloquy is
                        Electronically Recorded or documented in writing . . . .


       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 18 of 30
[32]   During the trial, Dean’s counsel did not mention Rule 617. Moreover, the

       Indiana Supreme Court issued an Order Amending Rules of Evidence on

       September 15, 2009, which added Rule 617 and provided that Rule 617 “shall

       apply only to statements made on or after January 1, 2011.” Order Amending

       Rules of Evidence, No. 94S00-0909-MS-4 (Ind. 2009), available at

       http://www.in.gov/ilea/files/Evidence_Rule_617.pdf. Accordingly, Rule 617

       does not apply retroactively and Dean is not entitled to reversal on this basis.


                                                         II.


[33]   The next issue is whether the court’s Final Instruction No. 12 regarding a

       warrantless arrest in the home resulted in fundamental error. Generally, “[t]he

       purpose of an instruction is to inform the jury of the law applicable to the facts

       without misleading the jury and to enable it to comprehend the case clearly and

       arrive at a just, fair, and correct verdict.” Overstreet v. State, 783 N.E.2d 1140,

       1163 (Ind. 2003), cert. denied, 540 U.S. 1150, 124 S. Ct. 1145 (2004). Instruction

       of the jury is generally within the discretion of the trial court and is reviewed

       only for an abuse of that discretion. Id. at 1163-1164. To constitute an abuse of

       discretion, the instruction given must be erroneous, and the instructions taken

       as a whole must misstate the law or otherwise mislead the jury. Benefiel v. State,

       716 N.E.2d 906, 914 (Ind. 1999), reh’g denied, cert. denied, 531 U.S. 830, 121 S.

       Ct. 83 (2000). Before a defendant is entitled to a reversal, he or she must

       affirmatively show that the erroneous instruction prejudiced his substantial

       rights. Gantt v. State, 825 N.E.2d 874, 877 (Ind. Ct. App. 2005). An error is to



       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 19 of 30
       be disregarded as harmless unless it affects the substantial rights of a party.

       Oatts v. State, 899 N.E.2d 714, 727 (Ind. Ct. App. 2009).


[34]   As acknowledged by Dean, he did not object to the jury instruction. To

       circumvent waiver, he contends that the instruction resulted in fundamental

       error. Fundamental error is an extremely narrow exception that allows a

       defendant to avoid waiver of an issue. Cooper v. State, 854 N.E.2d 831, 835

       (Ind. 2006). It is error that makes “a fair trial impossible or constitute[s] clearly

       blatant violations of basic and elementary principles of due process . . .

       present[ing] an undeniable and substantial potential for harm.” Id. “This

       exception is available only in ‘egregious circumstances.’” Brown v. State, 929

       N.E.2d 204, 207 (Ind. 2010) (quoting Brown v. State, 799 N.E.2d 1064, 1068

       (Ind. 2003)), reh’g denied. “Fundamental error is meant to permit appellate

       courts a means to correct the most egregious and blatant trial errors that

       otherwise would have been procedurally barred, not to provide a second bite at

       the apple for defense counsel who ignorantly, carelessly, or strategically fail to

       preserve an error.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh’g denied.


[35]   Dean argues that the question of whether Detective Earley was legally

       permitted to enter the residence was a matter of admissibility to be resolved by

       the court and not the jury. He asserts that Final Instruction No. 12 misled the

       jury, it created a presumption of guilt without the possibility of rebutting it, and

       the State used the instruction to disparage and invalidate his theory of defense.

       Dean also contends that “at least six (6) weeks prior to trial the Indiana

       Supreme Court had substantially clarified the legal gray area regarding when

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 20 of 30
       choosing to ignore a law enforcement officer’s request/order to remain still and

       submit to an encounter is or is not a crime.” Appellant’s Brief at 29 (citing

       Gaddie, 10 N.E.3d at 1254-1255; and Griffin v. State, 997 N.E.2d 375, 378-379

       (Ind. Ct. App. 2013), trans. granted, order granting transfer vacated, trans. denied).

       The State argues that Final Instruction No. 12 was a correct statement of the

       law, that the evidence supported giving the instruction, and the substance of the

       instruction was not covered by other instructions.


[36]   Final Instruction No. 12 stated: “A warrantless arrest in the home for a

       misdemeanor is permitted where there is immediate or continuous pursuit from

       the scene of a misdemeanor crime to the door of the home.” Appellant’s

       Appendix at 71. As noted herein, the Court in Gaddie held that in order to

       interpret the resisting law enforcement statute as constitutional, the “statutory

       element ‘after the officer has . . . ordered the person to stop’ must be understood

       to require that such order to stop rest on probable cause or reasonable

       suspicion, that is, specific, articulable facts that would lead the officer to

       reasonably suspect that criminal activity is afoot.” 10 N.E.3d at 1255. In

       Griffin, the other case cited by Dean, the court held that “[c]itizens are obliged

       to obey a police officer’s order to stop when the officer has probable cause or

       reasonable suspicion to believe that criminal activity may be afoot.” 997

       N.E.2d at 377. The court also held: “When there is no indication of possible

       criminal activity, does a citizen who walks away commit the crime of resisting

       arrest by departing? We think it cannot be so, consistent with the Fourth

       Amendment . . . .” Id. The court also observed that the State explicitly argued


       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 21 of 30
       that it need not establish any facts giving rise to probable cause or articulable

       suspicion that would have warranted detaining the defendant in order to sustain

       the conviction. Id. at 380. We cannot say that Gaddie or Griffin indicate that

       Final Instruction No. 12 was an incorrect statement of the law. Based on our

       review of the jury instructions as a whole and all other relevant information

       presented to the jury, we conclude that Final Instruction No. 12 did not deprive

       Dean of a fair trial so as to constitute fundamental error.


                                                        III.


[37]   The next issue is whether the prosecutor committed misconduct during closing

       argument which resulted in fundamental error. In reviewing a properly

       preserved claim of prosecutorial misconduct, we determine: (1) whether the

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

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

       which he should not have been subjected. Cooper, 854 N.E.2d at 835. Whether

       a prosecutor’s argument constitutes misconduct is measured by reference to

       caselaw and the Rules of Professional Conduct. Id. 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.


[38]   When an improper argument is alleged to have been made, the correct

       procedure is to request the trial court to admonish the jury. Id. If the party is

       not satisfied with the admonishment, then he should move for mistrial. Id.

       Failure to request an admonishment or to move for mistrial results in waiver.


       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 22 of 30
       Id. Here, Dean did not object to the statements of the prosecutor during closing

       argument. Thus, he has waived the issue.


[39]   Where, as here, a claim of prosecutorial misconduct has not been properly

       preserved, our standard of review is different from that of a properly preserved

       claim. Id. More specifically, the defendant must establish not only the grounds

       for the misconduct, but also the additional grounds for fundamental error. Id.


[40]   Dean argues that the prosecutor and deputy prosecutor denounced defense

       counsel’s integrity, vouched for the credibility of State witnesses, inflamed

       jurors’ passions, referred to evidence that had not been introduced during the

       trial, offered personal opinions, and misstated the law. The State asserts that

       defense counsel attacked the credibility of the officers, the prosecutor’s

       statements were in response to defense counsel’s comments, and that, even if

       some of the prosecutor’s statements were improper, they did not raise to the

       level of fundamental error.


[41]   During closing argument, the prosecutor stated:


               [Defense counsel] also was making a big deal again about this
               cover-up, this . . . this conduct. He went into the house without a
               warrant and, you know what, that . . . that’s so terrible. But you
               know what the law says and what the Judge is going to tell you?
               That a warrantless arrest in the home for a misdemeanor is
               permitted where there is immediate or continuous pursuit from
               the scene of a misdemeanor crime to the door of the home.
               Police officer can also arrest a person without a warrant if he has
               probable cause to believe that the person is committing or
               attempting to commit a misdemeanor in his presence. What

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 23 of 30
               misdemeanor was that? That was resisting law enforcement,
               which is also defined and it’s a charge in this case. The
               defendant knowingly or intentionally fled from a law
               enforcement officer, Detective Earl[e]y, after the law
               enforcement officer had by visible or audible means identified
               himself.


       Transcript at 800.


[42]   During his closing argument, defense counsel stated that Detective Earley was

       “familiar with the appeals and he knows about the 4th Amendment. He knows

       about the exceptions. He created the exception!” Id. at 804. Defense counsel

       also stated:


               The State does a lot about this (hand banging on table twice) this
               gun. He’s not even charged with the gun! Don’t fall for that! It’s
               . . . it’s a herring, it’s a red herring, it’s a pink elephant. They’re
               throwing it out there for prejudice. That’s it! There’s no reason
               to bring that gun in here. He’s not charged with it. It doesn’t
               prove anything. There’s . . . there’s not even any fingerprints on
               it. Why are they bringing this in front of you? Because they
               want you to believe he’s guilty because there’s a gun in the
               house. He didn’t have a gun in the car. Earl[e]y didn’t even see
               a gun. Earl[e]y got in that house because he chased after Bobby
               Dean. Why did he chase after Bobby Dean? Detective Earl[e]y
               is a lion, he’s an alpha male. He ran after Bobby Dean because
               Bobby Dean ran. And he knew it, and that’s the only reason
               why he went after him. He set the whole thing up.


       Id. at 806. Defense counsel further argued that Detective Earley


               wants you to believe that he was standing over Bobby Dean with
               a gun to his head and that Bobby Dean either from this position

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 24 of 30
        or this position reached up and grabbed the barrel of his gun.
        Really? Does that even make sense. Who is on the ground with
        an officer with a gun pointing at them and actually grabs the
        barrel while it was near your head? It just doesn’t even make any
        sense. It’s a reason, it’s an excuse that therefore justifies his use
        of force.


Id. at 807. With respect to the money, defense counsel stated:


        They have no proof that Bobby Dean had that money. The
        money that was in the house. They . . . they don’t even have him
        making it to the bedroom. They don’t have him at the house
        earlier that day. They’ve got a pill bottle from January of 2008.
        That’s what they got. They have no absolute proof that he was
        ever there in that room, especially on that given day. Now
        Nicole Hindman, she sits up here and she did testify. She said I
        had a buyout. Her mom says I came in the room earlier, I saw
        the money on the dresser and I just shook my head like why do
        you have all that money in my house. All right? She probably
        shoulda had it in the bank. You know? There’s . . . there’s no
        doubt about it. Is that the wisest thing to do? To have that kind
        of money around? No. You know, probably not real wise but
        there are people who don’t use banks. You know? Was . . . is
        Nicole Hindman the sharpest knife in the box? Is she the
        smartest person I’ve ever met or seen before? Probably not.
        Probably not.


Id. at 808-809. Defense counsel also argued:


        Olympia Hindman, Irene Nunn or Lisa Nunn, they got no
        reason to lie about . . . the ladies saw him getting beat or hit.
        They’re just . . . they’re not lying about that. It didn’t happen
        how [Detective Earley] said it happened. That’s the first lie.
        That’s the first lie. You know he’s lying about that. . . . He’s
        covering it up. He has to. You can’t . . . you can’t continue to

Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 25 of 30
               move forward in your career if you’ve stuff like that on your
               jacket or in your record. He can’t. He can’t allow it to be out
               that he lost his temper, he ran after Dean and that he set it up.
               He can’t.


       Id. at 813.


[43]   On rebuttal, the prosecutor argued:

               I’ve been doing this for a pretty long time. I’m not sure I’ve
               heard much like that before. I’m really not. Oh, man, this is
               devastating our community. This is a community that’s
               devastated by the illegal drug activity and how a man like that
               can come in here and somehow make an argument about that for
               him it’s offensive. Kevin Earl[e]y is a police officer this
               community should be very proud of. I live here and I’m very
               proud of the way he acted on that day. . . . He lives near that
               side of town. I know where he lives. Doesn’t live far from me. I
               know where Mr. Earl[e]y lives and it’s not far from where this
               happened. Cause we live in this community. We live where this
               stuff is happening. And he got out of his house on his day off, on
               Father’s Day, went to investigate this. And, if he hadn’t, that
               stuff would still be on the streets. I’m glad he did that.


                                                    *****


               And somehow Kevin Earl[e]y is out of control because he chases
               Bobby Dean into the house. I guess he should’ve just let him go.
               Just let him go. You can’t follow him. I’m in my house, you
               can’t follow me, I’m in my house! It’s not the way it goes. And,
               if that was the law, we wouldn’t be here and we wouldn’t be
               hearing, the Judge wouldn’t even let you hear this case. If that’s
               the law, he wouldn’t even let you hear this case. That’s not the
               law. If you run from the police and they tell you to stop, you
               have to stop.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 26 of 30
       Id. at 816-817. The prosecutor later stated:


               Let me see, [defense counsel] say [sic]? Olympia Hindman has
               no reason to lie. She’s got every reason to lie. Her baby daddy is
               going to go to prison if she doesn’t come up here and lie and help
               him concoct a story to get away with this. What do you mean
               she’s got no reason to lie? What kind of a ridiculous thing is that
               to say and thinking you’re going to believe it? Are you kidding
               me? She’s got now reas . . . every single person that testified had
               a reason to lie. And most of them did. The money. My money.
               Are you kidding me? And why did the Feds take it? Cause it’s
               product of drug activity. If that was her money and she showed
               even a scintilla of evidence that that was her money, she
               wouldn’t have lost that money. That money would’ve been . . .
               that money would’ve went back to her.


       Id. at 819-820. The prosecutor also stated:


               If you’re really fooled by all this nonsense you heard over here on
               this side of the room this week, you go ahead and send him
               home. But, if you want to do justice and you want to stand up
               for what’s right and you want to do the right thing, you want to
               follow the law and you want to stand up for your community,
               convict this guy cause he’s guilty.


       Id. at 825.


[44]   With respect to Dean’s argument that the prosecutors’ comments were

       derogatory, Dean relies upon Collins v. State, 966 N.E.2d 96 (Ind. Ct. App.

       2012). In Collins, the defense counsel argued in closing that her client had no

       previous conviction, and the prosecutor stated: “Judge, I’m going to object

       Counsel knows that that—very well that her client was convicted. It was


       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 27 of 30
       reduced to a misdemeanor, and that is contained within the psychiatric records

       as well as the other health records that we received.” 966 N.E.2d at 107. On

       appeal, the court observed that there was nothing in the record to establish that

       the defendant was in fact convicted of the charge or that defense counsel knew

       there was a conviction. Id. The court held that the prosecutor’s comment “cast

       defense counsel in a derogatory fashion, portraying her as a liar, or at least

       suggesting that she was dishonest with the jury.” Id. The court concluded that

       the prosecutor’s comments disparaging defense counsel and mischaracterizing

       the evidence to reflect that the defendant had a prior conviction presented an

       undeniable and substantial potential for harm. Id.


[45]   We cannot say that the prosecutor’s comments in this case rise to the level of

       those in Collins. To the extent that Dean challenges the prosecutor’s statements

       regarding the witnesses’ truthfulness, we observe that the Indiana Supreme

       Court has held that a prosecutor does not necessarily engage in misconduct by

       characterizing a defendant as a liar. Cooper, 854 N.E.2d at 836. Rather, “a

       prosecutor may comment on the credibility of the witnesses as long as the

       assertions are based on reasons which arise from the evidence.” Id. “A

       prosecutor, in final arguments, can ‘state and discuss the evidence and

       reasonable inferences derivable therefrom so long as there is no implication of

       personal knowledge that is independent of the evidence.’” Hobson v. State, 675

       N.E.2d 1090, 1096 (Ind. 1996) (quoting Kappos v. State, 577 N.E.2d 974, 977

       (Ind. Ct. App. 1991), trans. denied). Some of the prosecutor’s comments were

       merely responses to the arguments raised by defense counsel in his closing

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 28 of 30
       argument. “Prosecutors are entitled to respond to allegations and inferences

       raised by the defense even if the prosecutor’s response would otherwise be

       objectionable.” Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004).


[46]   With respect to Dean’s argument that the prosecutor inflamed jurors’ passions,

       we note that it may be misconduct for a prosecutor to ask a jury to convict a

       defendant for any reason other than his guilt, or to attempt to inflame the

       passions or prejudices of the jury. Wisehart v. State, 693 N.E.2d 23, 59 (Ind.

       1998), reh’g denied, cert. denied, 526 U.S. 1040, 119 S. Ct. 1338 (1999). Indeed,

       the Indiana Supreme Court has disapproved of prosecutors invoking a general

       concern for “community safety” as a legitimate basis for returning a guilty

       verdict. See Maldonado v. State, 265 Ind. 492, 501, 355 N.E.2d 843, 849 (1976)

       (finding error in the prosecutor arguing, “this may be the most important thing

       you’ll ever do for your community”). However, Dean brings his challenge

       under the fundamental error exception, which is extremely narrow and is

       “available only in ‘egregious circumstances,’” Brown, 929 N.E.2d at 207, and

       we cannot say that he has demonstrated fundamental error in this regard.


[47]   While some of the comments may have been improper, the jury was instructed:

       “You are the exclusive judges of the evidence, which may be either witness

       testimony or exhibits.” Appellant’s Appendix at 72. The jury was also

       instructed that “[s]tatements made by the attorneys are not evidence.” Id. at 73.

       Even if we assumed some of the prosecutor’s arguments or comments were

       misconduct, we are not persuaded that the comments during the prosecutor’s

       argument created “an undeniable and substantial potential for harm.” Cooper,

       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 29 of 30
       854 N.E.2d at 835. Given the evidence presented at the trial, including Dean’s

       testimony that he grabbed two bags of cocaine, opened the car door, jumped

       out of the car, and ran into the house, and the jury instructions, we conclude

       that any prejudicial impact caused by the prosecutor’s statements was minimal

       and that the prosecutor’s statements do not constitute fundamental error. Dean

       is not entitled to a new trial on this basis.


                                                   Conclusion

[48]   For the foregoing reasons, we affirm Dean’s convictions.


[49]   Affirmed.


       Barnes, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1409-CR-669 | September 15, 2015   Page 30 of 30
