MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Apr 26 2016, 9:40 am

this Memorandum Decision shall not be                                       CLERK
regarded as precedent or cited before any                               Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
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
Valerie K. Boots                                         Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana                                    James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Philip A. Garrett,                                       April 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1509-CR-1380
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff.                                      Rothenberg, Judge
                                                         Trial Court Cause No.
                                                         49G02-1306-MR-036144



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016           Page 1 of 19
[1]   Philip A. Garrett (“Garrett”) was convicted in Marion Superior Court of

      murder. Garrett appeals and presents three issues for our review, which we

      restate as:


          I.   Whether the trial court abused its discretion when it permitted a witness
               to testify that Garrett had previously made a statement that his ex-
               girlfriend’s new boyfriends would start to “disappear”;
          II. Whether the trial court committed fundamental error in instructing the
               jury regarding the elements of murder, voluntary manslaughter, and self-
               defense; and
          III. Whether the prosecuting attorney’s statements regarding sudden heat
               during the State’s closing arguments constitutes fundamental error.

[2]   We affirm.

                                     Facts and Procedural History

[3]   In 2012, Garrett began a romantic relationship with Laprecious Epps (“Epps”).

      Epps had been living with her long-time friend Jantitta Barlow (“Barlow”), but

      Barlow moved back in with her father when Garrett moved in with Epps. Epps

      and Garrett lived together until October 2012, and by December 2012, Epps

      had ended the relationship, at which point Barlow moved back in with Epps.

      Despite the end of the romantic relationship, Garrett and Epps still occasionally

      saw each other. At one point, Barlow and Epps were with Garrett at his

      mother’s home. When they discussed the fact that Epps had been dating other

      men, Garrett stated that “eventually [these men] would start disappearing and

      people would wonder what happened to them.” Tr. pp. 46-47.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 2 of 19
[4]   Epps began dating the victim in this case, Carl Gildersleede (“Gildersleede”)1 in

      December 2012. In May 2013, Garrett had begun to date another woman,

      Brittany Beverly (“Beverly”), and lived with her. Although they were dating

      other people, Epps and Garrett still exchanged text messages.

[5]   On May 31, 2013, Barlow celebrated her birthday with Epps, Gildersleede, and

      several other friends at a nightclub in Indianapolis. Garrett was not invited, as

      he and Barlow did not get along well. Epps exchanged text messages with

      Garrett earlier that day but stopped responding to Garrett’s messages later in

      the evening. She decided against inviting Garrett because he and Gildersleede

      had not met, and she was concerned that her ex-boyfriend meeting her current

      boyfriend would be “awkward.” Tr. p. 79.


[6]   The group of friends celebrating Barlow’s birthday arrived at the nightclub

      around midnight and stayed for approximately an hour. Barlow, Epps, and

      Gildersleede then drove Epps’s vehicle to a bar, where they remained until the

      bar closed at 3:00 a.m. They then dropped Barlow off at her home, and Epps

      and Gildersleede drove to a nearby gas station convenience store to buy

      cigarettes. Gildersleede went into the store while Epps remained in the vehicle.

[7]   At approximately 3:20 a.m., a call was made from the mobile phone shared by

      Epps and Gildersleede to Garrett’s phone, but the call went unanswered. Over




      1
        The trial transcript spells the victim’s name as “Gildersleeve.” On appeal, both parties note that, at the
      sentencing hearing, the victim’s mother spelled her name for the record as “Gildersleede.” Tr. p. 566. Both
      parties use the latter spelling, which we also use for purposes of this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016             Page 3 of 19
      the next ten minutes, four calls were made from Garrett’s phone to Epps’s

      phone. These calls were either answered or went to voicemail, but any

      voicemail messages left could not be retrieved, forensically. According to

      Garrett, he called Epps back when he saw that he had missed a call from her

      number. However, when he called, Gildersleede answered and questioned why

      Garrett was calling his girlfriend. Garrett claims that he initially hung up but

      then called back, and Gildersleede asked Garrett if he was having sex with

      Epps. Garrett claims that Gildersleede stated that he wanted to speak with

      Garrett and agreed to meet at the gas station. Epps denied hearing any of these

      telephone conversations between Garrett and Gildersleede.

[8]   At the gas station, Garrett arrived in his girlfriend’s vehicle with two other men

      and parked behind Epps’s vehicle. Shortly thereafter, Gildersleede exited the

      convenience store and was confronted by Garrett. Epps heard the two men

      arguing. She saw the men pushing each other and getting into a “scuffle.” Tr. p.

      85. Epps then heard gunshots. Gildersleede ran across the parking lot a short

      distance, then collapsed. Garrett and his companions got back into their vehicle

      and drove away. Garrett later disposed of the gun that had been used in the

      shooting, and it was never recovered.


[9]   Epps initially ran after Garrett, yelling. She then turned her attention to

      Gildersleede, who she found lying on the ground, bleeding heavily.

      Gildersleede had been shot twice in the left side of his chest. The bullets passed

      through Gildersleede’s body, causing severe damage to his heart and lungs and



      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 4 of 19
       massive internal bleeding. Medical testimony at trial revealed that Gildersleede

       likely died within minutes of being shot.

[10]   Indianapolis Metropolitan Police Department (“IMPD”) Detective Greg Hagan

       (“Detective Hagan”) arrived at the scene of the shooting and spoke with Epps,

       who was traumatized and upset. Detective Hagan took Epps to the police station

       to interview her. Epps initially denied knowing the identity of the man who had

       confronted Gildersleede in the parking lot of the gas station. However, later that

       day, during another interview, she admitted that the man was Garrett after being

       confronted with video surveillance recordings showing Garrett in the parking lot.


[11]   Later on the morning of the shooting, but still before 5:00 a.m., Garrett’s

       girlfriend Beverly called him because she needed to go to work and Garrett had

       used her truck the night before to go out after they had returned from a birthday

       dinner. She attempted to call Garrett twenty-six times, but he did not answer.

       He later appeared at her house, but when Beverly went to enter her vehicle, it

       was not in the driveway. She asked Garrett the location of her vehicle, and he

       claimed that it was in the driveway and that the keys were on the dresser.

       However, neither the keys nor the vehicle were there. Beverly therefore reported

       the truck as stolen.


[12]   The police investigation of the shooting quickly led them to suspect Garrett,

       and they detained and interrogated him on June 2, 2013. At first, Garrett

       denied even having been at the gas station, despite the video surveillance

       footage. He claimed instead that he had been in bed at the time and had no idea


       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 5 of 19
       why Epps would state that he was involved in the shooting. After further

       questioning, however, Garrett stated that Gildersleede had called him and

       began “running his mouth,” and asked to meet him at the gas station. Ex. Vol.,

       State’s Ex. 80, p. 23. Garrett recounted his version of events as follows:

               So I pulled over there. I had, I had one of my friends with me
               and he had his buddy with him, but I don’t know his name. And
               I pushed him. I walked over there to the vehicle and I talked to
               her for a second and he came out. I was like, “Now what do you
               want to talk about?” He said, “Quit calling my girl.” Pushed me
               in my face. So I swung at him when I hit him. He started
               reaching and he came out with a gun. So I struggled with him
               and the gun went off.

       Id. Garrett claimed that he did not take the gun and that, as far as he knew,

       Gildersleede “still had it in his hand.” Id. at 36.


[13]   On June 4, 2013, the State charged Garrett with murder. On October 2, 2014,

       the State filed a notice of its intent to introduce evidence under one of the

       exceptions listed in Indiana Evidence Rule 404(b). Specifically, the State

       intended to elicit testimony from Barlow regarding Garrett’s statement that

       Epps’s boyfriends would “disappear.” The court held a hearing on the matter,

       and Garrett argued that the statements were too remote in time and therefore

       irrelevant and unduly prejudicial. The trial court ruled that the evidence was

       admissible but granted Garrett a “standing objection.” Tr. pp. 10-11.

[14]   A jury trial was held on July 13 – 15, 2015. The State elicited testimony from

       Barlow regarding Garrett’s prior statements that Epps’s boyfriends would

       disappear. Garrett testified in his own defense and claimed that he called
       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 6 of 19
       Gildersleede to talk about the situation with Epps. Garrett testified that

       Gildersleede asked him to meet at the gas station. He also testified that, when

       he arrived at the station, he initially opened the door on Epps’s vehicle and

       asked her why she had Gildersleede call him. According to Garrett,

       Gildersleede then began to accuse Epps of cheating on him with Garrett. The

       two men exchanged words, and according to Garrett, Gildersleede poked him

       in the face. Garrett claimed that Gildersleede reached into his waist band and

       began to pull out a handgun, at which point Garrett attempted to stop him.

       Garrett testified that, as they struggled over the gun, it discharged twice. For the

       first time, Garrett admitted that he took the gun and threw the gun out of the

       car as he drove away. He also claimed that he was not even sure if Gildersleede

       had been shot.


[15]   At the conclusion of the evidence, the trial court instructed the jury, without

       objection, regarding murder, voluntary manslaughter, and self-defense. The jury

       found Garrett guilty as charged, and the trial court subsequently sentenced him

       to serve an executed term of sixty-one years. Garrett now appeals.


                                          I. Evidence Rule 404(b)

[16]   Garrett first argues that the trial court erred in admitting Barlow’s testimony

       regarding Garrett’s prior statement regarding Epps’s boyfriends “disappearing.”

       Decisions regarding the admission of evidence are entrusted to the sound

       discretion of the trial court. Rogers v. State, 897 N.E.2d 955, 959 (Ind. Ct. App.

       2008), trans. denied. Accordingly, we review a trial court’s decision regarding the

       admission of evidence only for an abuse of that discretion. Id. A trial court
       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 7 of 19
       abuses its discretion if its decision is clearly against the logic and effect of the

       facts and circumstances before the court, or if the court has misinterpreted the

       law. Id.


[17]   At issue here is Indiana Evidence Rule 404(b), which provides:

               (b)      Crimes, Wrongs, or Other Acts.


                        (1)    Prohibited Uses. Evidence of a crime, wrong, or
                        other act is not admissible to prove a person’s character in
                        order to show that on a particular occasion the person
                        acted in accordance with the character.


                        (2)   Permitted Uses; Notice in a Criminal Case. This
                        evidence may be admissible for another purpose, such as
                        proving motive, opportunity, intent, preparation, plan,
                        knowledge, identity, absence of mistake, or lack of
                        accident. On request by a defendant in a criminal case, the
                        prosecutor must:


                                (A) provide reasonable notice of the general
                                nature of any such evidence that the prosecutor
                                intends to offer at trial; and


                                (B) do so before trial—or during trial if the court,
                                for good cause, excuses lack of pretrial notice.


[18]   Rule 404(b) is designed to prevent the jury from making the “forbidden

       inference” that prior wrongful conduct suggests present guilt. Halliburton v.

       State, 1 N.E.3d 670, 681 (Ind. 2013). In other words, the rule “prevents the

       State from punishing people for their character, and evidence of extrinsic

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 8 of 19
       offenses poses the danger that the jury will convict the defendant because . . . he

       has a tendency to commit other crimes.” Bassett v. State, 795 N.E.2d 1050, 1053

       (Ind. 2003). When determining whether to admit evidence under Rule 404(b),

       the trial court must first determine that the evidence of other crimes, wrongs, or

       acts is relevant to a matter at issue other than the defendant’s propensity to

       commit the charged act, and then balance the probative value of the evidence

       against its prejudicial effect pursuant to Evidence Rule 403. Halliburton, 1

       N.E.3d at 682 (citing Wilson v. State, 765 N.E.2d 1265, 1270 (Ind. 2002)).


[19]   Here, Garrett claims that his statement that Epps’s boyfriends would start to

       disappear is prohibited by Evidence Rule 404(b). We disagree. First, we are not

       convinced that his statement is even the sort of “crime, wrong, or other act”

       referenced by Rule 404(b). Indeed, Garrett’s statement was not a crime or

       wrong act; it was simply a statement.

[20]   We find support for our conclusion in Hicks v. State, 690 N.E.2d 215 (Ind.

       1997). In that case, the defendant was charged with the 1994 murder of his ex-

       girlfriend. On appeal, he claimed that the trial court had erred in admitting

       various statements he had made to witnesses that reflected his hostility toward

       the victim. Specifically, the trial court admitted testimony that, in the summer

       of 1992, Hicks stated on two occasions that he “wanted [the victim] dead”;

       testimony that three months before the murder, Hicks stated that he “wished

       [the victim] was dead”; and testimony that two days before the murder, Hicks

       had stated, “take me over there, take me over there, I just . . . I just want to

       shoot her.” Id. at 221 n.11. The Hicks court held that these statements were “not

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 9 of 19
       evidence of ‘other crimes, wrongs, or acts’ for 404(b) purposes.” Id. Instead,

       Hicks simply made “a statement about his state of mind at the time. To state

       what one is feeling, as opposed to a direct threat to the victim, is not a ‘bad act’

       as such.” Id. We think the same is true here. Garrett made no direct threat to

       the Gildersleede. He simply made a statement that Epps’s boyfriends would

       start “disappearing.”

[21]   Even if we did consider Garrett’s statement to be the sort of crime, wrong, or

       act covered by Evidence Rule 404(b), it would still be admissible under the

       exceptions listed in that rule. As set forth in Rule 404(b), evidence that would

       be inadmissible to show a person’s character may be admissible for another

       purpose, including proving “motive, opportunity, intent, preparation, plan,

       knowledge, identity, absence of mistake, or lack of accident.” Here, Garrett’s

       statement was admissible to prove both his motive and intent.

[22]   The intent exception under Evidence Rule 404(b) is available when a defendant

       goes beyond simply denying the charged culpability and affirmatively alleges a

       particular contrary intent, whether in opening statement, by cross-examination

       of the State’s witnesses, or by presentation in the defendant’s own case-in-chief.

       Thompson v. State, 15 N.E.3d 1097, 1102 (Ind. Ct. App. 2014). Here, Garrett

       went beyond simply denying that he knowingly or intentionally killed

       Gildersleede. His theory of defense was that he was acting in self-defense by

       trying to prevent Gildersleede from shooting him when the gun went off.

       Because he affirmatively alleged a contrary intent, the evidence regarding his

       prior statement was admissible to prove his intent. See Shoultz v. State, 995

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 10 of 19
       N.E.2d 647, 655 (Ind. Ct. App. 2013) (holding that evidence of prior

       misconduct was admissible to show defendant’s intent when he asserted claim

       of self-defense); Sudberry v. State, 982 N.E.2d 475, 480 (Ind. Ct. App. 2013)

       (holding that defendant placed his intent at issue during trial by raising the issue

       of self-defense).

[23]   The prior statement was also admissible to prove Garrett’s motive. See Berry v.

       State, 704 N.E.2d 462, 464 (Ind. 1998) (holding that defendant’s threatening

       statement to victims made six months before murders was properly admitted

       into evidence); Sudberry v. State, 982 N.E.2d 475, 481 (Ind. Ct. App. 2013)

       (holding that defendant’s threatening statement to victim made over one year

       before the battery was admissible).

[24]   Nor can we say that the trial court abused its discretion in concluding that the

       danger of unfair prejudice did not outweigh the probative value of Garrett’s

       statements. Again, the statements Garrett made were not the sort of prior

       criminal or otherwise improper act that would cause serious concern that the

       jury might punish Garrett for his character. Moreover, the statement was highly

       relevant to disprove Garrett’s claims that he was acting in self-defense or

       sudden heat.

[25]   In short, the trial court did not abuse its discretion in admitting into evidence

       Barlow’s testimony recounting Garrett’s statement that Epps’s boyfriends

       would start to “disappear.” This statement was not evidence of a crime, wrong,

       or act that would be inadmissible under Evidence Rule 404(b). Even if it did fall


       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 11 of 19
       within the ambit of the rule, Garrett’s statement was not offered into evidence

       to prove his character; it was instead offered to prove his intent and motive, i.e.

       his jealousy of Epps’s new boyfriend.


                                            II. Jury Instructions

[26]   Garrett next claims that the trial court erred in instructing the jury regarding the

       elements of murder, voluntary manslaughter, and self-defense. The manner of

       instructing a jury is left to the sound discretion of the trial court. Rogers v. State,

       897 N.E.2d 955, 962 (Ind. Ct. App. 2008), trans. denied. We will not reverse the

       trial court’s ruling unless the instructional error is such that the charge to the

       jury misstates the law or otherwise misleads the jury. Id. Jury instructions must

       be considered as a whole and in reference to each other, and even an erroneous

       instruction will not constitute reversible error if the instructions, taken as a

       whole, do not misstate the law or otherwise mislead the jury. Id.


[27]   Garrett acknowledges that he did not object to the instructions he now claims

       were improper. This failure to object generally results in waiver of the issue on

       appeal. Munford v. State, 923 N.E.2d 11, 13 (Ind. Ct. App. 2010). Garrett

       attempts to avoid waiver by claiming that the trial court’s instruction

       constituted fundamental error. As this court explained in Munford:


               The fundamental error exception to the waiver rule is an
               extremely narrow one. To rise to the level of fundamental error,
               the error must be so prejudicial to the rights of the defendant as
               to make a fair trial impossible. Specifically, the error must
               constitute a blatant violation of basic principles, the harm or
               potential for harm must be substantial, and the resulting error

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 12 of 19
               must deny the defendant fundamental due process. When we
               consider a claim of fundamental error with respect to jury
               instructions, we look to the jury instructions as a whole to
               determine if they were adequate.


       Id. at 13-14 (citations omitted).


[28]   Garrett’s contentions regarding improper jury instructions revolve around Final

       Instruction 8, which provided:

               The crime of Murder is defined by law as follows:


               A person who knowingly or intentionally kills another human
               being, commits Murder, a felony.


               Included in the charge in this case is the crime of Voluntary
               Manslaughter, which is defined by the law as follows: A person
               who knowingly or intentionally kills another human being while
               acting under Sudden Heat commits Voluntary Manslaughter, a
               class B felony. The offense is a class A felony if it is committed
               by means of a deadly weapon.


               Sudden Heat is a mitigating factor that reduces what otherwise
               would be Murder to Voluntary Manslaughter. The State has the
               burden of proving beyond a reasonable doubt that the Defendant
               was not acting under Sudden Heat.


               Before you may convict the Defendant, the State must have
               proved each of the following beyond a reasonable doubt:


                        1. The Defendant, Philip Garrett


                        2. Knowingly

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 13 of 19
                        3. Killed another human being, namely: Carl Gildersleeve
                        [sic], by shooting a deadly weapon, that is: a gun.


                        4. And the Defendant was not acting under Sudden Heat


                        5. And the Defendant killed by means of a deadly weapon.


               If the State failed to prove each of these elements 1 through 3 beyond a
               reasonable doubt, you must find the Defendant Not Guilty of Murder as
               charged in Count I.


               If the State did prove each of these elements 1 through 3 and
               element 5 beyond a reasonable doubt, but the State failed to
               prove beyond a reasonable doubt element 4, you may find the
               Defendant Guilty of Voluntary Manslaughter, a class A felony, a
               lesser included offense of Count I.


               If the State did prove each of these elements 1 through 4 beyond
               a reasonable doubt, you may find the Defendant Guilty of
               Murder, a felony as charged in Count I.


       Appellant’s App. pp. 105-06 (emphasis added).


[29]   Garrett claims that the above-emphasized portion of Final Instruction 8 was

       subject to an incorrect interpretation. Specifically, he argues that the language,

       “If the State failed to prove each of these elements 1 through 3 beyond a

       reasonable doubt, you must find the Defendant Not Guilty of Murder,” creates

       a negative implication that the jury could find him guilty of murder if the State

       proved less than all three elements. Garrett contends that, to be correct, the

       instruction should have stated, “If the State failed to prove any one of these


       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 14 of 19
       elements 1 through 3 beyond a reasonable doubt, you must find the Defendant

       Not Guilty of Murder.” Appellant’s Br. p. 27.

[30]   We find this construction of the instruction to be, at best, strained. A plain

       reading of the instruction as a whole clearly instructed the jury that it was

       required to find that the State had proven all of the elements in order to convict

       Garrett and that the failure to prove these elements required them to acquit.

       The jury was also informed, in a separate instruction, that the State was

       required to “prove each element of the crime charged beyond a reasonable

       doubt.” Appellant’s App. p. 99. Accordingly, we reject Garrett’s claim that

       Final Instruction 8 instructed the jury that it could find him guilty if the State

       proved less than all of the elements of murder.

[31]   Garrett further claims that Final Instruction 8 was improper because it

       permitted the jury to find him guilty of murder despite his claim of self-defense.

       This claim is meritless. As Garrett himself acknowledges, the trial court gave

       the jury a separate instruction regarding self-defense which clearly explained to

       the jury that the State was required to prove beyond a reasonable doubt that

       Garrett was not acting in self-defense. See Appellant’s App. pp. 108-09 (“When

       a claim of Self-Defense is made, the State has the burden of proving beyond a

       reasonable doubt that the Defendant did not act in self-defense.”). The fact that

       self-defense was not mentioned in Final Instruction 8 does not render it

       erroneous because the elements of self-defense were set forth in a separate

       instruction, and the jury was instructed to consider the instructions as a whole.

       See Appellant’s App. p. 98.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 15 of 19
[32]   Accordingly, considering the instructions as a whole, we cannot say that the

       trial court committed any error, let alone fundamental error, in the manner in

       which it instructed the jury regarding the elements of murder, sudden heat, and

       self-defense.

                                     III. Prosecutorial Misconduct

[33]   Lastly, Garrett argues that the prosecuting attorney committed misconduct

       during the State’s closing argument. Where a claim of prosecutorial misconduct

       has been properly preserved for appeal, the reviewing court must determine

       both whether the prosecutor engaged in misconduct, and if so, 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. Shelby v. State, 986

       N.E.2d 345, 363 (Ind. Ct. App. 2013), trans. denied.


[34]   To preserve a claim of prosecutorial misconduct, the defendant must both

       object and request an admonishment. Id. If the objecting party is not satisfied

       with the admonishment, the proper procedure is to move for a mistrial. Id. The

       failure to request an admonishment or move for a mistrial results in waiver of

       the issue on appeal. Id. Here, Garrett acknowledges that he neither objected to

       the statements he now claims were improper, nor did he request an

       admonishment. He therefore failed to preserve his argument for appeal.


[35]   When a claim of prosecutorial misconduct has not been properly preserved, the

       defendant must establish not only the grounds for the misconduct, but also the

       additional grounds of fundamental error. Id. As we noted above, the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 16 of 19
       fundamental error exception to the waiver rule is an extremely narrow one. Id.

       at 363-64. To rise to the level of fundamental error, the error complained of

       must be so prejudicial to the rights of the defendant as to make a fair trial

       impossible. Id.


[36]   Garrett’s argument centers on the following statement made by the prosecuting

       attorney during the State’s closing argument:

               The term sudden heat means a mental state which results from
               provocation sufficient to excite the Defendant of these emotions,
               sufficient to obscure the reason of an ordinary person — not
               some trigger happy guy who’s jealous — and such prevents
               deliberation and premeditation.


               It excludes malice. You can’t just be so angry that you want to
               hurt somebody. It renders a Defendant incapable of cool
               reflection.


               That’s what we talked about in jury selection. That’s what we
               talked about. That’s why the classic law school example is a guy
               who walks in on his wife in bed with another man. There’s a gun
               right there. He snaps and he pulls the trigger. And then he’s like,
               Oh my God. What did I just do?


               You can understand that. An ordinary person can understand
               that. An ordinary person does not talk to somebody on the phone,
               attempt to get ahold of them three times, track them down to a gas
               station, stand there and get in an argument, pull the trigger and then say,
               Oh, my God. That was sudden heat.


               That’s not sudden heat. If that’s not something that an ordinary person
               would do under those circumstances, that’s not sudden heat. That is some

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 17 of 19
                guy who is mad, malice in his heart for the guy that he thinks is taking
                away Laprecious from him. An ordinary person would not do what he
                did.


                Sudden heat is not anger. Sudden heat is not being mad. You don’t go —
                you don’t get to go around killing your ex-girlfriend’s old boyfriends
                because you’re jealous and say it’s sudden heat and it’s not murder.
                That’s not sudden heat. Being mad, being angry, being jealous is not
                sudden heat. It’s not. So this is out the window.


       Tr. pp. 541-43 (emphasis added).


[37]   Garrett contends that the emphasized portion of this statement misled the jury

       regarding the meaning of “sudden heat.” Specifically, Garrett argues that the

       prosecutor’s statements indicated that the jury should evaluate the existence of

       sudden heat based on what an “ordinary person” would do, but that the law

       required the jury to consider the existence of sudden heat from the defendant’s

       subjective state of mind.

[38]   First, we note that Garrett does not deny that the trial court properly instructed

       the jury with regard to the definition of sudden heat. We presume that the jury

       follows the trial court’s instructions. Weisheit v. State, 26 N.E.3d 3, 20 (Ind.

       2015), reh’g denied. For this reason alone, we conclude that Garrett has not

       established that the prosecuting attorney’s statements constitute fundamental

       error.


[39]   Additionally, “sudden heat” has been defined as “anger, rage, resentment, or

       terror sufficient to obscure the reason of an ordinary person, preventing


       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016   Page 18 of 19
       deliberation and premeditation, excluding malice, and rendering a person

       incapable of cool reflection.” Roberson v. State, 982 N.E.2d 452, 456 (Ind. Ct.

       App. 2013) (emphasis added). Any alleged provocation “must be such that it

       would obscure the reason of an ‘ordinary man,’ which is an objective as opposed

       to a subjective standard.” Id. at 457. Moreover, it is well-settled that anger alone

       is insufficient to establish sudden heat. Washington v. State, 808 N.E.2d 617, 626

       (Ind. 2004) (citing Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998)).

       Accordingly, we are unable to say that the prosecuting attorney’s statements

       were so improper as to constitute fundamental error.

                                                  Conclusion

[40]   The trial court did not abuse its discretion when it permitted Barlow to testify

       that Garrett had previously made a statement that Epps’s new boyfriends would

       start to disappear, nor did the trial court’s instruction regarding murder,

       voluntary manslaughter, and self-defense constitute fundamental error.

       Similarly, the prosecuting attorney’s statements regarding sudden heat during

       the State’s closing arguments did not amount to fundamental error, and we

       affirm the judgment of the trial court.


[41]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




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