MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                               Aug 26 2015, 8:48 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott King                                               Gregory F. Zoeller
Russell W. Brown, Jr.                                    Attorney General of Indiana
Scott King Group
                                                         Larry D. Allen
Merrillville, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Titus D. Fields,                                         August 26, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A05-1501-CR-15
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry C.
Appellee-Plaintiff,                                      Shewmaker, Judge
                                                         Trial Court Cause No.
                                                         20C01-1211-FA-74



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 20A05-1501-CR-15 | August 26, 2015   Page 1 of 9
[1]   In April 2012, Elkhart Police Department, with the help of a confidential

      informant, conducted two controlled buys of cocaine from Appellant-

      Defendant Titus Fields. Fields was convicted of two counts of dealing in

      cocaine and sentenced to an aggregate forty-eight year sentence. On appeal,

      Fields argues that the trial court erred in not granting his motion to sever the

      two counts of dealing in cocaine into separate trials. Fields also argues that

      Appellee-Plaintiff the State of Indiana (“the State”) committed prosecutorial

      misconduct during its closing argument. We affirm.



                            Facts and Procedural History
[2]   On April 2, 2012, Melissa Sanders, who was working as a confidential

      informant with the Elkhart Police Department, contacted Fields about

      purchasing cocaine. Prior to the transaction, Elkhart police searched Sanders

      and her vehicle, equipped her with an audio recording device, and gave her

      $120 in marked currency for use in the transaction. Sanders drove to Fields’s

      house where she purchased 3.35 grams of cocaine from Fields for $120. After

      the purchase was complete, Sanders met with Elkhart police and turned over

      the cocaine and audio recording device.


[3]   On April 12, 2012, Elkhart police set up a second controlled buy between Fields

      and Sanders. As before, police searched Sanders prior to the transaction and

      provided her with money for the buy. Per Fields’s instructions, Sanders picked

      up Fields and drove him to his mother’s house where Fields was to pick up the

      drugs. After retrieving something from a car parked at the house, Fields

      Court of Appeals of Indiana | Memorandum Decision 20A05-1501-CR-15 | August 26, 2015   Page 2 of 9
      returned to Sanders’s vehicle and gave Sanders 3.06 grams of cocaine in

      exchange for $120. After dropping Fields off at a different house, Sanders met

      with Elkhart police and turned over the drugs and recording device. Elkhart

      police recorded the phone calls setting up both transactions, as well as the

      transactions themselves.


[4]   The State charged Fields with two counts of Class A felony dealing in cocaine.

      While in custody awaiting trial, Fields made several phone calls to his family

      from jail, which were recorded. During these calls, Fields admitted that he had

      prepared the drugs for sale to Sanders, stating that he “had them all bagged up

      into balls and everything.” Tr. p. 475. Also during these calls, Fields

      encouraged his family to influence Sanders to change her story.


[5]   On March 31, 2014, Fields filed a motion to sever the two charges. Following a

      hearing on the motion, the trial court denied Fields’s motion, reasoning that

      “the two offenses are inextricably intertwined” and involve the same witnesses,

      the same drug, and were “close in proximity.” App. p. 13.


[6]   During the State’s closing argument, the prosecutor discussed Sanders’s

      credibility as a witness. “We do ask you on behalf of the State to give due

      consideration to [Sanders] because we think on behalf of the State that she

      deserve[s] that. She is a tortured person.” Tr. p. 502. At this point, defense

      counsel requested a sidebar and the trial court held an off-the-record discussion

      with counsels, after which the trial court stated, “There’s been an objection

      registered. [] Neither counsel are supposed to give their own personal opinions.


      Court of Appeals of Indiana | Memorandum Decision 20A05-1501-CR-15 | August 26, 2015   Page 3 of 9
      So to the extent there was an allegation of a personal opinion, you will

      disregard that, other than that you are the judges of what the evidence has or

      has not shown.” Tr. p. 502. The State went on to make the following

      argument:


              [T]he State is asking you to believe what [Sanders] has to say.
              She is a tortured individual who is caught in a horrible situation,
              and she doesn’t know what’s going to come out of that situation.
              There is no evidence to say what’s going to happen with her.
              There’s no evidence that she knows what’s going to happen to
              her or that anybody does. She is a tortured person who came in
              under great duress and testified.


      Tr. p. 502.


[7]   The jury found Fields guilty on both counts of dealing in cocaine. The trial

      court sentenced Fields to forty-eight years executed for each count, to be served

      concurrently.



                                 Discussion and Decision
[8]   On appeal, Fields argues that (1) the trial court erred in denying his motion to

      sever and (2) the State committed prosecutorial misconduct when the

      prosecutor provided personal opinion regarding Sanders’s credibility as a

      witness.


                                              I. Severance
[9]   Indiana Code section 35-34-1-9 provides that


      Court of Appeals of Indiana | Memorandum Decision 20A05-1501-CR-15 | August 26, 2015   Page 4 of 9
               Two (2) or more offenses may be joined in the same indictment
               or information, with each offense stated in a separate count,
               when the offenses:
                        (1) are of the same or similar character, even if not part of
                        a single scheme or plan; or
                        (2) are based on the same conduct or on a series of acts
                        connected together or constituting parts of a single scheme
                        or plan.


       Indiana Code section 35-34-1-11 provides that


               Whenever two (2) or more offenses have been joined for trial in
               the same indictment or information solely on the ground that they
               are of the same or similar character, the defendant shall have a right
               to a severance of the offenses. In all other cases the court, upon
               motion of the defendant or the prosecutor, shall grant a severance
               of offenses whenever the court determines that severance is
               appropriate to promote a fair determination of the defendant’s
               guilt or innocence of each offense considering:
                        (1) the number of offenses charged;
                        (2) the complexity of the evidence to be offered; and
                        (3) whether the trier of fact will be able to distinguish the
                        evidence and apply the law intelligently as to each offense.


       (Emphasis added). Fields argues that the two offenses were improperly joined

       solely on the basis that they were of the same or similar character.


[10]   The Indiana Supreme Court faced a nearly identical fact pattern in Richter v.

       State, 598 N.E.2d 1060, 1063 (Ind. 1992). In Richter, a confidential informant

       conducted two separate controlled buys in which he purchased cocaine from

       Richter. Id. at 1062. The two buys, which took place one week apart, were

       both conducted at Richter’s home. The Court concluded as follows:

       Court of Appeals of Indiana | Memorandum Decision 20A05-1501-CR-15 | August 26, 2015   Page 5 of 9
               [Richter] argues that the two counts of dealing in cocaine were
               joined solely because they were of the same or similar character.
               However, an examination of the facts in this case discloses that
               the confidential informant, Walker, was working with the police
               department on a continuing basis with regard to the surveillance
               of appellant and presenting him the opportunity to deal in
               cocaine. This was clearly an on-going investigation over a
               relatively short period of time concerning [Richter]’s activity as a
               dealer in narcotics. It thus falls within this Court’s interpretation
               of the statute in Chambers v. State (1989), Ind., 540 N.E.2d 600;
               Sweet v. State (1982), Ind., 439 N.E.2d 1144. Under the
               circumstances, the trial court had the discretion under the statute
               to grant or refuse severance. There was no error here.


       Id. at 1063.


[11]   Here, as in Richter, police used a confidential informant to conduct two

       controlled buys approximately one week apart. Both buys were part of the

       same on-going investigation over a relatively short period of time concerning

       Fields’s activity as a dealer in narcotics. We see no reasons to distinguish this

       case from Richter and decline to do so. The trial court was within its discretion

       to deny Fields’s motion to sever.


                                 II. Prosecutorial Misconduct
[12]   “In reviewing a claim of prosecutorial misconduct properly raised in the trial

       court, we determine (1) whether misconduct occurred, and if so, (2) ‘whether

       the misconduct, under all of the circumstances, placed the defendant in a

       position of grave peril to which he or she would not have been subjected’

       otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh’g denied (quoting


       Court of Appeals of Indiana | Memorandum Decision 20A05-1501-CR-15 | August 26, 2015   Page 6 of 9
       Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). To preserve a claim of

       prosecutorial misconduct on appeal, a defendant must (1) raise a

       contemporaneous objection, (2) request an admonishment, and (3) if the

       admonishment is not given or is insufficient to cure the error, then he must

       request a mistrial. Washington v. State, 902 N.E.2d 280, 289-90 (Ind. Ct. App.

       2009) (citing Flowers v. State, 738 N.E.2d 1051, 1058 (Ind. 2000)). “Failure to

       request an admonishment or to move for mistrial results in waiver.” Dumas v.

       State, 803 N.E.2d 1113, 1117 (Ind. 2004) (citing Brewer v. State, 605 N.E.2d 181,

       182 (Ind. 1993)).


[13]   Fields properly objected to the alleged misconduct at trial. However, Fields

       declined to argue that the trial court’s admonishment was insufficient and did

       not request a mistrial. As such, he has waived this issue for review.

               Our standard of review is different where a claim of prosecutorial
               misconduct has been procedurally defaulted for failure to
               properly raise the claim in the trial court, that is, waived for
               failure to preserve the claim of error. The defendant must
               establish not only the grounds for prosecutorial misconduct but
               must also establish that the prosecutorial misconduct constituted
               fundamental error. Fundamental error is an extremely narrow
               exception to the waiver rule where the defendant faces the heavy
               burden of showing that the alleged errors are so prejudicial to the
               defendant’s rights as to make a fair trial impossible. In other
               words, to establish fundamental error, the defendant must show
               that, under the circumstances, the trial judge erred in not sua
               sponte raising the issue because alleged errors (a) constitute clearly
               blatant violations of basic and elementary principles of due
               process and (b) present an undeniable and substantial potential
               for harm. The element of such harm is not established by the fact

       Court of Appeals of Indiana | Memorandum Decision 20A05-1501-CR-15 | August 26, 2015   Page 7 of 9
               of ultimate conviction but rather depends upon whether the
               defendant’s right to a fair trial was detrimentally affected by the
               denial of procedural opportunities for the ascertainment of truth
               to which he otherwise would have been entitled. In evaluating
               the issue of fundamental error, our task in this case is to look at
               the alleged misconduct in the context of all that happened and all
               relevant information given to the jury—including evidence
               admitted at trial, closing argument, and jury instructions—to
               determine whether the misconduct had such an undeniable and
               substantial effect on the jury’s decision that a fair trial was
               impossible.


       Ryan, 9 N.E.3d at 667-68. (quotations and citations omitted).


[14]   Fields argues that it was improper for the prosecutor to ask the jury “to give due

       consideration to [Sanders] because we think on behalf of the State that she

       deserve[s] that. She is a tortured person.” Tr. p. 502. Fields argues that this

       was misconduct because “‘the prosecutor is required to confine [his] closing

       argument to comments based upon evidence presented in the record.’ [Lambert

       v. State, 743 N.E.2d 719, 734 (Ind. 2001)], [and] [t]here was no evidence

       presented during trial that Sanders was ‘tortured.’” Appellant’s Br. p. 9.

       However, contrary to this claim, defense counsel made the following remarks

       during closing statements:


               The prosecutor referred to Melissa Sanders as a tortured
               individual under great duress in her testimony. I agree
               completely with the evidence has shown that absolutely. Why is
               she a tortured individual? Because she delivered on two




       Court of Appeals of Indiana | Memorandum Decision 20A05-1501-CR-15 | August 26, 2015   Page 8 of 9
               occasions cocaine for which she has yet to be prosecuted [1], and
               she’s – she’s facing that possibility. She’s tortured.


       Tr. p. 513. Fields own argument at trial contradicts his argument here.

[15]   Even assuming the prosecutor committed misconduct, Fields has failed to

       show––or even argue––that the alleged errors are so prejudicial to his rights as

       to have made a fair trial impossible, i.e. constituting fundamental error. Ryan, 9

       N.E.3d at 667. We are unconvinced that the allegedly improper statements had

       any persuasive effect on the jury, much less an effect which put Fields in a

       position of “grave peril.” Furthermore, any effects that the statements may

       have had on the jury were wholly inconsequential when compared to the

       overwhelming evidence against Fields. Aside from Sanders’s testimony, that

       evidence includes audio recordings in which Fields told Sanders that the drugs

       were ready for her to purchase, testimony from Elkhart officers who arranged

       and witnessed the transactions from afar, and Fields’s own admissions during

       phone calls made from jail in which he incriminated himself. We find that the

       trial court did not commit fundamental error in declining to find that the State

       committed prosecutorial misconduct.


[16]   The judgment of the trial court is affirmed.


       May, J., and Crone, J., concur.




       1
         Sanders agreed to become a confidential informant after Elkhart police learned that she had been involved
       in dealing in cocaine on two prior occasions. (Tr. 270)

       Court of Appeals of Indiana | Memorandum Decision 20A05-1501-CR-15 | August 26, 2015             Page 9 of 9
