Pursuant to Ind. Appellate Rule 65(D), 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:

GLEN E. KOCH II                                     GREGORY F. ZOELLER
Boren, Oliver & Coffey, LLP                         Attorney General of Indiana
Martinsville, Indiana
                                                    ERIC P. BABBS
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                                  FILED
                                                                              Feb 15 2013, 9:24 am


                               IN THE                                                 CLERK
                                                                                    of the supreme court,
                                                                                    court of appeals and

                     COURT OF APPEALS OF INDIANA                                           tax court




CLARENCE E. SMITH,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 47A04-1206-CR-315
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE LAWRENCE SUPERIOR COURT
                          The Honorable Michael A. Robbins, Judge
                              Cause No. 47D01-1002-CM-219



                                        February 15, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Clarence E. Smith appeals his conviction for class A misdemeanor resisting law

enforcement.    On appeal, Smith asserts that the prosecutor committed misconduct

constituting fundamental error. Smith also asserts that the trial court abused its discretion

when it refused one of his proffered jury instructions. Concluding that the prosecutor’s

actions did not rise to the level of fundamental error and further finding no abuse of

discretion, we affirm.

                              Facts and Procedural History

       On February 24, 2010, sixty-four-year-old Smith went to the Bedford Police Station to

lodge a complaint against his ex-son-in-law, Bedford Police Sergeant Greg Hagan. Earlier

that day, Smith had passed Sergeant Hagan while driving on State Road 37. Sergeant Hagan

then followed Smith to a gasoline station and parked his police vehicle behind Smith’s

vehicle at the gas pump. Although there was no verbal or physical contact between Smith

and Sergeant Hagan, Smith felt harassed. Smith telephoned the Bedford chief of police,

Dennis Parsley, and Chief Parsley told Smith that he was free to come to the police station to

make a complaint. Smith had lodged complaints against Sergeant Hagan on two previous

occasions.

       When Smith arrived at the station, he met with the assistant chief of police, Colonel

Joseph DeWees. Colonel DeWees escorted Smith to his office to take the complaint. After

Smith explained the basis for his complaint, Colonel DeWees informed Smith that he did not

think the complaint had any merit, but told Smith that he could fill out a complaint form


                                              2
anyway. Smith responded by saying that he was tired of the police department “covering up

a f**king corrupt police officer.” Tr. at 396. Smith then loudly said, “This is bullsh*t.” Id.

at 337, 350, 396. Colonel DeWees responded, “You’re not going to talk to me that way in

my office, step outside.” Id. at 337, 397.

       As Smith and Colonel DeWees returned to the door that opened into the lobby,

Colonel DeWees told Smith to step into the lobby. Smith told Colonel DeWees that he was

not going to leave until he spoke with Chief Parsley. Colonel DeWees again told Smith to

leave and Smith refused, stating that he wanted to go upstairs and speak to Chief Parsley.

While Colonel DeWees was holding onto the lobby door, Smith used both of his hands to

shove Colonel DeWees in the shoulder and chest. Colonel DeWees fell backwards onto the

stairs. After Colonel DeWees pulled himself up, he again ordered Smith to leave. Smith put

his hand on Colonel DeWees’s left shoulder and tried to use his body to push past Colonel

DeWees. This caused Colonel DeWees to fall backward onto the stairs a second time.

Colonel DeWees then got back up, grabbed Smith’s left arm, and stated, “that’s it, Mr. Smith,

you’re under arrest.” Id. at 345, 411.

       At this point, Smith declared, “I’m leaving now.” Id. at 412. Colonel DeWees

informed him, “[it’s] too late.” Id. As Colonel DeWees held onto Smith’s left arm, Smith

spun around and grabbed the door handle with his right arm. Smith began tensing his left

arm and moving his shoulder to break Colonel DeWees’s grip. Captain James Lindsey was

in the hallway and came to assist Colonel DeWees. Captain Lindsey told Smith, “you’re

under arrest, stop resisting.” Id. at 347. Captain Lindsey tried to pull Smith’s hand off the


                                              3
door handle, to no avail. Finally, Captain Lindsey struck Smith’s forearm with his own

forearm and managed to break Smith’s grip on the door handle. Both Captain Lindsey and

Colonel DeWees tried unsuccessfully to get Smith’s arm behind his back to handcuff him.

Major Brian Turpen ran into the hallway, grabbed Smith by the legs, and took him down to

the floor. Captain Lindsey was then able to handcuff Smith.

       On February 25, 2010, the State charged Smith with class A misdemeanor battery on a

law enforcement officer and class A misdemeanor resisting law enforcement. A jury trial

was held on March 8, 2012. The jury found Smith guilty of class A misdemeanor resisting

law enforcement and not guilty of battery. This appeal followed.

                                 Discussion and Decision

                               I. Prosecutorial Misconduct

       Smith contends that he is entitled to reversal of his conviction based upon

prosecutorial misconduct.     To convict Smith of class A misdemeanor resisting law

enforcement, the State was required to prove that Smith knowingly or intentionally forcibly

resisted a law enforcement officer while the officer was lawfully engaged in the execution of

the officer’s duties. See Ind. Code § 35-44.1-3-1. Smith contends that the prosecutor

committed misconduct by knowingly misstating the law during voir dire and opening and

closing arguments and by making remarks that “indoctrinated” the jury with the proposition

that the forcible resistance necessary to support a conviction for resisting law enforcement

occurs if officers have to do “anything out of the ordinary” to effectuate an arrest.

Appellant’s Br. at 14-15.


                                             4
         In reviewing a properly preserved claim of prosecutorial misconduct, we determine

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 would not

have been otherwise subjected. Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012). To

preserve a prosecutorial misconduct claim for appeal, the defendant must ask the trial court,

at the time the misconduct occurs, to admonish the jury or move for a mistrial if

admonishment is inadequate. Id. Smith concedes that although he objected to some of the

prosecutor’s statements in question, he did not request specific admonishment of the jury or

move for a mistrial, and therefore he failed to properly preserve his claim. In cases where a

prosecutorial misconduct claim has not been properly preserved, the defendant must establish

not only the grounds for the misconduct but also the additional grounds for fundamental

error.    Coleman v. State, 946 N.E.2d 1160, 1166 (Ind. 2011). The fundamental error

exception is extremely narrow and applies only when the error “make[s] ‘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. (quoting

Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)).

                                        A. Voir Dire

         Smith first claims that the prosecutor knowingly misstated the law while questioning

prospective jurors during voir dire. “The purpose of voir dire is to determine whether a

prospective juror can render a fair and impartial verdict in accordance with the law and the

evidence.” Joyner v. State, 736 N.E.2d 232, 237 (Ind. 2000). Proper examination may


                                               5
include questions designed to disclose the jurors’ attitudes about the type of offense charged.

Perryman v. State, 830 N.E.2d 1005, 1008 (Ind. Ct. App. 2005) trans. denied (2007). The

parties may also attempt to uncover the jurors’ preconceived ideas about a defense the

defendant intends to use. Id. To reveal the jurors’ attitudes and ideas, the parties may pose

hypothetical questions, provided they do not suggest prejudicial evidence not adduced at trial.

Id. However, questions that examine jurors as to how they would act or decide in certain

contingencies or when presented with certain evidence are improper. Id.

       Here, the prosecutor asked prospective jurors various hypothetical questions and made

comments characterizing what types of behavior would constitute forcible resistance. For

example, at one point the prosecutor explained, “It’s something extra ordinary. It’s not

Superman. It’s not getting down into a fight. Anything the officer has to do out of the

ordinary would be resisting forcibly okay. Juror eight, are you okay with that?” Tr. at 111.

Similarly, the prosecutor asked, “Okay, now juror twenty-one, you’re under arrest, okay.

And you push off, so you push away from me. Do I have forcible resist?” Tr. at 153. These

comments were made and these questions were asked in general terms and were not put into

any context specific with this case.

       Contrary to Smith’s contention, the prosecutor’s characterization of what type of

behavior would constitute forcible resistance is consistent with current Indiana law. In

criticizing the prosecutor’s characterization, Smith relies solely upon the language used by

our supreme court in Spangler v. State, 607 N.E.2d 720 (Ind. 1993). The Spangler court held

that a person “forcibly resists” when “strong, powerful, violent means are used to evade a law


                                              6
enforcement official’s rightful exercise of his or her duties.” Id. at 723. However, more

recently, our supreme court approved the language used in Spangler to define “forcibly

resist” but went on to modify that language by explaining that “the force involved need not

rise to the level of mayhem” and that a “modest level of resistance” such as “stiffening one’s

arm when an officer grabs hold to position them for cuffing” would suffice. Graham v.

State, 903 N.E.2d 963, 965-66 (Ind. 2009). The court explained that the “forcible” element is

met when evidence demonstrates that “the police ha[ve] to get physical” to secure the

defendant’s compliance.     Id. at 966. Accordingly, we disagree with Smith that the

prosecutor’s characterizations and related questions constituted a misstatement of current

Indiana law.

       We do, however, agree with Smith that the prosecutor’s phrasing in some isolated

instances did appear to be directed at ascertaining how jurors would decide when presented

with various evidentiary scenarios. This type of questioning was not pervasive and most of

the questions were proper and relevant to gauge the jurors’ preconceived ideas about what

types of behavior would constitute forcible resistance. To the extent that the prosecutor’s

comments and questions were improperly argumentative or to the extent that the prosecutor

may have been using voir dire as an opportunity to educate jurors as to the law, we conclude

that an admonishment by the trial court cured any possible prejudice or potential for unfair

harm. Following one of Smith’s objections, the trial court sua sponte admonished the jury as

follows:

       Ladies and gentlemen, the law will be given to you by this Court in its
       preliminary and final instructions. What you’re being asked now may or may

                                              7
         not be the, the law in this case. It is hypotheticals that are being presented to
         you for discussion, that’s all. You may continue.

Tr. at 110. Under the totality of the circumstances presented, Smith has failed to demonstrate

that the prosecutor’s comments and questions regarding forcible resistance during voir dire

made it impossible for him to receive a fair trial. Thus, we conclude that the prosecutor’s

comments and questions did not amount to fundamental error.

                             B. Opening and Closing Arguments

         Similar to his assertions regarding voir dire, Smith claims that the prosecutor

committed misconduct during opening and closing arguments by again characterizing

forcible resistance as anything “out of the ordinary” and also repeatedly stating to the jury

during closing argument that Indiana law supports this characterization. Tr. at 648. We

consider statements made by the prosecutor in the context of the argument as a whole. Seide

v. State, 784 N.E.2d 974, 977 (Ind. Ct. App. 2003). “It is proper for a prosecutor to argue

both law and fact during final argument and propound conclusions based on his analysis of

the evidence.” Id.

         As we explained above, the prosecutor’s characterization of forcible resistance as a

very modest type of resistance, although perhaps incomplete and somewhat oversimplified, is

indeed consistent with current Indiana law. Even if we were to conclude that any of the

prosecutor’s comments were improper, we must emphasize the extremely narrow

applicability of the fundamental error doctrine. Benson v. State, 762 N.E.2d 748, 755 (Ind.

2002).     The prosecutor’s improper actions must present an undeniable and substantial

potential for unfair harm. See id. When there is overwhelming independent evidence of a

                                                8
defendant’s guilt, improper statements made by a prosecutor may be harmless. See Hand v.

State, 863 N.E.2d 386, 394-95 (Ind. Ct. App. 2007). The record reveals that, after being told

that he was under arrest, Smith spun his body around, grabbed the door handle, refused to let

go of the handle, stiffened his arm, and moved his shoulder back and forth, all in an attempt

to break Colonel DeWees’s grasp and avoid being handcuffed. Indeed, officers had no

choice but to grab Smith by the legs and take him to the ground to gain compliance. There is

no question that this resistance was forcible. In light of this overwhelming independent

evidence of Smith’s guilt, we conclude that error, if any, in the prosecutor’s comments during

opening and closing arguments was harmless rather than fundamental.

                                     II. Jury Instruction

       Smith next contends that the trial court abused its discretion in rejecting his proposed

final instruction 7 specifically defining forcible resistance. The purpose of jury 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. Fowler v.

State, 900 N.E.2d 770, 773 (Ind. Ct. App. 2009). When evaluating a trial court’s rejection of

a tendered instruction, we look to: (1) whether the tendered instruction correctly states the

law, (2) whether there is evidence in the record to support giving the instruction, and (3)

whether the substance of the proffered instruction is covered by other instructions. Short v.

State, 962 N.E.2d 146, 150 (Ind. Ct. App. 2012). As a general rule, instruction of the jury

lies with the sound discretion of the trial court and is reviewed only for an abuse of that

discretion. Cravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005), trans. denied (2006).


                                               9
       Smith’s proposed final instruction 7 stated,

       “One ‘forcibly resists’ when ‘strong, powerful, violent means are used to
       evade a law enforcement official’s rightful exercise of his or her duties.[’]”
       Aguirre v. State, 953 N.E.2d 593, 596 (Ind. Ct. App. 2011) (quoting Spangler
       v. State, 607 N.E.2d 720, 723 (Ind. 1993)). “Forcibly resists” does not include
       all acts of resistance, obstruction, or interference. Stansberry v. State, 954
       N.E.2d 507, 510-11 (Ind. Ct. App. 2011) (citing Spangler, 607 N.E.2d at 723).
       “Forcibly resists” excludes some actions that are not passive. Aguirre, 953
       N.E.2d at 596 (quoting Spangler, 607 N.E.2d at 724).

Appellant’s App. at 311.

       Here, although Smith’s proposed instruction correctly recited some of the language of

Spangler and its progeny, the instruction was an incomplete statement of the current state of

the law and thus was properly refused by the trial court. It is well settled that use of certain

language in appellate opinions does not necessarily make that language proper for

instructions to a jury. Ludy v. State, 784 N.E.2d 459, 462 (Ind. 2003). Indeed, as we stated

earlier in our discussion, our supreme court has since softened the Spangler definition of

“forcibly resist.” See Graham, 903 N.E.2d at 965-66. Due to the court’s more recent

modification and explanation of the Spangler language regarding what constitutes forcible

resistance, the instruction tendered by Smith was an incomplete statement of current law.

Thus, we cannot say that the trial court abused its discretion in refusing to give the tendered

instruction.

       On appeal, Smith maintains that the prosecutor’s remarks during voir dire and opening

and closing arguments regarding forcible resistance necessitated the giving of his instruction

defining that term, especially in light of the fact that the substance of the instruction was not



                                               10
covered by any other instruction. 1 However, Smith made no such argument to the trial court.

To the contrary, our review of the record indicates that following the trial court’s rejection of

Smith’s proposed final instruction 7, Smith made no objection or argument to the trial court

regarding the prosecutor’s remarks or the necessity for his instruction defining forcible

resistance. Tr. at 622. Accordingly, we agree with the State that Smith did not afford the

trial court the opportunity to consider this argument and/or to correct any error without the

need for an appeal. Indiana Trial Rule 51(C) requires that a party distinctly state the matter

to which he objects and the grounds of his objection as a prerequisite for claiming error on

appeal regarding the trial court’s instruction of the jury. Scalissi v. State, 759 N.E.2d 618,

626 (Ind. 2001). The purpose of this rule is to protect the trial court from inadvertent error.

Mitchem v. State, 685 N.E.2d 671, 675 (Ind. 1997). Absent a specific objection, Smith has

waived this argument on appeal. Therefore, we affirm.

        Affirmed.

KIRSCH, J., and MATHIAS, J., concur.




        1
          We note that the trial court also refused the State’s proposed final jury instruction 7 defining
“forcibly” in the context of resisting law enforcement. Appellant’s App. at 159.

                                                   11
