MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Jul 10 2019, 9:54 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Scott H. Duerring                                         Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana
                                                          Sierra A. Murray
                                                          Deputy Attorney General
                                                          Angela Sanchez
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jan Dollahan, Jr.,                                        July 10, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2396
        v.                                                Appeal from the Starke Circuit
                                                          Court
State of Indiana,                                         The Honorable Kim Hall, Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          75C01-1606-F6-105




Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019                   Page 1 of 20
                                               Case Summary

[1]   Jan Dollahan, Jr. appeals his convictions for criminal recklessness, a Level 6

      felony, and invasion of privacy, a Class A misdemeanor. We affirm.


                                                      Issues

[2]   Dollahan raises three issues, which we restate as follows:


              I.       Whether the evidence is sufficient to convict Dollahan of
                       criminal recklessness with a deadly weapon, a Level 6
                       felony, and invasion of privacy, a Class A misdemeanor.


              II.      Whether the deputy prosecutor’s comments in closing
                       arguments constituted fundamental error.


                                                      Facts

[3]   Dollahan and Robert Cunningham (“Robert”) are neighbors in Starke County.

      Robert lives with his brother, two children, and wife, Amanda Cunningham

      (“Amanda”). Dollahan’s and the Cunninghams’ homes are part of a residential

      neighborhood. Robert “get[s] along great” with all his neighbors except

      Dollahan. Tr. Vol. II p. 38.


[4]   For approximately three years, Dollahan’s and Robert’s relationship has been

      strained, and in September 2015, Robert obtained an order of protection against

      Dollahan and his family. Robert also testified that Dollahan obtained a

      reciprocal order of protection, prohibiting the Cunninghams from contacting

      Dollahan and his family after Dollahan “challenged” Robert’s order of



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 2 of 20
      protection. 1 Id. at 59. Robert installed security cameras on his property around

      July 2015.


[5]   On May 30, 2016, at approximately 8:15 p.m., the Cunninghams’ windows

      were cracked open and, from inside, Robert could hear Dollahan yelling

      outside. Footage from the Cunninghams’ security camera demonstrates that

      Dollahan was yelling. State’s Ex. 2. Shortly thereafter, at approximately 8:30

      p.m., Robert was getting in his car to leave for work when he heard “loud

      booms” in “succession” coming from the direction of Dollahan’s home. Tr.

      Vol. II p. 44. Robert stopped the vehicle to determine the source of the sound

      and ultimately believed someone set off fireworks.


[6]   Later that evening, Amanda was at home and she heard loud noises outside

      and called the police. Officer Kenneth Tomasko with the Starke County

      Sheriff’s Office arrived at the Cunninghams’ home in response to Amanda’s

      call. Officer Tomasko requested a copy of the Cunninghams’ security camera

      footage. Amanda told Officer Tomasko that Robert would be able to provide a

      copy of the footage the following day.


[7]   At around 1:00 a.m., while Robert was on his break at work, he used the

      internet to review security camera footage from his home. In reviewing the

      footage, Robert was able to determine that, on two occasions that night,

      Dollahan shot at the Cunninghams’ security camera—once with a pistol and



      1
          The order of protection was in place due to “numerous harassment calls.” Tr. Vol. II p. 85.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019                     Page 3 of 20
      once with a .22 rifle. Robert testified that his children play outside but when

      the shots were fired, the children were inside the home.


[8]   When Robert returned home, he inspected the security cameras to determine if

      Dollahan’s shots resulted in any damage. Robert discovered bullet holes in a

      three-foot tall tree stump in his yard where one of the security cameras was

      mounted. The tree stump is approximately 100 feet from the Cunninghams’

      house. Robert did not recover any bullets at the site. Robert provided Officer

      Tomasko with a copy of the security camera footage.


[9]   As a result, Dollahan was charged with Count I, criminal recklessness with a

      deadly weapon, a Level 6 felony, and Count II, invasion of privacy, a Class A

      misdemeanor. Dollahan’s jury trial began on April 18, 2018. Witnesses

      testified to the foregoing facts. During closing arguments, the State argued:


              You’ll be given jury instructions. And, towards the end of the
              packet you’ll be given, it says under the Constitution of Indiana,
              the jury is given the right to decide both the law and the facts. In
              fulfilling this duty, it goes on, you are to apply the law as you
              actually find it. You are not to disregard it for any reason. So,
              you’ll have it here, and the State isn’t trying to argue that you
              should disregard it.


              The jury has the right to decide both the law and the facts. Keep
              that in mind when you’re deliberating. Whether Mr. Dollahan’s
              actions created a substantial risk of bodily injury.


              The State would ask you to put yourself in the Cunningham’s
              position. In their home, with the kids, young children, both still
              awake, they have an autistic son, when this happens. They

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 4 of 20
                 weren’t hurt; no one was killed here and no one was hurt. And
                 the State’s not arguing he was intending to do that – he was
                 intending to hurt anybody. But how would you feel if this was
                 going on in your back yard?


                 You are all here in this courtroom right now, because you are
                 residents of Starke County. This is your home, too. Is this
                 something that you think should be legal? Is it something that
                 should be permissible? That should be allowed? And do you
                 want your neighbors shooting across your property without you
                 knowing it? Without you being aware; didn’t get permission. Is
                 this something you want to see happening in Starke County? If
                 the answer to that question is no, then why? Why don’t you? Is
                 it because someone could get hurt? Is it because there’s – by
                 doing that you’re creating a substantial risk of bodily injury, is
                 that why? Do you want people shooting across your back yard?
                 You have the right to decide both the law and the facts.


       Id. at 98-99. Dollahan did not object to the State’s argument. The jury found

       Dollahan guilty of both counts.


[10]   At sentencing on May 30, 2018, the trial court raised, sua sponte, the issue of

       the statements made by the State during closing argument. The trial court

       stated:


                 However, the Defendant – the Defense lawyers have an
                 obligation to represent their client zealously. And, when I
                 listened to the closing arguments, I was struck by statements
                 made as being certainly worthy of an objection. Likely, worthy
                 of a sustained objection, and perhaps an admonishment, as well
                 as instructing the jurors how to take it.


                                                     *****

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 5 of 20
                One, two statements that I’m not finding are reversible error, I’m
                finding they need to be looked into. The first one has to do with
                the Prosecutor suggesting to the jury that they are free to decide
                the law. And the second is, the Prosecutor suggesting to the jury,
                that they should put themselves in the victim’s position.


       Id. at 142-43. Accordingly, the trial court determined that it needed some

       additional time to determine if the statements constituted fundamental error,

       which would have precluded the trial court from accepting the verdict of the

       jury.


[11]   After the first part of the sentencing hearing, the State filed a brief and Dollahan

       filed a brief in support of a finding of prosecutorial misconduct as fundamental

       error. On September 13, 2018, the trial court continued the sentencing hearing 2

       and rendered its decision with regard to the comments made by the State in

       closing argument. The trial court concluded:


                And so, you have to consider all the other evidence in the trial.
                Like how important were those statements do I think? And the
                juror’s decision of coming back with guilty verdicts? How
                important do I think that was? Do I think that put the Defendant
                at grave peril that his lawyers never raised an objection? And the
                jurors listened to that? And I’ve concluded that the answer is no.
                That it doesn’t rise to fundamental error, and so, I would call it
                error; not fundamental error. Because that’s a very high




       2
        The trial court also held a portion of the sentencing hearing on July 13, 2018; however, during that hearing,
       Dollahan changed counsel, and the trial court continued the sentencing hearing once more.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019                     Page 6 of 20
               standard. And anyway, that’s what my conclusion is after
               looking at the law.


               The Court now accepts the jury’s verdict of guilty to Count I,
               criminal recklessness, a level 6 felony, and Count II – . . .


       Id. at 167. Dollahan now appeals.


                                                     Analysis

                                       I.       Sufficiency of the Evidence

[12]   Dollahan challenges the sufficiency of the evidence of both convictions. When

       there is a challenge to the sufficiency of the evidence, “[w]e neither reweigh

       evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210

       (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert. denied),

       cert. denied. Instead, “we ‘consider only that evidence most favorable to the

       judgment together with all reasonable inferences drawn therefrom.’” Id.

       (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is

       supported by ‘substantial evidence of probative value even if there is some

       conflict in that evidence.’” Id.; see also McCallister v. State, 91 N.E.3d 554, 558

       (Ind. 2018) (holding that, even though there was conflicting evidence, it was

       “beside the point” because that argument “misapprehend[s] our limited role as

       a reviewing court”). Further, “[w]e will affirm the conviction unless no

       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007)).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 7 of 20
                                            A. Criminal Recklessness

[13]   Dollahan argues that the evidence is insufficient to convict him of criminal

       recklessness because “[t]here is no evidence establishing that anyone was

       actually present that either Dollahan knew was there, or that was actually put at

       risk as a result of the discharging of the gun,” and, accordingly, there was no

       “substance to the risk.” Appellant’s Br. p. 11 (internal quotations omitted).

       Dollahan does not challenge the sufficiency of any other element of his criminal

       recklessness conviction.


[14]   A person commits criminal recklessness, a Level 6 felony, when a person, while

       armed with a deadly weapon, “recklessly, knowingly, or intentionally performs

       an act that creates a substantial risk of bodily injury to another person. . . .”

       Ind. Code § 35-42-2-2. In support of his argument, Dollahan cites Elliott v.

       State, 560 N.E.2d 1266 (Ind. Ct. App. 1990). In Elliott, after lunch on a warm,

       sunny day, a group of Elliott’s employees were relaxing outside of Elliott’s used

       car lot, Elliott walked outside and shouted something “to the effect of ‘Yahoo,

       let’s party,’ walked to the edge of the lot, and fired five pistol shots into the air.”

       Elliott, 560 N.E.2d at 1266. The lot where Elliott fired the shots was “on the

       outskirts of Greenfield, Indiana, and when he fired his pistol, he aimed it

       upwards at approximately a 10 degree angle towards adjacent uninhabited

       fields and woodlands.” Id. at 1266-67. Elliott’s employees were not in the line

       of fire, and there was no evidence presented that anyone was in the woods

       nearby, although hunters were known to occupy the woods. See id.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 8 of 20
[15]   A panel of this court concluded that there was no substantial risk of bodily

       injury present because:


               Elliott’s employees were behind him, and the fields in front of
               him were empty. The State concedes Elliott’s shots probably
               landed in the empty fields or woodlands, but nonetheless argues
               a hunter could have been in the woodlands, out of Elliott’s sight.
               The State is correct, but its argument is mere conjecture, for
               which there was no evidence at trial. Since the evidence failed to
               show any person put in harm’s way by Elliott’s conduct, there
               was no substance to the risk created by the firing of the pistol; the
               risk had no actual existence. Instead, the presence of Elliott’s
               employees behind him and the possibility of a concealed hunter
               in the woodlands presented only a remote risk of bodily injury.


       Id. at 1267.


[16]   Here, Dollahan’s case is distinguishable. The Cunningham family was not

       outside; however, the windows to their home were open. Moreover, Dollahan

       shot at the security cameras surrounding the Cunninghams’ home and not in

       the sky above a rural area as was the case in Elliott. The security camera on the

       tree stump, where Robert found bullet holes, was located only 100 feet away

       from the Cunninghams’ home. Here, the risk was not mere conjecture or even

       a remote risk of bodily injury. Dollahan’s act of pointing a gun and shooting in

       the direction of Robert’s home presented the real risk that someone could suffer

       bodily injury. Accordingly, the evidence was sufficient to demonstrate a

       substantial risk of bodily harm.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 9 of 20
                                              B. Invasion of Privacy

[17]   Dollahan also argues the evidence was insufficient to sustain his invasion of

       privacy conviction because there was no proof that Dollahan had actual

       knowledge of the order of protection or its contents; therefore, Dollahan could

       not have knowingly violated the order of protection. Dollahan does not

       challenge any other element of his invasion of privacy conviction.


[18]   Pursuant to Indiana Code Section 35-46-1-15.1(a)(2), “[a] person who

       knowingly or intentionally violates: . . . an ex parte protective order issued

       under IC 34-26-5 . . . commits invasion of privacy, a Class A misdemeanor.” In

       Tharp v. State, 942 N.E.2d 814, 818 (Ind. 2011), our Supreme Court concluded

       that the evidence was insufficient to find the defendant had knowledge of the

       order of protection because, while the defendant received an oral notice, the

       oral notice contained “mixed messages” about whether the order of protection

       was still valid. In reaching its decision, our Supreme Court asked whether there

       was “substantial evidence of probative value from which a finder of fact could

       find beyond a reasonable doubt that [the defendant] knowingly violated a

       protective order?” Tharp, 942 N.E.2d at 818.


[19]   The State presented evidence that demonstrated Dollahan’s knowledge of the

       order of protection. Robert testified that Dollahan challenged Robert’s initial

       order of protection and that Robert was also prohibited from contacting

       Dollahan and his family. Specifically, Robert’s testimony on direct

       examination included the following inquiry by the deputy prosecutor:


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 10 of 20
               Q. When the Court entered that protective order [that
               Cunningham sought against Dollahan], was there also a
               reciprocal protective order on behalf of the Dollahans?


               A. Yes.


               Q. And, what was your understanding of that protective order –
               that’s laid out in the order?


               A. My understanding was that it’s a mutual protective order so
               that we couldn’t harass each other.


               Q. And, were you not supposed to have any contact, direct or
               indirect?


               A. Yes.


       Tr. Vol. II pp. 39-40. On cross examination, Cunningham elaborated that the

       reciprocal protective orders “came from one time. [Dollahan] challenged my

       restraining order that I had asked for; during the challenge, where he was

       granted a blank one against me.” Id. at 59.


[20]   Dollahan argues this is insufficient because the order of protection admitted at

       trial only shows the order of protection that Robert obtained against Dollahan

       and does not demonstrate that there was a reciprocal order of protection. This

       argument is a request for us to reweigh the evidence, which we cannot do. See

       Gibson, 51 N.E.3d at 210. It was within the province of the jury to determine

       the credibility and weight to be given to Robert’s statements that Dollahan

       obtained a reciprocal order of protection, and therefore, had knowledge of the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 11 of 20
       order of protection and its contents. Robert’s testimony of the reciprocal order

       of protection was sufficient to demonstrate that Dollahan had actual knowledge

       of the order.


                                        II.      Prosecutorial Misconduct

[21]   Finally, Dollahan argues the deputy prosecutor committed misconduct by

       “urging the jury to convict Dollahan on something other than the evidence

       admitted during the trial, as well as inflaming their passions” in closing

       arguments. Appellant’s Br. p. 15. At the trial, however, Dollahan did not

       object to the deputy prosecutor’s statements, and Dollahan argues that we must

       evaluate whether the alleged misconduct constituted fundamental error.


[22]   When reviewing a claim of prosecutorial misconduct, we must determine

       whether the prosecutor: (1) engaged in misconduct that, (2) under all of the

       circumstances, placed the defendant in a position of grave peril to which he or

       she would not have been otherwise subjected. Ryan v. State, 9 N.E.3d 663, 667

       (Ind. 2014); see also Nichols v. State, 974 N.E.2d 531, 535 (Ind. Ct. App.

       2012). “‘Whether a prosecutor’s argument constitutes misconduct is measured

       by reference to case law and the Rules of Professional Conduct.’” Nichols, 974

       N.E.2d at 535 (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). We

       measure the weight of the peril by the probable persuasive effect of the

       misconduct on the jury rather than the degree of impropriety of the

       conduct. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 12 of 20
[23]   To establish fundamental error based on prosecutorial misconduct, the

       defendant must also show that the misconduct: (1) rendered a fair trial

       impossible or (2) constituted a clearly blatant violation of basic and elementary

       principles of due process, which resulted in an undeniable and substantial

       potential for harm. Id. Harm is established not by a conviction, but rather

       upon whether the defendant’s right to a fair trial was detrimentally affected by

       the denial of procedural opportunities for the ascertainment of the

       truth. Id. Misconduct or errors implicating constitutional issues do not

       necessarily establish that fundamental error has occurred. Id.


[24]   In his brief, Dollahan points to the following comments as misconduct:


               The jury has the right to decide both the law and the facts. Keep
               that in mind when you’re deliberating. Whether Mr. Dollahan’s
               actions created a substantial risk of bodily injury.


               The State would ask you to put yourself in the Cunningham’s
               position. In their home, with the kids, young children, both still
               awake, they have an autistic son, when this happens. They
               weren’t hurt; no one was killed here and no one was hurt. And
               the State’s not arguing he was intending to do that – he was
               intending to hurt anybody. But how would you feel if this was
               going on in your back yard?


               You are all here in this courtroom right now, because you are
               residents of Starke County. This is your home, too. Is this
               something that you think should be legal? Is it something that
               should be permissible? That should be allowed? And do you
               want your neighbors shooting across your property without you
               knowing it? Without you being aware; didn’t get permission. Is
               this something you want to see happening in Starke County? If

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 13 of 20
               the answer to that question is no, then why? Why don’t you? Is
               it because someone could get hurt? Is it because there’s – by
               doing that you’re creating a substantial risk of bodily injury, is
               that why? Do you want people shooting across your back yard?
               You have the right to decide both the law and the facts.


       Tr. Vol. II pp. 98-99.


[25]   In Ryan v. State, 9 N.E.3d 663, 671-72 (Ind. 2014), our Supreme Court

       addressed the question that Appellant raises here, namely, whether a

       prosecutor’s arguments invited the jury to convict the defendant for a reason

       other than the defendant’s own guilt. In Ryan, the prosecutor argued:


               You wonder at night what you can say to a jury to get them to
               get the bigger picture here. And no case is easy for your [sic]
               guys, I get that. No one want[s] to judge someone else or
               somebody else’s actions. But we keep hearing about this
               happening, whether it’s a teacher, or a coach, or a pastor, or
               whoever. And we all want to be really angry and post online and
               have strong opinions about it. And we never think that we’ll be
               the ones that are here that get to stop it. And you actually do get
               to stop it. And as much as I know you probably did not want to
               be here on Monday morning, I would submit to you that you are
               in an incredible position to stop it and send the message that
               we’re not going to allow people to do this.


       Id. at 671. Our Supreme Court concluded:


               Although a prosecutor may remark on the public demand for a
               conviction, we have repeatedly emphasized that “[i]t is
               misconduct for a prosecutor to request the jury to convict a
               defendant for any reason other than his guilt.” Cooper [v. State],
               854 N.E.2d [831,] 837 (Ind. 2006) (quoting Coleman v. State, 750

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 14 of 20
               N.E.2d 370, 375 (Ind. 2001)); Maldonado [v. State, 355 N.E.2d
               843, 849 (Ind. 1976)]. In Smith [v. State, 283 N.E.2d 365, 369
               (Ind. 1972)], the prosecutor stated in his closing argument that:
               “You as jurors at this stage of this proceeding have it within your
               power to set the moral standards for this community.” [Id. at
               369]. After giving two reasons to convict that particular
               defendant, the prosecutor added, “And I say probably now, more
               than ever more, you are going to have to come to the spot where
               it’s your turn to stand up and be counted.” Id. We observed that
               these comments were not improper. Id. In the present case,
               however, the prosecutor alluded to the “bigger picture,” to
               “hearing about this happening” without a chance “to stop it,”
               and to other perpetrators such as “a teacher, or a coach, or a
               pastor;” and then implored the jury to “send the message that
               we’re not going to allow people to do this.” This clearly invited
               the jury to convict this defendant for reasons other than his own
               guilt, therefore constituting improper conduct.


       Id. at 671-72. Still, our Supreme Court did not reach the question of whether

       this statement “subjected the defendant to grave peril”—the second prong of the

       prosecutorial misconduct question—because the Supreme Court ultimately

       concluded that any error did not rise to the level of fundamental error, which

       was the standard that governed in Ryan. Id. at 672.


[26]   On the other hand, in Jerden v. State, 37 N.E.3d 494, 499 (Ind. Ct. App. 2015), a

       panel of this Court addressed the prosecutor’s closing argument that provided:


                                                      *****


               Our roads are nor [sic] playgrounds. Our roads are not places for
               young men who think that they can drive faster and better than
               other people. Our roads are used by families going to church on


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 15 of 20
        Sunday mornings. They are used by people going to and from
        work.


                                               *****


        So, on April 13th of this year these two (2) men went racing
        through our community. To them it was just a thirty (30) mile
        stretch of road. To us, though, it’s the safety of our neighbors.
        The defendants put us in danger by the way they were driving
        that day.


                                               *****


        Ladies and Gentlemen, these two (2) men thought that they
        could race on our tr [sic] . . . on our road. They thought that they
        could use their well[-]honed driving skills, but in fact what they
        did is they put us in danger, and that’s what danger . . . reckless
        driving is.


Id. Jerden argued that the prosecutor’s statements were improper because there

was no evidence of the facts the prosecutor referenced, including: (1) the

prosecutor’s characterization of the road as “just a thirty mile stretch of road”;

(2) the prosecutor’s implication that Jerden’s crime involved actions near a

church; and (3) the prosecutor’s characterization of the time of day because

“the fact that it was a Sunday morning was not relevant to whether he was

driving recklessly.” Id. at 499. Even though a panel of this Court ultimately

concluded that it would not need to address whether the prosecutor’s comments

constituted misconduct because any misconduct did not rise to the level of

fundamental error, this Court cited Booher v. State, 773 N.E.2d 814, 819 (Ind.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 16 of 20
       2002), to support the proposition that “prosecutors are free to make arguments

       from which a jury can draw reasonable inferences from the evidence.” Id.

       Using these examples, we turn to the statements before us.


[27]   We characterize the deputy prosecutor’s statements as two separate categories:

       (1) telling the jury that they can decide both the law and the facts; and (2) a

       series of questions and facts that had more to do with the jury than with

       Dollahan. As to the first category of statements, the deputy prosecutor stated

       that the jury was to decide both the law and the facts—a statement the State

       argues is derived from the Indiana Constitution. The deputy prosecutor also

       told the jury that it could not disregard the law for any reason. Although a

       seemingly imprecise choice of words, we agree that the deputy prosecutor was

       attempting to instruct the jury to apply the law, not change it. Moreover, the

       State correctly points out that, when the deputy prosecutor submits a correct

       statement near an improper statement, the harm may be counteracted. See

       Ryan, 9 N.E.3d at 672 (holding that “[s]uch correct statement so distanced from

       an improper one cannot qualify its substance, but it may counteract its harm”).


[28]   The deputy prosecutor’s second category of statements edges closer to improper

       statements. Specifically, we look at the portion of the closing argument where

       the deputy prosecutor argued:


               But how would you feel if this was going on in your back yard?


               You are all here in this courtroom right now, because you are
               residents of Starke County. This is your home, too. Is this
               something that you think should be legal? Is it something that
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 17 of 20
               should be permissible? That should be allowed? And do you
               want your neighbors shooting across your property without you
               knowing it? Without you being aware; didn’t get permission. Is
               this something you want to see happening in Starke County? If
               the answer to that question is no, then why? Why don’t you? Is
               it because someone could get hurt? Is it because there’s – by
               doing that you’re creating a substantial risk of bodily injury, is
               that way? Do you want people shooting across your back yard?
               You have the right to decide both the law and the facts.


       Tr. pp. 98-99. The statements above are similar to the statements made in

       Ryan, because, in both cases, the deputy prosecutor essentially argued that the

       jurors have an opportunity to stop unwanted conduct and made the allegations

       about the bigger picture of policing the jurors’ neighborhoods. See also Carter v.

       State, 956 N.E.2d 167, 170 (Ind. Ct. App. 2011) (finding misconduct when the

       prosecutor asked the jurors to put themselves in the victim’s shoes), trans. denied.


[29]   Regardless of whether the deputy prosecutor’s statements were improper, they

       do not rise to the level of fundamental error. The State presented independent

       evidence that Dollahan was guilty of criminal recklessness—the crimes to

       which the deputy prosecutor’s statements seemingly apply. The State presented

       significant video evidence of two separate occasions when Dollahan shot

       directly at the Cunninghams’ security cameras while the Cunningham family

       was home. The State further presented evidence of bullet holes on the tree

       stump where one security camera was mounted approximately 100 feet away

       from the Cunninghams’ home. In light of this “overwhelming independent

       evidence,” we cannot find that the comments made by the prosecutor resulted

       in fundamental error. See, e.g., Hand v. State, 863 N.E.2d 386, 395 (Ind. Ct.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 18 of 20
       App. 2007) (“Because the State presented overwhelming independent evidence

       that Hand was guilty of Class A misdemeanor domestic battery—an act that he

       does not deny—we find that any reference by the prosecutor to BWS or a cycle

       of violence that may have existed between Hand and Diona did not amount to

       fundamental error.”).


[30]   Moreover, the final jury instructions read to the jury included the following:

       “The unsworn statements or comments of counsel on either side of the case

       should not be considered as evidence in this case. It is your duty to determine

       the facts from the testimony and evidence admitted by the Court and given in

       your presence.” Appellant’s App. Vol. II p. 167. The instruction properly

       directed the jury that the deputy prosecutor’s statements were not evidence in

       the case. See Ryan, 9 N.E.2d at 672-73 (finding that, despite the prosecutor’s

       improper closing argument that the jury should “send the message that we’re

       not going to allow people to do this,” the error did not have such an

       “undeniable and substantial effect on the jury’s decision that a fair trial was

       impossible,” in part, because of the proper jury instructions pointing to what the

       jury may properly consider).


[31]   Looking at the trial as a whole, we are not persuaded that the deputy

       prosecutor’s closing arguments precluded Dollahan from obtaining a fair trial.

       Accordingly, we affirm the trial court’s finding that the deputy prosecutor’s

       statements do not constitute fundamental error.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 19 of 20
                                                   Conclusion

[32]   The evidence is sufficient to convict Dollahan of criminal recklessness, a Level

       6 felony, and invasion of privacy, a Class A misdemeanor. The deputy

       prosecutor’s arguments in the State’s closing argument do not constitute

       fundamental error. We affirm.


[33]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019   Page 20 of 20
