MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                        FILED
regarded as precedent or cited before any                          May 26 2017, 5:38 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
Stacy R. Uliana                                         Curtis T. Hill, Jr.
Bargersville, Indiana                                   Attorney General of Indiana
                                                        Ian McLean
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David Hagan,                                            May 26, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        92A05-1607-CR-1587
        v.                                              Appeal from the Whitley Circuit
                                                        Court
State of Indiana,                                       The Honorable James R. Heuer,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        92C01-1511-MR-90



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017         Page 1 of 25
[1]   David Hagan appeals his conviction and sentence for reckless homicide as a

      level 5 felony. He raises two issues which we revise and restate as:


        I.    Whether the prosecutor committed misconduct during closing
              argument which resulted in fundamental error; and

       II.    Whether his sentence is inappropriate in light of the nature of the
              offense and the character of the offender.

      We affirm.


                                      Facts and Procedural History

[2]   Hagan lived with his longtime girlfriend Vonda Kelsey in his house in South

      Whitley, Indiana. Around April 2015, Lisa Bowers, who lived with her five

      children and Adam Porter, whom she dated, met Kelsey. At some point while

      Porter was present, Bowers “made a noise about [her] back or something,” and

      Kelsey offered her a Percocet. Transcript Volume I at 36-37. Bowers told her

      no and that Kelsey needed her medication, but Kelsey said it was okay and

      gave her a Percocet. Another time, Kelsey gave either Porter or Bowers

      another pill after Bowers asked for one.


[3]   On July 18, 2015, Porter texted Kelsey and asked: “Do you have a few goodies

      I can get?” Transcript Volume II at 9. Later that day, he texted Kelsey: “P-P-P-

      Please” with three exclamation points. Id. at 10. That same evening, he texted

      her “I love you,” “Is that a no,” “Just text me and let me know,” “sad,” “me,”

      and “Vondaaaaa.” Id. at 10-11. Porter also sent text messages to Kelsey on

      July 19, 26, and 31, and August 12, without a response. In July 2015, there



      Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 2 of 25
      were “a lot of calls from” Kelsey to Bowers and Porter until July 25, and the

      next phone call did not take place until August 12. Id. at 14.


[4]   At some point, Bowers and Porter went to Hagan’s residence, and Bowers

      spoke with Hagan. On August 2, 2015, Hagan posted the following update to

      Facebook:

              Apparently my reputation for being an asshole isn’t as well know
              [sic] as I thought it was, long story follows. A couple of months
              ago my g.f. found a couple of new “friends”. I was kind of
              suspicious of them from the start because they’re about 20 years
              younger than us, and I don’t trust anyone that I haven’t known
              personally for at least 10 years. I’m getting a bit ahead of myself
              here, let me take a moment to point out that g.f. ruptured a disc
              in her neck that required surgery and still has to take some pretty
              potent pain meds twice a day to cope. That said, I noticed that
              new “friends” had a habit of showing up on Fridays wanting to
              see her, sometimes several times a night. She noticed that too
              and informed me that they’re always trying to talk her into giving
              them some of her meds, which she refused to do. Those meds
              are potent enough that she’s subject to being randomly called
              into the hospital for a pill count to ensure that she’s not abusing
              or selling them. Well, if you’ve been paying attention to my
              posts you’ll know about the week I had and that on Friday I was
              stressed, sick of other people’s bullshit, wanted a quiet evening
              and numerous ice cold vodka & tonics to unwind. That didn’t
              happen. New friends showed up looking for g.f., several times.
              The last time I noticed that one went to the back door while the
              other went to the front door and knocked. [R]ecognizing the
              diversion tactic I put on my pea shooter and answered the front
              door. After listening to the woman at the door repeatedly
              demand that I tell her where g.f. was, and after several cold
              vodka and tonics I was at the top of my game, I proceeded to
              unload with some of my finest assholery ever. The funny part is
              that once I got started that woman kept saying “we care about
      Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 3 of 25
              her”. Yeah, right. Spare me, you care so much that you’d
              jeopardize her access to the meds she need [sic] to cope for your
              own personal gain. I might not be that old but I wasn’t born
              yesterday and I don’t have a problem with a reputation for being
              an asshole. I don’t think they’ll be back again.


      State’s Exhibit 124A.


[5]   On August 14, 2015, Hagan was drinking vodka and water. Bowers and Porter

      were drinking beer and stopped at Hagan’s house with Bowers’s five-year-old

      child. Porter knocked on the side door, Kelsey yelled that she was out back,

      and Porter and the child walked to the backyard. Kelsey and Porter conversed

      for a few minutes. Hagan then exited the back door and started walking toward

      them while holding a gun down by his side. Kelsey said: “Adam, he’s got a

      gun.” Transcript Volume II at 48. Porter charged Hagan, they struggled with

      each other, and Hagan shot Porter in the head. The child was in the backyard

      when the shooting occurred.


[6]   Hagan called 911, requested police, and stated that he had shot Porter. He

      stated: “He attacked . . . he charged me, attacked me, threw me to the ground,

      and I turned the gun in defense and shot.” Transcript Volume I at 101. South

      Whitley Police Officer Andrew J. Westerman arrived at the scene, observed

      that Hagan was calm, smelled the odor of an alcoholic beverage on Hagan’s

      breath, and took him into custody. Porter died as a result of a gunshot wound

      to the back of his head. Police discovered a revolver near Porter’s body and an

      injury on Porter’s hand. Later examination of the revolver indicated that it was



      Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 4 of 25
       single action meaning that “you have to cock, manually cock, the hammer of

       the firearm.” Id. at 211. Police recovered one bullet fragment.


[7]    Indiana State Police Detective Andrew Mills went to the hospital where Hagan

       had been taken to check his level of intoxication. The blood test revealed that

       Hagan’s blood alcohol was .15. Detective Mills then spoke with Hagan at the

       Whitley County Sheriff’s Department and took photographs of him. Detective

       Mills observed that Hagan was calm, pleasant to deal with, and cooperative.


[8]    Dr. Scott Wagner performed an autopsy on Porter which revealed that the

       bullet traveled from the knot on the back of Porter’s head to the top of his head.

       He also discovered some superficial scrapes on the base of Porter’s thumb,

       some very superficial scrapes at the base of the knuckles, and “a little bit of

       bruising at the base of the wrist.” Id. at 193. Dr. Wagner observed a loose

       contact wound indicating that the gun was either right up against Porter’s head

       or very close when it was fired. A toxicology test on Porter’s blood revealed

       69.4 nanograms of amphetamine per milliliter, 32.1 nanograms of alprazolam

       per milliliter, and 0.246 ethanol.


[9]    On November 20, 2015, a grand jury indicted Hagan for murder and reckless

       homicide as a level 5 felony. On December 21, 2015, Hagan filed a notice of

       self-defense.


[10]   On May 10, 11, 12, and 13, 2016, the court held a jury trial. Bowers testified

       that she believed Hagan hit Kelsey because she always had marks on her face,

       bruises, and busted lips, and she always cried over nothing. Bowers testified

       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 5 of 25
       that about two weeks prior to the shooting, she knocked on the door of Kelsey’s

       home while Porter waited in her vehicle, Hagan came to the door and was very

       rude, and he told her that Kelsey was out running around. She stated that a cat

       ran into the house, Hagan went to slam the door on her, and she yelled:

       “Vonda, I know you’re in there. Can you please call or text us just to let us

       know you’re okay.” Id. at 40. She also testified that Hagan did not ever tell her

       not to come back to his home.


[11]   With respect to the day of the shooting, Bowers testified that about two or three

       minutes elapsed between the time Porter and her son went into Kelsey’s

       backyard before her son came running to her saying that Porter was hurt. She

       testified that she told Kelsey to call 911 and that Kelsey said: “What am I

       gonna do? Who’s gonna take care of me? How am I gonna pay my bills?

       What am I gonna do?” Id. at 56. On cross-examination, Hagan’s counsel

       asked Bowers if it was true that she and Porter went to Kelsey’s house that

       night to obtain prescription pills, and Bowers answered: “No. That’s

       ludicrous.” Id. at 72.


[12]   Kelsey testified that Hagan never raised a hand to her, that Bowers and Porter

       started “hounding” her, and that Porter would ask her if he “could get some

       pills” and she told him no. Transcript Volume II at 29. She also testified that

       Porter always asked for the pills while Bowers sat in her vehicle. She stated that

       when Porter texted her asking for “goodies” that he was talking about pills. Id.

       at 30. She stated that she told Hagan “what was going on and they were

       hounding me” and that “[e]very time I turned around, they was at the door and

       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 6 of 25
       . . . [Porter] was at the door wanting pills. And, I kept telling him, no, I can’t.”

       Id. at 31. Kelsey testified that she was across the street watching from her

       neighbor’s on the occasion when Porter went to the side door and Bowers went

       to the front door. She saw Porter and Bowers looking for her and did not let

       them know where she was located because she “didn’t want them bugging me.

       I mean, enough was enough.” Id. at 38.


[13]   Kelsey also testified that after she told Porter that Hagan had a gun, Porter

       “charged at [Hagan] big time,” “[k]nocked him on the ground hard,” and they

       scuffled for probably one or two minutes. Id. at 52. She stated that Hagan was

       on top of Porter and she thought Porter was on his back at the time the gun was

       fired. When asked if Hagan was on top of Porter when the shot rang out, she

       answered: “I don’t know.” Id. at 56. She also testified that she might have told

       Hagan: “you just ruined your life.” Id. at 59. On cross-examination, she

       testified that Hagan and Porter were rolling on the ground when the shot was

       fired.


[14]   During cross-examination of Sheila Arnold, a forensic toxicologist and quality

       control coordinator at the Indiana State Department of Toxicology, Hagan’s

       counsel asked: “Would it be fair to say that Adam Porter, who had a .253, um,

       blood alcohol level, a 32.1 nanograms per milliliter of alprazolam, as well as

       69.4 nanograms per liter of amphetamine, would be extremely impaired?”

       Transcript Volume I at 248. Arnold answered affirmatively.




       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 7 of 25
[15]   Danielle Trout, Kelsey’s daughter-in-law, testified that, at some point prior to

       Porter’s death and after what Hagan thought was an attempted burglary of his

       residence, Hagan said: “if [Porter] comes back, I’m going to shoot him.”

       Transcript Volume II at 104. She also testified that she initially told the police

       that she did not hear “anything of any sort,” but then called the police to

       confess that she did hear the statement the weekend before. Id. at 106.

       Michelle Wakefield, Kelsey’s youngest daughter, testified that Hagan never said

       that he was going to shoot Porter if Porter returned and that it would be

       unusual for Hagan to make that statement.


[16]   Lydia Hyden testified that she lived across the street from Hagan and Kelsey,

       that she heard two gunshots maybe a second apart, and that she saw Hagan

       standing up when she heard them. She also testified that she asked Kelsey what

       happened and Kelsey said: “well, last weekend he said, if he then come . . . if

       [Porter] come [sic] to our house again, he gonna shoot his ass, and I can’t

       believe that he did this.” Id. at 134. Bill Hyden, Lydia’s husband, testified that

       he heard two gunshots. He testified that Lydia had previously said that Kelsey

       did not want to go home at one point because Porter and Bowers were there for

       her prescription pills.


[17]   Hagan testified that he found out that Porter and Bowers were trying to acquire

       Percocets from Kelsey. He described the visit from Porter and Bowers in which

       Bowers went to the front door and Porter went to the side door. He stated: “I

       found that disturbing because, uh, you hear about, in the news, these type of

       burglaries happening where they’re distracting you at the front door and

       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 8 of 25
       somebody is coming in the back door.” Transcript Volume III at 64. He

       testified that he answered the front door, Bowers asked if Kelsey was there, he

       told her no, Bowers repeatedly demanded that he tell her where Kelsey was, he

       told her that he was not going to tolerate someone showing up at his door and

       treating him with the third degree, a stray cat ran into the house, he told Bowers

       that “she and [Porter] need to get the f--- off of my property and not come

       back,” and he closed the door. Id. at 67.


[18]   Hagan testified that on August 14, 2015, he saw Porter in his backyard with

       Kelsey and observed that Porter had a beer can in one hand and “seemed to be

       agitated, animated” and “was waving his arms around in the air.” Id. at 73. He

       testified he was concerned for Kelsey’s safety, he “made the decision that [he]

       was gonna run [Porter] off the property, ask him to leave,” he felt he should

       have some sort of protection with him because Porter appeared agitated so he

       picked up his revolver, loaded it, and walked across the backyard to approach

       Porter. Id. at 74. He stated that he pointed the gun straight down at the

       ground, walked at a normal pace, did not wave the gun around, and did not

       threaten anyone. He testified that Porter turned, charged him, hit him hard,

       and knocked him out of his sandals and to the ground. He testified that when

       he hit the ground he flinched and the gun went off, Porter and him wrestled on

       the ground, he ended up pinned underneath Porter, he felt a hand on his

       forearm and thought Porter was trying to take the gun from him, he was scared,

       he “reached over the top of me and I fired the gun,” and he “had no idea where

       I was firing the gun.” Id. at 77. When asked why he fired the gun and did not


       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 9 of 25
       aim it at anything, Hagan answered: “I figured that, if the gun went . . . if he

       heard the gun firing over the top of him, that might scare him enough to get up

       and . . . and get away from me, run away.” Id. at 78.


[19]   On cross-examination, Hagan testified that in response to a comment from one

       of his Facebook friends, he indicated “that crew had no idea who they were f----

       -- with.” Id. at 90. He testified he did not recall ever saying that if Porter

       returned that he was going to shoot him. He also testified that he did not call

       the police initially because he felt there was an imminent threat to Kelsey.

       When asked if he agreed it was a mistake in judgment after hearing what

       Kelsey had to say regarding what was actually occurring in the backyard,

       Hagan answered: “Yeah. I suppose so.” Id. at 101. He also testified that he

       did not see the five-year-old child until Porter was dead.


[20]   During closing argument, the prosecutor stated:


               A person who recklessly kills another human being and it’s
               reckless homicide, a level 5 felony. Was it reckless behavior that
               led David Hagan to kill Adam Porter? We know about the
               intoxication. We know about taking no more time than it takes
               you to tie your shoes, less time maybe, to make a determination.
               We know that he, himself, under recross . . . or, redirect
               examination from his attorney, said he was missing critical facts
               when he made the judgment about whether to go into that
               backyard.


       Id. at 160.


[21]   Defense counsel argued:


       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 10 of 25
        The last instruction says, a person engages in conduct recklessly
        if he engages in the conduct in plain conscious and unjustifiable
        disregard of harm that might result and the disregard involves a
        substantial deviation from acceptable standards of conduct. And,
        I guess I’m argue [sic] to you that, when [Hagan] looks out the
        kitchen window and sees this madman flailing his arms, who’s
        not supposed to be on the property, that getting his gun and just
        quietly, slowly walking normally out of his house in his own
        backyard, is reckless. Are you kidding me? That’s an
        unjustifiable disregard of the harm that might result and the
        disregard involves a substantial deviation from acceptable
        standards of conduct.


                                             *****


        Instruction Number 10. It’s one of the important ones to really
        start with. It says, it is the policy of the State of Indiana to
        recognize the unique character of a citizen’s home and to ensure
        that a citizen . . . citizen feels secure in his or her own home
        against unlawful intrusion by another individual. [Porter]
        intruded, especially after being told not to come back in two
        weeks. And, [Bowers] did, too. The next sentence, it is the
        policy of this state that people have a right to defend his house,
        his curtilage from criminal trespassers. And, [Hagan] had the
        right to defend [Kelsey], who he thought would . . . may get
        attacked by a crazy, doped-up man. Instruction Number 11.
        This is the self-defense. This is the justification for the fourth
        verdict. This is why you should choose the fourth verdict, which
        is justifiable homicide. And, it is not a crime. Not all homicides
        are crimes. A person is justified in using reasonable force against
        any other person to protect the person or a third person from
        what the person reasonably believes to be the imminent use of
        unlawful force. Is this reasonable force? Just having a gun at
        your side and walking out in your backyard? Is that
        unreasonable? However, a person is justified in using deadly
        force and does not have to retreat. If the person reasonably

Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 11 of 25
               believes that force is necessary to prevent serious bodily injury to
               the person or a third person. It goes on. Or the commission of a
               forceful felony. No person in this state shall be placed in legal
               jeopardy of any kind whatsoever for protecting the person or
               third person by reasonable means necessary. Is going out with a
               gun on your side reasonable? Yes. But, once [Hagan] is
               attacked, once he’s attacked viciously, and is on his back and
               then the guy is trying to get his gun, [Hagan] is justified in
               defending himself. . . . Would [Hagan] be justified in going out
               there and just going, boom? No. But, once . . . once attacked
               and on the ground and they’re fighting to take your gun, yeah.
               Yeah. Now, notwithstanding what I’ve read to you above, a
               person is not justified in using force if the person provokes
               unlawful action by the other person with the intent to cause
               bodily injury to the other person or the person has entered into
               combat with another person or is the initial aggressor. [Hagan]
               didn’t provoke anything. This was provoked by [Porter] coming,
               committing a criminal trespass with his girlfriend . . . committing
               a criminal trespass, all hopped up drugs [sic] and alcohol, and
               then charged him. [Porter] was the one who provoked. . . . The
               State has the burden of proving beyond a reasonable doubt that
               Mr. Hagan did not act in self-defense.


       Id. at 173-176.


[22]   In rebuttal, the prosecutor stated:

               You have four questions you’ve got to answer. Four questions.
               The way I see it, the first question is, is what David Hagan did
               murder or manslaughter under the law? We talked in jury
               selection about murder and about reckless homicide. Now, we
               didn’t talk about manslaughter. But, as things sometimes
               happen, we have to wait ‘til the evidence comes in. . . . We
               know what murder is. It’s knowingly or intentionally killing
               another human being. Uh, we’ll talk in a second about what
               manslaughter is. The second question you have to answer is,

       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 12 of 25
        does self-defense . . . uh, does that excuse Mr., uh, Hagan’s
        commission of murder or manslaughter? And, you’ll have the
        instruction that we’ve already talked about on self-defense. The
        third question you have decide [sic], even if not guilty of murder
        or manslaughter . . . even if self defense applies to there, is
        reckless homicide an appropriate charge? And, the fourth
        question, how is self-defense apply to reckless homicide? Those
        are the four questions that you should ask yourself as jurors in
        the jury room.


Id. at 178. The prosecutor later stated:


        If you decide that murder or manslaughter are not appropriate
        charges, or if you decide that self-defense excuses murder or
        manslaughter, talk about reckless homicide. Because the . . . the
        analysis is completely different. The charge is completely
        different and self-defense is completely different. And, I’ll
        explain to you how. Reckless homicide, BAC, blood alcohol
        level, .15. And please, please, please as jurors, do not take what
        witnesses tell you from the witness stand at face value.
        Witnesses lie all the time. I can tell you that a hundred percent.
        Okay? Some of the State’s witnesses, some of the Defendant’s
        witnesses. Sometimes, the Defendant lies, believe it or not. And,
        if you believe, uh, that Mr. Hagan had three drinks which got
        him to .15, uh, I’ve got some land I want to sell you. That ain’t
        true. No one gets a .15, uh, unless they’re drinking tall coolers of
        vodka. Three of them. And, it stretches credibility, uh, to . . .
        uh, to say that he was .15 at nine-thirty, but at eight-thirty, he
        was only .05. How does that work? And, you can have an
        expert who’s willing to say things that . . . that stretch credibility,
        uh, if they get paid enough. And, that’s what happened here
        today. Twice the legal limit to drive. I certainly wouldn’t want
        him . . . want him behind the wheel of his Mustang. We asked
        the State’s toxicologist, uh, when is intoxication dangerous.
        Well, it’s when someone gets behind the wheel or behind a
        weapon. I think that’s a great answer. I had no idea that was

Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 13 of 25
        gonna be her answer, but it’s a really good one and it applies to
        this case. It applies to reckless homicide. Approaching a pill-
        popping drug addict with a deadly weapon when you’re not in
        control of your faculties. Is that the definition of reckless
        behavior? Absolutely it is. Creating a volatile situation where
        something bad is possibly gonna happen, probably gonna
        happen. Absolutely reckless. And, [Hagan] either overestimated
        his ability to control the situation, I asked him about this. Did
        you think you could control the situation with a gun? Well,
        yeah, I did. So, he either overestimated his ability to do that or
        he had little care for whether he could control the situation at all.
        It doesn’t matter to me. I’m going out there with a gun ‘cause
        I’m in control of the situation. Reckless homicide also requires
        that the action be a substantial deviation from acceptable
        standards of conduct. Employing a weapon and . . . employing a
        weapon unnecessarily, again, despite all the other options he
        had. Calling the police, warning, telling [Kelsey] to come in. A
        whole range of things he could have done. Unloaded gun. He
        said he employed the weapon and his blood alcohol level was
        .15. With power comes responsibility. With weaponry comes
        responsibility. Call the police. And, call the police two weeks
        ago when there’s an attempted burglary going down or after the
        fact so they’re aware of what’s happened, at the very least. And,
        certainly, when he comes back to your backyard, call the police.
        Now, I want to talk briefly . . . I want . . . I want to talk about
        how self-defense applies to reckless homicide ‘cause it’s a
        different analysis. Uh, the analysis I think with murder and
        manslaughter is you want to know, when he pulls that trigger, is
        it necessary then. That’s when he’s committing a murder. That’s
        when the action turns into consequence. With reckless homicide,
        it’s a whole different time frame. When did he commit the
        crime? Well, did he commit the crime when he, uh, saw [Porter]
        and loaded the gun and walked out the door and was .15? Is that
        the reckless behavior that led to the death? Yes. So, we ask, at
        that time frame, uh, was, uh, force reasonably necessary to
        prevent serious bodily injury? Was he employing, uh, that force,
        uh, because it was necessary or because he wanted to be in

Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 14 of 25
               control? He wanted to be the big man. . . . The blood alcohol
               reading is very important to the reckless homicide charge and
               self-defense. Handling this situation this way was completely
               unnecessary. It was not necessary. It was completely
               unnecessary. Call the police. Call [Kelsey] into the house.


       Id. at 183-185.


[23]   The court instructed the jury with respect to self-defense, the right to bear arms,

       murder, voluntary manslaughter, and reckless homicide. The jury found Hagan

       guilty of reckless homicide as a level 5 felony. The court found Hagan’s

       criminal record, his history of alcohol abuse, and the fact that he committed a

       crime of violence in the presence of a child five years of age as aggravating

       factors and found no mitigating circumstances. On June 13, 2016, the court

       sentenced Hagan to four years incarceration.


                                                   Discussion

                                                         I.


[24]   The first issue is whether the prosecutor committed misconduct during closing

       argument which resulted in fundamental error. In reviewing a properly

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

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

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

       which he should not have been subjected. Cooper v. State, 854 N.E.2d 831, 835

       (Ind. 2006). Whether a prosecutor’s argument constitutes misconduct is

       measured by reference to caselaw and the Rules of Professional Conduct. Id.

       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 15 of 25
       The gravity of peril is measured by the probable persuasive effect of the

       misconduct on the jury’s decision rather than the degree of impropriety of the

       conduct. Id.


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

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

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

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

       Id.


[26]   As acknowledged by Hagan, he did not object to the prosecutor’s statements.

       To circumvent waiver, Hagan contends that the statements resulted in

       fundamental error. Where, as here, a claim of prosecutorial misconduct has not

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

       properly preserved claim. Id. More specifically, the defendant must establish

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

       fundamental error. Id. Fundamental error is an extremely narrow exception

       that allows a defendant to avoid waiver of an issue. Cooper, 854 N.E.2d at 835.

       It is error that makes “a fair trial impossible or constitute[s] clearly blatant

       violations of basic and elementary principles of due process . . . present[ing] an

       undeniable and substantial potential for harm.” Id. “This exception is available

       only in ‘egregious circumstances.’” Brown v. State, 929 N.E.2d 204, 207 (Ind.

       2010) (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)), reh’g denied.

       “Fundamental error is meant to permit appellate courts a means to correct the

       most egregious and blatant trial errors that otherwise would have been

       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 16 of 25
       procedurally barred, not to provide a second bite at the apple for defense

       counsel who ignorantly, carelessly, or strategically fail to preserve an error.”

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


[27]   Hagan contends that the prosecutor’s arguments that self-defense applied

       differently to reckless homicide than to voluntary manslaughter and murder and

       that the jury could convict him of reckless homicide even if he acted in self-

       defense were misstatements of law. He argues that self-defense should apply

       equally and consistently to both murder and reckless homicide, and that, if he

       was acting in self-defense at the time of the shooting, he was acting in self-

       defense for all three charges. He argues that the prosecutor’s statements were

       relevant to the task of evaluating self-defense and that the jury could have

       determined, as encouraged by the prosecutor, that he was justified by self-

       defense in the shooting because Porter attacked him while on his property, but

       that Hagan was reckless in the first place for displaying the gun. He states that

       the instructions were silent as to whether Hagan could be found to have acted

       in self-defense for murder and voluntary manslaughter, but not reckless

       homicide and that his claim of self-defense was strong. The State contends that

       Hagan failed to show misconduct, let alone fundamental error.


[28]   Generally, a valid claim of self-defense is legal justification for an otherwise

       criminal act. Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011) (citing

       Randolph v. State, 755 N.E.2d 572, 575 (Ind. 2001)). Ind. Code § 35-41-3-2

       governs self-defense and provides:



       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 17 of 25
        (a) In enacting this section, the general assembly finds and
        declares that it is the policy of this state to recognize the unique
        character of a citizen’s home and to ensure that a citizen feels
        secure in his or her own home against unlawful intrusion by
        another individual or a public servant. By reaffirming the long
        standing right of a citizen to protect his or her home against
        unlawful intrusion, however, the general assembly does not
        intend to diminish in any way the other robust self defense rights
        that citizens of this state have always enjoyed. Accordingly, the
        general assembly also finds and declares that it is the policy of
        this state that people have a right to defend themselves and third
        parties from physical harm and crime. The purpose of this
        section is to provide the citizens of this state with a lawful means
        of carrying out this policy.


                                             *****


        (c) A person is justified in using reasonable force against any
        other person to protect the person or a third person from what
        the person reasonably believes to be the imminent use of
        unlawful force. However, a person:


                (1) is justified in using deadly force; and


                (2) does not have a duty to retreat;


        if the person reasonably believes that that force is necessary to
        prevent serious bodily injury to the person or a third person or
        the commission of a forcible felony. No person in this state shall
        be placed in legal jeopardy of any kind whatsoever for protecting
        the person or a third person by reasonable means necessary.


        (d) A person:



Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 18 of 25
                       (1) is justified in using reasonable force, including deadly
                       force, against any other person; and


                       (2) does not have a duty to retreat;


               if the person reasonably believes that the force is necessary to
               prevent or terminate the other person’s unlawful entry of or
               attack on the person’s dwelling, curtilage, or occupied motor
               vehicle.


                                                    *****


               (g) Notwithstanding subsections (c) through (e), a person is not
               justified in using force if:


                       (1) the person is committing or is escaping after the
                       commission of a crime;


                       (2) the person provokes unlawful action by another person
                       with intent to cause bodily injury to the other person; or


                       (3) the person has entered into combat with another person
                       or is the initial aggressor unless the person withdraws from
                       the encounter and communicates to the other person the
                       intent to do so and the other person nevertheless continues
                       or threatens to continue unlawful action.


[29]   Reckless homicide is an inherently included lesser offense of murder, as the

       only element distinguishing the two is the requisite culpability. See Fisher v.

       State, 810 N.E.2d 674, 679 (Ind. 2004); Miller v. State, 720 N.E.2d 696, 702 (Ind.

       1999). The offense of reckless homicide is governed by Ind. Code § 35-42-1-5,


       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 19 of 25
       which provides: “A person who recklessly kills another human being commits

       reckless homicide, a Level 5 felony.” “A person engages in conduct ‘recklessly’

       if he engages in the conduct in plain, conscious, and unjustifiable disregard of

       harm that might result and the disregard involves a substantial deviation from

       acceptable standards of conduct.” Ind. Code § 35-41-2-2.


[30]   The court instructed the jury regarding reckless homicide as follows:


               The crime of Reckless Homicide is defined by statute as follows:
               A person recklessly kills another human being commits Reckless
               Homicide, a Level 5 Felony. Before you may convict the
               Defendant, the State must have proved each of the following
               beyond a reasonable doubt: Number 1, the Defendant; Number
               2, recklessly; Number 3, killed; Number 4, Adam W. Porter. If
               the State failed to prove each of these elements beyond a
               reasonable doubt, you must find the Defendant not guilty of
               Reckless Homicide, Level 5 Felony, charged in Count II.


       Transcript Volume III at 190.


[31]   The court instructed the jury with respect to the right to bear arms and self-

       defense as follows:

               Under the Constitution of the State of . . . uh, under the Indiana
               Constitution, uh people shall have the right to bear arms for the
               defense of themselves and the State. Under the Second
               Amendment of the United States Constitution, a well regulated
               militia, being necessary to the security of a free state, the right of
               people to keep and bear arms shall not be infringed. The
               evidence was received that Mr. Hagan owns firearms. The
               people of the State of Indiana have the constitutional rights to
               keep and bear arms for lawful purposes, which includes personal
               safety. You are not to hold anything against or convict Mr.
       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 20 of 25
        [Hagan] simply because he lawfully possessed a firearm. The
        policy . . . it is the policy of the State of Indiana to recognize the
        unique character of a citizen’s home and to ensure that the
        citizen feels secure in his or her home against unlawful intrusion
        by another. It is the policy of this State that a person have a right
        to defend themselves and third parties from physical harm and
        crime. A person is justified in using reasonable force against
        another person to protect the person or a third person from what
        the person reasonably believes to be an imminent use of unlawful
        force. However, a person: 1, is justified in using deadly force and
        does not have to . . . a duty to retreat if the person reasonably
        believes that the force is necessary to prevent serious bodily
        injury to the person or a third person or the commission of a
        forcible felony. No person in this state shall be placed in legal
        jeopardy of any kind whatsoever for protecting the person or a
        third person by reasonable means . . . by reasonable means
        necessary, excuse me. A person is justified in using reasonable
        force, including deadly force, against any other person and does
        not have the duty to retreat if the person reasonably believes that
        force is necessary to prevent or terminate the other person’s
        unlawful entry of or attack on the person’s dwelling, curtilage, or
        occupied motor vehicle. Notwithstanding the subsections stated
        above, a person is not justified in using force if the person
        provokes unlawful action by the other person with intent to . . .
        to cause bodily injury to the other person or the person has
        entered into combat with the other person or is the initial
        aggressor. The State has the burden of proving beyond a
        reasonable doubt that Mr. Hagan did not act in self-defense.


Id. at 190-191. The court also instructed:


        Arguments, statements, and remarks of counsel were intended to
        help you in understanding the evidence and applying the law, but
        were not evidence. If any argument, statement, or remark had
        no basis in the evidence, then you should disregard that
        argument, statement, or remark.

Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 21 of 25
       Id. at 193.


[32]   The record reveals that the trial court provided thorough instructions with

       respect to murder, voluntary manslaughter, reckless homicide, the right to bear

       arms, and self-defense. We also note that while the prosecutor stated that the

       analysis of self-defense was different, he did not expressly state that self-defense

       did not apply to reckless homicide. Under the circumstances, we cannot say

       that Hagan has demonstrated fundamental error.1


                                                              II.


[33]   The next issue is whether Hagan’s sentence is inappropriate in light of the

       nature of the offense and his character. Ind. Appellate Rule 7(B) provides that

       we “may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, [we find] that the sentence is inappropriate in light of

       the nature of the offense and the character of the offender.” Under this rule, the




       1
        To the extent Hagan relies upon Burnside v. State, we observe that the instruction at issue in that case stated
       as follows:

                If you find beyond a reasonable doubt that the State did prove beyond a reasonable doubt
                the existence of the four essential elements of the charge of murder, and you also find that
                the Defendant was acting in self-defense, and that he used deadly force, but you find that
                in his use of deadly force, the Defendant was acting recklessly, that is, that the Defendant
                was acting in plain, conscious, and unjustifiable disregard of harm that might result and
                that the disregard involved a substantial deviation from acceptable standards of conduct,
                you may find the Defendant guilty of reckless homicide, a Class C felony.

       858 N.E.2d 232, 240 (Ind. Ct. App. 2006). The Burnside court concluded that this instruction informed the
       jury incorrectly that self-defense is a precondition to a reckless homicide verdict. Id. However, no similar
       instruction was given to the jury here. Accordingly, we do not find Burnside instructive.

       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017                Page 22 of 25
       burden is on the defendant to persuade the appellate court that his or her

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[34]   Hagan argues that he acted in self-defense, he did not realize that the child was

       on the property, and that Porter knew he was not welcome on the property. He

       states that his only convictions were for two non-violent misdemeanors, one

       when he was nineteen years old in 1983 and another in 1996, and that he held

       the same job for fourteen years and lived with the same woman for twenty-five

       years. He also argues that he is a low risk to re-offend and is remorseful and

       asks that his sentence be revised to the advisory sentence of three years with the

       last year served on home detention.


[35]   The State argues that Hagan’s sentence is not inappropriate and asserts that

       Hagan consumed a significant amount of vodka and then chose to begin an

       armed confrontation with Porter in a way more suggestive of an attempt to

       surprise and gain an advantage than of Hagan’s self-professed claim that he

       wanted to keep the situation calm. The State also points to Hagan’s prior

       convictions involving marijuana and alcohol.


[36]   Ind. Code § 35-50-2-6 provides that “[a] person who commits a Level 5 felony

       (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term

       of between one (1) and six (6) years, with the advisory sentence being three (3)

       years.”


[37]   Our review of the nature of the offense reveals that Porter became intoxicated,

       saw Porter in his yard holding a can of beer, loaded his revolver, exited his

       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 23 of 25
       house with it, walked across the backyard and approached Porter, struggled

       with Porter after Porter charged him, fired the gun when he had no idea where

       he was firing, and killed Porter.


[38]   Our review of the character of the offender reveals that the presentence

       investigation report (“PSI”) states that Hagan is a model maker and

       manufacturing engineer and began working with his employer in July 2001. As

       a juvenile, Hagan admitted to committing attempted theft. As an adult, he was

       sentenced for being a minor in possession as a class C misdemeanor in March

       1983 and possession of marijuana as a class A misdemeanor in June 1983. In

       1996, he was sentenced for operating while intoxicated as a class A

       misdemeanor. The PSI states that Hagan’s risk assessment score using the

       Indiana risk assessment system places him in the low risk to reoffend category.


[39]   In a letter, Hagan wrote in part:


               I feel grief [and] sympathy for [Porter’s] family. The loss of a
               family member due to natural causes is painful and takes time to
               heal, the cause behind their loss of [Porter] certainly intensifies
               their sense of loss and makes the healing process take much
               longer. The matter of a trial that brought up aspects of [Porter’s]
               life they’d sooner forget has to be like having salt rubbed in their
               wounds [and] I feel very deep sympathy for them.


               I feel sadness for [Porter]. He was only 24 when this happened.
               His life was just beginning when it ended.


               I feel sadness and anger that [Porter and Bowers] were, and are,
               wrestling with personal demons and nobody is stepping up or


       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 24 of 25
               stepped up to intervene. [Porter’s] demons contributed to, if not
               ultimately led to his demise.


               I feel anger that both [Porter and Bowers] chose to ignore my
               wishes that they not return to my property, which their returning
               ultimately led to the incident. Now I will carry the burden of
               having taken his life for the remainder of my life.


               I feel confusion because there was never any intent to harm
               [Porter], just to tell him to leave. I was armed for my own [and
               Kelsey’s] protection. Why did he attack me? I’ll never know. If
               he hadn’t done that he’d have just been told to, leave and
               allowed to safely leave the property.


               I also feel anger toward the judicial system of Whitley County for
               failing to help [Porter] when it had several chances.


       Appellant’s Appendix Volume III at 17.


[40]   After due consideration, we conclude that Hagan has not sustained his burden

       of establishing that his sentence of four years is inappropriate in light of the

       nature of the offense and his character.


                                                   Conclusion

[41]   For the foregoing reasons, we affirm Hagan’s conviction and sentence.


[42]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 92A05-1607-CR-1587 | May 26, 2017   Page 25 of 25
