MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Mar 22 2017, 8:50 am

this Memorandum Decision shall not be                                       CLERK
regarded as precedent or cited before any                               Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gary L. Griner                                           Curtis T. Hill, Jr.
Mishawaka, Indiana                                       Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Jurell Jones,                                    March 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1604-CR-713
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff.                                      Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1507-MR-8



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017            Page 1 of 21
[1]   Michael Jurell Jones appeals his conviction for murder, a felony. Jones raises

      four issues, which we revise and restate as:


            I.    Whether the court abused its discretion when it admitted certain
                  testimony of a jail deputy;

           II.    Whether the evidence is sufficient to disprove Jones’s claim of self-
                  defense;

          III.    Whether the prosecutor committed misconduct resulting in
                  fundamental error; and

          IV.     Whether the court erred when it barred Jones from presenting a visual
                  aid during closing argument.

      We affirm.


                                      Facts and Procedural History

[2]   On July 10, 2015, Jones and his girlfriend Tamarra Townsend were out with his

      friend Sarah Coleman, her boyfriend Eddy Hill, and other friends drinking at

      Kelly’s bar in South Bend, Indiana. Jones arrived at Kelly’s bar at “about

      between 4:30 and maybe 5:30” and started drinking. Transcript at 399.

      Around 1:00 a.m. on July 11, 2015, they moved to Antonio’s bar. Jones drove

      separately and stopped at his house to shower and change clothes before

      meeting the group at Antonio’s. At Antonio’s, Hill saw Coleman speaking

      with another man, which made him angry, and Hill and Coleman argued. Hill

      called Coleman names and yelled at her but did not threaten to hurt her and did

      not become physical with her. Jones told them to calm down. After last call, as

      the group walked out of the bar together, Hill called Coleman a “disrespectful

      a-- b----.” Id. at 344. While walking to his car, Jones said “Sarah, baby, I love


      Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 2 of 21
      you, but you need to get rid of that . . . Hatin a-- n----.” Id. at 335. Hill then

      walked towards Jones and yelled “That ho a-- n---- lucky I ain’t got my strap.

      I’ll shoot the s--- out of him.” Id. at 337. Hill was unarmed that night.

      Coleman stood in front of Hill and stopped him and he calmed down and

      looked her in the eyes as Jones walked to his car. Jones opened his car door,

      “grabbed the gun from the door . . . and . . . started firing.” Id. at 415. While

      Hill was still looking at Coleman, she heard a gunshot, and turned to see Jones

      holding a gun and not in “close range.” Id. at 252. When Jones stopped

      shooting, he left.


[3]   Police arrived on the scene and found Hill lying on the ground in a pool of

      blood. They collected shell casings and bullet fragments from the crime scene,

      which collectively indicated that only one gun had been fired. The shells were

      all stamped “Hornady 40 Smith and Wesson.” Id. at 221. Police recovered a

      box of Hornady ammunition from Jones’s apartment that was consistent with

      the shell casings and bullet fragments from the scene. Police did not recover a

      weapon.


[4]   Hill died from multiple gunshot wounds, including one to the right side of his

      face, one to his left shoulder, one to his right lower abdomen, and one to each

      leg. No powder burns or stippling was found around any of the five wounds,

      indicating that the bullets were fired from a distance greater than a couple of

      feet. The trajectory of the fourth and fifth wounds were consistent with Hill

      being shot while lying on the ground. After fleeing the crime scene, Jones

      drove to Atlanta, Georgia and while driving threw the weapon used to shoot

      Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 3 of 21
      Hill, a loaded .40 caliber semi-automatic pistol, out the window. Jones later

      returned to South Bend and turned himself in to the police.


[5]   On July 13, 2015, the State charged Jones with murder, a felony. Jones raised

      the defense of self-defense. The court commenced a jury trial on January 11,

      2016. During jury selection, the prosecutor questioned prospective jurors about

      their understanding of the presumption of innocence and stated:


              And when we’re talking about the legal concepts that the judge
              brought into play the beyond a reasonable doubt burden of proof,
              as well as the presumption of innocence, it’s said that the
              presumption of innocence is to be a safe guard for the innocent,
              but not a shield for the guilty . . . .


      Id. at 70. Jones did not object.


[6]   During the trial, Officer Alex Arendt of the St. Joseph County Metro Homicide

      Unit testified that he spoke with Jones during the investigation and that Jones

      had said “it was a bad situation that escalated to something stupid . . . .” Id. at

      385.


[7]   Prior to the State calling its first witness, booking officer Deputy Matt Sterling

      of the St. Joseph County Police Department, the court held a sidebar

      conference at which Jones objected to Deputy Sterling’s testimony on the basis

      that, before speaking with him, Jones was not properly Mirandized and had

      “indicated that he didn’t wish to speak any further until he had an attorney.”

      Id. at 364. The court then took a break to research case law on statements made

      at booking. When the proceedings continued, the court read into the record a

      Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 4 of 21
      passage from Loving v. State, 647 N.E.2d 1123 (Ind. 1995), and overruled

      Jones’s objection, explaining, “these appear to be routine booking questions

      requesting information at the jail which would be responsible for someone’s

      medical condition while in the jail would need to know.” Transcript at 369.

      Deputy Sterling testified that during booking he asked Jones a series of

      administrative questions, including medical questions, from a checklist.

      Deputy Sterling asked “do you or have you suffered from seizures, blackouts,

      fainting spells or dizzy spells?” Id. at 373. Deputy Sterling stated that Jones

      answered in the affirmative, that he followed up by asking what triggers the

      blackouts, and that Jones answered, “from extreme anger, like the other night,

      and here I am.” Id. at 374.


[8]   During direct examination, Jones’s counsel asked Jones if he had had

      “situations where you’ve become overly angry and done something out of

      control,” and Jones answered: “No. This was a first.” Id. at 398. Jones also

      testified that when he asked Hill what was wrong, Hill would not reply, and

      that “it was like [Hill] blew if [sic] off . . . .” Id. at 408. When asked about the

      moments leading up to the shooting, Jones stated that after he opened his car

      door, Coleman grabbed Hill and said “no, don’t . . . let’s go,” that Hill said,

      “I’ll shoot that B n-----. And that was that.” Id. at 411. Jones testified that he

      panicked, started firing, and did not know whether or not Hill had a gun. He

      also stated that he did not have a license to carry a handgun and that the gun

      was in his car because he had started shooting at a gun range.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 5 of 21
[9]    During closing, the prosecutor asked the jury to find that the evidence failed to

       support Jones’s self-defense claim, stating:

               [C]ourts have found in Indiana that a mere verbal threat does not
               raise the concept of self-defense. The person has to do something
               to make your belief -- This all goes back to the reasonableness of
               the belief. To make your belief reasonable that you have to use
               deadly force. They’ve got to do something more than just say
               something. He said some words. I said some words. That was
               that. What else did the defendant say? . . . What else did he say?
               He said, I was walking to my car. He made a threat. That was
               it. Well, there you go.


       Id. at 452. Jones did not object.


[10]   Jones’s counsel displayed a bar graph to the jury purporting to show various

       degrees of guilt and quantifying proof beyond a reasonable doubt. The State

       objected. The court sustained the State’s objection, finding that the graph

       depicted proof beyond a reasonable doubt as measuring at “about 95 percent.”

       Id. at 473. During rebuttal, and in response to other slides presented by Jones,

       the prosecutor stated:


               And I don’t know if you noticed how the defense attorney
               worded in some of those slides. The standard is beyond a
               reasonable doubt. It doesn’t get higher if you sneak in the word,
               all, there. Beyond all reasonable doubt. That doesn’t change the
               standard. That doesn’t change the law. The law is beyond a
               reasonable doubt . . . Beyond a reasonable doubt. That “A” is
               for a, not all.


       Id. at 477. Jones did not object.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 6 of 21
[11]   The court instructed the jury on the State’s burden and Indiana law regarding

       proof beyond a reasonable doubt, the presumption of innocence, and self-

       defense. The jury found Jones guilty as charged and the court sentenced him to

       fifty-five years in the Department of Correction.


                                                   Discussion

                                                         I.


[12]   The first issue is whether the court abused its discretion when it admitted

       certain testimony of Deputy Sterling. The admission and exclusion of evidence

       falls within the sound discretion of the trial court, and we review the admission

       of evidence only for abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272

       (Ind. 2002). An abuse of discretion occurs “where the decision is clearly

       against the logic and effect of the facts and circumstances.” Smith v. State, 754

       N.E.2d 502, 504 (Ind. 2001). “Errors in the admission or exclusion of evidence

       are to be disregarded as harmless error unless they affect the substantial rights of

       a party.” Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995) (citations omitted).


[13]   Jones asserts that the trial court violated his Miranda rights and abused its

       discretion when it admitted Officer Sterling’s question about what triggers his

       blackouts and his response that he blacks out “from extreme anger, like the

       other night, and here I am,” into evidence. Transcript at 373. He claims that

       Deputy Sterling’s question went beyond a routine booking question and

       constituted interrogation for the purposes of Miranda. Jones attempts to support

       his claims by pointing out that he was not processed differently after providing

       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 7 of 21
       his response and that Deputy Sterling informed detectives of his response. The

       State maintains that the question was a routine booking question and that, to

       the extent Jones’s answer may have exceeded the question, his statement was

       voluntary.


[14]   The Fifth Amendment to the United States Constitution, made applicable to

       the States via the Fourteenth Amendment, provides: “No person shall . . . be

       compelled in any criminal case to be a witness against himself, nor be deprived

       of life, liberty, or property, without due process of law[.]” U.S. CONST. amend.

       V. A person who has been taken into custody or otherwise deprived of his

       freedom of action in any significant way must, before being subjected to

       interrogation by law enforcement officers, be advised of his rights to remain

       silent and to the presence of an attorney and be warned that any statement he

       makes may be used as evidence against him. Loving, 647 N.E.2d at 1125 (citing

       Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966), reh’g denied).

       Statements elicited in violation of this rule are generally inadmissible in a

       criminal trial. Id. “[T]he term ‘interrogation’ under Miranda refers not only to

       express questioning, but also to any words or actions on the part of the police

       (other than those normally attendant to arrest and custody) that the police

       should know are reasonably likely to elicit an incriminating response from the

       suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1690 (1980).

       Not every question asked by an officer amounts to interrogation. Wissman v.

       State, 540 N.E.2d 1209, 1212 (Ind. 1989). “Volunteered statements of any kind




       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 8 of 21
       are not barred by the Fifth Amendment . . . ” Innis, 446 U.S. at 300 (quoting

       Miranda, 384 U.S. at 478, 86 S. Ct. at 1630).


[15]   The State has a “duty to take reasonable precautions to preserve the life, health,

       and safety” of inmates. Reed v. State, 479 N.E.2d 1248, 1254 (Ind. 1985). See

       Sauders v. Steuben, 693 N.E.2d 16, 18 (Ind. 1998); Cole v. Ind. Dep’t. of Corr., 616

       N.E.2d 44, 45-46 (Ind. Ct. App. 1993), reh’g denied, trans. denied. “[R]outine

       administrative questions such as name, address, height, and weight, regardless

       whether considered within a ‘routine booking exception’ or whether deemed

       ‘not testimonial,’ are removed from the requirements of Miranda.” Loving, 647

       N.E.2d at 1126 (quoting Pennsylvania v. Muniz, 496 U.S. 582, 601-602, 608, 110

       S. Ct. 2638, 2650, 2654 (1990)).


[16]   Deputy Sterling testified that he followed St. Joseph County Jail’s practice for

       booking an inmate including asking medical questions to determine placement

       within the facility. He testified that medical questions are asked for safety

       reasons and that an inmate’s medical status is used to determine where he is to

       be housed and whether he is assigned to a top or bottom bunk bed. The

       question of whether Jones “suffered from seizures, blackouts, fainting spells or

       dizzy spells” and the follow-up question asking for the cause of the medical

       condition were not designed to, nor were they reasonably likely to elicit, an

       incriminating response. Transcript at 373.


[17]   Therefore, when Deputy Sterling asked Jones the medical questions, no

       Miranda violation occurred. See Murrell v. State, 747 N.E.2d 567, 574 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 9 of 21
       App. 2001) (holding that the request for identifying marks was not designed to

       elicit an incriminating response, the question was routinely asked during

       booking procedures, and a police officer may ask such routine identification

       information without giving Miranda warnings), reh’g denied, trans. denied; State v.

       Brown, 697 S.E.2d 622, 627 (S.C. Ct. App. 2010) (holding that a question

       regarding current physical conditions was a routine booking question and

       affirming the trial court’s admission of testimony regarding defendant’s

       answer), reh’g denied, cert. denied; State v. Moeller, 211 P.3d 364, 367 (Or. Ct.

       App. 2009) (“A question about whether a detainee has a medical condition

       serves a standard administrative purpose, that is, to provide the police with the

       information necessary to attend to the detainee’s medical needs while in police

       custody. Such a question is similar to the questions soliciting ‘routine

       identifying information necessary for booking’ that we have previously held are

       not subject to the requirement to give Miranda warnings.”). Moreover, to the

       extent that Jones’s response exceeded the scope of Deputy Sterling’s follow-up

       question, his statement was voluntary. See Miranda, 384 U.S. at 478, 86 S.Ct. at

       1630 (“Volunteered statements of any kind are not barred by the Fifth

       Amendment . . . .”) Accordingly, the trial court did not abuse its discretion in

       admitting testimony of Jones’s responses into evidence.


                                                         II.


[18]   The next issue is whether the evidence is sufficient to disprove Jones’s claim of

       self-defense. When reviewing claims of insufficiency of the evidence, we do not

       reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656

       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 10 of 21
       N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and

       the reasonable inferences therefrom that support the verdict. Id. We will affirm

       the conviction if there exists evidence of probative value from which a

       reasonable trier of fact could find the defendant guilty beyond a reasonable

       doubt. Id. The uncorroborated testimony of one witness can be sufficient to

       sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-1073 (Ind. 1991).


[19]   The offense of murder is governed by Ind. Code § 35-42-1-1, which provides, in

       part, that a person who knowingly or intentionally kills another human being

       commits murder, a felony. Self-defense is governed by Ind. Code § 35-41-3-2.

       A valid claim of self-defense is legal justification for an otherwise criminal act.

       Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). In order to prevail on a self-

       defense claim, a defendant must demonstrate he was in a place he had a right to

       be; did not provoke, instigate, or participate willingly in the violence; and had a

       reasonable fear of death or great bodily harm. Id. The amount of force a

       person may use to protect himself depends on the urgency of the situation.

       Harmon v. State, 849 N.E.2d 726, 730-731 (Ind. Ct. App. 2006). However,

       “[w]hen a person uses more force than is reasonably necessary under the

       circumstances, the right of self-defense is extinguished.” Id. at 731. Firing

       multiple shots undercuts a claim of self-defense. Randolph v. State, 755 N.E.2d

       572, 576 (Ind. 2001); Mayes v. State, 744 N.E.2d 390, 395 n.2 (Ind. 2001). See

       also Birdsong v. State, 685 N.E.2d 42, 46 (Ind. 1997) (noting that deadly force

       was unreasonable where victims were shot several times after being

       incapacitated).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 11 of 21
[20]   When a claim of self-defense is raised and finds support in the evidence, the

       State has the burden of negating at least one of the necessary elements. Wilson,

       770 N.E.2d at 800. If a defendant is convicted despite his claim of self-defense,

       we will reverse only if no reasonable person could say that self-defense was

       negated by the State beyond a reasonable doubt. Id. at 800-801. The standard

       of review for a challenge to the sufficiency of the evidence to rebut a claim of

       self-defense is the same as the standard for any sufficiency of the evidence

       claim. Id. at 801. We neither reweigh the evidence nor judge the credibility of

       witnesses. Id. If there is sufficient evidence of probative value to support the

       conclusion of the trier of fact, then the verdict will not be disturbed. Id. A

       mutual combatant, whether or not the initial aggressor, must declare an

       armistice before he or she may claim self-defense. Id.


[21]   Jones asserts that the State failed to disprove self-defense, that he reasonably

       believed he was in danger of great bodily harm, and that it was reasonable for

       him to react with deadly force when Hill began to approach him, threatened

       him, and yelled about shooting him. The State maintains that sufficient

       evidence was presented to rebut Jones’s self-defense claim. The State also

       asserts that Jones’s use of deadly force was disproportionate under the

       circumstances where he shot Hill five times after reaching his car, two of Hill’s

       wounds were consistent with the shots being fired while Hill was laying on the

       ground, and Hill was unarmed.


[22]   The record reveals that Jones and Hill exchanged words, that Hill was

       unarmed, that Hill had started walking towards Jones but had stopped, calmed

       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 12 of 21
       down, and his eyes were focused on Coleman. Jones walked away from Hill,

       reached his car, opened the door, grabbed the gun from the door, and started

       shooting. One bullet entered Hill’s face, and at least two bullets were consistent

       with Hill having been shot after he had already fallen to the ground. Further,

       Jones indicated that he had become “overly angry” and that he did “something

       out of control.” Transcript at 398.


[23]   The jury heard the testimony, including the testimony of five law enforcement

       officers, a forensic pathologist, a crime laboratory firearm examiner, Coleman,

       Townsend, and Jones, and it was able to review the autopsy report and the

       photographic evidence of Hill’s body, including the position of the bullet

       wounds. The jury was able to consider the extent to which the testimony of

       each witness was either consistent or inconsistent with the testimony of the

       other witnesses and the other evidence and was able to assess the demeanor and

       credibility of the witnesses and weigh their testimony. The jury also heard

       extensive testimony and arguments regarding the evidence related to Jones’s

       claim of self-defense from both Jones and the State.


[24]   Based upon the evidence, the jury could infer that Jones participated willingly

       in the violence, that he did not have a reasonable fear of death or great bodily

       harm, or that the amount of force he used was unreasonable under the

       circumstances. We conclude that the State presented sufficient evidence to

       negate beyond a reasonable doubt at least one of the elements of Jones’s self-

       defense claim. See Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000) (affirming

       the defendant’s convictions for murder and attempted murder, noting the

       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 13 of 21
       defendant claimed that he acted in self-defense and testified that one of the

       victims threatened him with harm if he did not pay money and the other victim

       reached for him and that at that point he produced a handgun and fired,

       observing that the trial court gave the jury a self-defense instruction and that the

       jury nonetheless convicted the defendant of murder, declining to reweigh the

       evidence, and holding that the State presented sufficient evidence to negate the

       defendant’s claim of self-defense); Milam v. State, 719 N.E.2d 1208, 1210-1211

       (Ind. 1999) (affirming the defendant’s conviction for murder, observing that the

       defendant had stated that she shot the victim when he threatened to hit her, the

       victim was shot four times, and there was no evidence of a struggle, and

       holding a reasonable trier of fact could have found the defendant did not have a

       reasonable fear of death or great bodily harm and that the evidence was

       sufficient to rebut the defendant’s claim of self-defense).


                                                        III.


[25]   The next issue is whether the prosecutor committed misconduct resulting 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 statement constitutes misconduct is measured by reference to case

       law and the Rules of Professional Conduct. Id. The gravity of peril is measured

       by the probable persuasive effect of the misconduct on the jury’s decision rather

       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 14 of 21
       than the degree of impropriety of the conduct. Id. 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]   We note that Jones did not object to the prosecutor’s voir dire and made no

       objection during the prosecutor’s closing arguments. 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. Id. It is an 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.

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


[27]   Jones argues that prosecutorial misconduct diminished his fundamental rights

       and deprived him of a fair trial. The State maintains that the prosecutor’s

       statements were appropriate and that Jones was not denied a fair trial. Jones

       points to three statements. First, during voir dire, while discussing the

       presumption of innocence with prospective jurors, the prosecutor stated, “it’s

       said that the presumption of innocence is to be a safe guard for the innocent,

       but not a shield for the guilty . . . .” Transcript at 70. Second, during the

       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 15 of 21
       State’s closing argument, the prosecutor said, “courts have found in Indiana

       that a mere verbal threat does not raise the concept of self-defense.” Id. at 452.

       Third, during the State’s closing rebuttal argument, the prosecutor said:


               The standard is beyond a reasonable doubt. It doesn’t get higher
               if you sneak in the word, all, there. Beyond all reasonable doubt.
               That doesn’t change the standard. That doesn’t change the law.
               The law is beyond a reasonable doubt. In shorthand, it’s
               B.A.R.D. Beyond a reasonable doubt. That “A” is for a, not all.

       Id. at 477.


[28]   As to the prosecutor’s statement, “courts have found in Indiana that a mere

       verbal threat does not raise the concept of self-defense,” we find that there was

       no misconduct. Id. at 452. See Smith v. State, 506 N.E.2d 31, 34 (Ind. 1987)

       (holding that mere threats are not sufficient to justify the use of deadly force

       under a claim of self-defense and affirming the trial court’s instruction stating

       “A defendant, who anticipates that the victim intends to kill him or cause him

       serious bodily injury, if and when the opportunity presents itself, is not justified

       in using deadly force against the victim until the victim performs some act

       indicating that the attack is imminent”).


[29]   With respect to the prosecutor’s statement, “Beyond a reasonable doubt. That

       ‘A’ is for a, not all,” we find that there was no misconduct. Transcript at 477.

       The court twice instructed the jury that a defendant’s guilt must be proved

       “beyond a reasonable doubt . . . [but] [t]he state does not have to overcome

       every possible doubt.” Id. at 180-181, 484-485. During closing, Jones’s counsel

       stated, “the state has to convince you beyond a reasonable doubt that he did not

       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 16 of 21
       act in self-defense.” Id. at 466 (emphasis added). We are unpersuaded by

       Jones’s claim that the prosecutor’s statements to the jury that the State did not

       have to prove the elements of murder beyond all reasonable doubt were

       improper.


[30]   As to the statement, “the presumption of innocence is to be a safe guard for the

       innocent, but not a shield for the guilty,” we conclude that, to the extent the

       prosecutor’s comments diluted the presumption of innocence, his statement was

       improper. Id. at 70. “The right to a fair trial is a fundamental liberty secured by

       the Fourteenth Amendment. The presumption of innocence is a basic

       component of a fair trial under our system of criminal justice.” Timmons v.

       State, 500 N.E.2d 1212, 1214 (Ind. 1986) (citing Bell v. Wolfish, 441 U.S. 520,

       533, 99 S. Ct. 1861, 1870 (1979); Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct.

       1691, 1692 (1976), reh’g denied), reh’g denied. “[C]ourts must guard against

       dilution of the principle that guilt is to be established by probative evidence and

       beyond a reasonable doubt.” Timmons, 500 N.E.2d at 1214.


[31]   However, Jones has failed to show that the prosecutor’s statements created “an

       undeniable and substantial potential for harm.” Cooper, 854 N.E.2d at 835.

       The court instructed the jury that the attorneys’ opening and final statements

       were not evidence and twice instructed the jury on the presumption of

       innocence, the burden of proof beyond a reasonable doubt, and self-defense.

       Specifically, the court stated:


               [Y]ou must presume that the defendant is innocent and must
               continue to do so throughout the trial, unless the state proves

       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 17 of 21
                 every essential element of the crime with which the defendant is
                 charged beyond a reasonable doubt. . . . You should fit the
                 evidence to the presumption that the defendant is innocent, if
                 you can reasonably do so. . . . The burden is upon the state to
                 prove beyond a reasonable doubt that the defendant is guilty of
                 the crime charged. . . . The state does not have to overcome
                 every possible doubt. The state must prove each element of the
                 crime by evidence that firmly convinces each of you and leaves
                 no reasonable doubt.

[32]   Transcript at 180-181, 483-485. We presume that the jury followed the law

       contained within the trial court’s instructions and applied the law to the

       evidence before it. Fox v. State, 997 N.E.2d 384, 390 (Ind. Ct. App. 2013), trans.

       denied. After reviewing the record, we conclude that the error here did not

       amount to fundamental error. See Timmons, 500 N.E.2d at 1214 (finding that

       prosecutor’s comments characterizing the presumption of innocence as “merely

       procedural,” amounted to misconduct but did not deprive defendant of a fair

       trial).


                                                        IV.


[33]   The next issue is whether the court erred when it prevented Jones from

       presenting a visual aid during closing argument. Experiments and

       demonstrations may be permitted during the trial if they will aid the court and

       jury. Peterson v. State, 514 N.E.2d 265, 270 (Ind. 1987). “The conduct of

       experiments and demonstrations in the courtroom can however pose peril to the

       fairness of a trial.” Id. In deciding whether to permit a demonstration, a court

       should consider such factors as the ability to make a faithful record of the

       drama for appeal purposes, the degree of accuracy in the recreation of the actual


       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 18 of 21
       prior conditions, the complexity and duration of the procedures, other available

       means for proving the same facts, and the risk that conducting such a procedure

       may pose to the fairness of the trial. Id. See also Miller v. State, 916 N.E.2d 193,

       195-196 (Ind. Ct. App. 2009), trans. denied. A trial court’s decision on the

       admissibility of a courtroom demonstration will be reversed only for an abuse

       of discretion. Camm v. State, 908 N.E.2d 215, 236 (Ind. 2009), reh’g denied.


[34]   Jones asserts that the trial court abused its discretion by prohibiting him from

       using a demonstrative aid to explain the concept of proof beyond a reasonable

       doubt during his closing argument. The demonstrative aid was a slide

       purporting to measure various levels of doubt and beyond a reasonable doubt. 1

       Jones claims that he was prevented from presenting a complete defense, in

       violation of the Due Process Clause of the Fourteenth Amendment, when he

       was not allowed to use the slide. Jones’s counsel argued that the bar graph did

       not misstate the law. The State claims that the court properly sustained the

       objection, acted within its discretion in finding the slide misleading to the jury,

       and correctly instructed the jury on the State’s burdens and reasonable doubt.


[35]   In weighing the factors used to determine whether to permit a demonstrative

       aid, we note that the slide was not accurate because it used a bar graph to

       illustrate “guilty beyond a reasonable doubt.” List of Witness and Exhibits at

       77 (capitalization omitted). Proof beyond a reasonable doubt is “quantitatively



       1
        The court described the slide for the record when it sustained the State’s objection. A black and white copy
       appears on the final page of Jones’s Exhibits but is not numbered or marked as an exhibit.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017            Page 19 of 21
       imprecise.” United States v. Smith, 267 F.3d 1154, 1161 (D.C. Cir. 2001) (citing

       In re Winship, 397 U.S. 358, 370, 90 S. Ct. 1068, 1076 (1970) (Harlan, J.,

       concurring)). Furthermore, there were other means available and used for

       aiding the jury in understanding the burden of proof, including the jury

       instructions given by the court. Specifically, the court stated:


               The burden is upon the state to prove beyond a reasonable doubt
               that the defendant is guilty of the crime charged. It is a strict and
               heavy burden. The evidence must overcome any reasonable
               doubt concerning the defendant’s guilt, but it does not mean that
               a defendant’s guilt must be proved beyond all possible doubt. A
               reasonable doubt is a fair, actual and logical doubt based upon
               reason and common sense. A reasonable doubt may arise either
               from the evidence or from a lack of evidence. Reasonable doubt
               exists when you are not firmly convinced of the defendant’s guilt,
               after you have weighed and considered all the evidence. A
               defendant must not be convicted on suspicion or speculation. It
               is not enough for the state to show that the defendant is probably
               guilty. On the other hand, there are very few things in this world
               that we know with absolute certainty. The state does not have to
               overcome every possible doubt. The state must prove each
               element of the crime by evidence that firmly convinces each of
               you and leaves no reasonable doubt. The proof must be so
               convincing that you can rely and act upon it in this matter of the
               highest importance. If you find there’s a reasonable doubt that
               the defendant is guilty of the crime, you must give the defendant
               the benefit of that doubt and find the defendant not guilty of the
               crime under consideration.

       Transcript 180-181, 484-485. Accordingly, the court did not abuse its discretion

       in excluding the demonstrative slide.


                                                   Conclusion

[36]   For the foregoing reasons, we affirm Jones’s conviction for murder.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 20 of 21
[37]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1604-CR-713 | March 22, 2017   Page 21 of 21
