Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
                                                             FILED
                                                          May 24 2012, 9:37 am
collateral estoppel, or the law of the
case.                                                             CLERK
                                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MATTHEW D. ANGLEMEYER                           GREGORY F. ZOELLER
Marion County Public Defender                   Attorney General of Indiana
Indianapolis, Indiana
                                                AARON J. SPOLARICH
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DARRYL ANDERSON,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 49A02-1107-CR-601
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Patricia J. Gifford, Senior Judge
                           Cause No. 49G22-1006-FB-43806


                                       May 24, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
                                    STATEMENT OF THE CASE

          Darryl Anderson appeals his convictions for rape as a class B felony;1 criminal

confinement as a class C felony;2 and battery as a class A misdemeanor.3

          We affirm.

                                               ISSUE

                             Whether the prosecutor committed misconduct.

                                               FACTS

          A.M., an adult with the mental and learning capacity of a sixth-grader, met

Anderson in late 2009, when she lived in the city of Anderson. During the next four or

five months, A.M. “hung out” with Anderson and occasionally had sex with him. (Tr.

40). In the spring of 2010, A.M. moved into her sister’s Indianapolis home. Soon

thereafter, A.M. ended her relationship with Anderson and began dating someone else.

          On the night of May 10, 2010, A.M. was visiting a friend on the east side of

Indianapolis when she telephoned Anderson to ask for a ride to her sister’s house on the

west side. After picking up A.M., Anderson began asking her about her boyfriend and

whether she had sex with him. When A.M. answered in the affirmative, Anderson struck

A.M.’s head. He continued to hit her, causing A.M. pain. Anderson told A.M. that she

was “now in his territory” and that she was “his bitch[.]” (Tr. 44).

1
    Ind. Code § 35-42-4-1.
2
    I.C. § 35-42-3-3.
3
    I.C. § 35-42-2-1.

                                                  2
      Instead of taking A.M. to her sister’s house, Anderson stopped at an off-track

betting (“OTB”) venue to pick up a friend, Michael Williams, and take him to work.

Although Anderson left A.M. alone in the vehicle while he went inside the OTB, A.M.

did not leave because Anderson “had already been hitting [her],” and she believed he

“would have chased [her] and try [sic] to hit [her] some more.” (Tr. 45).

      Anderson told Williams that “he had some stuff to do on the west side in the

morning, he didn’t feel like going back east” and asked if he could “just chill” at

Williams’s apartment until the morning while Williams was at work. (Tr. 97). Anderson

offered to pick up Williams when his shift ended at 7:00 a.m. Williams agreed and gave

Anderson the key to his apartment.

      Anderson continued driving A.M. around after dropping off Williams at work. At

one point, he stopped at a liquor store and bought some beer. A.M. again stayed in the

car because she did not know where she was, and it was dark. From the liquor store,

Anderson drove to an acquaintance’s house. After arguing with A.M., Anderson told her

to get out of the car, which she did. Anderson then threw a beer bottle at A.M. but

missed.

      After A.M. left the vehicle, Anderson telephoned A.M.’s sister, Marquirite

Brooks, and told her that A.M. had “tripped when she got out of the car and started

walking . . . .” (Tr. 107). By this time, A.M. had walked to a gas station and also

telephoned Brooks. A.M., unaware that Anderson was on hold with Brooks, asked

Brooks to pick her up and gave Brooks her location. Brooks “clicked over and told

                                            3
[Anderson], [A.M.] [was] at the Speedway, go get her.” (Tr. 109). Brooks then told

A.M., “okay, he’s—he [sic] about to come and get you.” (Tr. 50). A.M. thought Brooks

meant Brooks’s boyfriend would be picking her up.

      Before hanging up, Anderson told Brooks they would be at the house in forty-five

minutes. Knowing it would not take so long to get to her house, Brooks tried calling

Anderson back several times, but the telephone calls kept going to voice mail.

      By the time Anderson arrived at the gas station, it was raining. Tired, wet, and

believing that Anderson “had calmed down and everything was okay and he was just

gonna [sic] take [her] to [her] sister’s house,” A.M. got in the car. (Tr. 50). Instead,

Anderson drove to Williams’s apartment complex.

      Before he got out of the car, Anderson kept asking, “you thought I was gonna [sic]

pick you up, but you didn’t have to give me nothing?” (Tr. 51). Anderson then went to

the passenger’s side, grabbed A.M.’s arm, and pulled her out of the car. (Tr. 51).

Anderson then threw A.M.’s bag into a dumpster. As A.M. tried to retrieve her bag,

Anderson started “tussling” with her before pulling A.M. by the hair and dragging her

into the apartment building. (Tr. 52). When A.M. protested, Anderson threatened to

punch her. He then unlocked the door to Williams’s apartment and forced A.M. inside.

      When A.M. tried to escape, Anderson pushed her down to the floor. He then

“stomped on [her] back” and pinned her neck down with his knee. (Tr. 54). A.M.

struggled with Anderson, who pushed A.M. onto a sofa. Anderson then “unzipped his



                                            4
pants and he started wiggling his-self [sic] in [A.M.’s] face.” (Tr. 54). Anderson next

made A.M. undress and take a shower.

       When A.M. finished showering, she returned to the living room, where Anderson

had put her clothes. As she started getting dressed, Anderson grabbed A.M. by the pants

and pushed her down on the sofa. A.M. pleaded to Anderson to stop and let her go to her

sister’s house, but Anderson kept telling her that she was “[a]bout to give [him] some.”

(Tr. 56). Anderson then hit A.M. and pinned her down. Despite A.M.’s protests,

Anderson “put his private part inside [her] vagina.” (Tr. 57).

       After Anderson ejaculated, he “got off” of A.M. and let her get dressed. (Tr. 57).

Anderson then drove A.M. to her sister’s house. Before A.M. got out of the vehicle,

Anderson threatened that he would “find” A.M. if she called the police. (Tr. 58).

       After dropping off A.M., Anderson returned to Williams’s work at approximately

4:00 a.m. Anderson gave Williams his key back and “said he’d just take care of his

business later on in the day.” (Tr. 98). Williams did not see Anderson again that day.

       Later that morning, after Brooks noticed several bruises on A.M., A.M. informed

her that Anderson had “beat [her] up.” (Tr. 59). She did not tell her sister that Anderson

had raped her because she did not want to upset her sister. (Tr. 59). A.M.’s sister

telephoned the police, who had A.M. transported to a hospital.        A.M. told hospital

personnel that Anderson had raped her.

       A physical examination conducted by a forensic nurse examiner revealed several

bruises to A.M.’s head and body in addition to burst blood vessels in her eye, an injury

                                             5
commonly caused by pressure to the neck. A.M. also suffered a laceration to her vagina,

which was “consistent with a sexual assault[.]” (Tr. 152).

       Using a Sexual Assault Evidence Collection Kit, the forensic nurse swabbed

A.M.’s vagina for evidence.       She also collected A.M.’s underwear.        Anderson

subsequently stipulated that tests revealed seminal material on the vaginal swab and

A.M.’s underwear and that, to a reasonable degree of scientific certainty, he was the

source of DNA extracted from both samples.

       Detective Dale Horstman, a criminal investigator with the Speedway Police

Department, interviewed A.M. Detective Horstman observed several injuries, including

bruises to A.M.’s head and body and burst blood vessels in A.M.’s eye. Although A.M.

did not know the address, Detective Horstman was able to locate Williams’s apartment

based on a description given by A.M. With Williams’s cooperation, Detective Horstman

confirmed that the lay-out of the apartment was as A.M. had described it.

       On June 8, 2010, the State charged Anderson with Count 1, rape as a class B

felony; Count 2, criminal confinement as a class C felony; Count 3, criminal confinement

as a class C felony; Count 4, battery, as a class A misdemeanor; Count 5, battery, as a

class A misdemeanor; and Count 6, battery, as a class A misdemeanor. The trial court

commenced a two-day jury trial on June 6, 2011, after which the jury found Anderson

guilty as charged.




                                            6
      For purposes of sentencing, the trial court merged Count 3 with Count 1 and

Counts 5 and 6 with Count 4. The trial court then sentenced Anderson to concurrent

sentences of fifteen years on Count 1, eight years on Count 2, and one year on Count 4.

      Additional facts will be provided as necessary.

                                       DECISION

      Anderson asserts that the prosecutor committed misconduct.

      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 or she would not have
      been subjected. Whether a prosecutor’s argument constitutes misconduct is
      measured by reference to case law and the Rules of Professional Conduct.
      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.

Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006) (internal citations omitted).

      Here, Anderson contends that the State “threw an evidentiary harpoon,” by

eliciting certain testimony from Williams, “and then used the harpoon in its closing

statement.” Anderson’s Br. at 9. “An evidentiary harpoon involves the deliberate use of

improper evidence to prejudice the defendant in the eyes of the jury.” Williams v. State,

512 N.E.2d 1087, 1090 (Ind. 1987).

      In support of his contention that the prosecutor committed misconduct, Anderson

cites the State’s direct examination of Williams, during which Williams testified as

follows:



                                            7
                Q      Did Detective Horstman end up showing up at your
                       apartment?

                A      Yes, ma’am.

                ....

                Q      At that point, when Detective Horstman shows up at your
                       house, do you learn that a sexual assault may have occurred
                       in your home?

                A      He said he couldn’t really give me detail[s], but he mentioned
                       that.

                Q      Okay. At some point, after Detective Horstman comes and
                       takes items from your house, months down the road did you
                       give a deposition in this matter?

                A      I don’t know how long after, but yes.

                ....

                Q      And when you went to give a deposition and you were
                       waiting to give your deposition, did you ever recognize a
                       woman in the room with you as being the woman who was in
                       the back seat [of Anderson’s vehicle]?

                A      Not when I first got there. . . . [W]hile I was there I learn[ed]
                       that that was the young lady.

                Q      Okay. And did you in fact pass her a note before you left that
                       day?

                A      Yep.

                Q      And did you ask her to please forgive you and you did not
                       know that this was going to happen at your house?

                A      Correct.

(Tr. 98-100).

                                               8
       On redirect, the State questioned Williams as follows: “But at no point did you

realize at the time you gave your key that he was going to take a woman to your

apartment and rape her, right?” (Tr. 102-03). Anderson objected, arguing that the State’s

question was argumentative. Anderson, however, did not seek an admonishment or move

for a mistrial.

       The trial court overruled Anderson’s objection, whereupon the State continued its

examination as follows:

                  Q   Did you have any idea when the defendant asked you for the
                      keys to your apartment that he was going to take a woman to
                      your apartment and rape her there?

                  A   I didn’t know one way or the other.

(Tr. 103).

       During its closing argument, the State argued as follows:

       But here’s the part that stuck out most to me. [Williams] described the
       defendant as his friend, right. He said, I would call him a friend. Maybe
       not a best friend, but he’s my friend.

                What does Michael Williams do the next time that he sees [A.M.]?
       It’s at the deposition you heard about; all the witnesses in this case having a
       deposition taken of them. What does the defendant’s own friend say to
       [A.M.]? Not I can’t believe you’re the girl accusing my friend of raping
       you, my friend wouldn’t do that. I can’t believe you would say my friend
       took you to my apartment and raped you. That’s not what he says. What
       Michael Williams does is passes her a note that says, I didn’t know he
       would do this to you. Please, God, forgive me for giving him my key. And
       that’s, to me, is some of the most telling testimony that you heard and what
       it shows is it shows what even his own friends think about him.

              But when I asked [Williams], did you know that the defendant was
       going to take a woman to your apartment and rape her? I didn’t know one

                                             9
      way or the other. So it’s not this off-base idea. His own friend feels sorry
      for this woman that he gave the key and allowed her to be raped in his
      place.

(Tr. 201-02).

      A review of the record shows that Anderson did not object to the State’s initial

direct examination of Williams. As to the redirect examination, Anderson objected but

failed to seek an admonishment or move for a mistrial. Furthermore, Anderson neither

objected, sought an admonishment nor moved for a mistrial in response to the State’s

closing argument.

              When an improper argument is alleged to have been made, the
      correct procedure is to request the trial court to admonish the jury. If the
      party is not satisfied with the admonishment, then he or she should move
      for mistrial. Failure to request an admonishment or to move for mistrial
      results in waiver. Where a claim of prosecutorial misconduct has not been
      properly preserved, our standard for review is different from that of a
      properly preserved claim. More specifically, the defendant must establish
      not only the grounds for the misconduct but also the additional grounds for
      fundamental error. Fundamental error is an extremely narrow exception
      that allows a defendant to avoid waiver of an issue. 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.”

Cooper, 854 N.E.2d at 835.

      Anderson has failed to properly preserve his claim of prosecutorial misconduct.

Accordingly, Anderson must establish not only the grounds for prosecutorial misconduct

but also the grounds for fundamental error. See Cooper, 854 N.E.2d at 835; Booher v.

State, 773 N.E.2d 814, 818 (Ind. 2002).



                                           10
       The record shows that Anderson’s counsel cross-examined Williams, and

therefore, had the opportunity to refute that Williams had direct knowledge regarding

what had occurred in his apartment.    The record further shows that Williams admitted

that he “didn’t know” what Anderson intended to do in his apartment but only inferred

what had happened based on his conversation with Detective Horstman. (Tr. 103).

Furthermore, in addition to Williams’s testimony, the jury heard extensive testimony

from A.M. regarding Anderson’s offenses against her, and the State presented substantial

physical evidence corroborating A.M.’s testimony.

       Given the testimony, along with the additional evidence in this case, we find that

Anderson’s claim of prosecutorial misconduct does not constitute fundamental error. The

State’s implied assertion that Anderson must have raped A.M. because Williams believed

he had did not so prejudice Anderson as to make a fair trial impossible or constitute

blatant violations of basic and elementary principles of due process. We therefore find

no reversible error.

       Affirmed.

NAJAM, J., and RILEY, J., concur.




                                           11
