                                                                                         Sep 11 2013, 5:47 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                                    ATTORNEYS FOR APPELLEE:

ELLEN M. O’CONNOR                                          GREGORY F. ZOELLER
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           MICHAEL GENE WORDEN
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana




                                 IN THE
                       COURT OF APPEALS OF INDIANA

YOHAU FLAME,1                                              )
                                                           )
       Appellant-Defendant,                                )
                                                           )
                 vs.                                       )       No. 49A02-1302-CR-121
                                                           )
STATE OF INDIANA,                                          )
                                                           )
       Appellee-Plaintiff.                                 )


                        APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Charles A. Wiles, Senior Judge
                                Cause No. 49G03-1109-FA-64634



                                           September 11, 2013

                   MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge



       1
           Throughout the trial, the appellant was referred to as Vincent Smith.
      Yohau Flame (“Flame”) was convicted after a jury trial of rape2 and criminal

deviate conduct,3 each as a Class A felony, two counts of criminal confinement4 and one

count of attempted robbery,5 each as a Class B felony, and one count of auto theft6 as a

Class D felony. He appeals, contending that the prosecutor committed misconduct during

closing remarks that amounted to fundamental error.

      We affirm.

                          FACTS AND PROCEDURAL HISTORY

      In the early morning of September 9, 2011, H.B. was in the parking lot of her

apartment complex, loading luggage into her car as she prepared for an upcoming flight.

It was dark, and as she loaded the luggage, Flame approached her and pulled out a gun.

      Flame placed the gun at the back of her head, pushed her into the backseat of a car

he had already stolen, switched on the safety locks, and drove away.

          Flame drove to two banks where he unsuccessfully attempted to use H.B.’s debit

card at the ATM machines.

      Flame then drove H.B. to a secluded, wooded area where he demanded that H.B.

take off her clothes. He got on top of her and forced sexual intercourse. Flame also

performed oral sex on H.B. and forced her on top of him.

      Flame then drove H.B. to the Indianapolis airport where she asked someone to call
      2
          See Ind. Code § 35-42-4-1.
      3
          See Ind. Code § 35-42-4-2.
      4
          See Ind. Code § 35-42-3-3.
      5
          See Ind. Code §§ 35-41-5-1; 35-42-5-1.
      6
          See Ind. Code § 35-43-4-2.5.

                                                   2
911. When the police arrived, H.B. gave a statement at the airport. She then went to a

hospital for an examination, where DNA samples were taken that were later identified as

containing Flame’s DNA profile. Flame was arrested and a penile swab was taken from

him that was identified as containing H.B.’s DNA.

      The State charged Flame with rape as a Class A felony, criminal deviate conduct

as a Class A felony, two counts of criminal confinement, each as a Class B felony,

robbery as a Class B felony, and auto theft as a Class D felony. Flame elected to

represent himself pro se, and the court granted his request, while also appointing standby

counsel.

      At Flame’s jury trial, the prosecutor at times during closing argument used the

word “you” in place of the word “she” when describing the events, but Flame did not

object. At one point, Flame’s standby counsel objected to a single line of argument,

when the prosecutor stated:

      You’re being asked to look at her reaction to things based on how you think you
      might react. And Ladies and Gentleman, what I’m here to tell you is you don’t
      know. Oh, we think about it. We think if this thing happens to me—the worst
      case, if this happens to me, this is what I would do, and I’m pretty convinced this
      is what I would do. We don’t know. Unless you’ve been in that situation, unless
      you’re in that situation—but . . . .

Tr. at 730. The judge overruled the objection, determining that the prosecutor was

permissibly characterizing the evidence. Flame did not request an admonishment to the

jury, and the jury found Flame guilty on all counts. Flame now appeals.




                                            3
                            DISCUSSION AND DECISION

      Flame contends that the trial court erred in overruling his objection to the

prosecutor’s closing remarks. He further argues that, although he did not object at trial,

the prosecutor’s other statements constituted fundamental error, warranting a new trial.

      Claims of prosecutorial misconduct that have been properly preserved are subject

to a two-step review on appeal. Cain v. State, 955 N.E.2d 714, 721 (Ind. 2011). 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. Id. “The gravity of the 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. In order to properly preserve a

claim of prosecutorial misconduct, a defendant must not only object but must also request

the trial court to admonish the jury, and, if the party is not satisfied with the

admonishment, then that party should move for a mistrial. Id. “Failure to request an

admonishment or to move for mistrial results in waiver.” Id.

      Here, because Flame failed to request an admonishment or move for a mistrial, he

has not properly preserved his argument of prosecutorial misconduct. Where a claim of

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

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

error. Id. (citing Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002). Fundamental error is

an extremely narrow exception that allows a defendant to avoid waiver of an issue, and is

appropriate only when an alleged error makes “a fair trial impossible or constitute[s]

                                            4
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)). This exception is available only in egregious

circumstances. Malloch v. State, 980 N.E.2d 887, 904 (Ind. Ct. App. 2012) (citing

Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010)).

      Assuming without deciding that the prosecutor’s remarks were made in error, the

remarks would not warrant application of our “extremely narrow” fundamental error

exception. Cain, 955 N.E.2d at 721. Indeed, we do not find the requisite “substantial

potential for harm.” Id. Flame admits that the evidence the State brought against him

was extensive. Appellant’s Br. at 13. In addition to H.B.’s detailed testimony, which

Flame himself characterizes as “harrowing,” id. at 8, the State presented a barrage of

evidence implicating Flame, including corroborating surveillance videos, the gun, the hat,

and physical DNA. Flame does not challenge this evidence, but contends that “there can

be no confidence in the system if the jury is persuaded to convict, not for the evidence

and guilt, but for inflammatory appeals to passion, fear, or anger.” Id. at 13. Here,

however, given the substantial weight of the evidence, we find that the probable

persuasive effect of the prosecutor’s remarks was negligible. Thus, because the State’s

actions do not present “an undeniable and substantial potential for unfair harm,” a new

trial is not warranted. Booher, 773 N.E.2d at 820.

      Affirmed.

ROBB, C.J., and RILEY, J., concur.



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