FOR PUBLICATION


ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

THOMAS P. KELLER                            GREGORY F. ZOELLER
South Bend, Indiana                         Attorney General of Indiana

                                            ERIC P. BABBS
                                            Deputy Attorney General
                                            Indianapolis, Indiana


                                                                   May 22 2014, 10:35 am


                            IN THE
                  COURT OF APPEALS OF INDIANA

CRAIG BAKARI THOMAS,                        )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )     No. 71A04-1305-CR-256
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                        The Honorable R.W. Chamblee, Judge
                       The Honorable Elizabeth C. Hurley, Judge
                            Cause No. 71D08-1204-FB-45


                                   May 22, 2014

                            OPINION - FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, Craig Bakari Thomas (Thomas), appeals his conviction for

two Counts of criminal deviate conduct, Class B felonies, Ind. Code § 35-42-4-2; and one

Count of sexual battery, a Class D felony, I.C. § 35-42-4-8.

      We affirm.

                                         ISSUE

      Thomas raises two issues on appeal, which we consolidate and restate as:

Whether the State committed prosecutorial misconduct during its closing argument.

                           FACTS AND PROCEDURAL HISTORY

      During the spring semester of 2012, K.B., twenty-two years old, and Thomas,

forty-eight years old, were both students at the South Bend campus of Ivy Tech

Community College. They became acquainted through their acting parts in the college’s

play, where Thomas was cast as the stepfather of K.B.’s character.         K.B. regarded

Thomas as a friend; she was not interested in a sexual relationship with him.

      During the afternoon of March 12, 2012, Thomas and K.B. met on campus and

Thomas suggested they drive to a place in South Bend where K.B. had not been before.

Thomas took K.B. to Rum Village Park, a local neighborhood park. While they were

talking in the car, Thomas started putting his hands up K.B.’s back. K.B. told Thomas to

stop to no avail. K.B. began to exit the car, but Thomas demanded that she remain inside.

Afraid, K.B. got back into the car. Thomas said, “I thought you said you touched a dick

before.” (Transcript pp. 24-25). When K.B. denied this, Thomas became angry. Feeling



                                            2
uncomfortable, K.B. told him that she had an advising appointment in thirty minutes and

started texting a friend. Thomas angrily seized K.B.’s phone and threw it on the ground.

When K.B. tried to reach for her phone, Thomas hit her on the head with his open hand.

Thomas pinned K.B. against the car’s window and demanded that she unbutton her pants.

Although she initially refused, after further threats by Thomas, K.B. unbuttoned her

pants. Thomas then sucked K.B.’s breasts and penetrated her vagina with his finger.

While K.B. was crying and screaming for help, he performed oral sex on K.B. Thomas

told K.B., “[I]t’s just like you’re in a game right now . . . so you have to do everything I

tell you to do or you’ll die.” (Tr. p. 31). He said, “[Y]ou got two choices, either you put

your hand on my dick and give me a hand job or you give me a blow job.” (Tr. p. 36).

When K.B refused to do either of those, Thomas grabbed her hair and forced K.B. to

place her hand on Thomas’ penis. Thomas eventually ejaculated. He retrieved K.B.’s

phone and they drove back to the college campus. Thomas asked K.B. not to tell

anybody.

       The play rehearsal that evening started late and ended early because of the

discernable tension between K.B. and Thomas. Due to this tense atmosphere, Professor

Craig Parmley (Professor Parmley) asked to speak privately with K.B.             K.B. told

Professor Parmley that Thomas had “sexually harassed” her. (Tr. p. 45). Professor

Parmley wrote a memo to the vice chancellor of student affairs and, at the vice

chancellor’s recommendation, neither K.B. nor Thomas was allowed to continue in the

play. By the following year, K.B. had transferred to Indiana University—South Bend.




                                             3
       When K.B.’s mother picked her up that evening, she noticed that K.B. was scared

and disturbed. K.B.’s mother called Thomas and confronted him on the phone. After

receiving the phone call, Thomas filed a report at the South Bend Police Department,

claiming that he had been threatened over the phone.

       K.B.’s parents called the police. K.B. was taken to a local hospital for a sexual

assault examination.   During the examination, the nurse documented an abrasion to

K.B.’s labia majora, consistent with having been inflicted by a fingernail, as well as a

bruise to K.B.’s upper left arm. Both injuries appeared to be acute.

       On March 19, 2012, South Bend police officer, Kris Hinton (Officer Hinton), took

Thomas’ statement. Although he initially claimed that he and K.B. may have kissed,

later in the interview, Thomas explicitly denied having had sex with K.B. but admitted to

having touched K.B.’s breast over her clothing.

       On March 31, 2012, the State filed an Information, charging Thomas with Counts

I-IV, criminal deviate conduct, Class B felonies, I.C. § 35-42-4-2; and Count V, sexual

battery, a Class D felony, I.C. § 35-42-4-8. The State dismissed Count III prior to trial.

On March 11 and 12, 2013, a jury trial was conducted. During the State’s closing

argument, the deputy prosecutor commenced by addressing the witnesses’ testimony and

jury instructions. Within this framework, the deputy prosecutor commented:

       What does your instruction say about a witness? It says you should not
       disregard any witness without a reason and without careful consideration.
       The testimony is not – it’s been challenged but the testimony, there’s not
       another story that’s going on here. You’ve not heard the testimony of
       another story. You heard what [Thomas] told Officer Hinton, but he wasn’t
       raising his right hand swearing to tell the truth. He’s not a witness in this
       case. If you find –


                                            4
(Tr. p. 235). At this point, Thomas objected and requested to approach. During the side

bar conference, the following colloquy ensued:

      [THOMAS]: The jury has been told and counsel well knows that a witness
      - - that he has no obligation to take the witness stand and - - [] by
      highlighting the fact that he’s not taken the stand and is not a witness I
      think puts all of that in jeopardy.

      [TRIAL COURT]: So is - - you should disregard his comment with respect
      to the fact that I’ll tell you I think you’re dangerously close to a common
      decision not to - - [] You can shake your head no if you want to. I’m
      sitting listening to what you’re saying and I just got done telling you that
      you’re dangerously close to having reached that point to begin with.

      [STATE]: All right, sir.

      [TRIAL COURT]: There’s no story he told the officer, he isn’t sworn, he
      didn’t testify. What do you think that amounts to?

      [THOMAS]: Well, I think at this point, Judge, we’re - - I’d have to ask for
      a mistrial.

      [TRIAL COURT]: No, I’m going to admonish the jury to disregard that,
      and I’m going to emphasize the fact that he will not be required - -.

(Tr. pp. 235-36). The trial court admonished the jury to disregard the State’s final

statement:

      Ladies and gentlemen, I’m going to admonish you to disregard [the State’s]
      comments with respect to the fact that there is no other story, to disregard
      the fact that the defendant, [], wasn’t sworn and didn’t testify or whatever
      his last comments were. We’ve talked about the defendant’s right not to
      testify in a case. I want you to remember that as it relates to the comments
      that were just made[.]




                                           5
(Tr. p. 237).   After the admonishment, the deputy prosecutor resumed his closing

argument. Later in his closing argument, when reciting the evidence presented at trial,

the deputy prosecutor summarized as follows:

      And so what happened? It all went away. She didn’t act in that play. She
      changed schools. She lost it all because of what the defendant did on
      March 12, 2012.

      This is not a question of whether or not there was consent in this. That’s
      not been an issue. It’s not been an issue of well, [K.B.] got talked into it.
      That’s not what the defendant is saying. The defendant is not saying, I like
      [K.B.], we pushed the issue, I tried to get to first base - -

(Tr. p. 239). Thomas objected and requested another side bar conference, at which the

following comments were made:

      [THOMAS]: I think he’s making comments here about - -

      [TRIAL COURT]: Are you talking about in the statement he gave the
      officer or are you talking about in the courtroom here today? Because,
      again, do you understand what [counsel] is saying to you, [State]?

      [STATE]: What I’m - -

      [TRIAL COURT]: The defendant is not saying is nothing because he’s not
      --

      [STATE]: What I’m saying is I’m commenting on her statement, which is
      what he said to the officers.

      [TRIAL COURT]: You damn sure better re-address that you’re referring to
      the statement that he made to the officers.

      [STATE]: Okay.

(Tr. pp. 239-40). Upon resuming closing argument, the deputy prosecutor told the jury:

      You heard Officer Hinton’s testimony on what the defendant said to him
      back when he was questioned after being read Miranda. You heard what
      he said and that he had denied any sexual contact. You heard that. If you


                                           6
       believe there was sexual contact, I believe you should convict. If you do
       not believe that there was sexual contact, your duty is to find the defendant
       not guilty.

       And it comes down to [K.B.]’s testimony. You heard her. Do you believe
       her? . . .

(Tr. p. 240).

       At the close of the evidence, the jury returned a guilty verdict on two Counts of

criminal deviate conduct and one Count of sexual battery. The jury was unable to reach a

verdict on Count I, criminal deviate conduct, which the State later dismissed. On May

13, 2013, the trial court held a sentencing hearing and imposed consecutive sentences of

twelve years each on the two Counts of criminal deviate conduct, as well as a two-year

concurrent sentence on the sexual battery charge, for an aggregate sentence of twenty-

four years.

       Thomas now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

       Thomas contends that the State committed prosecutorial misconduct in its closing

argument by impermissibly violating his Fifth Amendment privilege to remain silent.

When reviewing a claim of prosecutorial misconduct, we employ a two-step analysis.

We must first consider whether the prosecutor engaged in misconduct. Reynolds v. State,

797 N.E.2d 864, 868 (Ind. Ct. App. 2003). We then consider all the circumstances of the

case to determine whether the misconduct placed the defendant in a position of grave

peril to which he should not have been subjected. Id. However, “[t]he gravity of the




                                            7
peril as determined by considering the probable persuasive effect of the misconduct on

the jury’s decision, rather than the degree of the impropriety of the conduct. Id.

       The Fifth Amendment to the United States Constitution provides that no person

“shall be compelled in any criminal case to be a witness against himself.” The privilege

extends to the States through the Fourteenth Amendment. Withrow v. Williams, 507 U.S.

680, 689, 113 S.Ct. 1745, 123 L.Ed. 2d 407 (1993). In Griffin v. California, 380 U.S.

609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the United States Supreme Court held that the

Fifth Amendment prohibits the prosecution from commenting on a defendant’s decision

not to testify at trial.    The Fifth Amendment privilege against compulsory self-

incrimination is violated when a prosecutor makes a statement that is subject to

reasonable interpretation by a jury as an invitation to draw an adverse inference from a

defendant’s silence.   Boatright v. State, 759 N.E.2d 1038, 1043 (Ind. 2001).        The

defendant bears the burden of showing that a comment improperly penalized the exercise

of the right to remain silent. Moore v. State, 669 N.E.2d 773, 739 (Ind. 1996).

       Thomas asserts that the State violated his Fifth Amendment rights on two separate

instances during its closing argument. We will discuss each remark in turn.

                                     I. First Comment

       First, Thomas objected to the State’s argument that although K.B.’s testimony was

challenged,

       there’s not another story that’s going on here. You’ve not heard the
       testimony of another story. You heard what [Thomas] told Officer Hinton,
       but he wasn’t raising his right hand swearing to tell the truth. He’s not a
       witness in this case.



                                             8
(Tr. p. 235).

       Prior to evaluating the statement on its merits, we need to address the State’s

assertion that Thomas failed to properly object, arguing that his claim is waived because

he “did not request the trial court to admonish the jury.”       (Appellee’s Br. p. 13).

Generally, in order to properly preserve a claim of prosecutorial misconduct for appeal, a

defendant must not only raise a contemporaneous objection, but he must also request an

admonishment; if the admonishment is not given or is insufficient to cure the error, then

he must request a mistrial. Nichols v. State, 974 N.E.2d 531, 534 (Ind. Ct. App. 2012).

See also Robinson v. State, 693 N.E.2d 548, 552 (Ind. 1998) (failure to request an

admonishment or a mistrial following alleged prosecutorial misconduct results in waiver

of the issue on appeal).

       Reviewing the transcript of the closing argument, it is evident that Thomas made a

contemporaneous objection to the disputed statement.         Before he had the time to

formulate his requested remedy, the trial court interrupted with a strongly worded rebuke

to the State. The trial court, in no uncertain words, cautioned the State that it was

“dangerously close to a common decision,” summarizing “[t]here’s no story he told the

officer, he isn’t sworn, he didn’t testify. What do you think that amounts to?” (Tr. p.

236). In light of the trial court’s firm warning, Thomas made the reasonable decision to

forego the request for an admonishment, as he could infer that it would be insufficient to

cure the error, and instead to immediately request a mistrial. We find that Thomas made

a proper objection and did not waive his claim for review.




                                            9
       Thomas now argues that the deputy prosecutor’s comment was similar to those in

Reynolds v. State, 797 N.E.2d 864 (Ind. Ct. App. 2003) and Herron v. State, 801 N.E.2d

761 (Ind. Ct. App. 2004), in which we concluded that the State improperly commented on

the defendant’s failure to testify. In Reynolds, 797 N.E.2d at 868 (internal citation

omitted), the prosecutor stated,

       Was [sic] Aaron and Rachel [two of the State’s witnesses] both lying?
       [Reynolds] takes the 5th Amendment. You take the 5th Amendment when
       you got something to be concerned about. Incriminating yourself. 5th
       Amendment. My constitutional right to incriminate myself. That’s what
       that means. So in order for that to apply you have to have done something
       to incriminate yourself.

In Herron, 801 N.E.2d at 765, the State stated in closing that “but as for not presenting

the gun to you, that actually fired those bullets, members of the jury, right over there at

that table, that’s the only one in the courtroom that can certainly tell us where that gun

is.”

       Turning to the merits of the deputy prosecutor’s statement, we find that the State

made a direct reference to Thomas’ decision not to testify. The deputy prosecutor,

commenting on the testimony presented at trial, specifically stated that “there’s not

another story that’s going on here.” (Tr. p. 235). Unlike the other witnesses, Thomas did

not raise “his right hand swearing to tell the truth. He’s not a witness in this case.” (Tr.

p. 235). We agree with the trial court that the deputy prosecutor’s comments reasonably

could be interpreted as an invitation to draw an adverse inference from Thomas’ silence.

In fact, we think it is self-evident that the deputy prosecutor was suggesting that the jury




                                            10
draw an inference of guilt from Thomas’ decision not to raise his right hand, be sworn in,

and tell the jury his story. See Boatright, 759 N.E.2d at 1043.

       However, the State argues that, even if the deputy prosecutor impermissibly

violated Thomas’ Fifth Amendment right, the error was harmless. When reviewing an

error affecting a defendant’s federal constitutional rights, the State has the burden of

establishing beyond a reasonable doubt that the error complained of did not contribute to

the verdict obtained. Black v. State, 794 N.E.2d 561, 565 (Ind. Ct. App. 2003). In

support of its argument of harmless error, the State focuses on the strength of its case

against Thomas, the trial court’s curative instruction, and the final jury instructions

stating that a defendant is under no duty to testify.

       Unlike Reynolds and Herron, where no admonishments were issued, the trial court

here issued a fairly detailed caution to the jury. Not only did the trial court rephrase the

impermissible statements made by the deputy prosecutor, it also reminded the jury to

consider the statement in light of a defendant’s right not to testify. “It must be presumed

that the jury are [people] of sense, and that they will obey the admonition of the court

when told that they must not permit the reference to the failure of the defendant to testify,

to influence their minds[.]”     Moore, 669 N.E.2d at 741 (citing Blume v. State, 56

N.E.771, 776 (Ind. 1900)). Absent an argument that the admonishment was ineffective,

we conclude that the trial court’s curative instruction defused the impact of the State’s

improper remark. See Bernard v. State, 540 N.E.2d 23, 25 (Ind. 1989); Parsons v. State,

472 N.E.2d 915 (Ind. 1985).

                                    II. Second Comment


                                              11
       Next, Thomas contends that the State’s statement that “[t]he defendant is not

saying, I like [K.B.], we pushed the issue, I tried to get to first base . . .” also amounted to

a violation of his Fifth Amendment right to not to testify. Again, Thomas objected to the

State’s closing argument. However, unlike with the previous statement, Thomas failed to

request a remedy for the perceived violation of his rights. Although the trial court

interrupted before Thomas could complete his argument, the trial court did not admonish

the jury. Instead, the trial court, again cautioning the deputy prosecutor, offered the State

the opportunity to “re-address that [he was] referring to the statement that [Thomas]

made to the officers.”      (Tr. p. 240).    Thus, because Thomas failed to request an

admonishment or mistrial, his argument is waived for our review. See Robinson,

693 N.E.2d at 552.

       To prevail on a claim of prosecutorial misconduct that has been procedurally

defaulted, the defendant must establish not only the grounds for the prosecutorial

misconduct, but also the additional grounds for fundamental error. Nichols, 974 N.E.2d

at 535. Fundamental error is an extremely narrow exception to the contemporaneous

objection rule that allows a defendant to avoid waiver of an issue. Id. For a claim of

prosecutorial misconduct to rise to the level of fundamental error, it must make a fair trial

impossible or constitute clearly blatant violations of basic and elementary principles of

due process and present an undeniable and substantial potential for harm. Id. The

element of harm is not shown by the fact that a defendant was ultimately convicted. Id.

Rather, it depends upon whether the defendant’s right to a fair trial was detrimentally

affected by the denial of procedural opportunities for the ascertainment of truth to which


                                              12
he would have been entitled.        Id.    The mere fact that an alleged error implicates

constitutional issues does not establish that fundamental error has occurred. Id.

       Evaluating the State’s statement within the context it was made, we find that the

comment did not amount to an indirect reference to Thomas’ decision not to testify.

Rather, in its clarification, the State clearly alluded to the strength of the evidence against

Thomas. By referencing Thomas’ interview to Officer Hinton, the State immediately

compared Thomas’ statement with K.B.’s testimony at trial. It is proper for the State to

comment on the lack of evidence by the defense “as long as the State focuses on the

absence of any evidence to contradict the State’s evidence and not on the defendant’s

failure to testify.” Schmidt v. State, 816 N.E.2d 925, 945 (Ind. Ct. App. 2004), trans.

denied. In other words, the deputy prosecutor’s comment is not one that the jury may

reasonably interpret as an invitation to draw an adverse inference from Thomas’ silence.

See id. Thus, Thomas failed to meet his initial burden that the State’s argument was

improper.

                                          CONCLUSION

       Based on the foregoing, we conclude that, although the State committed

prosecutorial misconduct in its first statement, the error was harmless. Additionally, with

respect to the second statement, we find that the State did not commit prosecutorial

misconduct.

       Affirmed.

ROBB, J. and BRADFORD, J. concur




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