MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                          Apr 13 2015, 8:49 am
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
Chris Palmer Frazier                                        Gregory F. Zoeller
Marion County Public Defender Agency                        Attorney General of Indiana
Indianapolis, Indiana
                                                            Katherine Modesitt Cooper
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                              IN THE
      COURT OF APPEALS OF INDIANA

Titus S. Dunn,                                             April 13, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1408-CR-588
        v.
                                                           Appeal from the Marion Superior
State of Indiana,                                          Court
                                                           The Honorable Barbara Crawford,
Appellee-Plaintiff,
                                                           Judge
                                                           Cause No. 49F09-1404-FD-16610




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-588| April 13, 2015         Page 1 of 8
                                   Case Summary and Issue
[1]   Following a jury trial, Titus Dunn was convicted of residential entry, a Class D

      felony, and found to be an habitual offender.1 He raises one issue on appeal:

      whether his due process rights were violated by the State’s comments during

      closing argument about the defense of necessity. Concluding that the issue has

      been forfeited for appeal, we affirm.



                              Facts and Procedural History
[2]   During the early morning hours of March 31, 2014, Valerie Floyd was asleep in

      her home when the sound of a shattering window woke her up. When she

      went to investigate, she encountered a man in the hallway whom she did not

      know. The man was later identified as Dunn. As Floyd began moving through

      her house toward the back door, Dunn followed, asking her if she had a gun

      and telling her to call the police. When Floyd opened her back door, her alarm

      system was activated. She ran to her neighbors’ house and woke them up by

      banging on their bedroom window. They called 911 for her, and she stayed at

      their house until police arrived. During that time, Dunn also called 911 from

      Floyd’s house.




      1
       After the jury found Dunn guilty of residential entry, he waived his right to jury as to the habitual offender
      phase. The trial court found him to be an habitual offender after the presentation of evidence.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-588| April 13, 2015                  Page 2 of 8
[3]   Indianapolis Metropolitan Police Department officers arrived at Floyd’s house

      to find Dunn walking down the driveway. After speaking with Floyd and

      observing the damage to her home, the officers arrested Dunn. Dunn told

      police that he had been followed by a dark car after being released from the

      hospital. The car pulled into a driveway a few houses away from Floyd’s and

      Dunn entered her house to get away. At trial, Dunn testified that it was his

      stepson who was chasing him and after the car pulled into the nearby driveway,

      his stepson had gotten out of the car brandishing a gun. Floyd had not seen any

      cars or pedestrians on the street when she ran to her neighbors’ house, and the

      officers did not see anyone other than Floyd and Dunn in the vicinity of Floyd’s

      house while investigating.


[4]   The State charged Dunn with residential entry, a Class D felony, and alleged

      that he was an habitual offender. At trial, Dunn asserted the affirmative

      defense of necessity as justification for entering Floyd’s house. During closing

      arguments, the State told the jury:

              Now, you’re going to get instructions – it’s gonna be Final Instruction
              No. 20 um, that tell you about the necessity defense. So the State – or
              the defense has to prove um, seven things by a preponderance of the
              evid – or six things by a preponderance of the evidence.
      Transcript at 214. Dunn objected, and the trial court held a side bar conference,

      during which the prosecutor expressed her understanding that the defendant

      had to prove all the elements of the necessity defense. The trial court corrected

      the prosecutor, stating that the defense has “to raise it and – and present

      evidence to support the instruction on the facts, but they don’t actually have to


      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-588| April 13, 2015   Page 3 of 8
      prove anything.” Id. at 216. Before the State continued its closing argument,

      the trial court admonished the jury as follows:

              Uh, ladies and gentlemen of the jury, uh – uh, you will get instruction
              on the defense of necessity which uh, under Indiana law, the
              defendant is required to raise – if that’s something that he – he believes
              applies. It is the obligation of the State to disprove one of the elements
              . . . . And I’m going to give you the instruction, and what the
              instruction – how the instruction tells you – how the law tells you you
              need to look at that defense.
              So there will be information in the . . . instruction to tell you how to
              look at it or how to consider it. Um, that the defense has to – only has
              to raise the – raise the defense of . . . necessity, and the State has the
              obligation to disprove one of the parts of it.
      Id. at 217-18. Upon resuming closing argument, the prosecutor correctly stated,

      “[F]or the defense of necessity to apply, you have to find all six [elements]. The

      State must only disprove one of them beyond a reasonable doubt.” Id. at 218.


[5]   After closing arguments were concluded, the trial court gave the jury final

      instructions, including the following:

              The Defendant has raised the defense of necessity in this case. The
              defense of necessity applies when:
                       (1) The act charged as criminal was the result of an emergency
                       and was done to prevent a significant harm;
                       (2) There was no adequate alternative to the commission of the
                       act;
                       (3) The harm cause[d] by the act was not disproportionate to
                       the harm avoided;
                       (4) The Defendant had a good-faith belief that his act was
                       necessary to prevent great harm;
                       (5) The Defendant’s belief was objectively reasonable under all
                       the circumstances of the case; and

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-588| April 13, 2015   Page 4 of 8
                       (6) The Defendant did not substantially contribute to the
                       creation of the emergency.
              The State has the burden to prove beyond a reasonable doubt that the
              Defendant was not acting out of necessity, and may do so by
              disproving any one of the above facts.
      Appellant’s Appendix at 72. The jury found Dunn guilty of residential entry,

      and the trial court found him to be an habitual offender. This appeal followed.



                                 Discussion and Decision
[6]   Dunn contends that the prosecutor’s statement during closing argument

      impermissibly shifted the burden of proof to him and that the trial court’s

      admonishment to the jury was insufficient to remedy the damage caused by the

      misstatement of law. The State argues that Dunn has waived the issue of

      prosecutorial misconduct, because although he now claims that the

      admonishment was insufficient, he did not move for a mistrial at the time. “To

      preserve a claim of prosecutorial misconduct, the defendant must—at the time

      the alleged misconduct occurs—request an admonishment to the jury, and if

      further relief is desired, move for a mistrial.” Ryan v. State, 9 N.E.3d 663, 667

      (Ind. 2014). Failure to comply with these requirements forfeits a prosecutorial

      misconduct claim. Delarosa v. State, 938 N.E.2d 690, 696 (Ind. 2010).


[7]   Dunn objected to the prosecutor’s improper comments on the defense of

      necessity, and the trial court issued an admonishment to the jury to correct the




      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-588| April 13, 2015   Page 5 of 8
      error. However, Dunn did not request a mistrial.2 This is not a case where

      such a request would necessarily have been futile; Dunn objected to the

      prosecutor’s statement and the trial court agreed it was a clear misstatement of

      the law and issued an admonishment to the jury. If Dunn believed the

      admonishment was insufficient, it was incumbent upon him to request a

      mistrial at that time. Having failed to do so, he has failed to preserve the issue

      for appeal.


[8]   Where a claim of prosecutorial misconduct has been procedurally defaulted,

      “[t]he defendant must establish not only the grounds for prosecutorial

      misconduct but must also establish that the prosecutorial misconduct

      constituted fundamental error.” Ryan, 9 N.E.3d at 667-68. Review for

      fundamental error is not intended to grant the defendant a second bite at the

      apple; it is meant to permit appellate courts “to correct the most egregious and




      2
        During a sidebar conference following the conclusion of the State’s rebuttal closing argument, defense
      counsel requested an opportunity to present surrebuttal because “it’s the defense . . . position that second
      closing is for rebuttal only [and] the State has brought up three additional things that they did not argue in
      that first close.” Tr. at 231. The trial court denied the request. After the final instructions were read and the
      case submitted to the jury, defense counsel stated:
               I think in order to preserve my record for surrebuttal . . . I would like to note – to point
               out to the Court that the two arguments that I think were new in the second close were
               that no one uh, saw any of the cars around and that Mr. Dunn waited a couple of
               minutes before calling the police. And, I believe, in order to preserve the issue, I have to
               ask for a mistrial.
      Id. at 232-33. The request for mistrial was denied. Because this request for mistrial was specific to the State’s
      rebuttal argument, it does not preserve the earlier issue. Dunn does not argue otherwise. See Brief of the
      Appellant at 9 n.1.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-588| April 13, 2015                     Page 6 of 8
      blatant trial errors that otherwise would have been procedurally barred . . . .”

      Id. at 668.

              In evaluating the issue of fundamental error, our task . . . is to look at
              the alleged misconduct in the context of all that happened and all the
              relevant information given to the jury—including evidence admitted at
              trial, closing argument, and jury instructions—to determine whether
              the misconduct had such an undeniable and substantial effect on the jury’s
              decision that a fair trial was impossible.
      Id. (emphasis in original).


[9]   Assuming Dunn is correct that the prosecutor’s statement “gave jurors the

      impression that Dunn had an obligation to affirmatively prove his innocence,”

      Br. of Appellant at 10, we look at the alleged misconduct in the context of the

      entire trial. With respect to the evidence, Dunn testified regarding the events he

      alleged necessitated his entering Floyd’s house, offering facts supporting the

      giving of an instruction on the defense of necessity. The State offered several

      witnesses whose testimony either contradicted Dunn’s testimony or cast doubt

      on his version of events. At Dunn’s request, the trial court immediately

      intervened when the prosecutor misstated the necessity defense during closing

      argument and gave the jury a correct statement of the law regarding the

      defense. “[W]here the trial court adequately admonishes a jury,

      such admonishment is presumed to cure any error that may have occurred.”

      Emerson v. State, 952 N.E.2d 832, 840 (Ind. Ct. App. 2011), trans. denied. In

      addition, when the prosecutor resumed her closing argument, she restated her

      comments in the correct terms, and the final instructions to the jury correctly

      stated the law. In light of the evidence from which a reasonable jury could have

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-588| April 13, 2015   Page 7 of 8
       found the State had disproved at least one of the elements of the necessity

       defense and the multiple corrective statements given to the jury, we cannot say

       that the prosecutor’s misstatement of law had “such an undeniable and

       substantial effect on the jury’s decision that a fair trial was impossible.” Ryan, 9

       N.E.3d at 668 (emphasis omitted).



                                               Conclusion
[10]   We cannot say that the prosecutor’s misstatement, in the context of all the

       information given to the jury, amounted to fundamental error. Accordingly,

       Dunn’s conviction is affirmed.


[11]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-588| April 13, 2015   Page 8 of 8
