MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                            Aug 24 2016, 9:02 am
this Memorandum Decision shall not be
                                                                      CLERK
regarded as precedent or cited before any                         Indiana Supreme Court
                                                                     Court of Appeals
court except for the purpose of establishing                           and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Patricia Caress McMath                                   Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Octavius Morris,                                         August 24, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         24A01-1512-CR-2206
        v.                                               Appeal from the Franklin Circuit
                                                         Court
State of Indiana,                                        The Honorable J. Steven Cox,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         24C01-1404-FB-268



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016    Page 1 of 20
                                        Statement of the Case
[1]   Octavius Morris (“Morris”) appeals, following a jury trial, his conviction for

      Class B felony burglary.1 He alleges that there were three instances of

      prosecutorial misconduct during the State’s closing argument—only one of

      which he objected to—and argues that the cumulative effect of the prosecutor’s

      three comments constituted fundamental error. Concluding that Morris has not

      met his burden of showing prosecutorial misconduct and fundamental error, we

      affirm his conviction. Additionally, because the record before us reveals that

      the trial court entered a separate sentence on Morris’s habitual offender

      determination instead of enhancing his Class B felony burglary sentence, we

      remand to the trial court with instructions to correct this irregularity in the

      relevant sentencing documents.


[2]   We affirm and remand.


                                                       Issue
                     Whether the cumulative effect of the three allegations of
                    prosecutorial misconduct amounted to fundamental error.

                                                       Facts
[3]   In 2014, Morris and Tiffany Ramey (“Ramey”) were involved in a relationship.

      At that time, Ramey worked for a health care company that provided home




      1
       IND. CODE § 35-43-2-1. We note that, effective July 1, 2014, a new version of the burglary statute was
      enacted and that Class B felony burglary is now a Level 4 felony. Because Morris committed his crime in
      April 2014, we will apply the statute in effect at that time.

      Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016         Page 2 of 20
      health care to disabled adults. One of the homes where Ramey provided in-

      home care was the Franklin County home of Timothy Cutcher (“Cutcher”) and

      his wife, Karen Hoog (“Hoog”) (collectively, “the Cutchers”). Hoog’s adult

      sister, Wendy, who has a developmental disability and requires in-home

      caregivers, alternated living with the Cutchers and Hoog’s other sister every two

      months. Ramey went to the Cutcher’s home two days per week to care for

      Wendy during the months that Wendy resided with the Cutchers. In order to

      provide the caregivers, such as Ramey, access to the house when the Cutchers

      were at work, they routinely left a door unlocked.


[4]   In April 2014, Ramey, who was having financial difficulties, told Morris about

      the “nice things” in the Cutcher’s house. (Tr. 243). Morris and Ramey decided

      to burglarize the Cutcher’s house as “an easy way to make money[.]” (Tr. 243).

      On April 2, 2014, Morris and Ramey went to the Cutcher’s house because

      Ramey knew that the Cutchers would be at work and that Wendy would not be

      there. Morris and Ramey entered the Cutcher’s house via the unlocked door.

      Morris instructed Ramey to take the two piggy banks, and he took two fifty-

      inch TVs from the house. As they drove away from the Cutcher’s house,

      Morris told Ramey that if he had known that it would have been “that easy, he

      would’ve got[ten] a box truck and . . . some of his boys and . . . cleaned them

      out.” (Tr. 264). Morris and Ramey also discussed selling the TVs and splitting

      the money.


[5]   That same day, Morris and Ramey took the piggy banks to Woodruff’s

      Supermarket, where Ramey’s sister, Whitney Ramey (“Whitney”), worked. A

      Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016   Page 3 of 20
      surveillance camera captured videotape of Morris and Ramey, with piggy banks

      in hand, as they entered the store. Morris and Ramey went to Whitney’s

      register, where they counted and wrapped the coins and exchanged them for

      cash. As they were counting the coins, Whitney noticed that there were dollar

      and half-dollar coins. Whitney, concerned that Ramey had taken the money

      from Whitney’s niece and nephew, asked Morris and Ramey where they had

      gotten the coins. Morris responded that “he had won those playing beer pong

      with his friends.” (Tr. 215).


[6]   A couple of days later, Whitney was still suspicious about the source of the

      coins. Whitney had the password for Ramey’s Facebook account, so she

      looked at Ramey’s Facebook page and saw that Ramey had sent messages

      relating to burglarizing the Cutcher’s house. Whitney then went to the Franklin

      County Sheriff’s Department to report Ramey’s involvement in the burglary

      and gave the Facebook messages to Officer Ryan McQueen (“Officer

      McQueen”). Whitney told the officer about Ramey and Morris’s trip to the

      store to exchange coins for cash and informed him that the store had a

      surveillance system that would show them walking in the store.


[7]   Officer McQueen confirmed that a burglary had occurred at the Cutcher’s

      house and obtained the store’s surveillance footage, which showed Morris and

      Ramey walking into the store with the piggy banks. The officer then arrested

      and interviewed Ramey, who admitted to committing the burglary with Morris.

      Thereafter, Officer McQueen interviewed Morris, who admitted that he took



      Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016   Page 4 of 20
       the piggy banks to the store with Ramey but denied being involved in the

       burglary of the house.2


[8]    The State subsequently charged Morris with Class B felony burglary and alleged

       that he was an habitual offender. The trial court held a two-day jury trial on

       October 5-6, 2015. During voir dire, one of the potential jurors stated that his

       house, as well as four or five other houses, had been burglarized around the

       same time as the alleged burglary in this case and that the police had never

       discovered who had committed these crimes. Thereafter, the prosecutor asked

       the jury venire if anyone else had been a victim of a crime, and two other

       potential jurors stated that they knew of people whose houses had been

       burglarized. In each of these instances, the prosecutor questioned whether

       these potential jurors could be fair and impartial.


[9]    When Morris’s counsel questioned the potential jurors, he brought up the

       existence of the unsolved burglaries on more than one occasion and asked the

       jurors whether those would weigh on their minds and whether they would

       “take [it] out” on or penalize Morris. (Tr. 52). Morris’s counsel also stated that

       the prosecutor did not get to make the call of who is guilty or innocent despite

       the fact that he had “been in office for a long time, years and years.” (Tr. 42).


[10]   During the trial, the State presented, among its witnesses, Ramey, who had

       already pled guilty to the burglary, and Whitney. They testified regarding the



       2
           The officer’s interview with Morris was videotaped. Neither party offered it into evidence at trial.


       Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016                Page 5 of 20
       facts above, and Ramey specifically testified that Morris was involved with the

       burglary of the Cutcher’s house. The State also introduced a photograph of the

       surveillance video, which showed Morris and Ramey entering the store with the

       stolen piggy banks.


[11]   Morris’s defense at trial was that, other than Ramey’s testimony, there was no

       physical evidence, such as fingerprints or DNA, to prove that he was present at

       the Cutcher’s house during the burglary. Morris presented one witness, Officer

       McQueen, who confirmed that his interview with Morris had been recorded.


[12]   During the State’s closing argument, when discussing the evidence relating to

       the charged burglary, the prosecutor revisited the voir dire topic of unsolved

       burglaries. The prosecutor pointed out that, initially, the burglary at the

       Cutcher’s house had also been unsolved and that it was later solved only

       because Ramey’s sister, Whitney, had gone to the police with information.

       Specifically, the prosecutor stated:

               How did this case get resolved[?] It happened on April the 2 nd.
               On April the 6th, it was solved. How was it solved? One of the
               defendant’s own sister, Whitney Ramey, you heard her testify . .
               . She turned in her own sister . . . On April the 2nd the burglaries
               [sic] committed. Didn’t no [sic] who did it . . . and as you found
               out from the jury selection, you may not know one of five people,
               statistics show that somebody . . . one to five persons are going to
               have their home burglarized. I think that showed in our jury
               selection. How many people had their home burglarized right in our
               own county. Do they get away, I don’t know. They all don’t get solved,
               but in this one what happened. After the burglary, they went to
               Woodruff’s in Liberty. Tiffany Ramey had worked their prior to
               that for some years, and Whitney Ramey still worked there.
       Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016   Page 6 of 20
                Walked in with two piggy banks, you will see this when you back
                . . . this is in evidence so you’ll get to view it back there. This is
                what was entered into evidence.

       (Tr. 325-26).3 Morris did not object to the prosecutor’s closing argument. The

       prosecutor then continued to discuss the evidence presented during trial.


[13]   Thereafter, when the prosecutor discussed Ramey’s testimony and Morris’s

       attacks on her credibility, he stated:


                You want to disregard [Ramey’s] testimony. If you look . . . if
                Tiffany Ramey had not cooperated . . . had she not cooperated,
                would we still be able to make this case. I would of [sic]. I’m the
                Prosecutor, I’ve been in this county for to [sic] many . . . maybe
                to [sic] many years for you folks. I have for so long. But yes, I
                would have prosecuted that based on those text message[s], and
                this video at Woodruff’s and Whitney’s testimony. You bet I
                would of [sic]. Because people that know me, know that if
                there’s a law broken[,] I’ll enforce it. If there’s a crime
                committed, I’ll prosecute.

       (Tr. 332-33). Morris’s counsel then objected, stating:

                Judge, I’m going to object at this point. I’m going to ask that . . .
                those comments be stricken from the record. It’s improper for
                the State to vouch from some sort of personal standpoint for the
                strength of the case. And I . . . would ask that the jury be
                admonished to disregard those statement [sic] and that the State
                be . . . admonished to refrain from further statements like that in
                the future.




       3
        Morris argues that only the italicized portion of the prosecutor’s closing argument constituted prosecutorial
       misconduct.

       Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016            Page 7 of 20
       (Tr. 333). The trial court responded:


               Uh, well, it’s closing argument of counsel, and they can believe
               or disbelieve [the prosecutor’s] characterization of his tenure as
               prosecutor, but to the extent members of the jury that [the
               prosecutor] believes in his case[] [y]ou ultimately have the final
               say about whether you also share that belief. So, I would just
               indicate that both parties are . . . passionate about why they’re
               here. And [prosecutor] you can be back to your argument, and
               we’ll move on.

       (Tr. 333-34).


[14]   During Morris’s closing argument, his counsel also discussed the unsolved

       burglaries in the county, arguing that the jury should not be “so desperate to

       solve a burglary” that they “take the word of a burglar, of a thieve [sic], of a

       liar, of a person who takes advantage of the people that make it possible for her

       to have a pay check . . . , of a person whose own sister surreptitiously monitors

       her social media accounts.” (Tr. 344-45). His counsel then questioned, “Are

       we that desperate to solve a burglary in Franklin County?” (Tr. 345).


[15]   Additionally, Morris’s counsel questioned the State’s decision on what it had

       and had not presented as evidence during trial, stating:

               [W]here’s the video statement of Octavius Morris? Where is it?
               State didn’t offer it, they just asked selective questions of Officer
               McQueen. Did they ask him if he did it? No, they didn’t ask
               that. Who did, me . . . You’ve not been allowed to see the
               statement, the audio and video recorded statement, you’ve not
               been allowed to see it.



       Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016   Page 8 of 20
       (Tr. 345-46). The State objected to Morris’s counsel statement, arguing that

       counsel was “mis-characterizing” by telling the jury that it was not allowed to

       see that evidence because the videotaped interview had not been offered by

       either party. (Tr. 346). The trial court agreed that it was a “mis-statement to

       the extent that the Court [ha]d not exclude[d] it from evidence.” (Tr. 346).


[16]   During the State’s rebuttal argument, the prosecutor addressed Morris’s

       argument about the absence of the videotaped interview from evidence:


                The State goes with what it has, presents its evidence, and he
                wants to think like we’re hiding something. You didn’t hear the
                tape from the defendant, put it in, I don’t care. Anybody can ask
                to put it in[.] Judge didn’t rule on it because nobody offered it.
                He wants you to think what’s [going] on there. Believe me, you
                saw how he represented his client. If there’s something on there and
                he wants you to hear it, you’d [have] heard it. So don’t fall for that, it’s
                an old trick.

       (Tr. 359-60).4 Morris did not object to the prosecutor’s rebuttal argument. In

       its final jury instructions, the trial court instructed the jury that the attorneys’

       arguments were not evidence.


[17]   The jury found Morris guilty as charged, and he admitted that he was an

       habitual offender. The trial court sentenced Morris to an aggregate sentence of




       4
        Morris argues that only the italicized portion of the prosecutor’s rebuttal argument constituted prosecutorial
       misconduct.



       Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016            Page 9 of 20
       thirty (30) years with twenty (20) years executed and ten (10) years suspended

       to probation.5 Morris now appeals.


                                                      Decision
[18]   The sole issue that Morris raises on appeal is a claim of prosecutorial

       misconduct. Specifically, he points to three comments made by the prosecutor

       during closing arguments—only one of which he objected to—and argues that

       the cumulative effect of these three comments constituted prosecutorial

       misconduct and fundamental error.


[19]   Our Indiana Supreme Court has explained the relevant standard of review for a

       claim of prosecutorial misconduct when a defendant has both properly

       preserved the issue by objecting and when he has waived the issue by failing to

       object at trial.


                In reviewing a claim of prosecutorial misconduct properly raised
                in the trial court, we determine (1) whether misconduct occurred,



       5
         During the sentencing hearing, the trial court stated that it was imposing a ten (10) year sentence for
       Morris’s Class B felony burglary conviction as well as a separate and consecutive twenty (20) year sentence
       with ten (10) years suspended to probation for Morris’s habitual offender determination. Additionally, the
       original sentencing order, amended sentencing order, and chronological case summary indicate that the trial
       court imposed a separate twenty (20) year sentence for Morris’s habitual offender finding and ordered that it
       be served consecutively to his burglary conviction. It is well settled that an “habitual offender finding does
       not constitute a separate crime nor does it result in a separate sentence, rather it results in a sentence
       enhancement imposed upon the conviction of a subsequent felony.” Hendrix v. State, 759 N.E.2d 1045, 1048
       (Ind. 2001) (citing Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997); Pinkston v. State, 436 N.E.2d 306, 307-08
       (Ind. 1982)). Therefore, we remand to the trial court with instructions to correct the sentencing order,
       abstract of judgment, and chronological case summary to reflect that the twenty (20) year habitual offender
       enhancement serves as an enhancement of Morris’s Class B felony burglary sentence. The record on appeal
       does not contain a copy of the abstract of judgment; thus, we do not know how the trial court set forth the
       sentence in that document. If the abstract of judgment contains the same irregularity, we further instruct the
       trial court to correct that document as well.

       Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016           Page 10 of 20
        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” otherwise.
        Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), quoted in Castillo
        v. State, 974 N.E.2d 458, 468 (Ind. 2012). A prosecutor has the
        duty to present a persuasive final argument and thus placing a
        defendant in grave peril, by itself, is not misconduct. Mahla v.
        State, 496 N.E.2d 568, 572 (Ind. 1986)[, reh’g denied]. “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, 854 N.E.2d at 835
        (emphasis added) (citations omitted). 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. Id.; see
        also Maldonado v. State, 265 Ind. 492, 498, 355 N.E.2d 843, 848
        (1976).

        Our standard of review is different where a claim of prosecutorial
        misconduct has been procedurally defaulted for failure to
        properly raise the claim in the trial court, that is, waived for
        failure to preserve the claim of error. Booher v. State, 773 N.E.2d
        814, 817-18 (Ind. 2002). The defendant must establish not only
        the grounds for prosecutorial misconduct but must also establish
        that the prosecutorial misconduct constituted fundamental error.
        Id. at 818. Fundamental error is an extremely narrow exception
        to the waiver rule where the defendant faces the heavy burden of
        showing that the alleged errors are so prejudicial to the
        defendant’s rights as to “make a fair trial impossible.” Benson v.
        State, 762 N.E.2d 748, 756 (Ind. 2002), quoted in Castillo, 974
        N.E.2d at 468 and Cooper, 854 N.E.2d at 835. In other words, to
        establish fundamental error, the defendant must show that, under
        the circumstances, the trial judge erred in not sua sponte raising
        the issue because alleged errors (a) “constitute clearly blatant
        violations of basic and elementary principles of due process” and

Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016   Page 11 of 20
        (b) “present an undeniable and substantial potential for harm.”
        Id. The element of such harm is not established by the fact of
        ultimate conviction but rather “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 he otherwise would have been entitled.” Townsend v.
        State, 632 N.E.2d 727, 730 (Ind. 1994) (quoting Hart v. State, 578
        N.E.2d 336, 338 (Ind. 1991)). In evaluating the issue of
        fundamental error, our task in this case is to look at the alleged
        misconduct in the context of all that happened and all 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. See
        Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002)[, reh’g denied];
        Townsend, 632 N.E.2d at 730; see, e.g., Castillo, 974 N.E.2d at 469
        n. 11 (noting closing arguments are perceived as partisan
        advocacy).

        We stress that “[a] finding of fundamental error essentially
        means that the trial judge erred . . . by not acting when he or she
        should have. . . .” Whiting v. State, 969 N.E.2d 24, 34 (Ind.
        2012). Fundamental error is meant to permit appellate courts a
        means to correct the most egregious and blatant trial errors that
        otherwise would have been procedurally barred, not to provide a
        second bite at the apple for defense counsel who ignorantly,
        carelessly, or strategically fail to preserve an error. See Baer v.
        State, 942 N.E.2d 80, 99 (Ind. 2011) (noting it is “highly
        unlikely” to prevail on a claim of fundamental error relating to
        prosecutorial misconduct)[, reh’g denied]; Stevens v. State, 691
        N.E.2d 412, 420 n. 2 (Ind. 1997)[, reh’g denied, cert. denied]; Wilson
        v. State, 222 Ind. 63, 83, 51 N.E.2d 848, 856 (1943).

Ryan v. State, 9 N.E.3d 663, 667-69 (Ind. 2014) (footnotes omitted) (emphasis in

original), reh’g denied.



Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016   Page 12 of 20
[20]   On appeal, Morris challenges three statements the prosecutor made in the

       State’s closing and rebuttal arguments. Specifically, Morris contends that the

       prosecutor engaged in misconduct by: (1) suggesting the jury should convict

       Morris for reasons other than guilt when the prosecutor referenced the unsolved

       burglaries in the county; (2) improperly vouching for the strength of the State’s

       case and expressing a personal opinion when he stated that he would have

       prosecuted the case even without Ramey’s testimony; and (3) demeaning

       defense counsel by saying that counsel was using an “old trick.” (Morris’s Br.

       11). Morris did not object to comments (1) and (3). For comment (2), to which

       he did object, he sought an admonishment only and not a mistrial. Therefore,

       Morris must establish not only the grounds for prosecutorial misconduct (i.e.,

       misconduct and grave peril), but he must also establish that the prosecutorial

       misconduct constituted fundamental error. See Ryan, 9 N.E.3d at 667-68.


[21]   We first address Morris’s contention that the prosecutor suggested to the jury

       that they should convict Morris for reasons other than his guilt when he

       commented on the unsolved burglaries in the county. Our Indiana Supreme

       Court has explained that “[i]t is misconduct for a prosecutor to request the jury

       to convict a defendant for any reason other than his guilt.” Ryan, 9 N.E.3d at

       671 (quoting Cooper, 854 N.E.2d at 837).


[22]   Morris contends that the following statement by the prosecutor was a request

       for the jury to convict Morris for reasons other than his guilt and constituted

       prosecutorial misconduct: “How many people had their home burglarized right



       Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016   Page 13 of 20
       in our own county. Do they get away, I don’t know. They all don’t get solved,

       but in this one what happened.” (Tr. 325).


[23]   We find Morris’s argument without merit. As set forth in the Facts section

       above, the prosecutor revisited the voir dire topic of unsolved burglaries during

       the State’s closing argument when he was discussing the evidence relating to the

       charged burglary. The prosecutor pointed out that, initially, the burglary at the

       Cutcher’s house was also unsolved and that it was later solved only because

       Ramey’s sister, Whitney, went to the police with information. From a review

       of the record, we cannot agree with Morris’s assertion that the prosecutor was

       asking the jury to convict Morris of the burglary of the Cutcher’s house because

       there were other unsolved burglaries in the county. Indeed, when viewing the

       full context of the prosecutor’s statements, the prosecutor asked the jury to

       convict Morris because he was guilty of the burglary based on the evidence

       presented during trial. Therefore, the prosecutor did not engage in misconduct.

       See Hollowell v. State, 707 N.E.2d 1014, 1024 (Ind. Ct. App. 1999) (explaining

       that in judging the propriety of the prosecutor’s remarks, we consider the

       statement in the context of the argument as a whole). Furthermore, Morris has

       not shown that the prosecutor’s comment resulted in grave peril, especially

       where his counsel also referenced the unsolved burglaries during his closing

       argument. Accordingly, he has not established prosecutorial misconduct. See

       Ryan, 9 N.E.3d at 667 (explaining that a claim of prosecutorial misconduct

       involves both a showing that the prosecutor engaged in misconduct and that the

       misconduct placed the defendant in a position of grave peril).


       Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016   Page 14 of 20
[24]   Next, we turn to Morris’s second assertion of prosecutorial misconduct. He

       argues that the prosecutor “improperly vouched for the strength of the State’s

       case and voiced his personal opinion of the case when he told the jury he would

       have prosecuted the case even without [Ramey’s] testimony.” (Morris’s Br.

       13). Specifically, Morris challenges the following statement of the prosecutor:


               You want to disregard [Ramey’s] testimony. If you look . . . if
               Tiffany Ramey had not cooperated . . . had she not cooperated,
               would we still be able to make this case. I would of [sic]. I’m the
               Prosecutor, I’ve been in this county for to [sic] many . . . maybe
               to [sic] many years for you folks. I have for so long. But yes, I
               would have prosecuted that based on those text message[s], and
               this video at Woodruff’s and Whitney’s testimony. You bet I
               would of [sic]. Because people that know me, know that if
               there’s a law broken[,] I’ll enforce it. If there’s a crime
               committed, I’ll prosecute.

       (Tr. 332-33). Morris’s counsel objected, arguing that the State was improperly

       vouching for the strength of its case, and he asked for an admonishment “to

       refrain from further statements like that in the future.” (Tr. 333). The trial

       court admonished the jury that it could can “believe or disbelieve [the

       prosecutor’s] characterization of his tenure as prosecutor” and reminded the

       jury that it had “the final say” about whether it shared in the prosecutor’s belief

       about the strength of the State’s case. (Tr. 333). Morris did not seek a mistrial.


[25]   Morris contends that the prosecutor’s statement constituted misconduct,

       alleging that it violated Indiana Rule of Professional Conduct 3.4(e), which

       provides:



       Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016   Page 15 of 20
               A lawyer shall not . . . in trial, allude to any matter that the
               lawyer does not reasonably believe is relevant or that will not be
               supported by admissible evidence, assert personal knowledge of
               facts in issue except when testifying as a witness, or state a
               personal opinion as to the justness of a cause, the credibility of a
               witness, the culpability of a civil litigant or the guilt or innocence
               of an accused[.]

[26]   (Emphasis added). Morris, however, has not shown, let alone alleged, that the

       prosecutor’s statements placed him in grave peril. Accordingly, we conclude

       that he has not established prosecutorial misconduct in this instance. See Ryan,

       9 N.E.3d at 667.


[27]   Morris’s third allegation of prosecutorial misconduct is that the prosecutor

       improperly demeaned defense counsel when the prosecutor made the following

       statement during the State’s rebuttal argument:

               The State goes with what it has, presents its evidence, and he
               wants to think like we’re hiding something. You didn’t hear the
               tape from the defendant, put it in, I don’t care. Anybody can ask
               to put it in[.] Judge didn’t rule on it because nobody offered it.
               He wants you to think what’s [going] on there. Believe me, you
               saw how he represented his client. If there’s something on there and
               he wants you to hear it, you’d [have] heard it. So don’t fall for that, it’s
               an old trick.




       Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016   Page 16 of 20
       (Tr. 359-60).6 Morris contends that the prosecutor committed misconduct when

       he “argued that defense counsel’s questioning of the State’s presentation of the

       case was an ‘old trick.’” (Morris’s Br. 11).


[28]   “‘[C]omments that demean opposing counsel, especially in front of a jury, are

       inappropriate[.]’” Ryan, 9 N.E.3d at 669 (quoting Marcum v. State, 725 N.E.2d

       852, 859 (Ind. 2000), reh’g denied). However, our Indiana Supreme Court has

       explained that not all allegedly improper comments made by prosecutors will

       result in a finding of misconduct. See id. “‘Prosecutors are entitled to respond

       to allegations and inferences raised by the defense even if the prosecutor’s

       response would otherwise be objectionable.’” Id. (quoting Cooper, 854 N.E.2d

       at 836).


[29]   Here, we find our supreme court’s opinion in Ryan to be instructive. In that

       case, our supreme court held that a defendant had failed to show prosecutorial

       misconduct where “the prosecutor used her rebuttal to respond to defense

       counsel’s closing argument” and argued that defense counsel had used a

       “classic defense attorney trick.” Id. at 669, 670. In the defendant’s closing

       argument, defense counsel had compared the defendant’s case to some false

       accusation cases in the media and questioned the quality of the police

       investigation. Id. at 670. The Ryan Court explained that while the prosecutor’s




       6
        Morris argues that only the italicized portion of the prosecutor’s rebuttal argument constituted prosecutorial
       misconduct.



       Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016           Page 17 of 20
       characterization of defense counsel’s argument as a “trick” was inconsistent

       with one of the requirements in the preamble of the Indiana Professional

       Conduct Rules (“that lawyers ‘demonstrate respect for the legal system and for

       those who serve it, including . . . other lawyers’”), there had been no

       prosecutorial misconduct because the defendant had “failed to establish that,

       under all of the circumstances, such improper comments placed him in a

       position of grave peril to which he would not have been subjected otherwise.”

       Id. (citing Preamble [5], Ind. Professional Conduct Rules; Cooper, 854 N.E.2d at

       835; Marcum, 725 N.E.2d at 859-60).


[30]   Here, like in Ryan, the prosecutor’s challenged statement was made in response

       to Morris’s defense counsel’s closing argument. Specifically, the prosecutor’s

       statement was made in response to defense counsel’s challenge to why the State

       had not introduced the videotape of Morris’s police interview and counsel’s

       argument that the jury had “not been allowed to see it.” (Tr. 346).

       Additionally, like the defendant in Ryan, Morris has failed to establish that,

       under all of the circumstances, the prosecutor’s response to Morris’s closing

       argument had a probable persuasive effect on the jury’s decision or placed him

       in a position of grave peril to which he would not have been subjected

       otherwise. As a result, he has failed to establish prosecutorial misconduct. See,

       e.g., Ryan, 9 N.E.3d at 670; Cooper, 854 N.E.2d at 836 (explaining that

       “[p]rosecutors are entitled to respond to allegations and inferences raised by the

       defense even if the prosecutor’s response would otherwise be objectionable”);

       Marcum, 725 N.E.2d at 859-60 (holding that the defendant was not entitled to


       Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016   Page 18 of 20
       relief on his claim of prosecutorial misconduct because he had not established

       that the alleged comments by the prosecutor placed him in grave peril); Brock v.

       State, 423 N.E.2d 302, 304-05 (Ind. 1981) (holding that the “prosecutor’s

       statement that defense counsel was ‘pulling the most low life tricks in this case,’

       was improper but did not place the defendant in grave peril”).


[31]   Morris acknowledges that each of the three comments made by the prosecutor

       “standing alone may not have been sufficient to constitute reversible error[,]”

       and he argues only that the cumulative effect of the prosecutor’s alleged

       misconduct constituted fundamental error and made a fair trial impossible.

       (Morris’s Br. 13). When reviewing such a claim, we are mindful of our Indiana

       Supreme Court’s observation that fundamental error in this context is “an

       extremely narrow exception.” Ryan, 9 N.E.3d at 668. Our supreme court has

       also “stress[ed] that ‘[a] finding of fundamental error essentially means that the

       trial judge erred . . . by not acting when he or she should have. . . .’” Ryan, 9

       N.E.3d at 668 (quoting Whiting, 969 N.E.2d at 34). In order for prosecutorial

       misconduct to constitute fundamental error, the alleged misconduct must have

       made a fair trial impossible or constituted a clearly blatant violation of basic

       and elementary principles of due process that presented an undeniable and

       substantial potential for harm. See id.


[32]   However, in order for the cumulative effect of prosecutorial misconduct to

       make a fair trial impossible, there must be prosecutorial misconduct. Here,

       with respect to the three allegations of prosecutorial misconduct, we have

       determined that no prosecutorial misconduct occurred. In light of “all relevant

       Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016   Page 19 of 20
       information given to the jury—including evidence admitted at trial, closing

       argument, and jury instructions[,]” we conclude that Morris has failed to show

       that the cumulative effect of the prosecutor’s three comments resulted in

       fundamental error and denied him a fair trial. See Ryan, 9 N.E.3d at 668

       (explaining that when evaluating the issue of fundamental error, we are to

       review the alleged misconduct in the context of all that happened at trial and all

       relevant information given to the jury). Accordingly, we affirm his conviction.


[33]   Affirmed and remanded.


       Kirsch, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 24A01-1512-CR-2206 | August 24, 2016   Page 20 of 20
