MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing
                                                                     Jan 24 2020, 10:18 am
the defense of res judicata, collateral
estoppel, or the law of the case.                                         CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark D. Altenhof                                         Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General of Indiana

                                                         Jesse R. Drum
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua A. Flores,                                        January 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2006
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Kristine Osterday,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D01-1805-F5-127



Bradford, Chief Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-2006| January 24, 2020               Page 1 of 6
                                          Case Summary
[1]   In May of 2018, Joshua Flores was charged with one count of Level 5 felony

      domestic battery resulting in serious bodily injury and two counts of Class A

      misdemeanor domestic battery after physically harming his girlfriend Breann

      Foster. In July of 2019, after a bench trial, Flores was found guilty as charged.

      Flores contends that the State committed prosecutorial misconduct. Because we

      disagree, we affirm.



                            Facts and Procedural History
[2]   Foster and Flores were in a romantic relationship, living together with Flores’s

      mother. In October of 2017, after accusing Foster of having sex with another

      man, Flores shoved Foster and punched her in the nose, fracturing it. Foster

      moved out of Flores’s residence but spent the night with him in November of

      2017. The next morning, Flores again accused Foster of having sex with

      another person. Flores pulled Foster to the floor by her hair and began kicking

      her to the point where she was “seeing colors … [and] felt like [she] was going

      to pass out.” Tr. Vol. II p. 176. At some point, Foster ran to a residence across

      the street but, before the resident answered, Flores grabbed Foster and yanked

      her to the ground.


[3]   On May 3, 2018, the State charged Flores with one count of Level 5 felony

      domestic battery resulting in serious bodily injury and two counts of Class A

      misdemeanor domestic battery. A bench trial was held on July 16, 2019, after


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2006| January 24, 2020   Page 2 of 6
      which Flores was found guilty as charged. On August 19, 2019, the trial court

      sentenced Flores to an aggregate sentence of six years of incarceration with one

      suspended to probation.



                                 Discussion and Decision
[4]   Flores contends that the State committed prosecutorial misconduct at trial by

      repeatedly eliciting irrelevant evidence that was highly prejudicial to him.

      Specifically, Flores contends that prosecutorial misconduct occurred when the

      prosecutor analogized the facts of present case to other domestic violence cases

      in opening and closing arguments and elicited evidence about Flores’s power

      and control over Foster, namely, (1) Foster’s grandmother’s testimony

      regarding Foster’s behavioral changes while dating Flores, (2) Foster’s

      testimony regarding Flores having been previously incarcerated, (3) Foster

      showing the trial court a large tattoo of Flores’s name across her chest, and (4)

      the prosecutor discussing power and control during closing argument. Because

      Flores failed to raise this claim in the trial court, we review it for fundamental

      error.


[5]   We review a claim of prosecutorial misconduct by determining (1) whether

      misconduct occurred, and if so, (2) whether the misconduct, under all

      circumstances, placed the defendant in a position of grave peril to which he

      would not have been subjected otherwise. Ryan v. State, 9 N.E.3d 663, 667 (Ind.

      2014). “To preserve a claim of prosecutorial misconduct, the defendant must—



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2006| January 24, 2020   Page 3 of 6
at the time the alleged misconduct occurs—request an admonishment to the

jury, and if further relief is desired, move for a mistrial.” Id.


        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. The defendant must
        establish not only the grounds for prosecutorial misconduct but
        must also establish that the prosecutorial misconduct constituted
        fundamental error. 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. 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 (b) present and undeniable and substantial potential
        for harm. 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.


Id. at 667–68 (internal quotations and citations omitted). “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 defendant counsel who ignorantly,

carelessly, or strategically fail to preserve an error.” Id. at 668. See Baer v. State,

942 N.E.2d 80, 99 (Ind. 2011) (finding that it is “highly unlikely” for a claim of

fundamental error in regards to prosecutorial misconduct to prevail).


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2006| January 24, 2020   Page 4 of 6
[6]   Here, there is no evidence to suggest that the trial court considered this

      allegedly inappropriate evidence when rendering its judgment, and we will not

      presume that it did. See Griffin v. State, 698 N.E.2d 1261 (Ind. Ct. App. 1998)

      (“[I]n criminal bench trials, we presume that the [trial] court disregarded

      inadmissible testimony and rendered its decision solely on the basis of relevant

      and probative evidence.”), trans. denied. In fact, the trial court made clear after

      one of Flores’s objections that just because evidence was initially allowed did

      not mean it would ultimately be considered, stating,


               I believe that it’s potentially relevant and depending on how it’s
               developed I will give it whatever weight I feel that it’s entitled to
               receive. Certainly, I guess this is one of the advantages of having
               a bench trial as opposed to a jury trial that the State’s still going
               to have to connect the dots.


      Tr. Vol. II p. 75. Moreover, the allegedly inappropriate evidence aside, the

      evidence of Flores’s guilt is overwhelming. Foster testified in great detail about

      each instance of domestic battery she endured, testimony which the trial court

      was entitled to believe and did. Foster’s grandmother also testified that in

      October of 2017, a few days after Flores punched Foster, she observed that

      Foster had two black eyes and an enlarged nose. Moreover, there were medical

      records indicating that Foster had suffered a facture to her nasal bone.

      Therefore, we conclude that the alleged errors are not so prejudicial to Flores’s

      rights to make a fair trial impossible. Flores has failed to establish fundamental

      error.


[7]   The judgment of the trial court is affirmed.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2006| January 24, 2020   Page 5 of 6
Robb, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2006| January 24, 2020   Page 6 of 6
