Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                    Nov 14 2014, 6:23 am
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:

SUZY ST. JOHN                                   GREGORY F. ZOELLER
Marion County Public Defender                   Attorney General of Indiana
Indianapolis, Indiana
                                                JUSTIN F. ROEBEL
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

TRINITY ROSS,                                   )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )         No. 49A02-1402-CR-126
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Linda E. Brown, Judge
                            Cause No. 49F10-1301-CM-917



                                    November 14, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Trinity Ross appeals his convictions for Resisting Law Enforcement 1 as a class A

misdemeanor and Public Intoxication2 as a class B misdemeanor. Ross argues that the

prosecutor engaged in misconduct that amounts to fundamental error, which placed him

in grave peril and rendered a fair trial impossible. Finding no fundamental error, we

affirm.

                                           FACTS

          On January 4, 2013, at approximately 1:30 in the morning, Indianapolis

Metropolitan Police Officers Antwon Keyes and Brycen Garner saw an Audi A6 that was

illegally parked. The officers ran the license plate and found that the car was registered

to Ross. They then wrote a parking citation, placed it on the windshield, and called a tow

truck to tow the Audi.

          After the tow truck had arrived, the officers saw Ross approaching. Officer Keyes

observed that he was stumbling and swaying. Ross walked up to the Audi, opened the

door, and tried to get inside. He yelled at the tow truck driver, using loud cursing and

incoherent and slurred speech. Officer Keyes told Ross to “stop,” to which Ross replied

that he was “talking to this mother fucker right here.” Tr. p. 58-59, 60. Officer Keyes

then asked Ross to provide identification, and Ross told the officer, “I don’t have to give

you my fucking ID.” Id. at 61. Ross then retrieved his identification and thrust it at

Officer Keyes’s chest.


1
    Ind. Code § 35-44.1-3-1(a)(1).
2
    Ind. Code § 7.1-5-1-3.
                                              2
      The officers noticed that Ross displayed several signs of intoxication–glossy

bloodshot eyes, swaying, the odor of alcohol on his breath and person, and a belligerent

and lethargic demeanor. Officer Keyes decided to arrest Ross, telling him, “I have reason

to believe you’re intoxicated, so I’m going to place you under arrest. Turn around and put

your hands behind your back.” Tr. p. 65. Ross would not turn around and continued to

yell. Officer Keyes repeated his instructions, but Ross did not turn around. Officer

Keyes took Ross by the left arm, and Ross pulled away. Ross flailed and stiffened so that

Officer Keyes could not handcuff him, and he clenched his right arm and kept it close to

his chest to avoid Officer Garner’s grasp. Ross broke loose from Officer Keyes’s grasp,

and Officer Keyes then placed Ross on the hood of his car. Ross continued yelling and

resisting for about ten to fifteen more seconds and threatened Officer Keyes that “he had

something that would burn through [his] vest.” Tr. p. 72. After successfully handcuffing

Ross, Officer Keyes gave the tow truck driver the keys to the Audi.

      On January 4, 2013, the State charged Ross with resisting law enforcement and

public intoxication. Ross’s jury trial was held on December 30, 2013. At his trial, Ross

testified that he had not been consuming alcohol on the night of the incident. He also

testified that he had not been swaying or incoherent when he approached the tow truck,

but had simply asked why his vehicle was being towed and explained to the tow truck

driver that the Audi needed to be put in neutral before being towed. Ross also testified

that he tried to give the tow truck driver his keys. He testified that he then noticed the

officers running towards him, and that when they asked for his license, he responded by

                                            3
inquiring why they needed his license if he was not driving. Ross testified that he did not

resist arrest, because he did not have time to resist and did not know why he was being

arrested.

       Officer Keyes testified that Ross was indeed showing signs that indicated he was

intoxicated and stated that Ross did not ask for a breath test. Officer Keyes testified that,

because Ross was complaining and resisting, he asked Ross if he would like to speak to a

supervisor. Ross called Sergeant Durham, who came to the scene and offered Ross a

breath test, but Ross told him to “fuck off.” Id. at 225-226.

       At one point, the prosecutor asked Officer Keyes if the procedure that he followed

when arresting the defendant was learned to the point that it was “automatic almost?” Id.

at 220. And Officer Keyes responded that the police were trained that way. The

prosecutor also asked Keyes what would happen if he made an arrest without probable

cause, to which Keyes responded, “I could get – I could go to jail. I can be sued. I’d lose

my job. My life would be over as far as the way my life is set up now. I wouldn’t have

any of the things that I have now.” Id. at 222.

       During his closing argument, the prosecutor referred to this testimony, stating:

       When you’re talking about credibility, I mean let’s refresh upon it, hey.
       We heard Officer Keyes testify that if he locks somebody up without
       probable cause and he comes here on the stand, and he lies, he’ll lose his
       job. The same applies to Officer Garner, they will lose their jobs, not for
       locking the guy up, not for making an arrest but because they lied. They
       lied when they arrested him. They lied when they wrote the probable cause
       affidavit. They lied when they talked to us. They lied on the witness stand.
       They lied to you. Do you think that’s reasonable? Do you think Officer


                                             4
       Keyes and Officer Garner are going to put their entire livelihood on the line
       for this guy?

Supp. Amended Tr. p. 4.

The prosecutor continued:

       They arrested him. They told him, “Listen, you put your hands behind your
       back. We’re putting you under arrest for public intoxication. [”] What?
       Not once, twice. Do you really think the cops are going to put handcuffs on
       somebody without telling them why they’re being arrested or why they’re
       putting handcuffs on them? Do you think they want that liability on them?
       Do you think he wants to lose his job today? No way, he was trained at the
       Academy. This is (inaudible) from Day One [sic] (1) – before you do
       anything, you tell them why you’re doing this, before you put the cuffs on
       them, you tell them why they are being arrested or detained.

Tr. p. 266.

       The jury found Ross guilty as charged. The trial court sentenced Ross to 365 days

for the resisting law enforcement conviction and to 178 days for the public intoxication

conviction. The trial court suspended the entire sentence, with one day served. Ross now

appeals.

                            DISCUSSION AND DECISION

                                  I. Standard of Review

       When reviewing a claim of prosecutorial misconduct, we will first determine

whether the prosecutor engaged in misconduct. Carter v. State, 956 N.E.2d 167, 169

(Ind. Ct. App. 2011).     If this Court finds that there has been misconduct, we then

determine “whether the misconduct, under all of the circumstances, placed the defendant

in a position of grave peril to which he should not have been subjected.” Id. The gravity


                                            5
of the peril is not measured by the degree of impropriety of the conduct but, rather, by the

probable persuasive effect of the misconduct on the jury’s decision. Booher v. State, 773

N.E.2d 814, 817 (Ind. 2002). In order to preserve a claim of prosecutorial misconduct,

the defendant must both object to the alleged misconduct and request an admonishment

and move for a mistrial. Cowan v. State, 783 N.E.2d 1270, 1277 (Ind. Ct. App. 2003).

         When a claim is not preserved by contemporaneous objection and a request for an

admonishment and mistrial, the defendant must establish both the grounds for

prosecutorial misconduct as well as the grounds for fundamental error to succeed on his

claim. Booher, 773 N.E.2d at 818. Fundamental error is a “substantial, blatant violation

of due process,” so prejudicial to the rights of the defendant that it renders a fair trial

impossible. Hall v. State, 937 N.E.2d 911, 913 (Ind. Ct. App. 2010). 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 an

undeniable and substantial potential for harm.” Ryan v. State, 9 N.E.3d 663, 668 (Ind.

2014).

                                   II. Prosecutorial misconduct

         Ross first argues that the prosecutor improperly elicited vouching testimony to

bolster Officer Keyes’s character. Specifically, Ross argues that the prosecutor should

not have elicited testimony concerning whether or not there could be consequences for

making an arrest without probable cause.

                                             6
       We clarify Ross’s argument by pointing out that, in this instance, Ross is not

arguing that the prosecutor engaged in misconduct by vouching for the witness. Rather,

it appears that Ross is conflating vouching and bolstering, as his argument is that the

prosecutor should not have elicited testimony that bolstered Officer Keyes’s testimony.

Ross maintains that since “Officer Keyes’ credibility had not been attacked by Ross,” it

was improper for the prosecutor to elicit testimony that went to the officer’s credibility.

Appellant’s Br. p. 7.

       Ross is correct that Indiana Evidence Rule 608(a) provides that “evidence of

truthful character is admissible only after the witness’s character for truth fullness has

been attacked. However, Ross is mistaken that Officer Keyes’s testimony violates Rule

608(a).

       At trial, Ross testified that he was not drunk, nor had he had anything to drink. Tr.

p. 154. He testified that he had done nothing to cause the police to arrest him and that

Officer Keyes had “physically abused” him. Id. at 166. He further testified that he had

not resisted arrest. Id. When the state called Officer Keyes as a rebuttal witness, the

following exchange occurred:

       State: Okay. I’m going to throw in a hypothetical for you. If someone who
       would be downtown this morning, same [time] of night would come up to
       you and you would say hey stop just like you did that night, and he would
       have spoken to you like the defendant had testified today, would you have
       arrested him that night?

       Defense: Objection. I believe that question calls for – I believe it’s
       speculative.


                                             7
       State: It’s a hypothetical, Judge. He is a police officer, and I’m asking
       about his experience and what he would do in that situation.

       The Court: Overruled.

       Officer Keyes: I don’t think so. Not without anything else to[o], no I would
       not arrest him.

       State: Why not.

       Officer Keyes: Because that person wouldn’t have had the signs of alcohol
       that I described Ross had. Well basically I wouldn’t have probable cause to
       make an arrest at that point.

       State: Okay. Now what would happen if you didn’t make that arrest?

       Officer Keyes: If I did make that arrest?

       State: That’s correct?

       Officer Keyes: I could get – I could go to jail. I can be sued. I’d lose my
       job. I wouldn’t be able to provide for my family. My life would be over as
       far as the way my life is set up now. I wouldn’t have any of the things that I
       have now.

Tr. p. 221-22.

       While Ross argues that the above exchange constitutes improper bolstering, we do

not agree. Ross testified that Officer Keyes had no cause to arrest him, that he was not

drunk, and that he did not resist arrest. The hypothetical introduced by the State and

Officer Keyes’s responses rebut Ross’s testimony. While Officer Keyes’s testimony

regarding the consequences he might face if he arrested someone without probable case

are almost certainly hyperbolic and an objection to that testimony might have been

sustained, there was no objection. We find no fundamental error here.


                                             8
       Ross also contends that the prosecutor committed misconduct when he made

statements he alleges vouched for the State’s witnesses. A prosecutor may not state his

or her personal opinion regarding the credibility of a witness during trial, as such

statements amount to vouching for a witness. Thomas v. State, 965 N.E.2d 70, 77 (Ind.

Ct. App. 2012), trans. denied. However, “a prosecutor may comment as to witness

credibility if the assertions are based on reasons arising from the evidence presented at

trial.” Id. It is the fact-finder’s role to determine the truthfulness of witnesses. Rose v.

State, 846 N.E.2d 363, 369 (Ind. Ct. App. 2006).

       Ross contends that the prosecutor vouched for the officers’ testimony when he

stated that they could lose their jobs if they lied on the witness stand. During closing

argument, the prosecutor stated:

       When you’re talking about credibility, I mean let’s refresh upon it, hey.
       We heard Officer Keyes testify that if he locks somebody up without
       probable cause and he comes here on the stand, and he lies, he’ll lose his
       job. The same applies to Officer Garner, they will lose their jobs, not for
       locking the guy up, not for making an arrest but because they lied.

Supp. Amended Tr. p. 4. Ross argues that this statement constitutes improper vouching.

       However, it appears that, in large part, the prosecutor’s statements were based on

the testimony given by Officer Keyes at trial. While an objection to the prosecutor’s

statements suggesting that the officers would lose their jobs if they lied on the witness

stand might well have been sustained, no such objections were made. Although some of

the statements above might have been unwise, Ross points us to no Indiana law that

supports the contention that the above statements were misconduct. While we strongly

                                             9
caution prosecutors to avoid this line of questioning in the future, we do not find

fundamental error.

      Ross also argues that the prosecutor engaged in misconduct when he argued that

the officers’ training and police procedure required the officers to tell Ross why he was

being handcuffed. Ross maintains that the prosecutor argued facts not in evidence when

he mentioned police training procedures and protocols.

      A prosecutor may argue both law and facts and propound conclusions based on his

or her analysis of the evidence, but the prosecutor must confine closing argument to

comments based only upon the evidence presented. Gasper v. State, 833 N.E.2d 1036,

1042 (Ind. Ct. App. 2005).     The State may properly discuss the evidence and all

reasonable inferences which may be drawn therefrom so long as the prosecutor does not

imply personal knowledge independent of the evidence. Barnes v. State, 435 N.E.2d 235,

241 (Ind. 1982).

      During closing argument, the prosecutor argued that the officers would not have

placed handcuffs on someone without explaining why that person was being arrested

because the officer was “trained at the academy. This is (inaudible) from [d]ay [o]ne –

before you do anything, you tell them why you’re doing this, before you put the cuffs on

them, you tell them why they’re being arrested or being detained.” Tr. p. 266. Ross

argues that this statement assumes facts not in evidence regarding training and police

protocol.



                                           10
       Officer Keyes testified at trial that he was trained to explain to individuals why

they were being arrested and stated that officers were “taught to verbalize what we’re

doing,” and stated that he went through a “six month training academy.” Id. at 220, 39.

The prosecutor’s statements draw on this testimony, although perhaps hyperbolically. An

objection during trial may possibly have been sustained, but we do not believe that this

rises to the level of fundamental error.

       Ross also argues that the prosecutor engaged in misconduct when he suggested

that the officers saved the taxpayers money during closing argument, stating “Free tests?

Taxpayers have to pay for those tests don’t they; yeah, sure they do. They’re not

necessary, not needed, not required. They’re not even suggested by IMPD.” Id. at 261.

Ross maintains that these comments were not based on the evidence.

       When taken in context, it is clear that the prosecutor’s statements regarding the

tests were aimed at explaining to the jury that such tests were not required to convict

Ross of public intoxication. The prosecutor continues on to inform the jury that signs of

intoxication are sufficient and a breathalyzer test is not necessary for a conviction.

However, there is no evidence in the record concerning who pays for such tests. The

prosecutor should not have made comments about the matter, and an objection to

statements concerning taxpayers who pay for such tests may well have been sustained,

but, again, no such objection was made. We do not believe that the statement regarding

the taxpayers greatly affected or harmed Ross’s case and do not find fundamental error.



                                           11
      Ross also contends that the prosecutor misstated the material elements of resisting

law enforcement during closing argument. Ross maintains that the prosecutor mislead

the jury by suggesting that force was not a necessary element of resisting law

enforcement.

      To support a conviction for resisting law enforcement, the jury was required to

find that Ross knowingly or intentionally resisted, obstructed, or interfered with law

enforcement in the execution of their duties. I.C. § 35-44.1-3-1(a)(1). In Spangler v.

State, our Supreme Court determined “that one ‘forcibly resists’ law enforcement when

strong, powerful, violent means are used to evade a law enforcement official’s rightful

exercise of his or her duties.” 607 N.E.2d 720, 723 (Ind. 1993).

      During closing argument, the prosecutor stated:

      [The] State must prove a person knowingly or intentionally, forcibly
      resist[s], obstructs or interferes – so these are “[ors]” forcibly obstructs,
      forcibly resist or obstructs or interferes any of those with a law enforcement
      officer or a person assisting the officer while the officer is lawfully engaged
      in the execution of the officer’s duties. . . . This, and as I mentioned
      forcibly resist, or obstructs, or interferes with a law enforcement officer –
      we have to prove any of those three (3) – we have all of them in this case.
      Personal touch on obstruct or interferes with a law enforcement officer.
      Their duty at that point was to tow that vehicle; and by him getting into that
      vehicle and yelling at the officers, or just the getting in the vehicle
      interfering with them towing that vehicle that’s these two (2); and those (2)
      are there. And as for forcibly resist, you hear testimony about him pulling
      his arm up which Officer Garner had a hold of his right arm, jerking it away
      from Officer Garner while his left arm was snatching away from Officer
      Keyes – that’s forcibly resist; that’s strong powerful moves against these
      officers trying to get him to put his hands behind his back. So we have all
      (3) of these; we only need one (1) but we have all three (3) in this case.



                                            12
Tr. p. 247-48. Ross argues that, by informing the jury that he interfered or obstructed by

getting into the vehicle and yelling at the officer, the prosecutor misstated the law by

implying that Ross did not need to “forcibly” resist.

        Here, the prosecutor was explaining that Ross could be convicted based on his

action when he forcibly resisted the officer’s attempts to handcuff him or his forcible act

of interfering with the officer’s attempt to have his vehicle towed. Moreover, if there was

any confusion that force was an element required to convict Ross of resisting law

enforcement, it was allayed by the jury instructions. See Pettiford v. State, 506 N.E.2d

1088, 1089-90 (Ind. 1987) (final jury instructions can cure improprieties in a prosecutor’s

closing argument).         Final jury instruction one provided the statutory definition of

“resisting law enforcement,” which instructed the jury that to “forcibly resist, instruct, or

interfere” was an element of the resisting law enforcement. Appellant’s App. p. 65.

Final jury instruction five defined the term “forcibly”:

        The term forcibly is a word descriptive of the type of resistance,
        obstruction, or interference prescribed by law. One “forcibly resists” law
        enforcement when strong, powerful, or violent means are used to evade a
        law enforcement official’s rightful exercise of his or her duties. However,
        this force need not rise to the level of mayhem and [a] modest level of
        resistance may suffice. It is error as a matter of law to conclude that
        “forcibly resists” includes all actions that are not passive.

Id. at 69. It is made clear from the above jury instructions that force is a required element

of resisting law enforcement.3 We find no fundamental error.


3
 Ross argues that final jury instruction five was faulty, as it used the term “prescribed” by law rather than
“proscribed” by law as used in Spangler. 607 N.E.2d at 723. Ross argues that this jury instruction
compounded the prosecutor’s alleged misconduct in misstating the elements of resisting law enforcement.
                                                    13
         Additionally, we find that Ross’s argument that the above instances of alleged

prosecutorial misconduct taken together comprise fundamental error to be unpersuasive.

To show fundamental error, Ross was required to show that, under the circumstances, the

trial judge erred in not sua sponte raising the issue because alleged errors constitute

clearly blatant violations of basic and elementary principles of due process and present an

undeniable and substantial potential for harm. Ryan, 9 N.E.3d 663 at 668. He failed to

do so.

         The judgment of the trial court is affirmed.

KIRSCH, J., concurs, and ROBB, J., concurs in result without separate opinion.




We find that the jury instruction was still clear, and note that Ross has failed to raise a freestanding issue
regarding any jury instruction and has therefore waived any argument concerning such instruction.

                                                     14
