Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                         Dec 11 2013, 9:57 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

KRISTIN A. MULHOLLAND                           GREGORY F. ZOELLER
Appellate Public Defender                       Attorney General of Indiana
Crown Point, Indiana
                                                ERIC P. BABBS
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DOUGLAS A. SMITH,                               )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 45A03-1304-CR-154
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Salvador Vasquez, Judge
                              Cause No. 45G01-1201-MR-1



                                     December 11, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Douglas A. Smith appeals his conviction for murder. Smith raises two issues,

which we revise and restate as:

       I.     Whether the trial court erred in admitting certain evidence of a prior
              altercation; and

       II.    Whether the State committed prosecutorial misconduct requiring
              reversal.

We affirm.

                                         FACTS

       In January 2012, Smith lived with Jacqueline Williams, his girlfriend of

approximately two years, in Highland, Indiana. Williams was employed as a technician

in the imaging department at a hospital, and Smith was unemployed.

       On the night of January 13, 2012, Williams and her friends went to a bar in

Griffith, Indiana, where Smith met them. At some point Smith went home to shower, and

later Williams and a friend joined him at a bar in Highland. When Williams was talking

to some other women, Smith grabbed her by her upper arm, pulled her upward towards

him, and said “[w]hat the f--- do you think you’re doing” or “shut the f--- up.” Transcript

at 48, 383. Williams told Smith to “leave her the f--- alone.” Id. at 388. The two

continued to argue with each other. At some point prior to 2:15 a.m., Smith and Williams

exited the bar and drove to their residence. Smith and Williams were still angry with

each other when they left the bar.

       After they arrived home, they argued about their relationship. Williams was

convinced that Smith did not care about the relationship and was not committed enough,

and Smith told her that he loved her and was willing to do anything to commit to the

relationship. They took off each other’s clothes and began to have sex. Smith kept a gun
                                            2
in one of the bedrooms in the residence, and at some point before 3:00 a.m., he shot

Williams in the head causing her death.

       Smith called 911 from a bar in Highland at approximately 3:00 a.m., gave the

dispatcher a street address, and then hung up. The 911 dispatcher called the bar and

asked if there was an emergency. The employee who answered went outside to the

parking lot but Smith had already left and then drove to Tennessee and later to Florida.

At some point, he threw the gun in a body of water.

       Williams did not show up for work on January 15, 2012, and her colleagues

became concerned and went to her house. They noticed that Williams’s car was at her

house and that every light in the house was on, but there was no answer when they

knocked on the door. They made a report to police, and the police went to the residence

and found the door unlocked.

       Police discovered Williams’s body in the bedroom on the floor at the foot of the

bed. She was positioned on her back and had been shot in her left eye. The bullet had

exited the back of her skull and traveled through the floor and into the room below. Her

arms were at her side, she was dressed only in a black robe which was open and revealed

her naked body from several inches above her waist to her feet, and her knees were bent

up and spread apart. In the room beneath the bedroom where Williams’s body was

found, police discovered a bullet hole in the ceiling, the spent bullet, and blood spatter on

the floor directly below the hole in the ceiling.

       On the evening of January 15, 2012, Smith called his mother and left a message.

On the night of January 16, 2012, law enforcement in Florida identified Smith’s vehicle,

initiated a stop, and placed Smith under arrest.
                                             3
                               PROCEDURAL HISTORY

       On January 17, 2012, the State charged Smith with murder. Smith filed a motion

in limine arguing that any statements made by Joshua Casner, one of the State’s

witnesses, or any others regarding prior physical or verbal altercations between Smith

and Williams should be excluded because they constituted impermissible character

evidence. In its response, the State indicated in part that Casner would describe the

relationship between Smith and Williams as volatile in nature due to personally observing

physical and verbal abuse and that Casner specifically witnessed an incident at the home

of Smith and Williams in the summer of 2011 when Smith and Williams were intoxicated

and were in a heated argument which turned physical. The State also filed a notice of

intent to elicit testimony pursuant to Ind. Evidence Rule 404(b) pertaining to the nature of

the relationship between Smith and Williams as proof of motive, intent, preparation, plan

and absence of mistake or accident. On February 8, 2013, prior to the start of trial, Smith

filed a motion to withdraw his defense of self-defense.

       Smith’s jury trial commenced on February 11, 2013. During opening arguments,

he argued that he and Williams had a history of drinking, that they were intoxicated on

the night Williams was shot, that the loaded gun was a dangerous thing, that a person

handling a gun who is inexperienced, intoxicated, and untrained can lead to tragic and

horrible accidents, and that this was exactly what happened in this case. During its case

in chief, the State called Josh Casner as a witness. Casner testified that he had known

Smith since high school and Williams for five years. Smith’s defense counsel asked to

approach the bench, indicated that the State appeared to be ready to question Casner

regarding an incident that occurred at a Labor Day cookout, and noted that the trial court
                                            4
had previously ruled that the State could elicit testimony regarding the incident. Defense

counsel noted that, since that time, Smith had withdrawn his defense of self-defense and

objected to any testimony regarding the incident, arguing that the relationship or motive

of the parties is no longer an issue. The State argued that the testimony also tended to

show a lack of mistake or accident. The court then stated that there was no question that

the incident was relevant under Evidence Rule 404(b), that whether the evidence should

be admitted was a close call, and that under Evidence Rule 403 on balance the evidence

was too prejudicial.

       After presenting the testimony of another witness, the State asked to approach the

bench and again requested permission to question Casner regarding the events which took

place on Labor Day of 2011. The State argued that to show motive, case law allows the

State to inquire about prior domestic violence in a relationship between a defendant and

the victim. The State points out that Smith admitted that he had shot Williams but

claimed it was not his intent or motive to do so, and that the probative value of evidence

of the incident outweighed the danger of prejudice. The State also noted that the incident

occurred just four months before Williams’s death. Following a brief recess, the court

asked the State to explain the testimony it wished to elicit from Casner, and the State did

so. The court noted that it had an opportunity during the recess to review case law, that

there was “a drum beat repetition of the defense team of accident and certainly no intent,”

and that, although it had previously found that Casner’s testimony should not be

admitted, it now believed that the evidence should be admitted. Id. at 233. The court

found that, although the evidence was prejudicial, “given the defense raised and the []

drumbeat repetition of the accident issue,” it believed that the probative value outweighed
                                              5
any prejudice, and allowed the State to recall Casner for the limited purpose of

questioning him about the late summer 2011 incident. Id. at 234. Smith objected to the

testimony and requested a limiting instruction. The trial court informed the jury that

prior wrongs and acts are typically not admissible to prove that a person acted in

conformity therewith or to show the person’s character but that such evidence was

admissible in limited circumstances. The court noted that Casner’s testimony regarding

the incident was being admitted for the purpose of showing proof of motive, intent, or the

absence of mistake or accident.

      The State then elicited testimony from Casner that he attended a barbecue at the

home of Smith and Williams on Labor Day of 2011 together with five or six other

people, that Smith and Williams had been drinking “[a] lot” of alcohol that day, and that

everyone was intoxicated. Id. at 238. Casner testified that, while he and another man

were in the backyard and Smith and Williams were inside where he could see them

through a window, he heard Smith and Williams “cussing and screaming at each other,”

that he observed Williams “come up [behind Smith and] grab him by the cheek,” and that

then there was “a whole bunch of screaming after that.” Id. at 240. Casner further

testified that “then it got louder” and he observed “a fist up in the air come down” and

that he then told the other man “we got to go inside.” Id. Casner stated that he opened

the door, went inside, and observed Smith “on top of [Williams] with both knees on her

sides, straddling her,” that Smith said “calm down, you crazy b----,” and that Williams

said “get the f--- off me.” Id. at 240-241. Casner said that he observed Smith’s fist “go

up” twice. Id. at 241. Casner also testified that he and the other man grabbed Smith’s

arms and pulled him off of Williams, that Smith then went upstairs, and that Williams
                                          6
crawled underneath the kitchen table and was sobbing and in a fetal position rocking back

and forth.

       Later during the trial, Smith testified that he kept a gun he had purchased in

December 2010 in the bedroom. He testified that he and Williams had argued on the

morning of January 14, 2012 at the bar, that he had “told her to shut the f--- up,” that she

had told him “to leave her the f--- alone,” and that he and Williams returned home in his

vehicle at approximately 2:15 a.m. Id. at 388. Smith testified that, upon entering the

house, he and Williams began to argue and that Williams was “convinced that [he did

not] care enough about the relationship” and was not “committed enough.” Id. at 390.

He testified that he and Williams then began to take each other’s clothes off but that

shortly after that Williams pushed him off of her and started “bringing the argument back

up,” and that both he and Williams were “very drunk.” Id. at 391-392. He stated that

Williams followed him into a bedroom, then downstairs to the living room, and then back

upstairs to the bedroom, all the while arguing with him. Smith testified that, after

returning to the bedroom, he was on the bed and Williams walked in, grabbed the

handgun from next to the television, and started to raise it toward Smith.

       Smith said that he approached Williams, who was holding the gun with her right

hand, that he tried to grab the gun from her, that she backed up, and that he grabbed the

gun with his left hand, placing his hand over the cylinder or above the handle of the gun.

Smith further testified that he then turned the gun so it was not facing him or Williams,

that he and Williams started “pulling the gun back and forth,” that Williams “yank[ed]

hard” and began to fall to the ground, and that he started “to fall with her.” Id. at 409.

He testified: “I’m falling and the gun goes off,” and that he did not intend to kill her. Id.
                                             7
at 410. During cross-examination, Smith again testified that Williams started to fall and

that he started to fall with her. He stated: “I end up almost on top of her and that’s when

the gun must have gotten turned towards her and the gun goes off.” Id. at 432. He said

that he then shook Williams but she did not respond. Smith also testified regarding the

Labor Day 2011incident, stating that Williams grabbed him by the face, that he restrained

her because she was extremely angry and was hitting him, and that he did not strike her.

       The State also presented photographic evidence showing the rooms of the

residence where Williams was found, the bullet hole in the ceiling and spatter on the floor

beneath the hole, and Williams’s body as discovered by police. The photographs of

Williams’s body showed the position in which she was discovered, the nature of her

gunshot injuries, the placement and condition of her arms and hands, and that her left arm

was positioned under the bed to an extent. During closing arguments, the prosecutor

presented a visual slide regarding flight of a defendant, and a visual demonstration of the

events leading to the shooting in an attempt to show that the events could not have

occurred the way Smith claimed. Smith objected and moved for a mistrial on these

bases, and the court denied Smith’s requests. The jury received final jury instructions on

the crime and the elements of murder and the lesser included offenses of voluntary

manslaughter and reckless homicide. The jury found Smith guilty of murder. The court

sentenced him to fifty-five years in the Department of Correction.

                                      DISCUSSION

       Smith argues the trial court should have excluded evidence of the Labor Day 2011

altercation and that during closing argument the prosecutor committed prosecutorial

misconduct requiring reversal.
                                            8
                                            I.

       The first issue is whether the court erred in admitting evidence of the altercation

between Smith and Williams on Labor Day of 2011. The admission and exclusion of

evidence falls within the sound discretion of the trial court, and we review the admission

of evidence only for abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.

2002). An abuse of discretion occurs “where the decision is clearly against the logic and

effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001).

“Errors in the admission or exclusion of evidence are to be disregarded as harmless error

unless they affect the substantial rights of a party.” Fleener v. State, 656 N.E.2d 1140,

1141 (Ind. 1995) (citations omitted).

       Smith contends that the evidence of the altercation on Labor Day of 2011 was

improper character evidence and should have been excluded under Ind. Evidence Rules

404(b).   He argues that there were many ways to demonstrate the essence of his

relationship with Williams without the introduction of the prejudicial prior act, that he

was portrayed as a man who would strike his girlfriend in anger, and that this likely led

the jury to the forbidden inference that he was capable of purposely shooting her. The

State maintains that the challenged evidence was admissible under Ind. Evidence Rule

404(b) and that a defendant’s prior acts against a victim of a homicide are relevant to

show the hostile relationship between the parties and the defendant’s motive for

committing the crime and to rebut Smith’s claim of an accidental shooting. The State

further argues that, while incidents of domestic violence may have less probative value if

they are remote in time, here the Labor Day altercation happened less than five months

before Williams’s death and in the same residence where she was found. The State also
                                           9
points out that Smith brought up the Labor Day incident during his own direct testimony,

that defense counsel referred to the incident during his closing argument in an attempt to

lend plausibility to Smith’s version of the fatal shooting, and that Smith was not denied a

fair trial.

        Ind. Evidence Rule 404(b) provides:

        Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts
        is not admissible to prove the character of a person in order to show action
        in conformity therewith. It may, however, be admissible for other
        purposes, such as proof of motive, intent, preparation, plan, knowledge,
        identity, or absence of mistake or accident, provided that upon request by
        the accused, the prosecution in a criminal case shall provide reasonable
        notice in advance of trial, or during trial if the court excuses pre-trial notice
        on good cause shown, of the general nature of any such evidence it intends
        to introduce at trial.

        The standard for assessing the admissibility of Rule 404(b) evidence is: (1) the

court must determine that the evidence of other crimes, wrongs, or acts is relevant to a

matter at issue other than the defendant’s propensity to commit the charged act; and (2)

the court must balance the probative value of the evidence against its prejudicial effect

pursuant to Rule 403. Boone v. State, 728 N.E.2d 135, 137-138 (Ind. 2000), reh’g

denied; Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997). The evidence is inadmissible

when the State offers it only to produce the “forbidden inference” that the defendant has

engaged in other, uncharged misconduct and the charged conduct was in conformity with

the uncharged misconduct. Crain v. State, 736 N.E.2d 1223, 1235 (Ind. 2000). The trial

court has wide latitude, however, in weighing the probative value of the evidence against

the possible prejudice of its admission. Id. If evidence has some purpose besides

behavior in conformity with a character trait and the balancing test is favorable, the trial

court can elect to admit the evidence. Boone, 728 N.E.2d at 138. For instance, evidence
                                          10
which is necessary for the jury to understand the relationships between the victim,

various witnesses, and the defendant may be admissible. See Wilson v. State, 765 N.E.2d

1265, 1270-1271 (Ind. 2002).

       The record reveals that Casner testified, as set forth above, that Smith and

Williams had a verbal and physical altercation on Labor Day of 2011, that he heard Smith

and Williams screaming at each other, that he observed Williams pull Smith’s cheek and

Smith bring his fist down and his fist go up two times, that he and another person went

inside and pulled Smith off of Williams, and that Williams crawled under the kitchen

table and was sobbing and in a fetal position rocking back and forth. This evidence

demonstrated the sometimes hostile and physical nature of the relationship between

Smith and Williams and is relevant to whether Williams was or was not the victim of an

accidental shooting. See Ross v. State, 676 N.E.2d 339, 346 (Ind. 1996) (holding that

prior misconduct was “admissible because it demonstrated the defendant’s motive and

intent to commit the murder and illuminated the relationship between the defendant and

victim”); Elliott v. State, 630 N.E.2d 202, 204 (Ind. 1994) (prior threats of violence to ex-

wife and victim admissible to show the relationship between the parties and defendant’s

motive), reh’g denied; Price v. State, 619 N.E.2d 582, 584 (Ind. 1993) (prior bad acts

against the victim are admissible “to show the relationship between the parties and

appellant’s motive”), reh’g denied; Iqbal v. State, 805 N.E.2d 401, 408-409 (Ind. Ct.

App. 2004) (holding that evidence relating to a prior incident in which the defendant put

a gun to the victim’s head and threatened to kill her was indicative of the defendant’s

relationship with the victim and highly relevant for his motive to shoot the victim, that

the defendant’s “assertion of an accident is indicative of the nature of the relationship
                                           11
between the parties, characterized by jealousy and denial, and ultimately culminating into

hostility and murder,” that the evidence was “relevant to show the absence of the gun

accidentally being fired,” and that the trial court did not abuse its discretion by admitting

the defendant’s bad acts under Rule 404(b)).

       In addition, the testimony of the altercation was not overly graphic or otherwise

significantly prejudicial. The trial court explained to the jury that the testimony should

be considered for the limited purposes of showing proof of motive, intent, or the absence

of mistake or accident, and we cannot say that the probative value of the evidence was

substantially outweighed by the danger of unfair prejudice. See Hicks, 690 N.E.2d at 223

(noting that “at some point testimony about every incident of violence between the two

becomes more prejudicial than probative,” that evidence of two of the incidents

illustrated the hostile relationship that could have been a motive for murder, that evidence

of a third incident was graphic and of fairly low probative value in view of its remoteness

in time and thus inadmissible, and that considered in light of the other evidence about the

relationship the improperly-admitted evidence regarding the third incident was not

grounds for reversal).    The trial court did not abuse its discretion in admitting the

challenged evidence of Smith’s altercation with Williams on Labor Day of 2011, and the

admission of the evidence is not grounds for reversal.

                                             II.

       The next issue is whether any prosecutorial misconduct requires reversal of

Smith’s conviction. Smith asserts that the misstatements of law and fact during the

prosecutor’s closing argument amounted to prosecutorial misconduct which placed him

in grave peril and hampered his right to a fair trial, and that the trial court erred in
                                         12
denying his motions for mistrial. Smith specifically argues that prosecutorial misconduct

occurred when the prosecutor attempted to present to the jury an instruction regarding

evidence which tends to show an attempt to conceal or suppress and presented a visual

demonstration of the events leading to the shooting and in doing so inaccurately

portrayed the evidence.

       In reviewing a claim of prosecutorial misconduct, we determine: (1) whether the

prosecutor engaged in misconduct, and if so, (2) whether that misconduct, under all of the

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

not have been subjected. Coleman v. State, 750 N.E.2d 370, 374 (Ind. 2001). The

“gravity of peril” is measured by the “probable persuasive effect of the misconduct on the

jury’s decision, not on the degree of impropriety of the conduct.” Id. When deciding

whether a mistrial is appropriate, the trial court is in the best position to gauge the

surrounding circumstances and the potential impact on the jury. Stephenson v. State, 742

N.E.2d 463, 482 (Ind. 2001), cert. denied, 534 U.S. 1105, 122 S. Ct. 905 (2002). A

mistrial is “an extreme remedy granted only when no other method can rectify the

situation.” Overstreet v. State, 783 N.E.2d 1140, 1155 (Ind. 2003). The denial of a

mistrial lies within the sound discretion of the trial court, and will be reversed only upon

a finding of an abuse of discretion. Coleman, 750 N.E.2d at 375. An abuse of discretion

occurs where the decision is clearly against the logic and effect of the facts and

circumstances. Smith, 754 N.E.2d at 504.

A.     Reference to Flight

       The State initially requested that the jury receive an instruction regarding

consciousness of guilt which could include escape or fleeing from the scene of the crime,
                                           13
and the court denied the request. At one point during the State’s closing argument, the

prosecutor argued “[t]here’s some law I would like to make you aware of” that “isn’t

going to be in the final instructions.” Transcript at 503-504. Smith objected and stated it

would be improper for the State to discuss law not included in the jury instructions.

During a sidebar, Smith argued that the State could not argue flight as being evidence of

guilt and moved for a mistrial. The trial court told the prosecutor: “You can [] argue as

advocate [] that the evidence would show that him fleeing the scene should be – or you

can construe that as evidence of guilt . . . .” Id. at 506. The court then told the prosecutor

“[d]o not put up that screen again”1 and denied Smith’s request for mistrial. Id. The

court then admonished the jury stating: “I didn’t quite see what was up there. But what

was [] up there . . . was something about flight and [the prosecutor] indicated this is the

law, that there is law out there – the answer is that it is not. You know, what was up there

is not the law of this case. [The prosecutor] can make an argument as advocate for the

State of Indiana . . . on how you may construe the defendant’s actions, that’s not the

applicable law in this case. Applicable law in this case will be given to you by way of

final instruction. Please keep that in mind.” Id. at 506-507. The final jury instructions

provided that “[t]he unsworn statements or comments of counsel on either side of the

case should not be considered as evidence in the case.” Appellant’s Appendix at 203.

The jury instructions also provided that the instructions are the best source as to the law

applicable to the case.

       We have observed that it is proper for a prosecutor to argue both law and fact

during final argument. Neville v. State, 976 N.E.2d 1252, 1261 (Ind. Ct. App. 2012)

       1
           From the transcript, it appears that the prosecutor was presenting a slide presentation.
                                                      14
(citation omitted), trans. denied. In judging the propriety of a prosecutor’s remarks, we

consider statements in the context of the argument as a whole. Seide v. State, 784 N.E.2d

974, 977 (Ind. Ct. App. 2003). The Indiana Supreme Court has noted that flight and

related conduct may be considered by a jury in determining a defendant’s guilt. Dill v.

State, 741 N.E.2d 1230, 1232 (Ind. 2001). The Court further noted that, “although

evidence of flight may under appropriate circumstances be relevant, admissible, and a

proper subject for counsel’s closing argument, it does not follow that a trial court should

give a discrete instruction highlighting such evidence” and that “instructions that

unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case are

disapproved.” Id. The jury is presumed to follow the trial court’s instructions and not

law recited by counsel during arguments. Laux v. State, 985 N.E.2d 739, 750 (Ind. Ct.

App. 2013), trans. denied.

      Given the extent and nature of the challenged comments regarding flight, the trial

court’s admonishment to the jury, and the jury instructions, we conclude that any

prejudicial impact caused by the prosecutor’s statements was minimal and that Smith was

not placed in a position of grave peril to which he should not have been subjected. See

Wright v. State, 690 N.E.2d 1098, 1112 (Ind. 1997) (holding that the defendant was not

placed in a position of grave peril where an improper comment by the prosecutor was

fleeting and the jury was instructed that comments of counsel were not evidence), reh’g

denied. Moreover, to the extent the court may have erred with respect to sufficiently

admonishing the jury, we find any such error harmless based upon the evidence and in

light of the limited extent of the prosecutor’s comments in the context of the argument as


                                            15
a whole. We cannot say the trial court abused its discretion in denying Smith’s motion

for mistrial on this basis.

B.     Demonstration

       We next turn to Smith’s argument regarding the State’s demonstration of the

events leading to the shooting.      During the State’s rebuttal closing argument, the

prosecutor argued that it was physically impossible for the shooting to have occurred the

way Smith said that it did, and a deputy prosecutor and a detective attempted to present a

demonstration of Smith’s version of events. Smith objected to the demonstration on the

basis that it was testimonial, and the court overruled the objection, stating and cautioning

the jury that the presentation was demonstrative only. Smith interjected that the State’s

demonstration indicated Smith used his right hand to grab the gun although Smith had

indicated he had used his left hand, and the court reiterated that the prosecutor’s

argument was persuasive only and instructed the jury that their memory of the evidence

presented during the trial is what mattered.      The State presented the demonstration

indicating a struggle between Smith and Williams, how they would have fallen, and

where the gun would have been when it discharged. Defense counsel moved for a

mistrial, and the court denied the motion.

       Smith essentially contends on appeal that the prosecutor’s demonstration misstated

or mischaracterized his testimony and that the misconduct placed him in grave peril.

Again, this court has observed that it is proper for a prosecutor to argue both law and fact

during final argument and propound conclusions based upon the prosecutor’s analysis of

the evidence. Neville, 976 N.E.2d at 1261 (citation omitted). We also note, however,

that a prosecutor’s comments can be prejudicial if they have an impact on the jury’s
                                        16
ability to judge the evidence fairly. Id. (citation omitted). Prosecutors may not argue

facts not in evidence. Id.

       We note that the heart of Smith’s defense was that the shooting resulting in

Williams’s death was accidental and thus that he had not intended to kill her. In light of

Smith’s defense and testimony attempting to explain his version of how the shooting

occurred, the State argued that the shooting was not an accident and pointed to evidence

to support its position. The demonstration was an attempt to convince the jury that

Smith’s version of the shooting—including a struggle over the gun and the gun

accidentally discharging—was not believable based upon where Williams sustained a

gunshot, how her body was positioned, and the condition and position of her hands.

       The demonstration comprises approximately four pages of the State’s seventeen-

page rebuttal argument in the trial transcript. The jury heard an extended argument by

the prosecutor that the shooting was not an accident as Smith claimed, citing the position

of Williams’s body, the fact that the bullet traveled from her eye through her head,

through her skull, and then through the floor, and the evidence which showed that

Williams was pinned to the floor and helpless when Smith pulled the trigger. During the

demonstration, the prosecutor argued that no struggle had occurred between Smith and

Williams in the manner Smith had testified, noted the position of Williams’s limbs and

where the gun would have been discharged, and argued that Williams’s hands “were not

on that gun” and that “[t]he story does not add up.” Transcript at 528.

       Moreover, after the court denied Smith’s motion for a mistrial, the prosecutor

specifically argued that the position and condition of Williams’s body on the floor,

including the facts that her knees were propped up, her legs were spread wide and almost
                                            17
tucked underneath her, and she had scratches on her stomach, indicated that Williams had

not just fallen to the floor when the gun was discharged but that she was pinned to the

floor and attempting to break free from Smith. The State argued that the photographs

suggest that Smith straddled Williams, that her legs were trying to get traction to crawl

away from him, and that he restrained her. The State further argued that the photographs

showing the condition of Williams’s hands indicated there was no stippling, blowback, or

blood, that the photographs showing the condition of her face indicated there was

stippling on her face, and that if Williams’s hands had been near the gun and her face

when the gun discharged as Smith claimed then there would have been stippling on her

hands as well and some kind of other injury to her hand if it were on the cylinder of the

revolver. The State argued that the items around Williams’s body, including a dish and

trinkets, were not disturbed, that the bed was right next to where Williams fell, that a free

fall would have shaken something, and that the photographs indicate that nothing was

moved and that no free fall occurred. The State also argued that Smith was angry, noted

that there was no way that Smith looked at Williams and did not see the gunshot wound

when he shook her, pointed to Smith’s demeanor while testifying, argued that he was

controlling and showed no emotion and blamed Williams’s actions for the shooting, and

that he had lied about the shooting being an accident.

       We note that the jury viewed the photographic evidence of Williams’s body and

the position of her limbs. The detective who was responsible for the investigation of

Williams’s death testified that he believed Smith had murdered Williams based upon the

positioning of Williams’s body, the tumultuous relationship of Smith and Williams, and

Smith’s conduct after the shooting. The detective testified that he believed Williams was
                                          18
flat on her back when the shot that killed her was fired. The evidence shows that the

bullet, fired from within approximately three feet, entered Williams’s head through her

left eye, angled slightly upwards, fractured her eyeball and the base of her skull, passed

through her brain, fractured the top of her skull, and exited her head and traveled through

the floor and into the room below. Blood pooled behind Williams’s head and dripped

through the bullet hole in the floor and into the room below. The evidence shows that

Williams’s arms were at her side, she was dressed only in a black robe which was open

and revealed her naked body from several inches above her waist to her feet, and her

knees were bent up and spread apart. Evidence was presented to the jury from which it

could have concluded that Williams was pinned against the floor by Smith, that her arms

and hands were not on or around the gun when it discharged, and that she had not just

fallen to the floor when she was shot based on the position and condition of her body,

legs, arms, one of which was under the bed, and hands, which showed none of the

blowback or blood spatter which was visible on her face and surrounding area. Further,

the court admonished the jury that, to the extent the demonstration differed from Smith’s

testimony, their memories are what mattered, and the jury was instructed that the

comments of counsel should not be considered as evidence in the case.

       Based upon the evidence before the jury and the arguments of the State and

Smith’s defense as a whole, and especially in light of the trial court’s admonishment and

the final jury instructions, we conclude that even if it was misconduct, the prosecutor’s

demonstration did not impact the jury’s ability to judge the evidence fairly and did not

place Smith in a position of grave peril to which he should not have been subjected. The

trial court did not abuse its discretion in denying Smith’s motion for mistrial on this basis.
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                                   CONCLUSION

      For the foregoing reasons, we affirm Smith’s conviction for murder.

      Affirmed.

NAJAM, J., and MATHIAS, J., concur.




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