MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                  Aug 15 2019, 10:48 am
court except for the purpose of establishing
                                                                                  CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Peter C. Soldato                                         Curtis T. Hill, Jr.
Goshen, Indiana                                          Attorney General of Indiana
                                                         Angela Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Ryan T. Baxter,                                          August 15, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3019
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Kristine Osterday,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D01-1605-F1-4



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019                     Page 1 of 19
                                          Statement of the Case
[1]   Ryan Baxter (“Baxter”) appeals, following a jury trial, his convictions of Level

      1 felony rape1 and Level 6 felony strangulation.2 Baxter argues that: (1) the

      trial court abused its discretion in its rulings on the admission and exclusion of

      evidence; and (2) the prosecutor engaged in prosecutorial misconduct that

      amounted to fundamental error. Concluding that the trial court did not abuse

      its discretion and that Baxter has failed to show fundamental error, we affirm

      Baxter’s convictions.


[2]   We affirm.


                                                        Issues
                1. Whether the trial court abused its discretion in its admission and
                   exclusion of evidence.

                2. Whether the prosecutor’s statements during closing argument
                   amounted to fundamental error.



                                                        Facts
[3]   In August 2015, Baxter contacted, via Facebook Messenger, fellow high school

      alum, J.W. (“J.W.”), after J.W. had made a Facebook post regarding her

      breakup with her longtime boyfriend.3 J.W. knew that Baxter had been in a



      1
          IND. CODE § 35-42-4-1.
      2
          I.C. § 35-42-2-9.
      3
          J.W. graduated from high school in 2012, and Baxter graduated in 2014.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 2 of 19
      long-term, on-and-off relationship, and she sought his advice about how to

      “fix” her relationship with her boyfriend. (Tr. Vol. 2 at 105). Baxter and J.W.

      began communicating via Snapchat and text. On August 9, 2015, Baxter asked

      J.W. if he could come to her apartment the following day immediately after his

      work shift so they could talk. J.W., who thought that Baxter was being

      “supportive” and “seemed like he wanted to help” her, agreed. (Tr. Vol. 2 at

      106).


[4]   During the afternoon of August 10, 2015, Baxter went to J.W.’s apartment.

      When Baxter arrived, J.W. introduced him to her teenage son (“J.W.’s son”).4

      Prior to arriving at the house, Baxter had asked J.W. if he could take a shower

      since he was coming straight from work. When in the bathroom, Baxter asked

      J.W. for help with turning on the shower. J.W. had had problems with her

      shower handle getting stuck, so she went into the bathroom to assist Baxter

      with the handle. As she was trying to turn the handle, Baxter put his hand

      under J.W.’s shirt and asked her if she wanted to shower with him. J.W. told

      him “no,” that she “didn’t want to take a shower with him[,]” and that she

      “wasn’t having sex with him.” (Tr. Vol. 2 at 109). J.W. left the bathroom,

      went into the living room, and told her son what had happened.


[5]   After Baxter finished his shower, he walked into the living room, sat next to

      J.W. on the couch, put his arm around her, and touched her thigh. J.W. got up




      4
          In August 2015, J.W. had a guardianship over her son and later adopted him.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 3 of 19
      and moved to the other side of the couch, and Baxter “scooted” toward her.

      (Tr. Vol. 2 at 113). When J.W.’s son left the apartment, Baxter started “kissing

      on” J.W. and tried to kiss her on her lips. (Tr. Vol. 2 at 115). J.W. told Baxter

      to “stop” and informed him that she did not want to have sex with him. (Tr.

      Vol. 2 at 115). Disregarding J.W.’s comments, Baxter pulled down his pants,

      grabbed J.W. by her hair, and tried to force her to perform oral sex on him.

      Again, J.W. told him, “No” and “Stop.” (Tr. Vol. 2 at 116). When Baxter let

      go of J.W.’s hair, she ran for the door. Baxter grabbed J.W. from behind in a

      “bear hug[,]” “squeezed [her] so tight that [she] thought he might have broke[n]

      [her] ribcage[,]” and threw her on the couch. (Tr. Vol. 2 at 119). Baxter then

      put one hand around J.W.’s throat and choked her and used the other hand to

      pull off her pants and underwear. He forced her legs apart, “ripped [her]

      tampon out[,]” and “inserted” his penis into her vagina. (Tr. Vol. 2 at 116).

      Baxter repeatedly asked J.W., “Do you like that, baby?” (Tr. Vol. 2 at 116,

      122). J.W. was unable to breathe, speak, or yell as Baxter choked her. At some

      point during the ordeal, J.W.’s cell phone on the coffee table rang. When she

      tried to reach for the phone, Baxter “choked [her] harder and [she] almost

      blacked out.” (Tr. Vol. 2 at 116). Once Baxter was “done,” he wiped himself

      off with a towel, got dressed, told J.W. that he would talk to her later, and then

      left her apartment. (Tr. Vol. 2 at 116).


[6]   J.W., then able to breathe, ran to her bathroom and vomited. That same day,

      J.W. told a friend what had happened and then went to the hospital. A nurse,

      Kathleen Turco (“Nurse Turco”) performed a sexual assault examination and


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 4 of 19
      contacted the police. After receiving treatment at the hospital, J.W. went to the

      police station and gave a statement to Officer Bryan Wodtkey (“Officer

      Wodtkey”) regarding Baxter’s offenses against her. While interviewing J.W.,

      Officer Wodtkey noted that she was crying and “visibly upset.” (Tr. Vol. 2 at

      68). After J.W.’s interview, the police went to her apartment, collected

      evidence, and took photographs.


[7]   The State charged Baxter with Level 1 felony rape and Level 6 felony

      strangulation. Baxter’s counsel took J.W.’s deposition prior to the scheduled

      jury trial in this case. During the deposition, Baxter’s counsel asked J.W. if she

      had ever filed a police report against someone for a similar situation as her

      accusations against Baxter, and she stated that she had in 2011. Thereafter,

      Baxter’s counsel obtained the police investigation report regarding the 2011

      allegation.


[8]   The trial court held a three-day jury trial in August 2018. Before the

      presentation of evidence, Baxter asked the trial court to rule on whether Baxter

      would be allowed to present evidence, under an exception to Evidence Rule

      412, regarding J.W.’s prior rape accusation. Specifically, Baxter argued that

      J.W.’s accusation from 2011 should be admissible because it was demonstrably

      false. In support of his argument, Baxter presented the trial court with: (1) a

      copy of the police investigation report; and (2) a two-page excerpt from J.W.’s

      deposition. Baxter used the tendered documents as his offer of proof. Baxter

      did not present any witness testimony to support his argument. The trial court

      reviewed the documentary evidence and relevant caselaw and concluded that

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 5 of 19
       there was “nothing in . . . the information that[] [had] been tendered to the

       Court – that lead[] [the court] to believe that the allegation was demonstrably

       false.” (Tr. Vol. 2 at 50).


[9]    During the trial, J.W. testified regarding the offenses against her as set forth in

       the facts above. During Nurse Turco’s testimony, the State offered into

       evidence State’s Exhibit 11, the medical record from J.W.’s sexual assault exam

       and hospital treatment. Baxter objected to the admission of the exhibit, arguing

       that J.W.’s statements within the medical records were hearsay and were

       cumulative of J.W.’s trial testimony regarding the alleged offenses.5 The State

       argued that the medical records were admissible under Evidence Rule 803(4),

       the medical diagnosis or treatment exception to hearsay. The trial court

       overruled Baxter’s objections and admitted State’s Exhibit 11 into evidence.


[10]   Thereafter, the State asked Nurse Turco what J.W. had told her during the

       examination. Baxter, believing that the State was going to have the nurse read

       verbatim a portion of the medical record into evidence, objected to the potential

       testimony as cumulative. The State clarified that it did not intend to have the

       nurse read the report but to merely summarize what J.W. had reported to her.

       Nurse Turco then testified, in a summary fashion, about the information that




       5
         Baxter also objected, based on hearsay and the Confrontation Clause, to the admission of the medical scans
       and reports from the radiologist and doctor contained in State’s Exhibit 11. On appeal, he does not challenge
       the trial court’s evidentiary ruling on this objection.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019                 Page 6 of 19
       J.W. had conveyed regarding the offenses against her. Baxter did not object to

       this testimony.


[11]   Baxter testified on his own behalf. He denied that he had touched J.W. when

       she was helping him with the shower handle. He testified that, after he had

       finished his shower, he sat next to J.W. on the couch, put his arm around her,

       and tickled her. Baxter denied that J.W. moved away from him when they

       were on the couch. He testified that they kissed while sitting on the couch and

       that J.W. put “her hands all over [his] body[,]” including touching his penis.

       (Tr. Vol. 3 at 27). Baxter testified that he had consensual sex with J.W. and

       that she never told him to stop. Additionally, he testified that he placed one of

       his hands around the front of J.W.’s neck with a “firm grasp” when they were

       having sex, but he denied that he had strangled her. (Tr. Vol. 3 at 31). Baxter

       testified that he “assumed she liked it” because she pulled him closer and did

       not push his hand away. (Tr. Vol. 3 at 32).


[12]   During closing arguments, Baxter’s counsel told the jury that Baxter did not

       have the burden of proof and that he did not have to testify. Counsel then

       argued that Baxter, nevertheless, testified to tell the jury “the good, the bad[,]

       and the ugly” and to explain “how it happened” and what he had done. (Tr.

       Vol. 3 at 69). Baxter’s counsel also argued that the police investigation was

       inferior, including Officer Wodtkey’s failure to look at J.W.’s cell phone.

       Specifically, counsel argued that Officer Wodtkey should have asked J.W. to

       see her cell phone so that he could corroborate her statement that her phone

       rang when Baxter was choking her. Additionally, during Baxter’s closing

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 7 of 19
       argument, his counsel directed the jury’s attention to State’s Exhibit 11, the

       medical records, and encouraged the jury to “please, inspect them at [its]

       leisure.” (Tr. Vol. 3 at 79). Thereafter, Baxter’s counsel discussed in detail

       various portions of the medical records.


[13]   During the State’s rebuttal argument, the prosecutor responded to Baxter’s

       arguments regarding the officer’s failure to look at J.W.’s cell phone to

       corroborate her statement and regarding the fact that Baxter had decided to

       testify at trial. First, in regard to J.W.’s phone, the prosecutor noted that

       Baxter’s counsel had “brought up the fact that there’s no phone records to prove

       that [J.W.] got this phone call or to corroborate [J.W.’s] story” and then stated

       that “the defense has the third[-]party power to subpoena[.]” (Tr. Vol. 3 at 86).

       Baxter objected, arguing that the State had improperly shifted the burden of

       proof to him. Upon Baxter’s request, the trial court admonished the jury.

       Specifically, the trial court admonished the jury as follows: “I will admonish

       you that under the laws of the state of Indiana, there is no burden on behalf of

       the Defendant to prove or explain anything.” (Tr. Vol. 3 at 88). Baxter did not

       move for a mistrial.


[14]   Thereafter, when responding to Baxter’s argument about his decision to testify,

       the prosecutor stated:


               [Baxter’s counsel] is absolutely correct, he doesn’t have to take
               the stand. Constitutionally he has a right not to do that. But the
               State submits to you that he did have to take the stand after the
               State’s case in chief to convince you all that this was somehow
               consensual because the evidence in the State case in chief was so

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 8 of 19
               overwhelming, that testimony from [J.W.] was so overwhelming
               that he had to get up there and tell this[.]”


       (Tr. Vol. 3 at 91). Baxter made “the same objection” and asked the trial court

       to again admonish the jury. (Tr. Vol. 3 at 92). The trial court then admonished

       the jury, in relevant part, as follows:


               . . . I will again admonish you that the Defendant has protections
               afforded to him under the Constitution of the United States and
               the Indiana Constitution that does not require him to testify and
               so I believe with specifically with the comment that he has to tell
               you or he has to testify, under those constitutions is, in fact, not
               true.


       (Tr. Vol. 3 at 93). Baxter did not move for a mistrial.


[15]   In its final instructions to the jury, the trial court instructed the jury, in relevant

       part, that the “State ha[d] the burden of proving [Baxter] guilty beyond a

       reasonable doubt” and that Baxter was “presumed to be innocent,” was “not

       required to present any evidence to prove his innocence, or to prove or explain

       anything.” (Tr. Vol. 3 at 98, 99). The jury found Baxter guilty as charged. The

       trial court imposed a thirty (30) year sentence with (5) years suspended to

       probation, for Baxter’s Level 1 felony rape conviction and a one (1) year

       sentence for his Level 6 felony strangulation conviction, and the court ordered

       that these sentences be served concurrently. Baxter now appeals.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 9 of 19
                                                   Decision
[16]   Baxter argues that: (1) the trial court abused its discretion in its rulings on the

       admission and exclusion of evidence; and (2) the prosecutor engaged in

       prosecutorial misconduct that amounted to fundamental error. We will review

       each argument in turn.


       1. Evidentiary Rulings


[17]   We first address Baxter’s argument that the trial court abused its discretion in

       some of its evidentiary rulings. Specifically, Baxter contends that the trial court

       abused its discretion by excluding evidence of J.W.’s 2011 rape accusation and

       by admitting State’s Exhibit 11, the medical records.


[18]   The admission and exclusion of evidence falls within the sound discretion of

       the trial court, and we review the admission of evidence only for an abuse of

       discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of

       discretion occurs when the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,

       871 (Ind. 2012), reh’g denied.


[19]   Turning to Baxter’s argument regarding the exclusion of J.W.’s prior rape

       accusation, we note that the admission of evidence relating to a victim’s past

       sexual conduct is governed by Indiana Evidence Rule 412, which is commonly

       referred to as the Rape Shield Rule. Candler v. State, 837 N.E.2d 1100, 1103

       (Ind. Ct. App. 2005), reh’g denied. The purpose of Evidence Rule 412 is “to

       prevent the victim from being put on trial, to protect the victim against surprise,
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 10 of 19
       harassment, and unnecessary invasion of privacy, and, importantly, to remove

       obstacles to reporting sex crimes.” State v. Walton, 715 N.E.2d 824, 826 (Ind.

       1999). Evidence Rule 412 generally prohibits the admission of evidence

       regarding the past sexual conduct of a victim or witness. See Evid. R. 412.

       Rule 412, however, contains enumerated exceptions applicable in criminal

       cases—none of which are relevant or at issue in this appeal—that permit a trial

       court to admit certain evidence regarding a victim’s sexual behavior. See Evid.

       R. 412(b)(1). Additionally, a common law exception to Evidence Rule 412

       exists for evidence that a victim has made “prior false accusations of rape[.]”

       Walton, 715 N.E.2d at 826.6 “This exception provides that evidence of a prior

       accusation of rape is admissible if: (1) the victim has admitted that his or her

       prior accusation of rape is false[;] or (2) the victim’s prior accusation is

       demonstrably false.” Candler, 837 N.E.2d at 1103. “Prior accusations are

       demonstrably false where the victim has admitted the falsity of the charges or

       they have been disproved.” Id. “As a general rule, when the admission of

       evidence is predicated on a factual determination by the trial court, we review

       under a clearly erroneous standard of review.” Id.


[20]   Here, where J.W. never stated that the 2011 rape accusation was false, Baxter

       was required to prove that her prior accusation was demonstrably false. For his




       6
        The Walton Court explained that “[e]vidence of prior false accusations of rape made by a complaining
       witness d[id] not constitute ‘prior sexual conduct’ for rape shield purposes” of Evidence Rule 412 because
       “such evidence [wa]s more properly understood as verbal conduct, not sexual conduct.” Walton, 715 N.E.2d
       at 826.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019              Page 11 of 19
       offer of proof, Baxter presented the trial court with: (1) a copy of the 2011

       police investigation report; and (2) a two-page excerpt from J.W.’s deposition in

       this case. In her deposition, J.W. discussed the prior rape accusation and

       confirmed that she had never recanted the veracity of the accusation. The 2011

       police report contained a document, which set forth the false informing statute

       and contained J.W.’s signature, by which she declared that she had read and

       understood the statute and acknowledged that she would be prosecuted if she

       violated the statute by reporting her rape allegation. The police report also

       included some text messages between J.W. and the accused. Baxter argued

       below, and argues on appeal, that the text messages were sexual in nature and

       showed the falsity of J.W.’s accusation. The trial court reviewed the tendered

       documentary evidence and relevant caselaw and concluded that there was

       “nothing in . . . the information that[] [had] been tendered to the Court – that

       lead[] [the court] to believe that the allegation was demonstrably false.” (Tr.

       Vol. 2 at 50). Because J.W. did not recant her accusation and Baxter failed to

       show that the accusation was demonstrably false, the trial court properly

       excluded the proffered evidence. See, e.g., Candler, 837 N.E.2d at 1103

       (affirming the trial court’s ruling, under Evidence Rule 412, excluding evidence

       based on its factual determination that the victim had not admitted the falsity of

       the charges and that the charges were not demonstrably false). Accordingly, we

       affirm the trial court’s evidentiary ruling on this issue.


[21]   Next, we turn to Baxter’s admission of evidence argument in which he asserts

       that the trial court abused its discretion by admitting State’s Exhibit 11, the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 12 of 19
       medical records. Specifically, he challenges J.W.’s statements, which were

       made to and recorded by the nurse, regarding how Baxter had raped and

       strangled J.W. At trial, Baxter objected to this evidence, arguing that it was

       hearsay and was cumulative of J.W.’s trial testimony. The trial court admitted

       the evidence under the hearsay exception contained in Evidence Rule 803(4),

       statements made for the purpose of medical diagnosis and treatment. On

       appeal, Baxter challenges that ruling.


[22]   Indiana Evidence Rule 803(4) permits statements made for the purpose of

       medical diagnosis and treatment to be admitted into evidence, even when the

       declarant is unavailable as a witness. Evid. R. 803(4). Evidence Rule 803(4)

       requires that any such statement: “(A) is made by a person seeking medical

       diagnosis or treatment; (B) is made for -- and is reasonably pertinent to --

       medical diagnosis or treatment; and (C) describes medical history; past or

       present symptoms, pain or sensations; their inception; or their general cause.”

       Id. (format altered). This hearsay exception is “grounded in a belief that the

       declarant’s self-interest in obtaining the proper medical treatment makes such a

       statement reliable enough for admission at trial[.]” VanPatten v. State, 986

       N.E.2d 255, 260 (Ind. 2013). “[M]ore simply put, Rule 803(4) reflects the idea

       that people are unlikely to lie to their doctors because doing so might jeopardize

       their opportunity to be made well.” Id.


[23]   When determining whether a statement was properly admitted pursuant to

       Rule 803(4), the following two-step analysis is required: (1) whether the

       declarant is motivated to provide truthful information in order to promote

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 13 of 19
       diagnosis and treatment; and (2) whether the content of the statement is such

       that an expert in the field would reasonably rely upon it in rendering diagnosis

       or treatment. Id. To satisfy the first prong, the requirement of showing the

       declarant’s motivation, the “‘declarant must subjectively believe that he [or she]

       was making the statement for the purpose of receiving medical diagnosis or

       treatment.’” Id. (quoting McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996)).

       “With most declarants, this is generally a simple matter[.]” Id. “[F]or example

       where a patient consults with a physician, the declarant’s desire to seek and

       receive treatment may be inferred from the circumstances.” Id. at 261. As for

       the second prong, “[s]tatements made by victims of sexual assault . . . about the

       nature of the assault or abuse—even those identifying the perpetrator—

       generally satisfy the second prong of the analysis because they assist medical

       providers in recommending potential treatment for sexually transmitted disease,

       pregnancy testing, psychological counseling, and discharge instructions.” Id. at

       260 (citing Palilonis v. State, 970 N.E.2d 713, 726-27 (Ind. Ct. App. 2012), trans.

       denied).


[24]   Baxter challenges the trial court’s evidentiary ruling based only the first prong

       of this Rule 803(4) analysis. We need not, however, determine whether the

       trial court abused its discretion by admitting the medical records containing

       J.W.’s statements into evidence because, even if it was erroneous to admit the

       evidence, any error was harmless. “[E]rrors in the admission of evidence are to

       be disregarded as harmless error unless they affect the substantial rights of a

       party.” McClain, 675 N.E.2d at 331 (citing Ind. Trial Rule 61). When


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 14 of 19
       determining whether any error in the introduction of evidence affected a

       defendant’s substantial rights, we must assess the probable impact of the

       evidence upon the jury. Id. The “[a]dmission of hearsay evidence is not

       grounds for reversal where it is merely cumulative of other evidence admitted.”

       Id. at 331-32.


[25]   Here, J.W. testified at trial and was subject to cross-examination regarding her

       allegations that Baxter had raped and strangled her. J.W.’s statements

       concerning these same allegations as contained in the medical records merely

       repeated her statements made on the stand. Indeed, at trial, Baxter

       acknowledged that J.W.’s statements in the medical report were merely

       cumulative of her trial testimony. Specifically, Baxter objected to the admission

       of the medical report as “cumulative” because J.W. had “already testified with

       respect to . . . what she reported” to the nurse. (Tr. Vol. 2 at 214). Moreover,

       Nurse Turco testified as to what J.W. had reported to her during the exam.

       Additionally, during closing argument, Baxter’s counsel directed the jury’s

       attention to State’s Exhibit 11, the medical records, and encouraged the jury to

       “please, inspect them at [its] leisure.” (Tr. Vol. 3 at 79). Thereafter, Baxter’s

       counsel discussed in detail various portions of the medical records. Because

       J.W.’s statements contained in the medical records were cumulative of her trial

       testimony and because Baxter has not shown that his substantial rights were

       affected, any potential error in the admission of the medical records was

       harmless error. See, e.g., McClain, 675 N.E.2d at 331 (concluding that any error




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 15 of 19
       in the admission of evidence under Evidence Rule 803(4) was harmless where

       the challenged evidence was merely cumulative of the victim’s trial testimony).7


       2. Prosecutorial Misconduct


[26]   Baxter contends that the prosecutor committed two instances of prosecutorial

       misconduct. Baxter argues that the prosecutor’s two comments made during

       the State’s rebuttal argument suggested that he had the burden of proof or the

       burden to produce evidence. Baxter acknowledges that he has procedurally

       defaulted his claim of prosecutorial misconduct by failing to seek a mistrial after

       the two comments and that he, therefore, must show fundamental error.


[27]   To prevail on a claim of prosecutorial misconduct that has been procedurally

       defaulted, a defendant must establish the grounds for the prosecutorial

       misconduct, and he must also establish that the prosecutorial misconduct

       resulted in fundamental error. Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014),

       reh’g denied. When reviewing a claim of prosecutorial misconduct, our Court

       determines: (1) whether misconduct occurred, and if so; (2) whether the




       7
         Moreover, our review of the record shows that the generally “simple matter” of showing that the declarant
       was motivated to provide truthful information in order to promote diagnosis and treatment (as required by
       the first prong of the Evidence Rule 803(4) analysis) can be inferred from the circumstances where J.W. went
       to the hospital, consulted with and was examined by a nurse and doctor, had medical tests done, and
       received treatment. See VanPatten, 986 N.E.2d at 261. Additionally, when the prosecutor questioned J.W.
       about going to the hospital, she affirmed that she gave information to the nurse with the “idea or knowledge
       that [she] w[as] providing some information so that [she] could get some treatment[.]” (Tr. Vol. 2 at 126-27).
       Because J.W.’s statements in the medical record were made in the course of medical diagnosis and treatment,
       the trial court did not abuse its discretion by admitting State’s Exhibit 11 into evidence. See, e.g., Palilonis,
       970 N.E.2d at 727 (holding that a victim’s hearsay statements that described a rape and were made to
       hospital personnel during her sexual assault examination where statements were made in the course of
       medical treatment and admissible under the hearsay exception of Rule 803(4)).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019                    Page 16 of 19
       misconduct, under all of the circumstances, placed the defendant in a position

       of grave peril to which he or she would not have been otherwise subjected. Id.

       at 667.


[28]   For a claim of prosecutorial misconduct to rise to the level of fundamental

       error, a 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.”

       Id. at 668 (internal quotation marks omitted). Thus, 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.” Id. (internal quotation marks omitted). The

       element of harm is not shown by the fact that a defendant was ultimately

       convicted. Id. “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.” Id. (emphasis in original).


[29]   Here, Baxter objected to two arguments made by the prosecutor during the

       State’s rebuttal argument. The prosecutor’s arguments were in response to

       Baxter’s arguments regarding the officer’s failure to look at J.W.’s phone to

       corroborate her statement and the fact that Baxter had decided to testify at trial.

       When objecting to the State’s two rebuttal arguments, Baxter argued that the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 17 of 19
       State had improperly shifted the burden of proof to him. Baxter requested the

       trial court to admonish the jury, but he did not request a mistrial. The trial

       court admonished the jury that Baxter did not have the burden to prove

       anything and that he was not required to testify. In its jury instructions, the

       trial court informed the jury that the State, not Baxter had the burden of proof.

       The trial court also instructed the jury that Baxter was presumed innocent and

       that he was not required to present evidence or to prove or explain anything.


[30]   We acknowledge that “[i]t is improper for a prosecutor to suggest that a

       defendant shoulders the burden of proof in a criminal case.” Stephenson v.

       State, 742 N.E.2d 463, 483 (Ind. 2001), cert. denied. We, however, need not

       determine whether the prosecutor’s two statements were improper or amounted

       to misconduct because Baxter has not established fundamental error. See Ryan,

       9 N.E.3d at 667-68 (explaining that to prevail on a claim of prosecutorial

       misconduct that has been procedurally defaulted, a defendant must establish the

       grounds for the prosecutorial misconduct and that the prosecutorial misconduct

       resulted in fundamental error). Even if the statements amounted to

       misconduct, any such error did not amount to fundamental error where the trial

       court admonished the jury and instructed the jury that Baxter was not required

       to prove his innocence or present any evidence at trial. Under the

       circumstances of this case, we cannot conclude that the prosecutor’s statements

       rose to the level of fundamental error. See e.g., Ryan, 9 N.E.3d at 672-73

       (concluding that there was no fundamental error resulting

       from prosecutorial misconduct where the jury was properly instructed); Reliford


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 18 of 19
       v. State, 436 N.E.2d 313, 315 (Ind. 1982) (holding that the trial court “cured”

       any improper statement by the prosecutor when it instructed the jury that “the

       defendant was not required to present any evidence whatsoever and was not

       required to prove or disprove his innocence”);

       Ramsey v. State, 853 N.E.2d 491, 501-02 (Ind. Ct. App. 2006) (explaining that

       any alleged misconduct from the prosecutor’s statements was cured by the trial

       court’s instructions to the jury regarding the burden of proof and the fact that

       the defendant was not required to present any evidence), trans. denied.


[31]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019   Page 19 of 19
