MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Jun 22 2020, 10:45 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Tyler E. Burgauer                                       Curtis T. Hill, Jr.
Muncie, Indiana                                         Attorney General of Indiana
Samuel J. Beasley                                       Angela N. Sanchez
Muncie, Indiana                                         Assistant Section Chief
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert S. Flowers, Jr.,                                 June 22, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2800
        v.                                              Appeal from the Delaware Circuit
                                                        Court
State of Indiana,                                       The Honorable Thomas A.
Appellee-Plaintiff,                                     Cannon, Jr., Judge
                                                        Trial Court Cause No.
                                                        18C05-1904-F6-351



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020                  Page 1 of 15
                                Case Summary and Issue
[1]   Following a jury trial, Robert Flowers was found guilty of battery on a public

      safety official, a Level 6 felony, and disorderly conduct, a Class B

      misdemeanor. The trial court sentenced Flowers to a total of eighteen months

      to be served in the Delaware County Jail. Flowers appeals his battery

      conviction, raising one issue for our review: whether alleged prosecutorial

      misconduct amounted to fundamental error denying him a fair trial on this

      count. Concluding Flowers has failed to prove fundamental error, we affirm.



                            Facts and Procedural History
[2]   In the early morning hours of April 17, 2019, Muncie Police Department

      officers were dispatched to a home on Streeter Avenue because a call had come

      in from “a male . . . who wasn’t making a lot of sense [with] a female crying in

      the background.” Transcript of Evidence, Volume 2 at 23. When officers

      arrived, they found a male, later identified as Flowers, in the middle of the

      street behaving very aggressively and yelling profanities. Despite efforts by the

      officers to “get Flowers to settle down [and] understand what exactly his side of

      the story was[,]” they “never figured out what the problem was.” Id. at 26.

      They told Flowers to calm down and be quiet because he was being disorderly,

      but Flowers never quieted down. He “made comments about being

      handicapped and having one arm[,]” but then said he had “wooped [the] a**es”

      of people inside the Streeter Avenue house and he would “woop [an officer’s]

      mother f*ckin a**” as well. Id. at 27-28. Officers then placed Flowers in

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020   Page 2 of 15
      handcuffs “before it got out of hand.” Id. at 28. Once placed in a police vehicle

      for transport to the jail, Flowers remained agitated, was uncooperative, and

      continued to yell.


[3]   Because of Flowers’ behavior, four correctional officers with the emergency

      response team met the vehicle at the jail to take custody of Flowers. 1 Per

      policy, everyone who comes into the jail is patted down and if the person has a

      non-driving felony charge, strip searched. However, Flowers continued to be

      combative with officers as they attempted to search him—tensing up, adopting

      a fighting stance, pulling away, and screaming. Officers therefore began to

      employ a series of progressive force efforts to restrain Flowers and obtain his

      compliance, including verbal commands, use of a pressure point, peroneal knee

      strikes to the side of the leg, and eventually, use of a taser.


[4]   Officer Clayton Combs warned Flowers that he would be tased if he did not

      comply with officer commands. Officer Combs’ taser was not outfitted for

      projecting barbs from a distance so he moved toward Flowers to “drive stun”

      him. Id. at 169.2 Before Officer Combs could make contact, Flowers punched

      him in the right side of his jaw. Officer Combs then stunned Flowers twice,

      once on the left side of his abdomen and once on his back side. A second

      officer deployed his taser from a distance and the barbs made contact with




      1
        The emergency response team is trained to “take point on pretty much every situation” that is “not normal
      [or that] officers can’t control[.]” Id. at 44.
      2
          A “drive stun” is an electrical current discharged by direct contact between the taser and the person. Id.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020                        Page 3 of 15
      Flowers’ torso. Flowers fell to his knees. Officers ordered Flowers to lay on his

      stomach, but Flowers instead attempted to stand up. A third officer then fired

      two pepper ball warning shots3 at the wall near Flowers and ordered him to get

      on the ground. Flowers initially refused, and the officer fired a third shot that

      hit Flowers’ shoulder. Flowers then complied with commands to lie on his

      stomach and put his hands behind his back.


[5]   Following the strip search, officers escorted Flowers to a holding cell where he

      again refused to comply with orders. Officers placed Flowers in a “figure four”

      leg lock so they could safely remove his handcuffs and exit the cell. Id. at 99.4

      Officers heard Flowers throughout the night yelling from the holding cell.


[6]   The State charged Flowers with battery against a public safety official, a Level 6

      felony (for hitting Officer Combs); intimidation, a Level 6 felony (for

      threatening an officer who responded to the original call); and disorderly

      conduct, a Class B misdemeanor (for making unreasonable noise in the street).

      At his jury trial, Flowers testified on his own behalf. He explained he has only

      limited use of his right arm due to an injury from a motorcycle accident. He

      claimed officers were “rough” and “very aggressive” with his damaged arm

      when they handcuffed him at the scene even though he told them about his

      injury. Id. at 199-200. He testified he was cooperative upon arriving at the jail




      3
          Despite being described as pepper balls, the projectiles were actually filled with baby powder. Id. at 58.
      4
       The “figure four leg lock” places a person’s legs “in a criss cross pattern behind him, pushing towards the
      butt” so the person cannot “harm, spit, or kick officers.” Id. at 96, 98.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020                         Page 4 of 15
except for repeatedly telling the correctional officers that his arm hurt. When

told to put his hands on a counter for the pat down search, he was unable to

raise his right arm to do so and they “threw me on the counter, bam, I mean

[they] snapped my arm.” Id. at 203. Flowers testified that once he was taken

into the area where the strip search was to be conducted, “I was trying to

comply, [but] they weren’t giving me a chance to[.]” Id. at 205. He denied

punching Officer Combs. And he testified about being tased:


        [Defense counsel]: So, when the barbs hit you, did that leave a
        mark?
        [Flowers]: Yes, it did, I remember them because . . . after it
        happened I still had [them] for a day [or] two, the nurse had to
        come pick them out of me.
        [Defense counsel]: Okay, and that, they were still there a couple
        days later?
        [Flowers]: A day later, yea.
        [Defense counsel]: Okay, and the nurse took care of that?
        [Flowers]: Yes.


Id. at 206. On cross-examination, the State came back to this claim:


        [Flowers]: They pulled four barbs out of me.
        [State]: Okay, and who pulled four barbs out of you?
        [Flowers]: The first two, they came out, I don’t know how[.]
        Then they pulled two more out of me a couple days later. Or a
        day later, whenever it was.
        [State]: And who was that?
        [Flowers]: The nurse.
        [State]: Why didn’t you have the nurse down here to testify about that?
        [Flowers]: I don’t know –




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020   Page 5 of 15
              [Defense counsel]: I object, Judge –
              [The Court]: – Sustained –
              [Defense counsel]:– and asked [sic] that they be stricken.
              [The Court]: That question will be stricken from the record and
              the jury is instructed to completely disregard it.


      Id. at 224-25 (emphasis added). Flowers was taken to the hospital two days

      after being booked because of pain in his arm. Flowers testified that an x-ray of

      his arm revealed it was broken in eight places.


[7]   During closing arguments, in discussing the progressive force officers used to

      subdue Flowers, the prosecutor stated,


              What does the evidence show? It shows that there was escalation
              of force used[.] First, it was voice commands[.] That didn’t
              work, the next level, physical restraint. . . . That didn’t work,
              pressure points[.] That didn’t work. Then you go to nerve
              strikes. Again, painful reactions didn’t work. Finally, tasers, two
              tasers didn’t work. The drive stuns didn’t work. Finally had to
              do a deployment of barbs, and that did work for a little bit. Took
              him down to the ground but didn’t keep him there. [What]
              finally got some compliance, was pepper balls. Was he shot
              immediately with pepper balls? No[,] warning shots were given
              and finally he gets popped and he starts to comply. . . . So, there
              is not excessive force that was used. An escalation of force, yes.
              But that escalation of force was caused by the defendant’s words
              and actions. . . . Now, he said they broke my arm. That this is
              proof that they used excessive force. Now, all the witnesses
              testified that they never heard, never received any complaints
              from him while they were dealing with him, that he was injured
              or in pain. . . . None of these claims is an actual defense to his
              crimes. There is not an instruction in there, the 23, 25 instructions that
              says if the defense proves that there’s excessive force, he’s not guilty. If the
              defense proves that the corrections officers over reacted, he’s not guilty.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020         Page 6 of 15
                There is nothing like that. Even if they did, even if you believe they did
                use excessive force, even if you believe they did over react, that does not
                excuse his behavior. So, don’t think about it, don’t worry about it, it’s
                not an issue.


       Id., Vol. 3 at 19-21 (emphasis added). Flowers did not object during the State’s

       closing argument.


[8]    The jury found Flowers guilty of battery and disorderly conduct but not guilty

       of intimidation. The trial court sentenced Flowers to concurrent terms of

       eighteen months for battery and 180 days for disorderly conduct. 5 Flowers now

       appeals his battery conviction.



                                    Discussion and Decision
                                         I. Standard of Review
[9]    Flowers argues the State committed prosecutorial misconduct on two occasions

       during his trial that made a fair trial on the battery charge impossible.


[10]   As our supreme court has explained,


                [i]n reviewing a claim of prosecutorial misconduct properly
                raised in the trial court, we determine (1) whether misconduct
                occurred, and if so, (2) whether the misconduct, under all of the
                circumstances, placed the defendant in a position of grave peril to



       5
         At the conclusion of the trial, the trial court acknowledged the possibility of alternative misdemeanor
       sentencing on the battery conviction, see Ind. Code § 35-50-2-7(c), but after reading the pre-sentence
       investigation report and hearing evidence and argument presented at the sentencing hearing, entered
       judgment of conviction as a Level 6 felony as charged.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020                      Page 7 of 15
               which he or she would not have been subjected otherwise. A
               prosecutor has the duty to present a persuasive final argument
               and thus placing a defendant in grave peril, by itself, is not
               misconduct. Whether a prosecutor’s argument constitutes
               misconduct is measured by reference to case law and the Rules of
               Professional Conduct. The gravity of peril is measured by the
               probable persuasive effect of the misconduct on the jury’s decision
               rather than the degree of impropriety of the conduct.


       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (quotations and citations omitted).


[11]   To preserve a claim of prosecutorial misconduct, the defendant must—at the

       time the alleged misconduct occurs—request an admonishment to the jury, and

       if further relief is desired, move for a mistrial. Sciaraffa v. State, 28 N.E.3d 351,

       358 (Ind. Ct. App. 2015), trans. denied. Failure to comply with these

       requirements forfeits a prosecutorial misconduct claim. Delarosa v. State, 938

       N.E.2d 690, 696 (Ind. 2010). Flowers concedes he did not properly preserve his

       claims of prosecutorial misconduct for appeal. See Brief of

       Appellant/Defendant at 19. Thus, to prevail on appeal, Flowers must establish

       not only the grounds for prosecutorial misconduct but must also establish that

       the prosecutorial misconduct constituted fundamental error. Booher v. State, 773

       N.E.2d 814, 818 (Ind. 2002).


[12]   Fundamental error is an extremely narrow exception to waiver, and a

       defendant faces the heavy burden of demonstrating that the alleged error was so

       prejudicial to his rights that it rendered a fair trial impossible. Jerden v. State, 37

       N.E.3d 494, 498 (Ind. Ct. App. 2015).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020   Page 8 of 15
               In other words, to establish fundamental error, the defendant
               must show that, under the circumstances, the trial judge erred in
               not sua sponte raising the issue because alleged errors (a)
               “constitute clearly blatant violations of basic and elementary
               principles of due process” and (b) “present an undeniable and
               substantial potential for harm.” The element of such harm is not
               established by the fact of ultimate conviction but rather “depends
               upon whether [the defendant’s] right to a fair trial was
               detrimentally affected by the denial of procedural opportunities
               for the ascertainment of truth to which he otherwise would have
               been entitled.”


       Ryan, 9 N.E.3d at 668 (citations omitted). To determine whether the

       misconduct had such an undeniable and substantial effect on the jury’s decision

       that a fair trial was impossible, we 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. Jerden, 37

       N.E.3d at 498. Review for fundamental error is not intended to grant the

       defendant a second bite at the apple; it is meant to permit appellate courts “to

       correct the most egregious and blatant trial errors that otherwise would have

       been procedurally barred[.]” Ryan, 9 N.E.3d at 668.


                                II. Prosecutorial Misconduct
                                       A. Cross Examination
[13]   Flowers argues the State’s question about why he did not call the jail nurse to

       corroborate his version of events surrounding the deployment of the taser

       during his intake constituted prosecutorial misconduct in that it suggested to the

       jury that Flowers had the burden of proof. Flowers did immediately object to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020   Page 9 of 15
       the question and the trial court sustained the objection, struck the question from

       the record, and admonished the jury to “completely disregard it.” Tr., Vol. 2 at

       225. The fact that Flowers now raises this as an issue implies that he does not

       believe the admonishment cured the error; yet, Flowers did not move for a

       mistrial at the time. This is not a case where such a request would necessarily

       have been futile; the trial court agreed with Flowers that the State’s question

       was objectionable. If Flowers believed the admonishment was insufficient, it

       was incumbent upon him to request a mistrial at that time. Having failed to do

       so, he failed to preserve the issue for appeal and, as stated above, can only

       succeed if he proves both that the prosecutor committed misconduct and that

       the misconduct constituted fundamental error. Booher, 773 N.E.2d at 818.


[14]   “It 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, 534 U.S. 1105 (2002). Flowers asserts that the prosecutor

       “utilized impermissible impeachment to raise in the minds of jurors a forbidden

       conclusion: that Flowers should have called a specific witness if he wanted to

       establish sufficient credibility to be believed by the jury” and thereby

       “subverted” the fact that “the burden of proof is always upon the State[.]” Br.

       of Appellant at 17.


[15]   We consider alleged misconduct in the context of all the relevant information

       given to the jury to determine whether the misconduct made a fair trial

       impossible. See Jerden, 37 N.E.3d at 498. The State asked only this one

       question suggesting Flowers could have called a witness to corroborate his

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020   Page 10 of 15
version of events, and the event Flowers was relating at the time was not

directly relevant to any of the charges – he had already hit Officer Combs by the

time he was tased. Statements shifting the burden to the defendant “may be

cured by the trial court advising the jury that the defendant was not required to

prove his innocence or to present any evidence.” Stephenson, 742 N.E.2d at

483. The record here indicates that in both its preliminary and final

instructions, the trial court advised the jury:


        Under the law of this State, a person charged with a crime is
        presumed to be innocent. . . . To overcome the presumption of
        innocence, the State must prove Mr. Flowers guilty of each
        element of the crime charged beyond a reasonable doubt.


        Mr. Flowers is not required to present any evidence to prove his
        innocence or to prove or explain anything.


Defendant-Appellant’s Appendix, Volume II at 110 and 129; see also Tr., Vol. 2

at 12; Vol. 3 at 9. We presume the jury follows the instructions it is given.

Thrash v. State, 88 N.E.3d 198, 205 (Ind. Ct. App. 2017). Therefore, even

assuming the State’s question improperly suggested Flowers had the burden of

proving anything, such instructions are sufficient to cure any harm that might

have been caused. See Bryant v. State, 41 N.E.3d 1031, 1036 (Ind. Ct. App.

2015) (holding, where trial court denied defendant’s motion for mistrial alleging

State’s question on cross-examination of a defense witness improperly shifted

the burden of proof, that “to the extent the prosecutor’s comments were

arguably improper, any small potential of harm caused thereby was cured”


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020   Page 11 of 15
       when prosecutor mentioned the State’s burden in closing argument and trial

       court properly instructed the jury on the burden of proof).


[16]   Flowers concedes caselaw says proper jury instructions about the burden of

       proof can cure any misconduct and further concedes that the trial court gave

       such instructions here. See Br. of Appellant at 18. But he argues there is a

       “crucial difference” between those cases and his: prior cases holding jury

       instructions cure the error were decided in the context of the burden-shifting

       statement being made during closing argument whereas here, the “illicit

       inference was conjured up during cross-examination of the defendant” and

       therefore the error is “much more egregious” because it occurred during the

       presentation of evidence. Id. If this is in fact a difference at all, the trial court

       promptly addressed the issue during the cross-examination by sustaining

       Flowers’ objection to the question, striking the question from the record, and

       admonishing the jury to disregard it. A proper admonishment is presumed to

       cure any error. Emerson v. State, 952 N.E.2d 832, 840 (Ind. Ct. App. 2011),

       trans. denied.


[17]   The trial court correctly instructed the jury twice about the burden of proof and

       further instructed the jury before the presentation of evidence that the court

       “[o]ccasionally . . . may strike evidence from the record after you have already

       seen or heard it. You must not consider such evidence in making your

       decision.” Defendant-Appellant’s App., Vol. II at 113; Tr., Vol. 2 at 13.

       Nonetheless, Flowers argues the trial court sua sponte should have also

       reminded the jury of which party has the burden of proof in that moment. See

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020   Page 12 of 15
       Br. of Appellant at 20. However, the trial court “is not required to take an

       active part in the trial of the cause to assist or to override counsel[.]” Henderson

       v. State, 271 Ind. 633, 636, 395 N.E.2d 224, 227 (1979). “It is the duty of a trial

       judge to preside in a strictly impartial manner and to refrain from undue

       interference and participation in the proceedings.” Id. The trial court struck the

       question and admonished the jury; it was not required to do more in the

       absence of a request from Flowers to do so.


[18]   Although the State’s question was pointed, in the context of all the testimony,

       the issues before the jury, and the admonishment and instructions the jury was

       given, we cannot agree with Flowers that the State’s one question had “such an

       undeniable and substantial effect on the jury’s decision that a fair trial was

       impossible.” Ryan, 9 N.E.3d at 668.


                                        B. Closing Argument
[19]   Flowers also argues the prosecutor committed misconduct by misstating the law

       of self-defense in his closing argument by “essentially convey[ing] to the jury

       that Flowers did not have a right of self-defense . . . even if the officers used

       excessive force.” Br. of Appellant at 13. Again, conceding no objection was

       made during the State’s closing argument, Flowers argues that the misconduct

       constituted fundamental error requiring the trial court to step in.


[20]   Whether or not the prosecutor correctly stated the law of self-defense in

       response to excessive force by law enforcement, the comment was not

       fundamental error for the basic reason that self-defense was not at issue in this

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020   Page 13 of 15
       case. Flowers was charged with battery on a public safety official. He did not

       contend that he hit Officer Combs in self-defense; in fact, he claimed the opposite

       of self-defense, that is, that he did not hit Officer Combs at all. See Br. of

       Appellant at 15 (acknowledging that the defense chose not to assert a theory of

       self-defense because Flowers denied any alleged battery). In commenting on

       the factual circumstances of the case, the prosecutor correctly pointed out that

       the jury had not been instructed on self-defense because Flowers did not claim

       self-defense. “Hoosier citizens [may] enjoy a vibrant right of self-defense” as

       Flowers claims, id. at 13, and may have the right to defend themselves from the

       unlawful actions of a public servant, see id. at 14 (citing Ind. Code § 35-41-3-

       2(i)(l)), but they must assert that right.


[21]   Flowers cites Castillo v. State, 974 N.E.2d 458 (Ind. 2012), for the blanket

       proposition that “a prosecutor’s erroneous misstatement of the law rises to the

       level of misconduct.” Id. at 13. In Castillo, the prosecutor told the jury that in

       considering a sentence of life without parole, it should not compare the

       mitigating and aggravating factors when Indiana law expressly requires the jury

       to make that comparison. 974 N.E.2d at 468 (citing Ind. Code § 35-50-2-9(l)).

       Therefore, the prosecutor’s statement constituted misconduct because it urged

       the jury to act contrary to law. Id. at 469. Moreover, the misconduct was

       fundamental error because it placed the defendant in a position of grave peril to

       which she should not have been subjected and presented an “undeniable and

       substantial potential for an erroneous jury sentencing recommendation.” Id. at

       470. Here, the prosecutor’s statement could be viewed as urging the jury not to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020   Page 14 of 15
       act contrary to law, given that it had not been instructed on self-defense. The

       prosecutor’s statement did not place Flowers in a position of grave peril; rather,

       it placed him in exactly the position he chose, that is, allowing the jury to

       determine whether to believe the officers’ version of events or his.


[22]   Therefore, we hold the State’s comments during closing argument did not

       constitute misconduct, let alone fundamental error. See Ramsey v. State, 853

       N.E.2d 491, 501 (Ind. Ct. App. 2006) (holding comment made during closing

       argument was permissible comment on the evidence and not prosecutorial

       misconduct), trans. denied.



                                               Conclusion
[23]   Flowers has failed to prove that the prosecutor committed misconduct or, if he

       did, that any such misconduct constituted fundamental error. Accordingly, his

       conviction for battery on a public safety official is affirmed.


[24]   Affirmed.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2800 | June 22, 2020   Page 15 of 15
