MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                FILED
                                                                                                 FILED
                                                                                             Apr 04 2016, 6:11 am

                                                                                                 CLERK
                                                                                             Indiana Supreme Court
                                                                                                Court of Appeals
                                                                                                  and Tax Court




this Memorandum Decision shall not be
regarded as precedent or cited before any                                   Apr 04 2016, 6:12 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                           Gregory F. Zoeller
Bargersville, Indiana                                     Attorney General


                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Darreus Rainwater,                                        April 4, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          28A01-1507-CR-830
        v.                                                Appeal from the Greene Superior
                                                          Court
State of Indiana,                                         The Honorable Dena Martin,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          28D01-1503-F5-9



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016                                  Page 1 of 16
                                           Case Summary
[1]   Darreus Rainwater and a friend broke into a garage in order to take four-

      wheelers, but the homeowners came home and thwarted their plans.

      Rainwater’s friend entered into an agreement with the prosecutor and testified

      against Rainwater at trial. Rainwater was convicted of Level 5 felony burglary

      and Class A misdemeanor attempted theft, and the trial court sentenced him to

      an aggregate term of five years with two years suspended.


[2]   Because the State concedes that there is a double-jeopardy violation, we remand

      this case to the trial court with instructions to vacate Rainwater’s conviction

      and sentence for Class A misdemeanor attempted theft. Even assuming that the

      prosecutor committed prosecutorial misconduct during voir dire and closing

      argument, we conclude that Rainwater has failed to establish that the

      instances—either individually or cumulatively—constitute fundamental error.

      Finally, Rainwater has failed to persuade us that his sentence is inappropriate.



                            Facts and Procedural History
[3]   In March 2015 Chad Hall lived with his father and fifteen-year-old son in

      Greene County, Indiana. Hall kept four four-wheelers and lawn equipment

      inside a detached garage on the property.

[4]   Hall and his son were returning home around 6:00 p.m. one evening when

      Hall’s son said that he saw something in the detached garage. Hall drove his

      truck to the detached garage and walked toward the service door, which was on

      Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016   Page 2 of 16
      the side of the garage. At about the same time, Rainwater and Christopher

      Porter exited the garage and went in opposite directions. Hall recognized

      Porter from an incident a couple years before, but he did not recognize

      Rainwater. Hall grabbed Rainwater, who was closest to him, by the back of his

      shirt, and Porter ran away. As Rainwater turned around, his elbow went up in

      Hall’s direction, so Hall punched him in the face. Rainwater fell to the ground,

      where Hall then kicked him. Hall helped Rainwater find his glasses and then

      told him to “get lost and don’t come back.” Tr. p. 205. Rainwater and Porter

      met back up down the road.


[5]   In order to explain the mark that Hall had left to his face, Rainwater told his

      girlfriend’s mother, with whom he and Porter lived, that he and Porter had

      gotten into a fight with a friend. The girlfriend’s mother then overheard

      Rainwater tell Porter to “not say a fu**ing word” and “keep his fu**ing mouth

      shut.” Id. at 339. Rainwater also told his girlfriend about the earlier events.

      Although Rainwater wavered between whose idea it was to take the four-

      wheelers, he said that Porter was scared to open the door to the detached

      garage, so he put his sleeve over his hand and opened the door.

[6]   After talking with his father, Hall decided to call the police. The police arrested

      Rainwater and Porter later that night. When the police spoke with Porter, he

      told them that he thought the detached garage was his cousin’s house. But

      when the police did not believe Porter, he changed his story. Porter then told

      the police that it was Rainwater’s idea to go inside the garage and take the four-

      wheelers. In exchange for a three-year sentence with two years suspended for

      Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016   Page 3 of 16
      Level 5 felony burglary, Porter agreed to testify against Rainwater at trial. Ex.

      2 (“The Defendant agrees to testify truthfully at any hearing, deposition or trial

      involving co-defendant.”).


[7]   The State charged Rainwater with Level 5 felony burglary and Class A

      misdemeanor attempted theft. During voir dire, the prosecutor asked the

      prospective jurors if they could give Porter the benefit of the doubt, just like

      they would a police officer, even though he pled guilty to this crime as well.

      Porter testified at trial that he and Rainwater were walking to a friend’s house

      when Rainwater suggested breaking into the detached garage on the Hall

      property and taking the four-wheelers. Porter said that Rainwater used his

      sleeve to open the service door to the garage. Porter testified that they were in

      the garage looking for keys to the four-wheelers for less than five minutes when

      the Halls pulled up. As Hall approached the service door to the garage,

      Rainwater and Porter came out and Porter took off running. Porter testified

      that as he ran away, he saw Hall hit Rainwater.


[8]   Rainwater testified to a different version of events. He claimed that Porter told

      him that the detached garage was his cousin’s house and that he did not know

      about any plan to take the four-wheelers until Porter told him when they met

      back up down the road. During closing argument, the prosecutor implied—

      without any evidence in the record—that Porter put himself in danger by

      agreeing to testify for the State and therefore should be believed. The jury

      found Rainwater guilty of Level 5 felony burglary and Class A misdemeanor

      attempted theft.

      Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016   Page 4 of 16
[9]    At sentencing, defense counsel did not present any evidence but rather argued

       that—as reflected in the PSI—there were several mitigators, including that

       Rainwater was only nineteen years old; he had several mental-health diagnoses,

       including ADHD, bipolar disorder, and PTSD; he abused Xanax and alcohol;

       and he was abused as a child. The trial court found the following mitigators:

       Rainwater’s age and mental-health diagnoses. The court found the following

       aggravators: Rainwater’s juvenile and adult criminal history, the fact that he

       was on probation when he committed this offense, and his behavior in jail. The

       court then sentenced Rainwater to five years with two years suspended for

       burglary and one year for attempted theft, to be served concurrently

       (notwithstanding the State’s acknowledgement of a double-jeopardy violation,

       see Tr. p. 446). In addition, the court placed Rainwater in the Purposeful

       Incarceration Program, noting that upon Rainwater’s successful completion of

       the program, it “would consider a modification of [his] sentence.” Id. at 453. It

       was the court’s hope that Rainwater would “figure out what [he] need[ed] to do

       to abide by society’s rules.” Id.


[10]   Rainwater now appeals.



                                  Discussion and Decision
[11]   Rainwater raises three issues on appeal. First, he contends that his convictions

       for burglary and attempted theft violate the actual-evidence test of Indiana’s

       double-jeopardy clause. Second, Rainwater contends that the prosecutor



       Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016   Page 5 of 16
       engaged in misconduct during voir dire and closing argument. Last, he

       contends that his sentence is inappropriate.



                                       I. Double Jeopardy
[12]   Rainwater contends that his convictions for burglary and attempted theft violate

       the actual-evidence test of Indiana’s double-jeopardy clause. The State

       concedes this issue. See Appellee’s Br. p. 14 (“[T]he State’s evidence proving

       Attempted Theft entirely subsumed the proof of Level 5 felony Burglary.”).

       We therefore remand this case to the trial court with instructions to vacate

       Rainwater’s conviction and sentence for Class A misdemeanor attempted theft.

       See Morrison v. State, 824 N.E.2d 734, 741-42 (Ind. Ct. App. 2005) (“[A] double

       jeopardy violation occurs when judgments of conviction are entered and cannot

       be remedied by the ‘practical effect’ of concurrent sentences or by merger after

       conviction has been entered.”), trans. denied.



                              II. Prosecutorial Misconduct
[13]   Rainwater next contends that the prosecutor engaged in misconduct during voir

       dire and closing argument. In 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 which he would not have

       been subjected otherwise. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh’g

       denied. Whether a prosecutor engages in misconduct is measured by reference

       Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016   Page 6 of 16
       to case law and the Rules of Professional Conduct. Id. 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. Id. 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. Id.


[14]   Our standard of review is different where a claim of prosecutorial misconduct

       has been procedurally defaulted for failure to properly raise the claim in the trial

       court. Id. The defendant must establish not only the grounds for prosecutorial

       misconduct but also that the prosecutorial misconduct constituted fundamental

       error. Id. at 667-68. Fundamental error is an extremely narrow exception to

       the waiver rule where the defendant faces the heavy burden of showing that the

       alleged errors are so prejudicial to the defendant’s rights as to make a fair trial

       impossible. Id. at 668. 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 the alleged errors (1) constitute clearly

       blatant violations of basic and elementary principles of due process and (2)

       present an undeniable and substantial potential for harm. Id.


[15]   Rainwater concedes that defense counsel did not object at trial and therefore he

       must establish that the prosecutorial misconduct constituted fundamental error.

       See Appellant’s Br. p. 12.




       Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016   Page 7 of 16
                                               A. Voir Dire
[16]   Rainwater argues that the prosecutor committed misconduct during voir dire.

       The purpose of voir dire is not to educate prospective jurors but rather to

       ascertain whether they can render an impartial verdict based upon the law and

       the evidence and “weed out” those who show they cannot be fair to either side.

       Gibson v. State, 43 N.E.3d 231, 238 (Ind. 2015) (quotation omitted); Coy v. State,

       720 N.E.2d 370, 372 (Ind. 1999). Accordingly, the parties may inquire into

       jurors’ biases or tendencies to believe or disbelieve certain things about the

       nature of the crime itself or about a particular line of defense. Gibson, 43

       N.E.3d at 238; Hopkins v. State, 429 N.E.2d 631, 634-35 (Ind. 1981) (finding no

       error where jurors were asked whether they would disbelieve a witness who

       entered into a plea bargain).

[17]   But questions should be limited to “testing the capacity and competency of

       prospective jurors.” Gibson, 43 N.E.3d at 238 (quotation omitted). Those

       questions that “seek to shape the favorable jury by deliberate exposure to the

       substantive issues in the case” are not permitted. Id.; Davis v. State, 598 N.E.2d

       1041, 1047 (Ind. 1992) (affirming trial court’s disallowing defense counsel from

       essentially asking prospective jurors “how they would vote in the present

       case”), reh’g denied.


[18]   Rainwater first asserts that the prosecutor crossed the line by asking the

       prospective jurors to prejudge Porter’s credibility:




       Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016   Page 8 of 16
        [Prosecutor]: . . . Let’s talk a little bit about Mr. Porter. He’s
        already pled guilty. He . . . signed a plea agreement and he
        c[a]me in court and ple[]d guilty. He’s going to come in here and
        testify. Do you think that his testimony should be held to a lesser
        standard? Would you believe him less just because he’s a co-
        defendant in this case? You would, would you believe him less?


        Juror: Probably a little bit.


        [Prosecutor]: Okay, why’s that?


        Juror: Just because he committed [t]he crime as well.


                                              *****


        [Prosecutor]: Would you agree to at least . . . give him the
        benefit of the doubt?


        Juror: Probably.


        [Prosecutor]: And, and think about . . . what motivation he has
        to lie, if any, in this case, [because he’s] already taken
        responsibility for this case. Does that make sense?


        Juror: I’d want to know . . . if the prosecut[or] made a deal with
        him.


        [Prosecutor]: . . . We have . . . a duty to give you the plea
        agreement . . . . [W]e made a deal with him, just like we do with
        most people. I mean you can’t, you have to get witnesses from
        somewhere, right? Would you agree with that, sir? . . . If I could
        bring in a row of nuns to testify in a criminal case, believe me, I
        would. . . .

Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016   Page 9 of 16
       Tr. p. 26-27.

[19]   Here, the prosecutor properly inquired about the prospective jurors’

       predispositions to believe or disbelieve Porter because he had made a plea

       bargain with the State. See Gibson, 43 N.E.3d at 238; Hopkins, 429 N.E.2d at

       635 (“We see nothing wrong in inquiring into jurors’ minds about their biases

       in regard to the credibility of witnesses with an eye toward removing

       prospective jurors predisposed to disbelieve those with certain characteristics,

       such as plea bargainers.”). However, the prosecutor went too far by giving the

       prospective jurors his personal take of how the plea agreement affected Porter’s

       credibility. See also Tr. p. 106 (“Do you agree to give [Porter] the same benefit

       of the doubt as you would any other witness? . . . Just like you would a police

       officer . . . .”). Nevertheless, we find that this line of questioning did not place

       Rainwater in a position of grave peril.

[20]   Rainwater next asserts that the prosecutor committed misconduct by addressing

       the topic of reasonable doubt with the prospective jurors:

               [Prosecutor]: . . . Do you think the State can prove and connect
               all of these dots based upon the testimony of the people that were
               there?


               #658: I believe so.


                                                     *****


               [Prosecutor]: And if the State proves this charge beyond a
               reasonable doubt, you think you can convict Mr. Rainwater?

       Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016   Page 10 of 16
               #658: Yes.


       Id. at 43-44; see also id. at 23 (“Do all of you think that if the State proves the

       charge beyond a reasonable doubt that you could vote to convict Mr.

       Rainwater?”); 30 (discussing reasonable-doubt standard); 37 (“If the State

       proves this charge beyond a reasonable doubt, you think you can convict Mr.

       Rainwater?”); 39 (“If I can prove this trial beyond a reasonable doubt, you

       think you could convict the defendant? . . . You promise to do so by proof

       beyond a reasonable doubt?”).

[21]   It is improper to ask prospective jurors how they would vote. See Gibson, 43

       N.E.3d at 238; Davis, 598 N.E.2d at 1047; Perryman v. State, 830 N.E.2d 1005,

       1010 (Ind. Ct. App. 2005) (noting that it is improper “to examine jurors as to

       how they would act or decide in certain contingencies or in case certain

       evidence should be developed . . . at trial”). However, it is permissible for the

       prosecutor to ask the prospective jurors questions to determine whether they

       understand reasonable doubt and are capable of rendering a verdict in

       accordance with the law. Barber v. State, 715 N.E.2d 848, 850 (Ind. 1999).

       Here, the prosecutor’s questions were directed to whether the prospective jurors

       understood the concept of reasonable doubt, not to how they would vote given

       the evidence. We therefore find no misconduct.


                                        B. Closing Argument
[22]   Rainwater next argues that the prosecutor committed misconduct during

       closing argument by implying—without any evidence in the record—that Porter

       Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016   Page 11 of 16
       put himself in danger by agreeing to testify for the State, which enhanced his

       credibility:

                You think Mr. Porter is a popular guy at the jail right now? You
                think snitches are popular men at the jail? So again, I ask you,
                what possible motivation he has to come in here and lie other
                than if he simply really does want to turn his life around like he
                said. He’s still got to serve several more months in the jail with
                those folks. And you think there’s secrets in the jail? There ain’t
                no secrets in the jail. . . . And it wouldn’t have changed his
                punishment had he come in here and said, it was all my idea, I[]
                masterminded this thing, I masterminded this heist. . . . His life
                would have been so much better off in the jail if he’d said that.
                But he didn’t.


       Tr. p. 411-12.

[23]   The Indiana Rules of Professional Conduct demand that a lawyer “shall not . . .

       in trial[] allude to any matter that the lawyer does not reasonably believe is

       relevant or that will not be supported by admissible evidence.” Ind.

       Professional Conduct Rule 3.4(e). Indiana courts have emphasized the

       impropriety of this trial tactic. See, e.g., Benson v. State, 762 N.E.2d 748, 752

       (Ind. 2002).

[24]   Here, there was no evidence in the record about how Porter was treated or

       going to be treated in jail because he agreed to testify for the State.1




       1
        The State tried to admit evidence that Rainwater had attacked Porter in jail, but the trial court excluded this
       evidence. Tr. p. 292.

       Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016               Page 12 of 16
       Nevertheless, the prosecutor implied that Porter put himself in danger by

       agreeing to testify for the State, which in turn implied that Porter must be telling

       the truth given the risk to him. This was improper. See id. (“[T]he prosecutor’s

       questions and evidence did not directly allege that the witness was fearful due to

       threats connected to the defendant, but did clearly imply, without any

       substantiating foundation in the record, that the witness’s trial testimony was

       untruthful due to his fear of retribution. . . . [W]e cannot approve of the

       questioning permitted here.”).


                                         C. Fundamental Error
[25]   Even assuming that these instances amounted to prosecutorial misconduct,

       Rainwater is still not entitled to relief.2 In evaluating this issue using the

       fundamental-error doctrine, our task 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.” Ryan, 9 N.E.3d at 668. We

       do not believe that the prosecutor’s statements—which mostly concerned the

       credibility of Porter—had an undeniable and substantial effect on the jury’s




       2
         Rainwater claims that the prosecutor engaged in other instances of misconduct. For example, he argues
       that the prosecutor improperly asked the prospective jurors during voir dire not to get “caught up” with
       matters that did not affect the elements of the crime, such as the weather on the day of the crime. Tr. p. 32.
       He also claims that the prosecutor improperly argued during closing argument that he could have given
       Porter immunity. Id. at 399. We find no misconduct in either example. But even if we found that these
       instances amounted to prosecutorial misconduct, they do not constitute fundamental error.

       Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016               Page 13 of 16
       decision such that a fair trial for Rainwater was impossible. This is because

       there was evidence in addition to Porter’s testimony that linked Rainwater to

       the burglary. Hall and his son identified Rainwater as one of the two men

       leaving their detached garage. After being caught, Rainwater raised his elbow

       at Hall. Rainwater then fabricated a story about a fight to his girlfriend’s

       mother in order to explain the mark that Hall had left to his face. Rainwater

       also told Porter not to tell anyone what happened. Finally, Rainwater told his

       girlfriend that he opened the service door to the detached garage by using his

       sleeve; this is precisely how Porter testified at trial that Rainwater opened the

       door. Accordingly, we find that the instances—either individually or

       cumulatively—did not make a fair trial for Rainwater impossible.



                                III. Inappropriate Sentence
[26]   Last, Rainwater contends that his five-year sentence with two years suspended

       and placement in the Purposeful Incarceration Program for Level 5 felony

       burglary is inappropriate. A person who commits a Level 5 felony “shall be

       imprisoned for a fixed term of between one (1) and six (6) years, with the

       advisory sentence being three (3) years.” Ind. Code § 35-50-2-6(b). Rainwater

       asks us to “revise his sentence to . . . the advisory sentence of three years.”

       Appellant’s Br. p. 11.


[27]   The Indiana Constitution authorizes independent appellate review and revision

       of the trial court’s sentencing decision. Brown v. State, 10 N.E.3d 1, 4 (Ind.

       2014). We implement this authority through Indiana Appellate Rule 7(B),

       Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016   Page 14 of 16
       which provides that we may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, we find that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender. Id. When reviewing the appropriateness of a sentence under

       Appellate Rule 7(B), we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended or “crafted using any of the variety of

       sentencing tools available to the trial judge.” Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).

[28]   There is nothing particularly egregious about this offense. Rainwater and

       Porter broke and entered a detached garage with the intent of taking four-

       wheelers but ended up taking nothing because the homeowners came home.

[29]   Rainwater’s character, however, supports the trial court’s carefully crafted

       sentence. Since 2011, the nineteen-year-old Rainwater had been adjudged a

       delinquent five times (including one adjudication for theft), was convicted of

       Class A misdemeanor criminal trespass as an adult, and was on probation at the

       time of this offense. In addition, Rainwater violated probation in 2013. While

       in the Greene County Jail for three months awaiting trial in this case,

       Rainwater committed three violations: he attacked Porter and he committed

       two “less serious violations that seem to show a continuing problem of being

       unable to follow . . . the rules . . . .” Appellant’s App. p. 198. Also, while in

       the Monroe County Jail in 2014 for his Class A misdemeanor conviction,



       Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016   Page 15 of 16
       Rainwater received thirty days of lock down for tampering with locks. Id. at

       181.

[30]   While we acknowledge that Rainwater is young and has some mental-health

       diagnoses, he has failed to persuade us that his five-year sentence with two

       years suspended and placement in the Purposeful Incarceration Program (with

       a chance to modify his sentence) is inappropriate given his juvenile and adult

       criminal history, probation violations, and behavior in jail. We therefore affirm

       Rainwater’s sentence.3

[31]   Affirmed in part, and reversed and remanded in part.

       Bailey, J., and Crone, J., concur.




       3
         Rainwater appears to tack on a new argument to the end of his inappropriate-sentence argument. See
       Appellant’s Br. p. 11. That is, he appears to argue that he was punished for exercising his constitutional right
       to a jury trial because his sentence is longer than Porter’s sentence. Although it is constitutionally
       impermissible for a trial court to impose a more severe sentence because the defendant has chosen to stand
       trial rather than plead guilty, see Walker v. State, 454 N.E.2d 425 (Ind. Ct App. 1983), reh’g denied, there is no
       evidence in the record that suggests such a violation occurred here.

       Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016                 Page 16 of 16
