MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Feb 03 2017, 9:13 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
Deborah Markisohn                                        Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Shannon Randolph,                                        February 3, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1605-CR-972
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark Stoner,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G06-1502-F1-4006



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-972 | February 3, 2017       Page 1 of 10
                                            Case Summary
[1]   Shannon Randolph appeals his convictions for Level 1 felony rape, two counts

      of Level 3 felony rape, and one count of Level 3 felony robbery resulting in

      bodily injury. He argues that the State committed prosecutorial misconduct

      when it accused one of his attorneys of “victim blaming” and “vouched” for the

      victim’s testimony. Finding no error, we affirm.



                             Facts and Procedural History
[2]   The evidence most favorable to the verdicts is that in September 2014 Randolph

      and N.D. began a consensual, sexual relationship, which ended when N.D.

      found out that Randolph had a “girlfriend” (Randolph was actually married at

      the time). Randolph and N.D. continued to text off and on, and on November

      7, 2014, they met at N.D.’s apartment. They talked, watched a movie, and

      consumed alcohol. At one point during the evening, N.D. got up to use the

      bathroom. When N.D. exited, Randolph was waiting outside the bathroom

      door for her; he grabbed her and began kissing her. N.D. repeatedly asked him

      to stop. Randolph threw her to the ground by her hair, climbed on top of her,

      ripped off her underwear,1 bit her lip, performed oral sex on her, and inserted

      his penis inside her vagina. Throughout the ordeal N.D. screamed for him to

      stop. Randolph punched N.D. in the mouth and told her, “Shut up. I’ll go get




      1
       N.D. testified that she took off her sweatpants and left them by the bed before using the bathroom. She had
      not put her sweatpants back on when Randolph grabbed her and began kissing her. See Tr. p. 181-82.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-972 | February 3, 2017          Page 2 of 10
      my gun.” Tr. p. 149. N.D. believed this threat was credible because Randolph

      had previously brought a gun to her apartment on two separate occasions.

      Randolph eventually removed his penis from her vagina and placed it in her

      mouth, where he ejaculated. N.D. spit out his ejaculate and asked him to leave.

[3]   On his way out of the apartment, Randolph grabbed N.D.’s TV, cellphone,

      laptop, and wallet. Realizing she would have no way to call police if Randolph

      left with her phone, N.D. tried to stop Randolph. He punched N.D. in the

      mouth a second time and threw her to the ground by her hair, this time ripping

      out part of her weave. Randolph walked to his car with N.D.’s belongings.

      Fearing that Randolph was going to his car to get his gun, N.D., who was

      naked from the waist down, ran to a neighbor’s apartment for help. The

      neighbor let her inside, gave her a sheet to cover herself, and called 911. The

      police responded, and N.D. was taken to the hospital for a sexual-assault exam.

      N.D. identified Randolph for police from a photo array; Randolph was later

      arrested and charged with eight felonies and one misdemeanor.


[4]   During closing arguments of the jury trial, Randolph’s attorney brought up the

      fact that Randolph and N.D. had been drinking on November 7. He argued

      that N.D. and Randolph engaged in consensual sex that night and that

      afterward N.D., upon discovering that Randolph was married, attacked

      Randolph:

              [Defense Attorney 1:] Now I want to talk also about what was
              going on that night prior to this. They had been drinking. This
              call came in around 2:00 in the morning. [N.D.’s] blood was

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-972 | February 3, 2017   Page 3 of 10
              drawn at 4:27, that’s two and a half hours after this incident - -
              the end of this incident. Two and a half hours later. And her
              blood alcohol content was still .10. She was legally intoxicated.
              It was going down, not up, following this event. So we really
              don’t know what blood alcohol content she was at the time that
              this occurred, but it was higher than .10, which is the legal limit
              of intoxication. So we could say for certain[] that she was drunk.
              Does that mean that if something happened that she deserved it?
              No. That’s not what I’m saying. I’m just simply saying it goes to
              whether or not she might have overreacted to something - - to
              what she found out about Mr. Randolph and his marital
              relationship. People do stupid stuff when they are drunk.


      Id. at 348.


[5]   During the State’s three-minute rebuttal, it responded to defense counsel’s

      suggestion that N.D. was drunk and possibly overreacted to the news that

      Randolph was married:

              [State]: Every single piece of physical evidence says rape. It says
              rape. And the alcohol, that’s victim blaming. Because you know
              what, if you drink - -


              [Defense Attorney 1:] Objection. Objection.


              [Defense Attorney 2:] Judge, I’m sorry. This is all prosecutorial
              misconduct - -


              [Defense Attorney 1:] This is too much.


              [Defense Attorney 2:] By saying that we cannot or we can argue
              on behalf of our client, we are going to ask for another
              admonishment regarding prosecutorial misconduct and what

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-972 | February 3, 2017   Page 4 of 10
              they are allowed to comment upon and what they are not
              allowed to comment upon when we defend our client.


              [Judge:] I’m not going to give the same admonition that I just
              have given to you a minute ago. And so, Ladies and Gentlemen,
              the Court would remind you, again, when I previously
              admonished you on. And, again, if we can restrict our argument
              to the evidence please. You may continue.


      Id. at 354-55. In its prior admonishment, the court instructed the jury that “[the

      closing] argument is not evidence. You base your decision based on the

      evidence that you heard from the stand and the law as the Court gives it [to]

      you.” Id. at 353.


[6]   The State concluded its rebuttal argument:

              [State:] Ladies and Gentlemen, a prosecutor’s wors[t] nightmare
              is, I believe her but - - I believe her but I wanted more. I believe
              her but I wanted the gun. And if he had a gun he would be
              charged with armed [sic]. He’s not. He’s charged with a threat.


              [Defense Attorney 1:] Judge, objection.


              [Judge:] Overruled.


              [Defense Attorney 1:] Well, first of all she’s talking about what
              she believes.


              [Judge:] You’re correct about that. But we’ve got one minute
              left. Let’s finish it.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-972 | February 3, 2017   Page 5 of 10
              [State:] Thank you, Judge. As I was saying the prosecutor’s
              worst nightmare is I believe her but.


              [Defense Attorney 1:] She’s about to - -


              [Defense Attorney 2:] Judge, I’m sorry.


              [Judge:] Sustained. [Prosecutor] take the word I out of your
              vocabulary.


              [State:] Okay.


              [Judge:] You cannot use I in final argument. . . . What you
              believe isn’t the issue here. It’s what the jurors believe.


              [State:] If you get back there and say you believe her but, but
              when you walked into this courtroom yesterday you’ve never
              heard of [N.D.], you’ve never heard of Shannon Randolph and
              you’ve never heard of what he did to her on November 7th, 2014.
              So when you get to I believe her, that’s guilty on all counts.
              Thank you.


      Id. at 357-58. The judge then gave final instructions to the jury. Instructions

      eight and ten were similar to the admonishments and informed the jury that the

      unsworn statements from the attorneys were not evidence and that the verdict

      was to be based on the evidence, law, and facts. See Appellant’s App. Vol. II

      pp. 121, 123. The jury then retired to deliberate.

[7]   During deliberations, Randolph moved for a mistrial and argued that the

      admonishments were not sufficient. The court denied the motion:


      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-972 | February 3, 2017   Page 6 of 10
               The court does know that, one, it was a sustained objection, two,
               admonished jury, three, Court gave both Final Instructions in
               addition to the admonishment, the Court gave Final Instruction
               number 8, as well as number 10, which were given within a very
               short period of each other. The totality of the argument in
               question that was objected to was a three minute argument. The
               Court doesn’t find that the Defendant was placed in grave peril
               which is the standard for mistrial. . . . It was a very quick and
               contentious rebuttal to the point where it was difficult what was
               being said from the objection from the admonishment. So I will
               relisten to it while the jury is deliberating. But my initial
               assessment in being here in front of the jury and watching their
               demeanor while I was giving the admonishment, I don’t believe
               the Defendant was placed in grave peril. So I am denying the
               motion for mistrial at this time.


       Tr. pp. 361-62.

[8]    The jury found Randolph guilty on all nine counts. For double jeopardy

       reasons, the court entered judgment of conviction on only four counts—one

       count of Level 1 felony rape, two counts of Level 3 felony rape, and one count

       of Level 3 felony robbery resulting in bodily injury—and sentenced him to an

       aggregate term of thirty-two years in the Department of Correction, with eight

       years suspended and three years of probation.

[9]    Randolph now appeals.



                                  Discussion and Decision
[10]   Randolph contends that the State committed prosecutorial misconduct when it

       accused one of his attorneys of “victim blaming” and “vouched” for N.D.’s

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-972 | February 3, 2017   Page 7 of 10
       testimony. In order to preserve a claim of prosecutorial misconduct, the

       defense must raise a contemporaneous objection and request an admonishment.

       Bass v. State, 947 N.E.2d 456, 461 (Ind. Ct. App. 2011), trans. denied. If an

       admonishment is not given or is insufficient to cure the error, the defense must

       request a mistrial. Id. When reviewing a properly preserved claim for

       prosecutorial misconduct, “we determine (1) whether the prosecutor engaged in

       misconduct, and if so, (2) whether the misconduct, under all of the

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

       she would not have been subjected.” Cooper v. State, 854 N.E.2d 831, 835 (Ind.

       2006). “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.


[11]   Randolph first argues that the State engaged in prosecutorial misconduct when

       it said, “And the alcohol, that’s victim blaming.” Tr. p. 354. Randolph’s

       counsel was the one who initially argued that alcohol might have played a part

       in the events of November 7. The State’s comment about alcohol was in

       response to defense counsel’s statement that N.D. was “legally intoxicated” and

       as a result “might have overreacted” to finding out Randolph was married. Id.

       at 348. The State is “entitled to respond to allegations and inferences raised by

       the defense even if the [State’s] response would otherwise be objectionable.”

       Ryan v. State, 9 N.E.3d 663, 669 (Ind. 2014). Given that the State’s comment

       about “victim blaming” was in response to allegations from Randolph’s

       counsel, we conclude that the State’s argument did not constitute misconduct.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-972 | February 3, 2017   Page 8 of 10
[12]   Randolph next argues that the State engaged in prosecutorial misconduct in its

       rebuttal by “vouching” for N.D.: “[A] prosecutor’s wors[t] nightmare is, I

       believe her but - - I believe her but I wanted more.” Id. at 357. Randolph

       argues that this statement was the State expressing its “personal nightmare” that

       it believed N.D. but that the jury might not, a violation of the Indiana Rules of

       Professional Conduct. Appellant’s Br. p. 15-16. The State contends that the

       prosecutor was merely explaining that her “nightmare” is when a juror thinks

       to himself or herself, “I believe the victim, but I wanted some more evidence

       beyond her testimony.” Appellee’s Br. p. 16. We agree with the State’s

       explanation. After the court sustained Randolph’s objection, it instructed the

       State to remove the word “I” from its closing argument. The State then

       concluded its rebuttal by saying, “If you get back there and say you believe her .

       . . when you get to I believe her, that’s guilty on all counts.” Tr. p. 358

       (emphasis added). Rephrasing its argument, the State illustrated that it was not

       “vouching” for N.D.’s testimony, but rather addressing any potential

       shortcomings in its case and what was required for the jury to reach a guilty

       verdict under the beyond-a-reasonable-doubt standard. This is not misconduct.

[13]   Even if one of the challenged statements constituted misconduct, Randolph was

       not placed in a position of grave peril. Randolph objected to both statements;

       both objections were sustained; and the court, at Randolph’s request, gave an

       admonishing statement to the jury after the “victim blaming” comment.

       Additionally, the final jury instructions were given immediately after the close

       of the State’s three-minute rebuttal. They included additional guidance for the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-972 | February 3, 2017   Page 9 of 10
       jury on what was and was not evidence to be considered when reaching its

       verdict, and there was sufficient physical evidence presented at trial to support

       Randolph’s conviction: N.D.’s ripped panties, chunks of N.D.’s hair on the

       floor, bruises on N.D.’s body, a cut on N.D.’s lip, and Randolph’s semen on

       N.D.’s body. Furthermore, when the trial court ruled on Randolph’s motion

       for a mistrial, it explicitly stated that it watched the demeanor of the jury during

       the admonishments and that it believed Randolph was not placed in grave peril.

       Based on the physical evidence and the court’s observations of the jury during

       the admonishing statements, we conclude that, even if the challenged

       statements during the State’s rebuttal had been misconduct, they had no

       probable persuasive effect on the jury’s verdict.

[14]   Affirmed.

       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-972 | February 3, 2017   Page 10 of 10
