MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            FILED
this Memorandum Decision shall not be                        Aug 31 2016, 8:09 am
regarded as precedent or cited before any
                                                                  CLERK
court except for the purpose of establishing                  Indiana Supreme Court
                                                                 Court of Appeals
the defense of res judicata, collateral                            and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
                                                         James B. Martin
Indianapolis, Indiana                                    Deputy Attorney General
Timothy J. O’Connor                                      Indianapolis, Indiana
O’Connor & Auersch
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donte D. Lane,                                           August 31, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1511-CR-1948
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Sheila A. Carlisle, Judge
                                                         Trial Court Cause No.
                                                         49G03-1501-F1-3216



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1948 | August 31, 2016   Page 1 of 9
[1]   Donte D. Lane (“Lane”) was convicted after a jury trial of attempted murder,1 a

      Level 1 felony, and carrying a handgun without a license 2 as a Class A

      misdemeanor and was sentenced to thirty-five years with thirty years executed.

      Lane appeals his conviction for attempted murder and raises the following

      restated issue for our review: whether the State committed fundamental error

      by engaging in prosecutorial misconduct during closing arguments.


[2]   We affirm.


                                       Facts and Procedural History
[3]   In the early morning hours of January 23, 2015, Breianda Butler (“Butler”) and

      Brittany Scales (“Scales”) were working as sales clerks at an adult bookstore in

      Indianapolis, Indiana. At approximately 1:30 a.m., Ryan Tharpe (“Tharpe”),

      the father of Scales’s daughter, came into the store to get a house key from

      Scales and to let her know he was taking the car, but would return to pick her

      up later. Tharpe was accompanied by Lane, his cousin. Lane was acting

      “belligerent and ignorant” and was “[b]eing obnoxious, loud for no reason,

      cussing.” Tr. at 19, 20. Butler felt that Lane was being rude and bothering the

      customers in the store so she asked him to leave the store. Lane initially

      responded that he did not have to leave, and Butler told him she would call the




      1
          See Ind. Code §§ 35-42-1-1(1), 35-41-5-1.
      2
          See Ind. Code § 35-47-2-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1948 | August 31, 2016   Page 2 of 9
      police if he did not leave. Id. at 23. Butler did call 911, and Lane and Tharpe

      left the store while Butler was still on the phone.


[4]   About an hour later, Lane returned to the store. He had his hood pulled up and

      stepped inside the doorway of the store, said “fuck you, bitch,” and pulled a

      handgun from his pocket. Id. at 28. Lane fired the gun six or seven times at

      Butler, striking her three times, once in the right hip, once in the lower left

      buttocks, and once in the lower left leg. Lane was ten or fifteen feet away from

      Butler when he fired the shots. Although Scales was closer to Lane when he

      began shooting, she was not hit by any of the shots. Lane left the store

      immediately after the shooting, and Butler, who had fallen to the ground after

      being shot, was able to hop to the door and locked it. Scales called 911, and the

      two women waited in the restroom for the police to arrive.


[5]   The police arrived, and Butler was taken to the hospital. As a result of the

      injuries she sustained from the gunshot wounds, Butler suffers from severe

      neuropathy and must wear a leg brace because of nerve damage. Both Butler

      and Scales were able to identify Lane from a photo array as the shooter. The

      police recovered six spent shell casings from just inside the door of the store,

      and the casings were later determined to be fired from the same gun.


[6]   Lane was arrested, and the State charged him with attempted murder as a Level

      1 felony, possession of an altered handgun as a Level 5 felony, and carrying a

      handgun without a license as a Class A misdemeanor. Prior to the jury trial,

      the possession of an altered handgun charge was dismissed. At the close of


      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1948 | August 31, 2016   Page 3 of 9
      evidence in the trial, Lane’s counsel requested that the trial court instruct the

      jury on battery as a Level 5 felony, as a lesser included offense of attempted

      murder, and the State conceded that the instruction was proper. The jury was

      given the instruction, and in his closing argument, Lane’s counsel argued that

      the evidence supported a verdict of Level 5 felony battery. During the State’s

      rebuttal argument, it responded to Lane’s argument and made the following

      statement:


              [Y]ou’re going to be able to consider the lesser included offense
              of battery. I ask – I’d ask that if you decide to convict . . . Lane
              of battery with a deadly weapon and not attempt[ed] murder,
              that you simply find him not guilty because the justice that [the
              other deputy prosecutor] just spoke of, doing that would be a
              disservice to justice, and it would be a complete disregard to the
              evidence in this case.


      Tr. at 192. The jury found Lane guilty as charged of attempted murder as a

      Level 1 felony and carrying a handgun without a license as a Class A

      misdemeanor. He was sentenced to an aggregate term of thirty-five years with

      thirty years executed in the Department of Correction. Lane now appeals.


                                     Discussion and Decision
[7]   When reviewing an allegation of prosecutorial misconduct, we make two

      inquiries. First, we determine by reference to case law and rules of conduct

      whether the prosecutor engaged in misconduct, and if so, we next determine

      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


      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1948 | August 31, 2016   Page 4 of 9
      otherwise. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). The gravity of the 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.


[8]   Generally, in order to properly preserve a claim of prosecutorial misconduct for

      appeal, a defendant must not only raise a contemporaneous objection but must

      also request an admonishment; if the admonishment is not given or is

      insufficient to cure the error, then the defendant must request a mistrial. Neville

      v. State, 976 N.E.2d 1252, 1258 (Ind. Ct. App. 2012), trans. denied. Here, Lane

      concedes that he did not object to the challenged statements made by the

      prosecutor during closing argument. Where a defendant does not raise a

      contemporaneous objection, request an admonishment, or, where necessary,

      request a mistrial, the defendant does not properly preserve his claims of

      prosecutorial misconduct. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006).


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

      defaulted, the defendant must establish not only the grounds for the

      prosecutorial misconduct, but also the additional grounds for fundamental

      error.” Neville, 976 N.E.2d at 1258. Fundamental error is an “extremely

      narrow exception” to the contemporaneous objection rule that allows a

      defendant to avoid waiver of an issue. Cooper, 854 N.E.2d at 835. “For a claim

      of prosecutorial misconduct to rise to the level of fundamental error, it must

      ‘make a fair trial impossible or constitute clearly blatant violations of basic and

      elementary principles of due process and present an undeniable and substantial

      potential for harm.’” Neville, 976 N.E.2d at 1258-59 (quoting Booher v. State,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1948 | August 31, 2016   Page 5 of 9
       773 N.E.2d 814, 817 (Ind. 2002)). The element of harm is not shown by the

       fact that a defendant was ultimately convicted. Id. Instead, it 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

       would have been entitled. Ryan, 9 N.E.3d at 668 (quotation marks omitted).


[10]   Lane argues that the prosecutor engaged in misconduct when he made certain

       statements during the rebuttal portion of his closing argument. Lane contends

       that the statements urged the jury to convict him of attempted murder even if

       the jury determined that he was only guilty of battery. Lane asserts that the

       statements were misconduct because they appealed to the jury’s passions by

       suggesting that a conviction for battery was as good as no conviction at all and

       by insisting that justice would not be served if the jury only convicted on

       battery. He claims that this misconduct placed him in grave peril because the

       persuasive effect of the statements was substantial and constituted fundamental

       error because the jury was urged to convict him of attempted murder even if the

       evidence did not support that charge.


[11]   Lane specifically asserts that the prosecutor committed misconduct by making

       the following comments in the rebuttal portion of the State’s closing argument:

               [Y]ou’re going to be able to consider the lesser included offense
               of battery. I ask – I’d ask that if you decide to convict . . . Lane
               of battery with a deadly weapon and not attempt[ed] murder,
               that you simply find him not guilty because the justice that [the
               other deputy prosecutor] just spoke of, doing that would be a



       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1948 | August 31, 2016   Page 6 of 9
               disservice to justice, and it would be a complete disregard to the
               evidence in this case.


       Tr. at 192. In his closing argument, defense counsel had focused on his

       contention that Lane had shot at Butler without the intent to kill and urged the

       jury to find Lane guilty of the lesser included offense of battery with a deadly

       weapon. Prosecutors are entitled to respond to allegations and inferences raised

       by the defense even if the prosecutor’s response would otherwise be

       objectionable. Cooper, 854 N.E.2d at 836.


[12]   The State’s rebuttal argument focused on the evidence presented surrounding

       the shooting and how that evidence demonstrated that Lane intended to kill

       Butler when he shot at her six times. The prosecutor’s comments on rebuttal

       that Lane challenges were simply an argument that the evidence presented at

       trial did not reasonably support a finding that Lane did not intend to kill Butler

       when he fired at her six times at a close distance, shooting her three times. In

       fact, the portion of the rebuttal that Lane takes issue with actually states that

       convicting Lane of the lesser included offense of battery, “would be a complete

       disregard to the evidence in this case.” Tr. at 192. We conclude that the

       prosecutor’s comments were proper and were merely advising the jury to

       determine that the evidence presented by the State allowed only for the finding

       that Lane acted with the specific intent to kill Butler. The prosecutor did not

       engage in misconduct; therefore, Lane was not placed in a position of grave

       peril as a result of the prosecutor’s comments.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1948 | August 31, 2016   Page 7 of 9
[13]   Notwithstanding that we conclude that there was no prosecutorial misconduct,

       even had there been, Lane must prove that the State’s actions reached the level

       of fundamental error. “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.” Ryan, 9 N.E.3d at 668 (emphasis in original).


[14]   In looking at the challenged comments in light of these things, we do not

       believe that the comments by the prosecutor had a substantial effect on the

       jury’s decision, making a fair trial impossible. The remarks that Lane takes

       issue with were, as previously stated, simply an argument that the evidence

       presented at trial did not reasonably support a finding that Lane did not intend

       to kill Butler when he fired at her six times at a close range, shooting her three

       times. The remarks were mentioned once and not made repeatedly and were

       made in rebuttal to Lane’s closing argument where counsel appealed to the jury

       that Lane merely “shot in [Butler’s] direction,” “didn’t intend to kill [Butler]”

       because he left when he still had bullets, and just “wanted to scare her, but kind

       of up the ante.” Tr. at 186, 187. Evidence was presented during the trial that

       included testimony from Butler and Scales of what occurred and the

       surveillance video, which clearly depicted Lane’s actions of entering the store

       and firing six shots at Butler, hitting her three times.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1948 | August 31, 2016   Page 8 of 9
[15]   The jury was given instructions on the elements of both battery with a deadly

       weapon as a Level 5 felony and attempted murder, particularly that in order to

       find Lane guilty of attempted murder, the State had to prove beyond a

       reasonable doubt that Lane shot a handgun at Butler with the specific intent to

       kill her. Appellant’s App. at 100, 126, 127. The jury was also instructed that if

       the State failed to prove that Lane committed attempted murder, it could

       consider whether Lane committed Level 5 felony battery. Id. at 125. Jury

       instructions were also given that informed the jury that it was the judge of both

       the law and the facts, that its verdict should only be based on the evidence

       admitted and instructions on the law, that the final arguments were not

       evidence and the jury could reject the arguments as it saw fit, and that the

       verdict should be based on the law and facts as the jury saw them and not on

       sympathy or bias. Id. at 96, 109, 112, 133. We, therefore, conclude that in the

       context of all that occurred during the trial and all relevant information given to

       the jury, the alleged misconduct did not have a substantial effect on the jury’s

       decision, and it has not been proven that a fair trial was impossible. Lane has

       not shown that fundamental error occurred.


[16]   Affirmed.


[17]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1948 | August 31, 2016   Page 9 of 9
