      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                        FILED
      regarded as precedent or cited before any                              Jul 08 2020, 8:54 am
      court except for the purpose of establishing                                 CLERK
      the defense of res judicata, collateral                                Indiana Supreme Court
                                                                                Court of Appeals
      estoppel, or the law of the case.                                           and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Alex M. Ooley                                             Curtis T. Hill, Jr.
      Borden, Indiana                                           Attorney General of Indiana
                                                                Sierra A. Murray
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Bradley D. Haub,                                          July 8, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                20A-CR-13
              v.                                                Appeal from the Washington
                                                                Superior Court
      State of Indiana,                                         The Honorable Frank Newkirk,
      Appellee-Plaintiff.                                       Jr., Judge
                                                                Trial Court Cause No.
                                                                88D01-1810-F5-840



      Tavitas, Judge.


                                               Case Summary

[1]   Bradley Haub appeals his conviction for bribery, a Level 5 felony. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020                     Page 1 of 15
                                                      Issue

[2]   Haub raises one issue for our review, which we revise and restate as whether

      the deputy prosecutor committed misconduct which resulted in fundamental

      error.


                                                      Facts

[3]   On July 23, 2018, Haub, pro se, filed a federal lawsuit (the “Federal Case”) in

      the United States District Court for the Southern District of Indiana against

      Sheriff Rodger Newlon, Nurse Mike Pelayo, Officer Dustyn Miller, and the

      Washington County Sheriff’s Department (the “Sheriff’s Department”). In the

      Federal Case, Haub alleged he failed to receive necessary medical care while in

      custody at the Washington County Jail. Haub sought damages totaling

      approximately $502,500.00, and apologies from the defendants.


[4]   On July 27, 2018, the district court dismissed Haub’s claims in the Federal Case

      against Sheriff Newlon and the Sheriff’s Department for failure to state a claim

      upon which relief could be granted. The claims against Officer Miller and

      Nurse Pelayo remained. On September 7, 2018, Haub filed a motion to amend

      the complaint in the Federal Case and sought to add claims against Sheriff

      Newlon and the Sheriff’s Department. In his amended complaint, Haub

      sought: $500,000.00 from the Sheriff’s Department; $5,000.00 personally from

      Sheriff Newlon; $5,000.00 personally from Officer Miller; $5,000.00 personally

      from Nurse Pelayo; and an additional $2,500.00, totaling $517,500.00 in

      damages. Haub also maintained his request for apologies from all parties.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020   Page 2 of 15
[5]   On September 10, 2018, Haub met with Sheriff Newlon at the Washington

      County Jail regarding the Federal Case. 1 The meeting was recorded. During

      the meeting, Haub told Sheriff Newlon that Haub would “be willing to drop”

      the Federal Case if Sheriff Newlon would “talk to the prosecutor [and] see

      about maybe getting [Haub on] house arrest.” 2 Tr. Vol. II pp. 233-34. At the

      time Haub and Sheriff Newlon met, Haub was completing a sentence in the

      Washington County Jail; however, he wanted to complete his sentence on

      home incarceration.


[6]   After speaking with Sheriff Newlon, Detective Josh Banet and Trooper Justin

      Smith with the Indiana State Police interviewed Haub. 3 Haub again told

      Detective Banet and Trooper Smith that he would be willing to dismiss the

      Federal Case in exchange for a written apology and an opportunity to be placed

      on home incarceration for the last six months of his sentence.


[7]   On September 25, 2018, the district court dismissed the claims in the amended

      complaint against the Sheriff’s Department in the Federal Case for failure to

      state a claim upon which relief could be granted; however, the district court




      1
       Based on the exhibits introduced at sentencing, it appears that Haub was serving a 730-day sentence in the
      Washington County Jail for his conviction, pursuant to a plea agreement, for theft, a Level 6 felony.
      2
        Haub also told Sheriff Newlon in the meeting that Haub “got documentation back from Federal Court
      saying they’re going to go ahead with [Haub’s] lawsuit proceeding.” Tr. Vol. II p. 233.
      3
       It appears that Detective Banet and Trooper Smith were present in a nearby room at the jail while Sheriff
      Newlon was speaking with Haub. According to Detective Banet’s testimony, he was at the jail to
      “investigate” but was not sure of the exact nature of why he was present that day. Tr. Vol. II p. 240. Haub
      was read his Miranda rights prior to the interview with Detective Banet and Trooper Smith.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020                       Page 3 of 15
      allowed the claims against Sheriff Newlon in the amended complaint to

      proceed. On October 9, 2018, Haub filed a “motion requesting to stop all

      proceedings against defendants due to mutuial [sic] agreement between all

      parties” in the Federal Case. Tr. Ex. Vol. IV p. 97. On October 10, 2018, the

      district court interpreted Haub’s motion to be a voluntary dismissal pursuant to

      Rule 41(a) of the Federal Rules of Civil Procedure and granted Haub’s motion

      to dismiss.


[8]   In October 23, 2018, the State charged Haub with bribery, a Level 5 felony, 4

      and the State alleged Haub was an habitual felony offender. 5 On March 22,

      2019, Haub filed a “motion requesting action” in the Federal Case and asked

      the district court to reinstate his claims against Sheriff Newlon. Id. at 102. The

      district court denied Haub’s motion on March 25, 2019, stating that Haub must

      file a new complaint if he wished to relitigate his previously dismissed claims.


[9]   Haub’s jury trial on the State bribery charges occurred in August 2019. In the

      State’s opening statement, the deputy prosecutor referred to Haub’s statement

      that he would dismiss the Federal Case in exchange for Sheriff Newlon

      speaking with the prosecutor to obtain a grant of home detention, which

      constituted the bribe, in relevant part as follows:




      4
          An amended information was filed July 29, 2019.
      5
        The initial habitual offender allegation was filed December 12, 2018. An amended habitual felony offender
      allegation was filed May 21, 2019.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020                     Page 4 of 15
               It’s just like a duffle [sic] bag full of cash. On September 10, 2018
               the defendant went to the Washington County Sheriff, who at
               that time was Roger Newlon, and offered him a bribe. This was
               the bribe. The defendant was serving a sentence in jail. During
               that time he filed a Federal Lawsuit against the Sheriff, and the
               Sheriff’s Department, and the Jail Nurse, and the Jail
               Correction’s Officer claiming that they had neglected him
               medically. And he was demanding Five Hundred Thousand
               Dollars ($500,000.00) from the county, Five Thousand
               ($5,000.00) from the sheriff personally, Five Thousand Dollars
               ($5,000.00) from the corrections officer, and Seven Thousand
               Five Hundred Dollars ($7,500.00) from the nurse. After filing
               that, making those demands, he went to the sheriff and he said,
               sheriff I’ll drop that lawsuit if you get me out of jail. That’s a
               bribe. It’s that simple. That’s why this case is not going to take
               very long. Is that illegal? It was illegal for the defendant to offer,
               it would have been illegal for the sheriff to accept it. It’s just as if
               he walked into the Sheriff with a duffle [sic] bag full of cash. So,
               based on those facts, we charged the defendant with bribery.


       Tr. Vol. II pp. 205-06. Haub did not object during the State’s opening

       statement. In its case-in-chief, the State introduced a certified copy of Haub’s

       federal complaint and several other documents regarding the Federal Case.

       The entire exhibit spanned approximately ninety pages and included documents

       demonstrating the dismissal and attempted reinstatement of Haub’s Federal

       Case.


[10]   At the close of the State’s case-in-chief, Haub moved for a directed verdict,

       which the trial court denied. In rebuttal closing arguments, the State argued, in

       relevant part:




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020    Page 5 of 15
        And now we’ve talked, the defense has talked about that that
        lawsuit had no value. And I want you to think about how we
        talked about that in jury selection. And think about what we said
        about if you’re sued. What fear you have in your mind when
        you see it, even if you know you didn’t do anything wrong. It’s a
        terrible thing to be sued. Imagine being sued for Five Hundred
        and Seventeen Thousand and Five Hundred Dollars
        ($517,500.00). And what that would do [to] you, to your stress
        level, worrying about am I going to have to pay this money. And
        then ask yourself if a lawsuit has any value. It doesn’t matter, see
        one of the things that [the] defense tries to do is push us to the
        end of this thing and say well nothing ever happened. Bribery
        really wasn’t because the insurance company was going to cover
        it. So, no harm, no foul.


                                              *****


        Not, the defendant is not [sic] arguing Washington County
        should pay [in the Federal Case], which by the way is you. The
        defendant is arguing Washington County should pay and Roger
        Newlon should pay, out of his pocket. And Mike Pelayo should
        pay out of his pocket. And Dustyn Miller should pay out of his
        pocket. And they should apologize to him. That’s what he’s
        saying.


                                              *****


        What you witnessed is remarkable, if you voted for Roger
        Newlon you just observed confirmation that your vote was
        correct. Cause [sic] this man, full of integrity and honor, was
        offered the opportunity to get rid of this terrible problem for the
        county, for him, for Dustyn Miller, and for Mike Pelayo and he
        said Brad, I shouldn’t go there. That’s wonderful that he did
        that. And to find the defendant not guilty is dishonoring that
        choice that he made. That’s the choice we want our sheriff to

Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020    Page 6 of 15
        make, that’s why we elected a man like Roger Newlon to be
        sheriff.


                                              *****


        If it had worked, think of this when you’re back there. If [it] had
        worked, is that okay? Is that how you want things to work?
        (JUROR’S NAME) sat here, one of the potential jurors and said
        oh there’s two problems with that. Very insightful young woman,
        she said, first of all it’s not fair to everybody else. Because not
        everybody has money to trade for special favors. Not everybody
        has a lawsuit that they can file to trade for special favors, it
        would be terribly unfair to the other hundred and fifty inmates in
        jail. And then she said secondly it would create an incentive to
        cook up these lawsuits and file them so you do have something to
        trade. Is that the world we want? You all told me no, we like
        America. We like the American system. We don’t like people
        trading things of value for special treatment.


                                              *****


        It’s just like he walked in there with a duffle [sic] bag full of cash,
        cause that’s what this is. Five Hundred and Seventeen Thousand
        and Five Hundred Dollars ($517,500.00). I can make this go
        away if you get me out of jail. It’s a bribe. It’s that simple. It’s
        illegal, improper, it’s illegal for him to offer it and illegal for the
        sheriff to accept it. It’s just like Brad Haub walked in there with
        a duffel bag full of cash. Thank goodness, thank goodness that
        the sheriff didn’t accept it. I want you to ratify Roger Newlon’s
        decision. I want you to say, thank you Roger you were right.


Tr. Vol. III pp. 21-25. Haub, again, did not object during the State’s closing

arguments.


Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020    Page 7 of 15
[11]   The jury found Haub guilty of bribery. Haub admitted to being an habitual

       offender, and the parties agreed Haub’s habitual offender enhancement would

       be no more than four years. On December 5, 2019, the trial court sentenced

       Haub to four years for the bribery conviction and enhanced the sentence by

       three years for being an habitual offender, for an aggregate of seven years at the

       Indiana Department of Correction (“DOC”). Haub appeals his conviction for

       bribery.


                                                     Analysis

[12]   Haub alleges that the deputy prosecutor committed misconduct when he made

       repeated references to the value of Haub’s Federal Case and urged the jury to

       find Haub guilty for reasons other than Haub’s guilt. When reviewing a claim

       of prosecutorial misconduct, we must determine whether the prosecutor: (1)

       engaged in misconduct that, (2) under all of the circumstances, placed the

       defendant in a position of grave peril to which he or she would not have been

       otherwise subjected. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014); see also

       Nichols v. State, 974 N.E.2d 531, 535 (Ind. Ct. App. 2012). “‘Whether a

       prosecutor’s argument constitutes misconduct is measured by reference to case

       law and the Rules of Professional Conduct.’” Nichols, 974 N.E.2d at 535

       (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). We measure the

       weight of the peril by the probable persuasive effect of the misconduct on the

       jury rather than the degree of impropriety of the conduct. Id.


[13]   Haub, however, did not object during any portion of the jury trial that he now

       alleges constitutes prosecutorial misconduct. “Our standard of review is
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020   Page 8 of 15
       different where a claim of prosecutorial misconduct has been procedurally

       defaulted for failure to properly raise the claim in the trial court, that is, waived

       for failure to preserve the claim of error.” Ryan, 9 N.E.3d at 667 (citations

       omitted and emphasis supplied). “The defendant must establish not only

       grounds for prosecutorial misconduct but must also establish 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 (quotations omitted).


                                             A. Value of the Federal Case

[14]   Haub first argues the deputy prosecutor committed misconduct when: (1) he

       failed to disclose that the district court initially dismissed Haub’s claims against

       Sheriff Newlon and the Sheriff’s Department in the Federal Case; (2) he

       compared the damages sought in the Federal Case to a duffel bag full of cash;

       and (3) he discussed the stress of being subjected to a half-a-million-dollar

       lawsuit. Haub argues these statements were false, misleading, and violated

       Indiana Professional Conduct Rule 3.3(a)(1) 6 regarding the duty of candor.


[15]   Pursuant to Indiana Code Section 35-44.1-1-2(a)(1), a person who:




       6
         Indiana Rule of Professional Conduct 3.3(a)(1) states that a “lawyer shall not knowingly: (1) make a false
       statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously
       made to the tribunal by the lawyer. . . .”

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020                          Page 9 of 15
        confers, offers, or agrees to confer on a public servant, either
        before or after the public servant becomes appointed, elected, or
        qualified, any property, except property the public servant is
        authorized by law to accept, with intent to control the
        performance of an act related to the employment or function of
        the public servant or because of any official act performed or to
        be performed by the public servant, former public servant, or
        person selected to be a public servant;


commits bribery, a Level 5 felony. Pursuant to Indiana Code Section 35-31.5-2-

253, “property” is defined as: “anything of value[,]” and includes:


        (1) a gain or advantage or anything that might reasonably be
        regarded as such by the beneficiary;


        (2) real property, personal property, money, labor, and services;


        (3) intangibles;


        (4) commercial instruments;


        (5) written instruments concerning labor, services, or property;


        (6) written instruments otherwise of value to the owner, such as a
        public record, deed, will, credit card, or letter of credit;


        (7) a signature to a written instrument;


        (8) extension of credit;


        (9) trade secrets;



Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020   Page 10 of 15
               (10) contract rights, choses-in-action, and other interests in or
               claims to wealth;


               (11) electricity, gas, oil, and water;


               (12) captured or domestic animals, birds, and fish;


               (13) food and drink;


               (14) human remains; and


               (15) data.


[16]   First, we fail to understand how the deputy prosecutor’s arguments were not

       truthful insofar as they alleged that the Federal Case had value. Specifically, at

       the time Haub met with Sheriff Newlon, Haub had filed an amended complaint

       in the Federal Case seeking damages of $517,000.00. While it is true that

       Sheriff Newlon and the Sheriff’s Department had been previously dismissed as

       defendants on Haub’s first complaint, the district court had not yet rendered a

       decision on Haub’s motion to amend his complaint at the time of Haub’s

       meeting with Sheriff Newlon.


[17]   Moreover, the State introduced Exhibit A, which was a certified copy of the

       documents filed in the Federal Case. The jury had access to this exhibit and

       was advised to review all evidence, including the exhibits, in reaching their

       decision. These documents included the district court’s initial dismissal of the




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020   Page 11 of 15
       Sheriff’s Department and Sheriff Newlon and Haub’s motion to amend. 7 The

       fact that the exhibit was lengthy does not mean the deputy prosecutor was

       trying to “bur[y]” the previous dismissal in the exhibit and mislead the tribunal.

       Appellant’s Reply Br. p. 6.


[18]   The fact the deputy prosecutor did not spell out the exact series of events that

       occurred in Haub’s Federal Case does not warrant a finding of prosecutorial

       misconduct. At the time Haub bribed Sheriff Newlon, a lawsuit for

       $517,000.00 against several defendants, including a $5,000.00 claim against

       Sheriff Newlon personally, was pending in the district court. The jury had all

       the information available to it in order to make the decision regarding the

       value—if any at all—of Haub’s Federal Case as it related to the allegations of

       bribery. 8 Under these facts, we cannot find that the deputy prosecutor

       committed prosecutorial misconduct in making his argument regarding the

       value of the lawsuit. Haub has failed to demonstrate error, much less

       fundamental error.


                                            B. Reason to Find Haub Guilty

[19]   Haub next argues that the deputy prosecutor committed misconduct by asking

       the jury to find Haub guilty based upon facts other than Haub’s guilt. The basis

       for Haub’s claim is based on when the deputy prosecutor: (1) stated that “the




       7
        Exhibit A also included documents filed and orders issued after Haub’s discussion with Sheriff Newlon as a
       complete record of the Federal Case.
       8
           Haub does not argue on appeal that the evidence regarding the element of “value” was insufficient.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020                       Page 12 of 15
       jury, as taxpayers, might have to pay for the federal lawsuit”; (2) stated that

       “the jury should honor the sheriff’s decision by finding guilt”; (3) “suggested

       that a finding of not guilty would incentivize other inmates to cook up these

       lawsuits”; and (4) “suggested that a finding of guilt was a way for the jury to

       thank the sheriff.” Appellant’s Br. pp. 13-14 (internal citations omitted).


[20]   Haub compares these statements to the statement made by the deputy

       prosecutor in Ryan, 9 N.E.3d at 672. 9 In Ryan, the deputy prosecutor argued in

       closing arguments:


               You wonder at night what you can say to a jury to get them to
               get the bigger picture here. And no case is easy for your [sic]
               guys, I get that. No one wants to judge someone else or
               somebody else’s actions. But we keep hearing about this
               happening, whether it’s a teacher, or a coach, or a pastor, or
               whoever. And we all want to be really angry and post online and
               have strong opinions about it. And we never think that we’ll be
               the ones that are here that get to stop it. And you actually do get
               to stop it. And as much as I know you probably did not want to
               be here on Monday morning, I would submit to you that you are
               in an incredible position to stop it and send the message that
               we’re not going to allow people to do this.


       Ryan, 9 N.E.3d at 671. Our Supreme Court held that, “[a]lthough a prosecutor

       may remark on the public demand for a conviction, we have repeatedly

       emphasized that ‘it is misconduct for a prosecutor to request the jury to convict




       9
         There were several instances of alleged prosecutorial misconduct in Ryan; however, we will only focus on
       the statement Haub compares to his case.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020                     Page 13 of 15
       a defendant for any reason other than his guilt.’” Id. (quoting Cooper v. State,

       854 N.E.2d 831, 837 (Ind. 2006)). Accordingly, our Supreme Court concluded

       that this statement by the deputy prosecutor constituted misconduct; however,

       the Court found the statement did not rise to the level of fundamental error,

       noting that the preliminary and final instructions correctly admonished the jury

       that its decision should rest on the evidence admitted at trial.


[21]   In comparing Ryan to Haub’s case, we, like our Supreme Court, fail to see how

       Haub was denied a fair trial as a result of the statements. While we

       acknowledge that some of the deputy prosecutor’s remarks are comparable to

       the ones made in Ryan, we do not find that Haub suffered fundamental error as

       a result. As in Ryan, the preliminary and final jury instructions in Haub’s case

       instructed the jury that: (1) the State must prove each element of the crime

       beyond a reasonable doubt; (2) statements made by the attorneys are not

       evidence; and (3) the jury’s decision should be based on the law and facts

       instead of bias or sympathy. Moreover, the prosecutor also explained the

       elements of the bribery charge and discussed the evidence presented proving

       each element.


[22]   Finally, “[w]here there is overwhelming independent evidence of a defendant’s

       guilt, error made by a prosecutor during the closing argument is harmless.”

       Jerden v. State, 37 N.E.3d 494, 500 (Ind. Ct. App. 2015) (citing Coleman v. State,

       750 N.E.2d 370, 375 (Ind. 2001)). Here, the jury was shown the video

       depicting the bribery wherein Haub offered to dismiss the Federal Case in

       exchange for Sheriff Newlon’s agreement to speak to the prosecutor regarding

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020   Page 14 of 15
       placing Haub on home incarceration. 10 There was “overwhelming independent

       evidence” of Haub’s guilt, which requires us to find that the deputy prosecutor’s

       statements did not rise to the level of fundamental error. See Jerden, 37 N.E.3d

       at 500.


[23]   Based on the foregoing, we cannot say that the deputy prosecutor’s remarks

       constituted errors that were “so prejudicial to [Haub’s] rights as to make a fair

       trial impossible.” Ryan, 9 N.E.3d at 668. The improper statements did not

       result in fundamental error.


                                                     Conclusion

[24]   Haub has not demonstrated that the deputy prosecutor’s remarks gave rise to

       fundamental error. Accordingly, we affirm.


[25]   Affirmed.


       Riley, J., and Mathias, J., affirmed.




       10
          On appeal, Haub does not challenge the sufficiency of the evidence with regard to the elements of the
       offense.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-13 | July 8, 2020                      Page 15 of 15
