Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019 Page 1 of 19

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Peter C. Soldato

Goshen, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Angela Sanchez

Deputy Attorney General 

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Ryan T. Baxter,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 15, 2019

Court of Appeals Case No.

18A-CR-3019

Appeal from the Elkhart Superior 

Court

The Honorable Kristine Osterday, 

Judge

Trial Court Cause No.

20D01-1605-F1-4

Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3019 | August 15, 2019 Page 2 of 19

Statement of the Case

[1] Ryan Baxter (“Baxter”) appeals, following a jury trial, his convictions of Level 

1 felony rape1 and Level 6 felony strangulation.

2

 Baxter argues that: (1) the 

trial court abused its discretion in its rulings on the admission and exclusion of 

evidence; and (2) the prosecutor engaged in prosecutorial misconduct that 

amounted to fundamental error. Concluding that the trial court did not abuse 

its discretion and that Baxter has failed to show fundamental error, we affirm 

Baxter’s convictions. 

[2] We affirm.

Issues

1. Whether the trial court abused its discretion in its admission and 

exclusion of evidence.

2. Whether the prosecutor’s statements during closing argument 

amounted to fundamental error.

Facts

[3] In August 2015, Baxter contacted, via Facebook Messenger, fellow high school 

alum, J.W. (“J.W.”), after J.W. had made a Facebook post regarding her 

breakup with her longtime boyfriend.3 J.W. knew that Baxter had been in a 

 

1

IND. CODE § 35-42-4-1.

2

I.C. § 35-42-2-9.

3

J.W. graduated from high school in 2012, and Baxter graduated in 2014.
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long-term, on-and-off relationship, and she sought his advice about how to 

“fix” her relationship with her boyfriend. (Tr. Vol. 2 at 105). Baxter and J.W. 

began communicating via Snapchat and text. On August 9, 2015, Baxter asked 

J.W. if he could come to her apartment the following day immediately after his 

work shift so they could talk. J.W., who thought that Baxter was being 

“supportive” and “seemed like he wanted to help” her, agreed. (Tr. Vol. 2 at 

106). 

[4] During the afternoon of August 10, 2015, Baxter went to J.W.’s apartment. 

When Baxter arrived, J.W. introduced him to her teenage son (“J.W.’s son”).4 

Prior to arriving at the house, Baxter had asked J.W. if he could take a shower

since he was coming straight from work. When in the bathroom, Baxter asked 

J.W. for help with turning on the shower. J.W. had had problems with her

shower handle getting stuck, so she went into the bathroom to assist Baxter 

with the handle. As she was trying to turn the handle, Baxter put his hand 

under J.W.’s shirt and asked her if she wanted to shower with him. J.W. told 

him “no,” that she “didn’t want to take a shower with him[,]” and that she 

“wasn’t having sex with him.” (Tr. Vol. 2 at 109). J.W. left the bathroom, 

went into the living room, and told her son what had happened. 

[5] After Baxter finished his shower, he walked into the living room, sat next to 

J.W. on the couch, put his arm around her, and touched her thigh. J.W. got up 

 

4

In August 2015, J.W. had a guardianship over her son and later adopted him.
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and moved to the other side of the couch, and Baxter “scooted” toward her. 

(Tr. Vol. 2 at 113). When J.W.’s son left the apartment, Baxter started “kissing 

on” J.W. and tried to kiss her on her lips. (Tr. Vol. 2 at 115). J.W. told Baxter 

to “stop” and informed him that she did not want to have sex with him. (Tr. 

Vol. 2 at 115). Disregarding J.W.’s comments, Baxter pulled down his pants, 

grabbed J.W. by her hair, and tried to force her to perform oral sex on him. 

Again, J.W. told him, “No” and “Stop.” (Tr. Vol. 2 at 116). When Baxter let 

go of J.W.’s hair, she ran for the door. Baxter grabbed J.W. from behind in a 

“bear hug[,]” “squeezed [her] so tight that [she] thought he might have broke[n] 

[her] ribcage[,]” and threw her on the couch. (Tr. Vol. 2 at 119). Baxter then 

put one hand around J.W.’s throat and choked her and used the other hand to 

pull off her pants and underwear. He forced her legs apart, “ripped [her] 

tampon out[,]” and “inserted” his penis into her vagina. (Tr. Vol. 2 at 116). 

Baxter repeatedly asked J.W., “Do you like that, baby?” (Tr. Vol. 2 at 116, 

122). J.W. was unable to breathe, speak, or yell as Baxter choked her. At some 

point during the ordeal, J.W.’s cell phone on the coffee table rang. When she 

tried to reach for the phone, Baxter “choked [her] harder and [she] almost 

blacked out.” (Tr. Vol. 2 at 116). Once Baxter was “done,” he wiped himself 

off with a towel, got dressed, told J.W. that he would talk to her later, and then 

left her apartment. (Tr. Vol. 2 at 116).

[6] J.W., then able to breathe, ran to her bathroom and vomited. That same day, 

J.W. told a friend what had happened and then went to the hospital. A nurse, 

Kathleen Turco (“Nurse Turco”) performed a sexual assault examination and 
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contacted the police. After receiving treatment at the hospital, J.W. went to the 

police station and gave a statement to Officer Bryan Wodtkey (“Officer 

Wodtkey”) regarding Baxter’s offenses against her. While interviewing J.W., 

Officer Wodtkey noted that she was crying and “visibly upset.” (Tr. Vol. 2 at 

68). After J.W.’s interview, the police went to her apartment, collected 

evidence, and took photographs.

[7] The State charged Baxter with Level 1 felony rape and Level 6 felony 

strangulation. Baxter’s counsel took J.W.’s deposition prior to the scheduled 

jury trial in this case. During the deposition, Baxter’s counsel asked J.W. if she 

had ever filed a police report against someone for a similar situation as her 

accusations against Baxter, and she stated that she had in 2011. Thereafter, 

Baxter’s counsel obtained the police investigation report regarding the 2011 

allegation.

[8] The trial court held a three-day jury trial in August 2018. Before the 

presentation of evidence, Baxter asked the trial court to rule on whether Baxter 

would be allowed to present evidence, under an exception to Evidence Rule 

412, regarding J.W.’s prior rape accusation. Specifically, Baxter argued that 

J.W.’s accusation from 2011 should be admissible because it was demonstrably 

false. In support of his argument, Baxter presented the trial court with: (1) a 

copy of the police investigation report; and (2) a two-page excerpt from J.W.’s 

deposition. Baxter used the tendered documents as his offer of proof. Baxter 

did not present any witness testimony to support his argument. The trial court 

reviewed the documentary evidence and relevant caselaw and concluded that 
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there was “nothing in . . . the information that[] [had] been tendered to the 

Court – that lead[] [the court] to believe that the allegation was demonstrably 

false.” (Tr. Vol. 2 at 50). 

[9] During the trial, J.W. testified regarding the offenses against her as set forth in 

the facts above. During Nurse Turco’s testimony, the State offered into 

evidence State’s Exhibit 11, the medical record from J.W.’s sexual assault exam 

and hospital treatment. Baxter objected to the admission of the exhibit, arguing 

that J.W.’s statements within the medical records were hearsay and were 

cumulative of J.W.’s trial testimony regarding the alleged offenses.5 The State 

argued that the medical records were admissible under Evidence Rule 803(4), 

the medical diagnosis or treatment exception to hearsay. The trial court 

overruled Baxter’s objections and admitted State’s Exhibit 11 into evidence.

[10] Thereafter, the State asked Nurse Turco what J.W. had told her during the 

examination. Baxter, believing that the State was going to have the nurse read 

verbatim a portion of the medical record into evidence, objected to the potential 

testimony as cumulative. The State clarified that it did not intend to have the 

nurse read the report but to merely summarize what J.W. had reported to her. 

Nurse Turco then testified, in a summary fashion, about the information that 

 

5 Baxter also objected, based on hearsay and the Confrontation Clause, to the admission of the medical scans

and reports from the radiologist and doctor contained in State’s Exhibit 11. On appeal, he does not challenge 

the trial court’s evidentiary ruling on this objection. 
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J.W. had conveyed regarding the offenses against her. Baxter did not object to 

this testimony. 

[11] Baxter testified on his own behalf. He denied that he had touched J.W. when 

she was helping him with the shower handle. He testified that, after he had 

finished his shower, he sat next to J.W. on the couch, put his arm around her, 

and tickled her. Baxter denied that J.W. moved away from him when they 

were on the couch. He testified that they kissed while sitting on the couch and 

that J.W. put “her hands all over [his] body[,]” including touching his penis. 

(Tr. Vol. 3 at 27). Baxter testified that he had consensual sex with J.W. and 

that she never told him to stop. Additionally, he testified that he placed one of 

his hands around the front of J.W.’s neck with a “firm grasp” when they were 

having sex, but he denied that he had strangled her. (Tr. Vol. 3 at 31). Baxter 

testified that he “assumed she liked it” because she pulled him closer and did 

not push his hand away. (Tr. Vol. 3 at 32). 

[12] During closing arguments, Baxter’s counsel told the jury that Baxter did not 

have the burden of proof and that he did not have to testify. Counsel then 

argued that Baxter, nevertheless, testified to tell the jury “the good, the bad[,] 

and the ugly” and to explain “how it happened” and what he had done. (Tr. 

Vol. 3 at 69). Baxter’s counsel also argued that the police investigation was 

inferior, including Officer Wodtkey’s failure to look at J.W.’s cell phone. 

Specifically, counsel argued that Officer Wodtkey should have asked J.W. to 

see her cell phone so that he could corroborate her statement that her phone 

rang when Baxter was choking her. Additionally, during Baxter’s closing 
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argument, his counsel directed the jury’s attention to State’s Exhibit 11, the 

medical records, and encouraged the jury to “please, inspect them at [its] 

leisure.” (Tr. Vol. 3 at 79). Thereafter, Baxter’s counsel discussed in detail 

various portions of the medical records.

[13] During the State’s rebuttal argument, the prosecutor responded to Baxter’s 

arguments regarding the officer’s failure to look at J.W.’s cell phone to 

corroborate her statement and regarding the fact that Baxter had decided to 

testify at trial. First, in regard to J.W.’s phone, the prosecutor noted that 

Baxter’s counsel had “brought up the fact that there’s no phone records to prove 

that [J.W.] got this phone call or to corroborate [J.W.’s] story” and then stated 

that “the defense has the third[-]party power to subpoena[.]” (Tr. Vol. 3 at 86). 

Baxter objected, arguing that the State had improperly shifted the burden of 

proof to him. Upon Baxter’s request, the trial court admonished the jury. 

Specifically, the trial court admonished the jury as follows: “I will admonish 

you that under the laws of the state of Indiana, there is no burden on behalf of 

the Defendant to prove or explain anything.” (Tr. Vol. 3 at 88). Baxter did not 

move for a mistrial. 

[14] Thereafter, when responding to Baxter’s argument about his decision to testify, 

the prosecutor stated:

[Baxter’s counsel] is absolutely correct, he doesn’t have to take 

the stand. Constitutionally he has a right not to do that. But the 

State submits to you that he did have to take the stand after the 

State’s case in chief to convince you all that this was somehow 

consensual because the evidence in the State case in chief was so 
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overwhelming, that testimony from [J.W.] was so overwhelming 

that he had to get up there and tell this[.]”

(Tr. Vol. 3 at 91). Baxter made “the same objection” and asked the trial court 

to again admonish the jury. (Tr. Vol. 3 at 92). The trial court then admonished 

the jury, in relevant part, as follows:

. . . I will again admonish you that the Defendant has protections 

afforded to him under the Constitution of the United States and 

the Indiana Constitution that does not require him to testify and 

so I believe with specifically with the comment that he has to tell 

you or he has to testify, under those constitutions is, in fact, not 

true.

(Tr. Vol. 3 at 93). Baxter did not move for a mistrial. 

[15] In its final instructions to the jury, the trial court instructed the jury, in relevant 

part, that the “State ha[d] the burden of proving [Baxter] guilty beyond a 

reasonable doubt” and that Baxter was “presumed to be innocent,” was “not 

required to present any evidence to prove his innocence, or to prove or explain 

anything.” (Tr. Vol. 3 at 98, 99). The jury found Baxter guilty as charged. The 

trial court imposed a thirty (30) year sentence with (5) years suspended to 

probation, for Baxter’s Level 1 felony rape conviction and a one (1) year 

sentence for his Level 6 felony strangulation conviction, and the court ordered 

that these sentences be served concurrently. Baxter now appeals.
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Decision

[16] Baxter argues that: (1) the trial court abused its discretion in its rulings on the 

admission and exclusion of evidence; and (2) the prosecutor engaged in 

prosecutorial misconduct that amounted to fundamental error. We will review 

each argument in turn.

1. Evidentiary Rulings

[17] We first address Baxter’s argument that the trial court abused its discretion in 

some of its evidentiary rulings. Specifically, Baxter contends that the trial court 

abused its discretion by excluding evidence of J.W.’s 2011 rape accusation and 

by admitting State’s Exhibit 11, the medical records.

[18] The admission and exclusion of evidence falls within the sound discretion of 

the trial court, and we review the admission of evidence only for an abuse of 

discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of 

discretion occurs when the trial court’s decision is clearly against the logic and 

effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864, 

871 (Ind. 2012), reh’g denied. 

[19] Turning to Baxter’s argument regarding the exclusion of J.W.’s prior rape 

accusation, we note that the admission of evidence relating to a victim’s past 

sexual conduct is governed by Indiana Evidence Rule 412, which is commonly 

referred to as the Rape Shield Rule. Candler v. State, 837 N.E.2d 1100, 1103 

(Ind. Ct. App. 2005), reh’g denied. The purpose of Evidence Rule 412 is “to 

prevent the victim from being put on trial, to protect the victim against surprise, 
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harassment, and unnecessary invasion of privacy, and, importantly, to remove 

obstacles to reporting sex crimes.” State v. Walton, 715 N.E.2d 824, 826 (Ind. 

1999). Evidence Rule 412 generally prohibits the admission of evidence 

regarding the past sexual conduct of a victim or witness. See Evid. R. 412. 

Rule 412, however, contains enumerated exceptions applicable in criminal 

cases—none of which are relevant or at issue in this appeal—that permit a trial 

court to admit certain evidence regarding a victim’s sexual behavior. See Evid. 

R. 412(b)(1). Additionally, a common law exception to Evidence Rule 412 

exists for evidence that a victim has made “prior false accusations of rape[.]” 

Walton, 715 N.E.2d at 826.6 “This exception provides that evidence of a prior 

accusation of rape is admissible if: (1) the victim has admitted that his or her 

prior accusation of rape is false[;] or (2) the victim’s prior accusation is 

demonstrably false.” Candler, 837 N.E.2d at 1103. “Prior accusations are 

demonstrably false where the victim has admitted the falsity of the charges or 

they have been disproved.” Id. “As a general rule, when the admission of 

evidence is predicated on a factual determination by the trial court, we review 

under a clearly erroneous standard of review.” Id. 

[20] Here, where J.W. never stated that the 2011 rape accusation was false, Baxter 

was required to prove that her prior accusation was demonstrably false. For his 

 

6 The Walton Court explained that “[e]vidence of prior false accusations of rape made by a complaining 

witness d[id] not constitute ‘prior sexual conduct’ for rape shield purposes” of Evidence Rule 412 because 

“such evidence [wa]s more properly understood as verbal conduct, not sexual conduct.” Walton, 715 N.E.2d

at 826.
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offer of proof, Baxter presented the trial court with: (1) a copy of the 2011 

police investigation report; and (2) a two-page excerpt from J.W.’s deposition in 

this case. In her deposition, J.W. discussed the prior rape accusation and 

confirmed that she had never recanted the veracity of the accusation. The 2011 

police report contained a document, which set forth the false informing statute 

and contained J.W.’s signature, by which she declared that she had read and 

understood the statute and acknowledged that she would be prosecuted if she 

violated the statute by reporting her rape allegation. The police report also 

included some text messages between J.W. and the accused. Baxter argued 

below, and argues on appeal, that the text messages were sexual in nature and 

showed the falsity of J.W.’s accusation. The trial court reviewed the tendered 

documentary evidence and relevant caselaw and concluded that there was 

“nothing in . . . the information that[] [had] been tendered to the Court – that 

lead[] [the court] to believe that the allegation was demonstrably false.” (Tr. 

Vol. 2 at 50). Because J.W. did not recant her accusation and Baxter failed to 

show that the accusation was demonstrably false, the trial court properly 

excluded the proffered evidence. See, e.g., Candler, 837 N.E.2d at 1103 

(affirming the trial court’s ruling, under Evidence Rule 412, excluding evidence

based on its factual determination that the victim had not admitted the falsity of 

the charges and that the charges were not demonstrably false). Accordingly, we 

affirm the trial court’s evidentiary ruling on this issue.

[21] Next, we turn to Baxter’s admission of evidence argument in which he asserts 

that the trial court abused its discretion by admitting State’s Exhibit 11, the 
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medical records. Specifically, he challenges J.W.’s statements, which were 

made to and recorded by the nurse, regarding how Baxter had raped and 

strangled J.W. At trial, Baxter objected to this evidence, arguing that it was 

hearsay and was cumulative of J.W.’s trial testimony. The trial court admitted 

the evidence under the hearsay exception contained in Evidence Rule 803(4), 

statements made for the purpose of medical diagnosis and treatment. On 

appeal, Baxter challenges that ruling. 

[22] Indiana Evidence Rule 803(4) permits statements made for the purpose of 

medical diagnosis and treatment to be admitted into evidence, even when the 

declarant is unavailable as a witness. Evid. R. 803(4). Evidence Rule 803(4) 

requires that any such statement: “(A) is made by a person seeking medical 

diagnosis or treatment; (B) is made for -- and is reasonably pertinent to --

medical diagnosis or treatment; and (C) describes medical history; past or 

present symptoms, pain or sensations; their inception; or their general cause.” 

Id. (format altered). This hearsay exception is “grounded in a belief that the 

declarant’s self-interest in obtaining the proper medical treatment makes such a 

statement reliable enough for admission at trial[.]” VanPatten v. State, 986 

N.E.2d 255, 260 (Ind. 2013). “[M]ore simply put, Rule 803(4) reflects the idea 

that people are unlikely to lie to their doctors because doing so might jeopardize 

their opportunity to be made well.” Id. 

[23] When determining whether a statement was properly admitted pursuant to 

Rule 803(4), the following two-step analysis is required: (1) whether the 

declarant is motivated to provide truthful information in order to promote 
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diagnosis and treatment; and (2) whether the content of the statement is such 

that an expert in the field would reasonably rely upon it in rendering diagnosis 

or treatment. Id. To satisfy the first prong, the requirement of showing the

declarant’s motivation, the “‘declarant must subjectively believe that he [or she] 

was making the statement for the purpose of receiving medical diagnosis or 

treatment.’” Id. (quoting McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996)). 

“With most declarants, this is generally a simple matter[.]” Id. “[F]or example 

where a patient consults with a physician, the declarant’s desire to seek and 

receive treatment may be inferred from the circumstances.” Id. at 261. As for 

the second prong, “[s]tatements made by victims of sexual assault . . . about the 

nature of the assault or abuse—even those identifying the perpetrator—

generally satisfy the second prong of the analysis because they assist medical 

providers in recommending potential treatment for sexually transmitted disease, 

pregnancy testing, psychological counseling, and discharge instructions.” Id. at 

260 (citing Palilonis v. State, 970 N.E.2d 713, 726-27 (Ind. Ct. App. 2012), trans. 

denied).

[24] Baxter challenges the trial court’s evidentiary ruling based only the first prong 

of this Rule 803(4) analysis. We need not, however, determine whether the 

trial court abused its discretion by admitting the medical records containing 

J.W.’s statements into evidence because, even if it was erroneous to admit the 

evidence, any error was harmless. “[E]rrors in the admission of evidence are to 

be disregarded as harmless error unless they affect the substantial rights of a 

party.” McClain, 675 N.E.2d at 331 (citing Ind. Trial Rule 61). When 
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determining whether any error in the introduction of evidence affected a 

defendant’s substantial rights, we must assess the probable impact of the 

evidence upon the jury. Id. The “[a]dmission of hearsay evidence is not 

grounds for reversal where it is merely cumulative of other evidence admitted.” 

Id. at 331-32. 

[25] Here, J.W. testified at trial and was subject to cross-examination regarding her 

allegations that Baxter had raped and strangled her. J.W.’s statements 

concerning these same allegations as contained in the medical records merely 

repeated her statements made on the stand. Indeed, at trial, Baxter 

acknowledged that J.W.’s statements in the medical report were merely 

cumulative of her trial testimony. Specifically, Baxter objected to the admission 

of the medical report as “cumulative” because J.W. had “already testified with 

respect to . . . what she reported” to the nurse. (Tr. Vol. 2 at 214). Moreover, 

Nurse Turco testified as to what J.W. had reported to her during the exam. 

Additionally, during closing argument, Baxter’s counsel directed the jury’s 

attention to State’s Exhibit 11, the medical records, and encouraged the jury to 

“please, inspect them at [its] leisure.” (Tr. Vol. 3 at 79). Thereafter, Baxter’s 

counsel discussed in detail various portions of the medical records. Because 

J.W.’s statements contained in the medical records were cumulative of her trial 

testimony and because Baxter has not shown that his substantial rights were 

affected, any potential error in the admission of the medical records was 

harmless error. See, e.g., McClain, 675 N.E.2d at 331 (concluding that any error 
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in the admission of evidence under Evidence Rule 803(4) was harmless where 

the challenged evidence was merely cumulative of the victim’s trial testimony).7 

2. Prosecutorial Misconduct

[26] Baxter contends that the prosecutor committed two instances of prosecutorial 

misconduct. Baxter argues that the prosecutor’s two comments made during 

the State’s rebuttal argument suggested that he had the burden of proof or the 

burden to produce evidence. Baxter acknowledges that he has procedurally 

defaulted his claim of prosecutorial misconduct by failing to seek a mistrial after 

the two comments and that he, therefore, must show fundamental error.

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

defaulted, a defendant must establish the grounds for the prosecutorial 

misconduct, and he must also establish that the prosecutorial misconduct 

resulted in fundamental error. Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014), 

reh’g denied. When reviewing a claim of prosecutorial misconduct, our Court

determines: (1) whether misconduct occurred, and if so; (2) whether the 

 

7 Moreover, our review of the record shows that the generally “simple matter” of showing that the declarant 

was motivated to provide truthful information in order to promote diagnosis and treatment (as required by 

the first prong of the Evidence Rule 803(4) analysis) can be inferred from the circumstances where J.W. went 

to the hospital, consulted with and was examined by a nurse and doctor, had medical tests done, and 

received treatment. See VanPatten, 986 N.E.2d at 261. Additionally, when the prosecutor questioned J.W. 

about going to the hospital, she affirmed that she gave information to the nurse with the “idea or knowledge 

that [she] w[as] providing some information so that [she] could get some treatment[.]” (Tr. Vol. 2 at 126-27). 

Because J.W.’s statements in the medical record were made in the course of medical diagnosis and treatment, 

the trial court did not abuse its discretion by admitting State’s Exhibit 11 into evidence. See, e.g., Palilonis, 

970 N.E.2d at 727 (holding that a victim’s hearsay statements that described a rape and were made to 

hospital personnel during her sexual assault examination where statements were made in the course of 

medical treatment and admissible under the hearsay exception of Rule 803(4)).
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misconduct, 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. Id.

at 667. 

[28] For a claim of prosecutorial misconduct to rise to the level of fundamental 

error, a 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 (internal quotation marks omitted). Thus, the defendant “must show 

that, under the circumstances, the trial judge erred in not sua sponte raising the 

issue because alleged errors (a) constitute clearly blatant violations of basic and 

elementary principles of due process and (b) present an undeniable and 

substantial potential for harm.” Id. (internal quotation marks omitted). The 

element of harm is not shown by the fact that a defendant was ultimately 

convicted. Id. “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.” Id. (emphasis in original).

[29] Here, Baxter objected to two arguments made by the prosecutor during the 

State’s rebuttal argument. The prosecutor’s arguments were in response to 

Baxter’s arguments regarding the officer’s failure to look at J.W.’s phone to 

corroborate her statement and the fact that Baxter had decided to testify at trial. 

When objecting to the State’s two rebuttal arguments, Baxter argued that the 
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State had improperly shifted the burden of proof to him. Baxter requested the 

trial court to admonish the jury, but he did not request a mistrial. The trial 

court admonished the jury that Baxter did not have the burden to prove 

anything and that he was not required to testify. In its jury instructions, the 

trial court informed the jury that the State, not Baxter had the burden of proof. 

The trial court also instructed the jury that Baxter was presumed innocent and 

that he was not required to present evidence or to prove or explain anything. 

[30] We acknowledge that “[i]t is improper for a prosecutor to suggest that a

defendant shoulders the burden of proof in a criminal case.” Stephenson v. 

State, 742 N.E.2d 463, 483 (Ind. 2001), cert. denied. We, however, need not 

determine whether the prosecutor’s two statements were improper or amounted 

to misconduct because Baxter has not established fundamental error. See Ryan, 

9 N.E.3d at 667-68 (explaining that to prevail on a claim of prosecutorial 

misconduct that has been procedurally defaulted, a defendant must establish the 

grounds for the prosecutorial misconduct and that the prosecutorial misconduct 

resulted in fundamental error). Even if the statements amounted to 

misconduct, any such error did not amount to fundamental error where the trial 

court admonished the jury and instructed the jury that Baxter was not required 

to prove his innocence or present any evidence at trial. Under the 

circumstances of this case, we cannot conclude that the prosecutor’s statements 

rose to the level of fundamental error. See e.g., Ryan, 9 N.E.3d at 672-73 

(concluding that there was no fundamental error resulting 

from prosecutorial misconduct where the jury was properly instructed); Reliford 
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v. State, 436 N.E.2d 313, 315 (Ind. 1982) (holding that the trial court “cured” 

any improper statement by the prosecutor when it instructed the jury that “the 

defendant was not required to present any evidence whatsoever and was not 

required to prove or disprove his innocence”);

Ramsey v. State, 853 N.E.2d 491, 501-02 (Ind. Ct. App. 2006) (explaining that 

any alleged misconduct from the prosecutor’s statements was cured by the trial 

court’s instructions to the jury regarding the burden of proof and the fact that 

the defendant was not required to present any evidence), trans. denied.

[31] Affirmed.

Riley, J., and Bailey, J., concur.