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: ATTORNEYS FOR APPELLEE:

ELLEN M. O’CONNOR GREGORY F. ZOELLER

Marion County Public Defender Agency Attorney General of Indiana

Indianapolis, Indiana

MICHAEL GENE WORDEN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

YOHAU FLAME,

1

)

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1302-CR-121

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT 

The Honorable Charles A. Wiles, Senior Judge 

Cause No. 49G03-1109-FA-64634

September 11, 2013

 

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge 

 

1 Throughout the trial, the appellant was referred to as Vincent Smith.
2

Yohau Flame (“Flame”) was convicted after a jury trial of rape2and criminal 

deviate conduct,

3

each as a Class A felony, two counts of criminal confinement4and one 

count of attempted robbery,

5

each as a Class B felony, and one count of auto theft6as a 

Class D felony. He appeals, contending that the prosecutor committed misconduct during 

closing remarks that amounted to fundamental error.

We affirm.

FACTS AND PROCEDURAL HISTORY

In the early morning of September 9, 2011, H.B. was in the parking lot of her 

apartment complex, loading luggage into her car as she prepared for an upcoming flight. 

It was dark, and as she loaded the luggage, Flame approached her and pulled out a gun.

Flame placed the gun at the back of her head, pushed her into the backseat of a car 

he had already stolen, switched on the safety locks, and drove away. 

 Flame drove to two banks where he unsuccessfully attempted to use H.B.’s debit 

card at the ATM machines.

Flame then drove H.B. to a secluded, wooded area where he demanded that H.B. 

take off her clothes. He got on top of her and forced sexual intercourse. Flame also 

performed oral sex on H.B. and forced her on top of him.

Flame then drove H.B. to the Indianapolis airport where she asked someone to call 

 

2

See Ind. Code § 35-42-4-1.

3

See Ind. Code § 35-42-4-2.

4

See Ind. Code § 35-42-3-3.

5

See Ind. Code §§ 35-41-5-1; 35-42-5-1.

6

See Ind. Code § 35-43-4-2.5.
3

911. When the police arrived, H.B. gave a statement at the airport. She then went to a 

hospital for an examination, where DNA samples were taken that were later identified as 

containing Flame’s DNA profile. Flame was arrested and a penile swab was taken from 

him that was identified as containing H.B.’s DNA.

The State charged Flame with rape as a Class A felony, criminal deviate conduct 

as a Class A felony, two counts of criminal confinement, each as a Class B felony, 

robbery as a Class B felony, and auto theft as a Class D felony. Flame elected to 

represent himself pro se, and the court granted his request, while also appointing standby 

counsel.

At Flame’s jury trial, the prosecutor at times during closing argument used the 

word “you” in place of the word “she” when describing the events, but Flame did not 

object. At one point, Flame’s standby counsel objected to a single line of argument, 

when the prosecutor stated:

You’re being asked to look at her reaction to things based on how you think you 

might react. And Ladies and Gentleman, what I’m here to tell you is you don’t 

know. Oh, we think about it. We think if this thing happens to me—the worst 

case, if this happens to me, this is what I would do, and I’m pretty convinced this 

is what I would do. We don’t know. Unless you’ve been in that situation, unless 

you’re in that situation—but . . . .

Tr. at 730. The judge overruled the objection, determining that the prosecutor was 

permissibly characterizing the evidence. Flame did not request an admonishment to the 

jury, and the jury found Flame guilty on all counts. Flame now appeals.
4

DISCUSSION AND DECISION

Flame contends that the trial court erred in overruling his objection to the 

prosecutor’s closing remarks. He further argues that, although he did not object at trial, 

the prosecutor’s other statements constituted fundamental error, warranting a new trial.

Claims of prosecutorial misconduct that have been properly preserved are subject 

to a two-step review on appeal. Cain v. State, 955 N.E.2d 714, 721 (Ind. 2011). 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. Id. “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. In order to properly preserve a 

claim of prosecutorial misconduct, a defendant must not only object but must also request 

the trial court to admonish the jury, and, if the party is not satisfied with the 

admonishment, then that party should move for a mistrial. Id. “Failure to request an 

admonishment or to move for mistrial results in waiver.” Id.

Here, because Flame failed to request an admonishment or move for a mistrial, he 

has not properly preserved his argument of prosecutorial misconduct. Where a claim of 

prosecutorial misconduct has not been properly preserved, the defendant must establish 

not only the grounds for the misconduct but also the additional grounds for fundamental 

error. Id. (citing Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002). Fundamental error is 

an extremely narrow exception that allows a defendant to avoid waiver of an issue, and is 

appropriate only when an alleged error makes “a fair trial impossible or constitute[s] 
5

clearly blatant violations of basic and elementary principles of due process . . . 

present[ing] an undeniable and substantial potential for harm.” Id. (quoting Benson v. 

State, 762 N.E.2d 748, 756 (Ind. 2002)). This exception is available only in egregious 

circumstances. Malloch v. State, 980 N.E.2d 887, 904 (Ind. Ct. App. 2012) (citing 

Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010)).

Assuming without deciding that the prosecutor’s remarks were made in error, the 

remarks would not warrant application of our “extremely narrow” fundamental error 

exception. Cain, 955 N.E.2d at 721. Indeed, we do not find the requisite “substantial 

potential for harm.” Id. Flame admits that the evidence the State brought against him 

was extensive. Appellant’s Br. at 13. In addition to H.B.’s detailed testimony, which 

Flame himself characterizes as “harrowing,” id. at 8, the State presented a barrage of 

evidence implicating Flame, including corroborating surveillance videos, the gun, the hat, 

and physical DNA. Flame does not challenge this evidence, but contends that “there can 

be no confidence in the system if the jury is persuaded to convict, not for the evidence 

and guilt, but for inflammatory appeals to passion, fear, or anger.” Id. at 13. Here, 

however, given the substantial weight of the evidence, we find that the probable 

persuasive effect of the prosecutor’s remarks was negligible. Thus, because the State’s 

actions do not present “an undeniable and substantial potential for unfair harm,” a new 

trial is not warranted. Booher, 773 N.E.2d at 820.

Affirmed.

ROBB, C.J., and RILEY, J., concur.