Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-588| April 13, 2015 Page 1 of 8

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

Chris Palmer Frazier

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Katherine Modesitt Cooper

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Titus S. Dunn,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff,

April 13, 2015

Court of Appeals Case No.

49A02-1408-CR-588

Appeal from the Marion Superior 

Court

The Honorable Barbara Crawford, 

Judge

Cause No. 49F09-1404-FD-16610

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-588| April 13, 2015 Page 2 of 8

Case Summary and Issue

[1] Following a jury trial, Titus Dunn was convicted of residential entry, a Class D 

felony, and found to be an habitual offender.

1 He raises one issue on appeal: 

whether his due process rights were violated by the State’s comments during 

closing argument about the defense of necessity. Concluding that the issue has 

been forfeited for appeal, we affirm.

Facts and Procedural History

[2] During the early morning hours of March 31, 2014, Valerie Floyd was asleep in 

her home when the sound of a shattering window woke her up. When she 

went to investigate, she encountered a man in the hallway whom she did not 

know. The man was later identified as Dunn. As Floyd began moving through 

her house toward the back door, Dunn followed, asking her if she had a gun 

and telling her to call the police. When Floyd opened her back door, her alarm 

system was activated. She ran to her neighbors’ house and woke them up by 

banging on their bedroom window. They called 911 for her, and she stayed at 

their house until police arrived. During that time, Dunn also called 911 from 

Floyd’s house.

 

1 After the jury found Dunn guilty of residential entry, he waived his right to jury as to the habitual offender 

phase. The trial court found him to be an habitual offender after the presentation of evidence.
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[3] Indianapolis Metropolitan Police Department officers arrived at Floyd’s house 

to find Dunn walking down the driveway. After speaking with Floyd and 

observing the damage to her home, the officers arrested Dunn. Dunn told 

police that he had been followed by a dark car after being released from the 

hospital. The car pulled into a driveway a few houses away from Floyd’s and 

Dunn entered her house to get away. At trial, Dunn testified that it was his 

stepson who was chasing him and after the car pulled into the nearby driveway, 

his stepson had gotten out of the car brandishing a gun. Floyd had not seen any 

cars or pedestrians on the street when she ran to her neighbors’ house, and the 

officers did not see anyone other than Floyd and Dunn in the vicinity of Floyd’s 

house while investigating.

[4] The State charged Dunn with residential entry, a Class D felony, and alleged 

that he was an habitual offender. At trial, Dunn asserted the affirmative 

defense of necessity as justification for entering Floyd’s house. During closing 

arguments, the State told the jury:

Now, you’re going to get instructions – it’s gonna be Final Instruction 

No. 20 um, that tell you about the necessity defense. So the State – or 

the defense has to prove um, seven things by a preponderance of the 

evid – or six things by a preponderance of the evidence.

Transcript at 214. Dunn objected, and the trial court held a side bar conference,

during which the prosecutor expressed her understanding that the defendant 

had to prove all the elements of the necessity defense. The trial court corrected 

the prosecutor, stating that the defense has “to raise it and – and present 

evidence to support the instruction on the facts, but they don’t actually have to 
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prove anything.” Id. at 216. Before the State continued its closing argument, 

the trial court admonished the jury as follows:

Uh, ladies and gentlemen of the jury, uh – uh, you will get instruction 

on the defense of necessity which uh, under Indiana law, the 

defendant is required to raise – if that’s something that he – he believes 

applies. It is the obligation of the State to disprove one of the elements 

. . . . And I’m going to give you the instruction, and what the 

instruction – how the instruction tells you – how the law tells you you 

need to look at that defense.

So there will be information in the . . . instruction to tell you how to 

look at it or how to consider it. Um, that the defense has to – only has 

to raise the – raise the defense of . . . necessity, and the State has the 

obligation to disprove one of the parts of it.

Id. at 217-18. Upon resuming closing argument, the prosecutor correctly stated, 

“[F]or the defense of necessity to apply, you have to find all six [elements]. The 

State must only disprove one of them beyond a reasonable doubt.” Id. at 218.

[5] After closing arguments were concluded, the trial court gave the jury final 

instructions, including the following:

The Defendant has raised the defense of necessity in this case. The 

defense of necessity applies when:

(1) The act charged as criminal was the result of an emergency 

and was done to prevent a significant harm;

(2) There was no adequate alternative to the commission of the 

act;

(3) The harm cause[d] by the act was not disproportionate to 

the harm avoided;

(4) The Defendant had a good-faith belief that his act was 

necessary to prevent great harm;

(5) The Defendant’s belief was objectively reasonable under all 

the circumstances of the case; and
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(6) The Defendant did not substantially contribute to the 

creation of the emergency.

The State has the burden to prove beyond a reasonable doubt that the 

Defendant was not acting out of necessity, and may do so by 

disproving any one of the above facts.

Appellant’s Appendix at 72. The jury found Dunn guilty of residential entry,

and the trial court found him to be an habitual offender. This appeal followed.

Discussion and Decision

[6] Dunn contends that the prosecutor’s statement during closing argument 

impermissibly shifted the burden of proof to him and that the trial court’s 

admonishment to the jury was insufficient to remedy the damage caused by the 

misstatement of law. The State argues that Dunn has waived the issue of 

prosecutorial misconduct, because although he now claims that the 

admonishment was insufficient, he did not move for a mistrial at the time. “To 

preserve a claim of prosecutorial misconduct, the defendant must—at the time 

the alleged misconduct occurs—request an admonishment to the jury, and if 

further relief is desired, move for a mistrial.” Ryan v. State, 9 N.E.3d 663, 667

(Ind. 2014). Failure to comply with these requirements forfeits a prosecutorial 

misconduct claim. Delarosa v. State, 938 N.E.2d 690, 696 (Ind. 2010).

[7] Dunn objected to the prosecutor’s improper comments on the defense of 

necessity, and the trial court issued an admonishment to the jury to correct the 
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error. However, Dunn did not request a mistrial.2 This is not a case where 

such a request would necessarily have been futile; Dunn objected to the 

prosecutor’s statement and the trial court agreed it was a clear misstatement of 

the law and issued an admonishment to the jury. If Dunn believed the 

admonishment was insufficient, it was incumbent upon him to request a 

mistrial at that time. Having failed to do so, he has failed to preserve the issue 

for appeal.

[8] Where a claim of prosecutorial misconduct has been procedurally defaulted, 

“[t]he defendant must establish not only the grounds for prosecutorial 

misconduct but must also establish that the prosecutorial misconduct 

constituted fundamental error.” Ryan, 9 N.E.3d at 667-68. Review for 

fundamental error is not intended to grant the defendant a second bite at the 

apple; it is meant to permit appellate courts “to correct the most egregious and 

 

2 During a sidebar conference following the conclusion of the State’s rebuttal closing argument, defense 

counsel requested an opportunity to present surrebuttal because “it’s the defense . . . position that second 

closing is for rebuttal only [and] the State has brought up three additional things that they did not argue in 

that first close.” Tr. at 231. The trial court denied the request. After the final instructions were read and the 

case submitted to the jury, defense counsel stated:

I think in order to preserve my record for surrebuttal . . . I would like to note – to point 

out to the Court that the two arguments that I think were new in the second close were 

that no one uh, saw any of the cars around and that Mr. Dunn waited a couple of 

minutes before calling the police. And, I believe, in order to preserve the issue, I have to 

ask for a mistrial.

Id. at 232-33. The request for mistrial was denied. Because this request for mistrial was specific to the State’s 

rebuttal argument, it does not preserve the earlier issue. Dunn does not argue otherwise. See Brief of the 

Appellant at 9 n.1. 
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blatant trial errors that otherwise would have been procedurally barred . . . .” 

Id. at 668. 

In evaluating the issue of fundamental error, our task . . . is to look at 

the alleged misconduct in the context of all that happened and all the 

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).

[9] Assuming Dunn is correct that the prosecutor’s statement “gave jurors the 

impression that Dunn had an obligation to affirmatively prove his innocence,” 

Br. of Appellant at 10, we look at the alleged misconduct in the context of the 

entire trial. With respect to the evidence, Dunn testified regarding the events he 

alleged necessitated his entering Floyd’s house, offering facts supporting the 

giving of an instruction on the defense of necessity. The State offered several 

witnesses whose testimony either contradicted Dunn’s testimony or cast doubt 

on his version of events. At Dunn’s request, the trial court immediately 

intervened when the prosecutor misstated the necessity defense during closing 

argument and gave the jury a correct statement of the law regarding the 

defense. “[W]here the trial court adequately admonishes a jury, 

such admonishment is presumed to cure any error that may have occurred.” 

Emerson v. State, 952 N.E.2d 832, 840 (Ind. Ct. App. 2011), trans. denied. In 

addition, when the prosecutor resumed her closing argument, she restated her 

comments in the correct terms, and the final instructions to the jury correctly 

stated the law. In light of the evidence from which a reasonable jury could have 
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found the State had disproved at least one of the elements of the necessity 

defense and the multiple corrective statements given to the jury, we cannot say 

that the prosecutor’s misstatement of law 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 omitted).

Conclusion

[10] We cannot say that the prosecutor’s misstatement, in the context of all the 

information given to the jury, amounted to fundamental error. Accordingly, 

Dunn’s conviction is affirmed.

[11] Affirmed.

Bailey, J., and Brown, J., concur.