Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1948 | August 31, 2016 Page 1 of 9

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.

ATTORNEYS FOR APPELLANT

Ruth Johnson 

Marion County Public Defender Agency

Appellate Division

Indianapolis, Indiana

Timothy J. O’Connor

O’Connor & Auersch

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Donte D. Lane,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 31, 2016

Court of Appeals Case No.

49A02-1511-CR-1948

Appeal from the 

Marion Superior Court

The Honorable 

Sheila A. Carlisle, Judge

Trial Court Cause No.

49G03-1501-F1-3216

Kirsch, Judge.
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[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 license2 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. 
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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 
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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
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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, 
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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 
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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.
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[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. 
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[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.