Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 1 of 16 

### 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.
A TTORNEY FOR A PPELLANT Stacy R. Uliana Bargersville, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General
James B. Martin Deputy Attorney General Indianapolis, Indiana


### IN THE 

# COURT OF APPEALS OF INDIANA
Darreus Rainwater, A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -Plaintiff

. April 4, 2016 Court of Appeals Case No. 28A01-1507-CR-830 Appeal from the Greene Superior Court The Honorable Dena Martin, Judge Trial Court Cause No. 28D01-1503-F5-9

Vaidik, Chief Judge.Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 2 of 16 

# Case Summary
[1] Darreus Rainwater and a friend broke in to a garage in order to take fourwheelers, but the homeowners came home and thwarted their plans. Rainwater’s friend entered into an agreem ent with the prosecutor and testified against Rainwater at trial. Rainwater wa s convicted of Level 5 felony burglary and Class A misdemeanor attempted theft, and the trial court sentenced him to an aggregate term of five years with two years suspended.

[2] Because the State concedes that there is a double-jeop ardy violation, we remand this case to the trial court with instru ctions to vacate Rainwater’s conviction and sentence for Class A misdemeanor atte mpted theft. Even assuming that the prosecutor committed prosecutorial miscon duct during voir dire and closing argument, we conclude that Rainwate r has failed to establish that the instances—either individually or cumula tively—constitute fundamental error. Finally, Rainwater has failed to persuade us that his sentence is inappropriate. 

# Facts and Procedural History
[3] In March 2015 Chad Hall lived with hi s father and fifteen-year-old son in Greene County, Indiana. Hall kept fo ur four-wheelers and lawn equipment inside a detached garage on the property.

[4] Hall and his son were returning home around 6:00 p.m. one evening when Hall’s son said that he saw something in the detached garage. Hall drove his truck to the detached garage and walked toward the service door, which was onCourt of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 3 of 16 the side of the garage. At about the same time, Rainwater and Christopher Porter exited the garage and went in opposite directions. Hall recognized Porter from an incident a couple y ears before, but he did not recognize Rainwater. Hall grabbed Rainwater, who wa s closest to him, by the back of his shirt, and Porter ran away. As Rainwater turned aro und, his elbow went up in Hall’s direction, so Hall punched him in the face. Rainwater fell to the ground, where Hall then kicked him. Hall help ed Rainwater find his glasses and then told him to “get lost and don’t come back .” Tr. p. 205. Rainwater and Porter met back up down the road.

[5] In order to explain the mark that Hall had left to his face, Rainwater told his girlfriend’s mother, with whom he and Porter lived, that he and Porter had gotten into a fight with a friend. Th e girlfriend’s moth er then overheard Rainwater tell Porter to “not say a fu **ing word” and “keep his fu**ing mouth shut.” Id. at 339. Rainwater also told his gi rlfriend about the earlier events. Although Rainwater wavered between wh ose idea it was to take the fourwheelers, he said that Porter was scar ed to open the door to the detached garage, so he put his sleeve over his hand and opened the door.

[6] After talking with his father, Hall decided to call the police. The police arrested Rainwater and Porter later that night. When the police spoke with Porter, he told them that he thought the detach ed garage was his cous in’s house. But when the police did not believe Porter, he changed his story. Porter then told the police that it was Rainwater’s idea to go inside the garage and take the fourwheelers. In exchange for a three-year sentence with two years suspended forCourt of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 4 of 16 Level 5 felony burgla ry, Porter agreed to testify agai nst Rainwater at trial. Ex. 2 (“The Defendant agrees to testify truthfu lly at any hearing, deposition or trial involving co-defen dant.”).

[7] The State charged Rainwater with Le vel 5 felony burglary and Class A misdemeanor attempted theft. During voir dire, the prosecutor asked the prospective jurors if they could give Porter the benefi t of the doubt, just like they would a police officer, even though he pled guilty to this crime as well. Porter testified at trial that he and Ra inwater were walking to a friend’s house when Rainwater suggested breaking in to the detached garage on the Hall property and taking the four-wheelers. Porter said that Rainwater used his sleeve to open the service door to the garage. Porter te stified that they were in the garage looking for ke ys to the four-wheelers for less than five minutes when the Halls pulled up. As Hall approach ed the service door to the garage, Rainwater and Porter came out and Porter took off running. Porter testified that as he ran away, he saw Hall hit Rainwater.

[8] Rainwater testified to a diffe rent version of events. He claimed that Porter told him that the detached garage was his cous in’s house and that he did not know about any plan to take the four-wheeler s until Porter told him when they met back up down the road. During clos ing argument, the prosecutor implied— without any evidence in the record—t hat Porter put himself in danger by agreeing to testify for the State and ther efore should be believed. The jury found Rainwater guilty of Level 5 felo ny burglary and Class A misdemeanor attempted theft.Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 5 of 16 [9] At sentencing, defense counsel did not pr esent any evidence but rather argued that—as reflected in the PSI—there were several mitigators, including that Rainwater was only nineteen years old; he had several ment al-health diagnoses, including ADHD, bipolar disorder, and PTSD; he abused Xanax and alcohol; and he was abused as a child. The tr ial court found the following mitigators: Rainwater’s age and mental-health diagnos es. The court found the following aggravators: Rainwater’s juvenile and adul t criminal history, the fact that he was on probation when he committed this offense, and his behavior in jail. The court then sentenced Rainwater to five years with two years suspended for burglary and one year for attempted theft, to be serv ed concurrently (notwithstanding the State’s acknowled gement of a double-jeopardy violation,

see Tr. p. 446). In addition, the court placed Rainwater in the Purposeful Incarceration Program, noting that upon Rainwater’s successful completion of the program, it “would consider a modification of [his] sentence.” Id. at 453. It was the court’s hope that Rainwater woul d “figure out what [he] need[ed] to do to abide by society’s rules.” Id.

[10] Rainwater now appeals. 

# Discussion and Decision
[11] Rainwater raises three issues on appeal. First, he contends that his convictions for burglary and attempted theft violate the actual-evidence test of Indiana’s double-jeopardy clause. Second, Rainwa ter contends that the prosecutorCourt of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 6 of 16 engaged in misconduct during voir di re and closing argument. Last, he contends that his sentence is inappropriate. 

# I. Double Jeopardy
[12] Rainwater contends that his convictions for burglary and attempted theft violate the actual-evidence test of Indiana’ s double-jeopardy clause. The State concedes this issue. See Appellee’s Br. p. 14 (“[T]he State’s evidence proving Attempted Theft entirely subsumed the proof of Level 5 felony Burglary.”). We therefore remand this case to the tr ial court with instructions to vacate Rainwater’s conviction and sentence for Class A misdemeanor attempted theft. See Morrison v. State , 824 N.E.2d 734, 741-42 (Ind . Ct. App. 2005) (“[A] double jeopardy violation occurs when judgment s of conviction are entered and cannot be remedied by the ‘practical effect’ of concurrent sentences or by merger after conviction has been entered.”), trans. denied

. 

# II. Prosecutorial Misconduct
[13] Rainwater next contends that the prosec utor engaged in miscon duct during voir dire and closing argument. In reviewin g a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred and, if so, (2) whether the misc onduct, under all of the circumstances, placed the defendant in a position of grave peril to which he would not have been subjected otherwise. Ryan v. State , 9 N.E.3d 663, 667 (Ind. 2014), reh’g denied . Whether a prosecutor engages in mi sconduct is measured by referenceCourt of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 7 of 16 to case law and the Rules of Professional Conduct. Id. The gravity of peril is measured by the probable persuasive effe ct of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct. Id. To preserve a claim of prosecutorial misconduct, the defendant must—at th e time the alleged misconduct occurs—request an admonishment to the jury and, if further relief is desired, move for a mistrial. Id.

[14] Our standard of review is different wh ere a claim of prosecutorial misconduct has been procedurally defaulted for failure to properly raise the claim in the trial court. Id . The defendant must es tablish not only the grounds for prosecutorial misconduct but also that the prosecutor ial misconduct constituted fundamental
error. Id. at 667-68. Fundamental error is an extremely narrow exception to the waiver rule where the defendant face s the heavy burden of showing that the alleged errors are so prejudic ial to the defendant’s rights as to make a fair trial impossible. Id. at 668. In other words, to es tablish fundamental error, the defendant must show that, under the circ umstances, the trial judge erred in not sua sponte raising the issu e because the alleged errors (1) constitute clearly blatant violations of basic and elementa ry principles of due process and (2) present an undeniable and subs tantial potential for harm. Id.

[15] Rainwater concedes that defense counsel did not object at trial and therefore he must establish that the prosecutorial misc onduct constituted fundamental error. See Appellant’s Br. p. 12.Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 8 of 16 

## A. Voir Dire
[16] Rainwater argues that the prosecutor co mmitted misconduct during voir dire. The purpose of voir dire is not to ed ucate prospective jurors but rather to ascertain whether they can render an im partial verdict based upon the law and the evidence and “weed out” those who show they cannot be fair to either side. Gibson v. State , 43 N.E.3d 231, 238 (Ind. 2015) (quotation omitted); Coy v. State , 720 N.E.2d 370, 372 (Ind. 1999). Acco rdingly, the parties may inquire into jurors’ biases or tendencies to believe or disbelieve certain things about the nature of the crime itself or abou t a particular line of defense. Gibson , 43 N.E.3d at 238; Hopkins v. State, 429 N.E.2d 631, 634-35 (Ind. 1981) (finding no error where jurors were asked whether they would disbelie ve a witness who entered into a plea bargain).

[17] But questions should be limited to “tes ting the capacity and competency of prospective jurors.” Gibson , 43 N.E.3d at 238 (quotation omitted). Those questions that “seek to shape the favorabl e jury by deliberate exposure to the substantive issues in the case” are not permitted. Id. ; Davis v. State , 598 N.E.2d 1041, 1047 (Ind. 1992) (affirming trial co urt’s disallowing defense counsel from essentially asking prospect ive jurors “how they wo uld vote in the present case”), reh’g denied

.
[18] Rainwater first asserts that the prosec utor crossed the line by asking the prospective jurors to prejud ge Porter’s credibility:Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 9 of 16 [Prosecutor]: . . . Let’s talk a little bit about Mr. Porter. He’s already pled guilty. He . . . signed a plea agreement and he c[a]me in court and ple[]d guilty. He’s going to come in here and testify. Do you think that his te stimony should be held to a lesser standard? Would you believe hi m less just because he’s a codefendant in this case? You wo uld, would you believe him less? Juror: Probably a little bit. [Prosecutor]: Okay, why’s that? Juror: Just because he committed [t]he crime as well.
* * * * * [Prosecutor]: Would you agree to at least . . . give him the benefit of the doubt? Juror: Probably. [Prosecutor]: And, and think abou t . . . what motivation he has to lie, if any, in this case , [because he’s] already taken responsibility for this case . Does that make sense?
Juror: I’d want to know . . . if the prosecut[or] made a deal with him. [Prosecutor]: . . . We have . . . a duty to give you the plea agreement . . . . [W]e made a deal with him, just like we do with most people. I mean you can’t, you have to get witnesses from somewhere, right? Would you agree wi th that, sir? . . . If I could bring in a row of nuns to testify in a criminal case, believe me, I would. . . .Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 10 of 16 Tr. p. 26-27.

[19] Here, the prosecutor properly inqu ired about the prospective jurors’ predispositions to believe or disbelie ve Porter because he had made a plea bargain with the State. See Gibson , 43 N.E.3d at 238; Hopkins , 429 N.E.2d at 635 (“We see nothing wrong in inquiring into jurors’ minds about their biases in regard to the credibility of witn esses with an eye toward removing prospective jurors predispose d to disbelieve those with certain characteristics, such as plea bargainers.”). However, th e prosecutor went too far by giving the prospective jurors his personal take of how the plea agreement affected Porter’s credibility. See also Tr. p. 106 (“Do you agree to give [Porter] the same benefit of the doubt as you would any other witnes s? . . . Just like you would a police officer . . . .”). Nevertheless, we find th at this line of questioning did not place Rainwater in a position of grave peril.

[20] Rainwater next asserts that the prosec utor committed misconduct by addressing the topic of reasonable doubt wi th the prospective jurors: [Prosecutor]: . . . Do you thin k the State can prove and connect all of these dots based upon the te stimony of the people that were there?
#658: I believe so.
* * * * * [Prosecutor]: And if the Stat e proves this charge beyond a reasonable doubt, you think yo u can convict Mr. Rainwater?Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 11 of 16 #658: Yes.
Id. at 43-44; see also id. at 23 (“Do all of you think that if the State proves the charge beyond a reasonable doubt th at you could vote to convict Mr. Rainwater?”); 30 (discussing reasonable- doubt standard); 37 (“If the State proves this charge beyond a reasonable doubt, you think you can convict Mr. Rainwater?”); 39 (“If I can prove this trial beyond a reasonable doubt, you think you could convict the defendant? . . . You promise to do so by proof beyond a reasonable doubt?”).

[21] It is improper to ask prospectiv e jurors how they would vote. See Gibson , 43 N.E.3d at 238; Davis , 598 N.E.2d at 1047; Perryman v. State , 830 N.E.2d 1005, 1010 (Ind. Ct. App. 2005) (noting that it is improper “to examine jurors as to how they would act or decide in cert ain contingencies or in case certain evidence should be developed . . . at trial”). However, it is permissible for the prosecutor to ask the pros pective jurors questions to determine whether they understand reasonable doubt and are capable of rendering a verdict in accordance with the law. Barber v. State , 715 N.E.2d 848, 850 (Ind. 1999). Here, the prosecutor’s questions were dire cted to whether the prospective jurors understood the concept of reasonable doub t, not to how they would vote given the evidence. We theref ore find no misconduct.



## B. Closing Argument
[22] Rainwater next argues that the pros ecutor committed misconduct during closing argument by implying—without an y evidence in the record—that PorterCourt of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 12 of 16 put himself in danger by agreeing to test ify for the State, which enhanced his credibility: You think Mr. Porter is a popular guy at the jail right now? You think snitches are popular men at the jail? So again, I ask you, what possible motivation he has to come in here and lie other than if he simply really does want to turn his life around like he said. He’s still got to serve seve ral more months in the jail with those folks. And you think there’s secrets in the jail? There ain’t no secrets in the jail. . . . And it wouldn’t have changed his punishment had he come in here and said, it was all my idea, I[] masterminded this thing, I mastermi nded this heist. . . . His life would have been so much better off in the jail if he’d said that. But he didn’t. Tr. p. 411-12.

[23] The Indiana Rules of Profe ssional Conduct demand that a lawyer “shall not . . . in trial[] allude to any matter that th e lawyer does not reas onably believe is relevant or that will not be supporte d by admissible ev idence.” Ind. Professional Conduct Rule 3.4(e). Indiana courts ha ve emphasized the impropriety of this trial tactic. See, e.g., Benson v. State , 762 N.E.2d 748, 752 (Ind. 2002).

[24] Here, there was no evidence in the re cord about how Port er was treated or going to be treated in jail becaus e he agreed to testify for the State. 1

1 The State tried to admit evidence that Rainwater had atta cked Porter in jail, but the trial court excluded this evidence. Tr. p. 292.Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 13 of 16 Nevertheless, the prosecutor implied th at Porter put himself in danger by agreeing to testify for the State, which in turn implied that Porter must be telling the truth given the risk to him. This was improper. See id. (“[T]he prosecutor’s questions and evidence did no t directly allege that the witness was fearful due to threats connected to the defendant, but did clearly imply, without any substantiating foundation in the record, that the wi tness’s trial testimony was untruthful due to his fear of retribut ion. . . . [W]e cannot approve of the questioning permitted here.”). 

## C. Fundamental Error
[25] Even assuming that these instances am ounted to prosecutorial misconduct, Rainwater is still not entitled to relief. 2 In evaluating th is issue using the fundamental-error doctrine, our task is to “look at the alleged misconduct in the context of all that happened and all re levant information given to the jury— including evidence admitted at trial, cl osing 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. We do not believe that the prosecutor’s st atements—which most ly concerned the credibility of Porter—had an undeniable and substantia l effect on the jury’s

2 Rainwater claims that the prosecutor engaged in othe r instances of misconduct. For example, he argues that the prosecutor improperly asked the prospective ju rors during voir dire no t to get “caught up” with matters that did not affect the elements of the crime, such as the weather on the day of the crime. Tr. p. 32. He also claims that the prosecutor improperly argued during closing argument that he could have given Porter immunity. Id. at 399. We find no misconduct in either example. But even if we found that these instances amounted to prosecutorial misconduct, they do not constitute fundamental error.Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 14 of 16 decision such that a fair trial for Rain water was impossible. This is because there was evidence in additi on to Porter’s testimony that linked Rainwater to the burglary. Hall and his son identifi ed Rainwater as one of the two men leaving their detached garage. After be ing caught, Rainwater raised his elbow at Hall. Rainwater then fabricated a story about a fight to his girlfriend’s mother in order to explai n the mark that Hall had left to his face. Rainwater also told Porter not to te ll anyone what happened. Finally, Rainwater told his girlfriend that he opened the service door to the detached garage by using his sleeve; this is precisely how Porter test ified at trial that Rainwater opened the door. Accordingly, we find that th e instances—either individually or cumulatively—did not make a fair tria l for Rainwater impossible. 

# III. Inappropriate Sentence
[26] Last, Rainwater contends that his five-y ear sentence with two years suspended and placement in the Purposeful Inca rceration Program for Level 5 felony burglary is inappropriate. A person who commits a Level 5 felony “shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years.” Ind. Code § 35-50-2-6(b). Rainwater asks us to “revise his sent ence to . . . the advisory sentence of three years.” Appellant’s Br. p. 11.

[27] The Indiana Constitution au thorizes independent appella te review and revision of the trial court’s sentencing decision. Brown v. State , 10 N.E.3d 1, 4 (Ind. 2014). We implement this authority through Indiana Appellate Rule 7(B),Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 15 of 16 which provides that we may revise a sent ence authorized by statute if, after due consideration of the trial court’s deci sion, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. Id. When reviewing the appropri ateness of a sentence under Appellate Rule 7(B), we may consider all aspects of the penal consequences imposed by the trial court in sentenci ng the defendant, including whether a portion of the sentence was suspended or “crafted using any of the variety of sentencing tools available to the trial judge.” Davidson v. State , 926 N.E.2d 1023, 1025 (Ind. 2010).

[28] There is nothing particularly egregious about this offense. Rainwater and Porter broke and entered a detached gar age with the intent of taking fourwheelers but ended up taking nothing because the homeowners came home.

[29] Rainwater’s character, however, suppor ts the trial court’s carefully crafted sentence. Since 2011, the nineteen-year -old Rainwater had been adjudged a delinquent five times (including one ad judication for theft), was convicted of Class A misdemeanor criminal trespass as an adult, and was on probation at the time of this offense. In addition, Rain water violated probation in 2013. While in the Greene County Jail for three mo nths awaiting trial in this case, Rainwater committed three violations: he attacked Porter and he committed two “less serious violations that seem to show a continuing problem of being unable to follow . . . the rules . . . .” Appellant’s App. p. 198. Also, while in the Monroe County Jail in 2014 for his Class A misdemeanor conviction,Court of Appeals of Indiana | Memorandum Decision 28A01-1507-CR-830 | April 4, 2016 Page 16 of 16 Rainwater received thirty days of lo ck down for tamper ing with locks. Id. at 181.

[30] While we acknowledge that Rainwater is young and has some mental-health diagnoses, he has failed to persuade us that his five-year sentence with two years suspended and placement in the Pu rposeful Incarceration Program (with a chance to modify his sentence) is in appropriate given his juvenile and adult criminal history, probation violations, and behavior in jail. We therefore affirm Rainwater’s sentence. 3

[31] Affirmed in part, and reversed and remanded in part. Bailey, J., and Crone, J., concur.

3 Rainwater appears to tack on a new argument to the end of his inappropriate-sentence argument. See Appellant’s Br. p. 11. That is, he appears to argue that he was punished for exercisi ng his constitutional right to a jury trial because his sentence is longer than Porter’s sentence. Although it is constitutionally impermissible for a trial court to im pose a more severe sentence becaus e the defendant has chosen to stand trial rather than plead guilty, see Walker v. State , 454 N.E.2d 425 (Ind. Ct App. 1983), reh’g denied , there is no evidence in the record that suggests such a violation occurred here.