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:

DEBORAH MARKISOHN GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

GEORGE P. SHERMAN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ANDREW WALLACE, )

)

Appellant-Defendant, )

)

vs. ) No. 49A04-1306-CR-304

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Helen Marchal, Judge

Cause No. 49G16-1302-FD-11531

February 14, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
2

Case Summary

Andrew Wallace appeals his convictions and sentence for Class D felony domestic 

battery and two counts of Class D felony battery on a child with injury and his status as 

an habitual offender. We affirm in part, reverse in part, and remand.

Issues

Wallace raises two issues, which we restate as:

I. whether fundamental error occurred as a result of the 

deputy prosecutor’s statements during closing 

arguments; and

II. whether Wallace’s sentence violated the provisions of 

Indiana Code Section 35-50-1-2(c).

Facts

Wallace was married to C.T., and they had three children, five-year-old G.W., 

four-year-old A.W., and one-year-old An.W. C.T. also had a child from a previous 

relationship, eight-year-old T.P. On February 18, 2013, Wallace and C.T. were arguing 

about money. At approximately 3:00 p.m., Wallace took G.W., left the apartment, and 

went to his uncle’s house. When Wallace returned with G.W. at 7:00 p.m., he was 

intoxicated. Wallace began looking for his “weed” and asking C.T. about it. Tr. p. 31. 

Wallace then said that G.W. took it and started walking toward the children’s bedroom. 

C.T. tried to follow him, but Wallace pushed her down onto the sofa and “smacked [her] 

with an open hand.” Id. at 32. Wallace then went into the children’s bedroom and yelled

at G.W. C.T. tried to pull him away from the children, but Wallace pushed her to the 

floor. Wallace got on top of G.W., punched her in the stomach, and choked her, resulting 
3

in a long scratch on her neck and shoulder. While T.P. was trying to protect G.W. from 

Wallace, Wallace hit T.P. with a closed fist on her jaw. C.T. took An.W., went into the 

bathroom, and called 911. Wallace then entered the bathroom and punched C.T. on the 

side of her head with a closed fist. The police arrived shortly thereafter and arrested 

Wallace. 

The State charged Wallace with Class D felony domestic battery, Class D felony 

battery on a family or household member, two counts of Class D felony battery on a child 

with injury, Class A misdemeanor domestic battery, and Class A misdemeanor battery. 

The State also alleged that Wallace was an habitual offender. A jury found Wallace 

guilty as charged, and Wallace pled guilty to being an habitual offender. Due to double 

jeopardy concerns, the trial court entered judgment of conviction on Class D felony 

domestic battery and two counts of Class D felony battery on a child with injury. The 

trial court sentenced Wallace to consecutive sentences of three years on each of the 

convictions enhanced by two years for Wallace’s status as an habitual offender. Wallace 

now appeals.

Analysis

I. Prosecutorial Misconduct

Wallace argues that the deputy prosecutor committed misconduct during his 

closing argument. “We evaluate a properly preserved claim of prosecutorial misconduct 

using a two-step analysis.” Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012). “We first 

determine whether misconduct occurred, then, if there was misconduct, we assess 

‘whether the misconduct, under all of the circumstances, placed the defendant in a 
4

position of grave peril to which he or she would not have been subjected’ otherwise.” Id.

(quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). To preserve a claim of 

prosecutorial misconduct, the defendant must ask the trial court, at the time the 

misconduct occurs, to admonish the jury or move for a mistrial if admonishment is 

inadequate. Id.

Here, Wallace neither asked for an admonishment nor for a mistrial. Failure to 

request an admonishment or a mistrial waives the claim, unless the defendant can 

demonstrate that the misconduct rises to the level of fundamental error. Id. Fundamental 

error is a narrow exception to the waiver rule intended to place a heavy burden on the 

defendant. Id. “It requires the defendant to establish that the misconduct ‘[made] a fair 

trial impossible or constitute[d] clearly blatant violations of basic and elementary 

principles of due process’ or that the misconduct ‘present[ed] an undeniable and 

substantial potential for harm.’” Id. (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind.

2002)).

During closing arguments, the deputy prosecutor stated:

Andrew Wallace’s defense is hinged on everyone is lying. 

You heard him up here; I was asleep . . . I went to sleep. 

That’s it. According to the C.A.D. which has been entered 

into evidence five minutes elapsed between the time that the 

dispatchers made (unintelligible) from the 911 call to when 

the officers arrived. It’s back[ed] up by Officer Griffith’s 

testimony. The stories are consistent. There wasn’t enough 

time to be coached. There wasn’t enough time to tell them 

what was going on. We know what happened because that is 

the truth. What we heard was the truth and furthermore 

finally that the children were screaming when they entered 

the house. They had to be consoled by their grandmother. 
5

All of that is consistent with what we heard from the State’s 

evidence and directly contradicts what Mr. Wallace said.

* * * * *

You have heard consistency. You have heard truth today. 

What Mr. Wallace has said is unreasonable. It doesn’t jive 

with anything . . . anything that you have heard today. It does 

not comport with. 

Tr. pp. 107, 110.

According to Wallace, the deputy prosecutor’s comments amounted to improper 

vouching for the witnesses when he said that the witnesses told the truth. Our supreme 

court addressed a similar issue in Cooper, where it held:

[A] prosecutor does not necessarily engage in misconduct by 

characterizing a defendant as a liar. In Hobson v. State, the 

“prosecutor gave personal opinions as to the truthfulness of 

witnesses” when the prosecutor stated to the jury during 

closing arguments, “I warned you that [the defendants] are 

liars.” 675 N.E.2d 1090, 1095 (Ind. 1996). This Court noted 

that where evidence introduced at trial indicates that either the 

defendant was lying or that other witnesses were lying, 

comments by the prosecutor which merely “pointed out the 

incongruities in the testimony presented at trial, concluded 

that someone must not be testifying truthfully, and invited the 

jury to determine which witness was telling the truth” did not 

constitute misconduct. Id. at 1096. Rather, “a prosecutor 

may comment on the credibility of the witnesses as long as 

the assertions are based on reasons which arise from the 

evidence.” Lopez v. State, 527 N.E.2d 1119, 1127 (Ind. 

1988).

Cooper, 854 N.E.2d at 836 (alteration in original). The deputy prosecutor here merely 

pointed out that Wallace’s explanation was inconsistent with the other witnesses’

testimony and the evidence. The comments were not prosecutorial misconduct, and 

Wallace’s fundamental error argument fails. See, e.g., Surber v. State, 884 N.E.2d 856, 
6

866 (Ind. Ct. App. 2008) (finding no misconduct where the prosecutor’s comments “as a 

whole encouraged the jury to find that C.S. was telling the truth while Surber was lying”), 

trans. denied.

II. Sentencing

Next, Wallace argues that he was improperly sentenced. Indiana Code Section 35-

50-1-2(c) provides: 

[E]xcept for crimes of violence, the total of the consecutive 

terms of imprisonment, exclusive of terms of imprisonment 

under IC 35-50-2-8 and IC 35-50-2-10, to which the 

defendant is sentenced for felony convictions arising out of an 

episode of criminal conduct shall not exceed the advisory 

sentence for a felony which is one (1) class of felony higher 

than the most serious of the felonies for which the person has 

been convicted.

Wallace contends that his offenses were not “crimes of violence” and that his offenses 

arose “out of an episode of criminal conduct.” Ind. Code § 35-50-1-2(c). According to 

Wallace, the maximum possible sentence here, not including the habitual offender 

enhancement, was four years, and he was improperly sentenced to nine years. 

The trial court addressed this issue at the sentencing hearing and stated: 

[W]hile I am acknowledging under 35-50-1-2 that there is a 

statutory cap on the next higher level felony . . . if there is a 

single episode of criminal conduct I do believe that given the 

fact that we have three separate victims and while these 

batteries occurred one after the other in succession . . . I do 

believe that there is support for a finding that all three of 

these counts be run consecutively for a total of nine years. 

The evidence as I recall was that victim [C.T.] was first 

battered in the living room. You then moved on into a 

bedroom and struck [G.W.] before moving on and battering 

[T.P.]. 
7

Tr. pp. 151-52.

On appeal, the State concedes that Wallace’s offenses are not “crimes of violence”

as defined by Indiana Code Section 35-50-1-2(a). Thus, the issue is whether Wallace’s 

offenses amounted to an “episode of criminal conduct,” which Indiana Code Section 35-

50-1-2(b) defines as “offenses or a connected series of offenses that are closely related in 

time, place, and circumstance.”

Our supreme court addressed the “episode of criminal conduct” language in Reed 

v. State, 856 N.E.2d 1189, 1201 (Ind. 2006), and Harris v. State, 861 N.E.2d 1182 (Ind. 

2007). In Reed, the defendant was being pursued by police officers when he stopped his 

car, opened the door, and fired a gunshot in the direction of the officers. He then began 

driving away, but a few seconds later he slowed down and fired two additional shots in 

the direction of one of the officers. Our supreme court held that, although the offenses 

were “not precisely ‘simultaneous’ or ‘contemporaneous,’ . . . the two offenses were 

nonetheless ‘closely connected in time, place, and circumstance.’” Reed, 856 N.E.2d at 

1201. Consequently, the offenses were a single episode of criminal conduct within the 

meaning of Indiana Code Section 35-50-1-2(c). 

Similarly, in Harris, the defendant committed acts of sexual misconduct with a 

minor against two girls on the same bed five minutes apart. The court also noted that the 

acts were “based on the same reason—the girls’ need for a place to stay for the night.” 

Harris, 861 N.E.2d at 1189. The court concluded that the defendant’s offenses were “a 

connected series of offenses that are closely connected in time, place, and circumstance.” 

Id.
8

Here, Wallace’s offenses against C.T., G.W., and T.P. occurred within minutes, if 

not seconds, of each other. The acts were all based on the same reason—Wallace’s hunt 

for his missing marijuana. Although the batteries of C.T. occurred in the living room, 

bedroom, and bathroom, all of the batteries occurred in the same two-bedroom apartment. 

We conclude that the offenses were closely connected in time, place, and circumstance. 

See, e.g., Ballard v. State, 715 N.E.2d 1276, 1280-81 (Ind. Ct. App. 1999) (holding that a 

residential entry and two batteries were a single episode of criminal conduct). 

Consequently, the total of the consecutive terms of imprisonment, exclusive of habitual 

offender enhancement, to which Wallace could be sentenced could not exceed the 

advisory sentence for a Class C felony, which is four years. The trial court erred by 

imposing a nine-year sentence.1

Conclusion

Wallace has not established that the deputy prosecutor committed misconduct, 

much less that fundamental error occurred, as a result of the closing arguments. 

However, the sentence imposed violates Indiana Code Section 35-50-1-2(c). We reverse 

the sentence and remand for resentencing consistent with this opinion. We affirm in part, 

reverse in part, and remand for resentencing.

Affirmed in part, reversed in part, and remanded.

ROBB, J., and BROWN, J., concur.

 

1 The State argues that, on remand, the trial court should be allowed to increase the habitual offender 

enhancement if the trial court desires to do so. We agree. Our courts have held that, on resentencing, the 

trial court has “flexibility upon remand, including the ability to increase sentences for individual 

convictions without giving rise to a presumption of vindictive sentencing, so long as the aggregate 

sentence is no longer than originally imposed.” Sanjari v. State, 981 N.E.2d 578, 583 (Ind. Ct. App. 

2013), trans. denied.