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:

MATTHEW D. ANGLEMEYER GREGORY F. ZOELLER

Marion County Public Defender Attorney General of Indiana

Indianapolis, Indiana 

AARON J. SPOLARICH

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DARRYL ANDERSON, )

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1107-CR-601

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Patricia J. Gifford, Senior Judge 

Cause No. 49G22-1006-FB-43806

May 24, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
2

STATEMENT OF THE CASE

Darryl Anderson appeals his convictions for rape as a class B felony;1criminal 

confinement as a class C felony;2and battery as a class A misdemeanor.3

We affirm.

ISSUE

Whether the prosecutor committed misconduct.

FACTS

A.M., an adult with the mental and learning capacity of a sixth-grader, met 

Anderson in late 2009, when she lived in the city of Anderson. During the next four or 

five months, A.M. “hung out” with Anderson and occasionally had sex with him. (Tr. 

40). In the spring of 2010, A.M. moved into her sister’s Indianapolis home. Soon 

thereafter, A.M. ended her relationship with Anderson and began dating someone else. 

On the night of May 10, 2010, A.M. was visiting a friend on the east side of 

Indianapolis when she telephoned Anderson to ask for a ride to her sister’s house on the 

west side. After picking up A.M., Anderson began asking her about her boyfriend and 

whether she had sex with him. When A.M. answered in the affirmative, Anderson struck 

A.M.’s head. He continued to hit her, causing A.M. pain. Anderson told A.M. that she 

was “now in his territory” and that she was “his bitch[.]” (Tr. 44).

 

1

 Ind. Code § 35-42-4-1.

2

 I.C. § 35-42-3-3.

3

 I.C. § 35-42-2-1.
3

Instead of taking A.M. to her sister’s house, Anderson stopped at an off-track 

betting (“OTB”) venue to pick up a friend, Michael Williams, and take him to work.

Although Anderson left A.M. alone in the vehicle while he went inside the OTB, A.M.

did not leave because Anderson “had already been hitting [her],” and she believed he 

“would have chased [her] and try [sic] to hit [her] some more.” (Tr. 45).

Anderson told Williams that “he had some stuff to do on the west side in the 

morning, he didn’t feel like going back east” and asked if he could “just chill” at 

Williams’s apartment until the morning while Williams was at work. (Tr. 97). Anderson 

offered to pick up Williams when his shift ended at 7:00 a.m. Williams agreed and gave 

Anderson the key to his apartment.

Anderson continued driving A.M. around after dropping off Williams at work. At 

one point, he stopped at a liquor store and bought some beer. A.M. again stayed in the 

car because she did not know where she was, and it was dark. From the liquor store, 

Anderson drove to an acquaintance’s house. After arguing with A.M., Anderson told her 

to get out of the car, which she did. Anderson then threw a beer bottle at A.M. but 

missed. 

After A.M. left the vehicle, Anderson telephoned A.M.’s sister, Marquirite 

Brooks, and told her that A.M. had “tripped when she got out of the car and started 

walking . . . .” (Tr. 107). By this time, A.M. had walked to a gas station and also

telephoned Brooks. A.M., unaware that Anderson was on hold with Brooks, asked 

Brooks to pick her up and gave Brooks her location. Brooks “clicked over and told 
4

[Anderson], [A.M.] [was] at the Speedway, go get her.” (Tr. 109). Brooks then told 

A.M., “okay, he’s—he [sic] about to come and get you.” (Tr. 50). A.M. thought Brooks

meant Brooks’s boyfriend would be picking her up.

Before hanging up, Anderson told Brooks they would be at the house in forty-five 

minutes. Knowing it would not take so long to get to her house, Brooks tried calling 

Anderson back several times, but the telephone calls kept going to voice mail.

By the time Anderson arrived at the gas station, it was raining. Tired, wet, and 

believing that Anderson “had calmed down and everything was okay and he was just 

gonna [sic] take [her] to [her] sister’s house,” A.M. got in the car. (Tr. 50). Instead, 

Anderson drove to Williams’s apartment complex.

Before he got out of the car, Anderson kept asking, “you thought I was gonna [sic] 

pick you up, but you didn’t have to give me nothing?” (Tr. 51). Anderson then went to 

the passenger’s side, grabbed A.M.’s arm, and pulled her out of the car. (Tr. 51). 

Anderson then threw A.M.’s bag into a dumpster. As A.M. tried to retrieve her bag, 

Anderson started “tussling” with her before pulling A.M. by the hair and dragging her 

into the apartment building. (Tr. 52). When A.M. protested, Anderson threatened to 

punch her. He then unlocked the door to Williams’s apartment and forced A.M. inside.

When A.M. tried to escape, Anderson pushed her down to the floor. He then 

“stomped on [her] back” and pinned her neck down with his knee. (Tr. 54). A.M. 

struggled with Anderson, who pushed A.M. onto a sofa. Anderson then “unzipped his 
5

pants and he started wiggling his-self [sic] in [A.M.’s] face.” (Tr. 54). Anderson next 

made A.M. undress and take a shower.

When A.M. finished showering, she returned to the living room, where Anderson 

had put her clothes. As she started getting dressed, Anderson grabbed A.M. by the pants 

and pushed her down on the sofa. A.M. pleaded to Anderson to stop and let her go to her 

sister’s house, but Anderson kept telling her that she was “[a]bout to give [him] some.” 

(Tr. 56). Anderson then hit A.M. and pinned her down. Despite A.M.’s protests, 

Anderson “put his private part inside [her] vagina.” (Tr. 57).

After Anderson ejaculated, he “got off” of A.M. and let her get dressed. (Tr. 57). 

Anderson then drove A.M. to her sister’s house. Before A.M. got out of the vehicle, 

Anderson threatened that he would “find” A.M. if she called the police. (Tr. 58). 

After dropping off A.M., Anderson returned to Williams’s work at approximately 

4:00 a.m. Anderson gave Williams his key back and “said he’d just take care of his 

business later on in the day.” (Tr. 98). Williams did not see Anderson again that day.

Later that morning, after Brooks noticed several bruises on A.M., A.M. informed 

her that Anderson had “beat [her] up.” (Tr. 59). She did not tell her sister that Anderson 

had raped her because she did not want to upset her sister. (Tr. 59). A.M.’s sister 

telephoned the police, who had A.M. transported to a hospital. A.M. told hospital 

personnel that Anderson had raped her.

A physical examination conducted by a forensic nurse examiner revealed several 

bruises to A.M.’s head and body in addition to burst blood vessels in her eye, an injury 
6

commonly caused by pressure to the neck. A.M. also suffered a laceration to her vagina, 

which was “consistent with a sexual assault[.]” (Tr. 152).

Using a Sexual Assault Evidence Collection Kit, the forensic nurse swabbed 

A.M.’s vagina for evidence. She also collected A.M.’s underwear. Anderson 

subsequently stipulated that tests revealed seminal material on the vaginal swab and 

A.M.’s underwear and that, to a reasonable degree of scientific certainty, he was the 

source of DNA extracted from both samples. 

Detective Dale Horstman, a criminal investigator with the Speedway Police 

Department, interviewed A.M. Detective Horstman observed several injuries, including 

bruises to A.M.’s head and body and burst blood vessels in A.M.’s eye. Although A.M. 

did not know the address, Detective Horstman was able to locate Williams’s apartment

based on a description given by A.M. With Williams’s cooperation, Detective Horstman 

confirmed that the lay-out of the apartment was as A.M. had described it.

On June 8, 2010, the State charged Anderson with Count 1, rape as a class B 

felony; Count 2, criminal confinement as a class C felony; Count 3, criminal confinement 

as a class C felony; Count 4, battery, as a class A misdemeanor; Count 5, battery, as a 

class A misdemeanor; and Count 6, battery, as a class A misdemeanor. The trial court 

commenced a two-day jury trial on June 6, 2011, after which the jury found Anderson 

guilty as charged. 
7

For purposes of sentencing, the trial court merged Count 3 with Count 1 and 

Counts 5 and 6 with Count 4. The trial court then sentenced Anderson to concurrent 

sentences of fifteen years on Count 1, eight years on Count 2, and one year on Count 4.

Additional facts will be provided as necessary.

DECISION

Anderson asserts that the prosecutor committed misconduct. 

In reviewing a properly preserved claim of prosecutorial misconduct, 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. Whether a prosecutor’s argument constitutes misconduct is 

measured by reference to case law and the Rules of Professional Conduct. 

The gravity of 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. 

Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006) (internal citations omitted).

Here, Anderson contends that the State “threw an evidentiary harpoon,” by 

eliciting certain testimony from Williams, “and then used the harpoon in its closing 

statement.” Anderson’s Br. at 9. “An evidentiary harpoon involves the deliberate use of 

improper evidence to prejudice the defendant in the eyes of the jury.” Williams v. State, 

512 N.E.2d 1087, 1090 (Ind. 1987).

In support of his contention that the prosecutor committed misconduct, Anderson

cites the State’s direct examination of Williams, during which Williams testified as 

follows: 
8

Q Did Detective Horstman end up showing up at your 

apartment?

A Yes, ma’am.

. . . .

Q At that point, when Detective Horstman shows up at your 

house, do you learn that a sexual assault may have occurred 

in your home?

A He said he couldn’t really give me detail[s], but he mentioned 

that.

Q Okay. At some point, after Detective Horstman comes and 

takes items from your house, months down the road did you 

give a deposition in this matter?

A I don’t know how long after, but yes.

. . . .

Q And when you went to give a deposition and you were 

waiting to give your deposition, did you ever recognize a 

woman in the room with you as being the woman who was in 

the back seat [of Anderson’s vehicle]?

A Not when I first got there. . . . [W]hile I was there I learn[ed] 

that that was the young lady.

Q Okay. And did you in fact pass her a note before you left that 

day?

A Yep.

Q And did you ask her to please forgive you and you did not 

know that this was going to happen at your house?

A Correct.

(Tr. 98-100). 
9

On redirect, the State questioned Williams as follows: “But at no point did you 

realize at the time you gave your key that he was going to take a woman to your 

apartment and rape her, right?” (Tr. 102-03). Anderson objected, arguing that the State’s 

question was argumentative. Anderson, however, did not seek an admonishment or move 

for a mistrial.

The trial court overruled Anderson’s objection, whereupon the State continued its 

examination as follows:

Q Did you have any idea when the defendant asked you for the 

keys to your apartment that he was going to take a woman to 

your apartment and rape her there?

A I didn’t know one way or the other.

(Tr. 103).

During its closing argument, the State argued as follows:

But here’s the part that stuck out most to me. [Williams] described the 

defendant as his friend, right. He said, I would call him a friend. Maybe 

not a best friend, but he’s my friend.

What does Michael Williams do the next time that he sees [A.M.]? 

It’s at the deposition you heard about; all the witnesses in this case having a 

deposition taken of them. What does the defendant’s own friend say to 

[A.M.]? Not I can’t believe you’re the girl accusing my friend of raping 

you, my friend wouldn’t do that. I can’t believe you would say my friend 

took you to my apartment and raped you. That’s not what he says. What 

Michael Williams does is passes her a note that says, I didn’t know he 

would do this to you. Please, God, forgive me for giving him my key. And 

that’s, to me, is some of the most telling testimony that you heard and what 

it shows is it shows what even his own friends think about him.

But when I asked [Williams], did you know that the defendant was 

going to take a woman to your apartment and rape her? I didn’t know one 
10

way or the other. So it’s not this off-base idea. His own friend feels sorry 

for this woman that he gave the key and allowed her to be raped in his 

place.

(Tr. 201-02). 

A review of the record shows that Anderson did not object to the State’s initial 

direct examination of Williams. As to the redirect examination, Anderson objected but 

failed to seek an admonishment or move for a mistrial. Furthermore, Anderson neither 

objected, sought an admonishment nor moved for a mistrial in response to the State’s 

closing argument.

When an improper argument is alleged to have been made, the 

correct procedure is to request the trial court to admonish the jury. If the 

party is not satisfied with the admonishment, then he or she should move 

for mistrial. Failure to request an admonishment or to move for mistrial 

results in waiver. Where a claim of prosecutorial misconduct has not been 

properly preserved, our standard for review is different from that of a 

properly preserved claim. More specifically, the defendant must establish 

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

fundamental error. Fundamental error is an extremely narrow exception 

that allows a defendant to avoid waiver of an issue. It is error that makes “a 

fair trial impossible or constitute[s] clearly blatant violations of basic and 

elementary principles of due process . . . present[ing] an undeniable and 

substantial potential for harm.”

Cooper, 854 N.E.2d at 835.

Anderson has failed to properly preserve his claim of prosecutorial misconduct. 

Accordingly, Anderson must establish not only the grounds for prosecutorial misconduct 

but also the grounds for fundamental error. See Cooper, 854 N.E.2d at 835; Booher v. 

State, 773 N.E.2d 814, 818 (Ind. 2002).
11

The record shows that Anderson’s counsel cross-examined Williams, and 

therefore, had the opportunity to refute that Williams had direct knowledge regarding 

what had occurred in his apartment. The record further shows that Williams admitted

that he “didn’t know” what Anderson intended to do in his apartment but only inferred 

what had happened based on his conversation with Detective Horstman. (Tr. 103). 

Furthermore, in addition to Williams’s testimony, the jury heard extensive testimony 

from A.M. regarding Anderson’s offenses against her, and the State presented substantial 

physical evidence corroborating A.M.’s testimony. 

Given the testimony, along with the additional evidence in this case, we find that 

Anderson’s claim of prosecutorial misconduct does not constitute fundamental error. The 

State’s implied assertion that Anderson must have raped A.M. because Williams believed 

he had did not so prejudice Anderson as to make a fair trial impossible or constitute 

blatant violations of basic and elementary principles of due process. We therefore find 

no reversible error.

Affirmed.

NAJAM, J., and RILEY, J., concur.