Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-237 | January 29, 2015 Page 1 of 7

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

Jill M. Acklin

McGrath, LLC

Carmel, 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

Deaundra Patterson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

January 29, 2015

Court of Appeals Cause No.

48A02-1404-CR-237

Appeal from the Madison Circuit 

Court, The Honorable Dennis D. 

Carroll, Judge

Cause No. 48C06-1305-FB-1079

Najam, Judge.

Statement of the Case

[1] Deaundra Patterson appeals his convictions, following a jury trial, for robbery, 

as a Class B felony; battery, as a Class C felony; battery, as a Class D felony; 

resisting law enforcement, as a Class D felony; and operating a motor vehicle 
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while privileges are forfeited for life, a Class C felony. Patterson presents one 

issue for our review, namely, whether certain statements made by the 

prosecutor during the rebuttal portion of closing arguments amounted to 

fundamental error.

[2] We affirm. 

Facts and Procedural History

[3] From May 5, 2013, to May 27, 2013, Patterson committed four armed 

robberies in Anderson, Indiana.1 He robbed the same gas station twice, on May 

5 and on May 15, and he also robbed a discount tobacco store on May 12 and a 

liquor store on May 27. In all four robberies, Patterson carried a handgun and 

a plastic bag, and, in all four, he demanded money and Newport cigarettes. 

During the first robbery of the gas station, Patterson threatened the lives of the 

employees, and he also robbed a customer, who entered the station during the 

commission of the robbery. And, during the subsequent robbery of the gas 

station, Patterson fired a warning shot at an employee and robbed him of his 

wallet. Police recovered a .40 caliber shell casing and a .40 caliber round 

lodged in the store’s fuel pump control box.

[4] Over the course of the robberies, the victims of the robberies observed that 

Patterson wore a number of clothing items, including: baggy clothes, black 

 

1

Patterson committed four robberies but was not identified as the assailant until after the fourth. 

Nevertheless, for the sake of clarity and ease of writing, we refer to Patterson by name.
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pants, a red hoodie sweatshirt, a ski mask, a camouflage mask, a tan jacket, and 

a puffy winter coat. During some, but not all, of the robberies, Patterson also 

wore black gloves.

[5] Patterson fled from all four robberies, but police were unable to locate him after 

the first three. However, after the fourth, witnesses communicated to police 

that Patterson had fled north in a red truck, and, on his way to the scene, a 

responding officer observed a speeding red Chevrolet Tahoe. He pursued the 

Tahoe, with lights and siren activated, but the vehicle fled and the officer lost 

track of it. Not long after, another officer, Matt Jarrett with the Anderson 

Police Department, located the Tahoe parked in a driveway, and he observed 

Patterson knocking on the front door of the residence. Officer Jarrett drew his 

weapon, and ordered Patterson to turn around with his hands in the air. 

Patterson, however, placed his hands into his pockets and ran towards the 

Tahoe. Officer Jarrett approached the vehicle, knocked on the door, and 

demanded that Patterson stop, but Patterson backed out of the driveway 

quickly, which caused the vehicle to strike the officer and knock him down. 

Officer Jarrett fired two rounds at Patterson, but he continued to flee.

[6] Sergeant Kevin Earley, also with the Anderson Police Department, then began

pursuit of Patterson with his lights and sirens activated. Patterson led Sergeant 

Earley on a high-speed chase that concluded when Patterson crashed the Tahoe 

into a telephone pole. Officers took Patterson into custody, and, when they 

did, officers recovered on his person a loaded .40 caliber Smith and Wesson 

handgun magazine. Also, pursuant to a search warrant for the Tahoe, officers 
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recovered from the vehicle two bandanas; a pair of black leather gloves; a black 

ski mask; a black coat with a gray hood; a red and black sweatshirt; a plastic 

bag; an empty Newport cigarette pack; a black and silver .40 caliber Smith and 

Wesson handgun; and a loaded Smith and Wesson .40 caliber magazine.

[7] Police also obtained and reviewed surveillance video from all four robberies. 

From those videos, detectives were able to determine that Patterson used the 

Smith and Wesson handgun in at least two of the robberies. Further, they 

observed that Patterson conducted all four robberies in the same way. And, in 

one of the videos, the distinctive soles of the robbery perpetrator’s shoes were 

visible. From this, detectives were able to determine, after comparing those 

soles to approximately 300 samples, that they matched only the soles of the 

shoes taken from Patterson at the police station following his arrest.

[8] On May 31, 2013, the State charged Patterson with five counts of robbery, as 

Class B felonies; battery, as a Class C felony; battery as a Class D felony; 

resisting law enforcement, as a Class D felony; and operating a motor vehicle 

while privileges are forfeited for life, a Class C felony. Patterson’s jury trial was 

held over the span of five days in January and February 2014. At trial, the State 

called seventeen law-enforcement officers, who testified about the investigation 

they conducted, and several other witnesses. Two of the witnesses, employees 

present at the first robbery of the gas station, identified Patterson as the 

perpetrator. During the rebuttal portion of the State’s closing argument, the 

prosecutor stated, “They did a very thorough investigation, our Anderson 

Police Department.” Tr. at 1173. Patterson did not object to this statement. 
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[9] At the conclusion of the trial, the jury convicted Patterson as charged, and the 

trial court sentenced him to an aggregate, executed term of seventy-three years 

in the Indiana Department of Correction. This appeal ensued.

Discussion and Decision

[10] Patterson contends that the prosecutor’s statement regarding the Anderson 

Police Department’s investigation, to which he did not object, constituted 

fundamental error. Specifically, Patterson argues that prosecutorial misconduct 

occurred because the prosecution bolstered its case by “vouching” for seventeen 

witnesses, the officers, whose testimony “was at the heart of the case.” 

Appellant’s Br. 5-6. Thus, he reasons, the statement by the prosecutor placed 

him in grave peril. We cannot agree. Even if we assume that the prosecutor’s 

comments were inappropriate, they do not amount to fundamental error.

[11] As our supreme court recently explained:

In reviewing a claim of prosecutorial misconduct properly raised in the 

trial court, we determine (1) whether misconduct occurred, 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” otherwise. Cooper v. State, 854 N.E.2d 831, 835 

(Ind. 2006), quoted in Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012). 

A prosecutor has the duty to present a persuasive final argument and 

thus placing a defendant in grave peril, by itself, is not misconduct. 

Mahla v. State, 496 N.E.2d 568, 572 (Ind. 1986). “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, 854 N.E.2d at 835 (emphasis added) (citations 

omitted). To preserve a claim of prosecutorial misconduct, the 
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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. Id.; see also Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843, 

848 (1976).

Our standard of review is different where a claim of prosecutorial 

misconduct has been procedurally defaulted for failure to properly 

raise the claim in the trial court, that is, waived for failure to preserve 

the claim of error. Booher v. State, 773 N.E.2d 814, 817-18 (Ind. 2002). 

The defendant must establish not only the grounds for prosecutorial 

misconduct but must also establish that the prosecutorial misconduct 

constituted fundamental error. Id. at 818. Fundamental error is an 

extremely narrow exception to the waiver rule where the defendant 

faces the heavy burden of showing that the alleged errors are so 

prejudicial to the defendant’s rights as to “make a fair trial 

impossible.” Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002), quoted 

in Castillo, 974 N.E.2d at 468 and Cooper, 854 N.E.2d at 835. In other 

words, to establish fundamental error, the defendant must show that, 

under the circumstances, the trial judge erred in not sua sponte raising 

the issue because alleged errors (a) “constitute clearly blatant 

violations of basic and elementary principles of due process” and (b) 

“present an undeniable and substantial potential for harm.” Id. The 

element of such harm is not established by the fact of ultimate 

conviction but rather “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 otherwise 

would have been entitled.” Townsend v. State, 632 N.E.2d 727, 730 

(Ind. 1994) (quoting Hart v. State, 578 N.E.2d 336, 338 (Ind. 1991)). 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. 

See Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002); Townsend, 632 

N.E.2d at 730; see, e.g., Castillo, 974 N.E.2d at 469 n. 11 (noting closing 

arguments are perceived as partisan advocacy).
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We stress that “[a] finding of fundamental error essentially means that 

the trial judge erred . . . by not acting when he or she should 

have . . . .” Whiting v. State, 969 N.E.2d 24, 34 (Ind. 2012). 

Fundamental error is meant to permit appellate courts a means to 

correct the most egregious and blatant trial errors that otherwise would 

have been procedurally barred, not to provide a second bite at the 

apple for defense counsel who ignorantly, carelessly, or strategically 

fail to preserve an error. See Baer v. State, 942 N.E.2d 80, 99 (Ind. 

2011) (noting it is “highly unlikely” to prevail on a claim of 

fundamental error relating to prosecutorial misconduct); Stevens v. 

State, 691 N.E.2d 412, 420 n. 2 (Ind. 1997); Wilson v. State, 222 Ind. 63, 

51 N.E.2d 848, 856 (1943).

Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014).

[12] Here, we cannot say that the trial court erred by not acting when it should have. 

Even if we assume for the sake of argument that the prosecutor’s statement, 

“[t]hey did a very thorough investigation, our Anderson Police Department[,]” 

was misconduct, it was neither blatant nor egregious. Tr. at 1173. Further, 

even if the statement amounted to misconduct, it could not have had an 

undeniable and substantial effect on the jury’s decision, so as to make a fair trial 

impossible. Patterson received a five-day jury trial, and volumes of evidence 

were provided to the jury. Even if some of the evidence tying Patterson to his 

crimes was circumstantial, it was nevertheless overwhelming. In other words, 

the prosecutor’s statement did not deny Patterson a fair trial.

[13] Affirmed.

Mathias, J., and Bradford, J., concur.