A TTORNEY S FOR A PPELLANT Deborah B. Markisohn Ruth A. Johnson Marion County Public Defender Agency Indianapolis, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana

Andrew R. Falk Andrew A. Kobe Deputy Attorney s General Indianapolis, Indiana

Gillian D. Keiffner Marion County Deputy Prosecutor Indianapolis, Indiana

_____________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 49S02

- 1311

- CR

- 734

B RUCE R YAN , Appellant (Defendant ) ,

v.

S TATE OF I NDIANA , Appellee (Plaintiff)

.

_________________________________ Appeal from the Marion Superior Court, No. 49G02

- 1110

- FC

- 77449 The Honorable Robert Altice, Judge

_________________________________ On Transfer from the Indiana Court of Appeals, No. 49A02

- 1211

- CR

- 932

_________________________________ June 3, 2014

Dic kson, Chief Justice

.

Following a jury trial, Bruce Ryan was convicted on two of three counts of Class C fel ony S exual M isconduct with a M inor. 1 Appealing his conviction s , the defendant argues that se veral statements made by the State during closing argument

— statements to which he raised no objection at trial

— constitute prosecutorial misconduct and that the cumulative effect of such

1 See Ind. Code § 35

- 42

- 4

- 9.2 misconduct rises to the level of fundamental error , warranting reversal of his convictions

. The
Court o f Appeals agreed and reversed his conviction s

. Ryan v. State , 992 N.E.2d 776, 791 (Ind. Ct. App. 2013). We granted transfer , thereby vacating the opinion of the Court of Appeals, and

we now affirm the trial court , concluding that some of the prosecutor's conduct was improper, but because of the absence of any timely objection by the defendant, reversal is not warranted.

During the summer and fall of 2011, forty

- three year old Bruce Ryan, an eighth

- grade
science teacher, engaged in a relationship wit h a fifteen year old freshman student ("FS") at the
sch ool where the defendant taught. FS had known the defendant since she was eleven years old
, had a "crush" on the defendant for several years , and had recently completed the defendant 's eighth

- grade physics class. During the summer of 2011, FS attended a science club with the d efendant at the school

— often the only student in attendance. At some point, the defendant and FS began sending private messages to each other every night using G oogle Plus, a social networking
site . Initially, the purpose of their chats was to discuss the science club, but the content became more personal and intimate

. By the end of the summer, the defendant and FS were hugging and kissing open

- mouthed with thei r tongues in a storeroom in the back of the defendant 's classroom. During this time period, they both told each other that they loved and missed each other, and the
defendant also gave FS presents. Late October 2001, FS 's parents discovered her online co mmunications with the defendant and notified the school principal and subsequently the police. The State charged the defendant with three counts of Class C felony S exual M isconduct with a
M inor
, alleging m isconduct on various dates

. 2

On appeal, the defendant challenges his convictions on ground s of prosecutorial misco nduct, pointing to various remarks made by the deputy prosecutor during closing arguments. The
defendant did not raise any objection to nor seek relief from the prosecutor's remarks dur ing trial,
but to avoid procedural default he contends these remarks constituted fundamental error . On transfer, t he State argues that fundamental error did not occur.

In reviewing a claim of prosecutorial misconduct properly raised in the trial cour t , we d e-

2 Additional facts will be supplied as needed and may be found in the opinion of the Court of A ppeals. See Ryan v. State , 992 N.E.2d 776, 779

– 80 (Ind. Ct. App. 2013), trans. granted , 997 N.E.2d 357 (Ind. 2013).3 termine (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 pe rsuasive 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 j ury's d ecision rather than the degree of impropriety of the conduct. " Cooper , 854 N.E.2d at 835 (emph asis added) (citations omitted)

. To preserve a claim of prosecutorial misconduct, the 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, 498, 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, 81 7

– 1 8 (Ind. 2002 )

. 3

T he defendant must establish not only the grounds fo r prosecutorial misconduct but mu s t also establish that the prosecutorial misconduct constituted fundamental error. Id. at 818. Fundame ntal 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 establis h 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 el ementary principles of due process" and ( b) "present an undeniable and substantial potential for
harm ." Id. The element of such harm i s not established by the fact of ultimate conviction but

3 This opinion overrule d our prior decisions to the extent those opinions suggest ed the standard of review is the same for properly

- preserved and procedurally

- defaulted claims of prosecutor ial misconduct. See, e.g. , Boatright v. State , 759 N.E.2d 1038, 1043 (Ind. 2001) (citing authority that ultimate misinte rprets Maldonado v. State , 265 Ind. 492, 498

– 99 , 355 N.E.2d 843, 848 (1976) (addressing only the two instances of alleged misconduct to which the defendant contemporaneously objected)).4 ra ther "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 oth erwise 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 fun damental error, o ur task in this

case is to look at the alleged misconduct in the context of all that happened and all relevant i nformation given to the jury

— including evidence admitted at trial, closing argument, and jury i nstructions

— to determine whether the misconduct had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible

. S ee 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 (no ting closing arguments are perceived as partisan advocacy).

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 i s 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 pr ovide a second bite at the apple for defense c ounsel who ignorantly, carelessly, or strategically fail to preserve an error. 4 See Baer v. State , 942 N.E.2d 80, 99 (Ind. 2011) (noting it is "highly u nlikely" to prevail on a claim of fundamental error relating to prosecutorial misconduct); Stevens
v. S tate , 691 N.E.2d 412, 420 n.2 (Ind. 1997); Wilson v. State , 222 Ind. 63, 83, 51 N.E.2d 848, 856 (1943).

The defendant contends that the prosecutor improperly commented on his constitutional rights to a jury trial, improperly demeaned defense counsel, im properly commented on the trut hfulness of the victim, and improperly urged the jury to convict him for reasons other than his guilt.

4 Where the procedural posture of a claim is affected by counsel's failure to object at trial, an ine ffective assistance of counsel claim may be more on point than a claim of fundamental error. "Although fundamental

- error and ineffective

- assistance

- of

- coun sel claims are different, they often yield the same result." Whiting v. State , 969 N.E.2d 24, 34 (Ind. 2012) (citing McCorker v. State , 797 N.E.2d 257, 262

– 63 (Ind. 2003)).5 First, the defendant argues that the prosecutor imp ermissibly penalized his constitutional right to a jury trial when she asserted, " I want to be really clear, we are here because everyone has a right to have a jury trial. We're not here because he didn't do it, we're here because he wants to get away with it. So don't let him, thank you." Appellant's Br. at 8 (q uotin g Tr. at 141 ) (emphasis deleted)

. The State argu es t hat the prosecutor's statement was no t misconduct becaus e it invited the jury to make an inferen ce of guilt from the evidence at trial.

We acknowledge that a prosecutor may not present argument that pe nalizes or impinges upon a defendant's exercise of the privilege against self

- incrimin ation

. Boatright v. State , 759 N.E.2d 1038, 1043 (Ind. 2001) ( " The Fifth Amendment privilege against compulsory self

incrimination is violated when a prosecutor makes a statement that is subject to reasonable i nterpretation by a jury as an invitation to draw an adverse inference from a defendant's silence.") (emphasis added) ( quotation omitted ) ; see also Crosson v. State , 274 Ind. 247, 249, 410 N.E.2d 1194, 1195 (1980) ("It is true that . . . any direct or indirect reference to the defendant's failure to testify has been strictly regarded as an impingement of his constitutional and statutory rights not to testify.") (emph asis added)

. We note, however, that a reasonable jury may often perceive a defendant's exercise of the privilege against self

- incrimination as implying guilt, whereas if a jury is informed that a jury trial was upon the request of the defendant, such know ledge is su bstantially less likely to convey this implication.

The first sentence of the challenged passage , declaring that everyone has a right to have a jury trial, clearly is not problematic. The concern is whether the comments that followed , begi nn ing with the same "we are here because" phrase, are subject to a reasonable interpretation that penalizes or impinges upon the defendant's exercise of his right to jury trial. We think not. The "right to a jury trial" sentence does not convey the idea th at the trial in this case is anything other than an inherent part of every criminal proceeding. The sentence does not imply that it was at the defendant's request , or deny that it was at the State's request. We decline to find that the prosecutor's ensui ng argument regarding the reason "we are here" negatively implicate d the d efendant's exercise of his right to jury trial.

Second, the defendant argues that the prosecutor improperly demeaned defense counsel6 with the following comments on rebuttal:
I guess it's frustrating in these cases because these kinds of [defense] arguments are how guilty people walk. And so, when you think about how people get away with it it's b ecause defense attorneys do things like say well , it was a lousy investigation.

. . . Then what they [the defense] do is they bring up cases of false accusations in the media, right? Whatever it is, the Penn State

— or whichever other one

— Duke; they bring up why? To make you worry that somehow you're going to convict him and then it wi ll turn out that it was all bogus. That's [a] classic defense attorney trick.
Appellant's Br. at 10 (quoting Tr. at 15 1

– 5 2) (emphasis deleted). The State argues that the pro secu tor's comments did not demean defense counsel's character but rather remarke d o n the " style
and effect " of his line of argumentation
, responded to defense counsel's closing argument, and
reminded the jury to base the ir decision on the evidence. Appellee's Br. at 12. While "comments that demean opposing counsel, especially in front of a jury, are inappropriate ," Marcum v. State , 725 N.E.2d 852, 85 9 (Ind. 2000), not all of the allegedly improper co mments here are objectio nable

. " 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. Here, the prosecutor used her rebuttal to respond to defense counsel's closing argument, in which he criticized the quality of the police investigation and then compared famous cases of false a ccusations such as "the Duke Lacrosse case," which "supposedly had a full and thorou gh invest igation." Tr. at 142. Without question, the characterization of defense counsel's line of argume ntation as "how guilty people walk" and a "trick," is inconsistent wit h the requirement that la wyers " demonstrate respect for the legal system and for those who serve it, including

. . . other lawyers, " see Preamble [5] , I nd. Professional Conduct Rules. But the defendant has failed to e stablish that, under all of the circumstances, such improper comments placed him in a position of grave peril to which he would not have been subjected otherwise

. See Cooper , 854 N.E.2d at 835; Marcum , 725 N.E.2d at 859

– 60. In Marcum , thi s Court held it could not conclude that comments such as "what this is, is a response to your nonsense," "Judge I guess we can move the jury out and we can do a quick evidence course here for [defense counsel], " and "He is trying to mislead this jury" affected the jury's verdict in light of the evidence as a whole. 725 N.E.2d at
858

– 60. Similarly, in Brock v. State
, this Court found that the prosecutor's statement that d efense counsel was " pulling the most low life tricks in this case," was improper but did not place the defendant in grave peril. 423 N.E.2d 302, 304

– 05 (Ind. 1981) (noting that defense counsel7 conceded it was a "rather insignificant" personal matter)

. T his case is less egregious than Ma rcum and Brock ; we find no prosecutorial misconduct.

Third, the defendant argues that the pr osecutor improperly commented on the truthfulness
of the victim 5 d uring closing argument and on rebuttal. Specifically, the defendant highlights

comments from closing argument : " she told you the truth. As uncomfortable and awkward as she was up there, she told you the truth of what happened

. . . . she is credible . . . She has every reason to have lied and covered for him and she didn't." Appellant's Br. at 16 (quotin g Tr. at
139

– 40) (emphasis deleted)

. And comments from rebuttal:

She's never been dishonest . She spoke to her parents, she spoke to the principal, she spoke to Detective White, and she gave a deposition. You better believe if there had been inconsistenc ies in any of her statements, [defense counsel] would have been down her throat about those when she testified. But he wasn't because there aren't any. . . . And to make clear that she gets nothing out of this. She doesn't want him to get in trouble; she wants him to want to be with her. And that's why what she told you was even more cre dible. Because if she thought she could get away with covering for him again, she would. But the jig is up; we've seen the Google Plus postings. The jig is up. She ha s to be ho nest now and she's done that.

Tr. at 15 3

– 5 4 , quoted in part by Appellant's Br. at 16

– 17. The defendant further argues that the prosecutor's vouching placed him in grave peril and denied him a fair trial because this "was e ssentially a 'he said, she said' case." Appellant's Br. at 17. The State responds that the prosecutor did not personally vouch for the witness but rather " made comments about the credibility of wi tnesses that were based on reasons supported by the evidence." Appellee's Br. at 15. The d efendant is correct that a prosecutor may not personally vouch for a witness

. Schlomer v. State
, 580 N.E.2d 950, 957 (Ind. 1991); see Ind. Professional Conduct Rule 3.4(e). But a prosecutor

may " comment on the credibility of the witnesses as long as the assertions are based on reasons which arise from the evidence. " Cooper , 854 N.E.2d at 836 (quoting Lopez v. State , 527 N.E .2d 1119, 1127 (Ind. 1988) )

. In Cooper , the prosecutor characterized the defendant, who testified, as "one of the finest liars that I've ever heard testify in the courtroom but . . . a liar nonetheless." Id.

5 In his appellate brief, the defendant also asserts that the prosecutor improperl y commented on the truthfulness of FS ' s parents. The Court of Appeals did not address this issue, and neither party raised the issue on transfer. With regard to these statements, there was also no misconduct because the prosec utor properly made comments on credibility based on reasons arising from the evidence, namely lack of bias and motive.8 at 836. This Court found no prosecutorial misconduct on this point because other evidence su ggested that the defendant was not telling the truth. Id. Similarly , in this case, other evidence suggests that FS was telling the truth. The only evidence that FS had been dishonest, to which
FS admitted at trial, was that she had lied to the defendant about physical and verbal abuse from
her bio logical father; there was no evidence that FS had been anything but truthful to her parents, the principal, the police , and the court. T he prosecutor pointed to evidence that FS was telling
the truth now because , although she loved the defendant and h ad bias and motive not to testify against him, she could not counter the logs of their online conversations

. The lack of evidence to
corroborate FS 's substantive testimony about what happened does not counter the prosecutor's general assertions that FS was telling the truth. There was no prosecutorial misconduct , much
less fundamental error

.

Fourth, the defendant argues that the prosecutor improperly urged the jury to convict the
defendant because they were tired and angry over a societal problem, not necessarily because the
evidence in this case warranted conviction , with the following comment on closing:
[Y]ou wonder at night what you can say to a jury to get them to get the bigger picture here. And no case is easy for your guys, I get that. No one want[s] to judge someone else or somebody else's actions. But w e keep hearing about this happening, whether it' s a teacher, or a coach, or a pastor, or whoever . And we all want to be really angry and post online and have strong opinions about it. And we never think that we'll be the ones that are here that get to stop it. And you actually do get to stop it. And as much as I know you probably did not want to be here on Monday morning, I would submit to you that you are in an incredible position to stop it and send the message that we're not going to allow people to do this.
Appellant's Br. at 13

– 14 (quoting Tr. at 140

– 41 ) (emphasis deleted)

. The State disagrees, arg uing that the remark to "send a message" was permissible advocacy: "a brief, isolated request to convict [ the defendant ] on the basis of his guilt , not an argument calculated to inflame the prej udice of the jury

. " Appellee's Br. at 14. The State points to Smith v. State to support its position that a prosecutor " may on final argument remark on the public demand for a conviction and may argue that the people have a right to expect the jury to remove t he defendant from society. " 2 58 Ind. 594, 601

– 02, 283 N.E.2d 365, 369 (1972) (approving 23A C.J.S. Criminal Law § 1107 )

.

Although a prosecutor may remark on the public demand for a conviction, we have r e-9 peatedly emphasized that "[i]t is misconduct for a prosecutor to request the jury to convict a d efendant for any reason other than his guilt." Cooper , 854 N.E.2d at 837 (quoting Coleman v.
State , 750 N.E.2d 370, 375 (Ind. 2001)) ; Maldonado , 265 Ind. at 50 0 , 355 N.E.2d at 849

. In
Smith , the prosecutor stated in his closing argument that: "You as jurors at this stage of this pr oceeding have it within your power to set the moral standards for this community ." 258 Ind. at 601, 283 N.E.2d at 369. Af ter giving two reasons to convict that particular defendant, the pros ecutor added, " And I say probably now, more than ever more, you are going to have to come to the spot where it's your turn to stand up and be counted." Id. We observed that these commen ts were not improper. Id. In the present case, however, t he prosecutor allu ded to the "bigger pi cture," to " hearing about this happening " without a chance "to stop it ," and to other perpetrators such as "a teacher, or a coach, or a pastor ; " and then implor ed the jury to "send the message that we're not going to allow people to do this

. " This clearly invited the jury to convict this defendant for reasons other than his own guilt , therefore constituting improper conduct . Because of our
determination b elow regarding fundamental error, however, we decline to address whether it

su b jected the defendant to grave peril.

Conceding that he failed to properly preserve his prosecutorial misconduct claim s , the
defendant contends that the prosecutor's improper comments cumulatively resulted in fundame ntal error, requiring reversal and a new trial. He compares this case to Castillo , 974 N.E.2d 458,
and Lainhart v. State , 916 N.E.2d 924 (Ind. Ct. App. 2009), trans. not sought

. The State dis agrees and argues tha t no fundamental error occurred because the j ury received proper instru ctions and, with the overwhelming weight of evidence, the result would have been the same a bsent the prosecutor's comments.

Neither Castillo nor Lainhart control s this case . In Castillo , during closing arguments at the sentencing phase of trial, the prosecutor misstated Indiana law, telling the jury not to co mpare the mitigating and aggravating factors, and spent nearly one

- third of her closing argument "implor[ing] the jury to c onsider the defendant's unsavory character." 974 N.E.2d at 468

– 69.
The defendant contends that the statements in Castillo , which this Court found amounted to fu ndamental error, "were less egregious . . . than ones made in this case." Response to Trans. Pet. at 5. We disagree. And b ecause we find no prosecutorial misconduct in the argument for FS 's10 credibility, we also find Lainhart inapplicable. But our analysis does not end here. Whether
fundamental error has occurred depends on the particular types of misconduct committed and the
evidence presented by the State in this case. See Taylor v. State , 717 N.E.2d 90, 96 n.7 (Ind. 1999) ("The issue of fundamental error is better determined on a case by case basis.").

W e recognize only a single instance of prosecutorial misconduct, namely that the pros ecutor improperly urged the jury to convict the defendant for reasons other than his own guilt. But we decline to conclude that the trial court erred by not correcting the prosecutor's misstat ements.

W ith regard to the impact of the "send the message" remark, we recognize that the pros ecutor began her closing argument reminding the jury "it's about what this defendant did in this case and how you are in a unique position to be able to now hold him accou ntable for that," Tr.
at 13 3

– 3 4. Such correct statement so distanced from an improper one cannot qualify its su bstance, but it may counteract its harm. Thus, while we find the "send the message" remark i mproper, we decline to hold that suc h error had suc h an undeniable and substantial effect on the jury's decision that a fair trial was impossible

.

Overall , the jury received preliminary and final instructions with correct statements of the
law . The instructions reminded the jury that the unsworn statements or comments of counsel on either side (including clo sing argument ) should not be considered evidence and that the jury
should base their decision on the evidence admitted at trial. Appellant's App'x at 91 , 96 , 120,
122

. And the jur y acquitted the defendant on one of three charges of S exual M isconduct with a
M inor

— charges which differed on ly by the dates of commission. Id. at 26

– 27; Tr. at 16 3, 172

– 73. We are not persuaded that the prosecutorial misconduct in this case had an unden iable and substantial effect on the jury's deci sion

Conclusion

T he prosecutor improperly urged the jury to convict the defendant for reasons other than his guilt
, but the defendant's failure to contemporaneously object and enable the trial court to11 take corrective action results in procedural default of the defendant's appellate claim. T he effect of this prosecutorial misconduct did not make a fair trial for the defend ant impossible . Thus, t he doctrine of fundamental error does not overcome procedural default

. While we do not endorse the prosecutor’s trial tactics in this case, w e affirm the judgment of the trial court.

David, Massa, and Rush, JJ., concur. Rucker, J. concurs in result.