Court of Appeals of Indiana | Memorandum Decision 20A-CR-1108| October 30, 2020 Page 1 of 8

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

Marielena Duerring

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Steven Hosler

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Joshua Andrew Jones,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 30, 2020

Court of Appeals Case No.

20A-CR-1108

Appeal from the St Joseph 

Superior Court

The Honorable John M. 

Marnocha, Judge

Trial Court Cause No.

71D02-1907-F6-759

Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1108| October 30, 2020 Page 2 of 8

Case Summary

[1] Joshua Andrew Jones appeals his conviction for domestic battery, a Class A 

misdemeanor. We affirm.

Issue

[2] Jones raises a single issue on appeal—namely, whether prosecutorial 

misconduct warrants the reversal of his conviction.

Facts

[3] On the evening of July 21, 2019, Jones and his then-girlfriend, Samantha Pohl, 

met Marc and Lisa McCoy at the Fire Rock restaurant in South Bend, Indiana. 

The couples socialized for approximately two hours, and Pohl drank heavily. 

Jones and Pohl subsequently returned to Jones’ house, where they argued. The

heated verbal argument spilled outside the house. At one point, Jones 

telephoned Pohl’s brother,

1 who declined to pick Pohl up and drive her home.2

[4] Pohl suffered a stroke fifteen years before the relevant period. The right side of 

Pohl’s body is paralyzed, and she wears a leg brace. As a result, Pohl has

impaired mobility. At the height of the argument, Pohl walked away from

Jones’ premises, which was a laborious task, given Pohl’s disability. As Pohl 

walked away from Jones, Jones “pushed [Pohl] down a lot.” Tr. Vol. II p. 21. 

1 Pohl’s brother, whose surname does not appear in the record, is also named Marc.

2 Pohl does not drive.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1108| October 30, 2020 Page 3 of 8

In all, Jones pushed Pohl down at least four times. In an alley near Jones’ 

house, Jones again shoved Pohl to the ground. Jones then climbed on top of

Pohl, yanked a necklace from her throat, and struck her repeatedly. Pohl 

screamed for help, cried, and urinated on herself during the attack. 

[5] From a nearby house, two teenagers “hear[d] yelling and screaming” and 

decided to investigate. Id. at 87. In an alley near Jones’ house, the teenagers 

saw Jones repeatedly “hitting [Pohl] with both hands” and “throwing her on 

the ground[.]” Id. at 90, 111. The teenagers alerted Corporal Dan Banicki of 

the St. Joseph County Police Department, who lived nearby. Corporal Banicki 

called for backup and responded to the scene. 

[6] On July 26, 2019, the State charged Jones with domestic battery, a Class A 

misdemeanor, and strangulation, a Level 6 felony. The trial court held Jones’ 

jury trial on February 27 and 28, 2020. In preliminary instructions to the jury, 

the trial court repeatedly advised that the State bore the burden of proof 

regarding the charged offenses. The trial court also instructed the jury as 

follows:

Under the law of the State of Indiana, a person charged with a

crime is presumed to be innocent. To overcome this 

presumption of innocence, the State must prove the defendant 

guilty of each essential element of the crime or crimes charged 

beyond a reasonable doubt. This presumption of innocence 

continues in favor of the defendant throughout the trial. You 

should fit the evidence to the presumption the defendant is 

innocent if you can reasonably do so. 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1108| October 30, 2020 Page 4 of 8

Because he is presumed to be innocent, the defendant is not required to 

present any evidence to prove his innocence or to provide any 

explanation. If, at the end of the trial, you have reasonable doubt 

concerning the defendant’s guilt as to any charge or charges, you 

must find him not guilty as to that charge or those charges.

Id. at 7 (emphasis added).

[7] Jones testified in his own defense. Most relevantly, Jones testified that: (1) Pohl 

drank to excess earlier in the evening and became aggressive; (2) Pohl made 

“two assaults on [Jones] and [a] third attempt”; and (3) Pohl’s brother was on 

the phone with Jones during Pohl’s “confrontation[s.]” Id. at 150, 152. On 

cross-examination of Jones, the following colloquy ensued:

Q. Now, your friend Marc [McCoy] came yesterday specifically 

to testify about [Pohl]’s behavior before all this happened; is that 

right? 

A. Yes. 

Q. And is [Pohl’s] brother going to testify next about the phone 

calls and her hollering? 

A. I don’t understand the question. 

Q. Well, you testified that [Pohl’s] brother was also a witness to 

things she said on the phone and –

A. Absolutely, he was. 

Q. So is he testifying next? 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1108| October 30, 2020 Page 5 of 8

A. Not that I’m aware of, unfortunately. 

Id. at 154. Jones did not object to the State’s line of questioning. 

[8] At the close of the evidence, the trial court gave its final jury instructions, 

wherein the trial court reiterated that: (1) the State bore the burden of proof; (2)

Jones “[wa]s presumed to be innocent”; and (3) Jones “[wa]s not required to 

present any evidence to prove his innocence or to provide any explanation.” Id. 

at 180. The jury found Jones guilty of domestic battery and not guilty of 

strangulation. On May 20, 2020, the trial court imposed a one-year suspended

sentence, ordered Jones to serve one year of probation, and maintained an 

existing no-contact order as to Pohl. Jones now appeals.

Analysis

[9] Jones alleges that prosecutorial misconduct warrants the reversal of his

conviction. 

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. A 

prosecutor has the duty to present a persuasive final argument 

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

misconduct. “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.” To 

preserve a claim of prosecutorial misconduct, the defendant 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1108| October 30, 2020 Page 6 of 8

must—at the time the alleged misconduct occurs—request an 

admonishment to the jury, and if further relief is desired, move 

for a mistrial.

Stettler v. State, 70 N.E.3d 874, 881-82 (Ind. Ct. App. 2017) (quoting Ryan v.

State, 9 N.E.3d 663, 667 (Ind. 2014)) (internal citations omitted). This issue is 

waived for Jones’ failure to object below. Washington v. State, 902 N.E.2d 280,

290 (Ind. Ct. App. 2009) (holding that a defendant who fails to object to 

allegedly improper comments of a prosecutor fails to preserve any claim of 

prosecutorial misconduct for appellate review). 

[10] Jones attempts to circumvent waiver by alleging fundamental error. To 

constitute fundamental error, prosecutorial misconduct must constitute a clearly 

blatant violation of basic and elementary principles of due process, present an 

undeniable and substantial potential for harm, and make a fair trial 

impossible. Lainhart v. State, 916 N.E.2d 924, 931-32 (Ind. Ct. App. 2009). 

[11] Specifically, Jones argues that the prosecutor committed misconduct by 

commenting on Jones’ failure to call Pohl’s brother to testify on Jones’ behalf. 

It is well-settled that “[i]t is improper for a prosecutor to suggest that a 

defendant shoulders the burden of proof in a criminal case.” Id. at 936; see also

Wright v. State, 690 N.E.2d 1098, 1112 (“It is . . . improper to suggest . . . that 

defendant has the burden of proof in a criminal case by inquiring in closing 

argument why the defendant did not call a witness to testify on his behalf.”). 
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[12] Additionally, however, “Indiana cases have consistently held that a 

prosecutor’s improper statements concerning a defendant’s failure to present 

witnesses may be cured by the trial court advising the jury that the defendant 

was not required to prove his innocence or to present any evidence.” Lainhart,

916 N.E.2d at 937; see also Guy v. State, 755 N.E.2d 248, 258 (Ind. Ct. App.

2001) (holding that jury instructions are presumed to cure any improper 

statements made during trial”). 

[13] In Wright, after a jury convicted Wright of felony murder, conspiracy to commit 

robbery, and criminal confinement, Wright argued on appeal, inter alia, that the 

prosecutor improperly commented on Wright’s failure to call his girlfriend to 

testify. In acknowledging the prosecutor’s error, our Supreme Court opined as 

follows:

It is . . . improper to suggest, as the prosecutor did in this case, 

that defendant has the burden of proof in a criminal case by 

inquiring in closing argument why the defendant did not call a 

witness to testify on his behalf. Nevertheless, here, the court had 

preliminarily instructed the jury that defendant was presumed innocent 

until proven guilty beyond a reasonable doubt, and that defendant was 

not required to present any evidence or prove his innocence. The court’s 

final instructions again reminded the jury that the State has the burden 

of proving defendant guilty beyond a reasonable doubt. In light of

these instructions, the weight of the evidence, and the de minimis 

nature of this impropriety, the prosecutor’s comment certainly 

did not place defendant in a position of grave peril.

Wright, 690 N.E.2d at 1112 (citations omitted), emphasis added. Our Supreme 

Court, thus, found that “reversal based on prosecutorial misconduct [wa]s not 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1108| October 30, 2020 Page 8 of 8

warranted” because the trial court’s instructions cured the error. Id. at 1111.

Such is the case here.

[14] It was improper for the prosecutor to comment upon Jones’ failure to call 

Pohl’s brother to testify on Jones’ behalf. The trial court, however, cured the 

prosecutor’s improper statement through its jury instructions. See Lainhart, 916 

N.E.2d at 937; see also Wright, 690 N.E.2d at 1112. Both preliminarily and in 

final instructions, the trial court admonished the jury that the burden of proof 

rested with the State to prove Jones’ guilt beyond a reasonable doubt. 

Additionally, the trial court explicitly instructed the jury that Jones “[wa]s not 

required to present any evidence to prove his innocence or to provide any 

explanation.” Tr. Vol. II pp. 7, 180. Based on the trial court’s instructions that 

cured the improper comment and the weight of the evidence against Jones, we 

do not find that prosecutorial misconduct placed Jones in grave peril. Jones 

has, therefore, failed to establish fundamental error.

Conclusion

[15] The trial court cured the prosecutor’s improper comment during the trial, and 

reversal of Jones’ conviction is not warranted. We affirm.

[16] Affirmed.

Kirsch, J., and Pyle, J., concur.