MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 11 2015, 8:47 am 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Aaron Westlake Gregory F. Zoeller Bradley Kim Thomas II Attorney General of Indiana Thomas Law Firm, P.C. George P. Sherman Auburn, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DeShawn Belcher, December 11, 2015 Appellant-Defendant, Court of Appeals Case No. 02A03-1505-CR-306 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff Jr., Judge Trial Court Cause No. 02D06-1409-FB-137
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 1 of 20 Case Summary and Issues [1] Following a jury trial, DeShawn Belcher was convicted of unlawful possession
of a firearm by a serious violent felon, a Class B felony, and possession of
marijuana as a Class D felony. Belcher appeals, raising the following issues for
our review: (1) whether the State presented sufficient evidence to support his
convictions; and (2) whether the State committed prosecutorial misconduct
amounting to fundamental error. Concluding the State presented sufficient
evidence and finding no fundamental error occurred, we affirm Belcher’s
convictions.
Facts and Procedural History [2] On April 10, 2014, officers of the Fort Wayne Police Department went to a
house located on Gaywood Drive to execute an arrest warrant for Quinn
James. The officers surrounded the residence and ordered James to come
outside. James complied, emerging from the residence approximately ten
minutes later. When James was taken into custody, the arresting officer noticed
“a very strong odor of marijuana, raw marijuana” on James’ person. Transcript
at 142.
[3] Belcher and his mother, Sabrina Belcher, approached Detective David Wilkins,
who was standing outside the house. They asked Detective Wilkins what was
going on, and he explained the police were “holding the house for right now”
because “a warrant subject . . . just came out of the house.” Id. at 131. At some
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 2 of 20 point unclear from the record, Detective Wilkins learned Sabrina owned the
house. He asked Sabrina if she would consent to a search of the house, but
Sabrina said she would need to speak to an attorney before consenting to a
search and left the scene.
[4] After Sabrina left, Belcher informed Detective Wilkins that he and a friend had
smoked marijuana in the house earlier that day and “there might be a
marijuana roach in the ashtray . . . .” Id. at 133. Belcher also admitted “he
sprayed the house with a perfume or deodorizer to get the smell [of marijuana]
out of the house.” Id. Belcher stated although his mother owns the house on
Gaywood Drive, she lives in a house on Taylor Street, and he lives in the house
on Gaywood Drive.1
[5] The police obtained a search warrant for the house on Gaywood Drive and
executed the search just before midnight on April 10.2 As Belcher foretold, the
officers found marijuana “roaches” in an ashtray in the basement of the house.3
In addition, the officers discovered three firearms: an AK-47-style rifle
underneath the sofa in the living room, a twelve-gauge shotgun in a closet in the
hallway, and a Colt AR-15 rifle in plain view in the master bedroom. The AR-
1 Belcher’s mother was not at the Gaywood Drive house when the police arrived. She went to the house after someone called her and told her the police were surrounding the house. The record is unclear as to Belcher’s whereabouts prior to his conversation with Detective Wilkins. 2 The record does not include the search warrant or the search warrant affidavit. Based on the testimony of the officers at trial, it appears the officers relied on Belcher’s statements to Detective Wilkins and the odor of raw marijuana on James’ person to establish probable cause for the search. See Tr. at 133-35, 142-43. 3 A “roach” is the burnt end of a marijuana cigarette. Tr. at 232.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 3 of 20 15 rifle was found leaning against a wall. In the same bedroom, the officers
uncovered a shoe box containing approximately 550 grams of marijuana. The
shoe box, one of several against a wall, also contained a digital scale and a debit
card in DeShawn Belcher’s name. Inside a dresser in the bedroom, officers
discovered another digital scale, a small baggie of marijuana, mail addressed to
DeShawn Belcher at the Gaywood Drive house, and DeShawn Belcher’s
wallet, which contained his driver’s license, Social Security card, and a second
debit card in his name. Another small baggie of marijuana was found
underneath a pillow on the bed. A magazine fully loaded with ammunition for
an AR-15 rifle was found next to the bed, on the floor. In a cabinet in the
bathroom connected to the bedroom, the officers discovered additional
ammunition for an AR-15 rifle. In the kitchen, the officers found several
unidentified pills, a baggie of suspected cocaine,4 and a third digital scale.
[6] The State charged DeShawn Belcher with unlawful possession of a firearm by a
serious violent felon, a Class B felony,5 and possession of marijuana in an
amount greater than thirty grams, a Class D felony. A jury trial was held in
March 2015. Tara Mickem, Belcher’s former girlfriend, testified Belcher lived
with her from December 2013 to August 2014. Sabrina testified she owns the
Gaywood Drive house and lives there, and her son did not live there in April
4 The probable cause affidavit indicates the chalky, off-white substance in the baggie field-tested positive for cocaine. 5 Belcher has a prior conviction for dealing in cocaine as a Class B felony. See Ind. Code § 35-47-4-5(b)(23) (defining dealing in cocaine as a serious violent felony).
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 4 of 20 2014. She stated Belcher would occasionally spend the night in her basement
but was staying with his cousin and Mickem in April 2014. She testified the
master bedroom was her bedroom and the firearms found in the house belonged
to her, but she denied having knowledge of the drugs or the scales found in the
house. She admitted she occasionally stays at her boyfriend’s house on Taylor
Street.
[7] The jury found Belcher guilty as charged. Thereafter, the trial court ordered
Belcher to serve an aggregate sentence of twelve years in the Indiana
Department of Correction, with thirty-seven days of credit for time served and
two years suspended to probation. This appeal followed.
Discussion and Decision I. Sufficiency of Evidence A. Standard of Review [8] Belcher contends the State presented insufficient evidence to support his
convictions for unlawful possession of a firearm by a serious violent felon and
possession of marijuana. When reviewing the sufficiency of the evidence to
support a conviction, we consider only the probative evidence and reasonable
inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). We neither reweigh the evidence nor assess the credibility of witnesses.
Id. Unless no reasonable fact-finder could conclude the elements of the crime
were proven beyond a reasonable doubt, we will affirm the conviction. Id.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 5 of 20 B. Constructive Possession [9] A person actually possesses contraband when he has direct physical control
over it, but “a conviction for a possessory offense does not depend on catching
a defendant red-handed.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011).
When the State cannot show actual possession, a conviction may rest instead
on proof of constructive possession. Id. A person constructively possesses an
item when he has both the capability and the intent to maintain dominion and
control over the item. Id. Here, the State prosecuted Belcher under a theory of
constructive possession.
[10] If a person has exclusive possession of the premises where an item is found,
“the law infers that the party in possession of the premises is capable of
exercising dominion and control over all items on the premises.” Gee v. State,
810 N.E.2d 338, 340-41 (Ind. 2004). But when a person’s possession of the
premises is non-exclusive, the inference of intent to maintain dominion and
control must be supported by “additional circumstances” pointing to the
defendant’s knowledge of the nature of the items and their presence. Id. at 341
(quotation omitted). Possible “additional circumstances” include: (1)
incriminating statements by the defendant, (2) attempted flight or furtive
gestures, (3) a setting that suggests drug manufacturing, (4) the proximity of the
contraband to the defendant, (5) whether the contraband was found in plain
view, and (6) the mingling of the contraband with other items the defendant
owns. Id.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 6 of 20 [11] Belcher contends the State failed to demonstrate he had the requisite capability
and intent to maintain dominion and control over the firearms and marijuana
found in the Gaywood Drive house. We conclude Belcher’s possession of the
premises was non-exclusive, but the State presented sufficient evidence of
“additional circumstances” demonstrating Belcher had knowledge of the nature
of the items and their presence. First, Belcher made incriminating statements to
Detective Wilkins, admitting he smoked marijuana in the house earlier that day
and attempted to mask the odor with an air freshener. He also told Detective
Wilkins “there might be a marijuana roach in the ashtray . . . .” Tr. at 133.
Then, when the officers entered the house, they discovered the AR-15 rifle in
plain view, leaning against a wall in the bedroom where they found Belcher’s
driver’s license, his Social Security card, two debit cards in his name, and mail
addressed to him at the Gaywood Drive house. One of the debit cards was
found in the shoebox that contained approximately 550 grams of marijuana,
and one of the small baggies of marijuana was found in the dresser where the
officers discovered Belcher’s wallet and mail. Finally, it is worth noting the
AR-15 rifle was discovered in plain view in the only room in the house where
the police found raw marijuana. Given Belcher’s statements to Detective
Wilkins, the rifle’s location strongly suggests Belcher had knowledge of its
presence. For these reasons we find the evidence is more than sufficient to
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 7 of 20 demonstrate Belcher constructively possessed the marijuana and at least one of
the firearms discovered in the Gaywood Drive house.6
II. Prosecutorial Misconduct A. Standard of Review [12] Belcher also contends the prosecutor engaged in misconduct. In reviewing a
properly preserved claim of prosecutorial misconduct, we first determine
whether misconduct occurred, and then, if there was misconduct, whether the
misconduct, under all of the circumstances, placed the defendant in a position
of grave peril to which he otherwise would not have been subjected. Castillo v.
State, 974 N.E.2d 458, 468 (Ind. 2012). Whether a prosecutor’s statements
constitute misconduct is measured by reference to case law and the Rules of
Professional Conduct. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). The
degree of peril is measured by the probable persuasive effect of the misconduct
on the jury’s decision. Id.
[13] To preserve a claim of prosecutorial misconduct for appeal, “a defendant must
not only raise a contemporaneous objection, he must also request an
admonishment and, if the admonishment is not given or is insufficient to cure
the error, then he must request a mistrial.” Washington v. State, 902 N.E.2d 280,
6 Because the State presented sufficient evidence to prove Belcher constructively possessed the AR-15 rifle, we need not address the sufficiency of the evidence as to the twelve-gauge shotgun found in the hallway closet or the AK-47-style rifle found underneath the sofa in the living room. The charging information did not specify which firearm Belcher possessed in violation of Indiana Code section 35-47-4-5.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 8 of 20 289-90 (Ind. Ct. App. 2009), trans. denied. Failure to request an admonishment
or a mistrial waives the claim of prosecutorial misconduct unless the defendant
can demonstrate the misconduct amounted to fundamental error. Castillo, 974
N.E.2d at 468. “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.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (citation and internal
quotation marks omitted). To establish fundamental error, the defendant must
show the trial court erred in not sua sponte raising the issue because the alleged
error (1) constitutes a blatant violation of basic principles of due process; and (2)
presents an undeniable and substantial potential for harm. Id.
[14] Having failed to preserve his claims for appeal, Belcher must establish the
grounds for prosecutorial misconduct as well the grounds for fundamental
error.7 Belcher contends the prosecutor engaged in several instances of
misconduct, which individually or cumulatively resulted in fundamental error:
(1) misstating evidence while cross-examining Sabrina; (2) misrepresenting
evidence during closing argument; (3) impermissibly commenting on Sabrina’s
credibility; and (4) making improper remarks during closing argument. We will
address each allegation in turn.
7 Belcher objected to only one of the instances of alleged misconduct but did not thereafter request an admonishment or a mistrial. The trial court sua sponte admonished the jury, and Belcher did not request a mistrial.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 9 of 20 B. Misstating Evidence [15] First, Belcher contends the prosecutor engaged in misconduct by misstating
evidence while cross-examining Sabrina. Belcher points to the prosecutor’s
attempt to impeach his mother’s testimony using a firearm trace from the
Department of Justice.8 Specifically, in reference to the rifle discovered
underneath the sofa in the living room—which Sabrina stated had belonged to
her late husband, who died in 1999—the prosecutor asked, “So why is it that
that wasn’t purchased and sold to somebody until 2011, to somebody in
Texas?” Tr. at 263. When Belcher objected to the question on the basis of
misstating evidence, the prosecutor said she was referring to “the AR rifle, not
the Colt.” Id. Our review of the record indicates the prosecutor was confusing
the AK-47-style rifle, found underneath the sofa, with the Colt AR-15 rifle,
found in the bedroom.
[16] Belcher contends the prosecutor’s misstatement amounted to misconduct
because it was “undoubtedly very damaging” to his mother’s credibility.
Appellant’s Brief at 14. Belcher objected to the prosecutor’s question but did
not request an admonishment. Nonetheless, the trial court sua sponte
admonished the jury to “rely on your recollection of the testimony.” Tr. at 264.
8 In order to provide investigative leads in the fight against violent crime, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) systematically tracks the movement of firearms recovered by law enforcement officials from first sale by the manufacturer or importer, through the distribution chain, to the first retail purchaser. National Tracing Center, ATF (June 19, 2015), https://www.atf.gov/firearms/national- tracing-center.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 10 of 20 Belcher did not request a mistrial after the admonishment, and the prosecutor
did not continue to question Sabrina about the acquisition of the rifles. The
prosecutor moved on to questions about the marijuana found in the bedroom.
Therefore, to the extent the admonishment sufficiently cured the alleged harm,
Belcher’s claim of prosecutorial misconduct fails. See Donnegan v. State, 809
N.E.2d 966, 974 (Ind. Ct. App. 2004) (stating a timely and accurate admonition
is generally an adequate curative measure for any prejudice resulting from an
improper comment made by a prosecutor), trans. denied. To the extent
misconduct occurred and the admonishment was inadequate, Belcher waived
his claim by failing to request a mistrial, and he has not demonstrated the
prosecutor’s brief mix-up was so prejudicial “as to make a fair trial impossible.”
Ryan, 9 N.E.3d at 668. If anything, the prosecutor’s confusion and
unpreparedness impacted her own credibility in the eyes of the jury, not the
credibility of the witness.
C. Misrepresenting Evidence [17] Second, Belcher argues the prosecutor misrepresented evidence during closing
argument by making references to “blunts” and by stating Sabrina’s testimony
was inconsistent with Mickem’s testimony. It is proper for a prosecutor in
closing argument to propound conclusions based upon her analysis of the
evidence. Neville v. State, 976 N.E.2d 1252, 1261 (Ind. Ct. App. 2012), trans.
denied. However, a prosecutor may not argue facts not in evidence, nor
advance arguments that impact the jury’s ability to judge the evidence fairly.
See id.; Ind. Professional Conduct Rule 3.4(e) (“A lawyer shall not . . . in trial,
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 11 of 20 allude to any matter that the lawyer does not reasonably believe is relevant or
that will not be supported by admissible evidence . . . .”).
[18] As to the prosecutor’s references to “blunts,” Belcher argues her statements
were improper because none of the witnesses testified Belcher referred to the
marijuana as a “blunt.” Belcher told Detective Wilkins that he had smoked
marijuana in the house and “there might be a marijuana roach in the ashtray
. . . .” Tr. at 133. But the prosecutor stated Belcher told Detective Wilkins,
“You’re gonna find a marijuana blunt in there.” Id. at 293. She defined a
“blunt” as a cigar wrapper packed with marijuana and pointed out, in a
photograph of the master bedroom, a package of cigars laying on the bed. Id. at
297-98. The prosecutor argued, “Look at that, cigars. What did the Defendant
tell you about what they were doing earlier that day? Smoking a blunt . . . .”
Id.
[19] Officers did find marijuana “roaches” in an ashtray in the basement, but the
“roaches” were not photographed or collected as evidence. The “roaches” in
the ashtray may well have been the burnt ends of “blunts,” but Belcher never
stated he had been smoking “blunts.” On the other hand, Belcher did not
specify the method by which he had been smoking marijuana. Nonetheless,
Belcher argues the prosecutor committed misconduct by misrepresenting
Belcher’s statements in order to connect him to the bedroom where the
marijuana and AR-15 rifle were found.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 12 of 20 [20] Although we agree the prosecutor was arguing facts not in evidence, we are not
persuaded the error was fundamental. “[G]ravity 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. Here, in
terms of linking Belcher to the bedroom, the evidence actually presented at trial
was far more compelling than the prosecutor’s argument regarding the cigars.
The police found Belcher’s driver’s license, Social Security card, debit cards,
and mail in the bedroom, in close proximity to the marijuana and the AR-15
rifle. As discussed above, this evidence was more than sufficient to prove
Belcher constructively possessed the marijuana and the AR-15 rifle. In light of
all the evidence presented at trial, we do not believe the prosecutor’s remarks
“had such an undeniable and substantial effect on the jury’s decision that a fair
trial was impossible.” Ryan, 9 N.E.3d at 668 (alteration omitted).
[21] As to the inconsistencies between Sabrina’s testimony and Mickem’s testimony,
the prosecutor stated in closing argument,
And then you have Tara Mickem, she says, “Mr. Belcher lived with me between October, 2013, and August, 2014.”[9] And he was living with her in April of 2014, obviously, ‘cause it’s fits [sic] within there. But his mom said he lived with her niece, Teigh. Remember her saying that? She didn’t confirm what Tara said. Tara says, “He lived with me.” Mom says, “He lived
9 Mickem testified Belcher moved in October 2012 but briefly lived elsewhere from October 2013 to December 2013. According to Mickem, Belcher moved back in December 2013 and lived with her until August 2014. The prosecutor therefore misstated Mickem’s testimony, but the difference is inconsequential for our purposes, given the relevant period of time was April 2014.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 13 of 20 with my niece, Teigh.” Really? They don’t even match, it doesn’t make sense.
Tr. at 303-04. Belcher argues the prosecutor committed misconduct because
their testimony was not in fact inconsistent. We disagree.
[22] Sabrina testified Belcher was living with Mickem and his cousin in April 2014:
“He was staying with my niece Teigh . . . and his girlfriend, Tara, he stayed
with both of them.” Id. at 252. But Mickem testified Belcher lived with her
from December 2013 to August 2014 and did not move in with his cousin until
August 2014. When asked where Belcher lived in April 2014, Mickem said
Belcher lived with her and did not mention Teigh. The testimony was arguably
inconsistent, though not exactly in the way the prosecutor suggested.
Nonetheless, we conclude there was some basis in the record for the
prosecutor’s argument, and the statement likely had no effect on the jury’s
ability to judge the evidence fairly. See Neville, 976 N.E.2d at 1261. We find no
fundamental error here.
C. Witness Credibility [23] Third, Belcher argues the prosecutor committed misconduct by improperly
commenting upon Sabrina’s credibility. Indiana Professional Conduct Rule
3.4(e) prohibits a lawyer from stating a “personal opinion” as to the credibility
of a witness at trial. But where the evidence introduced at trial suggests a
witness was lying, comments by the prosecutor that merely point out
incongruities or invite the jury to determine which witness was lying do not
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 14 of 20 constitute misconduct. Cooper, 854 N.E.2d at 836. “[A] prosecutor may
comment on the credibility of the witnesses as long as the assertions are based
on reasons which arise from the evidence.” Id. (quoting Lopez v. State, 527
N.E.2d 1119, 1127 (Ind. 1988)).
[24] Here, the prosecutor argued,
[T]hen think about the logic and the reasonableness of Sabrina Belcher’s testimony . . . . She approaches the detective and says, “That’s my home.” He says, “Can we search?” “No. I’m gonna go talk to my lawyer. I need to talk to my lawyer.” And she has to go somewhere to get whatever information she has . . . . I asked her on the stand, and she’s a mother, and you know, give her credit for standing by her son, but you can’t give her credit for lying, because what does she say, too? She says, “They’re my guns, my house, he doesn’t live there.” Her son is charged with illegal possession of a firearm, possession of marijuana. I asked her, “Why didn’t you tell the police? Why didn’t you contact the police and say, ‘You’ve got a big mistake, a big mistake?’” “I don’t know where the police department is. I don’t know how to do that.” She has a lawyer. Don’t you think a lawyer knows how to contact the police? Think about the reasonableness of that statement . . . .
Tr. at 322-23 (emphasis added). Then, the prosecutor discussed Sabrina stating
her daughter and granddaughters live with her in the Gaywood Drive house but
that no one else knew she possessed the firearms found inside:
[A]lso think about the reasonableness of the statement where she talks about that these are her guns and nobody knows about it. She has two (2) grandchildren . . . in her house . . . . She wants you to believe that she has grandchildren—and this isn’t about being a bad person, this is about the reasonableness of what she says—having young children in a home with assault rifles that Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 15 of 20 are loaded within their reach, that she’s not gonna tell anybody, that she’s not gonna tell her daughter so that her daughter can be cognizant of the location of those weapons when those kids are around, that they’re not gonna have a safety talk with these children about not touching it. Would anybody do that? Would anybody have loaded weapons in their home within reach of children and not have some conversation with other people in the home or with those children about safety? That is not reasonable.
Id. at 323-24.
[25] Belcher contends the prosecutor committed misconduct by telling the jury it
could give Sabrina “credit for standing by her son, but [it] can’t give her credit
for lying . . . .” Id. at 323. Specifically, Belcher argues the prosecutor
improperly commented upon the credibility of a witness because her suggestion
that Sabrina was lying was not sufficiently connected to evidence presented at
trial. We disagree because the statement plainly arises from Sabrina’s
testimony regarding why she did not tell the police the firearms belonged to her
and her assertion that no one else knew she possessed the firearms. See Cooper,
854 N.E.2d at 836. Accordingly, we find no error.
D. Closing Argument [26] Fourth, Belcher contends the prosecutor committed misconduct during closing
argument by shifting the burden of proof to the defense and by making
inflammatory remarks. In support of this contention, Belcher points to the
following portion of the State’s closing argument:
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 16 of 20 In order to find the Defendant not guilty, you have to believe everything the mother tells you and, somehow, you also have to—in addition to believe what Mom tells you, that this Quinn James decided to set his friend up in that ten (10) minutes, that he somehow showed up at that house with all of this stuff, three (3) different scales, cocaine, marijuana in three (3) different packages, pills, and he went around planting it all over the house. It’s almost as if that child in that example I gave you this morning with—or yesterday morning with the cookies, it’s almost like her explanation for the missing cookie was not the U.P.S. man, but the Cookie Monster, the Cookie Monster did it. Well, that’s not reasonable and neither is the defense. The Defendant is guilty.
Tr. at 325.
[27] Belcher argues the prosecutor shifted the burden of proof by stating the jury
must believe Sabrina’s testimony as well as believe James planted the drugs and
scales in the house in order to find Belcher not guilty. It is improper for a
prosecutor to suggest a defendant shoulders the burden of proof in a criminal
case. Stephenson v. State, 742 N.E.2d 463, 483 (Ind. 2001), cert. denied, 534 U.S.
1105 (2002). But to the extent the prosecutor’s statements in this case were
improper, the error was cured by the trial court instructing the jury that the
defendant is not required to prove his innocence or present any evidence at trial.
Ramsey v. State, 853 N.E.2d 491, 501-02 (Ind. Ct. App. 2006), trans. denied;
Appellant’s Appendix at 67-68. We find no fundamental error.
[28] As to the alleged “inflammatory remarks,” Belcher argues the prosecutor’s
references to the Cookie Monster were “disrespectful to defense counsel as well
as the court” and “can only be seen as inflammatory.” Appellant’s Br. at 19. Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 17 of 20 Our review of the record indicates the prosecutor was referring to an analogy
she used to explain reasonable doubt during voir dire. The prosecutor
introduced a scenario in which a child had been told he was not allowed to eat
freshly baked cookies. In the first variation, a cookie goes missing, the child
denies eating the cookie, but the child has chocolate and crumbs on his face. In
the second variation, a cookie goes missing, the child denies eating the cookie,
but the child does not have chocolate or crumbs on his face. In the final
variation, a cookie goes missing, the child denies eating the cookie, but the
child explains he offered the cookie to a delivery person who stopped by the
house to deliver a package. “And you look around and, sure enough, now
there’s a package in your kitchen,” the prosecutor explained. Tr. at 52.
[29] Clearly, when referencing the Cookie Monster, the prosecutor was making an
argument about reasonable doubt, using the analogy she employed during voir
dire. Since we fail to understand how this Sesame Street reference could be
construed as inflammatory, we find no error, let alone fundamental error.
Compare Brummett v. State, 10 N.E.3d 78, 87 (Ind. Ct. App. 2014) (holding the
prosecutor committed misconduct by asking a defendant charged with child
molesting whether he enjoyed touching both of his victims’ vaginas or “was
there only one you like[d] better” because the questions were “argumentative
and inflammatory”) (alteration in original), summarily aff’d, 24 N.E.3d 965 (Ind.
2015).
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 18 of 20 E. Cumulative Error [30] Finally, Belcher argues the alleged misconduct, viewed cumulatively, resulted
in fundamental error. Belcher likens his case to Brummett, 10 N.E.3d 78. In
Brummett, this court held a prosecutor’s misconduct cumulatively amounted to
fundamental error because all of the instances of misconduct went straight to
witness credibility, and the case “hinge[d] largely on the credibility of
witnesses.” Id. at 88 (finding the prosecutor improperly distinguished the roles
of the prosecution and defense, vouched for the credibility of the witnesses and
justness of the cause, and asked inflammatory questions). Belcher argues he
was denied a fair trial because much of the alleged misconduct went to the
credibility of his mother, the main witness for the defense. But given the fact
the police found Belcher’s personal items in close proximity to the marijuana
and the AR-15 rifle, we do not agree this case hinged on the credibility of
witnesses, and we are furthermore not persuaded the alleged misconduct in this
case cumulatively constituted fundamental error. In short, Belcher was not
denied a fair trial for any of the reasons asserted, individually or cumulatively.
Conclusion [31] The State presented sufficient evidence to support Belcher’s convictions for
unlawful possession of a firearm by a serious violent felon and possession of
marijuana, and the prosecutor did not engage in misconduct amounting to
fundamental error. We therefore affirm Belcher’s convictions.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 19 of 20 [32] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-306 | December 11, 2015 Page 20 of 20