MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 10 2019, 9:54 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Scott H. Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Sierra A. Murray Deputy Attorney General Angela Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jan Dollahan, Jr., July 10, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2396 v. Appeal from the Starke Circuit Court State of Indiana, The Honorable Kim Hall, Judge Appellee-Plaintiff. Trial Court Cause No. 75C01-1606-F6-105
Tavitas, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 1 of 20 Case Summary
[1] Jan Dollahan, Jr. appeals his convictions for criminal recklessness, a Level 6
felony, and invasion of privacy, a Class A misdemeanor. We affirm.
Issues
[2] Dollahan raises three issues, which we restate as follows:
I. Whether the evidence is sufficient to convict Dollahan of criminal recklessness with a deadly weapon, a Level 6 felony, and invasion of privacy, a Class A misdemeanor.
II. Whether the deputy prosecutor’s comments in closing arguments constituted fundamental error.
Facts
[3] Dollahan and Robert Cunningham (“Robert”) are neighbors in Starke County.
Robert lives with his brother, two children, and wife, Amanda Cunningham
(“Amanda”). Dollahan’s and the Cunninghams’ homes are part of a residential
neighborhood. Robert “get[s] along great” with all his neighbors except
Dollahan. Tr. Vol. II p. 38.
[4] For approximately three years, Dollahan’s and Robert’s relationship has been
strained, and in September 2015, Robert obtained an order of protection against
Dollahan and his family. Robert also testified that Dollahan obtained a
reciprocal order of protection, prohibiting the Cunninghams from contacting
Dollahan and his family after Dollahan “challenged” Robert’s order of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 2 of 20 protection. 1 Id. at 59. Robert installed security cameras on his property around
July 2015.
[5] On May 30, 2016, at approximately 8:15 p.m., the Cunninghams’ windows
were cracked open and, from inside, Robert could hear Dollahan yelling
outside. Footage from the Cunninghams’ security camera demonstrates that
Dollahan was yelling. State’s Ex. 2. Shortly thereafter, at approximately 8:30
p.m., Robert was getting in his car to leave for work when he heard “loud
booms” in “succession” coming from the direction of Dollahan’s home. Tr.
Vol. II p. 44. Robert stopped the vehicle to determine the source of the sound
and ultimately believed someone set off fireworks.
[6] Later that evening, Amanda was at home and she heard loud noises outside
and called the police. Officer Kenneth Tomasko with the Starke County
Sheriff’s Office arrived at the Cunninghams’ home in response to Amanda’s
call. Officer Tomasko requested a copy of the Cunninghams’ security camera
footage. Amanda told Officer Tomasko that Robert would be able to provide a
copy of the footage the following day.
[7] At around 1:00 a.m., while Robert was on his break at work, he used the
internet to review security camera footage from his home. In reviewing the
footage, Robert was able to determine that, on two occasions that night,
Dollahan shot at the Cunninghams’ security camera—once with a pistol and
1 The order of protection was in place due to “numerous harassment calls.” Tr. Vol. II p. 85.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 3 of 20 once with a .22 rifle. Robert testified that his children play outside but when
the shots were fired, the children were inside the home.
[8] When Robert returned home, he inspected the security cameras to determine if
Dollahan’s shots resulted in any damage. Robert discovered bullet holes in a
three-foot tall tree stump in his yard where one of the security cameras was
mounted. The tree stump is approximately 100 feet from the Cunninghams’
house. Robert did not recover any bullets at the site. Robert provided Officer
Tomasko with a copy of the security camera footage.
[9] As a result, Dollahan was charged with Count I, criminal recklessness with a
deadly weapon, a Level 6 felony, and Count II, invasion of privacy, a Class A
misdemeanor. Dollahan’s jury trial began on April 18, 2018. Witnesses
testified to the foregoing facts. During closing arguments, the State argued:
You’ll be given jury instructions. And, towards the end of the packet you’ll be given, it says under the Constitution of Indiana, the jury is given the right to decide both the law and the facts. In fulfilling this duty, it goes on, you are to apply the law as you actually find it. You are not to disregard it for any reason. So, you’ll have it here, and the State isn’t trying to argue that you should disregard it.
The jury has the right to decide both the law and the facts. Keep that in mind when you’re deliberating. Whether Mr. Dollahan’s actions created a substantial risk of bodily injury.
The State would ask you to put yourself in the Cunningham’s position. In their home, with the kids, young children, both still awake, they have an autistic son, when this happens. They
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 4 of 20 weren’t hurt; no one was killed here and no one was hurt. And the State’s not arguing he was intending to do that – he was intending to hurt anybody. But how would you feel if this was going on in your back yard?
You are all here in this courtroom right now, because you are residents of Starke County. This is your home, too. Is this something that you think should be legal? Is it something that should be permissible? That should be allowed? And do you want your neighbors shooting across your property without you knowing it? Without you being aware; didn’t get permission. Is this something you want to see happening in Starke County? If the answer to that question is no, then why? Why don’t you? Is it because someone could get hurt? Is it because there’s – by doing that you’re creating a substantial risk of bodily injury, is that why? Do you want people shooting across your back yard? You have the right to decide both the law and the facts.
Id. at 98-99. Dollahan did not object to the State’s argument. The jury found
Dollahan guilty of both counts.
[10] At sentencing on May 30, 2018, the trial court raised, sua sponte, the issue of
the statements made by the State during closing argument. The trial court
stated:
However, the Defendant – the Defense lawyers have an obligation to represent their client zealously. And, when I listened to the closing arguments, I was struck by statements made as being certainly worthy of an objection. Likely, worthy of a sustained objection, and perhaps an admonishment, as well as instructing the jurors how to take it.
*****
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 5 of 20 One, two statements that I’m not finding are reversible error, I’m finding they need to be looked into. The first one has to do with the Prosecutor suggesting to the jury that they are free to decide the law. And the second is, the Prosecutor suggesting to the jury, that they should put themselves in the victim’s position.
Id. at 142-43. Accordingly, the trial court determined that it needed some
additional time to determine if the statements constituted fundamental error,
which would have precluded the trial court from accepting the verdict of the
jury.
[11] After the first part of the sentencing hearing, the State filed a brief and Dollahan
filed a brief in support of a finding of prosecutorial misconduct as fundamental
error. On September 13, 2018, the trial court continued the sentencing hearing 2
and rendered its decision with regard to the comments made by the State in
closing argument. The trial court concluded:
And so, you have to consider all the other evidence in the trial. Like how important were those statements do I think? And the juror’s decision of coming back with guilty verdicts? How important do I think that was? Do I think that put the Defendant at grave peril that his lawyers never raised an objection? And the jurors listened to that? And I’ve concluded that the answer is no. That it doesn’t rise to fundamental error, and so, I would call it error; not fundamental error. Because that’s a very high
2 The trial court also held a portion of the sentencing hearing on July 13, 2018; however, during that hearing, Dollahan changed counsel, and the trial court continued the sentencing hearing once more.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 6 of 20 standard. And anyway, that’s what my conclusion is after looking at the law.
The Court now accepts the jury’s verdict of guilty to Count I, criminal recklessness, a level 6 felony, and Count II – . . .
Id. at 167. Dollahan now appeals.
Analysis
I. Sufficiency of the Evidence
[12] Dollahan challenges the sufficiency of the evidence of both convictions. When
there is a challenge to the sufficiency of the evidence, “[w]e neither reweigh
evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210
(Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert. denied),
cert. denied. Instead, “we ‘consider only that evidence most favorable to the
judgment together with all reasonable inferences drawn therefrom.’” Id.
(quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is
supported by ‘substantial evidence of probative value even if there is some
conflict in that evidence.’” Id.; see also McCallister v. State, 91 N.E.3d 554, 558
(Ind. 2018) (holding that, even though there was conflicting evidence, it was
“beside the point” because that argument “misapprehend[s] our limited role as
a reviewing court”). Further, “[w]e will affirm the conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007)).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 7 of 20 A. Criminal Recklessness
[13] Dollahan argues that the evidence is insufficient to convict him of criminal
recklessness because “[t]here is no evidence establishing that anyone was
actually present that either Dollahan knew was there, or that was actually put at
risk as a result of the discharging of the gun,” and, accordingly, there was no
“substance to the risk.” Appellant’s Br. p. 11 (internal quotations omitted).
Dollahan does not challenge the sufficiency of any other element of his criminal
recklessness conviction.
[14] A person commits criminal recklessness, a Level 6 felony, when a person, while
armed with a deadly weapon, “recklessly, knowingly, or intentionally performs
an act that creates a substantial risk of bodily injury to another person. . . .”
Ind. Code § 35-42-2-2. In support of his argument, Dollahan cites Elliott v.
State, 560 N.E.2d 1266 (Ind. Ct. App. 1990). In Elliott, after lunch on a warm,
sunny day, a group of Elliott’s employees were relaxing outside of Elliott’s used
car lot, Elliott walked outside and shouted something “to the effect of ‘Yahoo,
let’s party,’ walked to the edge of the lot, and fired five pistol shots into the air.”
Elliott, 560 N.E.2d at 1266. The lot where Elliott fired the shots was “on the
outskirts of Greenfield, Indiana, and when he fired his pistol, he aimed it
upwards at approximately a 10 degree angle towards adjacent uninhabited
fields and woodlands.” Id. at 1266-67. Elliott’s employees were not in the line
of fire, and there was no evidence presented that anyone was in the woods
nearby, although hunters were known to occupy the woods. See id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 8 of 20 [15] A panel of this court concluded that there was no substantial risk of bodily
injury present because:
Elliott’s employees were behind him, and the fields in front of him were empty. The State concedes Elliott’s shots probably landed in the empty fields or woodlands, but nonetheless argues a hunter could have been in the woodlands, out of Elliott’s sight. The State is correct, but its argument is mere conjecture, for which there was no evidence at trial. Since the evidence failed to show any person put in harm’s way by Elliott’s conduct, there was no substance to the risk created by the firing of the pistol; the risk had no actual existence. Instead, the presence of Elliott’s employees behind him and the possibility of a concealed hunter in the woodlands presented only a remote risk of bodily injury.
Id. at 1267.
[16] Here, Dollahan’s case is distinguishable. The Cunningham family was not
outside; however, the windows to their home were open. Moreover, Dollahan
shot at the security cameras surrounding the Cunninghams’ home and not in
the sky above a rural area as was the case in Elliott. The security camera on the
tree stump, where Robert found bullet holes, was located only 100 feet away
from the Cunninghams’ home. Here, the risk was not mere conjecture or even
a remote risk of bodily injury. Dollahan’s act of pointing a gun and shooting in
the direction of Robert’s home presented the real risk that someone could suffer
bodily injury. Accordingly, the evidence was sufficient to demonstrate a
substantial risk of bodily harm.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 9 of 20 B. Invasion of Privacy
[17] Dollahan also argues the evidence was insufficient to sustain his invasion of
privacy conviction because there was no proof that Dollahan had actual
knowledge of the order of protection or its contents; therefore, Dollahan could
not have knowingly violated the order of protection. Dollahan does not
challenge any other element of his invasion of privacy conviction.
[18] Pursuant to Indiana Code Section 35-46-1-15.1(a)(2), “[a] person who
knowingly or intentionally violates: . . . an ex parte protective order issued
under IC 34-26-5 . . . commits invasion of privacy, a Class A misdemeanor.” In
Tharp v. State, 942 N.E.2d 814, 818 (Ind. 2011), our Supreme Court concluded
that the evidence was insufficient to find the defendant had knowledge of the
order of protection because, while the defendant received an oral notice, the
oral notice contained “mixed messages” about whether the order of protection
was still valid. In reaching its decision, our Supreme Court asked whether there
was “substantial evidence of probative value from which a finder of fact could
find beyond a reasonable doubt that [the defendant] knowingly violated a
protective order?” Tharp, 942 N.E.2d at 818.
[19] The State presented evidence that demonstrated Dollahan’s knowledge of the
order of protection. Robert testified that Dollahan challenged Robert’s initial
order of protection and that Robert was also prohibited from contacting
Dollahan and his family. Specifically, Robert’s testimony on direct
examination included the following inquiry by the deputy prosecutor:
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 10 of 20 Q. When the Court entered that protective order [that Cunningham sought against Dollahan], was there also a reciprocal protective order on behalf of the Dollahans?
A. Yes.
Q. And, what was your understanding of that protective order – that’s laid out in the order?
A. My understanding was that it’s a mutual protective order so that we couldn’t harass each other.
Q. And, were you not supposed to have any contact, direct or indirect?
Tr. Vol. II pp. 39-40. On cross examination, Cunningham elaborated that the
reciprocal protective orders “came from one time. [Dollahan] challenged my
restraining order that I had asked for; during the challenge, where he was
granted a blank one against me.” Id. at 59.
[20] Dollahan argues this is insufficient because the order of protection admitted at
trial only shows the order of protection that Robert obtained against Dollahan
and does not demonstrate that there was a reciprocal order of protection. This
argument is a request for us to reweigh the evidence, which we cannot do. See
Gibson, 51 N.E.3d at 210. It was within the province of the jury to determine
the credibility and weight to be given to Robert’s statements that Dollahan
obtained a reciprocal order of protection, and therefore, had knowledge of the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 11 of 20 order of protection and its contents. Robert’s testimony of the reciprocal order
of protection was sufficient to demonstrate that Dollahan had actual knowledge
of the order.
II. Prosecutorial Misconduct
[21] Finally, Dollahan argues the deputy prosecutor committed misconduct by
“urging the jury to convict Dollahan on something other than the evidence
admitted during the trial, as well as inflaming their passions” in closing
arguments. Appellant’s Br. p. 15. At the trial, however, Dollahan did not
object to the deputy prosecutor’s statements, and Dollahan argues that we must
evaluate whether the alleged misconduct constituted fundamental error.
[22] When reviewing a claim of prosecutorial misconduct, we must determine
whether the prosecutor: (1) engaged in misconduct that, (2) under all of the
circumstances, placed the defendant in a position of grave peril to which he or
she would not have been otherwise subjected. Ryan v. State, 9 N.E.3d 663, 667
(Ind. 2014); see also Nichols v. State, 974 N.E.2d 531, 535 (Ind. Ct. App.
2012). “‘Whether a prosecutor’s argument constitutes misconduct is measured
by reference to case law and the Rules of Professional Conduct.’” Nichols, 974
N.E.2d at 535 (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). We
measure the weight of the peril by the probable persuasive effect of the
misconduct on the jury rather than the degree of impropriety of the
conduct. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 12 of 20 [23] To establish fundamental error based on prosecutorial misconduct, the
defendant must also show that the misconduct: (1) rendered a fair trial
impossible or (2) constituted a clearly blatant violation of basic and elementary
principles of due process, which resulted in an undeniable and substantial
potential for harm. Id. Harm is established not by a conviction, but rather
upon whether the defendant’s right to a fair trial was detrimentally affected by
the denial of procedural opportunities for the ascertainment of the
truth. Id. Misconduct or errors implicating constitutional issues do not
necessarily establish that fundamental error has occurred. Id.
[24] In his brief, Dollahan points to the following comments as misconduct:
The jury has the right to decide both the law and the facts. Keep that in mind when you’re deliberating. Whether Mr. Dollahan’s actions created a substantial risk of bodily injury.
The State would ask you to put yourself in the Cunningham’s position. In their home, with the kids, young children, both still awake, they have an autistic son, when this happens. They weren’t hurt; no one was killed here and no one was hurt. And the State’s not arguing he was intending to do that – he was intending to hurt anybody. But how would you feel if this was going on in your back yard?
You are all here in this courtroom right now, because you are residents of Starke County. This is your home, too. Is this something that you think should be legal? Is it something that should be permissible? That should be allowed? And do you want your neighbors shooting across your property without you knowing it? Without you being aware; didn’t get permission. Is this something you want to see happening in Starke County? If
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 13 of 20 the answer to that question is no, then why? Why don’t you? Is it because someone could get hurt? Is it because there’s – by doing that you’re creating a substantial risk of bodily injury, is that why? Do you want people shooting across your back yard? You have the right to decide both the law and the facts.
Tr. Vol. II pp. 98-99.
[25] In Ryan v. State, 9 N.E.3d 663, 671-72 (Ind. 2014), our Supreme Court
addressed the question that Appellant raises here, namely, whether a
prosecutor’s arguments invited the jury to convict the defendant for a reason
other than the defendant’s own guilt. In Ryan, the prosecutor argued:
You 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 [sic] guys, I get that. No one want[s] to judge someone else or somebody else’s actions. But we 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.
Id. at 671. Our Supreme Court concluded:
Although a prosecutor may remark on the public demand for a conviction, we have repeatedly emphasized that “[i]t is misconduct for a prosecutor to request the jury to convict a defendant for any reason other than his guilt.” Cooper [v. State], 854 N.E.2d [831,] 837 (Ind. 2006) (quoting Coleman v. State, 750
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 14 of 20 N.E.2d 370, 375 (Ind. 2001)); Maldonado [v. State, 355 N.E.2d 843, 849 (Ind. 1976)]. In Smith [v. State, 283 N.E.2d 365, 369 (Ind. 1972)], the prosecutor stated in his closing argument that: “You as jurors at this stage of this proceeding have it within your power to set the moral standards for this community.” [Id. at 369]. After giving two reasons to convict that particular defendant, the prosecutor 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 comments were not improper. Id. In the present case, however, the prosecutor alluded to the “bigger picture,” 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 implored 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.
Id. at 671-72. Still, our Supreme Court did not reach the question of whether
this statement “subjected the defendant to grave peril”—the second prong of the
prosecutorial misconduct question—because the Supreme Court ultimately
concluded that any error did not rise to the level of fundamental error, which
was the standard that governed in Ryan. Id. at 672.
[26] On the other hand, in Jerden v. State, 37 N.E.3d 494, 499 (Ind. Ct. App. 2015), a
panel of this Court addressed the prosecutor’s closing argument that provided:
Our roads are nor [sic] playgrounds. Our roads are not places for young men who think that they can drive faster and better than other people. Our roads are used by families going to church on
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 15 of 20 Sunday mornings. They are used by people going to and from work.
So, on April 13th of this year these two (2) men went racing through our community. To them it was just a thirty (30) mile stretch of road. To us, though, it’s the safety of our neighbors. The defendants put us in danger by the way they were driving that day.
Ladies and Gentlemen, these two (2) men thought that they could race on our tr [sic] . . . on our road. They thought that they could use their well[-]honed driving skills, but in fact what they did is they put us in danger, and that’s what danger . . . reckless driving is.
Id. Jerden argued that the prosecutor’s statements were improper because there
was no evidence of the facts the prosecutor referenced, including: (1) the
prosecutor’s characterization of the road as “just a thirty mile stretch of road”;
(2) the prosecutor’s implication that Jerden’s crime involved actions near a
church; and (3) the prosecutor’s characterization of the time of day because
“the fact that it was a Sunday morning was not relevant to whether he was
driving recklessly.” Id. at 499. Even though a panel of this Court ultimately
concluded that it would not need to address whether the prosecutor’s comments
constituted misconduct because any misconduct did not rise to the level of
fundamental error, this Court cited Booher v. State, 773 N.E.2d 814, 819 (Ind.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 16 of 20 2002), to support the proposition that “prosecutors are free to make arguments
from which a jury can draw reasonable inferences from the evidence.” Id.
Using these examples, we turn to the statements before us.
[27] We characterize the deputy prosecutor’s statements as two separate categories:
(1) telling the jury that they can decide both the law and the facts; and (2) a
series of questions and facts that had more to do with the jury than with
Dollahan. As to the first category of statements, the deputy prosecutor stated
that the jury was to decide both the law and the facts—a statement the State
argues is derived from the Indiana Constitution. The deputy prosecutor also
told the jury that it could not disregard the law for any reason. Although a
seemingly imprecise choice of words, we agree that the deputy prosecutor was
attempting to instruct the jury to apply the law, not change it. Moreover, the
State correctly points out that, when the deputy prosecutor submits a correct
statement near an improper statement, the harm may be counteracted. See
Ryan, 9 N.E.3d at 672 (holding that “[s]uch correct statement so distanced from
an improper one cannot qualify its substance, but it may counteract its harm”).
[28] The deputy prosecutor’s second category of statements edges closer to improper
statements. Specifically, we look at the portion of the closing argument where
the deputy prosecutor argued:
But how would you feel if this was going on in your back yard?
You are all here in this courtroom right now, because you are residents of Starke County. This is your home, too. Is this something that you think should be legal? Is it something that Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 17 of 20 should be permissible? That should be allowed? And do you want your neighbors shooting across your property without you knowing it? Without you being aware; didn’t get permission. Is this something you want to see happening in Starke County? If the answer to that question is no, then why? Why don’t you? Is it because someone could get hurt? Is it because there’s – by doing that you’re creating a substantial risk of bodily injury, is that way? Do you want people shooting across your back yard? You have the right to decide both the law and the facts.
Tr. pp. 98-99. The statements above are similar to the statements made in
Ryan, because, in both cases, the deputy prosecutor essentially argued that the
jurors have an opportunity to stop unwanted conduct and made the allegations
about the bigger picture of policing the jurors’ neighborhoods. See also Carter v.
State, 956 N.E.2d 167, 170 (Ind. Ct. App. 2011) (finding misconduct when the
prosecutor asked the jurors to put themselves in the victim’s shoes), trans. denied.
[29] Regardless of whether the deputy prosecutor’s statements were improper, they
do not rise to the level of fundamental error. The State presented independent
evidence that Dollahan was guilty of criminal recklessness—the crimes to
which the deputy prosecutor’s statements seemingly apply. The State presented
significant video evidence of two separate occasions when Dollahan shot
directly at the Cunninghams’ security cameras while the Cunningham family
was home. The State further presented evidence of bullet holes on the tree
stump where one security camera was mounted approximately 100 feet away
from the Cunninghams’ home. In light of this “overwhelming independent
evidence,” we cannot find that the comments made by the prosecutor resulted
in fundamental error. See, e.g., Hand v. State, 863 N.E.2d 386, 395 (Ind. Ct. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 18 of 20 App. 2007) (“Because the State presented overwhelming independent evidence
that Hand was guilty of Class A misdemeanor domestic battery—an act that he
does not deny—we find that any reference by the prosecutor to BWS or a cycle
of violence that may have existed between Hand and Diona did not amount to
fundamental error.”).
[30] Moreover, the final jury instructions read to the jury included the following:
“The unsworn statements or comments of counsel on either side of the case
should not be considered as evidence in this case. It is your duty to determine
the facts from the testimony and evidence admitted by the Court and given in
your presence.” Appellant’s App. Vol. II p. 167. The instruction properly
directed the jury that the deputy prosecutor’s statements were not evidence in
the case. See Ryan, 9 N.E.2d at 672-73 (finding that, despite the prosecutor’s
improper closing argument that the jury should “send the message that we’re
not going to allow people to do this,” the error did not have such an
“undeniable and substantial effect on the jury’s decision that a fair trial was
impossible,” in part, because of the proper jury instructions pointing to what the
jury may properly consider).
[31] Looking at the trial as a whole, we are not persuaded that the deputy
prosecutor’s closing arguments precluded Dollahan from obtaining a fair trial.
Accordingly, we affirm the trial court’s finding that the deputy prosecutor’s
statements do not constitute fundamental error.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 19 of 20 Conclusion
[32] The evidence is sufficient to convict Dollahan of criminal recklessness, a Level
6 felony, and invasion of privacy, a Class A misdemeanor. The deputy
prosecutor’s arguments in the State’s closing argument do not constitute
fundamental error. We affirm.
[33] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2396 | July 10, 2019 Page 20 of 20