Jerome Wilderness, Sr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 24, 2020
• Docket: 20A-CR-88
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 24 2020, 10:01 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Paul G. Stracci Curtis T. Hill, Jr. J. Michael Woods Attorney General of Indiana Stracci Law Group, P.C. Justin F. Roebel Crown Point, Indiana Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jerome Wilderness, Sr., August 24, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-88 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Salvador Vasquez, Judge Trial Court Cause No. 45G01-1802-MR-1

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 1 of 36 [1] Jerome Wilderness, Sr. (“Wilderness”) was convicted after a jury trial of

murder,1 a felony, and was sentenced to an aggregate sentence of fifty-five years

executed. He appeals his conviction and raises several issues, which we

consolidate and restate as:

I. Whether the trial court abused its discretion in the admission and exclusion of certain evidence during the trial;

II. Whether the trial court abused its discretion when it denied Wilderness’s request for a mistrial;

III. Whether the trial court committed fundamental error in its final jury instructions concerning self-defense;

IV. Whether statements made in the State’s rebuttal closing argument constituted prosecutorial misconduct that rose to the level of fundamental error; and

V. Whether fundamental error occurred due to the cumulative effect of the errors.

[2] We affirm.

Facts and Procedural History [3] In February 2018, Wilderness, who was sixty-five years old at the time, lived in

a house in Crown Point, Indiana with his wife, Patricia, and his son, Jerome

1 See Ind. Code § 35-42-1-1(1).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 2 of 36 Wilderness, Jr. (“Junior”), who was living with his parents at the time because

he was going through a divorce. Tr. Vol. 3 at 235; Tr. Vol. 5 at 215-16. Junior

had ten-month-old twin daughters, who would come to the home when Junior

had parenting time. Tr. Vol. 3 at 233; Tr. Vol. 5 at 133-34.

[4] On February 17, 2018, Junior was at the residence with his daughters. Tr. Vol.

5 at 111-13. At 9:13 p.m. that night, Lake County 911 received a call from

Wilderness reporting that “he shot his son three times.” Tr. Vol. 4 at 60, 67-68;

Tr. Vol. 5 at 171. While speaking with the 911 operator, Wilderness stated that

Junior’s breathing was slowing and that he thought his son was going to die.

Tr. Vol. 5 at 174. At one point, Wilderness said he thought Junior had stopped

breathing. Id. The 911 operator asked Wilderness if he wanted to perform

CPR on Junior, and Wilderness responded, “no.” Id.

[5] In response to the 911 call, police were dispatched to the home of Wilderness.

Tr. Vol. 4 at 54, 91, 115. When they arrived, Wilderness exited the residence

with his hands in the air and was detained while the police could assess the

scene. Id. at 56-57, 117. Inside the house, officers found Junior and his infant

daughters at the bottom of the basement stairs. Id. at 93, 99, 118. Two

revolvers were sitting at the top of the stairs leading to the basement. Id. at 118.

When the officer began to attend to Junior, he told them, “Help. . . . I’m dying.

Help me. I’m dying.” Id. at 93. One officer checked Junior’s wounds and

fastened a tourniquet, while a second officer took care of the infants. Id. at 93-

95. The paramedics soon arrived and took over tending to Junior. Id. at 69-70.

After providing Junior with oxygen and intravenous fluids, the paramedics Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 3 of 36 transported him to the hospital. Id. at 76. During the trip to the hospital,

Junior’s condition deteriorated, and the paramedics twice had to use needles to

decompress his right lung. Id. at 77-78.

[6] Once at the hospital, Junior was taken into emergency surgery but died during

the surgery. Tr. Vol. 5 at 117. An autopsy was performed, during which four

gunshot wounds were identified, and three bullets were recovered from Junior’s

body. Tr. Vol. 3 at 244; Tr. Vol. 4 at 11-13. The first gunshot wound was a

“through-and-through gunshot wound” passing through Junior’s right hand

with gunpowder stippling around the wound. Tr. Vol. 4 at 15-18. The stippling

indicated that the gun was fired at close range, and the pathologist described

this as a defensive wound consistent with Junior “attempting to protect himself

by pushing” away the gun. Id. at 16, 22, 33. That bullet apparently then

entered Junior’s upper chest and lodged into his right shoulder area. Tr. Vol. 4

at 19, 23, 28. The second bullet was recovered from Junior’s left thigh, and the

third bullet entered his abdomen and passed through the diaphragm, liver, and

right lung before stopping in his back muscle, causing his death. Id. at 14, 20.

It was later confirmed that all three bullets were fired from Wilderness’s

revolver. Id. at 24.

[7] After he was arrested, Wilderness made a statement to police in which he again

admitted to shooting Junior. Tr. Vol. 5 at 175. Wilderness also told the officers

that Junior did not possess any weapons and did not have one the night of the

murder. Id. Wilderness additionally told the police that Junior had not

punched him prior to the shooting. Id. at 177.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 4 of 36 [8] In their investigation, the police recovered a voicemail from the phone of

Marisa Wilderness (“Marisa”), Junior’s sister and the daughter of Wilderness.

Tr. Vol. 4 at 158; Tr. Vol. 5 at 63, 118; State’s Ex. 210. The voicemail had been

sent by Junior at 8:58 p.m. on the night of the murder and was approximately

two-and-a-half minutes in length. Tr. Vol. 5 at 47-56; State’s Ex. 210. The

recording captured some of the interactions between Wilderness and Junior

around the time of the shooting. State’s Ex. 210. On the recording, Junior can

be heard yelling at his father, “Shoot me, N*****, shoot, shoot, shoot, shoot!”

Id. at 00:28-33. Wilderness can be heard stating, “get out of my house, boy.”

Id. at 2:26-28.

[9] On February 20, 2019, the State charged Wilderness with murder and later, on

May 1, 2019, added an enhancement for use of a firearm. Appellant’s App. Vol.

II at 30, 109. Prior to Wilderness’s trial, the State filed notice that it intended to

present evidence, under Indiana Evidence Rule 404(b), of an incident that

occurred on January 13, 2018 (“the January incident”), where Wilderness

became angry during a discussion of Junior’s divorce, produced a firearm from

his pocket, pointed it at Junior, and made verbal threats. Id. at 97-98.2

Following a hearing on the State’s notice, the trial court granted the State’s

request to present 404(b) evidence but later clarified that the evidence would

only be admissible if Wilderness put his intent at issue. Id. at 107; Tr. Vol. 2 at

2 The State initially filed two notices regarding evidence under Evidence Rule 404(b) but then discovered that the witnesses were describing a single event. Appellant’s App. Vol. II at 97-104; Tr. Vo. 2 at 3-4.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 5 of 36 41. At trial, the trial court found that Wilderness’s opening statement raised

self-defense and put his intent at issue, and, therefore, the State could introduce

the 404(b) evidence. Tr. Vol. 3 at 227-31; Tr. Vol. 5 at 93-96.

[10] Prior to trial, Wilderness also filed a motion in limine, seeking to exclude the

recording of Junior’s voicemail to Marissa from the night of the murder because

the recording was of such poor quality that it would cause the jury to speculate

as to its contents. Appellant’s App. Vol. II at 121-22. The trial court reviewed the

recording out of the presence of the jury and denied Wilderness’s motion,

finding “that there are enough intelligible portions to be helpful to this jury.”

Tr. Vol. 4 at 47-48. The trial court also rejected a request to redact unintelligible

parts of the recording. Id. at 50-51.

[11] The jury trial commenced on November 4, 2019. Wilderness testified in his

defense and claimed that Junior “just kind of like went off” after Wilderness

asked him about not answering the door when Marissa had stopped by earlier

that day. Tr. Vol. 5 at 228. Wilderness testified that Junior became upset,

blocked Wilderness’s movement, and that they “tangled a little bit” with Junior

pushing Wilderness to the floor in the kitchen. Id. at 230-31. Wilderness also

described a second confrontation a short time later in the living room where he

repeatedly told Junior to “get out,” and Junior again grabbed him and pushed

him to the ground before going down to the basement. Id. at 234-35.

Wilderness stated that he then started to call the police but hung up because he

did not “want to make things worse for [his] son.” Id. at 236-37. Wilderness

testified that he then confronted his son in the basement, telling him “you gotta

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 6 of 36 go.” Id. at 237. According to Wilderness, Junior “grabbed [him] again” and

pushed him down, breaking a table. Id. at 237-38. When Junior then started to

come toward him again, Wilderness, who stated that he carried two pistols on

his person, grabbed the pistol he kept on his right side. Id. at 238. Wilderness

testified that Junior “kept coming,” “got on top” of Wilderness, and “tried to

grab” the gun from him. Id. Wilderness testified that he thought Junior “might

take” the gun from Wilderness and shoot him, so he then fired the gun three

times while Junior “was over the top of” him but denied that he was aiming at

Junior. Id. at 239.

[12] Based on Wilderness’s claim of self-defense, the trial court provided two self-

defense final jury instructions which were instructions that the trial court had

“been using for many many years.” Id. at 187; Tr. Vol. 6 at 23; Appellant’s App.

Vol. II at 155-56. Wilderness did not object to these final instructions on self-

defense or to any of the trial court’s other final instructions. Tr. Vol. 6 at 27.

The State requested an instruction on voluntary manslaughter, but Wilderness

objected, arguing the evidence did not indicate that Wilderness was excited at

the time of the crime, and the trial court denied the request for a voluntary

manslaughter instruction. Id. at 25-27.

[13] At the conclusion of the trial, the jury found Wilderness guilty of murder. Id. at

91; Appellant’s App. Vol. II at 169. Wilderness waived his right to a jury trial on

the firearm enhancement and pleaded guilty to the enhancement. Appellant’s

App. Vol. II at 170. On December 11, 2019, the trial court sentenced Wilderness

to fifty years in the Indiana Department of Correction for his murder conviction Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 7 of 36 and a five-year enhancement for use of a firearm, resulting in an aggregate

sentence of fifty-five years. Id. at 188-89. Wilderness now appeals.

Discussion and Decision

I. Admission and Exclusion of Evidence [14] The admission and exclusion of evidence rests within the sound discretion of

the trial court, and we review the exclusion of evidence only for an abuse of that

discretion. Griffith v. State, 31 N.E.3d 965, 969 (Ind. 2015). An abuse of

discretion occurs where the trial court’s decision is clearly against the logic and

effect of the facts and circumstances presented. Barnhart v. State, 15 N.E.3d

138, 143 (Ind. Ct. App. 2014). “Even if a trial court errs in its evidentiary

ruling, ‘we will not overturn the conviction if the error is harmless.’” Griffith, 31

N.E.3d at 969 (quoting Appleton v. State, 740 N.E.2d 122, 124 (Ind. 2001)

(citations omitted)). “An error is harmless if ‘the probable impact of the

evidence upon the jury is sufficiently minor so as not to affect a party’s

substantial rights.’” Id. (quoting Appleton, 740 N.E.2d at 124). The trial court’s

ruling will be sustained on any reasonable basis apparent in the record, whether

or not relied on by the parties or the trial court. Washburn v. State, 121 N.E.3d

657, 661 (Ind. Ct. App. 2019) (citing Jeter v. State, 888 N.E.2d 1257, 1267 (Ind.

2008), cert. denied, 555 U.S. 1055 (2008)), trans. denied.

A. 404(b) Evidence

[15] Wilderness argues that the trial court abused its discretion when it admitted

evidence of the January incident in which Wilderness became angry during a

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 8 of 36 discussion of Junior’s divorce, produced a firearm and pointed it, and made

verbal threats, under Indiana Evidence Rule 404(b) because the evidence did

not prove motive or intent or show the relationship between Wilderness and

Junior, and, instead, only showed that Wilderness had a violent relationship

with his family and a propensity to commit violence against Junior. Wilderness

further contends that the evidence of the January incident should not have been

admitted. He argues that there was insufficient evidence to show that it was

relevant to the relationship between him and Junior, and, specifically, that there

was not sufficient evidence that the conversation from the January incident

concerned Junior’s divorce or that Wilderness threatened Junior. He also

contends that the evidence regarding the January incident was unfairly

prejudicial because the jury could infer from the evidence that he had the

propensity to do violence to his family and acted in conformity therewith when

he shot Junior.

[16] Indiana Evidence Rule 404(b) prohibits a trial court from admitting evidence of

another crime, wrong, or act “to prove a person’s character in order to show

that on a particular occasion the person acted in accordance with the

character.” Ind. Evidence Rule 404(b)(1). “The purpose of the rule is to protect

against the ‘forbidden inference -- that the defendant acted badly in the past,

and that the defendant’s present, charged actions conform with those past bad

acts . . . .’” Erickson v. State, 72 N.E.3d 965, 973-74 (Ind. Ct. App. 2017)

(quoting Nicholson v. State, 963 N.E.2d 1096, 1099-100 (Ind. 2012) (citation

omitted)), trans. denied. Evidence of crimes, wrongs, or other acts are

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 9 of 36 admissible if offered for another purpose, such as to prove “motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,

or lack of accident.” Evid. R. 404(b)(2). In assessing the admissibility of 404(b)

evidence, we: (1) determine whether the evidence of other crimes, wrongs, or

acts is relevant to a matter at issue other than the defendant’s propensity to

commit the charged act; and (2) balance the probative value of the evidence

against its prejudicial effect pursuant to Rule 403. Erickson, 72 N.E.3d at 974.

[17] In the present case, the State sought to introduce evidence from the January

incident in which Wilderness was present at a family meeting along with other

family members including Junior, and a discussion occurred regarding what

actions Junior should take in his divorce. Appellant’s App. Vol. II at 97-98; Tr.

Vol. 3 at 228. At the meeting, Wilderness became angry about what was being

said and produced a Smith and Wesson .38 caliber handgun from his pocket,

pointed the firearm at one of the family members, and made verbal threats.

Appellant’s App. Vol. II at 97-98; Tr. Vol. 3 at 228. The State stated that it was

offering the evidence of the January incident for various permissible purposes

including Wilderness’s motive and intent. Appellant’s App. Vol. II at 97-98. The

trial court initially granted the State’s request to present 404(b) evidence, but

then clarified that the evidence would be admissible only if Wilderness put his

intent at issue. Id. at 107; Tr. Vol. 2 at 41. At trial, the trial court found that

Wilderness’s opening statement raised a claim of self-defense and put his intent

at issue, and, therefore, the State could introduce the 404(b) evidence. Tr. Vol. 3

at 227-31; Tr. Vol. 5 at 93-96.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 10 of 36 [18] “Evidence of motive is always relevant in the proof of a crime, and a

defendant’s prior actions with respect to the victim are also usually admissible

to show the relationship between the two.” Fry v. State, 748 N.E.2d 369, 372

(Ind. 2001). The intent exception is narrowly construed and is available only

“when a defendant goes beyond merely denying the charged culpability and

affirmatively presents a claim of particular contrary intent.” Fairbanks v. State,

119 N.E.3d 564, 569 (Ind. 2019) (citing Wickizer v. State, 626 N.E.2d 795, 799

(Ind. 1993)), cert. denied, 140 S. Ct. 198 (2019). The exception is available when

a defendant’s claim of contrary intent is alleged in the opening statement, by

cross-examination of the State’s witnesses, or by presentation of his own case-

in-chief. Id.

[19] The evidence of the January incident, which related to Junior’s pending divorce

and occurred during his parenting time when the twins were present, was

relevant to understand Wilderness’s intent and motive to shoot and kill Junior.

The January incident involved a situation where Junior’s divorce was being

discussed during a visitation with Junior’s twins. Wilderness became angry,

displayed his gun, pushed Patricia down, and made threats to “end it” and “kill

us all,” directed to everyone present including Junior. Tr. Vol. 5 at 103-06, 127-

31. This evidence created a reasonable inference that Wilderness had already

threatened and contemplated killing Junior and that his intent and motive for

the subsequent killing one month later were based on the same matters involved

in the January incident, namely, Junior’s divorce issues, that caused the prior

threat. This evidence was relevant and probative in that it showed that

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 11 of 36 Wilderness and Junior had a contentious relationship in which Wilderness

became angry when discussing Junior’s divorce and made threats while

brandishing a firearm. Evidence of prior crimes and misconduct that tends to

show a hostile relationship between the defendant and the victim is admissible.

See Evans v. State, 727 N.E.2d 1072, 1080 (Ind. 2000) (finding that evidence of

prior bad acts was relevant and probative in that it showed the defendant’s

relationship with the victim); Iqbal v. State, 805 N.E.2d 401, 408 (Ind. Ct. App.

2004) (finding that a prior incident where defendant argued with victim and

threatened her was admissible because it was indicative of defendant’s

relationship with victim and highly relevant for his motive to shoot her).

Additionally, evidence of a prior threat involving similar circumstances and

victims has been found admissible to rebut claims of self-defense. See Evans,

727 N.E.2d at 1080 (other misconduct evidence admissible where defendant

claimed self-defense); Sanders v. State, 704 N.E.2d 119, 124 (Ind. 1999) (other

misconduct evidence admissible to rebut self-defense claim); Goldsberry v. State,

821 N.E.2d 447, 456 (Ind. Ct. App. 2005) (prior evidence of misconduct

admissible where defendant raised self-defense claim in opening argument).

[20] Here, in admitting the evidence of the January incident, the trial court observed

that this case is similar to Evans. Tr. Vol. 5 at 99-100. In Evans, the defendant

went to his ex-girlfriend’s home, and while she and her new boyfriend were in

bed, he began stabbing at her with a knife, asking her “Is that the reason you

won’t take me back?” 727 N.E.2d at 1076. Evans and the boyfriend began to

fight, which led to Evans stabbing and killing the boyfriend. Id. Evans claimed

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 12 of 36 self-defense and argued that the boyfriend was the initial aggressor. Id. at 1078-

79. The Supreme Court found the State properly introduced evidence under the

intent exception of Evidence Rule 404(b) that Evans had choked his ex-

girlfriend two days before the incident in question after she ended their

relationship. Id. at 1080. Because the defendant “went beyond merely denying

the charged culpability and affirmatively presented a claim of particular

contrary intent – self-defense,” the Court found the prior conduct relevant

because it rebutted the Evans’s claim that the victim was the initial aggressor.

Id.

[21] We agree with the trial court’s reasoning and reject Wilderness’s contention

that Evans is “critically distinguishable” from the present case because here

Patricia, and not Junior, “was the alleged victim of the [prior] physical bad

acts.” Appellant’s Br. at 20-21. Contrary to Wilderness’s assertion, Junior was a

victim of the prior threat because Junior was present in the room when

Wilderness brandished his gun and threatened to “kill [them] all” and to “end

it.” Tr. Vol. 5 at 105-06, 127-31. The January incident showed that Wilderness

had a volatile relationship with Junior prior to the murder and supported an

inference that his motive and intent to harm Junior were related to the issues

concerning Junior’s pending divorce. Evans is similar to the present case in that

it shows that the prior incident need not be identical to be probative of intent.

In Evans, the Supreme Court found that the evidence of a previous act of

choking the ex-girlfriend was probative and relevant to the killing of her new

boyfriend because it rebutted that the claim that victim was the initial aggressor

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 13 of 36 and showed the defendant’s intent at the time of the murder. Evans, 727

N.E.2d 1078-80.

[22] We also reject Wilderness’s contention that the foundational evidence of the

January incident was not sufficient to establish its relevancy. When presenting

404(b) evidence, there must be sufficient proof from which a reasonable jury

could find the uncharged conduct proven by a preponderance of the evidence.

Caldwell v State, 43 N.E.3d 258, 264 (Ind. Ct. App. 2015) (citing Camm v. State,

908 N.E.2d 215, 224 (Ind. 2009)), trans. denied. Here, the State met this

requirement by presenting testimony from both Patricia and Marisa describing

the January incident and Wilderness’s actions and prior threats. Tr. Vol. 5 at

103-06, 127-31. Although there were minor differences in their recollection of

the January incident, both testified that Wilderness threatened his family while

brandishing a gun, and Marissa specifically testified that the prior threat

occurred during a discussion of Junior’s divorce. Id. at 105-06, 128-31. The

trial court was well within its discretion to find the January incident was proven

by a preponderance of the evidence.

[23] We must next balance the probative value of the evidence against its prejudicial

effect. Indiana Evidence Rule 403 provides that “[a]lthough relevant, evidence

may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury[.]” “When

determining any unfair prejudicial impact, courts should look for the dangers

that the jury will substantially overestimate the value of the evidence or that the

evidence will arouse or inflame the passions or sympathies of the jury.” Bell v.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 14 of 36 State, 29 N.E.3d 137, 142 (Ind. Ct. App. 2015) (citing Duvall v. State, 978

N.E.2d 417, 428 (Ind. Ct. App. 2012), trans. denied), trans. denied.

Determination of whether the probative value of an evidentiary matter is

substantially outweighed by the danger of unfair prejudice is a discretionary

task best performed by the trial court. Id.

[24] Wilderness contends that the evidence of the January incident was overly

prejudicial because it could have caused the jury to speculate that he had a

propensity to make threats. We disagree. When the trial court admitted the

evidence, it limited the questioning to the January incident and the fact that, on

that date, Wilderness made threats to the family members present while armed

with a handgun. Tr. Vol. 5 at 94-96. The trial court also rejected all questions

from the jury that suggested that other incidents may have occurred. Id. at 150-

51. We further conclude that the prejudice was not exacerbated when a police

officer testified to recognizing Wilderness from prior calls. Tr. Vol. 4 at 115-16.

After Wilderness objected to the officer’s statement, and the objection was

sustained, there was no further mention of any prior calls. Id. No additional

evidence was presented as to the nature of the prior calls or Wilderness’s

interactions with police, and Wilderness did not request any admonishment

after objecting. Id. at 117.

[25] The evidence of the January incident was probative of the contentious

relationship between Wilderness and Junior and was relevant to show

Wilderness’s motive and intent when he shot Junior. The challenged evidence

involved a threat to Junior while Wilderness was armed with a firearm and

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 15 of 36 related to Junior’s pending divorce. Although Wilderness argues that the

January incident was not really about his anger concerning Junior’s divorce, the

trial court was well within its discretion to find the events were related based on

the similar circumstances and available testimony. The probative value of the

testimony of the January incident was not substantially outweighed by the

danger of unfair prejudice, and the trial court did not abuse its discretion in

admitting testimony of the January incident.

[26] Finally, any error in the admission of the January incident evidence was

harmless. Errors in the admission of evidence are ordinarily disregarded as

harmless unless they affect the substantial rights of a party. Remy v. State, 17

N.E.3d 396, 401 (Ind. Ct. App. 2014) (citing Hoglund v. State, 962 N.E.2d 1230,

1238 (Ind. 2012)), trans. denied. In determining whether a party’s substantial

rights have been affected, we consider the evidence’s probable impact on the

factfinder. Id. “Improper admission of evidence is harmless error ‘if the

conviction is supported by substantial independent evidence of guilt satisfying

the reviewing court there is no substantial likelihood the challenged evidence

contributed to the conviction.’” Id. (quoting Hoglund, 962 N.E.2d at 1238).

[27] Here, Wilderness admitted to shooting Junior and refused a claim of sudden

heat; therefore, the only question before the jury was whether he acted in self-

defense. The evidence showed that Junior was unarmed and had no history of

violence. Tr. Vol. 5 at 249; Tr. Vol. 6 at 20-21. The pathologist testified that

Junior suffered what was described as a defensive wound consistent with Junior

“attempting to protect himself by pushing” away the gun. Tr. Vol. 4 at 22, 33.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 16 of 36 Further, the voicemail recording showed that the shooting occurred

approximately ten minutes before Wilderness called 911, and the State argued

that this lapse in time coupled with the state of the house when the police

arrived was consistent with Wilderness fabricating evidence of a struggle before

calling 911. State’s Exs. 11-153, 210; Tr. Vol. 5 at 171; Tr. Vol. 6 at 34-38. We,

therefore, conclude that any error in admitting evidence of the January incident

was harmless.

B. Voicemail

[28] Wilderness also argues that the trial court abused its discretion when it admitted

the recording of the voicemail that Junior left for Marisa that captured

interactions between Wilderness and Junior around the time of the shooting.

He asserts that the recording should not have been admitted because it was so

unintelligible as to invite speculation and assumption that it said what the State

claimed it did. Wilderness claims that a review of the recording reveals that

due to the crying of the children and the poor quality of the audio, very little

can be deciphered and no witness testified as to the events depicted on the

recording, which left the jury to speculate about its contents.

[29] To properly admit a tape recording made in a non-custodial setting, the

following foundational requirements must be established: (1) the recording

must be authentic and correct; (2) the testimony elicited must have been freely

and voluntarily made; (3) the recording must not contain matter otherwise not

admissible into evidence; and (4) the recording must be of such clarity as to be

intelligible and enlightening to the jury. Coleman v. State, 750 N.E.2d 370, 372- Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 17 of 36 73 (Ind. 2001). It is within the trial court’s discretion to determine whether

such recordings meet these criteria. Id.

[30] Here, before admitting the recording into evidence, the trial court reviewed the

voicemail and found, “I think that there are enough intelligible portions to be

helpful to this jury.” Tr. Vol. 4 at 48. A review of the evidence shows that both

Wilderness and Junior can be intelligibly heard in the recording, and it captured

some of their interactions around the time of the shooting. State’s Ex. 210.

Junior can be heard yelling at his father, “Shoot me N*****, shoot, shoot,

shoot!” Id. at 00:28-33. Wilderness can be heard stating, “get out of my house

boy.” Id. at 2:26-28. The trial court was within its discretion to find that the

recording was of such clarity as to be intelligible and enlightening to the jury to

show the interactions between Junior and Wilderness around the time of the

murder. Coleman, 750 N.E.3d at 373.

[31] Further, the trial court was not required to exclude the recording simply

because parts of it were unclear. “Perfect quality is not required; rather taken as

a whole, the recording must be of such clarity that it does not lead the jury to

speculate about its contents.” Hall v. State, 897 N.E.2d 979, 981 (Ind. Ct. App.

2008) (citing Brown v. State, 577 N.E.2d 221, 230 (Ind. 1991)). Here, the

recording reflected the general tenor of the conversation between Junior and

Wilderness around the time of the murder, and the intelligible parts enlightened

the jury as to the interactions between the two. We believe that taken as a

whole the recording was of such clarity that it did not lead the jury to speculate

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 18 of 36 as to its contents. The trial court did not abuse its discretion by admitting the

recording.

C. Exclusion of Hearsay

[32] Wilderness also contends that the trial court abused its discretion when it

admitted selective portions of his statements to law enforcement while

simultaneously excluding related portions as self-serving hearsay. He claims

that he was improperly denied the ability to present his full statement to police

made outside of his house, his full police interview, and his full 911 call.

Wilderness asserts that by excluding these statements and admitting only

selective portions, the testimony misled jury to believe that he coldly and

callously shot his son and left him to die with no contemporaneous explanation

and that the evidence he sought to admit would have corrected that

misperception. Wilderness further argues that the exclusion of the statements

was not harmless error because the excluded statements would have impeached

the law enforcement officers and were closely related to the controlling issue of

whether he acted in self-defense.

[33] “Generally, a defendant who does not testify cannot introduce exculpatory

statements made outside of court in order to enhance his credibility at trial.”

Sweeney v. State, 704 N.E.2d 86, 110 (Ind. 1998), cert. denied, 527 U.S. 1035

(1999). However, under the doctrine of completeness, “‘when one party

introduces part of a conversation or document, [the] opposing party is generally

entitled to have the entire conversation or entire instrument placed into

evidence.’” Id. (quoting McElroy v. State, 553 N.E.2d 835, 839 (Ind.1990)). The Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 19 of 36 remainder of the statement is subject to the general rules of admissibility, and

any portions found immaterial, irrelevant, or prejudicial must be redacted. Id.

The doctrine of completeness applies even for self-serving hearsay statements.

McElroy, 553 N.E.2d at 839. The trial court is not required to admit remaining

portions of the statement “that are neither explanatory nor relevant to the

portions already introduced.” Barnett v. State, 916 N.E.2d 280, 286 (Ind. Ct.

App. 2009), trans. denied.

[34] Initially, we note that Wilderness has waived a portion of his argument. When

objecting to the trial court, he raised no claim that either his statement outside

his residence to law enforcement or his police interview should be admitted

under the doctrine of completeness. Tr. Vol. 4 at 125-26; Tr. Vol. 5 at 175-77.

As a general rule, a party may not present an argument or issue on appeal

unless the party raised that argument or issue before the trial court; in such

circumstances the argument is waived. Shorter v. State, 144 N.E.3d 829, 841

(Ind. Ct. App. 2020), trans. denied. If Wilderness had raised this issue to the trial

court, the State would have had the opportunity to address whether the

admitted portions of those statements were misleading without the excluded

portions.

[35] Further, Wilderness failed to make an offer of proof regarding the omitted

portions of his interview with police and 911 calls. Tr. Vol. 5 at 171-78. In

order to preserve the exclusion of evidence for appellate review, a defendant

must make an offer of proof. Fowler v. State, 929 N.E.2d 875, 881 (Ind. Ct. App.

2010), trans. denied. The purpose of an offer of proof is to convey the point of

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 20 of 36 the witness’s testimony and provide the trial judge the opportunity to reconsider

the evidentiary ruling. State v. Wilson, 836 N.E.2d 407, 409 (Ind. 2005). To

accomplish these two purposes, an offer of proof must be sufficiently specific to

allow the trial court to determine whether the evidence is admissible and to

allow an appellate court to review the correctness of the trial court’s ruling and

whether any error was prejudicial. Id. Wilderness argues that the 911 call was

sufficiently preserved because the excluded evidence was apparent from the

context. However, the evidence presented from the 911 call -- that Wilderness

admitted to shooting Junior, that Junior was having trouble breathing, and that

Wilderness was not willing to perform CPR -- do not provide any context as to

what was contained in the rest of the over five-minute phone call. Tr. Vol. 5 at

171-74, 197.

[36] Waiver notwithstanding, Wilderness has not shown that the excluded evidence

was otherwise admissible and relevant to explain the portions already

introduced. “In determining what portion of a statement should be admitted,

the trial court should consider whether ‘(1) it explains the admitted evidence,

(2) places the admitted evidence in context, (3) avoids misleading the jury, and

(4) insures fair and impartial understanding of the evidence.’” Lewis v. State,

754 N.E.2d 603, 607 (Ind. Ct. App. 2001) (quoting United States v. Li, 55 F.3d

325, 330 (7th Cir. 1995)), trans. denied. At trial, Wilderness argued it was “just

not fair to let the State choose and pick” what parts of the 911 call to present

testimony on, but he did not argue to the trial court that the jury needed the

remainder of the 911 call to understand the testimony admitted or that the jury

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 21 of 36 would be misled without the full recording. Tr. Vol. 5 at 173. Because

Wilderness did not make any claim at trial that the remainder of the 911

recording was necessary to understand and not be misled by the admitted

evidence, the trial court was within its discretion to deny his request for

admission of the statements under the doctrine of completeness.

[37] Even if the trial court abused its discretion, any error was harmless because

Wilderness testified at trial and was able to testify regarding his own statements.

See McElroy, 553 N.E.2d at 839-40 (finding that even though the trial court erred

in preventing the defendant from cross-examining an officer regarding certain

self-serving statements such error was harmless because the defendant was able

to present his recollection of the interrogation during his testimony).

Wilderness testified at trial and was able to tell his version of the entire matter,

including explaining what he told the 911 operator during the call and the

statements he made to the police during his statement and subsequent

interview. On appeal, Wilderness argues that he should have been allowed to

use the self-serving hearsay because it would have bolstered his claim of self-

defense. Appellant’s Br. at 43. However, if Wilderness wanted to present the

previously excluded evidence after he testified because of its relevance to his

claim of self-defense, he could have offered that as an evidentiary basis for its

admission at that time. We conclude that Wilderness had not shown that the

trial court erred when it excluded the challenged evidence.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 22 of 36 II. Mistrial [38] Wilderness also contends that the trial court abused its discretion when it

denied his request for a mistrial after the jury was exposed to previously

excluded evidence that he pointed a gun at Patricia. He asserts that a mistrial

should have been granted because the “prejudicial and persuasive effect of the

excluded testimony was enormous” and that there was a high risk that the

evidence was misused as propensity information. Appellant’s Br. at 30. He

further maintains that the evidence allowed the jury to make a logical inference

that he pointed the gun at Patricia and, therefore, had the propensity to pull his

gun during verbal disputes with his family. In addition, Wilderness argues that

the trial court’s admonishment was not sufficient to protect him from peril. He

claims that the record showed that the jury did not follow the trial court’s

admonishment because the questions submitted by the jury that dealt entirely

with Wilderness’s propensity to make threats.

[39] “We review a trial court’s decision to deny a mistrial for abuse of discretion

because the trial court is in ‘the best position to gauge the surrounding

circumstances of an event and its impact on the jury.’” Cherry v. State, 971

N.E.2d 726, 732 (Ind. Ct. App. 2012) (quoting McManus v. State, 814 N.E.2d

253, 260 (Ind. 2004), cert. denied, 546 U.S. 831 (2005)), trans. denied. A mistrial

is appropriate only when the questioned conduct is “so prejudicial and

inflammatory that [the defendant] was placed in a position of grave peril to

which he should not have been subjected.” Id. (citing Mickens v. State, 742

N.E.2d 927, 929 (Ind. 2001)). The gravity of the peril is measured by the

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 23 of 36 conduct’s probable persuasive effect on the jury. Id. The declaration of a

mistrial is an extreme action which is warranted only when no other recourse

could remedy the perilous situation. Pavey v. State, 764 N.E.2d 692, 698 (Ind.

Ct. App. 2002), trans. denied.

[40] When faced with a circumstance that a defendant believes might warrant a

mistrial, generally the correct procedure is to request an admonishment. Isom v.

State, 31 N.E.3d 469, 482 (Ind. 2015), cert. denied, 136 S. Ct. 1161 (2016). If

counsel is unsatisfied with the admonishment or it is obvious that the

admonishment will not be sufficient to cure the error, then counsel may move

for mistrial. Id. A “failure to request an admonishment or move for a mistrial

results in waiver of the issue.” Id. (emphasis in original). In essence “waiver

occurs where there was neither a request for admonishment nor a motion for

mistrial.” Id. (emphasis in original).

[41] In the present case, during the hearing about the January incident, the trial

court excluded any mention of Wilderness placing a gun to anyone’s head. Tr.

Vol. 5 at 94-95. The trial court further told the State to instruct its witnesses

concerning the exclusion of this testimony. Id. at 96. During cross

examination of Marisa, however, the following exchange occurred:

[DEFENSE COUNSEL]: Okay. So in June of 2018 you testified under oath that you did not remember the conversation, right?

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 24 of 36 [MARISA]: The topic was about the divorce. I do not remember what the discussion was that led up to my father getting up and putting a gun in my mother’s face.

Id. at 144-45. Defense counsel then asked to approach the bench and moved for

mistrial on the basis of Marisa’s answer. Id. at 145. The trial court denied the

motion and instead gave the following admonishment to the jury:

The last comment by the witness has nothing to do with our -- our case. And you’re admonished to disregard it and it should play no role in your discussion at the end of the trial and certainly the ultimate issue on whether, you know, this event occurred or how it occurred. So I admonish you, I inform, you that you are to disregard that last comment by the witness. It should not enter into your discussions, as we move forward with this trial. Keep this in mind.

Id. at 147. Additionally, the jury received a specific instruction at the beginning

of the trial to not consider stricken evidence:

During the trial, the court may rule that certain questions may not be answered and/or that certain exhibits may not be allowed into evidence. You must not concern yourselves with the reasons for the rulings. The court’s rulings are strictly controlled by law. Occasionally, the court may strike evidence from the record after you have already seen or heard it. You must not consider such evidence in making your decision. Your verdict should be based only on the evidence admitted and the instructions on the law. Nothing that the court says or does is intended to recommend what facts or what verdict you should find.

Appellant’s App. Vol. II at 135.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 25 of 36 [42] Wilderness was not subjected to grave peril because of the single reference to

him pointing a gun during the January incident. The comment by Marisa was

not intentionally presented by the State but, instead, occurred during cross-

examination despite a previous warning from the State to its witnesses to not

mention Wilderness pointing a gun at anyone. Tr. Vol. 5 at 144-46. See Carter v.

State, 686 N.E.2d 834, 836 (Ind. 1997) (whether the evidence was intentionally

injected or came in inadvertently is a relevant factor in analyzing whether

testimony of prior acts warrants a mistrial). Any peril was immediately

addressed when the trial court admonished the jury not to consider the

testimony in their determination of the ultimate issue. This admonishment

coupled with the trial court’s preliminary instruction to the jury to not consider

stricken evidence cured any error in the inadvertent comment by Marisa. See

Lucio v. State, 907 N.E.2d 1008, 1011 (finding that trial court did not abuse its

discretion in denying a motion for mistrial after the jury heard testimony that

the defendant had been previously incarcerated because the admonition was

presumed to cure any error and the statement was inadvertent, and only a

minor part of the evidence against the defendant).

[43] Although Wilderness concedes that the admonishment would normally be

sufficient to cure any error, he alleges the admonishment here was ineffective

because a juror submitted a question regarding whether Wilderness had “ever

pulled his gun on anyone during a verbal dispute before.” Appellant Br. at 31

(citing Ct.’s Ex 3). However, the mistrial issue was about Marissa violating a

motion in limine by testifying that Wilderness pointed a gun. The trial court

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 26 of 36 had previously allowed certain 404(b) evidence to include testimony that

Wilderness had brandished a gun during the January incident. Tr. Vol. 5 at 95-

96. “Pulling” a gun during the January incident was not part of the trial court’s

order -- only pointing the gun at anyone. Based on this, the juror’s question did

not show that the trial court’s admonishment was ineffective or that Wilderness

was placed in such grave peril that a mistrial was necessary. The trial court did

not abuse its discretion when it denied Wilderness’s request for a mistrial.

III. Jury Instructions [44] Wilderness argues that the trial court committed fundamental error in

instructing the jury regarding self-defense. Specifically, he contends that Final

Instructions 3 and 13 were “incorrect statements of law that, in the context of

all relevant information, misled the jury as to a correct understanding of the law

of self-defense.” Appellant’s Br. at 45. As to Final Instruction 3, Wilderness

alleges that it failed to inform the jury that before they could convict him of

murder, the State must also prove beyond a reasonable doubt that he did not act

in self-defense. He maintains that Final Instruction 3, which contained the

elements of murder, should have further required the jury to find that the State

disproved self-defense beyond a reasonable doubt. As to Final Instruction 13,

Wilderness asserts that it was an incorrect statement of law because it only

instructed the jury that the defendant may use self-defense where it is

“necessary to do so to protect his life or to protect his person from great bodily

harm.” Appellant’s App. Vol. II at 156. He claims the instruction was erroneous

because “great bodily harm” was not broad enough to encompass Indiana’s

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 27 of 36 statutory self-defense, which allows a person to use lethal force to prevent the

commission of any forcible felony. Appellant’s Br. at 47 (citing Ind. Code § 35-

41-3-2(c)(2)).

[45] The manner of instructing a jury is left to the sound discretion of the trial court.

Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied. We review

the trial court’s decision only for an abuse of that discretion. Id. Wilderness

did not object to the jury instructions given by the trial court. Failure to object

to a jury instruction results in waiver on appeal, unless giving the instruction

was fundamental error. Barthalow v. State, 119 N.E.3d 204, 211 (Ind. Ct. App.

2019). “An error may be fundamental and thus not subject to waiver, if it is a

‘substantial blatant violation of basic principles.’” Id. (quoting Moreland v. State,

701 N.E.2d 288, 294 (Ind. Ct. App. 1998)). The error must be so prejudicial to

the defendant’s rights as to make a fair trial impossible. Id. “This exception to

the general rule requiring a contemporaneous objection is narrow, providing

relief only in ‘egregious circumstances’ that made a fair trial impossible.”

Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016).

[46] In considering a claim of fundamental error with respect to jury instructions, we

look to the instructions as a whole to determine if they were adequate. Munford

v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010). When determining whether a

defendant suffered a due process violation based on an incorrect jury

instruction, we look not to the erroneous instruction in isolation, but in the

context of all relevant information given to the jury, including closing

argument, and other instructions. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 28 of 36 When all information, as a whole, does not mislead the jury as to the correct

understanding of the law, there is no fundamental error. Boesch v. State, 778

N.E.2d 1276, 1279 (Ind. 2002).

[47] Wilderness first argues that Final Instruction 3, which informed the jury of the

elements of murder and that these elements must be proven beyond a

reasonable doubt, was erroneous because it should have further included

language requiring the jury to find that the State disproved self-defense beyond

a reasonable doubt. However, Wilderness cites no authority that an instruction

on the elements of murder is fundamentally erroneous if it does not address the

State’s burden to disprove self-defense. He cites to cases which involved

instructions for voluntary manslaughter and which found error where the

instructions misstated the law by improperly requiring the State to prove,

instead of disprove, sudden heat, Eichelberger v. State, 852 N.E.2d 631, 639 (Ind.

Ct. App. 2006), trans. denied, or by only allowing consideration of voluntary

manslaughter if the defendant is found not guilty of murder, Roberson v. State,

982 N.E.2d 452, 460 (Ind. Ct. App. 2013). However, voluntary manslaughter

is not a defense to murder; it is a separate offense which includes all the

elements of murder and additionally requires the State to disprove sudden heat.

See Ind. Code § 35-42-1-1; Ind. Code § 35-41-1-3.

[48] In looking at the instructions as a whole, they correctly stated the law as the

jury was specifically informed in Final Instruction 12 that “[t]he State ha[d] the

burden of disproving the defense of self-defense beyond a reasonable doubt”

and before the jury could find “the defendant guilty of the crime charged, you

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 29 of 36 must find beyond a reasonable doubt that the defendant was not acting in self-

defense.” Appellant’s App. Vol. II at 155. Nothing in Final Instruction 3

suggested that self-defense was not available. Id. at 146. Because we do not

find that the instructions as a whole misstated the law or otherwise misled the

jury, Wilderness has not shown that Final Instruction 3 amounted to

fundamental error. Munford, 923 N.E.2d at 14.3

[49] Wilderness next argues that the trial court committed fundamental error by

instructing the jury in Final Instruction 13 that a defendant may only use lethal

force as self-defense to “protect himself from an assailant” where he honestly

and reasonably believes that the force is necessary “to protect his life or to

protect his person from great bodily harm.” Appellant’s App. Vol. II at 156. The

language in the instruction, including the challenged “great bodily harm”

language, was a correct statement of law based on precedent from the Indiana

Supreme Court: “In order to prevail on a claim of self-defense a defendant

must show: (1) he was in a place where he had a right to be; (2) he acted

without fault; and (3) he had a reasonable fear of death or great bodily harm.”

Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011); see also Randolph v. State,

755 N.E.2d 572, 576 (Ind. 2001); Wallace v. State, 725 N.E.2d 837, 840 (Ind.

3 Although Wilderness is correct that that the commentary introducing Chapter 10 of Indiana’s Pattern Criminal Jury Instructions does state that an element instruction should be modified to include a defense when a defense is properly raised, the pattern instructions “are not formally approved” for use. Campbell v. State, 19 N.E.3d 271, 275 n.3 (Ind. 2014).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 30 of 36 2000); Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995); Wade v. State, 482

N.E.2d 704, 706 (Ind. 1985).

[50] Wilderness, however, maintains that Final Instruction 13 was erroneous

because “great bodily harm” does not encompass language in Indiana’s self-

defense statute, which allows a person to use lethal force to prevent the

commission of any forcible felony. See Ind. Code § 35-41-3-2(c). Although

Final Instruction 13 does not contain the language concerning lethal force, the

jury was also specifically instructed of the statutory right to use such force in

Final Instruction 12, which stated in pertinent part, “a person is justified in

using deadly force and does not have a duty to retreat if the person reasonably

believes that the force is necessary to prevent serious bodily injury to the person

or a third person or the commission of a forcible felony.” Appellant’s App. Vol. II

at 155. Therefore, reading the instructions as a whole, we do not find that the

instructions given by the trial court misstated the law or otherwise misled the

jury, and Wilderness has not shown that Final Instruction 13 amounted to

fundamental error. Munford, 923 N.E.2d at 14. We conclude that the trial

court did not commit fundamental error in instructing the jury.

IV. Prosecutorial Misconduct [51] Wilderness contends that, in its rebuttal closing argument, the State committed

prosecutorial misconduct, which rose to the level of fundamental error.

Specifically, he argues that a statement made by the State was an evidentiary

harpoon and placed prejudicial facts in evidence that had been previously

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 31 of 36 excluded. Wilderness further asserts that this misconduct rose to the level of

fundamental error as it subjected him to grave peril because it invited the jury to

infer from facts not in evidence that Wilderness was “a lawbreaker who would

then lie about it” and for the jury to disregard Wilderness’s testimony regarding

his claims of self-defense on the basis of a criminal behavior for which he was

not charged and for which no evidence was produced. Appellant’s Br. at 52.

[52] 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.” Ryan, 9 N.E.3d at 667 (quoting Castillo v. State, 974 N.E.2d 458,

468 (Ind. 2012)). “A prosecutor has the duty to present a persuasive final

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

misconduct.” Id. (citing 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. Id. 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. Id. To

preserve a claim of prosecutorial misconduct, the defendant must request an

admonishment to the jury at the time the alleged misconduct occurs, and if

further relief is desired, move for a mistrial. Id.

[53] However, Wilderness did not object or request an admonishment as to the

challenged statement by the State. Where a claim of prosecutorial misconduct

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 32 of 36 has not been properly preserved, our standard for review is different from that

of a properly preserved claim. Cooper v. State, 854 N.E.2d 831, 835 (Ind. Ct.

App. 2006). In such circumstances, the defendant must establish not only the

grounds for the misconduct but also the additional grounds for fundamental

error. Ryan, 9 N.E.3d at 667-68. Fundamental error is an extremely narrow

exception that allows a defendant to avoid waiver of an issue. Cooper, 854

N.E.2d at 835. In establishing fundamental error, 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, 9 N.E.3d at 668. In other

words, the defendant must show that, under the circumstances, the trial judge

erred in not sua sponte raising the issue because alleged errors (a) “constitute

clearly blatant violations of basic and elementary principles of due process” and

(b) “present an undeniable and substantial potential for harm.” Id. (citations

omitted). “Fundamental error is meant to permit appellate courts a means to

correct the most egregious and blatant trial errors that otherwise would have

been procedurally barred, not to provide a second bite at the apple for defense

counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Id.

[54] Here, the statement challenged by Wilderness occurred during the State’s

rebuttal closing argument when the prosecutor stated, “Let’s talk about

credibility. Defendant’s own words. He says he doesn’t carry firearms where

he isn’t allowed. And I pose the question, ‘Can non-law enforcement officials

carry firearms at a high school basketball game?’ Can they?” Tr. Vol. 6 at 65-

66. In making this statement, the prosecutor was challenging Wilderness’s

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 33 of 36 credibility because Wilderness testified that he only carried his guns where guns

are allowed but also admitted during his direct testimony that he brought two

firearms to a high school basketball game on the night of the murder:

Q: How long were you at the game, [Wilderness]?

A: About a good hour and ten minutes.

Q: . . . do you have permit to carry firearms?

A: Yes, I do.

Q: Did you have firearms with you, when you went to the game?

A: Yes, I did.

Tr. Vol. 5 at 222, 244-45.

[55] “‘It is proper for a prosecutor to argue both law and fact during final argument

and propound conclusions based upon his analysis of the evidence.’” Neville v.

State, 976 N.E.2d 1252, 1261 (Ind. Ct. App. 2012) (quoting Steinberg v. State,

941 N.E.2d 515, 531 (Ind. Ct. App. 2011), trans. denied), trans. denied.

Prosecutors may not argue facts not in evidence. Id. (citing Spangler v. State, 498

N.E.2d 1206, 1209 (Ind. 1986)). In Oldham v. State, this court found that final

argument alleging a defendant committed a crime “not charged and [that] is

unsupported by the evidence subjects a defendant to such grave peril as to

entitle him to reversal and to a new trial.” 779 N.E.2d 1162, 1176 (Ind. Ct.

App. 2002), trans. denied. Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 34 of 36 [56] Wilderness claims the challenged statement by the prosecutor was a

misstatement of the record because the prosecutor never asked about the

legality of guns at schools and was specifically denied a request to ask a police

officer about the legality of carrying firearms in a high school basketball game.

Tr. Vol. 6 at 18. However, here, no misconduct occurred because the

prosecutor’s challenged statement was based on the evidence at trial. The

prosecutor did not misstate the evidence and, instead, asked the jury to rely on

its own common knowledge that schools are gun-free zones. Id. at 65-66. The

present case is distinguishable from Oldham, where the argument of other bad

acts was “unsupported by the evidence[.]” 779 N.E.2d at 1176. Here, the

prosecutor raised an issue of credibility based on Wilderness’s testimony that he

had his firearms with him when he attended a high school basketball game. Tr.

Vol. 5 at 222. Wilderness also asserts that the prosecutor’s argument was

improper because it ignored that firearms may be legally secured in a vehicle on

school property. See Ind. Code § 35-47-9-2(b). However, Wilderness’s

testimony did not indicate that such precautions were taken and instead only

established that he had the firearms with him when he went to the game. Tr.

Vol. 5 at 222.

[57] Even if the prosecutor’s statements constituted misconduct, fundamental error

still did not occur because the misconduct was not so prejudicial to

Wilderness’s rights as to “make a fair trial impossible.” Ryan, 9 N.E.3d at 668.

This case did not involve statements concerning prior misconduct that was not

supported by the evidence presented as occurred in Oldham. See 779 N.E.2d at

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 35 of 36 1176. Here, the prosecutor limited his argument to the facts presented at trial

and asked the jury to draw a conclusion on credibility from those facts. We

conclude that Wilderness has not proven that the State committed prosecutorial

misconduct that rose to the level of fundamental error.

V. Cumulative Error [58] Wilderness argues that the cumulative effect of the above errors, as well as

other errors found but not adequately preserved in the record, rendered his trial

fundamentally unfair. A defendant is entitled to a fair trial, not a perfect trial.

Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014). The Indiana Supreme Court has

“been willing to assume, ‘for the sake of argument, that under some

circumstances the cumulative effect of trial errors may warrant reversal even if

each might be deemed harmless in isolation, in this case it is clear in light of the

evidence of guilt that no prejudice resulted from any of the erroneous rulings,

individually or cumulatively.’” Id. (quoting Hubbell v. State, 754 N.E.2d 884,

895 (Ind. 2001)). Here, we do not find error, much less errors that resulted in

prejudice. Accordingly, reversal is not warranted.

[59] Affirmed.

Pyle, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-88 | August 24, 2020 Page 36 of 36