Joshua A. Flores v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 24, 2020
• Docket: 19A-CR-2006
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jan 24 2020, 10:18 am the defense of res judicata, collateral estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark D. Altenhof Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana

Jesse R. Drum Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joshua A. Flores, January 24, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2006 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Kristine Osterday, Appellee-Plaintiff. Judge Trial Court Cause No. 20D01-1805-F5-127

Bradford, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2006| January 24, 2020 Page 1 of 6 Case Summary [1] In May of 2018, Joshua Flores was charged with one count of Level 5 felony

domestic battery resulting in serious bodily injury and two counts of Class A

misdemeanor domestic battery after physically harming his girlfriend Breann

Foster. In July of 2019, after a bench trial, Flores was found guilty as charged.

Flores contends that the State committed prosecutorial misconduct. Because we

disagree, we affirm.

Facts and Procedural History [2] Foster and Flores were in a romantic relationship, living together with Flores’s

mother. In October of 2017, after accusing Foster of having sex with another

man, Flores shoved Foster and punched her in the nose, fracturing it. Foster

moved out of Flores’s residence but spent the night with him in November of

2017. The next morning, Flores again accused Foster of having sex with

another person. Flores pulled Foster to the floor by her hair and began kicking

her to the point where she was “seeing colors … [and] felt like [she] was going

to pass out.” Tr. Vol. II p. 176. At some point, Foster ran to a residence across

the street but, before the resident answered, Flores grabbed Foster and yanked

her to the ground.

[3] On May 3, 2018, the State charged Flores with one count of Level 5 felony

domestic battery resulting in serious bodily injury and two counts of Class A

misdemeanor domestic battery. A bench trial was held on July 16, 2019, after

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2006| January 24, 2020 Page 2 of 6 which Flores was found guilty as charged. On August 19, 2019, the trial court

sentenced Flores to an aggregate sentence of six years of incarceration with one

suspended to probation.

Discussion and Decision [4] Flores contends that the State committed prosecutorial misconduct at trial by

repeatedly eliciting irrelevant evidence that was highly prejudicial to him.

Specifically, Flores contends that prosecutorial misconduct occurred when the

prosecutor analogized the facts of present case to other domestic violence cases

in opening and closing arguments and elicited evidence about Flores’s power

and control over Foster, namely, (1) Foster’s grandmother’s testimony

regarding Foster’s behavioral changes while dating Flores, (2) Foster’s

testimony regarding Flores having been previously incarcerated, (3) Foster

showing the trial court a large tattoo of Flores’s name across her chest, and (4)

the prosecutor discussing power and control during closing argument. Because

Flores failed to raise this claim in the trial court, we review it for fundamental

error.

[5] We review a claim of prosecutorial misconduct by determining (1) whether

misconduct occurred, and if so, (2) whether the misconduct, under all

circumstances, placed the defendant in a position of grave peril to which he

would not have been subjected otherwise. Ryan v. State, 9 N.E.3d 663, 667 (Ind.

2014). “To preserve a claim of prosecutorial misconduct, the defendant must—

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2006| January 24, 2020 Page 3 of 6 at the time the alleged misconduct occurs—request an admonishment to the

jury, and if further relief is desired, move for a mistrial.” Id.

Our standard of review is different where a claim of prosecutorial misconduct has been procedurally defaulted for failure to properly raise the claim in the trial court, that is, waived for failure to preserve the claim of error. The defendant must establish not only the grounds for prosecutorial misconduct but must also establish that the prosecutorial misconduct constituted fundamental error. Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant’s rights as to make a fair trial impossible. In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors (a) constitute clearly blatant violations of basic and elementary principles of due process and (b) present and undeniable and substantial potential for harm. The element of such harm is not established by the fact of ultimate conviction but rather depends upon whether [the defendant’s] right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled.

Id. at 667–68 (internal quotations and 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 defendant counsel who ignorantly,

carelessly, or strategically fail to preserve an error.” Id. at 668. See Baer v. State,

942 N.E.2d 80, 99 (Ind. 2011) (finding that it is “highly unlikely” for a claim of

fundamental error in regards to prosecutorial misconduct to prevail).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2006| January 24, 2020 Page 4 of 6 [6] Here, there is no evidence to suggest that the trial court considered this

allegedly inappropriate evidence when rendering its judgment, and we will not

presume that it did. See Griffin v. State, 698 N.E.2d 1261 (Ind. Ct. App. 1998)

(“[I]n criminal bench trials, we presume that the [trial] court disregarded

inadmissible testimony and rendered its decision solely on the basis of relevant

and probative evidence.”), trans. denied. In fact, the trial court made clear after

one of Flores’s objections that just because evidence was initially allowed did

not mean it would ultimately be considered, stating,

I believe that it’s potentially relevant and depending on how it’s developed I will give it whatever weight I feel that it’s entitled to receive. Certainly, I guess this is one of the advantages of having a bench trial as opposed to a jury trial that the State’s still going to have to connect the dots.

Tr. Vol. II p. 75. Moreover, the allegedly inappropriate evidence aside, the

evidence of Flores’s guilt is overwhelming. Foster testified in great detail about

each instance of domestic battery she endured, testimony which the trial court

was entitled to believe and did. Foster’s grandmother also testified that in

October of 2017, a few days after Flores punched Foster, she observed that

Foster had two black eyes and an enlarged nose. Moreover, there were medical

records indicating that Foster had suffered a facture to her nasal bone.

Therefore, we conclude that the alleged errors are not so prejudicial to Flores’s

rights to make a fair trial impossible. Flores has failed to establish fundamental

[7] The judgment of the trial court is affirmed.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2006| January 24, 2020 Page 5 of 6 Robb, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2006| January 24, 2020 Page 6 of 6