Joshua A. Flores v. State of Indiana (mem. dec.) ( 2020 )


Menu:
  • 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
    error.
    [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
    

Document Info

Docket Number: 19A-CR-2006

Filed Date: 1/24/2020

Precedential Status: Precedential

Modified Date: 1/24/2020