Joshua Andrew Jones v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 30 2020, 9:11 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marielena Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Steven Hosler
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Andrew Jones, October 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1108
v. Appeal from the St Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Plaintiff. Marnocha, Judge
Trial Court Cause No.
71D02-1907-F6-759
Tavitas, Judge.
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Case Summary
[1] Joshua Andrew Jones appeals his conviction for domestic battery, a Class A
misdemeanor. We affirm.
Issue
[2] Jones raises a single issue on appeal—namely, whether prosecutorial
misconduct warrants the reversal of his conviction.
Facts
[3] On the evening of July 21, 2019, Jones and his then-girlfriend, Samantha Pohl,
met Marc and Lisa McCoy at the Fire Rock restaurant in South Bend, Indiana.
The couples socialized for approximately two hours, and Pohl drank heavily.
Jones and Pohl subsequently returned to Jones’ house, where they argued. The
heated verbal argument spilled outside the house. At one point, Jones
telephoned Pohl’s brother, 1 who declined to pick Pohl up and drive her home. 2
[4] Pohl suffered a stroke fifteen years before the relevant period. The right side of
Pohl’s body is paralyzed, and she wears a leg brace. As a result, Pohl has
impaired mobility. At the height of the argument, Pohl walked away from
Jones’ premises, which was a laborious task, given Pohl’s disability. As Pohl
walked away from Jones, Jones “pushed [Pohl] down a lot.” Tr. Vol. II p. 21.
1
Pohl’s brother, whose surname does not appear in the record, is also named Marc.
2
Pohl does not drive.
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In all, Jones pushed Pohl down at least four times. In an alley near Jones’
house, Jones again shoved Pohl to the ground. Jones then climbed on top of
Pohl, yanked a necklace from her throat, and struck her repeatedly. Pohl
screamed for help, cried, and urinated on herself during the attack.
[5] From a nearby house, two teenagers “hear[d] yelling and screaming” and
decided to investigate. Id. at 87. In an alley near Jones’ house, the teenagers
saw Jones repeatedly “hitting [Pohl] with both hands” and “throwing her on
the ground[.]” Id. at 90, 111. The teenagers alerted Corporal Dan Banicki of
the St. Joseph County Police Department, who lived nearby. Corporal Banicki
called for backup and responded to the scene.
[6] On July 26, 2019, the State charged Jones with domestic battery, a Class A
misdemeanor, and strangulation, a Level 6 felony. The trial court held Jones’
jury trial on February 27 and 28, 2020. In preliminary instructions to the jury,
the trial court repeatedly advised that the State bore the burden of proof
regarding the charged offenses. The trial court also instructed the jury as
follows:
Under the law of the State of Indiana, a person charged with a
crime is presumed to be innocent. To overcome this
presumption of innocence, the State must prove the defendant
guilty of each essential element of the crime or crimes charged
beyond a reasonable doubt. This presumption of innocence
continues in favor of the defendant throughout the trial. You
should fit the evidence to the presumption the defendant is
innocent if you can reasonably do so.
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Because he is presumed to be innocent, the defendant is not required to
present any evidence to prove his innocence or to provide any
explanation. If, at the end of the trial, you have reasonable doubt
concerning the defendant’s guilt as to any charge or charges, you
must find him not guilty as to that charge or those charges.
Id. at 7 (emphasis added).
[7] Jones testified in his own defense. Most relevantly, Jones testified that: (1) Pohl
drank to excess earlier in the evening and became aggressive; (2) Pohl made
“two assaults on [Jones] and [a] third attempt”; and (3) Pohl’s brother was on
the phone with Jones during Pohl’s “confrontation[s.]” Id. at 150, 152. On
cross-examination of Jones, the following colloquy ensued:
Q. Now, your friend Marc [McCoy] came yesterday specifically
to testify about [Pohl]’s behavior before all this happened; is that
right?
A. Yes.
Q. And is [Pohl’s] brother going to testify next about the phone
calls and her hollering?
A. I don’t understand the question.
Q. Well, you testified that [Pohl’s] brother was also a witness to
things she said on the phone and –
A. Absolutely, he was.
Q. So is he testifying next?
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A. Not that I’m aware of, unfortunately.
Id. at 154. Jones did not object to the State’s line of questioning.
[8] At the close of the evidence, the trial court gave its final jury instructions,
wherein the trial court reiterated that: (1) the State bore the burden of proof; (2)
Jones “[wa]s presumed to be innocent”; and (3) Jones “[wa]s not required to
present any evidence to prove his innocence or to provide any explanation.” Id.
at 180. The jury found Jones guilty of domestic battery and not guilty of
strangulation. On May 20, 2020, the trial court imposed a one-year suspended
sentence, ordered Jones to serve one year of probation, and maintained an
existing no-contact order as to Pohl. Jones now appeals.
Analysis
[9] Jones alleges that prosecutorial misconduct warrants the reversal of his
conviction.
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. A
prosecutor has the duty to present a persuasive final argument
and thus placing a defendant in grave peril, by itself, is not
misconduct. “Whether a prosecutor’s argument constitutes
misconduct is measured by reference to case law and the Rules of
Professional Conduct. 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.” To
preserve a claim of prosecutorial misconduct, the defendant
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must—at the time the alleged misconduct occurs—request an
admonishment to the jury, and if further relief is desired, move
for a mistrial.
Stettler v. State, 70 N.E.3d 874, 881-82 (Ind. Ct. App. 2017) (quoting Ryan v.
State, 9 N.E.3d 663, 667 (Ind. 2014)) (internal citations omitted). This issue is
waived for Jones’ failure to object below. Washington v. State, 902 N.E.2d 280,
290 (Ind. Ct. App. 2009) (holding that a defendant who fails to object to
allegedly improper comments of a prosecutor fails to preserve any claim of
prosecutorial misconduct for appellate review).
[10] Jones attempts to circumvent waiver by alleging fundamental error. To
constitute fundamental error, prosecutorial misconduct must constitute a clearly
blatant violation of basic and elementary principles of due process, present an
undeniable and substantial potential for harm, and make a fair trial
impossible. Lainhart v. State, 916 N.E.2d 924, 931-32 (Ind. Ct. App. 2009).
[11] Specifically, Jones argues that the prosecutor committed misconduct by
commenting on Jones’ failure to call Pohl’s brother to testify on Jones’ behalf.
It is well-settled that “[i]t is improper for a prosecutor to suggest that a
defendant shoulders the burden of proof in a criminal case.” Id. at 936; see also
Wright v. State, 690 N.E.2d 1098, 1112 (“It is . . . improper to suggest . . . that
defendant has the burden of proof in a criminal case by inquiring in closing
argument why the defendant did not call a witness to testify on his behalf.”).
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[12] Additionally, however, “Indiana cases have consistently held that a
prosecutor’s improper statements concerning a defendant’s failure to present
witnesses may be cured by the trial court advising the jury that the defendant
was not required to prove his innocence or to present any evidence.” Lainhart,
916 N.E.2d at 937; see also Guy v. State, 755 N.E.2d 248, 258 (Ind. Ct. App.
2001) (holding that jury instructions are presumed to cure any improper
statements made during trial”).
[13] In Wright, after a jury convicted Wright of felony murder, conspiracy to commit
robbery, and criminal confinement, Wright argued on appeal, inter alia, that the
prosecutor improperly commented on Wright’s failure to call his girlfriend to
testify. In acknowledging the prosecutor’s error, our Supreme Court opined as
follows:
It is . . . improper to suggest, as the prosecutor did in this case,
that defendant has the burden of proof in a criminal case by
inquiring in closing argument why the defendant did not call a
witness to testify on his behalf. Nevertheless, here, the court had
preliminarily instructed the jury that defendant was presumed innocent
until proven guilty beyond a reasonable doubt, and that defendant was
not required to present any evidence or prove his innocence. The court’s
final instructions again reminded the jury that the State has the burden
of proving defendant guilty beyond a reasonable doubt. In light of
these instructions, the weight of the evidence, and the de minimis
nature of this impropriety, the prosecutor’s comment certainly
did not place defendant in a position of grave peril.
Wright, 690 N.E.2d at 1112 (citations omitted), emphasis added. Our Supreme
Court, thus, found that “reversal based on prosecutorial misconduct [wa]s not
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warranted” because the trial court’s instructions cured the error. Id. at 1111.
Such is the case here.
[14] It was improper for the prosecutor to comment upon Jones’ failure to call
Pohl’s brother to testify on Jones’ behalf. The trial court, however, cured the
prosecutor’s improper statement through its jury instructions. See Lainhart, 916
N.E.2d at 937; see also Wright, 690 N.E.2d at 1112. Both preliminarily and in
final instructions, the trial court admonished the jury that the burden of proof
rested with the State to prove Jones’ guilt beyond a reasonable doubt.
Additionally, the trial court explicitly instructed the jury that Jones “[wa]s not
required to present any evidence to prove his innocence or to provide any
explanation.” Tr. Vol. II pp. 7, 180. Based on the trial court’s instructions that
cured the improper comment and the weight of the evidence against Jones, we
do not find that prosecutorial misconduct placed Jones in grave peril. Jones
has, therefore, failed to establish fundamental error.
Conclusion
[15] The trial court cured the prosecutor’s improper comment during the trial, and
reversal of Jones’ conviction is not warranted. We affirm.
[16] Affirmed.
Kirsch, J., and Pyle, J., concur.
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