[Copyrighted Material Omitted]
Appeal from the Marion Superior Court, No. 49G02-1110-FC-77449. The Honorable Robert Altice, Judge. On Transfer from the Indiana Court of Appeals, No. 49A02-1211-CR-932.
ATTORNEYS FOR APPELLANT: Deborah B. Markisohn, Ruth A. Johnson, Marion County Public Defender Agency, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Andrew A. Kobe, Deputy Attorneys General, Indianapolis, Indiana; Gillian D. Keiffner, Marion County Deputy Prosecutor, Indianapolis, Indiana.
Dickson, Chief Justice.
David, Massa, and Rush, JJ., concur. Rucker, J. concurs in result.
Dickson, Chief Justice.
Following a jury trial, Bruce Ryan was convicted on two of three counts of Class C felony Sexual Misconduct with a Minor. Appealing his convictions, the defendant argues that several statements made by the State during closing argument--statements to which he raised no objection at trial--constitute prosecutorial misconduct and that the cumulative effect of such misconduct rises to the level of fundamental error, warranting reversal of his convictions. The Court of Appeals agreed and reversed his convictions.
Ryan v. State, 992 N.E.2d 776, 791 (Ind.Ct.App. 2013). We granted transfer, thereby vacating the opinion of the Court of Appeals, and we now affirm the trial court, concluding that some of the prosecutor's conduct was improper, but because of the absence of any timely objection by the defendant, reversal is not warranted.
During the summer and fall of 2011, forty-three year old Bruce Ryan, an eighth-grade science teacher, engaged in a relationship with a fifteen year old freshman student (" FS" ) at the school where the defendant taught. FS had known the defendant since she was eleven years old, had a " crush" on the defendant for several years, and had recently completed the defendant's eighth-grade physics class. During
the summer of 2011, FS attended a science club with the defendant at the school--often the only student in attendance. At some point, the defendant and FS began sending private messages to each other every night using Google Plus, a social networking site. Initially, the purpose of their chats was to discuss the science club, but the content became more personal and intimate. By the end of the summer, the defendant and FS were hugging and kissing open-mouthed with their tongues in a storeroom in the back of the defendant's classroom. During this time period, they both told each other that they loved and missed each other, and the defendant also gave FS presents. Late October 2001, FS's parents discovered her online communications with the defendant and notified the school principal and subsequently the police. The State charged the defendant with three counts of Class C felony Sexual Misconduct with a Minor, alleging misconduct on various dates.
On appeal, the defendant challenges his convictions on grounds of prosecutorial misconduct, pointing to various remarks made by the deputy prosecutor during closing arguments. The defendant did not raise any objection to nor seek relief from the prosecutor's remarks during trial, but to avoid procedural default he contends these remarks constituted fundamental error. On transfer, the State argues that fundamental error did not occur.
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.
Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), quoted inCastillo 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.
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. 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."
Cooper, 854 N.E.2d at 835 (emphasis added) (citations omitted). To preserve a claim of prosecutorial ...