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Date: 01-29-2020

Case Style:

Joshua A. Flores v. State of Indiana

Case Number: 19A-CR-2006

Judge: Cale J. Bradford

Court: COURT OF APPEALS OF INDIANA

Plaintiff's Attorney: Curtis T. Hill, Jr.
Attorney General of Indiana

Jesse R. Drum
Supervising Deputy Attorney General

Defendant's Attorney:

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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 3 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 4 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 5 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.

Outcome: The judgment of the trial court is affirmed.

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