Opinion
No. 27A02-1011-CR-1285
08-24-2011
BRIAN E. CRIST, JR., Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : DAVID M. PAYNE Ryan & Payne Marion, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
DAVID M. PAYNE
Ryan & Payne
Marion, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE GRANT SUPERIOR COURT
The Honorable Dana J. Kenworthy, Judge Pro Tempore
Cause No. 27D02-1002-FC-21
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAKER, Judge
Appellant-defendant Brian E. Crist, Jr., appeals his conviction for Battery, a class C felony. Specifically, Crist argues that his conviction must be set aside because the prosecutor committed misconduct during final argument. Crist also argues that the trial court should have applied the doctrine of comparative fault when ordering him to make restitution. Concluding that the restitution order was proper and finding no other error, we affirm the judgment of the trial court.
Ind. Code § 35-42-2-1.
FACTS
Gloria Liscano and Zachary Rahschulte were the parents of a four-year-old girl. Although the couple's romantic relationship eventually ceased, the two remained friends. At some point, Liscano began a relationship with Crist. Crist considered Liscano as his girlfriend and posted a picture of her and her daughter on his MySpace page.
Rahschulte became angry when he learned of the posting. On February 18, 2010, Liscano, Rahschulte, and a friend, Luis Trevino, went to the casino in Anderson. Rahschulte was driving, and drank only two beers while at the casino.
Sometime before 1:00 a.m., the trio went to a bar in Marion. At some point, Liscano and Crist exchanged text messages and telephone calls. Rahschulte eventually took Liscano's phone, called Crist, and told him to remove his daughter's photo from the MySpace page.
The trio went to another bar. Although Liscano and Trevino continued to drink, Rahschulte did not because he was still the driver. When they left the bar, Crist was standing outside. He approached Rahschulte and began punching him. Although several patrons intervened and pulled the men apart, Crist continued hitting Rahschulte.
Crist was arrested, and it was subsequently determined that Rahschulte suffered a skull fracture and damage to his sinus and facial nerves that resulted in chronic sinus headaches and numbness in his face. Crist claimed that Rahschulte was the initial aggressor in the fight.
Crist was charged with battery, a class C felony, in Count I, class A misdemeanor battery in Count II, and public intoxication, a class B misdemeanor, under Count III. During final argument at Crist's jury trial that commenced on October 5, 2010, the prosecutor commented that "the self-defense defense does not apply in this situation. It doesn't matter if [Rahschulte] started the fight. Crist did not willingly withdraw from the fight." Tr. p. 304. The trial court instructed the jury on self-defense and informed the jury that counsel's arguments were not evidence.
The jury found Crist guilty on Counts I and III and acquitted him of the misdemeanor battery charge under Count II. The trial court sentenced Crist to an aggregate term of eight years of incarceration. Crist was also ordered to pay $3,248.40 in restitution to Rahschulte for hospital and medical bills. Crist now appeals.
DISCUSSION AND DECISION
I. Prosecutorial Misconduct
Crist first claims that his convictions must be set aside because the deputy prosecutor improperly commented at closing argument on Crist's self-defense claim. Specifically, Crist maintains that the deputy prosecutor's remarks during closing argument that "self-defense does not apply in this situation" deprived him of the right to assert a self-defense claim. Tr. p. 304.
In resolving this issue, we initially observe that, although Crist objected to the deputy prosecutor's comments that the doctrine of self-defense did not apply in these circumstances, he did not move for a mistrial. To preserve a claim of prosecutorial misconduct, the proper procedure is to contemporaneously object to the alleged improper argument and to request the trial court to admonish the jury. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). If the defendant is not satisfied with the admonishment, then he or she should move for a mistrial. Id. The failure to request an admonishment or move for a mistrial due to an alleged improper argument results in waiver. Id. Finally, when a claim of prosecutorial misconduct has not been properly preserved, the defendant must establish not only the grounds for the misconduct but also reasons that establish fundamental error.
As noted above, Crist objected to the deputy prosecutor's comment about the application of the self-defense doctrine. Tr. p. 304. The trial court overruled the objection and determined that it was a fair argument in rebuttal. Id. at 304. However, Crist did not request an admonishment or move for a mistrial. Thus, Crist waived the issue.
Waiver notwithstanding, we note that prosecutorial misconduct may still be found in accordance with the doctrine of fundamental error. To prove fundamental error, the defendant must establish that a fair trial is impossible or that there are clearly blatant violations of basic and elementary principles of due process presenting an undeniable and substantial potential for harm. Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009). The doctrine of fundamental error applies only when the actual or potential harm cannot be denied. Id.
In reviewing a clam of prosecutorial misconduct, we employ a two-step analysis. Reynolds v. State, 797 N.E.2d 864, 868 (Ind. Ct. App. 2003). First, we consider whether the prosecutor engaged in misconduct. Id. If so, we consider whether, given all the circumstances of the case, the misconduct placed the defendant in a position of grave peril to which he should not have been subjected. Surber v. State, 884 N.E.2d 856, 865 (Ind. Ct. App. 2008).
Counsel's closing argument may be based on any facts admitted into evidence at trial. Lambert v. State, 743 N.E.2d 719, 734 (Ind. 2001). Moreover, an attorney may argue any reasonable inference or logical conclusion that may be drawn from the evidence that is admitted at trial. Cooper, 854 N.E.2d at 835. Put another way, an attorney may argue for any logical or reasonable conclusion consistent with the attorney's theory of the case and may suggest conclusions with regard to the opposing party's theory of the case. Bennett v. State, 423 N.E.2d 588, 592 (Ind. 1981).
Here, it is apparent that the deputy prosecutor's contention about the application of the self-defense doctrine in these circumstances during closing argument was the result of his analysis of the evidence at trial. More particularly, the deputy prosecutor determined that the evidence supported the conclusion that the self-defense doctrine could not be invoked. In short, the State's evidence showed that Crist willingly engaged in the fight, started throwing punches at Rahschulte, and did not withdraw from the altercation. Tr. p. 69-70, 96-97. Because the deputy prosecutor's comments were based on his analysis of the evidence, we reject Crist's argument that he was deprived of the right to assert a self-defense claim. In short, the deputy prosecutor's comments did not amount to misconduct, and Crist's claim of fundamental error fails.
II. Restitution
Crist next argues that the trial court erred in ordering Crist to pay $3,248.40 in restitution to Rahschulte for the hospital and medical bills that were incurred. Specifically, Crist argues that the restitution award must be recalculated because the trial court was obligated to apportion damages under the doctrine of comparative fault.
In Wittl v. State, 876 N.E.2d 1136, 1138 (Ind. Ct. App. 2007), we observed that the purpose of a restitution order is to impress upon the criminal defendant the magnitude of the loss he has caused and to defray costs to the victim caused by the offense. Henderson v. State, 848 N.E.2d 341, 346 (Ind. Ct. App. 2006). An order of restitution is a matter within the sound discretion of the trial court, and we will only reverse upon a showing of an abuse of that discretion. Roach v. State, 695 N.E.2d 934, 943 (Ind. 1998). An abuse of discretion occurs if the court's decision is clearly against the logic and effects of the facts and circumstances before it. Palmer v. State, 704 N.E.2d 124, 127 (Ind. 1999).
Indiana Code section 35-50-5-3 provides in part that
[t]he court may, as a condition of probation or without placing the person on probation, order the person to make restitution to the victim of the crime, the victim's estate, or the family of a victim who is deceased. The court shall base its restitution order upon a consideration of:
(1) property damages of the victim incurred as a result of the crime, based on the actual cost of repair (or replacement if repair is inappropriate);
(2) medical and hospital costs incurred by the victim (before the date of sentencing) as a result of the crime;
(3) the cost of medical laboratory tests to determine if the crime has caused the victim to contract a disease or other medical condition;
(4) earnings lost by the victim (before the date of sentencing) as a result of the crime including earnings lost while the victim was hospitalized or participating in the investigation or trial of the crime; and
(5) funeral, burial, or cremation costs incurred by the family or estate of a homicide victim as a result of the crime.
Notwithstanding Crist's contention that the trial court should have calculated the restitution that he should pay under the Comparative Fault Act that is outlined in Indiana Code section 35-51-2 et seq., our Supreme Court has determined that the doctrine of contributory negligence is not available as a defense or an excuse in a criminal prosecution:
'Contributory negligence is not available as a defense or an excuse in a criminal prosecution; this doctrine has no place in criminal law, and it cannot in any degree purge an act which otherwise constitutes a public offense of its criminal character. Accordingly the contributory negligenceState v. Plaspohl, 239 Ind. 324, 326-27, 157 N.E.2d 579, 580-81 (1959).
of a person injured or killed by the criminal negligence of another does not relieve the latter from criminal responsibility. Further, it is ordinarily no defense that the victim of the crime . . . is punished because of the offense against society.' 22 C.J.S. Criminal Law § 52, pp. 116-117.
The reason for this rule is made evident by the facts and consequences of this particular case. It is a basic concept of our society that the life of every man is both divinely and humanly significant. Every death upon the highway is more than a statistic. It is a tragedy which affects not only the individual and his family, but all of society. And if the death results from the reckless use of the highway, the fact that the deceased joined in the reckless activity does not negate the fact of the death, nor does it assuage the loss to the family of the deceased or the community.
Reckless homicide is a crime committed against the state. Therefore, contrary to the rule in civil cases, the fact that the deceased victim was 'an active participant in the unlawful act which resulted in his death,' as stated in [the instruction], does not bar an action against another for the wrong which he has committed against the peace and dignity of the state.
In light of the above, we cannot say that the trial court had any duty to apportion restitution in accordance with the Comparative Fault Act. In our view, the principle that guides the decision that a defendant acted with criminal intent against the State continues into the realm of restitution. In accordance with the finding of criminal liability, the defendant is liable to society for his crimes and the victims should be made whole. The rules pertaining to civil suits merely regulate the settlement of disputes and do not premise themselves upon the intent to act criminally against the State. The criminal statutes exist to "preserve the public welfare and secure the fundamental rights of individuals." I. C. § 35-32-1-1(5). Thus, in accordance with that principle, the trial court properly ordered Crist to pay restitution to Rahschulte without regard to the Comparative Fault Act.
The judgment of the trial court is affirmed. KIRSCH, J., and BROWN, J., concur.