Opinion
23A-CR-2235
07-10-2024
Randy S. Small, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Stacy R. Uliana Bargersville, Indiana Suzy St. John Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jesse R. Drum Assistant Section Chief, Criminal Appeals Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Brown Circuit Court The Honorable Mary Wertz, Judge Trial Court Cause No. 07C01-2109-MR-461
ATTORNEYS FOR APPELLANT Stacy R. Uliana Bargersville, Indiana Suzy St. John Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jesse R. Drum Assistant Section Chief, Criminal Appeals Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge.
[¶1] Randy S. Small appeals his conviction for murder. Small raises three issues for our review, which we restate as follows:
1. Whether the trial court abused its discretion when it declined to ask a witness a juror's question.
2. Whether the trial court committed fundamental error when it held a witness in contempt, in front of the jury, for violating the court's instructions to the witness.
3. Whether the trial court committed fundamental error when it did not sua sponte interrupt the prosecutor's closing rebuttal and advise the jury to disregard certain comments.
[¶2] We affirm.
Facts and Procedural History
[¶3] Small lived near Nashville, and for fifteen years Bob Adair had been his neighbor. In 2021, Small was fifty-six years old and Adair was seventy. That June, Adair had new, heavy roofing materials delivered to his residence. However, the party that delivered the materials placed them, and then left them, near Adair's mailbox and property line but technically on Small's property. The materials were stacked in such a way that they covered an area of about thirty feet by five feet and at a depth of about two feet.
[¶4] Small and Adair disagreed over whether the materials were actually on the other's property. The materials remained where they had been dropped off for a few months, and Small became "frustrated" and "upset" about it. Tr. Vol. 4, pp. 138, 246. Small complained about it to his brother Ernie in one of their regular phone calls. In early September, Small tore out Adair's and another neighbor's mailboxes in his anger about the location of the materials.
[¶5] Mid-day on September 15, Carrie Powell, who lived near both Small and Adair, saw Small riding past her house and toward Adair's on his tractor. Shortly thereafter, Powell heard two gunshots. About five minutes after she had first seen Small go past her house, she again observed him riding his tractor back past her house with what appeared to be a rifle in his left hand. Around 2:00 p.m., Small called Ernie and admitted he had just shot and killed Adair.
[¶6] Ernie informed other family members, and together they contacted the Indiana State Police. Investigating officers went toward Adair's residence and found his pick-up truck by the side of the road near his mailbox. The truck was on but had run out of gas. The officers saw that Adair had been shot to death in the driver's seat of his truck. Several officers at the scene described Adair's corpse as having "no head." E.g., Tr. Vol. 6, p. 38. An investigating detective concluded that the likely trajectory of the bullets that killed Adair began at the open driver's side window and exited out through the rear and passenger's side windows, which were shattered. Officers also observed that Adair's foot was on the brake and his hands were clasped in his lap.
[¶7] Officers arrested Small. On his property, they located his tractor, which had Adair's "blood," "skin," and other "biological material" on it. Tr. Vol. 5, p. 97;Tr. Vol. 6, p. 84. Officers later retrieved a Remington 11-87 shotgun that belonged to Small. That shotgun holds five rounds; when officers took possession of it, it had three 12-gauge deer slugs in it.
[¶8] The State charged Small with murder. At his ensuing jury trial, Small argued that he had killed Adair in self-defense and that the investigation of law enforcement officers had been substandard. The State called Ernie as a witness, and Ernie testified that, in the phone call with Small shortly after Adair's death, Small had said that Adair drove up to Small in his truck while Small was bushhogging a field, Small thought Adair had a gun, and Small "reacted." Tr. Vol. 4, p. 129. On cross-examination, Ernie added that Adair "was trying to run over or hit" Small with Adair's truck. Id. at 138.
[¶9] After the State and Small had completed their examinations of Ernie, a juror requested that Ernie be asked the following question: "Did [Small] ever mention being threatened or being in fear of bodily harm from [Adair]?" Id. at 145-46. The court and counsel then had a lengthy colloquy, and, outside the presence of the jury, counsel conducted voir dire of Ernie on that question. In his answer, Ernie stated "probably yes" there had been some threats around September 2021, but he added that Small had only said "there were threats going on" with no clarification or specific details. Id. at 150, 152. After hearing Ernie's testimony, the trial court concluded that it would not permit the juror's question in relevant part because any probative value of his answer was substantially outweighed by its prejudicial effect. Specifically, the court stated that Ernie's answer was "as vague as vague can be," with "no details as to what this alleged threat [wa]s" and whether it involved a threat of serious bodily harm. Id. at 164.
[¶10] Immediately after ruling to not permit the juror's question but to allow some other questions, the court admonished Ernie to not "talk about any idea of threats." Id. at 169. Ernie acknowledged the admonishment. The court then called the jury back into the courtroom and asked Ernie the following question: "Did [Small] ever say why it was self-defense?" Id. at 171. Ernie responded: "Yes, he said [Adair] was threatening him." Id.
[¶11] Defense counsel promptly interrupted, and the court held another colloquy with counsel outside the presence of the jury. During that colloquy, the prosecutor asked that the court "find [Ernie] in direct contempt of court in front of the jury[ and] admonish him in front of the jury." Id. at 172. The prosecutor continued:
a finding of direct contempt in front of the jury, that at least demonstrates the bias. Because that's what I think just happened. The bias that Ernie Small had for Randy Small. And that's why I'm now requesting that it happen in front of the jury to highlight how prejudicial it was, and why it's happening ....Id. at 173.
[¶12] Defense counsel did not object to that procedure or to the reason for it, and, once back in front of the jury, the trial court ruled as follows:
Ladies and gentlemen [of the jury], you will-that last statement made by this witness is stricken from the record. You may not consider it in any way. In your-in my initial instructions, I told
you that this could happen. I believe that specifically I instructed you . . . I may strike evidence from the record after you have already heard it or seen it. You must not consider such evidence in making your decision.
And, Mr. Ernie Small, I did issue an order that you were aware of, that if you were to mention certain things you would be held-you were subject to being held in contempt of court. I do find that you are in direct contempt of this Court. I reminded you of that order just before the jury returned . . . and you blatantly disregarded it, and you included information in your response that I had just told you not to include. So I will hold you in direct contempt of court. However, I will withhold sanctions . . . so long as you abide by . . . this Court's rulings ....Id. at 175-76.
[¶13] And, during the State's closing rebuttal, the prosecutor stated as follows without objection by defense counsel or interruption by the trial court:
Were Randy Small's actions on September 15th, 2021, reasonable? I'm willing to wager that every single person in this room knows that they were not. They're not even close. And the Defense has to distract you from that ultimate question. They have to. Fabulous stories, what I like to call a hillbilly selfdefense claim. You know, take on the police. Police didn't do a sufficient investigation. They have to distract you from the reasonableness of what happened when Randy Small took the life of Bob Adair.
My job is to keep you focused on that reasonableness standard, not be distracted over here about police investigations or distracted over here about crazy stories ....
* * *
Ernie Small-I've been doing this 18 years. I've never seen anyone held in direct contempt of court, [a] witness in a trial. And you saw it all happen before your eyes. That's how in the can he was for his brother. Judge Wertz chastised him right in front of you. He could have went to jail. Man's willing to go to jail for his brother. You think his credibility is up to snuff?
* * *
We got the story. He's coming out of the truck. Thought he had a gun. That's what they came up with. That's what I call a hillbilly self-defense claim. Well, you know, he was on my property, and I thought he had a gun. Is that the standard? Is that reasonable?
Is that the reasonable standard we're going to apply? That does not fly, ladies and gentlemen, anywhere.Tr. Vol. 6, pp. 150, 158, 161.
[¶14] The jury found Small guilty of Adair's murder. The court then entered its judgment of conviction and sentenced Small accordingly. This appeal ensued.
1. The trial court did not abuse its discretion when it excluded the juror's question and Ernie's response to it.
[¶15] On appeal, Small first asserts that the trial court erred when it excluded the juror's question regarding whether Small had ever mentioned to Ernie that Small was "being threatened" by or was "in fear of bodily harm" from Adair and Ernie's response to the question. Tr. Vol. 4, pp. 145-46. Indiana Evidence Rule 614(d) makes clear that the trial court is to review juror questions for their "appropriateness" before allowing any such questions to be asked of a witness. And we have also made clear that a juror's question and its answer "must be admissible under our rules of evidence." Trotter v. State, 733 N.E.2d 527, 532 (Ind.Ct.App. 2000), trans. denied. The trial court's decision on whether to allow a juror question "is afforded broad discretion." Id. at 531.
[¶16] The trial court excluded the juror's question and Ernie's response in relevant part under Indiana Evidence Rule 403. Under Rule 403, "relevant evidence may be excluded if its probative value is substantially outweighed by the danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Snow v. State, 77 N.E.3d 173, 179 (Ind. 2017) (quotation marks omitted). As our Supreme Court has made clear:
"Trial judges are called trial judges for a reason. The reason is that they conduct trials. Admitting or excluding evidence is what they do." United States v. Hall, 858 F.3d 254, 288 (4th Cir. 2017) (Wilkinson, J., dissenting). That's why trial judges have discretion in making evidentiary decisions. This discretion means that, in many cases, trial judges have options. They can admit or exclude evidence, and we won't meddle with that decision on appeal. See Smoote v. State, 708 N.E.2d 1, 3 (Ind. 1999). There are good reasons for this. "Our instincts are less practiced than those of the trial bench and our sense for the rhythms of a trial less sure." Hall, 858 F.3d at 289. And trial courts are far better at weighing evidence and assessing witness credibility. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014). In sum, our vantage point-in a "far corner of the upper deck"-does not provide as clear a view. State v. Keck, 4 N.E.3d 1180, 1185 (Ind. 2014).Id. at 177. Thus, where a trial court reasonably could decide that evidence either be "admitted or excluded" under Rule 403, we will not "second-guess the trial court's determination." Id. at 179.
[¶17] Here, after receiving the juror's question, the trial court permitted the parties to voir dire Ernie outside the presence of the jury. In that examination, Ernie vaguely stated that Small had "probably" mentioned some "threats" from Adair proximate to the date of the shooting, but Ernie had no specific details to contribute. Tr. Vol. 4, pp. 150, 152. The trial court concluded that, under Rule 403, that testimony had little probative value while the danger of unfair prejudice that would result from that testimony was substantial. The court therefore excluded the question and Ernie's answer to it under Rule 403.
[¶18] Small contends that the trial court's judgment requires reversal because Ernie's testimony would have been relevant to Small's claim of self-defense, and excluding the evidence violated his right to present a complete defense and the jury's role as a fact-finder. But Small cites no authority for his apparent proposition that the right to present one's chosen defense includes a right to present inadmissible evidence. He similarly has no authority for his apparent proposition that the jury's role as a fact-finder permits consideration of inadmissible evidence. As for Small's challenge to the court's exercise of its wide discretion under Rule 403's balancing test, Small discusses only the purported relevance of Ernie's recitation of some prior threat and then asserts that any relevant evidence must be admitted, which of course is not consistent with Rule 403.
[¶19] And Ernie's statements during voir dire demonstrate the importance of Rule 403. In support of Small's self-defense claim, the jury heard that Small had called Ernie after shooting Adair and had stated that Adair both attempted to run Small over with Adair's truck and also made a gesture inside the truck that Small interpreted to be reaching for a weapon. It was due to those acts, according to Ernie, that Small had "reacted" by shooting Adair. Tr. Vol. 4, p. 129.
[¶20] That testimony suggests that Small's claim of self-defense was under Indiana Code section 35-41-3-2(c) (2022), which states:
In his brief, Small mistakenly attributes the language of part (c) of the statute to part (a). Appellant's Br. at 20.
A person is justified in using reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person, employer, or estate of a person in this state shall be placed in legal jeopardy of any
kind whatsoever for protecting the person or a third person by reasonable means necessary.(Emphases added.)
[¶21] Nothing in Ernie's statements during voir dire on the juror's question described a scenario relating to "the imminent use of unlawful force" or a likelihood of "serious bodily injury." And while some antecedent "threats" might go to a reasonable belief later in either, many actions or statements someone might call a "threat" do no such thing, such as a "threat" to go to court and have property lines determined by a judicial officer. Thus, without more detail as to the purported "threats" Ernie stated that Adair had made to Small some unknown amount of time before the day of the shooting, the danger of unfair prejudice from Ernie's putative testimony was substantial while the probative value was at best minimal. Accordingly, we affirm the trial court's exclusion of the juror's question and Ernie's response to it under Rule 403. See Snow, 77 N.E.3d at 177, 179.
2. The trial court did not commit fundamental error when it held Ernie in contempt in front of the jury.
[¶22] Small next asserts that the trial court committed fundamental error when it held Ernie in contempt in front of the jury. "An error is fundamental, and thus reviewable on appeal, if it made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm." Durden v. State, 99 N.E.3d 645, 652 (Ind. 2004). But fundamental error is extremely narrow and encompasses only errors
We agree with Small that, although his trial counsel acquiesced to the court finding Ernie in contempt in front of the jury, his counsel did not invite any error here. However, to the extent that Small complains on appeal that the procedure used by the trial court to find Ernie in contempt was improper, Small lacks standing to raise that issue. Whether Ernie's contempt was proper in law or in fact is for Ernie to challenge, not Small.
so blatant that the trial judge should have acted independently to correct the situation. At the same time, if the judge could recognize a viable reason why an effective attorney might not object, the error is not blatant enough to constitute fundamental error.Id. (quotation marks and citations omitted).
[¶23] According to Small, "[t]he trial court did not remain impartial when it held Ernie in contempt in a way purposefully calculated to influence the jury's perception of his credibility." Appellant's Br. at 32. As our Supreme Court has explained:
The right to a fair trial before an impartial judge is an essential element of due process. See Abernathy v. State, 524 N.E.2d 12, 13 (Ind. 1988). As this Court observed in Kennedy v. State, 258 Ind. 211, 226, 280 N.E.2d 611, 620-21 (1972):
A jury of laymen will often have an awesome respect for the institution of the American trial judge. This can lead them to accord great and perhaps decisive significance to the judge's every word and intimation. It is therefore
essential that the judge refrain from any actions indicating any position other than strict impartiality.
A trial court is given latitude to manage the courtroom and maintain order and decorum. See Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997). "Even where the trial court's remarks display a degree of impatience, if in the context of a particular trial they do not impart an appearance of partiality, they may be permissible to promote an orderly progression of events at trial." Id. (quoting Rowe v. State, 539 N.E.2d 474, 476 (Ind. 1989)). However, reversal is required if the defendant shows that the trial judge's actions and demeanor crossed the barrier of impartiality and prejudiced his or her case. Timberlake, 690 N.E.2d at 256.Marcum v. State, 725 N.E.2d 852, 856-57 (Ind. 2000).
[¶24] Our Supreme Court has found trial judges to have crossed the line into partiality on a few occasions where the trial judge has examined or participated in the examination of witnesses. For example, in Abernathy, the State charged the defendant with several counts of sexual assault against his step-daughter. 524 N.E.2d at 13. The State called the defendant's wife, the victim's mother, as a witness, and she provided testimony in support of the defendant's defense that the alleged sexual encounters were consensual and had occurred only after the victim was older than the statutory age at issue.
[¶25] During the State's examination of the mother, the trial judge repeatedly interjected questions that demonstrated his incredulity at the mother's testimony. See id. at 13-15. The judge also suggested that the witness was not being truthful. See id. at 14. At one point, "the judge had turned his chair so that he sat with his back to the witness and placed his feet on the wall in what defense counsel interpreted as an attitude of disbelief or disinterest," to which "several jurors snickered." Id. at 14. And, during the State's examination of the victim's sister, who provided testimony in support of the allegations, the trial judge asked the witness specifically about the elements of the offenses. Id. at 1415.
[¶26] Reviewing the trial judge's conduct for preserved error, our Supreme Court held that the judge "did not maintain adequately his position of neutrality" because his actions and questions had "clearly impeached or discredited" the victim's mother, and his "lack of neutrality was detrimental" to the defendant's theory of the case. Id. at 15. Accordingly, our Supreme Court reversed the defendant's convictions and remanded for a new trial. Id.; see also Brannum v. State, 267 Ind. 51, 366 N.E.2d 1180, 1181 (1977) (holding that the trial judge's questions to a prospective juror, in front of all of the prospective jurors, who had expressed reluctance at imposing a life sentence what the prospective juror would do if the victims had been his wife and children violated the judge's duty to remain impartial); Kennedy, 280 N.E.2d at 613-21 (holding that the trial judge violated his duty to remain impartial when he repeatedly impeached the witnesses and made clear to the jury that he did not believe those witnesses); Stellwag v. State, 854 N.E.2d 64, 69 (Ind.Ct.App. 2006) (holding that the trial judge committed fundamental error when he threatened the defendant with contempt in front of the jury; repeatedly instructed the defendant, during his testimony, to answer the State's questions even though the defendant had answered them; told a defense witness who had answered a question directly to not argue with the State; and sua sponte prohibited the defendant from engaging that same witness in re-direct examination).
[¶27] But examining witnesses, or participating in their examinations, and holding them in contempt are very different acts. For example, in Aubrey v. State, the State charged the defendant with robbery and called a purported accomplice as a witness. 261 Ind. 692, 310 N.E.2d 556 (1974). The purported accomplice refused to testify. The State engaged the witness in an immunity discussion in front of the jury before the court excused the jury for the conclusion of that discussion. The court had the jury return and the State resumed its questioning with respect to the alleged robbery, but the witness continued to refuse to answer. The court then held the witness in contempt in front of the jury for his noncompliance. The defendant requested the court to admonish the jury that the witness's behavior not be used against the defendant, but the trial court declined to admonish the jury as requested.
Small also references several Indiana opinions in which a trial court admonished or threatened to admonish a defendant in front of a jury for "extreme" behavior. Appellant's Br. at 40-42. But we think authorities that involve admonishing defendants are not instructive here, where the issue on appeal involves not the defendant himself but a witness who is not alleged to have participated in the underlying allegations.
[¶28] Our Supreme Court, reviewing the issue for preserved error, concluded that the trial court abused its discretion not by finding the witness in contempt but by failing to admonish the jury as requested by the defendant. Id. at 558-60. As our Supreme Court later explained, the concern addressed in Aubrey arose out of "the inference that [the alleged accomplice's refusal to testify] implant[ed] in the jury's mind as to what the witness would say." Brown v. State, 671 N.E.2d 401, 405 (Ind. 1996). But where the jury is "not placed in a position of speculating" about a witness's silence and "receive[s the] testimony," the concern underlying Aubrey is not at issue. Id.
[¶29] Indeed, in a subsequent opinion on nearly identical facts but with the admonishment that the trial court in Aubrey had omitted, namely, that the jury take nothing from the trial court holding the witness in contempt for the witness's silence, our Supreme Court held that the trial court "did not err in its handling" of the witness. Hovis v. State, 455 N.E.2d 577, 581 (Ind. 1983). Likewise, in a more recent appeal, our Supreme Court commended the trial court for handling a "difficult situation extremely well" when a witness refused to testify and the trial court held him in contempt with the jury's knowledge of that contempt. Brown, 671 N.E.2d at 405 n.3.
[¶30] The sum of that precedent as applied here is clear: the trial court did not commit fundamental error when it held Ernie in contempt in front of the jury. First, and directly contrary to Small's main contention on this issue, holding a witness in contempt in front of the jury is not per se fundamental error. See id.; Hovis, 455 N.E.2d at 581; Aubrey, 310 N.E.2d at 558-60. Second, the concern at issue in Aubrey-i.e., the negative inference that could be drawn from a purported accomplice's silence-is not at issue here, as Ernie was not Small's accomplice and Ernie's violation of the court's instruction was in saying too much. See Brown, 671 N.E.2d at 405. Third, nothing in the trial court's statements to Ernie or the jury about the contempt finding comes anywhere close to being analogous to precedent in which our Supreme Court or this Court has concluded that a trial judge ceased maintaining a position of neutrality.
[¶31] And this brings us to our final reason for rejecting Small's position on this issue: he has attributed to the trial court statements that were in fact made by the prosecutor about wanting to impugn Ernie's credibility by way of holding him in contempt in front of the jury. The trial court made no such statement, let alone in front of the jury. And we think it neither surprising nor controversial that opposing counsel would want to attack an unfavorable witness's credibility or that a trial court would allow opposing counsel saying as much to go without a response from the court. The trial court may well have had its own, entirely valid reason for holding Ernie in contempt in front of the jury-namely, emphasizing the need for the jury to disregard Ernie's contemptible comment.
[¶32] Accordingly, while we do not endorse finding witnesses in contempt of court in front of the jury, we cannot say that the trial court holding Ernie in contempt on this record made a fair trial impossible for Small. Ernie put the trial court in a difficult situation, and the trial court handled it reasonably in light of the circumstances.
3. The trial court did not commit fundamental error by not interrupting the prosecutor during his closing rebuttal.
[¶33] Last, Small asserts that the trial court committed fundamental error when it did not sua sponte interrupt the prosecutor during his closing rebuttal. Small contends that the trial court should have stopped the prosecutor from attacking Ernie's credibility; from referring to Small's defense as a "hillbilly self-defense claim"; and from "portraying defense counsel as the 'bad guy' and the prosecution as the 'good guy.'" Appellant's Br. at 46-49. We are not persuaded by Small's argument that the prosecutor's comments made a fair trial impossible.
[¶34] First, Small's argument notwithstanding, we agree with the State that Ernie's credibility was "fair game." Appellee's Br. at 38. It is well established that "a prosecutor may comment on the credibility of the witnesses as long as the assertions are based on reasons which arise from the evidence." Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006) (quotation marks omitted). Small asserts that the contempt finding, the prosecutor's legal experience, and the penalties for contempt were not in "the evidence." But that is not the standard; the standard is whether the prosecutor's statements "are based on reasons which arise from" the evidence. Id. Ernie's credibility as Small's brother and the only person to whom Small had stated the purported facts underlying the claim of self-defense was in the evidence and before the jury. And the prosecutor's additional comments attacking Ernie's credibility for being willing to be found in contempt were assertions "based on reasons which ar[o]se from" that evidence. Thus, there is no error here, let alone fundamental error.
Small's further assertion that the prosecutor "lied" when he told the jury that someone who is found to be in contempt of court "could" go to jail is without merit. Appellant's Br. at 45; Tr. Vol. 6, p. 158; see, e.g., Tunis v. State, 129 N.E.3d 258, 265-66 (Ind.Ct.App. 2019), trans. denied.
[¶35] Small also takes issue with the trial court not stopping the prosecutor from referring to his defense as a "hillbilly self-defense claim." Appellant's Br. at 46. According to Small, "[a]ppeals to socioeconomic or poverty bias have no place in the State's closing argument," and "[t]he injection of such . . . is no less insidious than the injection of race or gender bias." Id.
[¶36] We agree with Small that the prosecutor here went too far in these comments, but we disagree with Small that the term "hillbilly" is equivalent to a Fourteenth Amendment protected class such as race or gender. And, while we do not approve of the prosecutor's use of the term "hillbilly," we cannot say that those uses here made a fair trial impossible. The evidence before the jury was overwhelming, and Small's claim of self-defense was weak. Whether the prosecutor used the term "hillbilly" or not, the outcome here would have been the same.
[¶37] Last, Small characterizes the prosecutor's assertions that defense counsel wanted to distract the jury while the prosecution wanted to keep the jury focused on reasonableness as the equivalent of "portraying defense counsel as the 'bad guy' and the prosecution as the 'good guy.'" Id. at 49. "[C]omments that demean opposing counsel, especially in front of a jury, are inappropriate ...." Marcum, 725 N.E.2d at 859. But the prosecutor's comments here were nowhere close to demeaning opposing counsel, and it was within the prosecution's right to attempt to frame the defense's theories as distractions.
Small's argument against these comments is without merit.
[¶38] Accordingly, Small has not established fundamental error during the prosecutor's closing rebuttal.
Conclusion
[¶39] For all of the above reasons, we affirm Small's conviction for murder.
[¶40] Affirmed.
Altice, C.J., and Bailey, J., concur.