author: CRONE, Judge.

text:
    Alton NEVILLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1201-CR-9.
    Court of Appeals of Indiana.
    Oct. 19, 2012.

      Mary Spears, Gilroy Kammen Maryan & Moudy, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Alton Neville appeals his convictions and sentences for murder and carrying a handgun without a license. On appeal, Neville argues that fundamental error requiring reversal of his convictions occurred due to prosecutorial misconduct (1) during voir dire when the prosecutor commented on the possibility of a false conviction, and during closing argument when the prosecutor (2) vouched for the witnesses; (3) mischaracterized the evidence; (4) argued inconsistent facts; (5) presented facts not in evidence; and (6) inflamed the passions and prejudices of the jury. He also asserts that fundamental error occurred due to the improper admission of certain evidence. Finally, he contends that his fifty-five year aggregate sentence is inappropriate.

We conclude that the prosecutor improperly presented facts not in evidence and improperly inflamed the passions and prejudices of the jury, but that the improper comments did not rise to the level of fundamental error. We further conclude that certain evidence was improperly admitted but did not result in fundamental error. Finally, we conclude that Neville has failed to carry his burden of persuading us that his sentence is inappropriate. Accordingly, we affirm.

Facts and Procedural History

On March 23, 2011, Dawn Lane and Linda Wilburn lived together in a house on West 31st Street in Indianapolis. An alley lies north of West 31st Street at the back of the house. Many people used the alley. Lane and Wilburn were both familiar with Neville, as they saw him in the neighborhood nearly every day. That afternoon, Wilburn was sitting on the front porch of the house, and she saw Neville walking westbound in front of the house. She saw the handle of a gun in his waistband. Tr. at 193, 220. She spoke to him, but he did not hear her. Shortly thereafter, she saw him across the street walking eastbound. She spoke to him, and he nodded his head at her.

In the late afternoon, Lane was “getting high and drinking” and walking around her neighborhood. Id. at 139. She was near the New Dew barbershop when she saw Neville in his red truck. The New Dew barbershop is on Clifton Street, which runs perpendicular to West 31st Street. Specifically, the New Dew is located at the east end of the alley, just north of and around the corner from Lane and Wilburn’s house. Neville asked Lane if she was going to the New Dew and if Jamal Hood was in there to “tell him to come out and meet him in the alley.” Id. at 141. Lane went into the New Dew, saw Hood, and told him that Neville wanted to meet him in the alley. She saw Hood go to Neville’s red truck and get in the passenger side.

Lane walked home and sat on the front porch with Wilburn. About five to ten minutes after Lane saw Hood get into Neville’s truck, Lane and Wilburn heard gunshots. Lane went to the side of her porch and looked in the alley. She saw Neville standing outside the truck. She saw Hood fall to the ground and remain there. Id. at 145, 160. Lane testified that she saw Neville get in his truck and drive westbound down the alley. Id. at 145. Wilburn ran to the back of the house, and from the laundry room window, she testified that she saw a body on the ground and a truck speeding eastbound down the alley. Id. at 200.

Other people in the neighborhood heard the gunshots, too. Tamara Williams, Lane’s niece, who also lived on West 81st Street, “heard what sounded like firecrackers.” Id. at 167. Hood’s aunt and uncle, Deborah and Kenneth Hood, lived on West Congress Avenue, the next road north of and parallel to West 31st Street. The back of their house was on the alley opposite the back of Lane and Wilburn’s house. Deborah and Kenneth heard approximately five gunshots. Deborah ran to the door on the east side of her home and looked back toward the alley. She testified that she saw Neville speed eastbound and turn north onto Clifton Street. From Clifton, he turned west onto Congress and stopped two houses west of Deborah and Kenneth’s house. Deborah saw Neville get out of the truck and enter that house.

Deborah, Kenneth, Lane, Wilburn, and Williams all ran to the alley and saw Hood lying on the ground behind the house immediately west of Lane and Wilburn’s house. Indianapolis Metropolitan Police Officer Jason Norman was patrolling in the area when he was dispatched to a disturbance at 3500 Clifton Avenue. As he neared the location, he was flagged down by Lane, who told him that someone was shot in the alley. Officer Norman pulled into the alley and discovered Hood’s body. He contacted the paramedics and the homicide unit. The paramedics arrived and pronounced Hood dead. The homicide detective, Tom Tudor, arrived a little after 5:00 p.m. and began his investigation.

At trial, Wilburn testified that later that evening, Neville called her cell phone and hung up. Wilburn called him back, but there was no answer. Wilburn had another cell phone number for Neville, so she tried that one, and Neville answered. Wilburn testified to the content of their conversation as follows:

I asked him why was he calling. I said, you know they looking for you. You killed that little boy, why? He said, he knew it, he said to do him a favor and say he was with me. And I told him I didn’t want to have no part of that, and I’m not going to say that. And don’t call me no more and I hung up the phone.

Id. at 208.

Detective Tudor interviewed Lane on April 7, 2011. At trial, she testified that the statement she gave at that time was “something that was less than the truth,” because she did not want be involved. Id. at 148. Approximately three weeks later, Lane contacted the police and this time she told Detective Tudor what she actually saw. Lane identified Neville in two different photographic lineups as the person she saw standing in the alley when Hood was shot. Wilburn also identified Neville in a photographic lineup.

A forensic pathologist found six gunshot wounds in Hood’s body from .38 caliber bullets that had been fired from the same firearm. No spent shell casings were found at the scene and no gun was ever recovered. The investigation revealed that Neville’s cell phone records show that he was in the area of the murder at the time it was committed. State’s Ex. 51-A.

The State charged Neville with murder and class A misdemeanor carrying a handgun without a license. On June 17, 2011, Neville was arrested. Detective Tudor conducted an interview of Neville, which was recorded. A jury trial was held on December 5 through 7, 2011. The jury found Neville guilty as charged. The trial court sentenced him to fifty-five years for his murder conviction and one year for his carrying a handgun conviction, to be served concurrently. Neville appeals. Additional facts will be provided as necessary.

Discussion and Decision

I. Prosecutorial Misconduct

Neville argues that the prosecutor made multiple statements that constitute misconduct. Generally, in order to properly preserve a claim of prosecutorial misconduct for appeal, a defendant must not only raise a contemporaneous objection but must also request an admonishment; if the admonishment is not given or is insufficient to cure the error, then the defendant must request a mistrial. Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006). Ne-ville concedes that he did not object to the prosecutor’s comments and therefore did not properly preserve his claims.

To prevail on a claim of prose-cutorial misconduct that has been procedurally defaulted, the defendant must establish not only the grounds for the prosecutorial misconduct, but also the additional grounds for fundamental error. Id. In reviewing a claim of prosecutorial misconduct, we “determine (1) whether the prosecutor engaged in misconduct, 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.” Booher v. State, 773 N.E.2d 814, 817 (Ind.2002) (citation and quotation marks omitted). “Whether a prosecutor’s argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct.” Cooper, 854 N.E.2d at 835. “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.” Id.

Fundamental error is an “extremely narrow exception” to the contemporaneous objection rule that allows a defendant to avoid waiver of an issue. Id. For a claim of prosecutorial misconduct to rise to the level of fundamental error, it must “make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process and present an undeniable and substantial potential for harm.” Booher, 773 N.E.2d at 817 (citation, quotation marks, and brackets omitted). “The element of harm is not shown by the fact that a defendant was ultimately convicted.” Davis v. State, 835 N.E.2d 1102, 1107 (Ind.Ct.App.2005), tram, denied (2006). “Rather, it 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 would have been entitled.” Id. at 1107-08.

Specifically, Neville argues that the prosecutor engaged in misconduct (1) during voir dire by commenting on the possibility of a false conviction, and during closing argument by (2) vouching for the witnesses; (3) mischaracterizing the evidence; (4) arguing inconsistent facts; (5) presenting facts not in evidence; and (6) inflaming the passions and prejudices of the jury. We first address the prosecutor’s comment during voir dire. We then address the prosecutor’s comments during closing argument, separately addressing the impropriety of each comment and then considering as a whole whether any impropriety resulted in the denial of a fair trial.

A. Voir Dire

During voir dire, defense counsel asked a prospective juror whether a person could be wrongfully accused of crimes and why it is important for the State to prove guilt beyond a reasonable doubt. Tr. at 79. Afterward, the prosecutor discussed the possibility of false conviction with the jury:

The point is just because you’re careful and what we want you to be as a fair jury is be careful evaluate the evidence. And just because some other jury someplace got it wrong doesn’t mean you’re going to get it wrong here today. Does that make sense? Now — you don’t know. There are people wrongly convicted. Maybe they don’t have a Judge as experienced and good as this Judge to make sure the jury has the right instructions. Maybe they had some kid just out of law school. And I assure you folks coming right out of law school you don’t know how to practice law. You learn that over time. So maybe they didn’t have a judicial officer like we have here. Maybe they had somebody that didn’t know how to try a case versus [Neville’s defense counsel] who has been a very skilled lawyer for many years. Maybe just some reason, some jurors were holding things back which caused an interference. Did you see — there could have been a lot of issues why something went wrong. Doesn’t mean it’s going to happen here today, does it? Does that make sense?

Id. at 101-02.

Neville argues that the prosecutor’s statement was an attempt to induce the jury to discount the possibility of a wrongful conviction. Indiana courts have condemned prosecutorial remarks that minimize the seriousness of the jury’s responsibility. See Kelley v. State, 210 Ind. 380, 401-02, 3 N.E.2d 65, 74-75 (1936) (finding misconduct where prosecutor told jury that even if defendant were convicted he could appeal his case and would be out on bond during appeal and defendant could ask judge to suspend his sentence); Hadley v. State, 165 Ind.App. 416, 332 N.E.2d 269, 272 (1975) (finding misconduct where prosecutor informed jury that even if they returned a guilty verdict, the trial judge might suspend the sentence or parole board might release defendant). We are troubled by the prosecutor’s comments to the extent that they could be interpreted to suggest that, because the defendant has a good judge and a good attorney, the jury does not need to be concerned about a wrongful conviction.

The State argues that the prosecutor was responding to defense counsel’s questioning about wrongful accusations. Prior to the prosecutor’s comments, defense counsel asked one of the prospective jurors whether she thought that people could be wrongfully accused of crimes and why the State was required to prove guilt beyond a reasonable doubt. Tr. at 79. The juror answered that a person could be wrongfully accused and that if the State does not prove guilt beyond a reasonable doubt then the accused might not have committed the crime. Defense counsel then asked, “And that would be a pretty serious mistake, wouldn’t it?” Id. at 80. Thus, it appears that the prosecutor was responding to defense counsel’s line of questioning. See Cooper, 854 N.E.2d at 836 (“Prosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor’s response would otherwise be objectionable.”). Further, the prosecutor prefaced the comment by saying that he wanted the jury to be fair, careful, and evaluate the evidence. It was not the only time that the prosecutor told the jury that he wanted a fair trial for Neville. See Tr. at 60 (“[W]e want a fair trial for this man too. He deserves a fair trial, we all do. We’re all in that position and we all deserve a fair trial.”). We do not mean to imply that a prosecuting attorney can avoid misconduct simply be telling the jury to be fair. Here, however, where the prosecutor was responding to the defense’s line of questioning, we conclude that the prosecutor’s comments did not rise to the level of fundamental error.

B. Vouching For Witnesses

Neville contends that the prosecutor improperly vouched for the credibility of the State’s witnesses during closing argument. He directs us to several comments. The prosecutor described Lane as “courageous,” said that she “told you the truth,” and said that she had been “especially corroborated.” Id. at 470-71, 483. The prosecutor described Wilburn as one of the “good people every place in the city,” and stated that “these [phone] records prove she told you the exact truth.” Id. at 473. The prosecutor said that Margaret Le-Blanc, the Marion County Forensic Services crime scene technician, was “very good at what she does” and “if there were [shell] casings there she would have found them.” Id. at 482.

It is well settled that vouching for witnesses is generally impermissible. Lainhart v. State, 916 N.E.2d 924, 938 (Ind.Ct.App.2009). However, “ ‘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, 854 N.E.2d at 836 (quoting Lopez v. State, 527 N.E.2d 1119, 1127 (Ind.1988)). See also Hobson v. State, 675 N.E.2d 1090, 1095 (Ind.1996) (prosecutor’s statement “I warned you that [defendants] are liars” was not misconduct because incongruities in testimony supported inference that someone had not been testifying truthfully). In addition, an attorney may properly argue any logical or reasonable conclusions based on his or her own analysis of the evidence. Bennett v. State, 423 N.E.2d 588, 592 (Ind.1981); see also Turnbow v. State, 637 N.E.2d 1329, 1334 (Ind.Ct.App.1994) (“A prosecutor may also properly comment on the evidence presented to the jury and argue logical conclusions from that evidence.”) trans. denied.

Our review of the record shows that the prosecutor’s comments were supported by the evidence. He described Lane as “courageous” because although she was initially unwilling to get involved, she decided that the right thing to do was to come forward and reveal to Detective Tudor everything she saw. Tr. at 471. The prosecutor’s statement that Lane told the truth was based on photographs of the house and alley, which confirmed that she could see the alley from her porch as she had testified. Id. The prosecutor’s comment that Lane was “especially corroborated” was reasonably consistent with his analysis of the evidence and his theory of the case. The prosecutor’s comment that Wilburn was one of the “good people every place in the city” was based on her refusal to provide Neville with an alibi. The prosecutor’s comments regarding LeBlanc are likewise reasonably based on the evidence that she had worked at the crime lab for four years and had collected evidence from approximately 200 homicide, rape, aggravated assault, and child molest cases. Id. at 264. We conclude that there was no improper vouching.

C. Misrepresentation of Evidence

Neville asserts that the prosecutor misrepresented the evidence on three occasions. We observe that “[i]t is proper for a prosecutor to argue both law and fact during final argument and propound conclusions based upon his analysis of the evidence. That said, a prosecutor’s comments can be prejudicial if they have an impact on the jury’s ability to judge the evidence fairly.” Steinberg v. State, 941 N.E.2d 515, 531 (Ind.Ct.App.2011), trans. denied (citations, quotation marks, and brackets omitted). Prosecutors may not argue facts not in evidence. Spangler v. State, 498 N.E.2d 1206, 1209 (Ind.1986).

First, Neville claims that the prosecutor misrepresented Lane’s testimony. The prosecutor told the jury that Lane saw Neville’s truck facing west because she saw Neville coming from the driver’s side of the truck and “drop[ ] over on top of Jamal.” See Tr. at 469 (“Because you think you’re driving this way folks, the driver’s side would be facing the south side of the alley”). Later, the prosecutor stated that Lane saw Neville’s truck going eastbound to explain why no shell casings were found. See id. at 482 (“Ms. Lane said the truck that she saw is eastbound, he drives alongside and points out the window and fires,” and “the defendant drove away with them [the casings].”).

The State argues that the “witnesses themselves offered somewhat contradictory testimony,” as Lane testified that the truck drove west, and Hood and Wilburn testified that the truck drove east. Appellee’s Br. at 12. Given that there were witnesses who testified that the truck drove eastbound, we conclude that the prosecutor’s failure to accurately identify the witness who saw the truck going eastbound is insignificant.

Second, Neville claims that the phone records did not corroborate Wilburn’s description of the sequence of phone calls but that the prosecutor argued that they did anyway to bolster the truth of Wilburn’s testimony. The prosecutor stated, “These records prove she told you the exact truth. His [Neville’s] own phone records corroborate what she told you. And what she told you is, you know, you know you killed that boy. I know. Direct evidence folks.” Tr. at 473-74. Neville argues that the phone records show that Wilburn tried to call him first, not the other way around. The State asserts that the phone records support Wilburn’s testimony that it took several calls for her and Neville to be connected. Given that the phone records show that several phone calls between Wilburn and Neville were made before they finally had a conversation, we conclude that the prosecutor’s statement was a reasonable commentary on the evidence.

Third, Neville argues that the prosecutor misstated the evidence regarding his recorded interrogation by police. During the interrogation, the detective asked Neville if he had heard any “street talk” about what happened. State’s Ex. 55-A. Neville answered, “I heard all this happened because he must have robbed somebody or broke into somebody’s house.” Id. The detective asked him if he knew whether that happened for a fact. Neville said that he did not know.

In closing argument, the prosecutor commented on the interview as follows:

But you know what all this happened because I guess he must have robbed somebody or broke into somebody’s house or something. Now I’ll tell you, the word robbery is often misused. Robbery can mean a robbery, can mean a burglary, can mean a theft. How would he know if he didn’t do it? Is this a Freudian slip? Is this insight into the actual motive. It may well be.

Tr. at 476-77. Neville argues that the prosecutor mischaracterized his statement by ignoring that he was answering a question from the detective about whether he had heard any “street talk” about what happened, and therefore his, statement cannot be fairly interpreted “as a ‘Freudian slip’ offering any ‘insight’ into a motive for killing Mr. Hood.” Appellant’s Br. at 22.

Neville places too much emphasis on the fact that he was answering a question. Neville told the detective that he heard that Hood was shot because he robbed someone or broke into someone’s house. Neville could have mistakenly revealed his motive by answering the question the way he did. In other words, the fact that he offered any reason for the murder could reflect his own reason for murdering Hood. We conclude that the evidence reasonably supports the prosecutor’s suggestion that Neville’s statement to the detective could have revealed his motive for murdering Hood.

D. Inconsistent Facts

Neville contends that, in addition to misrepresenting Lane’s testimony regarding the direction of the truck, the prosecutor argued that the truck faced both east and west in order to satisfy different evidentiary aspects of the case. According to Neville, the prosecutor argued that the truck was facing east in order to support Lane’s testimony that she saw Neville standing over Hood’s body. The prosecutor stated, “[Lane] sees the defendant come from that red truck out to the driver’s side. Because you think you’re driving this way folks [west], the driver’s side would be facing the south side of the alley. He’s coming from the driver’s side.” Tr. at 469. However, Neville claims that the prosecutor also argued that Neville was driving east and shot Hood from inside his car to explain why no spent shell casings were found at the murder scene:

So how do you have a semi-automatic gun, but no casings are found. Not just some are missing, but all 6. They had to leave the scene, how did they leave the scene? He was firing from his truck. Jamal gets out of the truck, Ms. Lane witnessed that, and he’s walking down the street. Jamal is walking away from the defendant, the defendant is driving eastbound as Ms. Lane said the truck that she saw is eastbound, he drives alongside and points out the window and fires. Those casings are coming back inside the cab of the truck. That’s only a catch of 6 casings, the defendant drove away with them.The lack of physical evidence actually corroborates our witness [Lane].

Id. at 482.

In response, the State argues that Ne-ville could have turned his truck around. In fact, the prosecutor made that argument:

[Lane] sees a truck pointed westbound. She heárs shots, she sees Jamal Hood stumble and fall. She goes back in her house. The other witnesses we have, the Hoods, [Wilburn] indicates [sic] the truck leaves down the east side of the alley. The same side of the alley that he knew he could get into. We don’t know what was down on the other side of the alley which would cause him to turn around, because he was turned around. He turned around in that truck, the pictures show you there is ample room to do so.

Id. at 494-95. We conclude that this was a reasonable inference or logical conclusion drawn from the admitted evidence, and therefore it was not improper.

E. Presentation of Facts Not in Evidence

In closing argument, the prosecutor described Neville’s conduct immediately following the shooting as follows:

He’s coming from the driver’s side, he drops over on top of Jamal, I submit to you folks he looks at him and says, I did my job. Whatever this man had against him it’s the motive, that stuck in the recesses of this man’s mind. Why he formed the motive to form the intent to kill. He looks over at him, job well done, from his standpoint and walks back.

Id. at 469. Neville contends that this description was improper because it was not supported by the evidence. Prosecutors may not argue facts not in evidence. Spangler, 498 N.E.2d at 1209. The State concedes that there was no evidence that Neville stood over Hood gloating. We conclude that this comment was improper.

F. Appeals to Passions and Prejudices of the Jury

During closing argument, the prosecutor stated,

Because this defendant was not going to give Jamal Hood what we’re giving him. We’re giving [Neville] a Judge, to judge evidence, he’s got a very experienced defense counsel and most of all this defendant has you to judge his actions. But he didn’t give that to Jamal. He just took him out. What agreed harm it is, he killed him for it. Think about it, all the rights the defendant has, which he is entitled to, and all those rights that he took away as well as the life of Jamal Hood.
But now is the point in this trial that you can find that for 3 days now you’ve been sitting 20 feet from a murderer. And—only thing about it, I can’t do a thing about it. As [the other prosecuting attorney] told you in opening, voir dire, folks all I can do is put this man in this chair. All Detective Tudor can do is put this man in this chair, beyond that I am powerless. Only you have the power to get justice for the family who had to lose their son, their nephew.
That’s my job, ask for justice, and only you can do it.
We’re powerless—and now it’s on you. Based on the lies you’ve heard from him [Neville], but mostly based on the evidence that we presented before you, convict him. Do it for Jamal.

Tr. at 477, 484, 485, 499.

Neville asserts that “[arguments based on principles of ‘comparative justice,’ exhortations to deliver a guilty verdict for the sake of the victim or for the sake of ‘justice’ and pleas for assistance to ‘powerless’ prosecutors [ ] have no place in the closing argument of the State.” Appellant’s App. at 13. We observe that “[i]t is misconduct for a prosecutor to request the jury to convict a defendant for any reason other than his guilt” or “to phrase final argument in a manner calculated to inflame the passions or prejudice of the jury.” Johnson v. State, 453 N.E.2d 365, 369 (Ind.Ct.App.1983). See also Limp v. State, 431 N.E.2d 784, 788 (Ind.1982) (concluding that prosecutor’s statements regarding the psychological damage done to the victim and whether she would ever recover “had no bearing on defendant’s guilt or innocence” and were improper). Indiana Professional Conduct Rule 3.4(e) provides that

A lawyer shall not ... in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.

In support of his argument, Neville cites Emerson v. State, 952 N.E.2d 832, 838 (Ind.Ct.App.2011), trans. denied, in which we concluded that the prosecutor’s call for the jurors to “stand up to this bully” was improper. See also Warner v. State, 265 Ind. 262, 265-66, 354 N.E.2d 178, 181 (1976) (concluding that prosecutor’s comment that “where law ends tyranny begins and for that reason I’m asking you to find this defendant guilty” was unnecessary, unprofessional, and improper). Neville also relies on State v. Cockerham, 294 S.C. 380, 365 S.E.2d 22 (1988), in which the South Carolina Supreme Court reversed the defendant’s conviction for murder and kidnapping due, in part, to the prosecutor’s following comments:

That night, February 9th, Dean Cocker-ham conducted a trial, much like the trial we are having here, in some ways, and in some ways, very far from it, because [the victim’s] Constitutional Rights, and the rights to a trial by jury didn’t do much for her that night, because on that night, he was her judge, he was her jury, and he was her executioner. And she didn’t have the right to ... be represented by a lawyer. She didn’t have the right to have independent people on her jury. Mr. Cocker-ham, loving Mr. Cockerham, took care of all that.

Id. at 23.

Here, the prosecutor’s comments emphasizing that Neville received justice but deprived Hood of comparable justice and urging the jury to provide justice and find Neville guilty for the sake of Jamal and his family “have no bearing on the defendant’s guilt or innocence.” Limp, 431 N.E.2d at 788. Such comments stir up the sympathies of the jurors for the victim and have the potential to eclipse the jury’s responsibility to base their decision of guilt or innocence solely on the evidence presented. We conclude that the prosecutor’s comments were improper.

We have concluded that two of the prosecutor’s comments were improper: the comment describing Neville as gloating over Hood’s body after the shooting and the comment appealing to the jury’s passions and sympathies. However, these statements were not made in a vacuum. We must consider whether the misconduct, under all the circumstances, placed Neville in a position of grave peril to which he would not have been subjected. Additionally, Neville must show that the improprieties resulted in fundamental error. Based on vigorous cross-examination of the witnesses, defense counsel was able to analyze the evidence in his own closing argument as follows:

And we have this wonderful witness, Diane Lane, who admits that she was high on crack that day, that makes her very reliable. She also gave two statements and one testimony, all three different.She’s on crack, she tells 3 different stories and she got money when she testified. She said well I can’t exactly say I saw him shoot Jamal. You know I thought it was pretty ingenious of [the prosecutor] to be able to figure out in his mind where those shell casings went. But he’s shooting out the window, he’s got his arm out the window, that’s not going to put them back in. He’d have to be in the passenger seat to fire — for the bullet — shells to come back in to the right. Which is pure speculation anyway. You can’t speculate somebody into a murder conviction. Then there is that stellar witness, Linda Shepherd Wilburn, she claims that [Neville] said, I know. They’re saying that you shot that boy, and he said, yes I know. They’re saying that you shot that boy, but when I asked her where in the transcript of her statement she said that, well it’s there, it’s there. She couldn’t find it because it wasn’t there. So somebody must have altered the transcription of her statement of course. You heard Detective Tudor say, no it’s not altered. I’ve reviewed it, it’s exactly the same as what she said. She didn’t say that [Neville] said, yes I know. Nobody testified that they saw this shooting. I thought it was pretty ingenuous for [the prosecutor] to make no evidence into damning evidence. The fact of the matter is there is no gun. There is no bullet or shells. There is no DNA, there is no fingerprints, there is no confession, there is no witness to the shooting. And there is no motive. What evidence did you hear that would point to any sort of motive. I submit to you, you didn’t hear any, not a thing.

Tr. at 485-87. Neville’s defense counsel forcefully countered the prosecutor’s arguments. Thus, defense counsel’s closing argument diminished any persuasive effect the prosecutor’s comments might have had on the jury’s decision if left unanswered. Moreover, the undisputed evidence is that Neville was in the alley when Hood was shot. The evidence shows that he was seen with a gun that day. Further, ten minutes before the shooting, Neville asked Lane to tell Hood to meet him in the alley, and Lane saw Hood get into his red truck. Although Neville told the detective that his red truck was not running the day of the murder, Neville’s wife testified that of their three cars, it was the only one that was running that day and that he took her to work and picked her up in it. Id. at 387. We conclude that the prosecutor’s comments during closing argument, under all the circumstances, did not have a probable persuasive effect on the jury that placed Neville in a position of grave peril. It follows that the prosecutor’s improper comments, either singularly or collectively, were not so detrimental to the opportunities for the ascertainment of truth so as to make a fair trial impossible. Accordingly, no fundamental error resulted.

II. Admissibility of Evidence

During Neville’s recorded interrogation, Detective Tudor asked Neville, “Why would I have folk telling me that on the day of the homicide they see you in that red truck shoot Hood.” State’s Ex. 55-A. Neville said, “They said that they seen me shoot Hood?” Id. Detective answered, “Uh-huh.” Id. Later, the detective told Neville, ‘Tour name was the only thing; it wasn’t it coulda been this, it coulda been that. It was you.” Id. At trial, Neville did not object to the admission of the detective’s statements. On appeal, Neville asserts that the detective’s statements lacked any basis in fact but the jury would have assumed that they were true, and therefore fundamental error occurred.

Neville cites Smith v. State, 721 N.E.2d 213 (Ind.1999), to bolster his argument. There, the recorded police interview with the defendant included the police stating that “half of the people at the jail’s [sic] called me wanting to tell me that you did it,” and “Lamprey [the State’s principal witness] said you did it because it was over Riggs [the victim] ripping you off your dope, your stash.” Id. at 216 (brackets omitted). The defendant objected to the admission of the statements on hearsay grounds. However, the defendant did not request an admonishment that the statements were not to be used for the truth of the matter asserted, and none was given. Our supreme court concluded that because the police statements appeared to be assertions of fact, and not mere questions, and no admonishment was given, the admission of the statements was reversible error. Id.

Here, the statements appear to be statements of fact and would constitute inadmissible hearsay pursuant to Smith. Of course, this case differs from Smith in that Neville did not object to the statements and must establish fundamental error. As previously mentioned, Neville’s counsel informed the jury in closing argument that Lane could not say that she saw Neville shoot Hood, that “[n]obody testified that they saw this shooting,” and “there is no witness to the shooting.” Tr. at 486-87. He also emphasized the unreliability of Lane’s and Wilburn’s testimony. Accordingly, we conclude that fundamental error did not occur.

III. Appropriateness of Sentence

Neville contends that his fifty-five year aggregate sentence is inappropriate and asks us to reduce it to forty-five years. Article 7, Section 6 of the Indiana Constitution authorizes this Court to independently review and revise a sentence imposed by the trial court. Smith v. State, 839 N.E.2d 780, 787 (Ind.Ct.App.2005). Indiana Appellate Rule 7(B) states, “The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.” Purvis v. State, 829 N.E.2d 572, 588 (Ind.Ct.App.2005) (internal citation and quotation marks omitted), trans. denied, cert, denied (2006). The defendant bears the burden of persuading the appellate court that the sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).

Here, Neville received the advisory sentence for murder. See Ind.Code § 35-50-2-3 (“A person who commits murder shall be imprisoned for a fixed term of between forty-five (45) and sixty-five (65) years, with the advisory sentence being fifty-five (55) years.”). “The advisory sentence is meant to be the starting point for the court’s consideration of what sentence is appropriate for the crime committed.” Smith, 839 N.E.2d at 787. Neville does not argue that the nature of his crime warrants a sentence below the advisory. Rather, he argues solely that the advisory sentence is inappropriate based on his character. In support, he directs our attention to the trial court’s statement that it received twenty-eight letters showing that Neville has a “concerned and caring network available to him and that he’s had a very positive effect on a great number of people.” Sent. Tr. at 29-80.

Neville’s argument ignores his criminal history. As a juvenile, Neville was found to be delinquent for forgery and battery resulting in bodily injury. As an adult, Neville was convicted of class B felony dealing in cocaine, and while on probation for that offense, he was arrested for class A misdemeanor domestic battery and battery resulting in bodily injury and his probation was revoked. The battery charges were ultimately dismissed pursuant to a plea agreement. Later, he was convicted for class A misdemeanor driving while suspended and class D felony possession of cocaine. At the time of his sentencing, there were two separate charges for driving while suspended pending against him. Balancing the letters on behalf of Neville against his criminal history, we cannot say that Neville’s character warrants a sentence below the advisory. In light of the nature of the offense and Neville’s character, we are unpersuaded that Neville’s fifty-five year advisory sentence is inappropriate.

Affirmed.

RILEY, J., and BAILEY, J., concur.

      . The record before us reveals a different sequence of phone calls. The phone records show that Wilburn called each of Neville's cell phones once between 6:56 and 6:57 p.m., that Neville called her at 7:00 p.m., and that she called him back at 7:01 p.m., at which time they had a two-minute conversation. State's Exs. 49-A (Neville’s cell phone records for 317-XXX-1999), 52-A, (Wilburn's cell phone records), 53-B Neville’s cell phone records for 317-XXX-1272.

      . The prosecutor then asked Wilburn what Neville said about the shooting, and she answered, “He said he knew he did it.” Tr. at 208 (emphasis added). However, on cross-examination, Neville's counsel referred Wilburn to the transcript of the statement that she had previously given to Detective Tudor and asked her whether she had said that Neville said he did it. Id. at 213. She answered, "He didn’t say that .... he said, I know. He didn’t say, I did, he said, I know. I said, you know the police looking for you, you shouldn’t have killed that boy. And he said, I know, just say I was with you.” Id. at 213-14 (emphasis added). Wilburn then confirmed that the transcript of her statement to Detective Tudor did not show that Neville said, "I know.” Id. at 214. She read from the transcript: "He asked me — he said, — he told me, he need a favor from me. And he had asked me — no he said, Linda I need you. I need you, and if anybody ask you anything just say I was with you. And I said, no man.” Id. at 214. She testified that "he [Detective Tudor] don't have all that what I said to him in here,” and that the transcript "was not a true and complete transcript of what she had told the detective.” Id. at 214-15.

      . We are unpersuaded by Neville’s contention that the person who initiated the phone calls is significant. The prosecution did not emphasize that point, and of the three times that Wilburn testified that Neville called her first, two of them were on cross-examination when defense counsel questioned her about the phone calls. Tr. at 215-16.


source: Caselaw Access Project

author: NAJAM, Judge.

license: Public Domain

text:
    Harry E. KNAUFF, JR. and Carolyn R. Knauff, Appellants, v. NATHAN T. HOVERMALE and SARAH E. HOVERMALE, Appellees.
    No. 52A05-1111-PL-584.
    Court of Appeals of Indiana.
    Oct. 24, 2012.

      W.L. Siders, Peru, IN, Attorney for Appellants.
    Patrick J. Roberts, Roberts Law Firm, Peru, IN, Attorney for Appellees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Harry E. Knauff, Jr. and Carolyn R. Knauff appeal the trial court judgment quieting title in certain real property in the names of Nathan T. Hovermale and Sara E. Hovermale following a bench trial. The Knauffs present three issues for review, which we consolidate and restate as whether the trial court erred when it determined that the Knauffs had not met their burden to prove adverse possession.

We affirm.

FACTS AND PROCEDURAL HISTORY

On April 6, 1983, the Knauffs purchased a landlocked 20-acre parcel and a 26-acre parcel from Donald E. Ensley in Miami County. The warranty deed for that purchase was recorded on October 20, 1992. Along the east border of the 20-acre parcel lies an untitled quarter-acre parcel (“the gapland”), and along the east border of the gapland lies a 2.33-acre parcel (“the disputed area”). Only part of the disputed area is tillable, and the size of the tillable area depends each year on several factors, including the amount of ground moisture. The remains of an old wire fence, which is broken down in some places, runs north to south somewhere in the middle of the disputed area. Since 1983, the Knauffs or their tenant farmed parts of the 20-acre parcel, the gapland, and the tillable part of the disputed area west of the broken down wire fence.

In 1987, the Hovermales purchased by special warranty deed an 11.171-acre tract (“the Hovermale parcel”) in Miami County from the Federal Home Loan Mortgage Corporation. The Hovermale parcel lies adjacent to and shares the eastern border of the gapland. In 2010, the Hovermales erected a fence on the western border of the Hovermale parcel, which is the same as the western border of the disputed area. Subsequently, the Knauffs obtained a survey and learned for the first time that they did not own the disputed area.

Nevertheless, on August 19, 2010, the Knauffs filed a complaint against the Hov-ermales seeking a declaratory judgment, to quiet title in the disputed area and the gapland, and seeking damages for trespass. The Hovermales filed an answer to the complaint and, later, a motion for special findings pursuant to Trial Rule 52(A). Following a bench trial on June 20 and 21, 2011, the parties filed proposed findings of fact and conclusions thereon. And on October 13, the trial court entered its order which, in relevant part, denied the Knauffs’ claims on all three counts, with the exception of awarding them ownership of the gapland “by default[,]” and quieted title in the disputed area in the Hover-males. The Knauffs now appeal.

DISCUSSION AND DECISION

Standard of Review

Where, as here, the trial court has entered special findings and conclusions thereon pursuant to Indiana Trial Rule 52, our standard of review is well settled:

First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. In deference to the trial court’s proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. We do not reweigh the evidence, but consider only the evidence favorable to the trial court’s judgment. Challengers must establish that the trial court’s findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We evaluate questions of law de novo and owe no deference to a trial court’s determination of such questions.

Kwolek v. Swickard, 944 N.E.2d 564, 570 (Ind.Ct.App.2011) (citation omitted), trans. denied. In other words, “[a] decision is clearly erroneous if it is clearly against the logic and effect of the facts and circumstances that were before the trial court” or if the court misinterprets the law. Id. (citation omitted).

We also observe that the Knauffs are appealing from a negative judgment. Thus, we will reverse that decision only if the evidence is without conflict and all reasonable inferences to be drawn from the evidence lead to a conclusion other than that reached by the trial court. Capital Drywall Supply v. Jai Jagdish, Inc., 934 N.E.2d 1193, 1199 (Ind.Ct.App.2010) (citation omitted).

Adverse Possession

The Knauffs contend that the trial court erred when it concluded that they had not proved the elements of adverse possession of the disputed area. The traditional common law elements of adverse possession required the claimant to prove the possession was (1) actual; (2) visible; (3) open and notorious; (4) exclusive; (5) under claim of ownership; (6) hostile; and (7) continuous for a statutory period of time. Fraley v. Minger, 829 N.E.2d 476, 485 (Ind.2005). In Fraley, however, our supreme court rephrased the elements of adverse possession, stating that “the doctrine of adverse possession entitles a person without title to obtain ownership to a parcel of land upon clear and convincing proof of control, intent, notice, and duration.” 829 N.E.2d at 486. These elements were defined in Fraley as follows:

(1) Control — The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of “actual,” and in some ways “exclusive,” possession);
(2) Intent — The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of “claim of right,” “exclusive,” “hostile,” and “adverse”);
(3) Notice — The claimant’s actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant’s intent and exclusive control (reflecting the former “visible,” “open,” “notorious,” and in some ways the “hostile,” elements); and
(4) Duration — The claimant must satisfy each of these elements continuously for the required period of time (reflecting the former “continuous” element).

Id. at 486. These elements must be satisfied for the statutory period of ten years. Hoose v. Doody, 886 N.E.2d 83, 92 (Ind.Ct.App.2008) (citing Ind.Code § 34-11-2-11), trams, denied. The failure to establish anyone element of an adverse possession claim defeats the claim. Fraley, 829 N.E.2d at 476. But “once a party established the elements of adverse possession, ‘fee simple title to the disputed tract of land is conferred upon the possessor by operation of law, and title is extinguished in the original owner.’ ” Garriott v. Peters, 878 N.E.2d 431, 439 (Ind.Ct.App.2007) (citation omitted), trans. denied.

The Knauffs contend that the trial court erred when it concluded that the Knauffs had not demonstrated by clear and convincing evidence all of the elements of adverse possession. Specifically, the Knauffs take issue with the trial court’s findings that the Knauffs did not demonstrate exclusive control and that the Knauffs did not substantially comply with Indiana Code Section 32-21-7-1, the adverse possession tax statute. We find the issue regarding the control element to be dispositive.

To establish the requisite control, an adverse possession claimant “must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land; this element includes former elements of actual and exclusive possession.” Ludban v. Burtch, 951 N.E.2d 846, 852 (Ind.Ct.App.2011) (citing Daisy Farm Ltd. P’ship v. Morrolf, 915 N.E.2d 480, 488 (Ind.Ct.App.2009)). In the present case, the trial court found in relevant part:

14. Several witnesses confirmed that various mushroom hunters searched along the wooded broken wire fence in the disputed area and other persons hunted for wildlife, deer and rabbit, in addition to Plaintiffs Knauff seeking butternut seeds and monitoring the growth of a butternut tree at the north end of the broken wire fence. Exclusive control of the disputed area by Plaintiffs Knauff is reasonably challenged by this evidence and testimony.

Appellant’s App. at 12. The trial court therefore concluded: “10. Thus use of the marsh ground, woods and wetlands [part of the disputed area] was occasional by Plaintiffs Knauff and was not exclusive ....” Id. at 14.

Here, the disputed area is a mixed use parcel. The evidence shows that the Knauffs used part of the disputed area for farming, although the size of the tillable portion changed from year to year. They also used part of the unfarmed portion to monitor a butternut tree. But the evidence also shows that others used the area, too, for hunting mushrooms and wild game. Harry Knauff testified that it was hard to keep the mushroom hunters out, but he did not testify that he tried to exclude or chase off mushroom hunters or anyone else from the property. The trial court concluded that the Knauffs failed to show control of the disputed area necessary to establish adverse possession because others had also used the area for hunting game and mushrooms. We may or may not have considered such occasional use by others to be inconsistent with establishing the control element of adverse possession under the circumstances presented in this case. But we cannot say that the trial court’s conclusion on this point is clearly erroneous, which is our standard of review on appeal.

Again, failure to establish any one element of an adverse possession claim defeats the claim. Fraley, 829 N.E.2d at 476. The Knauffs have not shown that the trial court clearly erred when it concluded that they failed to establish the control element of adverse possession. Thus, we need not consider whether they have established any other elements of adverse possession. As such, the Knauffs have not shown that the trial court erred when it entered judgment in favor of the Hover-males on the Knauffs’ complaint seeking a declaratory judgment, to quiet title in the disputed area, and seeking damages for trespass on the disputed area.

Affirmed.

MAY, J., concurs.

KIRSCH, J., dissents without opinion.


author: KIRSCH, Judge.

text:
    Shiloh JONES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1202-CR-74.
    Court of Appeals of Indiana.
    Oct. 29, 2012.
    Rehearing Denied Dec. 13, 2012.

      Deborah Markisohn, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

      . See Ind.Code § 35-42-2-1.

   OPINION

KIRSCH, Judge.

Shiloh Jones (“Jones”) appeals his convictions and sentence for domestic battery as a Class D felony, strangulation, a Class D felony, criminal confinement as a Class D felony, domestic battery as a Class A misdemeanor, battery as a Class A misdemeanor, and interference with reporting a crime as a Class A misdemean- or. On appeal, we address the following issues:

I. Whether Jones’s notice of appeal was timely filed;
II. Whether Jones’s multiple convictions for battery violate Indiana’s constitutional prohibition against double jeopardy;
III. Whether Jones’s criminal confinement conviction violates Indiana’s constitutional prohibition against double jeopardy;
IV. Whether the presiding judge had the authority to vacate the sentence ordered by the judge pro tempore; and
V. Whether the prosecutor committed misconduct by vouching for the complaining witness’s credibility by assuring jurors during the closing argument that she was telling the truth.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

In April 2011, Jones, his girlfriend R.O., and their two children, both of whom were under two years of age, lived together in a house in Indianapolis. During the afternoon of April IB, 2011, Jones and R.O. got into an argument about housework and child care responsibilities. A short time later, the verbal altercation became physical; Jones poured baby formula on R.O.’s face, slapped and bit her face, and choked her. Tr. at 34. Jones also pushed R.O. down on the couch, sat on her, and told her she couldn’t leave. Id. R.O. took their one-year-old child into the couple’s bedroom, but Jones “told [R.O.] to come out of the room[,] ... grabbed [her] by the hair and snatched [her] out of the room ... draggin’ from the floor onto the livin’ room [sic]-” Id. at 36. At various times thereafter, Jones slapped, pushed, and choked R.O. while the couple’s two children were in the room. Id. at 37. As the two tussled, Jones threw R.O. down to the floor and her knee “busted a little bit to where [her] skin had broke.” Id. at 40. At one point Jones also bit R.O. on the side of her face. Id. at 47. R.O. estimated that the entire episode lasted “between four and like eight o’clock,” id. at 83, after which Jones took R.O.’s cell phone and went outside to his vehicle. R.O. looked for the two cordless phones that were usually in the house, but could not find either of them. Id. 43-44. That night, Jones slept in the living room, and R.O. slept in the bedroom with the two children.

When Jones left the house around 8:30 the next morning, R.O. called a family member and later called the police. The State arrested Jones and charged him with domestic battery as a Class D felony; strangulation, a Class D felony; criminal confinement as a Class D felony; domestic battery as a Class A misdemeanor; battery as a Class A misdemeanor; and interference with reporting a crime as a Class A misdemeanor.

Jones was tried to a jury in the courtroom of the Honorable Barbara A. Collins. On November 14, 2011, Commissioner John J. Boyce was appointed judge pro tempore and presided over Jones’s trial. Appellant’s App. at 134. During closing argument, the deputy prosecutor asserted that R.O. had no reason to falsify her testimony and stated, “[S]he’s still here because it’s the right thing and she was telling you the truth.” Tr. at 159. Jones was convicted on all six counts. On November 28, 2011, Commissioner Boyce sentenced Jones to two years on each felony count and one year on each misdemeanor count with all sentences to be served concurrently. Jones’s two-year sentence was ordered to be served as follows: twelve months at the Department of Correction (“DOC”), six months on Community Corrections, and six months to be suspended and served on probation. Tr. 314-16.

Jones’s sentencing was complicated by the trial court’s need to address a probation violation from a previous conviction. During a December 12, 2011 hearing, the trial court noted, “[tjhere are some things that happened in the sentencing which couldn’t happen, okay, without at least some more evaluations and that’s what’s going to happen today, it’s going to be a Community Corrections evaluation and then the sentencing is going to [be] redone.” Tr. at 370. “I have to take into consideration everything, your past in your probation case, your presentence investigation and this new evaluation. They’re going to be looking at your mental health....” Id. at 371. The trial court set a second sentencing hearing.

On January 24, 2012, Judge Collins conducted a second sentencing hearing, which resulted in what is referred to in the CCS as “amended sentencing.” Appellant’s App. at 16. Jones was sentenced to 730 days at the DOC on each felony count and 365 days at the DOC on each misdemeanor count with all sentences to run concurrently. Id. at 16-17, 19-20. Jones now appeals.

DISCUSSION AND DECISION

I. Timeliness of Filing Notice of Appeal

As a preliminary matter, we address the State’s contention that Jones’s appeal was not timely filed. Commissioner Boyce presided over Jones’s jury trial, held on November 14, 2011, and his sentencing hearing, held on November 28, 2011. The State contends that because Commissioner Boyce served as a judge pro tempore for the trial and the sentencing hearing, the sentence imposed on November 28, 2011 constituted a final appealable order. Appellee’s Br. at 7.

“A party initiates an appeal by filing a Notice of Appeal with the Clerk ... within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary....” Ind. Appellate Rule 9(A)(1). The State contends that the thirty days ran from November 28, 2011 and expired in December 2011. As such, the State argues that Jones’s notice of appeal, which was filed February 16, 2012, was untimely filed. We disagree.

A notice of appeal must be filed “with the Clerk ... within thirty (30) days after the entry of a Final Judgment is noted in the [CCS ].” App. R. 9(A)(1) (emphasis added). Here, the trial court did not issue an “Order of Judgment of Conviction” until January 24, 2012. Appellant’s App. at 21-24. While the CCS reflects that a hearing occurred on November 28, 2011 for sentencing, on December 5, 2011 for a bond review, and on January 24, 2012 for sentencing, the CCS reflects that the “Order of Judgment of Conviction” was entered only on January 24, 2012. Appellant’s App. at 14-15, 21. Jones’s notice of appeal, which was filed less than thirty days after the entry of final judgment was noted in the CCS, was timely filed. Id. at 21-24.

II. Battery and Double Jeopardy

Jones contends that his multiple convictions for battery violate Indiana’s constitutional prohibition against double jeopardy. Specifically, he contends that he cannot be convicted for domestic battery as a Class D felony (Count I), domestic battery as a Class A misdemeanor (Count IV), and battery as a Class A misdemeanor (Count V) because “the evidence presented supports but a single offense of domestic battery.” Appellant’s Br. at 7. Jones bases his claim on the “actual evidence test” enunciated by the Indiana Supreme Court in Richardson v. State, 717 N.E.2d 32 (Ind.1999) and on the fact that Counts IV and V are each a lesser-inelud-ed offense of Count I. Appellant’s Br. at 5-8. Davenrport v. State, 734 N.E.2d 622, 624 (Ind.Ct.App.2000) (greater offense is the “same” for purposes of double jeopardy as any lesser offense included in it) (citing Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)), trans. denied (2001). We review whether multiple convictions violate the prohibition against double jeopardy de novo. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind.Ct.App.2005).

The State fails to address this issue. Relying on its argument that Jones’s appeal was untimely filed, the State offers just one sentence: “Defendant’s double jeopardy claim, even if correct, would only require this Court to vacate the misdemeanor battery convictions, ... but as all counts were ordered to be served concurrently, such would have no effect on Defendant’s actual sentence.” Appellee’s Br. at 8. This court will not undertake the burden of developing an argument on behalf of a party on appeal. Hall v. State, 837 N.E.2d 159, 160 (Ind.Ct.App.2005), trans. denied (2006). Nonetheless, it is our duty to decide cases correctly. Because this issue was raised by Jones and is properly before us and because our standard of review is de novo, we address the merits of Jones’s double jeopardy claim.

The Indiana Constitution’s Double Jeopardy Clause (“the Double Jeopardy Clause”), found in Article 1, Section 14 of the Indiana Constitution, “was intended to prevent the State from being able to proceed against a person twice for the same criminal transgression.” Richardson, 717 N.E.2d at 49. Two or more offenses are the “same offense” in violation of the Double Jeopardy Clause, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Id.

Under the “actual evidence” test, the evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. Id. at 53. To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish all of the essential elements of a second challenged offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002). To determine what facts were used, we consider the evidence, charging information, final jury instructions, and arguments of counsel. Rutherford v. State, 866 N.E.2d 867, 871 (Ind.Ct.App.2007).

The pertinent portions of each charging information and each final instruction to the jury relating to the battery counts were as follows. As to Count I, domestic battery as a Class D felony, the State alleged that Jones:

did knowingly in a rude, insolent or angry manner touch [R.O.], another person, who ... is or was living as if a spouse of the Defendant, or has a child in common with the Defendant, and further that said touching resulted in bodily injury to the other person, specifically red marks and/or scratches and/or pain; and further, the [Defendant committed said act in the physical presence of ... a child less than sixteen (16) years of age, knowing that said child was present and might be able to see or hear the offense.

Appellant’s App. at 28, 108 (emphasis added). As to Count IV, domestic battery as a Class A misdemeanor, the State alleged that Jones:

did knowingly in a rude, insolent or angry manner touch [R. O.J, another person, who ... is or was living as if a spouse of the Defendant, or has a child in common with the Defendant; and further that said touching resulted in bodily injury to the other person, specifically: red marks and/or scratches and/or pain.

Id. at 31, 111 (emphasis added). Finally, as to Count V, battery as a Class A misdemeanor, the State alleged that Jones:

did knowingly in a rude, insolent or angry manner touch [R.O.], another person, and further that said touching resulted in bodily injury to the other person, specifically: red marks and/or scratches and/or pain.

Id. at 32, 112 (emphasis added). As the emphasized language reveals, the State provided no details regarding the three batteries, but instead, alleged in general terms that Jones “did knowingly in a rude, insolent or angry manner touch” R.O., and that “said touching resulted in bodily injury to the other person, specifically: red marks and/or scratches and/or pain.” Id. at 28, 31, 32. Here, there is a reasonable possibility that each challenged battery offense was not established by separate and distinct facts.

In closing argument, the State revealed its understanding of how these three counts were different. The attorney for the State noted:

I didn’t mention in the D felony battery charge that it must be ... in the presence of a child, we talked about it during jury selection, that the State treats the crime of battery in front of a child differently than it does a battery without children present, we all agreed that was legal and that was an appropriate way to treat this charge and that is all, that’s the only reason that there is any difference between the A misdemeanor battery, which happened outside the presence of the children in the living room and the one that happened with the children, you know, in front of the children in the bedroom so I just ask you to keep that in mind.

Tr. at 159. The State claimed that the difference in proof between these three batteries was whether the battery occurred in front of the children in the bedroom or outside the presence of the children in the living room. The State, however, was incorrect in its assertion. In True v. State, our court addressed what it means for a domestic battery to occur in the presence of children by stating:

If the jury were to find the battery did not occur in the presence of children merely because none of the children saw the battery, that would represent a misunderstanding of what the statute requires. “Presence” is defined as knowingly being within either the possible sight or hearing of a child. I.C. § 35-42-2-1.3(b)(2). And, if the State’s evidence here was to be believed, G.T. and A.F. unquestionably heard the confrontation between A.T. and True. In any event, none of the children had to actually sense the battery; there only needed to be the possibility that they “might” see or hear it. See Boyd v. State, 889 N.E.2d 321, 325 (Ind.Ct.App.2008), trans. denied.

True v. State, 954 N.E.2d 1105, 1110-11 (Ind.Ct.App.2011). Based on the above reasoning, we find a violation of the prohibition against double jeopardy because Counts IV and V are lesser included offenses of Count I and because the State relied on the same evidence to convict Jones of all three offenses.

When two convictions are found to contravene double jeopardy principles, a reviewing court may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation. Moala v. State, 969 N.E.2d 1061, 1065 (Ind.Ct.App.2012). If it will not, one of the convictions must be vacated. Id. “In the interest of efficient judicial administration, the trial court need not undertake a full sentencing reevaluation, but rather the reviewing court will make this determination itself, being mindful of the penal consequences that the trial court found appropriate.” Id. (citing Richardson, 717 N.E.2d at 54). In Richardson, the defendant was convicted of robbery as a Class C felony and battery as a Class A misdemeanor, which our Supreme Court found to be a violation of the Indiana Double Jeopardy Clause under the actual evidence test. Richardson, 717 N.E.2d at 54. Because both convictions could not stand, the court in Richardson vacated the conviction with the less-severe penal consequence and left the robbery conviction standing. Id. at 55.

Jones was convicted in violation of Article 1, section 14, of Class D felony domestic battery, Class A misdemeanor domestic battery, and Class A misdemeanor battery. The two Class A misdemeanor battery convictions have the less-severe penal consequences. Accordingly, we vacate both the convictions and sentence for the Class A misdemeanor domestic battery (Count IV) and for the Class A misdemeanor battery (Count V), and leave standing the conviction and sentence for Class D felony domestic battery (Count I).

III. Criminal Confinement and Double Jeopardy

Jones next contends that his conviction for criminal confinement violates the prohibition against double jeopardy set forth in Indiana Constitution, Article 1, Section 14. Jones again bases his claim on the “actual evidence test” enunciated by the Indiana Supreme Court in Richardson, and the State again fails to make an argument as to why Jones’s conviction for criminal confinement does not constitute double jeopardy. We review the claim of double jeopardy de novo. Goldsberry, 821 N.E.2d at 458.

To support his argument, Jones cites to Cunningham v. State, 870 N.E.2d 552, 553 (Ind.Ct.App.2007), a case in which our court reviewed the sufficiency of the evidence to support a conviction for criminal confinement. Noting that the offense of confinement requires proof of a substantial interference with a person’s liberty without the person’s consent, our court also made clear that “in order to prove confinement beyond the main crime charged, there must be something more than the act necessary to effectuate the crime.... ” Cunningham, 870 N.E.2d at 553. Jones maintains that the State’s evidence established the essential elements of felony domestic battery and strangulation, but that there was no confinement of R.O. greater than that required to effectuate the crimes. Stated differently, Jones contends that the evidence used to convict Jones of battery and strangulation was the same evidence used to convict him of criminal confinement. Appellant’s Br. at 9. We disagree.

The conflict between Jones and R.O. began with a verbal altercation on the afternoon of April 13, 2011. The exchange escalated and became violent. The entire episode lasted four hours and occurred in the presence of the couple’s children, who were under the age of sixteen. R.O. testified that Jones poured formula on her face, slapped her face, and bit her on the side of her face. Id. at 34-35, 47. This evidence supported Jones’s conviction for Class D felony domestic battery. See Ind.Code § 35-42-2-1.3. R.O. also testified that Jones choked her; “I couldn’t breathe I was gaspin’ for air and I kept askin’ him to stop.” TV. at 34. This evidence supported Jones’s conviction for Class D felony strangulation. Ind.Code § 35^42-2-9.

The State charged that Jones “did knowingly confine R.O., another person, without said person’s consent.” Appellant’s App. at 30. In addition to Jones choking, slapping, and biting R.O., there was also evidence that Jones criminally confined R.O. R.O. testified that Jones pushed her onto the couch, sat on top of her, and told her that she “couldn’t get up,” and “couldn’t leave.” TV. at 34. Additionally, through his actions, Jones kept R.O. in the home until he left the next morning, at which time R.O. called her family and then the police.

The actual evidence to convict Jones of criminal confinement was different from the evidence required to convict him of domestic battery and strangulation. Jones’s conviction for criminal confinement did not violate the prohibition against double jeopardy

IV. Sentencing

Jones contends that Judge Collins did not have the authority to vacate the sentence previously imposed by Commissioner Boyce. Commissioner Boyce, acting as judge pro tempore, sentenced Jones on November 28, 2011, to two years on each felony count and one year on each misdemeanor count with all sentences to be served concurrently. Tr. at 314-16. Of that time, the trial court ordered Jones to serve 365 days in the DOC, 180 days in Community Correction, and 180 days on probation. Id. Both parties agree that Commissioner Boyce, by acting as judge pro tempore at the criminal trial, had the authority to conduct the sentencing hearing and impose a sentence. Appellant’s Br. at 12-14; Appellee’s Br. at 9. See Long v. State, 962 N.E.2d 671, 673 (Ind.Ct.App.2012) (citing Ind.Code § 33 — 23—5—9(b)) (magistrate presiding at criminal trial may enter final order, conduct sentencing hearing, and impose sentence), trans. denied.

During a hearing held on December 12, 2011, the trial court noted:

COURT: Okay Mr. Jones, here’s the story. There are some things that occurred that, as to your sentencing, that can’t happen[ ] without some more evaluations .... [a]nd that’s what’s going to happen today, it’s going to be Community Corrections evaluation and then the sentencing is going to be redone. Meanwhile, you’ll be in jail.... I have no idea which way this is going to go. Do you understand that?
MR. JONES: Okay.
COURT: I have to take into consideration everything, your past in your probation case, your pre-sentence investigation and this new evaluation. They’re going to be looking at your mental health and I take it that he was evaluated for competency and insanity and they decided he was competent etcetera?
PUBLIC DEFENDER: Correct but it did mention some mental health issues.

TV. at 370-71. Thereafter, the trial judge asked Jones questions about his mental health and the treatment he received for his mental health. Id. at 371-75.

During a sentencing hearing held on January 24, 2012, Judge Collins heard testimony from R.O., Jones, and Jones’s sister on topics covering Jones’s mental health and corresponding treatment, his involvement in the life of his fourteen-year-old daughter, his job prospects, and the possibility of living with his sister in the event the trial court allowed him to serve time in Community Corrections. Id. at 185-202. The trial court also explored information from Marion County Community Corrections, which was provided in the form of a memorandum dated January 20, 2012. Id. at 198.

At the conclusion of the hearing, Judge Collins stated:

I don’t have any choice, I’ve read everything in here, I am sending him to DOC. And then he will have a period of time probably on the probation/Community Corrections. So that’s why I’m trying to figure out where is the, all of the credit going to go, on the conviction that I’m sentencing him to DOC or what. Let me know.

Id. at 208-09. Noting the problematic situation of having to consider Jones’s sentence under this cause number as well as his sentence for a probation violation on a previous conviction, the trial court stated:

730 day DOC [sic], and I very rarely do it but I am really struck by the combination of these two cases. He did know that he had a significant mental health, mental illness and didn’t follow through. That’s typical and we usually work with that but it didn’t get here for me to deal with that in a sufficient time and I apologize, I would have liked to have done more. I don’t know if that would have figured, would have straightened it out but to me it’s not punishment it’s purely incapacitation. So 730 days DOC, 730 days executed, how much credit?

Id. at 209. For time served plus credit time, Jones received 572 days of credit, which was credited against his most restrictive placement, i.e., the executed time in DOC. Id. The remainder of the sentencing hearing addressed the sentence imposed for Jones having violated his probation.

Jones did not object during the December 12, 2011 hearing when the trial judge told him “the sentencing is going to be redone,” tr. at 370, nor did he object at the January 24, 2012 hearing, during which Judge Collins entered an amended sentence. Recognizing that his failure to object waives his challenge to Judge Collins’s authority on appeal, see Floyd v. State, 650 N.E.2d 28, 32 (Ind.1994), Jones attempts to avoid waiver by arguing that the sentencing error was fundamental in nature. See Beasley v. State, 267 Ind. 396, 404, 370 N.E.2d 360, 364 (1977) (although failure to object at trial normally waives error on appeal, such is not the case when error is fundamental). “Fundamental error is error such that, if not rectified, would be a denial of fundamental due process.” Ware v. State, 816 N.E.2d 1167, 1179 (Ind.Ct.App.2004). An improper sentence constitutes fundamental error and cannot be ignored on review. Id. While we may correct sentencing error by the trial court on appeal even though the issue was not raised below, id., here we find no such error.

While Judge Collins had to re-sentence Jones because necessary evaluations had not been completed prior to Commissioner Boyce’s November 28, 2011 hearing, the amended sentence did not increase Jones’s original sentence of 730 days. The one change was that Jones would have to serve his entire sentence executed at the DOC, instead of having some of his sentence on Community Corrections and some on probation. This change, however, does not constitute fundamental error. The grant of probation is a favor and not a right. Beeler v. State, 959 N.E.2d 828, 829 (Ind.Ct.App.2011), trans. denied. As with probation, placement in a community corrections program “is a ‘matter of grace’ and a ‘conditional liberty that is a favor, not a right.’ ” Brown v. State, 947 N.E.2d 486, 489 (Ind.Ct.App.2011) (quoting Million v. State, 646 N.E.2d 998, 1001-02 (Ind.Ct.App.1995)), trans. denied. Therefore, Judge Collins’s amended sentencing, which changed only placement in Community Corrections and probation, did not affect Jones’s substantial rights or in any manner deprive Jones of due process. We find that the amended sentence imposed by Judge Collins did not constitute fundamental error.

V. Prosecutorial Misconduct

Finally, Jones contends that the deputy prosecutor engaged in prosecutorial misconduct during closing argument of the guilt phase of the jury trial by impermissi-bly vouching for R.O.’s credibility. Jones concedes that he did not object to the prosecutor’s remarks but contends that the prosecutor’s comments constituted fundamental error, which justifies a new trial. Appellant’s Br. at 16-20. The State fails to address Jones’s fundamental error argument, but instead argues that Jones’s “prosecutorial misconduct claim is unavailable for appellate review because [he] failed to properly preserve the issue by objecting, requesting an admonishment, and moving for a mistrial.” Appellee’s Br. at 7 (citing Delarosa v. State, 938 N.E.2d 690, 696 (Ind.2010); Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006)).

During closing argument, the deputy prosecutor made the following statement:

You’ve heard no evidence that [R.O.] had any reason to make this up about Shiloh Jones; in fact she had every reason to do the opposite. Coming and being a witness for the State, giving these statements to the police, coming down doing depositions, setting [sic] outside the courtroom knowing what’s going on in here, it’s not fun, it’s not pleasant, it’s not exciting, it’s difficult, it’s scary[,] period. But she’s here, right there, she’s still here because it’s the right thing and she was telling you the truth.

Tr. at 158-59. In Cain v. State, 955 N.E.2d 714, 721 (Ind.2011), our Supreme Court noted:

When a prosecutor is alleged to have made an improper argument at either the guilt or penalty phase of a trial, the defendant should request an admonishment from the trial court. Cooper, 854 N.E.2d at 835. If the defendant believes the admonishment to be insufficient, he should move for a mistrial. Id. When the claim of prosecutorial misconduct has been properly preserved through this procedure, we examine it in two steps. “[W]e determine (1) whether the prosecutor engaged in misconduct, 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.” Id.

Because Jones did not object, request an admonishment, or move for a mistrial, he seeks relief on the basis that the prosecutor’s comments constituted fundamental error.

In some instances, prosecutorial misconduct may amount to fundamental error. Cowan v. State, 788 N.E.2d 1270, 1277 (Ind.Ct.App.2003), trans. denied. For such misconduct to rise to the level of fundamental error, however, it must be so prejudicial to the rights of the defendant as to have made a fair trial impossible. Id. In determining whether an alleged error rendered a judicial proceeding unfair, this court must consider whether the resulting harm or potential for harm is substantial. Id. A review of the totality of the circumstances and a determination whether the error had a substantial influence upon the outcome are required. Id.

Assuming without deciding that it was error for the prosecutor to make statements about R.O.’s credibility, we address whether Jones was denied fundamental due process. Identity was not the issue at trial; instead, the issue before the jury was whether Jones had committed the charged offenses. The main witness for the State was the victim, R.O. The jury heard her testimony regarding the events that happened on the day in question. They also heard from two police officers who investigated the crimes and took photographs of R.O. to reflect her injuries.

The defense offered no witnesses but, instead, questioned R.O.’s credibility. Defense counsel asked R.O., “[Y]ou understood that you were to tell everyone, that you were to speak the truth and the whole truth?” Appellant’s App. at 76. Additionally, defense counsel highlighted the inconsistencies in R.O.’s version of the events on the day in question. Tr. at 76-81.

During closing argument, the State maintained that R.O. was telling the truth. In rebuttal, the defense counsel during closing argument again raised the issue of R.O.’s credibility.

What we’re dealing with is a picture versus a thousand words.... Mr. Schmadeke [prosecutor] would have you gloss over all the details so that you’re not able to focus on the fact that what we talked about earlier is the change in the details is why you can’t rely on the testimony of [R.O]. So let’s talk about the thousand words, the testimony of [R.O],

Tr. at 164-65. Defense counsel went on to explain the various inconsistencies in R.O.’s testimony — how she changed her story over time, adding injuries not previously mentioned. Id. at 165-68. Defense counsel also suggested that the photograph exhibits did not reveal the injuries that R.O. claimed she had sustained.

[The State] was talking about pictures again, we’re talking about testimony versus pictures. [The State’s witness] testified that if there are injuries she takes pictures of them. She also testified in certain situations she’ll take pictures of people claiming that there’s (inaudible), claiming that there’s injuries, she’ll take pictures, that’s what she’s trained to do, that’s what she’s suppose to do. But we don’t have pictures of [R.O.’s] back where she was allegedly slammed into the wall ten times. That’s not something you just forget to tell the officer and they forget to take pictures. She mentioned that she was bitten in the face; she mentioned that she was choked. If she had been slammed into the wall ten times that officer is trained to take pictures of those (inaudible). Pictures, it all comes back to that. Testimony you understand can change. It is about the details because over time people add, subtract, lies begat lies, you have to change your story, you have to try to remember things, you add things, you subtract things, truth is easy to tell.... That’s not a picture of someone who’s been strangled three times, that’s not somebody who’s been beaten about the face four times, that’s not a picture of someone who’s been dragged by her hair around the apartment, that’s a picture of someone who’s fine.

Id. at 168-69.

Jones’s theory at trial was that R.O.’s story was inconsistent and could not be believed. During closing argument, the State asserted that R.O. was telling the truth. In rebuttal, defense counsel again asserted that R.O.’s story was inconsistent. Here, where R.O.’s credibility was at issue and both sides had their say on the matter, we cannot say that the statements made by the State placed Jones in a position of grave peril to which he should not have been subjected. Furthermore, because the statements did not deny Jones a fair trial, we find no fundamental error.

Conclusion

On the basis of double jeopardy, we reverse Jones’s convictions for Count IV, Class A misdemeanor domestic battery, and Count V, Class A misdemeanor battery, and we affirm Jones’s conviction and sentence for Count I, Class D felony domestic battery. In all other respects, we affirm the trial court’s decision. Therefore, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

NAJAM, J., and MAY, J., concur.

      .See Ind.Code § 35-42-2-1.3.

      . See Ind.Code § 35-42-2-9.

      . See Ind.Code § 35-42-3-3.

      . See Ind.Code § 35-42-2-1.3.

      . See Ind.Code § 35-45-2-5.

      . Although the court reporter's transcript of proceedings reflects that the hearing was taken on December 12, 2072, tr. at 368, the CCS correctly reflects the date as December 12, 2077. Appellant's App. at 15.

      . The State filed its Appellee’s Brief on August 13, 2012. Thereafter this court granted the State's motion to amend the Appellee's Brief to include a previously omitted page, and the State filed its Amended Brief of Appellee on August 17, 2012. For ease of reference, we refer to the Amended Brief of Appellee as Appellee’s Br.

      . The State's entire argument regarding this issue is: "Defendant’s double jeopardy claim, even if correct, would only require this Court to vacate ... possibly the criminal confinement conviction, but as all counts were ordered to be served concurrently such would have no effect on Defendant’s actual sentence.” Appellees Br. at 8.

      . It is unclear which judge presided over this hearing. The transcript of the hearing reflects that the hearing took place before Judge Collins, tr. at 368, however, the CCS, which is the official record of the court, indicates that Commissioner Boyce presided. Appellant's App. at 15.