author: CRONE, Judge.

text:
    Bruce RYAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1211-CR-932.
    Court of Appeals of Indiana.
    July 31, 2013.

      Deborah Markisohn, Marion County Public Defender Agency, Appellate Division, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Bruce Ryan appeals his two convictions for class C felony sexual misconduct with a minor. He argues that the prosecutor improperly commented on his constitutional rights to a jury trial, improperly demeaned defense counsel, improperly urged the jury to convict him for reasons other than his guilt, and improperly commented on the truthfulness of the victim. Having failed to preserve his claims of error, he argues that the cumulative effect of the prosecutor’s misconduct resulted in fundamental error requiring reversal of his convictions and remand for a new trial. We conclude that the prosecutor committed misconduct by suggesting to the jury that Ryan was having a jury trial to try to get away with his crime, by telling the jury that defense counsel made an argument that allows guilty people to go free and was a trick, by urging the jury to convict him “to send the message that we’re not going to allow people to do this” and by telling the jury that the victim told the truth about what happened. We further conclude that the error resulting from this misconduct is fundamental, and therefore we reverse Ryan’s convictions and remand for a new trial.

Facts and Procedural History

The facts most favorable to the jury’s verdict indicate that in the summer of 2011, forty-three-year-old Ryan was an eighth-grade physics teacher. He was married with two children. Fourteen-year-old Z.W-B. was a student at the school where Ryan taught. She had been enrolled in the school since the sixth grade, had known Ryan since she was eleven years old, and had taken his eighth-grade physics class. Z.W-B. has Asper-ger’s syndrome.

That summer, Z.W-B. attended Ryan’s science club at the school. More often than not, she was the only student in attendance. Ryan and Z.W-B. began to email and chat online. They used Google Plus, a social networking site similar to Facebook, to send private messages to each other. They chatted online every night. Initially, the purpose of their chats was to discuss the science club, but the content became more personal.

Their relationship became romantic when Z.W-B. told Ryan untruthfully that her father abused her so that Ryan would like her and feel sorry for her. Tr. at 50. She told Ryan that she did not want the abuse to become public knowledge because her mother might hurt herself if she heard about the abuse. Id. at 74-75. Afterward, Ryan told her that he loved her, and she told him that she loved him.

Sometime late in the summer they kissed in the storeroom in the back of Ryan’s classroom. During the late summer and into the fall, Ryan and Z.W-B. kissed at least ten times in the storeroom. They kissed eight times with open mouths and with their tongues. Id. at 80. When they kissed this way, the kisses felt sexual to Z.W-B., and she was sexually aroused. Some of these encounters occurred while school was in session. During this time, Ryan gave Z.W-B. jewelry, a t-shirt, trinkets, and toys. On Z.W-B.’s birthday, Ryan threw her a party in the storeroom with candles and ice cream, and they kissed open-mouthed. During their times in the storeroom, Ryan never touched her breasts or vagina, and she never touched his penis. All their contact was limited to hugging and kissing.

Also during this time, Ryan and Z.WB.’s online chats became romantic. On September 4, 2011, Ryan wrote, “Miss you,” and Z.W-B. responded, “I miss you indescribably.” State’s Ex. 1 at 21. On September 18, 2011, Ryan wrote, ‘You are fantastic,” and Z.W-B. wrote, “Thanks, love.” Id. at 19. On September 16, 2011, Ryan sent Z.W-B. a message that ended with “I love you.” Id. at 18. Z.W-B. responded, “[Tjoday has been it’s [sic] own lifetime. It was wonderful. Thank you. I love you.” Id. at 19.

On October 8, 2011, Z.W-B. wrote, “I miss you. Thinking of you all the time,” and Ryan wrote, “Miss you.” Id. at 17. On October 16, 2011, Z.W-B. wrote, “See you in the morning. Love you. To pieces.” Id. at 15. On October 18, 2011, Ryan wrote, “A lovely science club. Miss you. Thank you,” and Z.W-B. wrote, “I miss you too.” Id. at 14. On October 23, 2011, Ryan wrote, “Missing you. Feels horrible with the one way communication. Messages in bottles. In a weird way though it’s like you’re with me all the time. Think about you constantly.” Id. at 10.

On October 28, 2011, Z.W-B. wrote,

I don’t feel like I’m helping at all. I’ve certainly not improved the situation between you and your wife. I keep you up late and away from your work. I make you risk everything all the time. Horrified that I will have to convince you that I’m really not worth it. Even more horrifying is that you may not need any convincing. Especially after yesterday’s storeroom incident. You mean an awful awful lot to me. Maybe things will clear up later. Or something. I don’t know. But I love you.

Id. at 9. Ryan responded,

You’ve a tremendous positive impact on me. Can’t imagine a life without you. You’re helping me through a tough time. Trying to strike a difficult balance of as much time with you as possible without turning everyone against us. Friday was its own lifetime. I can’t thank you enough. I am so privileged.

Id.

There were also messages in which Ryan discussed marital difficulties with his wife, his sex life with his wife, and his wife’s physical appearance. Tr. at 49-50. Z.W-B. also sent messages expressing her desire to have sex with Ryan, but he declined, saying that he was afraid that they could get caught or that she would be hurt in some way. Id. at 52.

On October 29, 2011, Z.W-B.’s parents discovered her online communications with Ryan and notified the school and the police. The State charged Ryan -with three counts of class C felony sexual misconduct with a minor, with Count I alleging that the misconduct occurred on or about or between October 10 to October 24, 2011, Count II alleging that the misconduct occurred on or about or between October 17 to October 21, 2011, and Count III alleging that the misconduct occurred on or about or between October 24 to 28, 2011.

A two-day jury ‘trial was held. In her closing arguments, the prosecutor made the following relevant comments:

The most important person here to evaluate their credibility is [Z.W-B.] And does she have a motive or a bias to lie? And yes, she has a huge motive [or] bias to lie and say that nothing happened. Because she loves him; for some unexplainable reason she loves him and she didn’t want him to be caught. She hated that he was going to be caught. But she didn’t, she told you the truth. As uncomfortable and awkward as she was wp there, she told you the truth of what happened. And I’m not sure if she would have been strong enough or smart enough to tell the truth if it wouldn’t have been for these [Google Plus pages]. And again, you will get the copy that I admitted when you go back to deliberate. Please re-read them, see the picture of her in her school girl uniform sleeping in his chair in his classroom, it’s posted on her. Read the way that they communicate with each other and think about it. This is a prosecutor’s dream I can tell you in these kinds of cases. Because the law that you may convict based on the word of the child alone is usually all that we have. We don’t get DNA; we don’t get injuries to children. We get a kid and we’ve got to put them up there and they’ve got to convince 12 to 14 grown adults. And it’s always a he said, she said. Because these kinds of guys never want to admit it, why? Because they’re the kinds that do it. So this is awesome. Not that it happened, but that you get to see it. And remind yourself that this is a teacher. I love you, picturing you sleeping is a lovely image. We know what happens [to students] that have their teachers do this kind of stuff and prey upon them, we know now what happens. And it’s what happened to her; in the sick crazy spiral that people like him put them in. You should believe her, she is credible, alone she makes the case. And you may convict him based just on her word. You need nothing else. But this just drives it home. Fit this into the innocent hole if you will please. Because it just doesn’t go. She has every reason to have lied and covered for him and she didn’t. You wonder at night what you can say to a jury to get them to get the bigger picture here. And no case is easy for you guys, I get that. No one want[s] to judge someone else or somebody else’s actions. But we keep hearing about this happening, whether it’s a teacher, or a coach, or a pastor, whoever. And we all want to be really angry and post online and have strong opinions about it. And we never think that we’ll be the ones that are here that get to stop it. And you actually do get to stop it. And as much as I know you probably did not want to be here on Monday morning, I would submit to you that you are in an incredible position to stop it and to send the message that we’re not going to allow people to do this. Those of who [sic] are good teachers are not going to allow grown men to prey upon their students and get away with it. I want to be really clear, we are here because everyone has the right to have a jury trial. We’re not here because he didn’t do it, we’re here because he wants to get away with it. So don’t let him, thank you.

Id. at 139 — 41 (emphases added).

In her rebuttal, the prosecutor stated,
I guess it’s frustrating in these cases because these kinds of arguments are how guilty people walk. And so, when you think about how people get away with it it’s because defense attorneys do things like say well, it was a lousy investigation.... Saying that you can fit any of this into a reasonable theory of innocence is — I apologize, but it’s ridiculous. So the first thing defense attorneys do in this case is they attack the quality of the investigation. Then what they do is they bring up cases of false accusations in the media, right? Whatever it is, the Perm State — or whichever other one — Duke; they bring up[. W]hy? To make you worry that somehow you’re going to convict him and then it will turn out that it was all bogus. That’s [a] classic defense attorney trick.But that’s what defense attorneys do as part of doing their job that they want to make you believe that maybe he did it and they just didn’t charge the right dates.She’s never been dishonest. She spoke to her parents, she spoke to the principal, she spoke to Detective White, and she gave a deposition. You better believe if there had been inconsistencies in any of her statements, [defense counsel] would have been down her throat about those when she testified. But he wasn’t because there ai'en’t any. And to make clear that [Z.W-B.] gets nothing out of this. She doesn’t want him to get in trouble; she wants him to want to be with her. And that’s why what she told you was even more credible. Because if she thought she could get away with covering for him again, she would. But the jig is up; we’ve seen the Google Plus postings. The jig is up. She has to be honest now and she’s done that.

Id. at 151-54 (emphases added).

The jury acquitted Ryan of Count I and found him guilty of Counts II and III. Ryan appeals.

Discussion and Decision

Ryan contends that several of the prosecutor’s statements during closing argument constitute misconduct, which cumulatively require reversal of his convictions. Generally, 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. Neville v. State, 976 N.E.2d 1252, 1258 (Ind.Ct.App.2012), trans. denied (2013). Ryan acknowledges that he failed to properly preserve his claims.

To prevail on a claim of prosecutorial 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. 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. Whether a prosecutor’s argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct. The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct.
Fundamental error is an extremely narrow exception to the contemporaneous objection rule that allows a defendant to avoid waiver of an issue. 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. The element of harm is not shown by the fact that a defendant was ultimately convicted. 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. The mere fact that an alleged error implicates constitutional issues does not establish that fundamental error has occurred.

Nichols v. State, 974 N.E.2d 531, 535 (Ind.Ct.App.2012) (citations and quotation marks omitted).

Ryan asserts that the prosecutor improperly commented on his constitutional right to a jury trial, improperly disparaged defense counsel, improperly urged the jury to convict him for reasons other than his guilt, and improperly commented on Z.WB.’s credibility. We address each in turn and then address their cumulative effect.

First, Ryan argues that the prosecutor improperly commented on his constitutional right to a jury trial when she stated, “I want to be really clear, we are here because everyone has the right to a have a jury trial. We’re not here because he didn’t do it, we’re here because he wants to get away with it.” Tr. at 141. A criminal defendant’s right to a jury trial is guaranteed in both the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Indiana Constitution. Our supreme court has stated that the right to a jury trial is “[a] fundamental linchpin of our system of criminal justice.” Kellems v. State, 849 N.E.2d 1110, 1112 (Ind.2006).

The State asserts that Indiana courts have not held that references to a defendant’s constitutional right to a jury trial are prosecutorial misconduct, but Indiana courts have not previously been presented with this question. We have stated that, generally speaking, when a prosecutor “makes a statement in argument which directly or indirectly may be interpreted by the jury as a comment on the accused’s exercise of his rights,” she commits prose-cutorial misconduct. Dack v. State, 479 N.E.2d 96, 97 (Ind.Ct.App.1985), trans. denied (1986). Specifically, courts have found that prosecutorial comments in reference to two constitutional rights constitute misconduct: the right against self-incrimination and the right to be represented by counsel. The reasoning supporting these determinations is helpful to our analysis here.

We have held that a defendant’s Fifth Amendment privilege against self-incrimination is violated and a prosecutor commits misconduct when she makes a statement that ‘“is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant’s silence.’” Owens v. State, 937 N.E.2d 880, 893 (Ind.Ct.App.2010) (quoting Ziebell v. State, 788 N.E.2d 902, 913 (Ind.Ct.App.2003)), trans. denied (2011). The basis for this principle is that “comment on the refusal to testify amounts to a penalty imposed by courts for exercising a constitutional privilege and that to allow such comment would impinge on the privilege against self-incrimination by making its assertion costly.” Id. at 886 (citing Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)). In addition, the federal courts have held that a defendant’s Sixth Amendment right to counsel was violated when the prosecutor suggested that the accused’s phone call to his attorney after his arrest indicated guilt. Zemina v. Solem, 438 F.Supp. 455, 466 (D.S.D.1977), adopted by 573 F.2d 1027 (8th Cir.1978). The reasons for this decision were that “comment on a defendant’s exercise of his right to counsel could make that exercise costly,” and “the prosecution should not be allowed to imply that only guilty people contact their attorneys.” Id. See also United States ex rel. Macon v. Yeager, 476 F.2d 613, 616-17 (3rd Cir.1973) (holding that prosecutor’s comment regarding the accused’s call to his counsel the day after the shooting was directed to and may have had the effect of raising in the jurors’ mind that the accused was guilty and that such an inference might tend to cause the jury to disbelieve the accused’s version of the story), cert, denied.

The reasoning prohibiting a prosecutor from commenting on a defendant’s exercise of the Fifth Amendment right to remain silent and the Sixth Amendment right to counsel applies equally to a defendant’s right to a jury trial. That is, comment on a defendant’s exercise of the right to jury trial impinges upon that right by making its assertion costly, and the prosecution should not be allowed to imply that only guilty people exercise their right to a jury trial. Accordingly, we conclude that if a prosecutor’s comment can fairly be said to penalize the defendant’s exercise of the right to a jury trial, such a comment constitutes prosecutorial misconduct.

Here, the prosecutor stated, “We’re not here because he didn’t do it, we’re here because he wants to get away with it.” Tr. at 141. Ryan contends that the prosecutor’s comment penalized the exercise of his right to a jury trial “by implying [that] jury trials are only for guilty people who were trying to get away with their crimes.” Appellant’s Br. at 8 (quotation marks omitted). He argues that the comment undermined how jurors viewed the entire jury trial process. The State argues that the prosecutor’s statement was not misconduct because it “invited the jury to make an inference of guilt from the evidence at trial, not from the exercise of a constitutionally protected right.” Appellee’s Br. at 9.

We fail to see how the prosecutor’s comment can be construed as an invitation to the jury to convict Ryan based on the evidence that was presented. Rather, it is obvious that the prosecutor’s comment suggested to the jury that Ryan chose to have a jury trial because he wanted to try to get away with his crimes. By suggesting that Ryan’s decision to exercise his right to a jury trial indicated that he was guilty, the comment impermissibly penalized Ryan’s constitutional right to a jury trial by making its exercise costly. Accordingly, we conclude that the comment violated Ryan’s right to a jury trial and therefore constituted prosecutorial misconduct.

Second, Ryan argues that the prosecutor improperly disparaged defense counsel with the following comments:

I guess it’s frustrating in these cases because these kinds of arguments are how guilty people walk. And so, when you think about how people get away with it it’s because defense attorneys do things like say well, it was a lousy investigation.... Then what they do is they bring up cases of false accusations in the media, right? Whatever it is, the Perm State — or whichever other one— Duke; they bring up[. W]hy? To make you worry that somehow you’re going to convict him and then it will turn out that it was all bogus. That’s [a] classic defense attorney trick.... But that’s what defense attorneys do as part of doing their job that they want to make you believe that maybe he did it and they just didn’t charge the right dates.

Tr. at 151-52,154 (emphases added).

The prosecutor must confine closing argument to comments based only upon the evidence presented in the record. Lambert v. State, 743 N.E.2d 719, 734 (Ind.2001). Lawyers are required to “demonstrate respect for the legal system and for those who serve it, including ... other lawyers.” Marcum v. State, 725 N.E.2d 852, 858 (Ind.2000) (citing Preamble, Ind. Professional Conduct Rules). “[C]omments that demean opposing counsel, especially in front of a jury, are inappropriate.” Id. at 859.

The State argues that the prosecutor’s comments were not improper because they were comments “on the style and effect of the argumentation, not on opposing counsel’s character.” Appellee’s Br. at 12. We disagree. In Marcum, the prosecutor stated that defense counsel was trying to “mislead this jury.” Marcum, 725 N.E.2d at 859. The Marcum court concluded that “[t]his comment attacks the integrity of defense counsel by suggesting that he is trying to mislead the jury” and was improper. Id. Likewise, here the prosecutor’s comments that defense counsel presented arguments that allowed guilty people to go free and that defense counsel’s argument was a trick suggest that defense counsel is deceptive and therefore cannot be trusted. Cf. Ramsey v. State, 853 N.E.2d 491, 501 (Ind.Ct.App.2006) (“[T]he State’s comment here was directed at the quality of Ramsey’s defense, not personally at Ramsey’s counsel, because the State argued that the strategy of the defense was to attack the State’s witnesses because of the strength of the State’s case.”), trans. denied.

In addition, the prosecutor did not just demean this particular defense counsel by saying that he employed deceptive practices. The prosecutor suggested that all defense attorneys used the same deceptive tactics. In so doing, the prosecutor suggested that the role of the defense was simply to make arguments that allow guilty people to go free. This disparages our entire jury system and undermines the defense role in protecting the defendant’s rights and insuring that a guilty verdict is reached by due process of law and is founded upon legal evidence.

We found statements of similar content and effect improper in Bardonner v. State, 587 N.E.2d 1353 (Ind.Ct.App.1992), trans. denied. During voir dire, the prosecutor told prospective jurors that both sides in a criminal case do not have an obligation to seek the truth and that defense counsel’s duties had little relation to the search for truth. The Bardonner court explained why the comments were improper:

Criminal defense counsel are no different than civil defense counsel with respect to the search for “truth” in that, in a civil case, when the plaintiff fails to present evidence on a material element, it is defense counsel’s duty to ask for a judgment in his client’s favor. Civil defense counsel has no obligation to volunteer evidence to prove the plaintiffs case, and neither does defense counsel when the prosecutor fails to present evidence of defendant’s guilt with respect to all elements of a crime.
The only purpose for the prosecutor’s comments on the respective roles of defense and prosecution is to prejudice the jurors into viewing the prosecutor as a “good guy” and the defense counsel as a “bad guy.” We think this is an unfair tactic which not only negates the defendant’s presumption of innocence, but also runs afoul of Ind. Prof. Conduct Rule 3.4, which requires fairness to opposing party and counsel, and prohibits an attorney from alluding to matters that the lawyer does not reasonably believe are relevant or will not be supported by the facts in issue. Here, the issue before the jury was whether the evidence was sufficient to convict the defendant of the crimes beyond a reasonable doubt. It is not the jurors’ responsibility to make a finding as to the role of the prosecutor and defense counsel or to determine the character of the defense counsel. This information is certainly not relevant to the case.

Id. at 1361.

In the case at bar, the prosecutor’s comments demeaned defense counsel, the role of defense counsel, and our system of justice, and therefore we conclude that they were improper and constitute prosecutorial misconduct.

Third, Ryan contends that the prosecutor engaged in misconduct when she asked the jury to send a message with their verdict. The prosecutor stated,

You wonder at night what you can say to a jury to get them to get the bigger picture here. And no case is easy for you guys, I get that. No one want[s] to judge someone else or somebody else’s actions. But we keep hearing about this happening, whether it’s a teacher, or a coach, or a pastor, whoever. And we all want to be really angry and post online and have strong opinions about it. And we never think that we’ll be the ones that are here that get to stop it. And you actually do get to stop it. And as much as I know you probably did not want to be here on Monday morning, I would submit to you that you are in an incredible position to stop it and to send the message that we’re not going to allow people to do this. Those of who [sic] are good teachers are not going to allow grown men to prey upon their students and get away with it.

Tr. at 140-41 (emphases added).

“[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.” Neville, 976 N.E.2d at 1264 (citation and quotation marks omitted). Ryan contends that urging the jury to send a message invited the jury to convict him based on their anger regarding multiple similar cases that they have heard about rather than on the evidence presented at trial. The State argues that “the prosecutor simply informed the jury that they were in a position to ‘stop’ sexual misconduct in this particular circumstance, which would send a message that people cannot get away with sexual misconduct.” Appellee’s Br. at 14.

In Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843 (1976), the prosecutor argued to the jury that “this may be the most important thing you’ll ever do for your community.” Our supreme court observed,

The phrase ‘This may be the most important thing you’ll ever do for your community’ is ambiguous. It could refer to the importance of the jurors’ service on a jury, urging them to consider the gravity of their duty; conversely it could be understood to mean that the conviction of Maldonado would be a community service. A prosecutor may not engage in argument which lends itself to such understanding

Id. at 500-01, 355 N.E.2d at 849.

In Impson v. State, 721 N.E.2d 1275 (Ind.Ct.App.2000), the prosecutor argued that “it’s very appropriate that this month is Domestic Violence Awareness Month and that you had the opportunity to listen to this case this month” and “I ask you to go back and end this month of Domestic Awareness and do the right thing.” Id. at 1283 (citation and quotation marks omitted). In analyzing the propriety of the statement “do the right thing,” the Impson court reasoned,

Here the prosecutor’s statements are ambiguous. The last statement was preceded by a recitation of the evidence, and within that context, the statement could refer to the importance of the jury to “do the right thing” by considering all of the evidence. This would be a proper statement. Conversely, the statements could refer to the importance of the jury to “do the right thing” by capping off “Domestic Violence Awareness Month” with a conviction. This would be an improper statement.

Id.

Here, the prosecutor’s “send the message” statement is open to more than one interpretation. The prosecutor preceded that statement by telling the jurors that she knew that they probably did not want to be in that courtroom on Monday morning, but by being there they were in a position to stop sexual misconduct. That statement puts the focus on this particular case. Thus, the prosecutor’s “send the message” comment could be interpreted as informing the larger community that justice was served in this particular case. However, the prosecutor also talked about getting the jurors to see “the bigger picture,” mentioned instances of other cases concerning teachers, coaches, and pastors, and said “we’re not going to allow people to do this.” Tr. at 140-41. In this context, the prosecutor suggested that sexual misconduct is a widespread societal crises and her comment to “send the message” appears to be an exhortation to convict Ryan to stop other instances of sexual misconduct. Because the comment can be interpreted in this manner, it is improper and constitutes misconduct.

Finally, Ryan asserts that the prosecutor committed misconduct by impermissi-bly vouching for Z.W-B.’s credibility. In closing argument, the prosecutor stated,

The most important person here to evaluate their credibility is [Z.W-B.] And does she have a motive or a bias to lie? And yes, she has a huge motive [or] bias to lie and say that nothing happened. Because she loves him; for some unexplainable reason she loves him and she didn’t want him to be caught. She hated that he was going to be caught. But she didn’t, she told you the truth. As uncomfortable and awkward as she was up there, she told you the truth of what happened.... You should believe her, she is credible, alone she makes this case.... She has every reason to have lied and covered for him and she didn’t.

Id. at 139-140 (emphasis added). And in rebuttal, the prosecutor said,

[Z. W-B. ’s] never been dishonest.... And to make clear that she gets nothing out of this. She doesn’t want him to get in trouble; she wants him to want to be with her. And that’s why what she told you was even more credible. Because if she thought she could get away with covering for him again, she would. But the jig is up; we’ve seen the Google Plus postings. The jig is up. She has to be honest now and she’s done that.

Id. at 153-54 (emphases added).

“[A] prosecutor may not state his or her personal opinion regarding the credibility of a witness during trial.” Thomas v. State, 965 N.E.2d 70, 77 (Ind.Ct.App.2012), trans. denied. 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 v. State, 854 N.E.2d 831, 836 (Ind.2006) (citation and quotation marks omitted).

In Gaby v. State, 949 N.E.2d 870, 881 (Ind.Ct.App.2011), another panel of this Court concluded that the prosecutor improperly vouched for the victim’s credibility. There, the prosecutor stated “that she was confident that the jury would come to the same conclusion that she and the police detectives had come to,” “I cannot and would not bring charges that I believe were false,” and “I can tell you that with a guilty verdict on this case I will be able to sleep fine tonight. Just fine. In fact, better than fine. You will be able to also.” Id. at 880 (citations and quotation marks omitted). Likewise, in Lainhart v. State, 916 N.E.2d 924, 938 (Ind.Ct.App.2009), this Court concluded that the prosecutor’s remarks constituted improper vouching. The prosecutor told the jury during voir dire that “it would take an awful lot to get an officer [to lie]” and that “there’s no place for it in our society.” Id. at 937 (citation omitted). Then in closing argument the prosecutor said, “if any officer would even come close to not putting out exactly what happened telling the truth, they’re out. I would never, ever, put them in front of a Jury, if I suspected anything.” Id. at 937-38 (citation omitted). Also in Schlomer v. State, 580 N.E.2d 950, 957 (Ind.1991), our supreme court concluded that the prosecutor improperly vouched for a witness when he stated, “I believe Detective McGee when he tell[s] us what happened.”

In Thomas, however, another panel of this Court concluded that the prosecutor did not engage in improper vouching. 965 N.E.2d at 77. There, the prosecutor specifically stated that he wanted to discuss why the State believed that the witnesses were credible. The prosecutor explained “that neighbors who testified were innocent bystanders who just happened to live above Hunt, that the testifying police officers’ interests were in seeing the crime get solved correctly, and that, even though defense counsel cross-examined each witness and attempted to reveal issues of credibility, no such issues arose.” Id. The Thomas court concluded that “the prosecutor’s statements were comments regarding witness credibility based on the evidence presented at Thomas’s trial.” Id.

In comparing the prosecutor’s remarks in this ease with those of the prosecutors in the above cases, we conclude that some, but not all, of the prosecutor’s comments were improper vouching. Earlier in closing, the prosecutor mentioned that the jury could assess witness credibility through observation of the witness and by considering whether the witness had any interest, bias, prejudice, or reason to lie at trial. Tr. at 134. This statement conformed with preliminary instruction number 12. Appellant’s App. at 92. With regard to Z.W-B., the prosecutor’s remarks that she loved Ryan and had a reason to lie to protect him were supported by the Google Plus pages, and therefore the prosecutor’s statements that Z.W-B. was credible were proper. However, the prosecutor’s unqualified assertions that Z.W-B. told the truth of what happened went too far because there was no evidence that Ryan kissed her other than Z.W-B.’s own testimony. Cf. Neville v. State, 976 N.E.2d at 1261 (concluding that prosecutor did not improperly vouch for witness by arguing that witness told the truth because the statement was supported by photographs that confirmed that the witness could see the crime scene as she had testified). Therefore, the prosecutor committed misconduct by telling the jury that Z.W-B. told the truth of what happened. As to the prosecutor’s remark that Z.W-B.’s “never been dishonest,” the State contends that the prosecutor was only talking about Z.W-B.’s statements to her parents, the school, the police, and the court. Although the evidence supports that Z.W-B.’s statements to her parents, the school, the police, and the court were consistent, the prosecutor’s remark is all-encompassing, and the State, acknowledges that Z.W-B. testified that she lied to Ryan when she told him her father was abusing her in order to make Ryan like her. The statement that Z.W-B.’s “never been dishonest” is overly broad and is therefore is an improper comment on her credibility.

We now address Ryan’s contention that the prosecutor’s improper comments cumulatively resulted in fundamental error requiring reversal and a new trial. Ryan cites Lainhart, in which “the State improperly distinguished the roles of prosecution and defense, referred to the penal consequences of the offense charged, commented on [defense counsel’s] failure to call corroborating witnesses, and personally vouched for Officer Roberts’s credibility.” Lainhart, 916 N.E.2d at 938. In concluding that the cumulative effect of the prosecutor’s misconduct constituted fundamental error, the Lainhart court reasoned,

Although each instance of prosecutorial misconduct alone may not have constituted reversible error, we are persuaded that the cumulative effect of the State’s misconduct was to make a fair trial impossible. This case involved conflicting testimony and hinged almost exclusively on the credibility of the witnesses.... Because this case involved so much competing testimony, and because most of the State’s misconduct went straight to the credibility of the witnesses, we cannot say that the State’s misconduct was harmless. The jury may have accepted [Lainhart’s] version of events if the State had not improperly distinguished the roles of defense and prosecution, personally vouched for Officer Roberts, and commented on [Lainhart’s] failure to call additional witnesses in his favor.

Id. at 938-39.

The State asserts that Lainhart is not controlling because here the testimony was not conflicting and most of the misconduct did not pertain to the credibility of witnesses. Whether fundamental error occurred here does not depend on whether this case is like Lainhart but rather depends on the particular types of misconduct committed and the evidence presented by the State in this case.

We have concluded that the prosecutor improperly commented on Ryan’s constitutional right to a jury trial; improperly disparaged defense counsel, the role of defense counsel, and our system of justice; improperly urged the jury to convict Ryan for reasons other than his guilt; and improperly vouched for Z.W-B.’s truthfulness. The State argues that no fundamental error occurred because the evidence of sexual misconduct was overwhelming and demonstrates that the results would have been the same without the prosecutor’s comments. We are unpersuaded.

To convict Ryan of class C sexual misconduct with a minor, the State had to prove beyond a reasonable doubt that Ryan performed or submitted to fondling or touching of Z.W-B. with the intent to arouse or satisfy the sexual desires of Z.W-B. or Ryan. Ind.Code § 35-42-4-9. To that end, the State sought to prove that Ryan and Z.W-B. kissed with the intent to arouse or satisfy his or her sexual desires. Our review of the record reveals that the only evidence that Ryan kissed Z.W-B. to arouse or satisfy his or her sexual desires is Z.W-B.’s testimony. Her credibility is essential to the State’s case against Ryan. The Google Plus pages, the gifts, and Z.W-B.’s suicidal despair after her parents terminated all communication with Ryan may suggest that she and Ryan had a relationship that is consistent with and lends credibility to Z.W.-B.’s testimony, but they do not provide independent evidence that she and Ryan kissed in order to arouse or satisfy their sexual desires. The prosecutor improperly told the jury that defense counsel employed a “classic defense trick,” demeaning the role of defense counsel and our system of justice. Tr. at 152. We have stated that “the jurors’ estimates of the truthfulness of a witness or analysis of the evidence could be affected by the manner in which they perceive the role of defense counsel.” Bardonner, 587 N.E.2d at 1361. In addition, the jury’s assessment of Z.W-B.’s credibility would have been affected by the prosecutor’s improper declaration that Z.W-B. “told you the truth of what happened” and “has never been dishonest.” Tr. at 139, 153. Also, significantly, Ryan’s exercise of his constitutional right to a jury trial was penalized when the prosecutor stated to the jury that Ryan chose to have a jury trial to try to get away with his crime. Finally, the prosecutor went beyond the evidence and improperly urged the jury to convict Ryan “to send the message that we’re not going to allow people to do this.” Id. at 141. Together the cumulative effects of the prosecutor’s improprieties deprived Ryan of a fair trial. Accordingly we reverse his two convictions for class C felony sexual misconduct with a minor and remand for a new trial.

Reversed and remanded.

ROBB, C.J., and FRIEDLANDER, J., concur.

      . She turned fifteen in the fall of 2011 and entered the ninth grade.

      . Ryan cites State v. Snow, 282 Kan. 323, 144 P.3d 729 (2006), disapproved of on other grounds by State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012). In Snow, the prosecutor in closing argument stated,
      Members of the jury, there may be some of you who are sitting there thinking, why have we given two days to listen to this evidence? And the answer is simply this: Everyone who’s charged with a crime in this country has an absolute right to a jury trial if that’s what they demand. The defendant has indicated he wants a jury trial, and now he’s had it. Despite the amount of evidence that might be there against them, if he wants it, I have to put it on, and we’ve done that.

        Id. at 740 (quotation marks omitted). The prosecutor also stated, "Now, the defendant wants his jury trial, he’s had his jury trial, and its [sic] time to put an end to this nonsense.” Id. (quotation marks omitted).
      The Snow court concluded that the prosecutor's comments were improper because they "injected a matter outside the evidence, inferring that Snow should have acceded to the State’s evidence and waived his right to a fair trial because of the strength of the State’s evidence against him,” and that "the prosecutor’s comment in this case disparages the juror’s civic duty by calling the trial ‘nonsense.’ We believe that these comments demonstrate ill will toward Snow by implying that he had wasted the prosecutor’s and the jury's time because he exercised his Constitutional rights.” Id. at 741. Although the Snow court did not consider whether the prosecutor’s comments penalized the defendant's exercise of his constitutional right to jury trial, Snow reveals an additional rationale for concluding that comments on a defendant's right to a jury trial are misconduct, namely that such comments inject a matter outside the evidence "which may induce the jury to decide the case on reliance on matters outside the evidence.” Lopez v. State, 527 N.E.2d 1119, 1126 (Ind.1988).

      . The State also asserts that the prosecutor’s statement “[t]hat’s [a] classic defense attorney trick” was made in response to defense counsel’s use of false accusation cases in his closing argument. Defense counsel argued that an alternative explanation for the case was that nothing happened between Ryan and Z.W-B. and that there were cases of false accusations such as the Duke lacrosse case. Tr. at 142. Even though defense counsel made that argument, it does not excuse the prosecutor from referring to the argument as a trick. See Marcum, 725 N.E.2d at 859 (stating that "there is no reason to suggest that defense counsel's contrary view was an attempt to mislead the jury”).

      . Although neither the Maldonado court nor the Impson court found that the prosecutor's statements subjected the defendant to grave peril and thus did not require reversal of the defendant's conviction, we will consider the prejudice arising from these comments when we assess whether the cumulative effect of the prosecutor's misconduct rises to fundamental error.

      . Ryan urges us to apply the constitutional harmless error standard to the prosecutor's infringement of his constitutional rights to a jury trial, that is, that the error was harmless beyond a reasonable doubt. Although other panels of this Court have applied this standard in addition to a fundamental error analysis when the defendant failed to preserve the error, see Sobolewski v. State, 889 N.E.2d 849, 857 (Ind.Ct.App.2008), trans. denied, and Herron v. State, 801 N.E.2d 761, 766 (Ind.Ct.App.2004), our supreme court has stated that the "mere fact that an alleged error implicates constitutional issues does not establish that fundamental error has occurred.” Baird v. State, 688 N.E.2d 911, 917 (Ind.1997); Wilson v. State, 514 N.E.2d 282, 284 (Ind.1987), cert. denied (1998).

      . Another panel of this Court recently issued a memorandum decision in which the defendant claimed that prosecutorial misconduct resulted in reversible error. Spiegel v. State, No. 49A02-1208-CR-687, 2013 WL 1687706 (Ind.Ct.App. Apr. 18, 2013). The Spiegel court concluded that the prosecutor improperly expressed her personal opinion as to the credibility of a witness, improperly inflamed the passions or prejudices of the jury, improperly commented on the possible penal consequences of conviction, and improperly highlighted the disparate roles of the prosecution and defense. Nevertheless, the Spiegel court concluded that reversal was not warranted because as to the first instance of misconduct the evidence of guilt was abundant and therefore Spiegel was not subjected to grave peril, and as to the other three instances Spiegel waived his fundamental error claims. In his concurring opinion, Judge Friedlander observed that despite admonishment from this Court, “instances of condemnable prosecuto-rial behavior continue to come before us on appeal. It would seem that our admonishments are falling on deaf ears on an all-too-regular basis.” Id., slip op at * 7. This case demonstrates the unfortunate result of the failure to heed our admonishments; namely, prosecutorial misconduct that requires reversal.


source: Caselaw Access Project

author: GARRARD, Senior Judge.

license: Public Domain

text:
    Seth A. MILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 63A01-1210-CR-475.
    Court of Appeals of Indiana.
    July 31, 2013.

      Steven E. Ripstra, Ripstra Law Office, Jasper, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

GARRARD, Senior Judge.

A jury convicted Seth Miller on four counts: Corrupt Business Influence, Burglary of a Dwelling, and two counts of Theft. He was sentenced to an aggregate term of seventeen years in prison and five years of probation. On appeal, Miller challenges only his conviction for Corrupt Business Influence.

The governing statute provides in pertinent part:

A person:
⅜ ⅜ ⅜ ⅜
(3) who is employed by or associated with an enterprise, and who knowingly or intentionally conducts or otherwise participates in the activities of that enterprise through a pattern of racketeering activity;
commits corrupt business influence, a Class C felony.

Ind.Code § 35-45-6-2 (1991).

The facts of the case disclose that on the night of January 9, 2012, Ivy Smith, a friend of Miller, sent him a text and then picked him up in her car. As they were driving, they discussed burglarizing homes. After midnight they stopped at the Fredericks’ home and entered it through an unlocked sliding glass door. Miller stole a television, a laptop computer and a purse. Smith found a camera and a wallet in the purse. As the two were then driving toward Winslow, Indiana, they discussed using credit cards that they found in the purse.

Miller spotted a black Charger parked in a driveway, and Smith stopped the car. Miller took video games and a wallet from the Charger. They then drove to the home of Smith’s father where they took most of the stolen items inside.

The two then drove to a Wal-Mart store in Washington, Indiana, to try to use the stolen credit cards. They entered the store and both placed items totaling $1124 in a cart and then attempted to pay for them with Janet Frederick’s credit card. The card was declined. They tried again at a Vincennes Wal-Mart where both stolen credit cards were declined. This happened yet again at a Vincennes CVS store and a liquor store. Leaving Vincennes, the two returned to Winslow.

This all occurred in less than twenty-four hours. If Smith’s later disposal of the computer and camera are taken into account, less than forty-eight hours were involved.

Indiana’s corrupt business influence statute is patterned after the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962. Our supreme court has determined, however, that under the Indiana act which applies to “a person ... who ... participates in the activities of that enterprise,” it is unnecessary that a person play some part in directing the affairs of the enterprise as required by the federal act. Simple participation is enough. Keesling v. Beegle, 880 N.E.2d 1202, 1206 (Ind.2008).

Even so, federal cases concerning the general construction of the Act are instructive. See, e.g., Waldon v. State, 829 N.E.2d 168, 176 (Ind.Ct.App.2005), trans. denied; see also Kollar v. State, 556 N.E.2d 936, 940 (Ind.Ct.App.1990), trans. denied.

Both statutes require: (1) a knowing or intentional degree of participation (2) in an enterprise (3) through a pattern of racketeering activity. Waldon, 829 N.E.2d at 175. Indiana Code section 35-45-6-l(c) (2011) provides:

“Enterprise” means:
(1) a sole proprietorship, corporation, limited liability company, partnership, business trust, or governmental entity; or
(2) a union, an association, or a group, whether a legal entity or merely associated in fact.

In addition, Indiana Code section 35-45-6-1(d) defines a “pattern of racketeering activity” as “engaging in at least two (2) incidents of racketeering activity ... that are not isolated incidents.”

We find the critical issues in Miller’s case to be whether the evidence was sufficient to establish the element of enterprise and the necessary pattern of racketeering activity.

We adopt the reasoning of the Supreme Court in United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), that was cited with approval by this Court in Waldon:

In order to secure a conviction under RICO, the Government must prove both the existence of an ‘enterprise’ and the connected ‘pattern of racketeering activity.’ The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute. The former is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The ‘enterprise’ is not the ‘pattern of racketeering activity’; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government.

829 N.E.2d at 176 (emphasis added).

We also agree with the Waldon court’s reliance upon two other federal decisions in determining whether an enterprise exists for purposes of prosecution under Indiana Code section 35-45-6-2(3). In Stephens, Inc. v. Geldermann, Inc., 962 F.2d 808, 815 (8th Cir.1992), the court stated that the essential elements of an enterprise include: “(1) a common or shared purpose; (2) some continuity of structure and personnel; and (3) an ascertainable structure distinct from that inherent in a pattern of racketeering.”

Of more help is the Seventh Circuit opinion in United States v. Rogers, 89 F.3d 1326, 1337 (7th Cir.1996), where the court stated, “If the ‘enterprise’ is just a name for the crimes the defendants eom-mitted, or for their agreement to commit these crimes that was charged separately in the conspiracy count, then it would not be an enterprise within the meaning of the statute.” (quoting United States v. Masters, 924 F.2d 1362, 1367 (7th Cir.1991)). Furthermore, the hallmark of an enterprise is structure. Id. A RICO enterprise is an ongoing group of persons “associated through time, joined in purpose, and organized in a manner amenable to hierarchical or consensual decision-making.” Id.

The enterprise element in Waldon was established by the evidence that Waldon recruited the assistance of three juveniles to commit a series of burglaries in the Lafayette area during the summer of 2002. They would drive around and Waldon would mention the places he wanted to hit. They would enter businesses by prying around the locks on the doors, while one stayed outside as a lookout and communicated with the others by walkie-talkie. Waldon would later divide the proceeds among them. The pattern developing showed regular, almost daily, attempts at burglary.

Contrast that -with the situation before us. Here, Miller and Smith got together on the night in question and committed the offenses described. There was no evidence of a prior history of such conduct, nor was there evidence that they planned to repeat their escapade. The events all occurred in a very brief period. Indeed there was scant evidence of a pattern of racketeering activity. ■ As the court pointed out in Rogers, the hallmark of an enterprise is structure. It is an ongoing group of persons associated through time, joined in purpose, and organized in a manner amenable to hierarchical or consensual decision making.

The evidence in this case simply fails to establish the necessary element of an enterprise within the meaning of the statute. Accordingly, we need not reach the additional issue of whether their episode of conduct qualifies as a pattern of racketeering activity.

The conviction for corrupt business influence is reversed and the sentence of eight years thereon is vacated.

In all other respects the judgment is affirmed.

Affirmed in part and reversed in part.

FRIEDLANDER, J., and KIRSCH, J„ concur.

      . Subparagraph (e) then lists more than thirty offenses that constitute racketeering activity.

      . Miller might have been charged with conspiracy under Indiana Code section 35-41-5-2 (1977), but any conviction would likely be barred by our double jeopardy rule. See, e.g., Gregory-Bey v. State, 669 N.E.2d 154, 158 (Ind.1996), overruled in part on other grounds by Grinstead v. State, 684 N.E.2d 482, 486 (Ind.1997).


author: BAKER, Judge.

text:
    Don H. DUMONT, M.D., Appellant-Defendant, v. Penny DAVIS and Nicole Anderson, as Co-Administratrixes of the Estate of Charmitta Jordan, Deceased, Appellees-Plaintiffs.
    No. 45A05-1207-CT-384.
    Court of Appeals of Indiana.
    July 31, 2013.
    Rehearing Denied Oct. 18, 2013.

      David C. Jensen, Alyssa Stamatakos, Trenton W. Gill, Eichhorn & Eichhorn, LLP, Hammond, IN, Attorneys for Appellant.
    Timothy S. Schafer, Timothy S. Schafer, II, Todd S. Schafer, Schafer and Schafer, Merrillville, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

Charmitta Jordan passed away at the age of twenty-five after suffering from a rare genetic disease that required nearly one hundred hospitalizations in seven years. Upon her death, Jordan’s sisters, Penny Davis and Nicole Anderson (“the Plaintiffs”), were appointed co-administra-trixes of her estate, and they filed a wrongful death action against Don H. Du-mont, M.D. and Community Hospital, alleging that each violated the standard of care with respect to Jordan’s treatment. Following a six-day trial, the jury returned a verdict for the defendants, and the Plaintiffs requested a new trial based on Dr. Dumont’s counsel’s alleged failure to disclose the identification and opinions of two expert witnesses prior to the disclosure deadline. Finding that Dr. Dumont’s counsel committed misconduct, the trial court set aside the judgment on the verdict and ordered a new trial.

On appeal, Dr. Dumont argues that the trial court erred because the allegedly undisclosed opinion of his first expert witness was given during cross-examination by the Plaintiffs’ counsel. Dr. Dumont also claims that the Plaintiffs waived this claim because they failed to object to the expert’s testimony. With regard to his second expert, Dr. Dumont contends that even if he did commit misconduct, the Plaintiffs have failed to show prejudice because the trial court granted the Plaintiffs’ motion to strike the testimony from the record and admonished the jury not to consider it, thus making a new trial unnecessary. Dr. Dumont also maintains that the decision to grant a new trial was error to the extent that this decision to grant a new trial was based on statements made by jurors showing actual prejudice to the Plaintiffs because a jury’s verdict may not later be impeached by voluntary juror statements.

We agree with each of Dr. Dumont’s contentions and conclude that the trial court erred by granting the Plaintiffs a new trial. Accordingly, we reverse the judgment of the trial court.

FACTS

The Hospitalization

Charmitta Jordan was admitted to Community Hospital in Munster after arriving at its emergency room in severe pain on September 2, 2001. Like her nearly one hundred hospital admissions from 1994 to 2001, Jordan presented with symptoms of severe abdominal pain, nausea, vomiting, diarrhea, chest pain, shortness of breath, a sore throat and cough, blood oxygen saturation of ninety-three percent, an elevated heart rate of 125 beats per minute, and an elevated respiration rate of forty breaths per minute.

Jordan was admitted to the hospital, and Dr. Dumont, a pulmonologist or “lung specialist,” became Jordan’s treating physician. Tr. p. 355. Having treated Jordan during previous hospitalizations, Dr. Du-mont was aware that Jordan suffered from a condition called hereditary angioedema (HAE) that often presented with the above symptoms. HAE is a rare genetic disease in which patients are missing the C-l inhibitor enzyme or protein. The absence of this protein can result in significant attacks of extreme swelling, often of the hands, feet, abdomen, and airway. Dr. Dumont was also aware that in 1995, Jordan had undergone a surgery to remove some of the soft tissue in her throat to prevent the risk of asphyxiation during an HAE attack. However, not all of the soft tissue in and around Jordan’s airway could be removed.

On September 3, 2001, Jordan’s heart rate, respiration rate, and blood oxygenation level stabilized into the normal range, but she continued having severe abdominal pain. Jordan typically rated her abdominal pain as a ten on a scale from one to ten. Dr. Dumont ordered that Jordan’s pain be treated with Demerol to be given as needed.

On the evening of September 7, 2001, Jordan began experiencing shortness of breath. She was offered oxygen but refused it. At the time, Jordan had an oxygen saturation level of ninety-eight or ninety-nine percent. Jordan also complained of a “sticking” in her throat, and she had elevated blood pressure and slightly elevated respiration and heart rates. Tr. p. 539. A nurse observed some swelling of Jordan’s airway, but by the time Dr. Dumont examined Jordan’s throat, he was unable to see any swelling. Dr. Dumont ordered an arterial blood gas test and an x-ray of Jordan’s airway.

The results of the arterial blood gas test were abnormal, showing a low oxygen level and a low carbon dioxide level in Jordan’s blood. It also showed a significantly low oxygen saturation level of sixty-five percent. Dr. Dumont believed that the low levels were due in part to Jordan’s obesity. The x-ray showed some swelling of the airway but did not show any “significant obstruction.” Id. at 391. Dr. Dumont concluded that the remaining soft tissues in Jordan’s airway had swelled and obstructed Jordan’s airway but that the swelling had improved prior to his exam and the x-ray. He also believed that Jordan’s pain and anxiety had caused her elevated respirations and heart rate. Accordingly, Dr. Dumont attributed Jordan’s symptoms on September 7th to her HAE.

On September 8, 2001, Jordan continued to complain that she felt as if something was stuck in her throat and that she was having some difficulty breathing, and she was placed on intermittent oxygen. A few hours later, she was no longer showing any evidence of respiratory distress. Because Dr. Dumont felt that Jordan’s HAE was “beyond [his] ability to treat,” he attempted to arrange for Jordan to transfer to a Chicago hospital. Tr. p. 452. He was able to schedule a transfer for September 11, 2001.

Jordan’s oxygen saturation levels fell to eighty-eight percent on September 9th despite being on intermittent oxygen, but she no longer complained of difficulty breathing. Her heart rate also rose to 118, and her respiration rate was elevated at twenty-nine breaths per minute. Jordan’s heart rate “would often go down” after Demerol was given, and her respiratory rate would “sometimes” slow down. Id. at 588. These rates would also improve in response to “coaching to slow her breathing.” Id. at 464. Jordan continued to have “intermittent rapid breathing episodes” through September 12th. Id. at 414.

On September 11, 2001, Jordan’s laboratory results showed elevated liver enzymes, which indicated that her liver was becoming damaged. She also had elevated potassium. Basically, Jordan’s labs suggested that her liver was producing excess enzymes creating an “elevated risk of a bleed or hemorrhage.” Tr. p. 719. Thus, Jordan appeared to Dr. Dumont to be at a reduced risk for blood clots. A Doppler ultrasound was going to be performed on September 12, 2001, to test for Budd-Chiari Syndrome, but the test was never completed. Additionally, Jordan’s previously scheduled transfer was delayed because no Chicago-area hospitals were accepting transfers on account of the 9/11 terrorist attacks.

On the morning of September 12, 2001, Jordan’s respiration rate increased to thirty-two to forty breaths per minute, and she experienced shallow and irregular breathing. After performing an examination, collecting the lab results from tests performed earlier that morning, coaching Jordan through her respiratory distress, and administering Demerol for Jordan’s ten-out-of-ten pain, a nurse paged Dr. Du-mont. When Dr. Dumont returned the page, he gave the nurse a few orders to carry out for Jordan. However, while Dr. Dumont and the nurse were speaking or shortly thereafter, Jordan was found unresponsive in her hospital bed.

Jordan was pronounced dead at 10:05 a.m. on September 12, 2001, at the age of twenty-five. Dr. Young Kim, the Lake County Coroner, completed the autopsy. He concluded that Jordan died of pulmonary emboli, or blood clots that traveled to her lungs, preventing oxygen from entering her bloodstream and reaching her organs.

The Allegations and PreTrial Proceedings

After Jordan’s death, the Plaintiffs were appointed as the co-personal representatives of her estate. On December 8, 2006, the Plaintiffs filed a complaint joining as defendants Dr. Dumont and Community Hospital, alleging that Jordan died because the defendants’ treatment of Jordan fell below the minimal standard of care. With regard to Dr. Dumont, the Plaintiffs alleged that Dr. Dumont should have recognized the symptoms of pulmonary embo-li, should have included pulmonary emboli in a differential diagnosis and run tests to rule it out, and should have treated pulmonary emboli with blood thinners to prevent Jordan’s death.

On November 13, 2007, the trial court ordered the parties to identify their expert witnesses by February 29, 2008. Upon Dr. Dumont’s motion, this deadline was extended until April 30, 2008. On April 4, 2008, Community Hospital identified Dr. Michael Ehrie as its expert witness and disclosed his opinions. On April 30, 2008, Dr. Dumont identified his expert witnesses, which included Dr. Patrick Fahey, and disclosed their opinions. Dr. Dumont did not list Dr. Ehrie as one of his expert witnesses. On March 23, 2009, the trial court issued its final pre-trial order, which listed each party’s disclosed witnesses. The Plaintiffs did not depose either Dr. Ehrie or Dr. Fahey.

On April 8, 2011, Dr. Dumont’s counsel advised the Plaintiffs’ counsel via a certified letter that he also intended to call Dr. Ehrie as an expert witness for his opinion that “the histological and clinical evidence demonstrate that [Jordan] suffered an[] acute pulmonary-embolic event.” Appellant’s App. p. 60. On August B, 2011, the Plaintiffs’ counsel wrote Dr. Dumont’s counsel a letter objecting to the addition of Dr. Ehrie as one of Dr. Dumont’s expert witnesses. On August 11, 2011, Dr. Du-mont filed a motion for leave to examine Dr. Ehrie as an expert witness. In both his earlier letter to the Plaintiffs’ counsel and the motion, Dr. Dumont’s counsel claimed that Dr. Ehrie’s opinions were substantially the same as Dr. Fahey’s opinions. Because the Plaintiffs filed no response, the trial court granted the motion on September 7, 2011.

On October 26, 2011, Dr. Dumont’s counsel filed a motion to compel production of the autopsy slides that Dr. Kim prepared at the time of Jordan’s autopsy on September 12, 2001. The Plaintiffs objected and moved to exclude Dr. Ehrie’s testimony “as it relates to the standard of care of Dr. Dumont or the pathology slides.” Appellant’s App. p. 73. On October 27, 2011, the trial court overruled the Plaintiffs’ objection after a hearing. During the hearing, the Plaintiffs objected to Dr. Ehrie’s testimony as to his opinion based upon the slides. Specifically, the Plaintiffs’ counsel stated: “We don’t agree that in the little sneak that we have there [about the histological and clinical evidence]. That wasn’t disclosed by anybody, and histological ... is not history. It’s slides.” Tr. p. 92.

The trial court found that the Plaintiffs failed to show any surprise or that undue prejudice would transpire to them if Dr. Ehrie was permitted to testify regarding “the subject areas [Dr. Dumont] indicated both in [his] letter to Plaintiffs’ Counsel back in April as well as in the motion filed with the Court in August.” Tr. p. 103. The trial court also ordered the production of the slides because the slides “were reviewed by Dr. Ehrie earlier” when he first arrived at his disclosed expert opinions. Id. At the conclusion of the hearing, the Plaintiffs’ counsel advised the trial court that the Plaintiffs “may call Dr. Kim now, in light of what’s happened here today.” Id. at 132. Previously, the Plaintiffs’ counsel had not planned on calling Dr. Kim because the parties had stipulated to the authenticity of the autopsy report and the cause of Jordan’s death being pulmonary emboli.

The Trial

A six-day jury trial commenced on October 31, 2011. During opening statements, counsel for Community Hospital identified Dr. Ehrie as “an experienced pulmonologist, internal medicine specialist, critical care specialist, and he’s a pathologist, who reviewed the tissue slides for the autopsy in this case.” Tr. p. 351. During preliminary instructions, the trial court advised the jury not to “consider or speculate” about any evidence that it ordered stricken from the record. Id. at 303.

Dr. Dumont testified that he never suspected that Jordan’s symptoms were caused by pulmonary emboli because, even though Jordan presented nearly all of the symptoms of pulmonary emboli during her last few days in the hospital, the symptoms were also consistent with an HAE attack. Jordan also had several symptoms that Dr. Dumont believed were inconsistent with pulmonary emboli, including swelling of the throat, severe abdominal pain, vomiting, and suspected liver damage. Moreover, Dr. Dumont testified that Jordan appeared to be anti-coagulating her own blood, which would have reduced the likelihood that she would be forming blood clots.

The Plaintiffs’ expert, Dr. Gary Salz-man, opined that Dr. Dumont violated the standard of care in his treatment of Jordan by failing to perform a differential diagnosis, failing to perform any tests to rule out pulmonary emboli, and ultimately failing to diagnose or treat pulmonary emboli. A significant part of Dr. Salzman’s testimony concerned Jordan’s shortness of breath, low blood oxygenation levels, and abnormal blood gas results. Dr. Salzman was of the opinion that these results could not be explained by Jordan’s HAE, thus requiring Dr. Dumont to perform a differential diagnosis that would have included pulmonary emboli.

After cross-examination and at the end of redirect by the Plaintiffs’ counsel, the Plaintiffs’ counsel sought to ask Dr. Salz-man a previously omitted question. When Dr. Dumont’s counsel objected, the Plaintiffs’ counsel stated:

Your Honor, I’ve had some new experts thrown against me as late as this last Thursday. I’d only ask the Court the courtesy, once I’m done here on cross [sic], to be able to recall and ask for one issue and one question that was an oversight on my part on direct. [Dr. Salz-man is] leaving town, so I won’t be able to recall him.”

Tr. p. 665. The trial court overruled the objection.

Dr. Fahey testified as Dr. Dumont’s expert pulmonologist. During Dr. Dumont’s case-in-chief, Dr. Fahey testified that Jordan’s abnormal blood gas results and low oxygenation levels indicated to him that she was suffering from “chronic respiratory alkalosis,” meaning that Jordan “ha[d] been breathing more rapidly than normal for at least days, if not longer,” that her “abdominal pain [was] frequent enough that it resulted] in her breathing rapidly blowing down her carbon dioxide” and that her “body ha[d] adjusted to [the low carbon dioxide levels] by getting rid of bicarbonate in order to keep the pH relatively normal.” Tr. p. 1324. Dr. Fahey also opined that he would not expect these results in a patient experiencing acute pulmonary emboli because “the pH would be significantly higher.” Id.

On cross-examination, the Plaintiffs’ counsel pressed Dr. Fahey to explain why the standard of care did not require Dr. Dumont to include pulmonary emboli on a differential diagnosis when Jordan was experiencing all of the symptoms of pulmonary emboli. When Dr. Fahey explained that there were “a number of explanations” for Jordan’s intermittent low oxygenation, the Plaintiffs’ counsel responded, “Really? What are they? I maybe missed — I missed them. What are they?” Tr. p. 1348. At that point, Dr. Fahey stated that “on physical examination, [Jordan] often had decreased respirations at her lung bases due to the increased abdominal pain limiting how much she could breathe in and out.” Id. Dr. Fahey further explained: “[L]ungs are like accordions, and if you don’t fully expand them, [they] just play here, the little lung units collapse called atelectasis. That can lead to low oxygen levels.” Id. And in response to further probing, Dr. Fahey also stated that “this type of atelectasis isn’t apparent on a chest x-ray.” Id. at 1349. The Plaintiffs did not object to Dr. Fahey’s opinion that Jordan’s low oxygen saturation levels were caused by atelectasis, and in fact, repeatedly solicited this opinion from Dr. Fahey throughout the cross-examination.

Next, Dr. Ehrie testified as Community Hospital’s expert pulmonologist. Although Dr. Ehrie did not use the term atelectasis, he also concluded that Jordan’s low oxygen saturations could have been caused by her HAE. Specifically, Dr. Ehrie testified that due to significant pain, the “oxygen level [of HAE patients] may fall because they can’t take in a good deep breath.” Tr. p. 1414.

Once counsel for Community Hospital completed its questioning of Dr. Ehrie, Dr. Dumont’s counsel began questioning Dr. Ehrie in his capacity as a pathologist rather than as an expert pulmonologist. Dr. Ehrie opined that a massive pulmonary embolism caused Jordan’s death at 9:15 a.m. on September 12, 2001. Dr. Ehrie also stated his opinion that Jordan’s heart was significantly damaged and enlarged because of blockages in the arteries leading to her heart. Because of the damage to the heart, Dr. Ehrie opined that the pulmonary emboli, which might have been survived by another patient Jordan’s age, had caused Jordan to have a heart attack. After Dr. Ehrie gave these opinions, the Plaintiffs’ counsel objected, stating that Dr. Ehrie had never been disclosed as an expert pathologist and that the opinions that he had given had not been disclosed during discovery.

In analyzing the Plaintiffs’ objection, the trial court stated:

Your motion says his testimony is going to be as a pulmonologist testifying like did Dr. Fahey, who will opine regarding Dr. Dumont’s compliance with the standard of care. It doesn’t say anything at all that I can see about him coming in and testifying as an expert pathologist.

Tr. p. 1467. The following colloquy then ensued:

[DR. DUMONT’S COUNSEL:] In terms — in terms — I didn’t plan on asking him standard of care opinions. That’s — that would be duplicative. What we’re doing is we’re asking him the histological opinions which is [sic] disclosed. This is the issue we went over during the pre-trial hearing.
THE COURT: Where did you disclose his histological opinions to [the Plaintiffs’ counsel]?
[DR. DUMONT’S COUNSEL:] As a sudden and unforeseeable acute pulmonary embolic event. This was in April of 2011.
THE COURT: Where did you disclose all these opinions as a pathologist?
[DR. DUMONT’S COUNSEL:] His curriculum vitae, your Honor, is attached.
THE COURT: But where did you disclose these opinions which you are now asking?
[DR. DUMONT’S COUNSEL:] Right here (indicating). Yes, this sentence talks about — this is what we addressed before, a sudden and unforeseeable pulmonary event, embolic event. This is the exact sentence that the Court was directed to when you ruled on this before.
[THE PLAINTIFFS’ COUNSEL:] As a pulmonologist, not as a pathologist.
THE COURT: I took all this as him testifying as another pulmonologist. There’s no way you put me on notice of any of this stuff. You could have said he was going to be offering opinion as an expert in conducting autopsies, pathology. You didn’t do that here either.
[DR. DUMONT’S COUNSEL:] Hold on one second, your Honor. We did address this. If you recall, there was a motion to compel ... because he needed to refresh his recollection as to the slides. His Honor had a question regarding what histological meant. Histological is pathological. We’ve already addressed the issue.
THE COURT: Histological evidence; I took that to mean he was going to review the autopsy results and the clinical evidence, all your medical records, so as a pulmonologist he could give his opinions which were the same as Dr. Fahey’s.
Now, if you didn’t make it any clearer to me than that, you should have. I’m a little troubled by this all now.
[THE PLAINTIFFS’ COUNSEL:] We’re being back-doored here. We don’t have a pathologist we could have had to respond, your Honor. That’s my difficulty here, and I had no idea this was going to happen. I suspected it once we got the motion to compel, but they have just never disclosed.

Id. at 1467-73.

After hearing argument from both sides, the trial court ordered that further questioning of Dr. Ehrie as a pathologist would not be permitted. The Plaintiffs’ counsel also moved to strike Dr. Ehrie’s testimony as a pathologist and for an instruction to the jury not to consider that testimony. The trial court granted both requests, and the parties agreed on the wording of a jury admonishment before moving forward. The presentation of the evidence concluded on November 4, 2011.

The jury returned a verdict for the defendants on November 7, 2011, and the trial court entered a judgment on the verdict the same day. On December 5, 2011, the Plaintiffs filed a motion for relief from judgment pursuant to Indiana Trial Rule 60(B)(3). After briefing and oral argument, the trial court granted the motion and ordered a new trial as to Dr. Dumont. Specifically, on June 28, 2012, the trial court entered an order stating in relevant part:

The Court now finds that Defendant Dumont did not disclose all of the opinions of his expert witnesses as required prior to trial. Further, in failing to disclose all of the opinions of his expert witnesses and in attempting to confront the Plaintiffs with new and previously undisclosed expert witness opinions at trial, Defendant Dumont committed misconduct. Defendant Dumont’s misconduct prevented the Plaintiffs from fully and fairly preparing and presenting their case. The Plaintiffs have made a prima facie showing of a meritorious claim, and they are entitled to a new trial as to Defendant Dumont.

Appellant’s App. p. 27. The trial court denied the Plaintiffs’ motion as it pertained to the Community Hospital. Dr. Dumont now appeals.

DISCUSSION AND DECISION

I. Standard of Review and Trial Rule 60(B)(3) Considerations

A motion for relief from judgment under Indiana Trial Rule 60(B) is a matter within the equitable discretion of the trial court. Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65, 72 (Ind.2006). In reviewing a Rule 60(B) motion, “the trial court must weigh the alleged inequity that would result from allowing a judgment to stand against the interests of the prevailing party in its judgment, as well as those of society at large in the finality of litigation in general.” Bowman v. Smoot, 806 N.E.2d 811, 815 (Ind.Ct.App.2004). We review the trial court’s grant or denial of a motion for relief from judgment for an abuse of discretion. Outback, 856 N.E.2d at 72. An abuse of discretion occurs if the trial court’s decision was clearly against the logic and effect of the facts and circumstances before it. Wisner v. Laney, 984 N.E.2d 1201, 1205 (Ind.2012).

In this case, the Plaintiffs sought relief under Rule 60(B)(3) for Dr. Dumont’s alleged failure to abide by our discovery rules. Thus, the Plaintiffs were required to show that: (1) Dr. Dumont’s discovery responses amounted to fraud, negligent misrepresentation, or misconduct; (2) the fraud, misrepresentation, or misconduct prevented the Plaintiffs from fully and fairly presenting their case at trial; and (3) the Plaintiffs made a prima facie showing of a meritorious claim or defense. Outback, 856 N.E.2d at 74.

Our Supreme Court has held that misconduct may arise from intentional or negligent violations of Indiana’s discovery rules. Id. at 73. Furthermore, the trial court is in the best position to gauge whether any alleged misconduct impacts the jury and in what context. Wisner, 984 N.E.2d at 1206. Finally, regarding the requirement for a meritorious claim or defense, “the movant need only ‘present evidence that, if credited, demonstrates that a different result would be reached if the case were retried on the merits and that it is unjust to allow the judgment to stand.’ ” Outback, 856 N.E.2d at 73 (quoting Smith v. Johnston, 711 N.E.2d 1259, 1265 (Ind.1999)). “A ‘meritorious defense’ is also established by showing that the judgment was ‘unfairly procured.’ ” Id. at 81 (quoting Schultz v. Butcher, 24 F.3d 626, 631 (4th Cir.1994)).

II. Dr. Dumont’s Claims

Dr. Dumont alleges that the trial court’s finding of misconduct was erroneous because the Plaintiffs, not he, solicited the undisclosed expert opinion of Dr. Fahey relating to atelectasis and because he had been given leave by the trial court to question Dr. Ehrie regarding the histology slides made by Dr. Kim at the time of the autopsy. Furthermore, Dr. Dumont argues that the Plaintiffs waived any claims of surprise regarding Dr. Fahey’s testimony because the Plaintiffs’ counsel failed to depose him, object to his testimony, or move to strike his responses at trial. Finally, Dr. Dumont maintains that even if the trial court could have found that he participated in misconduct for failing to disclose Dr. Ehrie’s expert opinions regarding the autopsy slides in his capacity as a pathologist, the Plaintiffs failed to demonstrate that the misconduct prevented their ability to fully and fairly present their case because the trial court granted their motion to exclude Dr. Ehrie’s testimony as a pathologist in its entirety.

At the outset, we note that the trial court did not identify which expert opinions Dr. Dumont failed to disclose in its order granting the Plaintiffs a new trial. As a result, we cannot be certain whether the trial court found that Dr. Dumont committed misconduct by failing to disclose Dr. Fahey’s opinion about atelectasis, Dr. Ehrie’s opinions as an expert pathologist, or both. Absent special findings, we will uphold a trial court’s decision if it is supported by any factual basis or legal theory. Breeden v. Breeden, 678 N.E.2d 423, 425 (Ind.Ct.App.1997). Therefore, we address each of Dr. Dumont’s contentions in turn.

A. Dr. Fahey’s Atelectasis Opinion

As summarized above, Dr. Dumont maintains that he did not commit misconduct by failing to disclose Dr. Fahey’s atelectasis opinion because that opinion was not solicited during direct examination but upon cross examination by the Plaintiffs’ counsel. Specifically, Dr. Dumont contends that the “Plaintiffs can cite to no case which holds or suggests that a pretrial disclosure of an expert opinion must be so painstaking and detailed that it must identify the details of the opposing party’s cross-examination and provide responses in anticipation of that cross-examination.” Appellant’s Br. p. 25. Additionally, Dr. Dumont claims that any surprise regarding this opinion was the result of the Plaintiffs’ counsel’s own neglect because the Plaintiffs’ counsel never deposed Dr. Fa-hey. Finally, Dr. Dumont contends that the Plaintiffs waived any objection to Dr. Fahey’s allegedly undisclosed opinion on atelectasis because their counsel failed to object to his testimony during trial, move to strike the testimony, or move for a mistrial.

The primary purpose of Indiana’s discovery rules, including the deadlines for disclosing expert opinions, is to prevent unfair surprise to litigants. Wright v. Miller, 989 N.E.2d 324, 327-28 (Ind.2013). Although generally parties have no duty to supplement discovery responses that were complete when made, Indiana Trial Rule 26(E)(1)(b) requires supplementation with regard to “the identity of each person expected to be called as an expert witness at trial, the subject-matter on which he is expected to testify, and the substance of his testimony.” Ind. Trial Rule 26(E)(1)(b). The Plaintiffs contend that Dr. Dumont violated this requirement by failing to notify them of Dr. Fahey’s opinion that atelectasis could have caused Jordan’s low oxygenation levels. In support of this contention, the Plaintiffs direct us to Nature’s Link, Inc. v. Przybyla, 885 N.E.2d 709 (Ind.Ct.App.2008).

In Przybyla, a disclosed defense expert witness testified that most of the plaintiffs permanent disability could be attributed to a preexisting degenerative disk disease, which the expert diagnosed the plaintiff as having for the first time during defense counsel’s direct examination of the witness. 885 N.E.2d at 712. During cross-examination, the expert admitted that he had not included this diagnosis in either his written report or his deposition testimony that had been given only a few weeks earlier. Id. at 712-13. After the jury verdict, Przyby-la moved for a new trial under Rule 60(B)(3), alleging that defense counsel committed misconduct by failing to supplement his discovery responses as to the defense expert’s opinions. Id. at 713. Defense counsel admitted to knowing of the expert’s revised medical opinion but failing to advise the plaintiff of the new diagnosis before the trial, and the trial court granted a new trial. Id. at 713, 718.

On appeal, this Court affirmed the trial court, noting that the “new medical opinion can rightly be considered a ‘Eureka’ moment further bolstering [the expert’s] earlier testimonial conclusions.Id. at 717. Additionally, we held that Przybyla could not be charged with waiver of the issue for failing to object to the expert’s changed testimony because “[a]t the moment [the expert testified about the new diagnosis], Przybyla did not have any time to evaluate whether to seek a continuance, move for a mistrial, or cross-examine [the] expert.” Id. at 719.

We agree with Dr. Dumont that several facts in the instant case distinguish it from Przybyla. First, no evidence has been tendered intimating that Dr. Du-mont’s counsel knew of Dr. Fahey’s atelec-tasis opinion. Indeed, Dr. Dumont’s counsel never solicited this testimony from Dr. Fahey; the opinion came out on cross-examination when the Plaintiffs’ counsel pushed Dr. Fahey to support his opinion that Jordan’s low oxygenation was not caused by pulmonary emboli but could have been caused by another condition related to her HAE. Tr. p. 1348. This testimony was consistent with Dr. Fahey’s disclosed opinion. Appellant’s App. p. 40. Moreover, we agree with Dr. Dumont that to the extent an expert’s opinion is an ancillary one that a party is not planning to solicit during direct examination, it is not misconduct to fail to disclose it unless it played a significant role in the development of the expert’s opinion or it contradicts an earlier disclosed opinion.

Second, in Przybyla, the expert’s deposition was taken a few weeks prior to the trial, and his opinion changed dramatically in those few weeks. Nevertheless, the plaintiffs counsel failed to disclose the changed opinions. In this case, however, Dr. Dumont disclosed Dr. Fahey’s opinions more than years before the trial date, yet the Plaintiffs never deposed Dr. Fahey to clarify any of his disclosed opinions or to test how he might respond during cross-examination regarding what they believed to be a gap or a weakness in Dr. Dumont’s defense. Appellant’s App. p. 38-41; Tr. p. 1712. In fact, it appears that the Plaintiffs’ decision not to depose Dr. Fahey might have been a tactical one so that the Plaintiffs could, during closing statements, make a big deal about how they had not needed to depose any of the defense experts because “[t]he truth is so clear.” Tr. p. 1712.

Because there is no proof that Dr. Dumont knew specifically of Dr. Fahey’s atelectasis opinion and in light of the Plaintiffs failure to depose Dr. Fahey, we cannot conclude that Dr. Dumont’s failure to disclose Dr. Fahey’s atelectasis opinion led a “Eureka” moment orchestrated by Dr. Dumont. See Johnson v. Wait, 947 N.E.2d 951, 962 (Ind.Ct.App.2011), reh’g denied, trans. denied (holding that plaintiffs failed to establish prejudice by the trial court allowing the testimony of an expert disclosed after the deadline when the plaintiffs had an opportunity to depose the expert but did not avail themselves of the opportunity to do so). And in the absence of a “Eureka” moment orchestrated through the misconduct of a party, we must conclude that here the Plaintiffs waived their objection to Dr. Fahey’s testimony regarding atelectasis because they failed to object to it at trial, seek a continuance, or move for a mistrial. See Ind. Evidence Rule 103(a) (requiring a timely objection to preserve an alleged error on appeal).

B. Dr. Ehrie’s Opinions as a Pathologist

Having determined that no misconduct arose from Dr. Dumont’s failure to disclose Dr. Fahey’s atelectasis opinion, we now turn to Dr. Dumont’s contention that a new trial should not have been predicated on Dr. Ehrie’s testimony as a pathologist because any prejudice caused by that testimony was cured by its exclusion and by the jury admonishment to which the Plaintiffs specifically agreed.

We first observe that exclusion of an expert witness’s testimony is a sanction available to the trial court to use in its discretion when a party violates our rules of discovery. Ind. Trial Rule 37(B)(2). We therefore review the trial court’s decision to exclude an expert witness’s testimony for an abuse of that discretion, and we will reverse only if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it, or if the trial court has misinterpreted the law. Wright, 989 N.E.2d at 330-31.

Nevertheless, in reviewing a trial court’s decision to exclude an expert witness based on a violation of a discovery order, we keep in mind that “ ‘in Indiana there is a marked judicial deference for deciding disputes on their merits and for giving parties their day in court, especially in cases involving material issues of fact, substantial amounts of money, or weighty policy determinations.’ ” Id. at 328 (quoting Charnas v. Estate of Loizos, 822 N.E.2d 181, 185 (Ind.Ct.App.2005)). Additionally, “[wjhen the offending conduct is primarily attributable to counsel and not the client, and prejudice to the opposing party is slight, due consideration should be given to sanctions directed primarily at counsel which seek to minimize prejudice to the client and the merits of the case, while appropriately incentivizing proper future behavior of counsel.” Id. at 330.

Here, we believe that the trial court’s exclusion of Dr. Ehrie’s testimony as a pathologist in its entirety was an abuse of discretion. Although Dr. Du-mont’s counsel disclosed its intention to examine Dr. Ehrie well beyond the pretrial order’s deadline for disclosing expert witnesses, the disclosure was still made six months before the trial date. Appellant’s App. p. 60-61. At that point, the Plaintiffs had more than enough time to depose Dr. Ehrie regarding his opinions as they pertained to Dr. Dumont’s treatment of Jordan. However, the Plaintiffs did not respond to Dr. Dumont’s correspondence until August 2011, at which time Dr. Du-mont requested leave from the trial court to examine Dr. Ehrie. Id. at 63, 65-67. Because the Plaintiffs never submitted a response to this motion, the trial court granted Dr. Dumont’s request. Id. at 68.

Furthermore, during the pre-trial hearing on Dr. Dumont’s motion to compel release of the pathology slides in October 2011, less than a week before trial, the Plaintiffs’ counsel voiced his suspicions that Dr. Dumont wished to examine Dr. Ehrie outside of his previously disclosed expertise in pulmonology. Tr. p. 86-96. In fact, the Plaintiffs’ counsel highlighted for the trial court that Dr. Dumont’s reference to Dr. Ehrie’s histological opinions in his April 2011 disclosure referred to the pathology slides. Id. at 91-92. But when the trial court upheld its previous decision allowing Dr. Dumont’s counsel to examine Dr. Ehrie, the Plaintiffs’ counsel did not request a continuance so that he could depose him or at least be better prepared to respond to any new pathological opinions. Instead, the Plaintiffs’ counsel merely advised the trial court that the Plaintiffs “may . call Dr. Kim now, in light of what’s happened here today.” Id. at 132. However, during trial, the Plaintiffs did not call Dr. Kim either as part of their case-in-chief or as a rebuttal witness. Nevertheless, despite the stipulation dispensing with the necessity of Dr. Kim’s testimony as to the authentication of the autopsy report, the Plaintiffs’ counsel chided the defendants during closing arguments for not calling Dr. Kim, hinting that Dr. Kim would have agreed with everything the Plaintiffs said. Id. at 1709.

Based on this chain of events and the Plaintiffs’ counsel’s apparent suspicion that Dr. Ehrie was going to testify as a pathologist but failure to prepare for that contingency, we are not convinced that Dr. Eh-rie’s testimony was prejudicial to the Plaintiffs’ case. The situation we are confronted with here is not analogous to the situation in Przybyla where the innocent party was unaware that an expert witness’s opinions had changed until the midst of that expert’s testimony. Rather, it appears that the Plaintiffs’ counsel had plenty of time before trial to develop a strategy to combat any undisclosed opinions of Dr. Ehrie. Moreover, any prejudice that did arise would likely have been attributable to Dr. Dumont’s counsel rather than directly to Dr. Dumont himself. Thus, because the Plaintiffs were not unduly surprised by Dr. Ehrie’s testimony as a pathologist, the trial court erred by excluding the testimony in its entirety. See Wright, 989 N.E.2d at 331 (holding that a trial court’s exclusion of a plaintiffs replacement expert witness was an abuse of discretion when, although the previous expert was left off the plaintiffs pre-trial witness list, the defendants knew that the plaintiffs had intended to use that expert witness, and there was no trial date set when the replacement expert was disclosed, thus allowing the defendants sufficient time to prepare a response to the new expert). Consequently, we conclude that the trial court erred by granting the Plaintiffs a new trial.

Nevertheless, even if the trial court was correct that Dr. Dumont’s counsel committed misconduct, we would still believe that the trial court should not have granted the Plaintiffs’ request for a new trial. Rather, the error was remedied when the Plaintiffs’ counsel objected to Dr. Ehrie’s testimony, the trial court excluded the testimony in its entirety, and the jury was timely admonished not to consider Dr. Ehrie’s testimony that had been elicited by Dr. Dumont’s counsel.

Generally, we presume that jurors will abide by a trial court’s instruction not to consider certain evidence. Becker v. Plemmons, 598 N.E.2d 564, 567 (Ind.Ct.App.1992). However, there are situations where the prejudice resulting from improper testimony cannot be adequately remedied by an order striking the testimony from the record and an admonishment to the jury not to consider the evidence. In these situations, the proper procedure is for the prejudiced party to promptly request a mistrial. Id. at 568.

We acknowledge that, when considering a Rule 60(B) motion to set aside a judgment, a trial court is in a better position to determine whether misconduct affected the jury and to what extent. Wisner, 984 N.E.2d at 1206. Here, though, when the Plaintiffs’ counsel objected at trial, he moved only for Dr. Ehrie’s testimony elicited by Dr. Dumont’s counsel to be stricken from the record and for an admonishment to the jury not to consider that testimony. Id. at 1479. Moreover, the Plaintiffs’ counsel specifically agreed to the wording of the jury admonishment and did not request a mistrial. Id. at 1484, 1486. Instead, the Plaintiffs waited nearly a month after the verdict for the defense had been entered before requesting a new trial pursuant to Rule 60(B)(3).

“A party may not, by action or inaction, await the verdict and then seek to set it aside for error that could have been averted or corrected.” Beverly Enters., Inc. v. Spragg, 695 N.E.2d 1019, 1022 (Ind.Ct.App.1998). And when a party accepts an admonishment as a remedy to improper testimony without also making a prompt motion for a mistrial, that party cannot later complain that more should have been done to eliminate the prejudice arising from the testimony. See Becker, 598 N.E.2d at 568 (holding that a defendant’s motion for a mistrial made after a lunch recess was insufficiently prompt to warrant a new trial when before lunch the defendant accepted a jury admonishment without further objection).

Finally, part of the Plaintiffs’ argument for why Dr. Dumont’s counsel’s misconduct warranted a new trial was that the Plaintiffs had suffered actual prejudice that had not been cured by the jury admonishment. Specifically, the Plaintiffs alleged that their counsel “learned after the verdict while talking with the jury that the jury did, in fact, consider Dr. Ehrie’s new, undisclosed and stricken opinions in their decision.” Appellant’s App. p. 89. In Ward v. St. Mary Medical Center of Gary, our Supreme Court stated that “a jury’s verdict may not be impeached by the testimony of the jurors who returned it.” 658 N.E.2d 893, 894 (Ind.1995). Accordingly, if and to the extent that this statement of “actual prejudice” influenced the trial court to grant the Plaintiffs’ request for a new trial, the trial court erred. “[A] jury trial ... is eroded if a trial court judge can employ a jury’s explanatory statement to vacate its verdict.” Id. at 895.

Thus, we conclude that, even assuming that Dr. Dumont’s counsel committed misconduct by attempting to add a new expert witness after the deadline set forth in the pre-trial order, the trial court erred by granting the Plaintiffs a new trial on the basis of Dr. Ehrie’s stricken testimony.

III. Conclusion

In sum, we do not believe that either Dr. Fahey’s allegedly undisclosed opinion about atelectasis or Dr. Ehrie’s testimony in his capacity as a pathologist supported the trial court’s finding that Dr. Dumont’s counsel committed misconduct warranting a new trial. Moreover, we find that the Plaintiffs waived their objection to Dr. Fa-hey’s undisclosed opinions by failing to object to his testimony at trial. Finally, we conclude that because the Plaintiffs accepted a jury admonishment with regard to Dr. Ehrie’s testimony without also moving for a mistrial, and the Plaintiffs did not establish actual surprise resulting from his testimony, the trial court erred by granting the Plaintiffs a new trial.

The judgment of the trial court is reversed.

MAY, J. and MATHIAS, J., concur.

      . Because Community Hospital does not participate in this appeal, we limit our recitation of the facts primarily to those concerning only Dr. Dumont.

      . In relevant part, Community Hospital’s disclosure of Dr. Ehrie’s opinion stated: "All of the signs and symptoms which the Plaintiffs contend were signs or symptoms of a pulmonary embolism were non specific and not necessarily related to a pulmonary embolism. Rather, all said signs and symptoms could have been related to [Jordan's] other medical conditions. There are no specific signs or symptoms for a pulmonary embolism which are exclusive to that particular issue."

      . In relevant part, Dr. Fahey’s opinion stated: "Dr. Fahey opines that Dr. Dumont met the standard of care. The standard of care did not require Dr. Dumont to suspect that the patient was at risk for or suffering from a pulmonary embolic event because her symp-tomatology was consistent with her prior admissions and therefore reasonably attributed to being secondary to hereditary angioedema. In short, while the patient at times was noted to be tachypneic, tachycardic, and dyspneic during her admission beginning on September 2, 2001, these signs and symptoms were of no or little predictive value because they were common for this patient.” Appellant’s App. p. 40.

      . Specifically, the stipulation read: "The parties stipulate to the authenticity and admissibility of the autopsy report and that Charmitta Jordan died as a result of pulmonary emboli dispensing with the necessity of testimony from the pathologist, Dr. Kim.” Tr. p. 380.