Joshua Sweet, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Joshua Sweet appeals his conviction for Level 5 felony nonsupport of a dependent. Sweet raises a single issue for our review, which we restate as whether the prosecutor committed fundamental error in various statements to the jury. We affirm.

Facts and Procedural History

[2] In 2006, Coleen Kaczmarek gave birth to G.S. After Sweet's paternity was established, the court ordered him to pay weekly child support. As of January 2015, Sweet's weekly child support obligation was $102. Between June 14, 2020, and April 3, 2022, and again between April 5, 2022, through August 9, 2022, Sweet did not pay his child support obligation.

[3] The State charged Sweet in relevant part with Level 5 felony nonsupport of a dependent. Immediately before the ensuing voir dire for his jury trial, the trial court informed the venire that the State would be prosecuting Sweet for felony nonsupport of a dependent. The prosecutor then inquired with the prospective jurors as follows:

[O]n a scale of one to ten, with one being the least and ten the most, how much would you do to provide support for your children? If ․ one is ․ that kid can probably fend for him/herself and ten is I would do anything in my power to support my kid. How many of you ․ would ․ give ten to support your children? I think ․ everyone's hand [is up]․ Is there anyone who wouldn't do a ten to support their children? If it came down ․ to supporting your children ․ and they needed your assistance, would you work overtime, anyone? Can I have a show of hands? Came down to ․ taking a lower paying job, if that's all there was to support your children, ․ would anyone do that? Would anyone work an extra job? Would anyone go on ․ food stamps or any other form of public assistance if it meant supporting your children? Would you pick up cans on the side of the road for recycling if that's all you could do to support your children? Would you pay as much as you could, even [if] it wasn't the full amount the court ordered? Show of hands?

* * *

[F]or the people who just joined us, ․ you heard me ask ․ , on the scale of one to ten how much ․ would you do to support your children․ [I]s there anyone here who would do a ten to support your children? Is there anyone who would do less than ten? You'd be like eh[,] maybe that is a six, I like this one, but—(laughing in the courtroom).

* * *

[To a new prospective juror:] My one to ten scale, on a scale of one to ten would you do ․ all that you could to support your children, would that be a ten for you as well?

Prospective juror: Yes.

Tr. Vol. 2, pp. 56-57, 80, 90. Sweet did not object to those inquiries.

[4] Kaczmarek testified during the trial that Sweet had not paid his child support obligation during the times in question. In response, Sweet did not dispute that he owed a child support obligation that he did not pay. Instead, he testified that he had been unable to pay during the times in question due to various mental and physical health issues as well as issues with employment and housing stability.

[5] At the conclusion of his closing argument, the prosecutor addressed the jury as follows without objection:

This case is really about ․ [whether] the defendant [has] proven ․ by a preponderance of the evidence that he was unable to provide support. In jury selection I asked all of you on the scale of one to ten how much would you be willing to do to support your children. All of you raised your hands and said I'd give it a ten, I would do everything within my power. Now's the chance ․ for you to ask[,] ․ [d]id [Sweet] do the same thing that you would have done ․ to provide support for your children[?] And the obvious answer is no. Thank you.

Id. at 211.

[6] The jury found Sweet guilty of Level 5 felony nonsupport of a dependent, and the trial court entered its judgment of conviction and sentenced Sweet accordingly. This appeal ensued.

Discussion and Decision

[7] On appeal, Sweet argues that the prosecutor's comments to prospective jurors during voir dire as well as his comment during the closing argument of the trial constituted prosecutorial misconduct. As our Supreme Court has explained:

In reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred, 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” otherwise. A prosecutor has the duty to present a persuasive final argument and thus placing a defendant in grave peril, by itself, is not misconduct. “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.” To preserve a claim of prosecutorial misconduct, the defendant must—at the time the alleged misconduct occurs—request an admonishment to the jury, and if further relief is desired, move for a mistrial.

Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citations omitted), abrogated in part on other grounds by Konkle v State, 253 N.E.3d 1068, 1080-82 (Ind. 2025).

[8] However, as Sweet did not object to the now-challenged statements, to prevail on appeal Sweet

must establish not only the grounds for prosecutorial misconduct but must also establish that the prosecutorial misconduct constituted fundamental error. Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to “make a fair trial impossible.” In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors (a) “constitute clearly blatant violations of basic and elementary principles of due process” and (b) “present an undeniable and substantial potential for harm.” The element of such harm is not established by the fact of ultimate conviction but rather “depends upon whether [the defendant's] right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled.” ․

We stress that “[a] finding of fundamental error essentially means that the trial judge erred ․ by not acting when he or she should have ․” Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error.

Id. at 667-68 (citations and footnote omitted; alterations in original).

[9] For example, in Ryan, our Supreme Court held that,

[w]hile “comments that demean opposing counsel, especially in front of a jury, are inappropriate,” Marcum v. State, 725 N.E.2d 852, 859 (Ind. 2000), not all of the allegedly improper comments here are objectionable. “Prosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable.” Cooper[ v. State], 854 N.E.2d [831, 836 (Ind. 2006)]. Here, the prosecutor used her rebuttal to respond to defense counsel's closing argument, in which he criticized the quality of the police investigation and then compared famous cases of false accusations such as “the Duke Lacrosse case,” which “supposedly had a full and thorough investigation.” Without question, the characterization of defense counsel's line of argumentation as “how guilty people walk” and a “trick[ ]” is inconsistent with the requirement that lawyers “demonstrate respect for the legal system and for those who serve it, including ․ other lawyers,” see Preamble [5], Ind. Professional Conduct Rules. But the defendant has failed to establish that, under all of the circumstances, such improper comments placed him in a position of grave peril to which he would not have been subjected otherwise. See Cooper, 854 N.E.2d at 835; Marcum, 725 N.E.2d at 859-60. In Marcum, this Court held it could not conclude that comments such as “what this is, is a response to your nonsense,” “Judge I guess we can move the jury out and we can do a quick evidence course here for [defense counsel],” and “He is trying to mislead this jury” affected the jury's verdict in light of the evidence as a whole. 725 N.E.2d at 858-60. Similarly, in Brock v. State, this Court found that the prosecutor's statement that defense counsel was “pulling the most low life tricks in this case,” was improper but did not place the defendant in grave peril. 423 N.E.2d 302, 304-05 (Ind. 1981) (noting that defense counsel conceded it was a “rather insignificant” personal matter). This case is less egregious than Marcum and Brock; we find no prosecutorial misconduct.

Id. at 669-70 (record citation omitted; last alteration in original).

[10] No fundamental error occurred here. Nothing the prosecutor said to the jury came anywhere close to the comments made in Ryan, Marcum, or Brock, and in none of those cases did the comments rise to reversible error. And neither do the cases relied on by Sweet in his brief to our Court support his position. For example, in Bardonner v. State, 587 N.E.2d 1353, 1360-62 (Ind. Ct. App. 1992), trans. denied, we held—on review of a properly preserved claim of prosecutorial error—that the prosecutor had committed reversible misconduct when his statements to prospective jurors elevated the role of prosecutors as seeking truth and disparaging the role of defense counsel, which impinged on the presumption of innocence, the defendant's right to cross-examine the witnesses, and the defendant's right to effective assistance of counsel. The prosecutor here in no way disparaged the role of defense counsel nor made comments that impinged on Sweet's fundamental rights. See also Lainhart v. State, 916 N.E.2d 924, 932-33 (Ind. Ct. App. 2009) (following Bardonner and concluding that fundamental error occurred in part because of the prosecutor's similar misconduct).¹

[11] Sweet's reliance on various other authorities is also misplaced. In Sanders v. State, 724 N.E.2d 1127, 1133-34 (Ind. Ct. App. 2000), abrogated in part on other grounds by Snow v. State, 77 N.E.3d 173, 176-77 (Ind. 2017), we held no fundamental error occurred even though the prosecutor had engaged in misconduct with comments that elevated her role as a pursuer of truth and disparaged the role of defense counsel. In Timmons v. State, 500 N.E.2d 1212, 1215 (Ind. 1986), our Supreme Court held that no fundamental error occurred even though the prosecutor had mischaracterized the presumption of innocence. Bardonner, Sanders, and Timmons all speak to the “denial of procedural opportunities for the ascertainment of truth” that may be protected by the fundamental error doctrine, even though two of those three cases concluded that the misconduct did not result in error. Ryan, 9 N.E.3d at 668. The prosecutor's comments here are not on par with any of the comments in those authorities and are not fundamental error.

[12] Sweet also argues that the prosecutor's comments during voir dire “effectively introduced its theory before any evidence was presented.” Appellant's Br. at 17. He asserts that this is impermissible, relying on authority that says a defendant may not use voir dire to inquire with jurors about specific intent. Id. (citing McCormick v. State, 437 N.E.2d 993 (Ind. 1982)). But the prospective jurors already knew the State was prosecuting Sweet for felony nonsupport of a dependent, and his reliance on a case disapproving of more specific theories in voir dire is inapposite. Moreover, even if Sweet's argument here might suffice for a preserved error, it is nowhere close to fundamental error.

[13] Sweet also asserts that the prosecutor's closing argument amounted to an improper “Golden Rule” argument. A “Golden Rule” argument is one “in which the jury is asked to put itself in the [plaintiff's or] the defendant's position” and “is universally recognized as improper because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.” United States v. Roman, 492 F.3d 803, 806 (7th Cir. 2007) (quotation marks omitted); see also Johnson v. State, 453 N.E.2d 365, 369 (Ind. Ct. App. 1983) (“It is misconduct to phrase final argument in a manner calculated to inflame the passions or prejudices of the jury.”).

[14] The prosecutor's comment here was not fundamental error. He asked the jurors to consider whether “[Sweet did] the same thing that you would have done ․” Tr. Vol. 2, p. 211. We cannot say that this comment made a fair trial impossible. We reject Sweet's argument.

[15] Sweet's arguments on appeal seek to elevate to fundamental error run-of-the-mill disagreements about trial procedure. Ten reasonable defense attorneys might have ten completely different, but completely reasonable, approaches to any given trial. And a fair trial can be had by express agreement between the parties and also by the inaction of a party. The fundamental error doctrine protects the baseline below which a fair trial cannot be had, and nothing in Sweet's argument in this appeal approaches—let alone crosses—that threshold.

[16] For all of these reasons, we affirm Sweet's conviction for Level 5 felony nonsupport of a dependent.

[17] Affirmed.

FOOTNOTES

1.   Our Court's opinion in Lainhart incorrectly identified Bardonner as a fundamental-error appeal. Lainhart, 916 N.E.2d at 933 (“the prosecutor's conduct [in Bardonner] constituted fundamental error”); Bardonner, 587 N.E.2d at 1357-58 (“defense counsel renewed his motion for mistrial ․ and, thus, preserved the error ․”).

Mathias, Judge.

Judges Foley and Felix concur. Foley, J., and Felix, J., concur.