Harvey L. Sanders, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Harvey L. Sanders appeals his convictions for Level 6 felony intimidation ¹ and Level 6 felony domestic battery.² He argues the State's cross examination questions regarding his criminal history and possible gang affiliations constituted prosecutorial misconduct rising to the level of fundamental error. We disagree and affirm.

Facts and Procedural History

[2] Sanders and S.G. lived in Elkhart. On January 21, 2024, S.G.’s grandmother died. The next afternoon, S.G.’s cousin Forestean Harris came to S.G.’s house to take S.G. to be with family members.

[3] Harris arrived at the residence and found Sanders and S.G. arguing. Sanders told S.G. to leave and said “he didn't care about [S.G.’s] grandmother dying[.]” (Tr. Vol. II at 80.) When S.G. went to get her shoes, Sanders followed her and then grabbed her by the neck and punched her multiple times above her left eye. S.G. hit Sanders back, bloodying his nose. Harris called 911.

[4] When police arrived, S.G. left the residence, but Sanders went back inside and refused to come out. Officers observed S.G.’s injuries, including a “knot ․ above her eye and ․ scratches ․ on her chest.” (Id. at 85.) Officers spoke with S.G. who told them Sanders had struck her in the face.

[5] While officers spoke to S.G., Sanders began yelling from the house's second story window including “[o]n the boss Imma kill ‘em” (id. at 158) and “on GD ․ Imma kill ‘em.” (Id. at 159) (errors in original). Sanders also posted a Facebook Livestream ³ video in which he made a hand gesture that looked like “rakes” or “pitchforks.” (Tr. Vol. II at 167-8.) Sanders refused to leave the residence, even after the police released pepper balls.⁴ SWAT arrived on scene, and Sanders left the residence about an hour later.

[6] On January 24, 2024, the State charged Sanders with Level 6 felony intimidation and Level 6 felony domestic battery. On February 9, 2024, the State filed an amended charging information also alleging Sanders was a habitual offender.⁵ On August 6-7, 2024, the trial court held a jury trial.

[7] As part of his testimony, Sanders maintained his innocence and testified that it did not make “sense for him to touch” S.G. because he was “on an ankle monitor[.]” (Id. at 148.) He mentioned several times he was on house arrest at the time of the incident. The State later asked Sanders why he was on house arrest, and he answered that he was a “serious violent felon[.]” (Id. at 161.) He then answered in the affirmative when the State asked if he was a serious violent felon because of “a dealing in cocaine conviction.” (Id.)

[8] The State also introduced into evidence video recordings of Corporal Heign's body cam and the Facebook Livestream video Sanders made during the incident. The State then questioned Sanders about some of his statements made on the night of the incident as well as a gesture he made during the Facebook Livestream. The State asked Sanders if his statement “[o]n the boss” that preceded his threat to kill S.G. was a reference to the gang “Brothers of the Struggle.” (Id. at 158.) Sanders indicated it was not and was instead like saying “on my momma.” (Id.) (error in original). When asked if the letters “GD” (id.) that preceded another threat to kill S.G. was a reference to the gang “Gangster Disciples[,]” Sanders denied that it was and explained GD meant “[o]n growth and development.” (Id. at 159.) Regarding the gesture he made during the Facebook Livestream, Sanders admitted it was a gang sign associated with the Brothers of the Struggle.

[9] The jury returned a guilty verdict for both charges. Sanders admitted he was a habitual offender. The trial court sentenced Sanders to two years for Level 6 felony intimidation, enhanced by five years because of the habitual offender finding. The trial court also imposed a two-year sentence for Sanders's Level 6 felony domestic battery conviction. The trial court ordered Sanders to serve the two sentences consecutively, for an aggregate term of nine years.

Discussion and Decision

[10] Sanders argues the State committed prosecutorial misconduct when it questioned him about his criminal history and possible affiliation with gangs. When determining whether a prosecutor committed 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.” Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). “Whether a prosecutor's argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct.” Id. “The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury's decision rather [than] the degree of impropriety of the conduct.” Id. To preserve a claim of prosecutorial misconduct, “where a defendant timely objects to alleged misconduct by the prosecutor and the trial court overrules the objection, nothing further is required to preserve the issue for appeal.” Konkle v. State, 253 N.E.3d 1068, 1082 (Ind. 2025). Failure to do so results in waiver of the issue. Id.

[11] Sanders acknowledges that he did not object to the State's relevant lines of questioning and thus the issues are waived. In such a case, the defendant must establish not only the grounds for prosecutorial misconduct but also that the prosecutorial misconduct constituted fundamental error.” Jerden v. State, 37 N.E.3d 494, 498 (Ind. Ct. App. 2015). As we explained in Jerden:

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 evaluating the issue of fundamental error, our task is to look at the alleged misconduct in the context of all that happened and all relevant information given to the jury - including evidence admitted at trial, closing argument, and jury instructions - to determine whether the misconduct had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible. 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[.]

Id. (internal quotations, citations, and emphasis omitted).

[12] Sanders argues the State committed prosecutorial misconduct that rose to the level of fundamental error by eliciting testimony regarding both his criminal history and his alleged gang affiliations.

[13] Regarding his criminal history, during direct examination Sanders testified he did not hit S.G. because he was on ‘an ankle monitor․on house arrest’.. (id. at 148) and knew if he had hit her he was “gonna go to jail for it.” (Id. at 160.) Following these statements, the State asked:

Q: Okay. What were you on an ankle monitor for?

A: I was on an ankle monitor ․ for a serious violent felon with a handgun.

Q: Okay. So when were you convicted of that?

A: I was convicted of that in 2023.

* * * * *

Q: Then I think that begs the question what was the underlying serious violent felony that you were also guilty of?

A: Well imma [sic] tell you this I don't understand how I became a serious violent felon in the first place with that because they use [sic] it for a drug case years ago.

Q: Okay. So was that a dealing in cocaine conviction?

A: Yes.

(Tr. Vol. II at 160-1.)

[14] The State also questioned Sanders about his alleged involvement with the Gangster Disciplies and Brothers of the Struggle. During the standoff, Sanders made a gang sign associated with the Brothers of the Struggle during his Facebook Livestream. Sanders also made statements using gang terminology while shouting out a window at S.G. such as “[o]n the boss Imma kill ‘em” and “[o]n GD ․ imma kill ‘em.” (Id. at 158.) The State then asked him to explain the meaning of these statements, which he insisted were not gang related.

[15] Even if the State's questioning regarding Sanders's criminal history or gang affiliation amounted to prosecutorial misconduct, these actions did not raise to the level of fundamental error because there existed substantial evidence independent of the challenged testimony to prove Sanders committed the offenses for which he was convicted. Officer Heign's body cam footage shows Sanders yelling threats at S.G. In addition, the State entered into evidence pictures of S.G.’s injuries, Harris testified that Sanders grabbed S.G. and hit her in the face, and Officer Morton told the trial court that S.G. told him that Sanders “had struck her in the face.” (Id. at 57.) Based on this substantial independent evidence of Sanders's guilt, we conclude Sanders has not demonstrated fundamental error based on the State's questioning regarding his criminal history and gang affiliation. See, e.g., Jordan v. State, 244 N.E.3d 445, 462 (Ind. Ct. App. 2024) (even if the State committed prosecutorial misconduct, that action did not rise to the level of fundamental error because there existed substantial independent evidence of the defendant's guilt).

Conclusion

[16] Even if the State committed prosecutorial misconduct by asking Sanders about his criminal history and gang affiliation, he has not demonstrated fundamental error because there existed substantial independent evidence of his guilt. We accordingly affirm.

[17] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-45-2-1(b)(1).

2.   Ind. Code § 35-42-2-1.3(b)(1).

3.   Officer Andrew Martin explained a Facebook Livestream was “a live video of either the front or rear camera. Typically done from a cell phone. You can do it right within the app․ There's a little button for live and then you'd be broadcasting to all your friends[.]” (Tr. Vol. II at 67.)

4.   Officer Dustin Vos explained that pepper balls were deployed “into these specific rooms to get [Sanders] to come out the stairs.” (Tr. Vol. II at 118.) “So it is a powder form. If you were to think of like baby powder, but it would be pepper spray in it. It's a little bit of irritant in there.” (Id. at 119.)

5.   Ind. Code § 35-50-2-8.

May, Judge.

Judges Weissmann and Scheele concur. Weissmann, J., and Scheele, J., concur.