Samuel L. Patterson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Samuel L. Patterson appeals his two convictions for Level 1 felony rape and his conviction for Level 4 felony burglary following a jury trial. Patterson raises two issues for our review, which we consolidate and restate as whether the trial court committed fundamental error when it did not sua sponte conclude that prosecutorial misconduct occurred that made a fair trial against Patterson impossible.

[2] We affirm.

Facts and Procedural History

[3] In 2017, V.M. moved into a senior living community in Hancock County. In June 2018, V.M. was ninety-one years old. In the early morning hours of June 27, Patterson broke into V.M.’s living area. He demanded money from V.M. and then pulled her out of her bed, placed a pillowcase over her head, and “proceeded to vaginally and anally penetrate her with his penis multiple times.” Tr. Vol. 3, p. 58. Patterson then fled the scene, and V.M. contacted emergency personnel. Emergency personnel, in turn, contacted 9-1-1.

[4] V.M. described Patterson to responding officers. Officers obtained blood and hair samples from the floor of V.M.’s bedroom. Outside of her residence, they identified part of a wristband from a watch that V.M. had reported as missing.

[5] Officers learned that Patterson, who matched V.M.’s description and was a registered sex offender, lived about 200 feet from V.M. They then learned that, in 1999, Patterson had been convicted of rape and burglary of a seventy-nine-year-old woman in LaPorte County. Officers obtained a warrant for Patterson's DNA. His DNA matched the DNA from the hair obtained off the floor of V.M.’s bedroom.

[6] The State charged Patterson in relevant part with two counts of Level 1 felony rape and one count of Level 1 felony burglary. The State also charged Patterson in relevant part with rape in another case that involved a similar attack of a seventy-seven-year-old woman that had occurred around the same time as the attack on V.M. but about five miles away in Marion County. Patterson eventually pleaded guilty in the Marion County case.

[7] The State provided notice to Patterson that it intended to introduce into evidence his LaPorte County and Marion County convictions as identity evidence in support of the instant offenses. Patterson objected on the ground that the State's evidence was inadmissible propensity evidence. After a pretrial hearing, the trial court agreed with the State that the proffered evidence was admissible identity evidence. At his ensuing jury trial, Patterson objected to the admission of the prior convictions on the ground that they constituted inappropriate propensity evidence, which objection the trial court overruled.

[8] In describing the State's investigative techniques to the jury, the prosecutor asked one of the investigating officers if another officer had learned of a “sexually violent predator in the neighborhood behind” V.M.’s living area. Id. at 181. Patterson did not object to the prosecutor's question or the ensuing affirmative response. Following the close of the State's case-in-chief, Patterson testified in his own defense.

[9] Thereafter, the prosecutor challenged Patterson's credibility in the State's opening final argument to the jury as follows:

[Patterson] doesn't know who [his] parole officers were even though he only had two or maybe three parole officers between the time he was out on parole, which was only about a year and a half before he raped somebody again that he admitted to ․ He was convicted of [the first rape], and we have another rape. He was drinking and drugging during those timeframes․ So, I guess between 1999 when he was in prison until 2017, we don't know what he was doing cause he's in prison. Then 2017 to 2018 he's out. We have this rape that he's saying, “Wasn't me, wasn't me.” In between June and September he must be back to drinking and drugging, cause now he's back to admitting that he's raping people․ The defendant has no burden. It is all the State's burden. We talked about that ․ The State has the burden of proof, the entire burden of proof, but the defendant does have the ability to subpoena witnesses and can call whatever witnesses [he] want[s] for [his] case. And I was here for the whole trial, and so were all of you, and I didn't see [his roommate] testify at all. I didn't hear her say anything about whether he was or wasn't allowed to [live] there, whether he was permitted to be there overnight with her, whether he was there that night or not. We heard nothing from her․

Tr. Vol. 4, pp. 24-25. The prosecutor added:

We don't remember our parole officer's name that we checked in with every month, or what time we started [a] new job, or who we told or when we told them ․ [F]rankly, I think [Patterson's testimony] is BS, but that's up to you to determine which witnesses you believe and which you don't․ We ha[ve] the phone records. We ha[ve] the physical description. We have the DNA evidence. And we have a known sexually violent predator․ This is someone who has an affinity for older, vulnerable victims․

Id. at 29.

[10] Patterson did not object to the prosecutor's remarks when the prosecutor made them. Instead, after the prosecutor had finished her opening final argument, which was at least six minutes after the last-quoted language above,¹ Patterson then moved for a mistrial on the ground that the prosecutor had suggested to the jury that he held the burden to disprove the State's allegations. The trial court denied Patterson's motion for a mistrial. After Patterson's closing statement and the prosecutor's rebuttal, the court instructed the jury that “a person charged with a crime is presumed to be innocent”; that “[t]his presumption of innocence continues in favor of the defendant throughout each stage of the trial”; that, “[t]o overcome the presumption of innocence, the State must prove ․ the defendant guilty of each element of the crime charged beyond a reasonable doubt”; that “[t]he defendant is not required to present any evidence to prove his innocence or prove or explain anything”; and that “[t]he burden is upon the State to prove beyond a reasonable doubt that the defendant is guilty of the crimes charged. It's a strict and heavy burden.” Id. at 54. The court further instructed the jury that the evidence of Patterson's prior convictions was admissible “solely on the issue of the defendant's identity” and “should be considered by you only for that limited purpose.” Id. at 56.

[11] The jury found Patterson guilty of two counts of Level 1 felony rape and one count of Level 1 felony burglary. The trial court entered its judgment of conviction on the two rape counts and reduced the Level 1 felony burglary finding to a Level 4 felony burglary conviction. The court then sentenced Patterson accordingly. This appeal ensued.

Discussion and Decision

[12] On appeal, Patterson first argues that the trial court erred when it permitted the State to introduce and discuss his prior convictions from LaPorte County and Marion County. However, Patterson's objection to that evidence at trial was that the evidence was not admissible as identity evidence under Indiana Evidence Rule 404(b)(2). And, on appeal, he does not argue that the trial court erred in concluding otherwise.

[13] Rather, Patterson's argument on appeal is that the prosecutor went too far with the identity evidence and, in doing so, committed misconduct by using identity evidence for impermissible propensity purposes. But Patterson did not object to the trial court during those moments in which he argues on appeal that the prosecutor went too far. Accordingly, he has not preserved his claims of prosecutorial misconduct for appellate review.

[14] As our Supreme Court has made clear:

Our standard of review is different where a claim of prosecutorial misconduct has been procedurally defaulted for failure to properly raise the claim in the trial court ․ The defendant 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. In evaluating the issue of fundamental error, our task in this case 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.

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. See Baer v. State, 942 N.E.2d 80, 99 (Ind. 2011) (noting it is “highly unlikely” to prevail on a claim of fundamental error relating to prosecutorial misconduct); Stevens v. State, 691 N.E.2d 412, 420 n.2 (Ind. 1997); Wilson v. State, 222 Ind. 63, 83, 51 N.E.2d 848, 856 (1943).

Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014) (emphasis added; citation modified).

[15] We have also recognized that “[o]ur case law has long required the parties to request an admonishment from the court—not to have the court act sua sponte— if the parties think such an admonishment might be appropriate.” Merritt v. State, 99 N.E.3d 706, 710 (Ind. Ct. App. 2018), trans. denied. As we explained in Merritt:

The reason for putting that burden on the parties and not on the trial court is obvious: admonishments are double-edged swords. On the one hand, they can help focus the jury on the proper considerations for admitted evidence. However, on the other hand, they can draw unnecessary attention to unfavorable aspects of the evidence. See, e.g., McCollum v. State, 582 N.E.2d 804, 811 (Ind. 1991) (stating that requesting an admonishment “could have drawn unnecessary attention” to undesired commentary). The risk calculus inherent in a request for an admonishment is an assessment that is nearly always best made by the parties and their attorneys and not sua sponte by our trial courts.

Id. (citation omitted).

[16] Patterson argues that the prosecutor's question to an investigating detective about learning of a “sexually violent predator” near V.M.’s home was prosecutorial misconduct that resulted in fundamental error. Tr. Vol. 3, p. 181. Patterson also contends that the prosecutor “directly made the forbidden” propensity argument during her closing remarks, also resulting in fundamental error. Appellant's Br. at 20.

[17] While we do not condone the State's comments, we cannot say that they made a fair trial impossible. Nothing about the State's comments denied Patterson access to “procedural opportunities for the ascertainment of truth,” which is the focus of a fundamental-error analysis. Ryan, 9 N.E.3d at 668. Indeed, the jury was expressly instructed that references to Patterson's prior convictions were “solely on the issue of the defendant's identity” and “should be considered by you only for that limited purpose.” Tr. Vol. 4, p. 56. Patterson directs us to no authority or other compelling reason to think the jury did not act in accordance with that instruction. Moreover, Patterson may well have intentionally chosen to not seek admonishments for the comments he now questions. “[A]dmonishments are double-edged swords” and “[t]he risk calculus inherent in a request for an admonishment is an assessment that is nearly always best made by the parties ․ and not sua sponte by our trial courts.” Merritt, 99 N.E.3d at 710. A party may not take a conceivably strategic approach in the trial court and then seek reversal on appeal for that same issue under the fundamental-error doctrine. See, e.g., Willoughby v. State, 244 N.E.3d 473, 475-76 (Ind. Ct. App. 2024), trans. denied.

[18] Patterson also argues that the prosecutor inappropriately referred to his testimony as “BS” and inappropriately shifted the burden of proof onto him during her closing remarks. Appellant's Br. at 24-27. Patterson does not contend that his request for a mistrial preserved this argument for our review, and we conclude that that request was not a contemporaneous objection as required to preserve an issue. Regardless, however, even if Patterson's argument regarding the “BS” comment and the purported burden shifting were properly before us, the trial court's instructions to the jury cured any error. As noted above, the trial court expressly and correctly informed the jury that Patterson was to be presumed innocent and that the burden of proof at all times was on the State to prove that Patterson had committed the alleged offenses beyond a reasonable doubt. The court further instructed the jury that Patterson was “not required to present any evidence to prove his innocence or prove or explain anything” in response to the State's allegations. Tr. Vol. 4, p. 54. We therefore conclude that the jury instructions cured any error the prosecutor may have committed in her closing remarks on this issue.

[19] For all of these reasons, we affirm Patterson's convictions.

[20] Affirmed.

FOOTNOTES

1.   On page 30 of the transcript, the trial court noted that the prosecutor had twenty minutes of time left. On pages 33-34, where Patterson moved for a mistrial, the court noted that the prosecutor had fourteen minutes left for her rebuttal argument. Tr. Vol. 4, pp. 30, 33-34.

Mathias, Judge.

Vaidik, J., and Pyle, J., concur.