Demarcus Antoine Nelson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Demarcus Nelson appeals his convictions for Level 6 felony pointing a firearm and Level 6 felony domestic battery following a jury trial. Nelson presents two issues for our review:

1. Whether alleged prosecutorial misconduct constituted fundamental error.

2. Whether the trial court's failure to give a special unanimity instruction to the jury constituted fundamental error.

[2] We affirm.

Facts and Procedural History

[3] On March 11, 2025, Nelson contacted his ex-girlfriend Ashley Finch-Sparks to ask her whether he could take a shower at her house. Finch-Sparks had just taken her three minor children to school/daycare, and she was heading to work, so she told him that he could take a shower. But Finch-Sparks told Nelson that he had to leave the house when he was done.

[4] When Finch-Sparks and her children arrived home at around 8:00 that evening, Nelson was still there. Nelson had been drinking alcohol. Finch-Sparks eventually told Nelson to leave the house, but he told her that he was “too drunk to drive and he asked to sleep on the couch.” Tr. Vol. 2, p. 151. Finch-Sparks agreed, and she left Nelson on the couch and went to sleep alone in her bedroom.

[5] At approximately 3:00 a.m., Finch-Sparks woke to find Nelson in her bed and “trying to have sex” with her. Id. at 152. Finch-Sparks told him “No,” and she told him to go back to the couch. Id. They argued, and Nelson tried to “force himself” on Finch-Sparks. Id. at 152-53. Nelson was “grabbing [her] arms really hard,” and he “choked [her] at one point.” Id. at 153. When Finch-Sparks reached for her phone, Nelson “started fighting [her] for” it, and he took it. Id. at 154. And when Finch-Sparks got out of bed and tried to leave the bedroom, Nelson blocked the entrance.

[6] Finch-Sparks then tried to surreptitiously grab her gun from a shelf in her closet, but Nelson confronted her as she was attempting to hold it out of his sight. The two began to fight over the gun. Finch-Sparks was lying on the bed when Nelson got on top of her, with his knee “digging into [her] stomach ․” Id. at 157. While Finch-Sparks had the gun in her hand, Nelson grabbed at it, put his finger on top of her finger, and he said, “[B]****, you better hope it's on safety.” Id. Nelson then “pulled the trigger,” but nothing happened because the safety was on. Id.

[7] Nelson then took sole possession of the gun and pointed it against Finch-Sparks's forehead, and he said, “[Y]ou want to play with guns?” Id. Finch-Sparks tried to push Nelson away, and he put the gun against her teeth. Finch-Sparks then pushed Nelson off of her. Nelson fell into an open closet and hit a wall abutting Finch-Sparks's daughters’ bedroom.

[8] Finch-Sparks ran for the front door and opened it, but Nelson caught up to her, slammed the door shut, and pulled her by her hair. At this point, Finch-Sparks's daughters had woken up and came out of their bedroom to see Nelson push Finch-Sparks. Finch-Sparks was crying and told the girls to call 9-1-1. But Nelson chased the girls and took their phones.

[9] Finch-Sparks made her way outside, and she yelled at Nelson to leave the house. When Nelson finally exited the house, he had the gun, and he threw all three cell phones into the yard. Finch-Sparks went back inside and locked the doors and windows. Before Nelson left the front porch, he FaceTimed an ex-girlfriend, Michaela McCovens, who was also a friend of Finch-Sparks. Nelson told McCovens that he “needed her to handle something for him,” and he told her that he was coming over to her house. Id. at 165. Finch-Sparks heard McCovens laugh when Nelson directed the camera lens at Finch-Sparks during the conversation.

[10] The next morning, Finch-Sparks put the children in her car and searched her yard for the family's cell phones. Once she had found them, she drove the children to school/daycare. Finch-Sparks then drove to her mother's house and called law enforcement.

[11] Officer Anthony Stout with the Lawrence Police Department met with Finch-Sparks at her mother's house and took her statement. Officer Stout also took photographs of scratches and bruising on Finch-Sparks's body.

[12] The State charged Nelson with Level 5 felony intimidation, Level 6 felony pointing a firearm, Level 6 felony domestic battery, Class A misdemeanor unlawful carrying of a handgun, Class A misdemeanor domestic battery, and Class A misdemeanor battery resulting in bodily injury. The State also alleged that Nelson was a habitual offender.

[13] At trial, in her closing argument, defense counsel emphasized evidence which, she believed, undermined Finch-Sparks's credibility. For instance, defense counsel questioned Finch-Sparks's failure to retrieve the family's cell phones from her yard immediately after Nelson had left and her decision to wait until the next day to contact law enforcement. Defense counsel also argued that, if Nelson had really done the things Finch-Sparks had alleged that he had done, he would not have FaceTimed McCovens from the scene.

[14] In response, the prosecutor described defense counsel's closing argument as “a lot of smoke and mirrors,” and she argued that Finch-Sparks was “telling [the jurors] honestly everything that happened ․” Tr. Vol. 3, pp. 24, 27. The prosecutor also referred to Nelson as an “a**hole” for talking to Finch-Sparks's “best friend behind her back from jail.” Id. at 29-30. And the prosecutor characterized defense counsel's closing argument as “BS.” Id. at 31.

[15] The jury found Nelson guilty of Level 6 felony pointing a firearm and Level 6 felony domestic battery, and the jury acquitted him of Level 5 felony intimidation.¹ The trial court entered judgment of conviction and sentenced Nelson to consecutive 910-day sentences. This appeal ensued.

Discussion and Decision

Issue One: Prosecutorial Misconduct

[16] Nelson first contends that the prosecutor made several statements during her closing argument that amount to prosecutorial misconduct and, taken together, constituted fundamental error.² When, as in this case a party does not properly preserve a claim of prosecutorial misconduct in the trial court, “the defendant must establish not only the grounds for the misconduct but also the additional grounds for fundamental error. Fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue.” Sobolewski v. State, 889 N.E.2d 849, 856 (Ind. Ct. App. 2008) (citing Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)).

[T]o 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.

Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014) (internal quotation marks and citations omitted), abrogated on other grounds, Konkle v. State, 253 N.E.3d 1068 (Ind. 2025).

[17] The statements Nelson challenges fall into three broad categories: (1) disparaging defense counsel, (2) vouching for witness credibility, and (3) inviting the jury to convict him on improper grounds. We address each argument in turn.

Remarks About Defense Counsel

[18] Nelson argues that the prosecutor made remarks that were “a drum-beat repetition of requests that the jury ignore arguments made by [defense counsel] because the arguments were meant to deceive.” Appellant's Br. at 14. In support, Nelson directs us to the prosecutor's statements that defense counsel's argument was “smoke and mirrors” and “BS” and that defense counsel had misconstrued the evidence. Tr. Vol. 3, pp. 24, 31. Nelson also complains that the prosecutor “made a sarcastic attack” against defense counsel when it criticized her commentary on the color of the bruises on Finch-Sparks's arms and chest. Appellant's Br. at 13.

[19] We agree with the State that, taken in context, the challenged remarks “were not disparaging to defense counsel or misconduct because they were wholly in response to allegations or inferences made by the defense.” Appellee's Br. at 16. In her closing argument, defense counsel had suggested that: Finch-Sparks had fabricated the whole story because she was angry with Nelson for talking to McCovens; the colors of Finch-Sparks's bruises were not consistent with a recent struggle; Finch-Sparks was not credible because she did not immediately retrieve her cell phone and waited nine hours before she called 9-1-1; and law enforcement's lack of investigation meant that Finch-Sparks could make up a story without fear of being found out.

[20] In response, rather than disparaging defense counsel, the prosecutor praised her for “put[ting] on a strong defense,” and she referred to her as a “great” attorney. Tr. Vol. 3, pp. 24, 27. And while the prosecutor made passing remarks describing defense counsel's argument as “smoke and mirrors” and “BS,” there was no drumbeat of disparagement. See, e.g., Nevel v. State, 818 N.E.2d 1, 5 (Ind. Ct. App. 2004) (observing that sometimes a prosecutor is justified in characterizing the evidence as “smoke and mirrors”). Likewise, the prosecutor's remark that defense counsel “apparently is an expert on bruising” may have had a mildly sarcastic tone, but it did not rise to the level of misconduct. Tr. Vol. 3, p. 30. The prosecutor merely invited the jurors to judge the photos of the bruises for themselves.

[21] Defense counsel thoroughly attacked Finch-Sparks's credibility, and the prosecutor commended her for that. In rebuttal, the prosecutor reframed each piece of evidence to counter defense counsel's narrative. The prosecutor's remarks did not place Nelson in a position of grave peril. Moreover, as the prosecutor pointed out, the trial court's final instructions stated that the attorneys’ arguments were not evidence. In sum, Nelson has not shown fundamental error.

Vouching

[22] Nelson also alleges that the prosecutor improperly vouched for Finch-Sparks's credibility when she described Finch-Sparks as having told the jury “honestly everything that happened ․” Id. at 27. A prosecutor may not personally vouch for a witness. Schlomer v. State, 580 N.E.2d 950, 957 (Ind. 1991). However, “[p]rosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable.” Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004) (citing Brown v. State, 746 N.E.2d 63, 68 (Ind. 2001)).

[23] In response to defense counsel's criticism of Finch-Sparks's decision to wait until the next day to retrieve her cell phone from the yard, the prosecutor told the jurors that Finch-Sparks was not “a robot” and that she was not thinking about “what's going to make her look the best in a trial” when she made that decision. Tr. Vol. 3, pp. 26-27. Rather, the prosecutor said, Finch-Sparks was “a person and she's here yesterday telling you honestly everything that happened and she's not perfect and we're not trying to make her seem perfect.” Id. at 27.

[24] The prosecutor did not make any affirmative declarations like, “I believe her,” or, “She is telling the truth.” Rather, in the context of helping the jurors to understand that Finch-Sparks was not perfect, the prosecutor stated, in passing, that Finch-Sparks was “honestly” telling her story. This statement directly responded to defense counsel's closing argument in which she argued that Finch-Sparks's story did not make any sense. The State was entitled to respond to that argument. See, e.g., Ryan, 9 N.E.3d at 670-71. Therefore, in the context of rebuttal closing argument, it was not misconduct for the State to combat defense counsel's assertions and inferences in this manner.

Nelson's Character

[25] Nelson argues that the prosecutor committed misconduct when she “invited the jury to find [him] guilty on improper grounds.” Appellant's Br. at 16. As our Supreme Court has stated, “ ‘[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.’ ” Wisehart v. State, 693 N.E.2d 23, 59 (Ind. 1998) (quoting Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843, 849 (1976), and Limp v. State, 431 N.E.2d 784, 788 (Ind. 1982)).

[26] Nelson cites three examples to support his argument on this issue: when the prosecutor called Nelson an “a**hole”; when the prosecutor told the jurors that Finch-Sparks was courageous; and when the prosecutor asked the jurors not to hold the faulty police investigation against Finch-Sparks.

[27] The prosecutor's remark that Nelson was an “a**hole” for trying to make Finch-Sparks jealous by talking to McCovens, while a regrettable word choice, was a comment based on the evidence. See, e.g., Miller v. State, 623 N.E.2d 403, 408 (Ind. 1993) (holding prosecutor's reference to defendant as a “mean s.o.b.” was supported by the evidence and did not constitute prosecutorial misconduct). And the prosecutor's comments about Finch-Sparks's courage were based on the evidence that Nelson had contacted Finch-Sparks “over fifty times” after she had reported the assault, including an attempt to call her when he found out that she was meeting with the prosecutor in preparation for trial. Tr. Vol. 3, p. 29; see, e.g., Neville v. State, 976 N.E.2d 1252, 1260-61 (Ind. Ct. App. 2012) (holding prosecutor's description of witness as “courageous” for testifying after her initial unwillingness to help was not improper), trans. denied. Finally, the prosecutor's response to defense counsel's characterization of the police investigation was not improper.

[28] When everything is considered, the prosecutor did not commit misconduct during the trial. And Nelson has not demonstrated that, due to any misconduct by the State either individually or cumulatively, he was placed in a position of grave peril such that a fair trial was impossible. Accordingly, Nelson has not established fundamental error.

Issue Two: Jury Instruction

[29] Nelson argues that the trial court committed fundamental error when it did not give a special unanimity jury instruction. He maintains that the State “relied on two separate incidents of violence to support the charge of domestic battery in the presence of a child.” Appellant's Br. at 21. Thus, he contends, the jury's verdict may not have been unanimous.

[30] In Baker v. State, 948 N.E.2d 1169, 1175-77 (Ind. 2011), our Supreme Court explained that, where “evidence is presented of a greater number of separate criminal offenses than the defendant is charged with,” and the State does not “designate a specific act (or acts) on which it relies to prove a particular charge,” the jury “should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.” However, this Court has held that, “if the defendant's acts are ‘so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction,’ the defendant's conduct amounts only to a single chargeable crime,” and a special unanimity instruction is not required. Benson v. State, 73 N.E.3d 198, 202-03 (Ind. Ct. App. 2017), trans. denied.

[31] Here, to support the single domestic battery in the presence of a child charge, the State alleged that Finch-Sparks's children may have heard the battery Nelson committed in the bedroom and that her daughters saw Nelson push Finch-Sparks in the living room.³ The State argues that Nelson's acts were so compressed in time and place as to constitute a single chargeable crime, and therefore no special unanimity instruction was required. In support, the State cites the evidence that Finch-Sparks's house was a small single-story house, and Finch-Sparks's bedroom abutted the bedroom where her daughters were sleeping. The evidence also showed that, immediately after Finch-Sparks kicked Nelson into her closet, which shared a wall with her daughters’ bedroom, she ran toward the front door, where Nelson caught up to her and pushed her in the presence of her daughters.

[32] Nelson argues that the batteries in the bedroom and in the living room were not sufficiently compressed in time to constitute a single transaction. In support, he cites Jones v. State, 159 N.E.3d 55, 64 (Ind. Ct. App. 2020), where we held that the defendant's two aggravated battery convictions did not violate double jeopardy principles because the “two acts of throwing hot water” on the victim “did not occur at the same time” but in two separate rooms and for two different purposes (interrogation and punishment). Nelson maintains that, here, the battery against Finch-Sparks in the bedroom was done to get a hold of her cell phone, and Nelson already had her phone when he committed the battery in the living room. We reject Nelson's argument on this issue.

[33] In Waldon v. State, 259 N.E.3d 318, 326 (Ind. Ct. App. 2025), this Court established a test to determine whether multiple offenses constitute a single episode of criminal conduct:

We balance the following non-exclusive factors: (1) the time span over which the offenses occurred and the time between the offenses, with extra weight given when the offenses are simultaneous or contemporaneous; (2) whether the offenses occurred at separate locations, and if so, the distance between them; (3) whether the offenses each stand alone, that is to say, can be described without reference to one another; and (4) whether the offenses are united by a common scheme or purpose beyond the mere desire to commit multiple crimes. No one factor is determinative, although the first two are the most important. Ultimately, the time, place, and circumstances must demonstrate that the offenses are but parts of a “larger or more comprehensive series” such that they can be fairly described as a single episode of criminal conduct. O'Connell[ v. State], 742 N.E.2d [943,] 950[ (Ind. 2001)].

[34] Here, there is no evidence regarding the length of time that transpired from the time of the battery in the bedroom to the time of the battery in the living room. In her testimony, however, Finch-Sparks described a continuous chain of events that occurred in a very small house. We agree with the State that the two batteries in the presence of the children constituted a single episode of conduct. Thus, “unlike in Baker, the jury was not presented with evidence ‘of a greater number of separate criminal offenses’ than charged.” See Benson, 73 N.E.3d at 203. And because “the concerns in Baker are not present,” Nelson cannot show that the trial court committed error, let alone fundamental error, when it did not give a special unanimity instruction. See id.

Conclusion

[35] Nelson has not shown prosecutorial misconduct. And Nelson has not shown that the trial court committed fundamental error when it did not give a special unanimity instruction.

[36] Affirmed.

FOOTNOTES

1.   The State dismissed three counts prior to trial, and the State did not proceed on the habitual offender allegation.

2.   Nelson concedes that he did not preserve the prosecutorial misconduct issue for our review. Hence, he alleges fundamental error.

3.   Under Indiana Code section 35-42-2-1.3, the State was required to prove that Nelson committed domestic battery in the presence of a child less than sixteen years of age with knowledge “that the child was present and might be able to see or hear the offense.”

Mathias, Judge.

Kenworthy, J., and DeBoer, J., concur.