MEMORANDUM DECISION
Weissmann, Judge.
[1] James Minor spit on and later choked his ex-wife, B.M., during a dispute about childcare. The State charged Minor with domestic battery for the choking incident but not for the spitting incident, and a jury found him guilty. Minor now appeals his conviction, arguing that the State committed prosecutorial misconduct by referencing the spitting incident during its rebuttal closing argument. Alternatively, Minor argues that the State presented insufficient evidence to rebut his claim that he choked B.M. in defense of his dwelling. We find no prosecutorial misconduct and that the evidence sufficiently rebutted Minors defense-of-dwelling claim. We therefore affirm.
Facts
[2] B.M. has three children: two with Minor and one with a different father. One day, when the three children were ages 15, 12, and 5 (Child 1, Child 2, and Child 3, respectively), B.M. asked Minor to watch them because she was sick with COVID-19. Minor declined out of fear of contracting the virus. But later, while B.M. was taking a nap, Minor picked up Child 1 from B.M.’s house and gave Child 1 a ride to the movies. When B.M. awoke and learned that Minor had taken Child 1 but not Child 2 and Child 3, B.M. became upset.
[3] B.M. promptly drove Child 2 and Child 3 to Minors unlocked house and dropped them off inside. Minor was not home at the time, but B.M. wrote down her phone number and instructed Child 2 to call her if Minor did not return in the next ten minutes. B.M. then began driving back to her house. On the way, she encountered Minor at a nearby intersection. According to B.M., Minor quickly and erratically swerved his car toward hers and stopped so that their driver-side doors were aligned. Through their open car windows, B.M. asked Minor, “[W]hat is your problem?” Tr. Vol. II, pp. 72, 93. Minor said nothing in return but angrily spat in B.M.’s face. Minor then drove off toward his house. B.M. followed.
[4] When B.M. arrived at Minors house, she exited her car and began walking up the porch steps toward the front door. As B.M. reached the top step, Minor “came running out the door,” “saying cuss words,” with a “very intense” and “very cold” look in his eyes. Id. at 75-76. “[B]efore B.M. could even react,” Minor “grabbed [her] by the throat” and “choked” her for around seven seconds. Id. When Minor released his grasp, B.M. ran inside the house to retrieve her children. She found Child 2 in the dining room, appearing “[b]ug eyed” and “shocked.” Id. at 77. Because that rooms window looked out onto the front porch, B.M. believed Child 2 had seen the choking incident.
[5] B.M., Child 2, and Child 3 ultimately left Minors house, drove home, and called 911. A police officer arrived at B.M.’s house around 10 minutes later and interviewed B.M. about the spitting and choking incidents. During this interview, the officer “observed red marks ․ to [B.M.’s] neck.” Id. at 118.
[6] The State charged Minor with five crimes:
1. Criminal recklessness, a Level 6 felony;
2. Strangulation, a Level 6 felony;
3. Domestic battery in the presence of a child, a Level 6 felony;
4. Domestic battery, a Class A misdemeanor enhanced to a Level 6 felony due to a prior unrelated battery conviction; and
5. Battery resulting in bodily injury, a Class A misdemeanor.
The domestic battery and battery charges all alleged that Minor “knowingly touch[ed B.M.] ․ in a rude, insolent or angry manner.” App. Vol. II, pp. 21-22. Although the charging information did not specify the alleged touching, the parties agree that Minor was prosecuted for choking B.M. and not for spitting in her face.
[7] At his jury trial, Minor claimed any force he used against B.M. was in defense of his dwelling. Minor, however, did not testify in support of this defense, and the State did not address it during closing argument. Instead, the prosecutor walked through Minors criminal charges, highlighting certain elements and the corresponding evidence. Notably, for the strangulation charge and its element requiring Minor to have “applie[d] pressure to [B.M.’s] throat or neck,” Ind. Code § 35-42-2-9(c)(1), the prosecutor highlighted B.M.’s testimony that Minor “choked her.” Tr. Vol. II, p. 145. But for the domestic battery and battery charges, all of which required Minor to have unlawfully “touche[d]” B.M., the prosecutor did not directly highlight any evidence of the requisite criminal act. Ind. Code §§ 35-42-2-1.3(a)(1), -2(c)(1).
[8] Minor also did not address his defense-of-dwelling claim during closing argument. Instead, his defense counsel exclusively attacked B.M.’s credibility by emphasizing inconsistencies between her trial testimony and pre-trial statements about the spitting and choking incidents. The State countered this attack on rebuttal, stating, among other things: “[P]recisely where [B.M.] got hit has changed. It is a little bit inconsistent from statement to statement[,] but the key fact is that [Minor] spit on her. He spit at her and on her.” Tr. Vol. II, p. 153.
[9] The jury found Minor guilty of Class A misdemeanor domestic battery but not guilty of the other charges. Minor then waived his right to a jury trial on the Level 6 felony enhancement allegation. He later admitted to having a prior unrelated battery conviction, after which the trial court entered judgment of conviction for Level 6 felony domestic battery. The court ultimately sentenced Minor to 365 days in jail, with credit for time served and the rest suspended to probation.
Discussion and Decision
[10] Minor appeals his domestic battery conviction, arguing that the State committed prosecutorial misconduct by referencing the spitting incident during its rebuttal closing argument. He also argues that the State presented insufficient evidence to rebut his defense-of-dwelling claim. Both arguments fail.
I. The State Did Not Commit Prosecutorial Misconduct
[11] To prevail on a claim of prosecutorial misconduct, the defendant generally must show that: (1) “misconduct occurred”; and (2) “under all of the circumstances,” the misconduct “placed the defendant in a position of grave peril to which he or she would not have been subjected otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). Here, however, Minor waived his prosecutorial misconduct claim by failing to request a timely admonishment by the trial court. Id. He therefore “must establish not only the grounds for prosecutorial misconduct” but also “that the prosecutorial misconduct constituted fundamental error.” Id. at 667-68.
[12] “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 defendants rights as to “make a fair trial impossible.” Id. (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). “In other words ․ 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.” Id. (quoting Benson, 762 N.E.2d at 756).
[13] Minor claims he was denied a fair trial because the prosecutor, by referencing the spitting incident during the States closing arguments, impermissibly asked the jury to convict Minor based on uncharged conduct. See generally Carter v. State, 956 N.E.2d 167, 170 (Ind. Ct. App. 2011) (“It is misconduct for a prosecutor to request the jury convict a defendant for any reason other than his guilt.”). In support of this claim, Minor emphasizes that the prosecutor: (A) did not mention the choking incident when discussing the domestic battery charge during the States initial closing; but (B) later described the spitting incident as a “key fact” during the States rebuttal closing. Tr. Vol. II, p. 153.
A. Initial Closing
[14] The prosecutor never referenced the spitting incident during the States initial closing argument. And though the prosecutor only referenced the choking incident directly when discussing the strangulation charge, the prosecutors arguments as to the domestic battery and battery charges are reasonably understood as indirect references to the choking incident.
[15] When discussing the basic domestic battery charge, of which Minor was ultimately convicted, the prosecutor only highlighted the element requiring Minor to have touched B.M. “in a rude, insolent, or angry manner.” Ind. Code § 35-42-2-1.3(a)(1). In support of this element, the prosecutor noted B.M.’s testimony indicating that Minors “body behavior, the cussing, the charging, was all in a really angry manner.” Tr. Vol. II, p. 146. We construe this argument as referring to B.M.’s testimony that Minor choked her after he “came running out the door,” “saying cuss words,” with a “very intense” and “very cold” look in his eyes. Id. at 75-76.
[16] Finding the prosecutor indirectly referenced the choking incident as the unlawful touching required by Minors domestic battery charge, we conclude the States initial closing has no bearing on whether the prosecutor asked the jury to convict Minor based on the spitting incident during the States rebuttal.
B. Rebuttal Closing
[17] During the States rebuttal closing argument, the prosecutor indeed described the spitting incident as a “key fact.” Tr. Vol. II, p. 153. But the prosecutor did so following Minors closing argument, during which his defense counsel attacked B.M.’s credibility by emphasizing inconsistencies among her statements about the spitting incident. In pertinent part, defense counsel argued:
Even after she says ․ that [Minor] spit on her, what was her testimony? She doesnt call 911. She doesnt go back to her home. She ends up turning around and going back to [Minors] house. She doesnt ask for a police escort. There is no police assistance. ․ Incidentally, when she ends up being interviewed by [police], albeit 15 minutes later what does she say about the incident? When he pushes her as to the spitting, her answer is I honestly dont know if he spit on me. That is not enough to convict. When she gives an interview to [police] six weeks later, the story evolves. Why does it evolve? Who is to say? But that is not your concern. It evolves and all of a sudden he spit in my face.
Id. at 150.
[18] To this, the prosecutor argued on rebuttal:
There should be inconsistencies. If there werent, you should be concerned. Okay? But the key points are relatively consistent and they have been repeated every time. The key points are they pass each other at an intersection near their – near both of their houses ․ As they sat there with the windows down, he spits at her. And he hits her. And she testifies to that. Now precisely where she got hit has changed. It is a little bit inconsistent from statement to statement[,] but the key fact is that he spit on her. He spit at her and on her. Okay? I mean of course there would be inconsistencies. If there arent inconsistencies, that is something to be concerned about.
Id. at 153.
[19] The prosecutors reference to the spitting incident during the States rebuttal was not a request that the jury convict Minor of uncharged conduct. Rather, the reference was a direct response to defense counsels attack on B.M.’s credibility during Minors closing argument. “Prosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutors response would otherwise be objectionable.” Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). Thus, the prosecutors comments did not constitute misconduct, let alone fundamental error.
II. The State Sufficiently Rebutted Minors Defense-of-Dwelling Claim
[20] Turning to Minors sufficiency claim, Indianas defense-of-dwelling statute provides, in pertinent part:
A person:
(1) is justified in using reasonable force, including deadly force, against any other person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to prevent or terminate the other persons unlawful entry of or attack on the persons dwelling, curtilage, or occupied motor vehicle.
Ind. Code § 35-41-3-2(d).
[21] A defense-of-dwelling claim is “analogous” to a claim of self-defense. Ervin v. State, 114 N.E.3d 888, 895 (Ind. Ct. App. 2018). “When a claim of self-defense is raised and finds support in the evidence, the State has the burden of negating at least one of the necessary elements.” Id. at 896. “The State may meet this burden by rebutting the defense directly, by affirmatively showing the defendant did not act in self-defense, or by simply relying upon the sufficiency of its evidence in chief.” Id.
[22] Whether a defendant acted in self-defense is a question of fact for the jury. Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999). When reviewing the sufficiency of the evidence to rebut a self-defense claim, “[w]e neither reweigh the evidence nor judge the credibility of the witnesses.” Ervin, 114 N.E.3d at 895. “We consider only the probative evidence and reasonable inferences supporting the trial courts decision.” Id. “If a defendant is convicted despite his claim of self-defense, we will reverse only if no reasonable person could say that self-defense was negated beyond a reasonable doubt.” Id. at 896.
[23] Among other things, Minor argues that the State did not sufficiently negate his purportedly reasonable belief that choking B.M. was necessary to prevent her from entering his dwelling or curtilage. We disagree. As used in Indianas defense-of-dwelling statute, the phrase “reasonably believes” requires both a subjective and an objective belief that force was necessary. See Washington v. State, 997 N.E.2d 342, 349 (Ind. 2013) (interpreting the phrase “reasonably believes” as used in Indianas self-defense statute). Thus, the State was required to show either that Minor did not actually believe the choking incident was necessary or that a reasonable person would not have held Minors belief under the circumstances. See id.
[24] Here, the facts most favorable to the judgment show that Minor was inside his house when B.M. arrived and that B.M. had barely stepped foot on Minors porch when he came running out the door. The facts also show that, before B.M. could react, Minor grabbed her by the throat and choked her for around seven seconds. Minor did not testify as to his subjective belief at the time of the choking incident. But assuming he believed such violence was necessary to prevent B.M. from entering his home and to terminate her entry onto his porch, a jury could have found Minors belief objectively unreasonable under the circumstances.
Conclusion
[25] We find that the State did not commit prosecutorial misconduct, let alone fundamental error, during its rebuttal closing argument, and that the evidence sufficiently rebutted Minors defense-of-dwelling claim beyond a reasonable doubt. We therefore affirm the trial courts judgment.
Memorandum Decision by Judge Weissmann
Judges Mathias and Tavitas concur.
Mathias, J., and Tavitas, J., concur.