Dickson, C.J.
Following a jury trial, Bruce Ryan was convicted on two of three counts of Class C felony Sexual Misconduct with a Minor. [Footnote omitted.] Appealing his convictions, the defendant argues that several statements made by the State during closing argument—statements to which he raised no objection at trial—constitute prosecutorial misconduct and that the cumulative effect of such misconduct rises to the level of fundamental error, warranting reversal of his convictions. The Court of Appeals agreed and reversed his convictions. Ryan v. State, 992 N.E.2d 776, 791 (Ind. Ct. App. 2013). We granted transfer, thereby vacating the opinion of the Court of Appeals, and we now affirm the trial court, concluding that some of the prosecutor’s conduct was improper, but because of the absence of any timely objection by the defendant, reversal is not warranted.
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First, the defendant argues that the prosecutor impermissibly penalized his constitutional right to a jury trial when she asserted, “I want to be really clear, we are here because everyone has a right to have a jury trial. We’re not here because he didn’t do it, we’re here because he wants to get away with it. So don’t let him, thank you.” Appellant’s Br. at 8 (quoting Tr. at 141) (emphasis deleted). The State argues that the prosecutor’s statement was not misconduct because it invited the jury to make an inference of guilt from the evidence at trial.
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The first sentence of the challenged passage, declaring that everyone has a right to have a jury trial, clearly is not problematic. The concern is whether the comments that followed, beginning with the same “we are here because” phrase, are subject to a reasonable interpretation that penalizes or impinges upon the defendant’s exercise of his right to jury trial. We think not. The “right to a jury trial” sentence does not convey the idea that the trial in this case is anything other than an inherent part of every criminal proceeding. The sentence does not imply that it was at the defendant’s request, or deny that it was at the State’s request. We decline to find that the prosecutor’s ensuing argument regarding the reason “we are here” negatively implicated the defendant’s exercise of his right to jury trial.
Second, the defendant argues that the prosecutor improperly demeaned defense counsel with the following comments on rebuttal:
I guess it’s frustrating in these cases because these kinds of [defense] arguments are how guilty people walk. And so, when you think about how people get away with it it’s be-cause defense attorneys do things like say well, it was a lousy investigation.
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Then what they [the defense] do is they bring up cases of false accusations in the media, right? Whatever it is, the Penn State—or whichever other one—Duke; they bring up why? To make you worry that somehow you’re going to convict him and then it will turn out that it was all bogus. That’s [a] classic defense attorney trick.
. . . 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.” Tr. at 142. 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. . . . .
Third, the defendant argues that the prosecutor improperly commented on the truthfulness of the victim5 during closing argument and on rebuttal. Specifically, the defendant highlights comments from closing argument: “she told you the truth. As uncomfortable and awkward as she was up there, she told you the truth of what happened. . . . she is credible . . . She has every reason to have lied and covered for him and she didn’t.” Appellant’s Br. at 16 (quoting Tr. at 139–40) (emphasis deleted). And comments from rebuttal:
She’s never been dishonest. She spoke to her parents, she spoke to the principal, she spoke to Detective White, and she gave a deposition. You better believe if there had been inconsistencies in any of her statements, [defense counsel] would have been down her throat about those when she testified. But he wasn’t because there aren’t any. . . . And to make clear that she gets nothing out of this. She doesn’t want him to get in trouble; she wants him to want to be with her. And that’s why what she told you was even more credible. Because if she thought she could get away with covering for him again, she would. But the jig is up; we’ve seen the Google Plus postings. The jig is up. She has to be honest now and she’s done that.
. . . Similarly, in this case, other evidence suggests that FS was telling the truth. The only evidence that FS had been dishonest, to which FS admitted at trial, was that she had lied to the defendant about physical and verbal abuse from her biological father; there was no evidence that FS had been anything but truthful to her parents, the principal, the police, and the court. The prosecutor pointed to evidence that FS was telling the truth now because, although she loved the defendant and had bias and motive not to testify against him, she could not counter the logs of their online conversations. The lack of evidence to corroborate FS’s substantive testimony about what happened does not counter the prosecutor’s general assertions that FS was telling the truth. There was no prosecutorial misconduct, much less fundamental error.
Fourth, the defendant argues that the prosecutor improperly urged the jury to convict the defendant because they were tired and angry over a societal problem, not necessarily because the evidence in this case warranted conviction, with the following comment on closing:
[Y]ou wonder at night what you can say to a jury to get them to get the bigger picture here. And no case is easy for your guys, I get that. No one want[s] to judge someone else or somebody else’s actions. But we keep hearing about this happening, whether it’s a teacher, or a coach, or a pastor, or whoever. And we all want to be really angry and post online and have strong opinions about it. And we never think that we’ll be the ones that are here that get to stop it. And you actually do get to stop it. And as much as I know you probably did not want to be here on Monday morning, I would submit to you that you are in an incredible position to stop it and send the message that we’re not going to allow people to do this.
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. . . In the present case, however, the prosecutor alluded to the “bigger picture,” to “hearing about this happening” without a chance “to stop it,” and to other perpetrators such as “a teacher, or a coach, or a pastor;” and then implored the jury to “send the message that we’re not going to allow people to do this.” This clearly invited the jury to convict this defendant for reasons other than his own guilt, therefore constituting improper conduct. Because of our determination below regarding fundamental error, however, we decline to address whether it subjected the defendant to grave peril.
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We recognize only a single instance of prosecutorial misconduct, namely that the prosecutor improperly urged the jury to convict the defendant for reasons other than his own guilt. But we decline to conclude that the trial court erred by not correcting the prosecutor’s misstatements.
With regard to the impact of the “send the message” remark, we recognize that the prosecutor began her closing argument reminding the jury “it’s about what this defendant did in this case and how you are in a unique position to be able to now hold him accountable for that,” Tr. at 133–34. Such correct statement so distanced from an improper one cannot qualify its substance, but it may counteract its harm. Thus, while we find the “send the message” remark improper, we decline to hold that such error had such an undeniable and substantial effect on the jury’s decision that a fair trial was impossible.
David, Massa, and Rush, JJ., concur.
Rucker, J. concurs in result.