Baker, J.
Santiago Valdez appeals his convictions for Class B Felony Attempted Rape1 and Class C Felony Criminal Confinement. He argues that the trial court made evidentiary errors and that the State engaged in prosecutorial misconduct. During closing arguments, the prosecutor hinted to the jury that the defense counsel improperly influenced an expert witness outside of the trial. We find that these statements constituted prosecutorial misconduct, but that a prompt admonishment from the trial court prevented Valdez from being placed into grave peril. We also find that the trial court did not make evidentiary errors. Consequently, we affirm.
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On April 12, 2012, the State charged Valdez with attempted rape, a Class B felony; criminal confinement, a Class C felony; attempted incest, a Class C felony; intimidation, a Class D felony; and battery, a Class A misdemeanor. …
On July 13, 2012, Valdez filed a suggestion of insanity, alleging that he was a former boxer who had suffered repeated blows to the head. …
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During closing arguments, the State tried to convince the jury that a defense witness, Dr. Javan Horwitz, was not credible when he testified that Valdez could not understand the wrongfulness of his actions. The State argued the following:
This was supposed to be an independent evaluation on the up and up. I’ll just tell you I’ll call it as I see it. But, what’s going on here? The Defense is controlling the information that this alleged expert is looking at. I wonder why the Defense didn’t want Doctor Horwitz to hear that record. I wonder why. Then remember that as of Friday he wasn’t sure if he denied having an opinion, like we talked about. Interestingly, he comes into open Court . . . and now he surprisingly has an opinion on insanity. Who’s the only person Horwitz talked to after he hung up the phone with me and said, “I didn’t have an opinion”? Mr. Wieneke, the Defense attorney. So he went from I don’t have an opinion to he’s legally insane. And what’s the common—what changed from Friday to Wednesday? He talked to the Defense. Tr. p. 1423.
Valdez immediately objected and moved for a mistrial. The trial court told the State, “I understand his complaint about it because you are impugning his character.” Id. at 1424. The trial court did not grant the mistrial, but did sustain the objection. It admonished the jury not to take the State’s statements on this issue as evidence, and informed them that earlier testimony, outside the presence of the jury, had established that the defense had not told Dr. Horwitz what to say.
The jury found Valdez guilty as charged. On August 20, 2015, the trial court held a sentencing hearing and sentenced Valdez to twenty years for attempted rape and eight years for criminal confinement, with those sentences to be served consecutively. … Valdez now appeals.
Valdez has four arguments on appeal: ….and 4) the State committed reversible error when it suggested that the defense told a witness what to say.
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Valdez argues that Chief Trial Deputy Prosecutor Eric Hoffman committed prosecutorial misconduct by insinuating that defense counsel influenced Dr. Horwitz’s testimony. Valdez argues that Deputy Prosecutor Hoffman violated Indiana Professional Conduct Rule 3.4, which provides the following:
a lawyer shall not: . . . (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of the accused. ….
Our Supreme Court has detailed the inquiry surrounding prosecutorial misconduct: we inquire (1) whether misconduct occurred, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he should not have been subjected. Ryan v. State, 9 N.E.2d 663, 667 (Ind. 2015). …
As for the first element of our review, we find that the prosecutor engaged in misconduct in this case. …Although the State argues that Deputy Prosecutor Hoffman was simply recounting a series of events, the trial court found that these statements impugned defense counsel’s character. Tr. p. 1424. We agree.
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… Deputy Prosecutor Hoffman was perfectly entitled to argue against Dr. Horwitz’s conclusions, or attempt to convince the jury that Dr. Horwitz “came in here and tried to dazzle everybody with his big words . . . .” …. But to insinuate that defense counsel improperly influenced his testimony, particularly where the trial court heard evidence on the issue and the only evidence on the issue showed that defense counsel did not do so, was extremely inappropriate. … To engage in such conduct is to enter a race to the bottom, where the attorneys who are willing to make such accusations against other attorneys will sound authentic and honest (Deputy Prosecutor Hoffman made sure to preface his misconduct with, “I’ll just tell you I’ll call it as I see it,” …), while more circumspect and honorable attorneys who are not willing to make such accusations will sound like they are hiding something. We cannot countenance a trial environment in which respectful attorneys have an inherent disadvantage. We admonish Mr. Hoffman to refrain from such conduct in the future.
The judgment of the trial court is affirmed.
Najam, J., and May, J., concur.