MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 20 2020, 8:40 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Denise L. Turner Curtis T. Hill, Jr.
DTurner Legal LLC Attorney General of Indiana
Indianapolis, Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Henry Stewart, Jr., November 20, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2661
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark Dudley,
Appellee-Plaintiff, Judge
Trial Court Cause No.
48C06-1705-MR-1227
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, James Stewart was convicted of murder and sentenced to
serve fifty-seven years in the Indiana Department of Correction. Stewart
appeals and presents two issues for our review: (1) whether the trial court
abused its discretion in admitting certain evidence at trial; and (2) whether the
trial court erred in denying Stewart’s motion to recuse the lead deputy
prosecutor. Concluding the trial court did not abuse its discretion in admitting
the evidence or in denying Stewart’s motion, we affirm.
Facts and Procedural History
[2] The facts most favorable to the verdict are as follows. In May 2017, Montez
McCloud and Cheyanne Gosler had been dating for approximately five years.
Gosler’s best friend, Hailey Carr, had been in a long-term relationship with
Stewart. Stewart and Carr lived in a house at 1717 Jefferson Street in Anderson
with their children.1 On May 9, after Gosler picked up McCloud’s lost
cellphone, she and McCloud got into a disagreement. Gosler drove to Carr and
Stewart’s house, parked in their driveway, and went inside. McCloud later
drove a moped to the house. Gosler walked outside and she and McCloud then
walked back into the house where Gosler got her keys and phone. Carr testified
that McCloud began hitting Gosler, prompting Carr to yell for Stewart, who
1
Stewart and Carr shared one son together but Stewart helped raise Carr’s other children.
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had been sleeping in a room in the back of the house. Carr told them to “get
out.” Transcript of Evidence, Volume IV at 126. McCloud and Gosler left the
house and Carr and Stewart followed. The four began arguing.
[3] David Lennen lived across the street and witnessed “an argument going on”
between Stewart, Carr, and another man and woman. Id. at 180. Lennen
heard Stewart say, “[I]f you’re still out here when I come back I got something
for you.” Id. at 181. Stewart then went inside. McCloud got into Gosler’s
vehicle and began to drive away when Gosler pushed the moped over, which
“[h]it the back corner of the car.” Id. McCloud jumped out of the car and hit
Gosler “one time, [and] went to hit her again” at which time Stewart “was
standing [outside the front door] with a rifle.” Id. at 181-82. Stewart pointed
the rifle at McCloud’s chest and began shooting. Lennen believed Stewart shot
McCloud nine or ten times. After McCloud fell to the ground, Stewart fired an
additional round. See id. at 130-31, 216. Stewart “leaned over [McCloud] . . .
and said I hope I killed your a**. Somebody call 911.” Id. at 182. Lennen
asked Stewart if “everything is ok” to which Stewart responded, “[H]e came in
my house and hit my girl.” Id. at 185. Stewart then went back into the house
until police arrived.
[4] Police and paramedics arrived on scene. The paramedics immediately began to
render aid to McCloud, who was “unconscious, not breathing, and . . . did not
have a pulse.” Id., Vol. II at 169. Paramedics applied a monitor to assess
McCloud’s heart rhythm, which revealed his heart was no longer beating.
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Paramedics pronounced McCloud dead at the scene. Stewart surrendered and
was arrested by police.
[5] Later, Stewart was interviewed by police2 and stated, “I didn’t do anything
wrong. I was just protecting my family.” Id., Vol. V at 184. He explained that
he was sleeping in the back room when Carr woke him up and told him “this
guy’s in the house, and he’s . . . beating the hell out of her friend[,]” Gosler. Id.
at 189. He got up and witnessed McCloud beating the friend and then “he
turn[ed] around and attack[ed]” Carr, who was holding their baby son. Id. at
189-90. He also stated that when they were all outside, McCloud attacked
Gosler and Carr; he went inside, got his .22 rifle, and went back outside. He
told McCloud to get off his property and described McCloud’s attitude toward
him as “I don’t give a f***, like shoot me” to which Stewart responded, “you
just broke in my house[,] scared the s*** out of my kids. . . . I got babies in
here.” Id. at 202. He claimed McCloud threatened to “spray this
motherf*****” and “that’s when he lunged at me and I fired off a shot[,]” which
hit McCloud in the shoulder. Id. Stewart told police the shot “didn’t really
phase him. . . . And then he . . . kind of like lunged a little bit at me, and I shot
him again . . . . [T]hen he went to like fall back, and then I . . . squeezed off
probably like six (6) times[.]” Id. When police asked whether McCloud had a
gun, Stewart acknowledged that he “didn’t say [McCloud] had a gun.” Id. at
2
Detectives read Stewart his Miranda rights and he agreed to be interviewed.
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211. When asked why he shot McCloud, Stewart responded, “I shot him after
he was already attacking my baby momma and them. He had already seen the
rifle [and] wasn’t worried about it.” Id. at 230. The State subsequently charged
Stewart with murder.
[6] Detective Scott Sanderson of the Anderson Police Department (“APD”)
responded to the scene and noticed a camera on a nearby warehouse he knew
belonged to Ken Kocinski, the owner of KT Pawn.3 At the time, Detective
Sanderson did not know whether the cameras were pointed toward the crime
scene, so he contacted Kocinski, who contacted his out-of-state IT team for
assistance. Kocinski reviewed the footage and discovered that one of the
cameras recorded the shooting. The same day, APD Detective Norman
Rayford went to the warehouse and watched the video which showed the
shooting at 1717 Jefferson Street with Kocinski. Detective Rayford recorded
the footage using his cellphone and subsequently uploaded the cellphone
footage onto APD’s “digital phone dump for evidence.” Id., Vol. III at 33. On
May 17, APD Detective Larry Crenshaw met with Kocinski’s wife at the
warehouse to obtain the security camera footage. Detective Crenshaw watched
her put the footage onto a thumb drive, which she then gave to him and he then
3
Detective Sanderson was familiar with Kocinski from working in the burglary and theft unit.
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uploaded onto APD’s digital phone dump. Detective Crenshaw subsequently
lost track of the thumb drive Kocinski’s wife originally gave him.4
[7] In August 2019, Deputy Prosecutor Dan Kopp gave APD Detective Doug
Stanton a thumb drive of unknown origin and asked him to slow down the
video footage on the drive, which “was twice as fast as real time.” Id. at 180.
Deputy Prosecutor Andrew Hanna was also present when Kopp made this
request. Using software, Detective Stanton successfully slowed the footage to
half speed. A disc containing the original security camera footage was prepared
for admission at trial as State’s Exhibit 36 and a disc with the edited version
was prepared for admission as State’s Exhibit 37.
[8] Before trial, Stewart filed a motion to recuse Deputy Prosecutor Dan Kopp
from the case alleging Kopp was a necessary witness in the chain of custody of
the original and modified versions of the security footage (Exhibits 36 and 37).
See Appellant’s Appendix, Volume III at 136-37. Specifically, Stewart claimed:
3. The security footage came from the [APD] property room.
Whether Mr. Kopp withdrew the evidence from the property
room personally or received it from another individual, he is now
a witness necessary to maintain the chain of custody of the
security footage, as well as to establish the initial chain of
custody of any modified version of the security footage prepared
by Detective Stanton at his request.
4
Later, another officer, Detective Stanton, reviewed the “phone dump” and could not locate this footage.
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4. Allowing Deputy Prosecuting Attorney Kopp to combine
the roles of advocate and witness would pose a substantial risk of
confusing and misleading the jury, as well as enhancing the
importance and credibility of . . . Kopp, (and by inference the
State’s entire case), at the expense of [Stewart]’s right to a fair
and impartial trial.
Id. at 136-37 (citation omitted). The trial court denied the motion.
[9] A jury trial commenced on September 3, 2019. At trial, the State offered
Exhibit 36 during Kocinski’s testimony. Kocinski had testified that he has a
security camera at his business at 19th and Jefferson Streets; he requested
assistance from his IT team to access and view the footage; he reviewed the
video at APD’s request, which showed the shooting that occurred on May 9;
and the exhibit is a true and accurate copy of the security footage from May 9
as it pertains to the shooting at 1717 Jefferson Street. See Tr., Vol. II at 235-36.
The State moved to admit the exhibit and Stewart objected on the basis that the
exhibit had not been properly authenticated pursuant to the silent witness
theory. The trial court sustained the objection because there were “some holes
as to what occurred between the recording . . . and it being viewed” but allowed
the State to present additional foundational evidence. Id. at 242.
[10] Kocinski further testified that the cameras are motion activated, run
continuously, and record onto a hard drive that can store about twenty-three
hours of footage before “it loops” and begins to record over existing footage.
Id. at 247. He also stated that the recording system was working properly on
May 9, he is unable to alter the recordings, and the recording system records the
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time and date but he was unaware as to whether it adjusted for daylight savings
time. Kocinski testified that he watched the security camera footage with
Detective Rayford on May 9, 2017; reviewed Exhibit 36 in August 2019; and
agreed the exhibit is a true and accurate copy of the video he watched with
Detective Rayford and is in the same or substantially the same condition as the
copy he watched with Detective Rayford. The State again moved to admit
Exhibit 36 and the trial court admitted it over Stewart’s objection.
[11] During Detective Stanton’s testimony, the State introduced Exhibit 37 and laid
the foundation for it by eliciting testimony regarding Exhibit 36. Detective
Stanton testified that Exhibit 36 was the original video footage he had been
asked to review in the case. He reviewed the exhibit on August 15, 2019,
initialed the disc indicating that he reviewed it, and agreed it was an accurate
representation of the footage he originally saw. In addition, he viewed both the
cellphone footage taken as Detective Rayford initially watched the security
camera footage and Exhibit 36 and agreed the two were the same video “with
the exception that [the] Detective was not holding his phone and recording it
off the screen” on Exhibit 36. Id., Vol. III at 226. He stated he had been asked
to slow down the footage he was given, which he did using a computer
program. When presented with Exhibit 37, Detective Stanton identified it as
“my half speed video[,]” which he had reviewed earlier that day and initialed.
Id. at 184. He stated that the video is a true and accurate representation of the
original video, and aside from slowing down the video by using a program, he
did not alter, add, or omit anything from the video. In fact, Detective Stanton
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stated he could view the file’s properties, which revealed the file had been
created on May 9, 2017. See id. at 196, 228.
[12] The State then moved to admit Exhibit 37 as a demonstrative exhibit. Stewart
objected based on lack of foundation for Exhibit 36 and therefore, for Exhibit
37. The trial court overruled the objection and admitted the exhibit, stating:
At this point in the evidentiary record, I have two (2) witnesses
that looked at the video footage on [May 9, 2017]. Both have
looked at that video and looked at . . . Exhibit . . . 36 and say[ ]
that they’re the same[.] I have . . . Detective Stanton, also
reviewing Exhibit [36] saying [it] is the same as Exhibit [37] other
than it’s half speed, that there are no other changes that he can
note between Exhibit [36] and [37], which he’s the one that
created. . . . I have witnesses that are saying that the scene is
depicted in Exhibit [36] are the same herein that’s an issue in this
case. I have the owner of the equipment indicating that it was
operating without issue on [May 9, 2017], that he uses it at
multiple locations at his businesses. And so, based on all of that,
I am assured of Exhibit [36’s] competence and authenticity, and
by extension, I’m also assured of the authenticity and
competence of Exhibit [37]. . . . [Exhibit 37] is only
demonstrative, but I am granting it.
Id. at 205-06. During the trial, Stewart filed a Motion for Jury View to allow
the jury to view the scene on Jefferson Street. The trial court granted the
motion and the jury traveled to the scene.
[13] Ultimately, the jury found Stewart guilty as charged and the trial court
sentenced him to fifty-seven years. Stewart now appeals. Additional facts will
be supplied as necessary.
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Discussion and Decision
I. Admission of Evidence
[14] Stewart argues that the trial court erred in admitting Exhibits 36 and 37 because
the State failed to establish a sufficient foundation under the “silent witness”
theory. We conclude the trial court did not abuse its discretion in admitting
these exhibits.
A. Standard of Review
[15] Our standard of review in this area is well-settled. The admission and exclusion
of evidence falls within the sound discretion of the trial court, and we review
the trial court’s decision for an abuse of that discretion. Baker v. State, 997
N.E.2d 67, 70 (Ind. Ct. App. 2013). An abuse of discretion occurs when the
trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Morrison v. State, 824 N.E.2d 734, 739 (Ind. Ct. App.
2005), trans. denied. We do not reweigh the evidence and consider only the
evidence most favorable to the trial court’s ruling. Scott v. State, 883 N.E.2d
147, 152 (Ind. Ct. App. 2008).
B. Authentication and the “Silent Witness” Theory
[16] Indiana Evidence Rule 901(a) provides that “[t]o satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent
claims it is.” Videos can be authenticated via witness testimony or, in instances
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in which no witness observed what the video portrays, the silent-witness theory.
McFall v. State, 71 N.E.3d 383, 388 (Ind. Ct. App. 2017).
[17] The “silent witness” theory permits the admission of photographs as substantive
evidence, rather than merely as demonstrative evidence, so long as the
photographic evidence is also relevant. Wise v. State, 26 N.E.3d 137, 141 (Ind.
Ct. App. 2015), trans. denied. This theory has been extended to the use of video
recordings. Id.
[U]nder a silent witness theory, videotapes may be admitted as
substantive evidence, but there must be a strong showing of
authenticity and competency and . . . when automatic cameras
are involved, there should be evidence as to how and when the
camera was loaded, how frequently the camera was activated,
when the photographs were taken, and the processing and
changing of custody of the film after its removal from the camera.
McHenry v. State, 820 N.E.2d 124, 128 (Ind. 2005) (quotations and footnote
omitted). This standard is applicable when “there is no one who can testify as
to [the recording’s] accuracy and authenticity because [it] must ‘speak for itself’
and because such a ‘silent witness’ cannot be cross-examined.” Wise, 26
N.E.3d at 141 (quotation omitted).
For this “silent witness” purpose, “the foundational requirements
. . . are vastly different than the foundational requirements for
demonstrative evidence.” In such cases, “the witness is not
required to testify that the photograph [or recording] is an
accurate representation of the scene as it appeared” – and indeed,
often could not “so testify since he or she was not necessarily
there to observe the scene on that day.” Instead, the witness
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“must give identifying testimony of the scene that appears in the
photographs” sufficient to persuade “the trial court . . . of their
competency and authenticity to a relative certainty.”
Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014) (citations and alterations
omitted), cert. denied, 574 U.S. 1091 (2015). If a foundational requirement is
missing, then the surrounding circumstances can be used. McFall, 71 N.E.3d at
388.
[18] Here, Exhibit 36 was admitted as substantive evidence. We conclude that the
following foundational testimony supports the competency and authenticity of
Exhibit 36 to a relative certainty:
• Kocinski testified that one of his warehouse security cameras, located on
the corner of 19th and Jefferson Streets, recorded the shooting at 1717
Jefferson Street on May 9, 2017, which resulted in McCloud’s murder;
and his out-of-state IT team assisted him in accessing or viewing the
footage.
• Kocinski stated that the cameras are motion activated, run continuously,
and record onto a hard drive that stores up to twenty three hours of
footage; the recording system was working properly on May 9; the
system records the time and date, although he did not know whether the
system adjusted for daylight savings time; and he had the ability to burn
the footage onto a disc but did not have the ability to alter the footage.
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• Kocinski watched the footage with Detective Rayford on May 9, 2017;
he reviewed Exhibit 36 before trial and agreed it was a true and accurate
copy of the video he watched with Detective Rayford.
In sum, Kocinski’s testimony explains when the security camera captures
footage, how much footage it records, the date and time of the recording, and
how he obtained the footage at issue in the case. We conclude this is a strong
showing of authenticity and competency.
[19] Stewart also claims the exhibits lacked foundation due to an inadequate chain
of custody. However, under the “silent witness” theory, “the State is not
required to exclude every reasonable possibility of tampering, but rather must
only provide reasonable assurance that an exhibit has passed through various
hands in an undisturbed condition.” Mays v. State, 907 N.E.2d 128, 132 (Ind.
Ct. App. 2009) (quotation omitted), trans. denied. Although we acknowledge, as
does the State, there was inconsistent testimony as to whether the footage
contained in Exhibit 36 was uploaded to APD’s digital dump drive,5 multiple
witnesses at trial testified to Exhibit 36’s authenticity – stating they viewed the
exhibit prior to trial and it was a true and accurate copy of the footage they had
previously watched. Kocinski and Detective Rayford watched the footage of
the shooting on May 9, 2017; Detective Crenshaw watched the footage on May
5
As noted above, Detective Rayford took a video of the footage with his cellphone as he watched it with
Kocinski on May 9, 2017, and Detective Crenshaw obtained a thumb drive with the footage from Kocinski’s
wife on May 17. Both detectives claimed to have uploaded the footage they received to APD’s database;
however, Detective Stanton testified that he could not locate the footage Detective Crenshaw uploaded.
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17 and observed Kocinski’s wife put the footage onto a thumb drive; and
Detective Stanton watched the footage in August 2019 when he was asked by
Deputy Prosecutor Kopp to slow down the footage. Each witness also watched
Exhibit 36 prior to trial and testified the footage was the same or substantially
the same as the footage they initially watched which depicted the May 9
shooting. See Tr., Vol. II at 250; id. Vol. III at 3, 29-30, 62-63, 177-78. And we
note that Stewart does not allege that the footage contained in Exhibit 36 does
not show what happened. This is sufficient to establish Exhibit 36’s
authenticity to a relative certainty and therefore, the trial court did not abuse its
discretion in admitting this exhibit.
[20] Exhibit 37 was admitted as demonstrative evidence and therefore, the “silent
witness” theory is inapplicable. See Wise, 26 N.E.3d at 141. Demonstrative
evidence is a “visual aid[ ] that assist[s] in the presentation and interpretation of
testimony[.]” Knapp, 9 N.E.3d at 1282. And an adequate foundation for
demonstrative evidence requires testimony that the video accurately depicts the
scene or occurrence as it appeared at the time in question. Id. Exhibit 37 was
introduced during Detective Stanton’s testimony, who explained that the
exhibit was a slowed down version of Exhibit 36 and it was an accurate
representation of the original aside from slowing down the video via software.
He stated he did not alter, add, or omit anything from the video; it was only
slowed down to half-speed, which was more accurate than the original double
speed video. During Gosler’s testimony, the State moved to publish Exhibit 37
and the trial court granted the request. See Tr., Vol. IV at 135-37. As the video
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played, Gosler testified that the scene depicted Stewart and Carr’s house, her
car, the individuals present, and described the events that occurred. See id. at
138-49. Gosler’s testimony constitutes an adequate foundation for the
admission of Exhibit 37.
[21] In sum, Exhibits 36 and 37 were properly authenticated. Therefore, the trial
court did not abuse its discretion when it admitted these exhibits.
C. Harmless Error
[22] Even if the video footage was admitted improperly, any error would have been
harmless as it was cumulative of other evidence properly admitted. “The
improper admission of evidence is harmless error when the erroneously
admitted evidence is merely cumulative of other evidence before the trier of
fact.” Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017), trans. denied.
[23] In closing arguments, the defense argued Stewart acted in self-defense in
shooting McCloud, stating that McCloud was “aggressive [and] posed a threat”
and Stewart was protecting himself and his family. Tr., Vol. VI at 192, 194-95.
However, Stewart admitted he shot McCloud multiple times, including after
McCloud fell to the ground, a fact to which multiple witnesses also testified.
He also acknowledged shooting McCloud because McCloud had been in his
house and had allegedly attacked Carr. In light of this evidence, we conclude
that Exhibits 36 and 37, the video footage of what transpired, was merely
cumulative of other evidence properly admitted. Therefore, assuming arguendo
that the exhibits were improperly admitted, any error was harmless.
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II. Motion to Recuse
[24] Stewart also challenges the trial court’s denial of his motion to recuse Deputy
Prosecutor Kopp as prosecuting attorney on the case. Because Kopp delivered
a thumb drive of unknown origin containing what became Exhibit 36 to
Detective Stanton and requested a half speed version, Stewart contends Kopp
“was an essential link in the chain of custody for State’s Exhibits 36 and 37”
and should have been “barred from acting as an advocate for the State.” Brief
of the Appellant at 16. We disagree.
[25] Rule 3.7(a) of Indiana’s Rules of Professional Conduct provides:
A lawyer shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services
rendered in the case; or
(3) disqualification of the lawyer would work substantial
hardship on the client.
[26] A witness is not necessary where the information a party seeks is available from
other sources. Willner v. State, 612 N.E.2d 162, 165 (Ind. Ct. App. 1993), trans.
denied. It is undisputed that Deputy Prosecutor Kopp did not testify at trial.
The fact that Exhibit 36 was admitted under the “silent witness” theory obviates
the need for Kopp’s testimony as to that exhibit. See McFall, 71 N.E.3d at 388.
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And therefore, we cannot conclude he was a necessary witness warranting
recusal from the case based on his involvement with Exhibit 37, which shows
the same thing but at a reduced speed. See Thompson v. State, 671 N.E.2d 1165,
1169 n.3 (Ind. 1996) (rejecting the defendant’s argument that the prosecutor
should have recused, pursuant to Rule 3.7 of Indiana’s Rules of Professional
Conduct, because the prosecutor was not a necessary witness and did not
testify). Exhibit 37 was admitted as demonstrative evidence; therefore, all that
the State was required to show to authenticate Exhibit 37 was that the footage
accurately depicted the scene at the time in question. Knapp, 9 N.E.3d at 1282.
The State did not need to prove chain of custody. And, as the State points out,
Deputy Prosecutor Hanna was also present when Deputy Prosecutor Kopp
approached Detective Stanton about creating Exhibit 37, meaning “at least one
other witness was available who could provide the foundation for the exhibit
other than Kopp.” Brief of Appellee at 32. Therefore, we conclude the trial
court did not err in denying Stewart’s motion to recuse Deputy Prosecutor
Kopp.6
Conclusion
6
The State analyzes Stewart’s motion to recuse as a claim of prosecutorial misconduct. See Br. of Appellee at
28-34. Although Stewart does not claim that Kopp committed prosecutorial misconduct in handling the thumb
drive, even if he did, his claim would fail. In reviewing a claim of prosecutorial misconduct, this court must
determine whether the prosecutor engaged in misconduct, and if so, whether such misconduct, under all the
circumstances, placed the defendant in a position of grave peril to which he should not have been subjected.
Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002). We cannot conclude Kopp’s handling of the thumb drive
constitutes misconduct and, even if it did, in light of the overwhelming evidence of Stewart’s guilt, Stewart
was not placed in grave peril. See Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006).
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[27] The trial court did not abuse its discretion in admitting Exhibits 36 and 37 or in
denying Stewart’s motion to recuse the lead deputy prosecutor. Therefore, we
affirm.
[28] Affirmed.
Crone, J., and Brown, J., concur.
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