concurring in part and dissenting in part.
I concur in Section III of the majority’s opinion. I respectfully dissent from the majority’s resolution of Section I, on the issue of prosecutorial misconduct.6 Based on my review of the evidence, I conclude that the State’s actions constituted both prosecutorial misconduct and fundamental error, and I would reverse Emerson’s conviction for driving while intoxicated.
During voir dire, the State began its questioning by asking panelists about bullying. The State asked panelists questions such as, “because a bully tells you to do something you do it?” Tr. p. 107. The State also asked, “[b]ecause a bully says something is true, do you..[.] do you believe it?” Id. Later, when additional panelists were being questioned, the State asked a potential juror, “do you stand up to a bully?” Tr. p. 152. He asked another potential juror, “|j]ust because a bully says something is so, does it make it so?” Tr. p. 153. I agree with the majority that attorneys may question panelists in a variety of ways to ascertain the panelists’ potential for bias or partiality. However, in this case, the State never directly asked any of the panelists if evidence of bullying would affect their ability to render an impartial verdict. Instead, the State’s questions focused on whether panelists have “[stood] up to a bully” and whether a bully’s statements should be accepted as the truth. Tr. p. 153.
Furthermore, during opening arguments on the charge of operating a vehicle while intoxicated, the State asserted, “[a]nd when [Emerson] was pulled over, he tried to bully his way out of it. Yelling at the *842police officer saying, you got it wrong. At the end of the evidence that you hear today, you will come to the conclusion that this bully needs to be stood up to, and that he committed this crime, and that he’s guilty.” Tr. p. 185. The State further argued, “I’m going to ask you to stand up to this bully and tell him that he committed a crime with a verdict of guilty.” Tr. p. 188. During closing arguments for phase one of the trial, the prosecutor stated, “[a]nd he was trying to bully this female police officer into believing something that wasn’t true. And that, ladies and gentlemen, is what he’s trying to do today.” Tr. p. 356. Later in its argument, the State contended, “[a]gain, he’s being a bully. He’s trying to scare her away from what she knew she s.. [sic] is immediate aggression.” Tr. p. 358. The State concluded, “[a]nd I ask you for a guilty finding. I want you to stand up and tell this bully that he cannot hide the truth, that he was, in fact, drunk driving, and find him guilty.” Tr. p. 365.
Standing alone, each question or comment during voir dire and opening and closing arguments may not have constituted misconduct that placed Emerson in grave peril. However, I conclude that when taken as a whole, the State’s repeated characterization of Emerson as a bully conditioned the jury to conclude that Emerson was a person of poor character and encouraged the jury to “stand up to” Emerson and find him guilty of driving while intoxicated because of perceived character flaws rather than because he committed the offense at issue. The State’s improper theme likely had a strong persuasive impact on the jury because the State’s case was strongly contested. Loer-zel testified and described her encounter with Emerson and Morgan as set forth above. However, Morgan also testified at trial and directly contradicted Loerzel on the crucial issues. Morgan testified that she, not Emerson, was driving on the day in question. In addition, Morgan denied telling Loerzel that she was thankful that Loerzel had stopped them or that Emerson had been driving and had made her switch seats with him. Given the repeated and consistent nature of the State’s comments and the conflicting witness testimony, I conclude that Emerson was placed in grave peril and that the State’s remarks constituted prosecutorial misconduct. See Oldham v. State, 779 N.E.2d 1162, 1176, trans. denied (determining that the prosecutor’s comments constituted misconduct because they demonstrated that the prosecutor asked the jury to convict on the basis of the defendant’s character).
In addition, it appears to me that the cumulative effect of the State’s misconduct was so substantial and prejudicial to Emerson that it made a fair trial impossible on the charge of operating while intoxicated. The State’s bullying comments permeated that phase of the trial. Consequently, I would reverse Emerson’s conviction for operating a vehicle while intoxicated. See Lainhart v. State, 916 N.E.2d 924, 939 (Ind.Ct.App.2009) (determining that the prosecutor’s comments during voir dire and closing argument constituted improper indoctrination and vouching and amounted to fundamental error).
Although I would reverse Emerson’s conviction for operating a vehicle while intoxicated, I conclude that there is sufficient evidence to retry him for that charge. Consequently, I would allow the State to retry Emerson, if the State so chooses. See id. (noting that if, viewed as a whole, the State’s evidence would have been sufficient to sustain the judgment, retrial does not offend double jeopardy principles).
With respect to the second phase of the trial, during which Emerson was tried for operating a motor vehicle after driving privileges were forfeited for life, I would *843allow that conviction to stand. Although the same jurors sat in judgment for both portions of the trial, the trial court provided new preliminary and final jury instructions for the trial for phase two. In addition, the parties presented new opening and closing arguments, and the State did not characterize Emerson as a bully during that portion of the trial. Furthermore, Loerzel did not testify during phase two of the trial, and her encounter with Emerson was not at issue. Instead, the evidence consisted of Emerson’s driving record, his past guilty plea to a charge of operating a vehicle as a habitual traffic offender, and his testimony. Given the different charge, jury instructions, and evidence at issue in the second phase of the trial, and the State’s cessation of characterizing Emerson as a bully, I cannot conclude that the State’s misconduct earlier in the proceedings made a fair trial impossible on the charge of operating a vehicle after driving privileges were forfeited for life. Consequently, I do not find fundamental error with respect to that conviction and would not reverse that conviction due to prosecu-torial misconduct.
For these reasons, I respectfully concur in part and dissent in part.
. Emerson also claims that the trial court erred in instructing the jury on the charge of operating a vehicle while intoxicated, which the majority addresses in Section II of the opinion. However, I would reverse Emerson’s conviction for that offense. In addition, as the majority notes, Emerson did not preserve that issue for appellate review. For these reasons, I would decline to address the jury instruction issue.