MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                        Mar 27 2019, 10:55 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                      Curtis T. Hill, Jr.
O’Connor & Auersch                                       Attorney General of Indiana
Indianapolis, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Phillip W. Hutchinson,                                   March 27, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1207
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G06-1708-F4-28677



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019                   Page 1 of 8
[1]   Phillip Hutchinson appeals his conviction for Level 4 Felony Child Molesting, 1

      arguing that the State committed prosecutorial misconduct that amounted to

      fundamental error and requires a reversal. Finding no misconduct, we affirm.


                                                    Facts
[2]   In July 2017, then-ten-year-old K.M. was living with her grandmother and her

      grandmother’s boyfriend, Hutchinson. K.M.’s parents slept in their vehicle

      outside the home. One night, K.M. awoke to find Hutchinson standing over

      her and moving his fingers around her genitals. K.M. ran outside, crying, and

      began pounding on the door of the vehicle where her parents were sleeping,

      awakening them to tell them what had happened. The family immediately

      called the police.


[3]   On August 7, 2017, the State charged Hutchinson with Level 4 felony child

      molesting and Level 1 felony child molesting, later adding an allegation that

      Hutchinson was an habitual offender. Hutchinson’s jury trial took place on

      April 2-3, 2018. K.M. testified at the trial.


[4]   During closing arguments, Hutchinson’s attorney argued that K.M.’s testimony

      was not credible, arguing that it could have been a dream, that it could have

      been K.M.’s brother sleeping on her, and that K.M. may have made the

      accusation to get attention. Tr. Vol. II p. 191-92. On rebuttal, the prosecutor




      1
          Ind. Code § 35-42-4-3.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019   Page 2 of 8
      responded, arguing that “[k]ids don’t make this up for attention,” id. at 195, and

      explaining the standard of review to the jury:


              Ladies and Gentlemen, [in] a second I’m going to sit down and
              you are going to go back to that jury room and you are going to
              start to deliberate. And you are going to get to the point where
              you say, “I believe her but how do you know it’s beyond a
              reasonable doubt?” Yesterday, you didn’t know K[.]M[.], you
              didn’t know the Defendant and you didn’t know what he did to
              her on July 25th of 2017. When you got to believe her, that is
              proof beyond a reasonable doubt, that’s a guilty. And do not
              come back here and tell that little girl she is lying. Because to be
              clear, that’s what a not guilty is. That girl got on the stand,
              promised to tell you the truth and told you what he did to her.
              It’s always easier when stuff like this is done at some other time,
              in some other place, by some other people. But now is the time,
              this is the place, you are the people. And give the child justice,
              find him guilty.


      Id. at 198-99. Hutchinson did not object to any of these statements. After

      deliberating, the jury found Hutchinson guilty of Level 4 felony child molesting

      and not guilty of Level 1 felony child molesting. On April 25, 2018, the trial

      court sentenced Hutchinson to eighteen years with three years suspended.

      Hutchinson now appeals.


                                   Discussion and Decision
[5]   Hutchinson’s sole argument on appeal is that we should reverse based on

      prosecutorial misconduct. He directs our attention to three statements made by

      the prosecutor that he claims constitute reversible misconduct:



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019   Page 3 of 8
          • “Kids don’t make this up for attention.” Tr. Vol. II p. 195.

          • “[D]o not come back here and tell that little girl she is lying. Because to
            be clear, that’s what a not guilty is.” Id. at 198.

          • “[G]ive the child justice, find him guilty.” Id. at 199.

[6]   Initially, we note that to preserve a claim of prosecutorial misconduct, a

      defendant must raise a contemporaneous objection, request that the jury be

      admonished, and move for a mistrial if he is unsatisfied with the trial court’s

      admonishment. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). Here,

      Hutchinson took none of these steps. Therefore, Hutchinson must show that

      the alleged misconduct amounts to fundamental error, meaning that the trial

      court erred in not sua sponte raising the issue because the alleged misconduct

      constituted clearly blatant violations of basic principles and presented an

      undeniable and substantial potential for harm. Ryan v. State, 9 N.E.3d 663, 668

      (Ind. 2014).


[7]   In reviewing a claim of prosecutorial misconduct, we must determine (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 would not otherwise have been subjected. Id. at 667.


[8]   Hutchinson argues that the first statement amounted to impermissible vouching

      for the credibility of a witness. See Brummett v. State, 10 N.E.3d 78, 83-84 (Ind.

      Ct. App. 2014) (noting that a prosecutor may not state his or her personal

      opinion regarding the credibility of a witness during trial). This statement was

      made during rebuttal, a time in which a prosecutor may rebut the allegations

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019   Page 4 of 8
      and inferences raised during the defendant’s closing. Johnson v. State, 584

      N.E.2d 1092, 1107 (Ind. 1992). In fact, during rebuttal, prosecutors may

      respond to the statements made during defense counsel’s closing argument

      “even when such arguments by the State may under different circumstances be

      objectionable.” Trice v. State, 519 N.E.2d 535, 538 (Ind. 1988). During closing

      argument, Hutchinson’s counsel repeatedly attacked K.M.’s credibility, going

      so far as to suggest that she had fabricated the incident to get attention. When

      the prosecutor responded during closing argument that “[k]ids don’t make this

      up for attention,” tr. vol. II p. 195, it was a direct response to defense counsel’s

      statement. Therefore, rather than being impermissible vouching, this was an

      appropriate statement to make during rebuttal.


[9]   Moreover, this statement was sandwiched between many specific references to

      the evidence in the record to support it. Specifically, the prosecutor referred to

      evidence that K.M. disliked drama at school, that she referred to her genitals as

      her “private part,” id. at 60, and that she had been forced to meet with

      numerous law enforcement officials during the investigation, to show that K.M.

      did not feel comfortable discussing the events and did not want the attention

      that she got as a result. The prosecutor also emphasized circumstantial

      evidence supporting K.M.’s allegations and highlighted the fact that K.M. had

      sworn an oath to tell the truth.2 By linking the general statement that “[k]ids



      2
       To the extent that Hutchinson argues that the reference to K.M.’s oath to tell the truth was improper
      vouching, we disagree. The prosecutor was merely recounting something that the jurors themselves had
      observed firsthand.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019                  Page 5 of 8
       don’t make this up for attention,” id. at 195, to specific evidence in the record,

       the prosecutor appropriately relied on the evidence in the record rather than on

       her own personal knowledge. We find no prosecutorial misconduct based on

       this statement.


[10]   Second, Hutchinson directs our attention to the prosecutor’s direction to the

       jury: “[D]o not come back here and tell that little girl she is lying. Because to

       be clear, that’s what a not guilty is.” Id. at 198. Hutchinson argues that this

       statement was an improper shift of the burden of proof, claiming that “[i]n

       effect, the State was arguing that the burden of proof is an all or nothing

       proposition, that the jury must either believe K.M. or conclude that she

       fabricated her entire story.” Appellant’s Br. p. 11.3


[11]   It is true that a prosecutor may not suggest that a defendant shoulders the

       burden of proof in a criminal case. E.g., Stephenson v. State, 742 N.E.2d 463, 483

       (Ind. 2001). But we fail to see how this statement was designed to, or had the

       effect of, requiring Hutchinson to prove his innocence. When viewed in

       context, it is apparent that the prosecutor was merely telling the jury that if it

       found K.M.’s testimony to be credible, that testimony, alone, was sufficient to

       sustain a guilty verdict:


               [Y]ou are going to get to the point where you say, “I believe her
               but how do you know it’s beyond a reasonable doubt?”



       3
        To the extent that Hutchinson argues that this statement also amounted to improper vouching, we refer to
       our analysis above and find, again, that there is no misconduct on this basis.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019                  Page 6 of 8
               Yesterday, you didn’t know K[.]M[.], you didn’t know the
               Defendant and you didn’t know what he did to her on July 25th
               of 2017. When you got to believe her, that is proof beyond a
               reasonable doubt, that’s a guilty. And do not come back here
               and tell that little girl she is lying. Because to be clear that’s what
               a not guilty is.


       Tr. Vol. II p. 198. We acknowledge that the point could have been more

       artfully made. But when viewed as a whole, it is apparent that these comments

       accurately recounted the burden of proof to the jury. Moreover, the jurors were

       properly instructed on the presumption of innocence and the State’s burden of

       proof. See Stephenson, 742 N.E.2d at 483 (noting that if prosecutor makes

       improper statements shifting burden of proof, the error is cured with a proper

       advisement made by the trial court). Therefore, this argument is unavailing.


[12]   Finally, Hutchinson argues that the prosecutor committed misconduct when

       telling the jury to “give the child justice, find him guilty.” Tr. Vol. II p. 199.

       This Court has long held that “[i]t is misconduct for a prosecutor to request the

       jury to convict a defendant for any reason other than his guilt or to phrase final

       argument in a manner calculated to inflame the passions or prejudice of the

       jury.” Neville v. State, 976 N.E.2d 1252, 1264 (Ind. Ct. App. 2012). But even

       when this rule is violated, we will not reverse if the statement was “fleeting”

       and could not have placed the defendant in grave peril or rendered a fair trial

       impossible. Emerson v. State, 952 N.E.2d 832, 838 (Ind. Ct. App. 2011).


[13]   We tend to agree that this statement, in a vacuum, suggests that the jury should

       convict to give K.M. justice, which is improper. But it was made at the end of a

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019    Page 7 of 8
       rebuttal that was filled with specific references to evidence in the record and

       arguments as to why, based on that evidence, Hutchinson was guilty. We can

       only find that this comment was fleeting and was far from placing Hutchinson

       in grave peril or rendering a fair trial impossible. Therefore, this argument is

       unavailing.


[14]   As a final aside, we note that the jury found Hutchinson guilty of Level 4 felony

       child molesting and not guilty of Level 1 felony child molesting. This result

       shows that the jurors carefully considered and weighed all of the evidence and

       the elements that needed to be proved beyond a reasonable doubt to convict.

       Given a record that is full of evidence supporting Hutchinson’s guilt and a jury

       that diligently exercised its responsibilities, even if we had found that any of the

       above statements constituted misconduct, we would not have found that they

       amounted to fundamental error.


[15]   The judgment of the trial court is affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019   Page 8 of 8
