FOR PUBLICATION                                                        Nov 27 2013, 5:56 am




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

DANIEL J. MOORE                              GREGORY F. ZOELLER
Laszynski & Moore                            Attorney General of Indiana
Lafayette, Indiana
                                             ANGELA N. SANCHEZ
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

JASON DEATON,                                )
                                             )
     Appellant-Defendant,                    )
                                             )
             vs.                             )       No. 79A02-1303-CR-282
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                   APPEAL FROM TIPPECANOE SUPERIOR COURT
                        The Honorable Thomas H. Busch, Judge
                            Cause No. 79D02-1111-FA-24


                                 November 27, 2013

                            OPINION - FOR PUBLICATION

MAY, Judge
          Jason Deaton appeals his conviction of two counts of Class A felony child molesting.1

    He presents two issues for our review:

          1.     Whether alleged misconduct by the prosecutor was fundamental error; and

          2.     Whether the State presented sufficient evidence to convict Deaton.

We affirm.

                          FACTS AND PROCEDURAL HISTORY2

          On August 17, 2011, E.D. revealed to her sister that their father, Deaton,3 had been

forcing E.D. to perform oral sex for approximately one year. The State charged Deaton with

two counts of Class A felony child molesting.

          Deaton’s jury trial commenced on November 27, 2012. E.D. testified Deaton forced

her to perform oral sex on him on multiple occasions, she identified unique marks on his

genitalia, and she described his post-molestation practices, which were similar to things

Deaton did after engaging in sexual activity with E.D.’s mother. The jury found Deaton

guilty as charged, and the trial court sentenced Deaton to thirty years, with twenty-eight years

executed and two years on supervised probation.




1
  Ind. Code § 35-42-4-3(a)(1).
2
  The record on appeal in this case was prepared pursuant to the Indiana Supreme Court's “Order for the
Indiana Court Reporting Pilot Project by Using Professional Transcription Experts on Appeal [,]” issued on
November 8, 2012, and effective on November 1, 2012. See Ind. Supreme Court Case No. 94S00–1209–MS–
522. We are grateful for the ongoing cooperation of the Honorable Thomas H. Busch of Tippecanoe Superior
Court, the Tippecanoe County Public Defender Agency, and the Office of the Indiana Attorney General in the
execution of this pilot project.
3
  E.D.’s mother and Deaton married when E.D. was ten or eleven years old, and shortly thereafter, Deaton
adopted E.D. and her brother W.D. K.D. is Deaton’s daughter from a previous relationship.

                                                    2
                             DISCUSSION AND DECISION

       1.      Prosecutorial Misconduct

       Deaton claims certain comments by the prosecutor during voir dire and closing

argument were misconduct. In reviewing a claim of prosecutorial misconduct, we must

determine whether the prosecutor engaged in misconduct, and if so, whether the misconduct

had a probable persuasive effect on the jury. Ritchie v. State, 809 N.E.2d 258, 268 (Ind.

2004), reh’g denied, cert. denied, 546 U.S. 828 (2005). A claim of improper argument to the

jury is measured by the probable persuasive effect of any misconduct on the jury’s decision

and whether there were repeated occurrences of misconduct, which would evidence a

deliberate attempt to improperly prejudice the defendant. Id. at 269.

       Deaton did not object to the statements he now alleges were error. Failure to object to

alleged misconduct precludes appellate review of the claim, Booher v. State, 773 N.E.2d 814,

817 (Ind. 2002), unless the alleged misconduct amounts to fundamental error. Id. To

demonstrate fundamental error, the defendant must establish not only prosecutorial

misconduct but also the additional grounds for fundamental error. Id. at 818. To be

fundamental error, the misconduct must have made a fair trial impossible or been a clearly

blatant violation of basic and elementary principles of due process that presents an

undeniable and substantial potential for harm. Id. at 817.

              a.     Voir Dire

       The function of voir dire is to ascertain whether jurors can render “a fair and impartial

verdict in accordance with law and the evidence.” Von Almen v. State, 496 N.E.2d 55, 59

                                               3
(Ind. 1986). Jurors may be asked questions to eliminate bias but “not to condition them to be

receptive to the questioner’s position.” Id. “Questions that seek to shape a favorable jury by

deliberate exposure to the substantive issues in the case are therefore improper.” Id.

       During voir dire, the State engaged in this dialogue with a potential juror in front of

the other potential jurors:

       [State]:      Does anyone watch CSI? I watch it. It’s a good show,
                     [Potential Juror], right?
       [Potential Juror]:    Um-hum.
       [State]:      Do you agree that it’s not reality?
       [Potential Juror]:    It’s so not reality.
       [State] :     The police don’t solve crimes in an hour. Would you need DNA
                     evidence in a case like this to be able to consider --
       [Potential Juror]:    Hard and fast DNA? No.
       [State]:      Does anyone -- would anyone need DNA evidence in a case like
                     this?
                     Would anyone need fingerprint evidence in a case like this?
                     Is anyone going to hold me to a CSI standard? Make me bring
                     in all sorts of forensic evidence and fingerprints and DNA and
                     do the light shows that they do on that show? Is anyone
                     expecting that?

(Tr. at 48.) Deaton argues that, through these comments, the State sought to “reduce its

burden by eliminating any negative inferences to be drawn from any lack of evidence on the

State’s side.” (Br. of Appellant at 9.)

       As Deaton did not object to the State’s questions during voir dire, he must

demonstrate the alleged prosecutorial misconduct rose to the level of fundamental error, that

is, the State’s comments made a fair trial impossible. Deaton has not demonstrated the

State’s comments deprived him of a fair trial. The court reminded the jury of the State’s

burden of proof six times, including twice before voir dire and four times during final

                                              4
instructions. The State also reminded the jurors of its burden two times, once right after the

exchange Deaton challenges. Any error was cured by the multiple reminders of the proper

burden of proof and any error was therefore not fundamental. See Emerson v. State, 952

N.E.2d 832, 838 (Ind. Ct. App. 2011) (any misconduct in prosecutor’s statement cured by

court’s general instruction regarding prosecutor’s comment).

              b.     Closing Argument

       As part of its closing argument, the State may argue both law and fact, and “propound

conclusions based upon his analysis of the evidence.” Poling v. State, 938 N.E.2d 1212,

1217 (Ind. Ct. App. 2010). However, it is improper for the State to comment on the

credibility of a witness unless “the assertions are based on reasons which arise from the

evidence.” Gaby v. State, 949 N.E.2d 870, 881 (Ind. Ct. App. 2011). It is also misconduct

for the State to suggest the burden of proof shifts to the defendant during a criminal case.

Dobbins v. State, 721 N.E.2d 867, 874 (Ind. 1999).

       Deaton argues the State made comments during closing argument vouching for E.D.’s

credibility and suggesting the burden of proof rested with Deaton. As Deaton did not object

to the statements, he must demonstrate fundamental error. See Booher, 773 N.E.2d at 817 (if

appellant does not make objection at trial, issue of prosecutorial misconduct is waived unless

appellant demonstrates fundamental error). He has not met that burden.

       During closing argument, the prosecutor said:

       [E.D.’s] testimony alone is sufficient to support a conviction for child molest.
       We don’t need an eyewitness. We don’t need any physical evidence. We
       don’t need anybody else’s testimony or anything else to corroborate her
       statement, okay? According to the Indiana Supreme Court and the Indiana
                                               5
       Court of Appeals, the uncorroborated testimony of a victim is enough for a
       conviction in child molesting. However, as we already talked about, we have
       more than just hers. However, you need to know that her testimony is [sic]
       alone -- is enough to convict him.

(Tr. at 302.) The State went on to describe the evidence presented supporting the crime, and

then during its rebuttal argument, it stated, “Again, [E.D.’s] testimony is enough. Her

testimony alone is enough to convict the defendant for two counts of A-felony child

molesting. But you have more than that.” (Id. at 317.)

       The State’s comment that E.D.’s testimony was sufficient evidence to convict Deaton

is a correct statement of law; this court and our Indiana Supreme Court have upheld child

molesting convictions on the uncorroborated testimony of the victim on many occasions.

See, e.g., Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012), reh’g denied; Bowles v.

State, 737 N.E.2d 1150, 1152 (Ind. 2000); Brooks v. State, 560 N.E.2d 49, 53 (Ind. 1990),

reh’g denied; Young v. State, 973 N.E.2d 1225, 1227 (Ind. Ct. App. 2012), reh’g denied;

Baber v. State, 870 N.E.2d 486, 490 (Ind. Ct. App. 2008), reh’g denied, trans. denied.

Decisions holding the State committed prosecutorial misconduct because of a statement

during closing arguments vouching for the victim are distinguishable. See Gaby, 949 N.E.2d

at 881 (prosecutor improperly vouched for victim when telling the jury the prosecutor and the

police believed the victim, and the jury should too); Ryan v. State, 992 N.E.2d 776, 789 (Ind.

Ct. App. 2013) (prosecutor’s comment that victim was telling the truth and had “never been

dishonest” were improper vouching comments), trans. pending. Deaton has not directed us

to any decision where a statement that a victim’s testimony alone is sufficient to support a


                                              6
conviction was held to be prosecutorial misconduct.

       The jury was reminded multiple times of the State’s burden of proof and that Deaton

was innocent until proven guilty. These instructions and reminders are sufficient to cure any

allegedly improper comments. See Emerson, 952 N.E.2d at 838 (any misconduct in

prosecutor’s statement cured by court’s general instruction.)

       2.     Sufficiency of the Evidence

       When reviewing sufficiency of evidence to support a conviction, we consider only the

probative evidence and reasonable inferences supporting the decision. Drane v. State, 867

N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s role, and not ours, to assess witness

credibility and weigh the evidence to determine whether it is sufficient to support a

conviction. Id. To preserve this structure, when we are confronted with conflicting

evidence, we consider it most favorably to the ruling. Id. We affirm a conviction unless no

reasonable fact-finder could find the elements of the crime proven beyond a reasonable

doubt. Id. It is therefore not necessary that the evidence overcome every reasonable

hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be

drawn from it to support the decision. Id. at 147.

       To prove Deaton committed Class A felony child molesting, the State had to present

evidence Deaton “perform[ed] or submit[ted] to sexual intercourse or deviate sexual

conduct” with a child under the age of fourteen, when Deaton was over twenty-one years old.

Ind. Code § 35-42-4-3(a)(1). Deaton argues, “[t]he insufficiency in this case comes

primarily from the complete lack of believability of the victim’s testimony.” (Br. of

                                             7
Appellant at 13.) However, we may not reweigh evidence or judge witness credibility. See

Drane, 867 N.E.2d at 146. E.D testified Deaton forced her to perform oral sex on multiple

occasions when he was over twenty-one years old and she was under fourteen years old, and

a a conviction of child molesting may be based on the uncorroborated testimony of the

victim, Hoglund, 962 N.E.2d at 1239. Thus, the State presented sufficient evidence to

convict Deaton of two counts of Class A felony child molesting.

                                     CONCLUSION

       Deaton has not demonstrated fundamental error in the State’s comments during voir

dire regarding the “CSI effect” and the State’s comments during closing arguments regarding

the evidence presented. Further, the State presented sufficient evidence to convict Deaton of

two counts of Class A felony child molesting. Accordingly, we affirm.

       Affirmed.

KIRSCH, J., and BRADFORD, J., concur.




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