                                                                              FILED
                                                                         Oct 30 2018, 6:41 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Jonathan G. Chance                                         Curtis T. Hill, Jr.
      JC Law Offices                                             Attorney General of Indiana
      Evansville, Indiana
                                                                 George P. Sherman
                                                                 Supervising Deputy Attorney
                                                                 General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      William D. Bradley,                                        October 30, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 87A01-1711-CR-2584
              v.                                                 Appeal from the Warrick Superior
                                                                 Court
      State of Indiana,                                          The Honorable Robert R.
      Appellee-Plaintiff.                                        Aylsworth, Judge
                                                                 Trial Court Cause No.
                                                                 87D02-1505-F1-167



      Najam, Judge.


                                        Statement of the Case
[1]   William D. Bradley appeals his convictions for two counts of child molesting,

      each as a Level 1 felony; one count of child molesting, as a Level 4 felony; and


      Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018                 Page 1 of 21
      one count of incest, as a Level 4 felony. Bradley raises the following five issues

      for our review:


              1.     Whether the trial court violated Bradley’s rights to a
              speedy trial under either Indiana Criminal Rule 4(C) or the
              federal and state constitutions.


              2.    Whether Bradley’s convictions for child molesting, as a
              Level 4 felony, and incest were based on the very same acts on
              which his two Level 1 child molesting convictions were based
              and, as such, violated his right to be free from double jeopardy.


              3.    Whether the trial court abused its discretion in the
              admission of certain evidence.


              4.     Whether the State presented sufficient evidence to support
              his convictions.


              5.    Whether the trial court committed fundamental error
              when it did not intervene during the prosecutor’s closing
              argument.


[2]   We affirm in part, reverse in part, and remand with instructions to vacate

      Bradley’s convictions for child molesting, as a Level 4 felony, and incest, as a

      Level 4 felony.


                                  Facts and Procedural History
[3]   On March 30, 2015, A.S. invited her brother, D.B., and her father, Bradley, to

      her house to watch movies with her and her three minor children, E.S., T.S.

      and K.S. At the time, her daughter, T.S., was six years old. After dinner that

      Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018   Page 2 of 21
      evening, A.S. went to bed around 9:00 p.m., and D.B. and Bradley stayed up

      with E.S. and T.S.


[4]   Around 10:50 p.m., D.B. left the living room, where he and the others were still

      watching movies, to go to the bathroom. When he returned to the living room

      about fifteen minutes later, he observed T.S. on Bradley’s lap, under a blanket.

      D.B. observed Bradley “holding [T.S.] under” the blanket. Tr. Vol. I at 211.

      Bradley’s hands were also underneath the blanket. T.S. appeared to be

      “struggling,” and D.B. heard her say “no.” Id. at 213. D.B. looked for a phone

      to call police, but he could not locate one, and when he returned to the living

      room T.S. was no longer on Bradley’s lap but, rather, on the couch. When

      Bradley later left the residence, D.B. heard Bradley whisper to T.S. “shh” and

      “it was just all a dream.” Id. at 217.


[5]   The next afternoon, when A.S. came home from a dentist appointment, D.B.

      and T.S. were inside the residence, and D.B. urged T.S. to “tell” A.S. about the

      night before. Id. at 134. But T.S. did not want to discuss it. D.B. then told

      A.S., outside of T.S.’s presence, what he had observed with Bradley the night

      before. A.S. then asked T.S. about it, and T.S. “confirmed what [D.B.] had

      said.” Id. at 135.


[6]   Thereafter, A.S. called police, and Molly Elfreich, a forensic interviewer at the

      Holly House adult and child advocacy center, interviewed T.S. During that

      interview, T.S. identified the female genital area and the male genital area using

      diagrams of a female body and a male body. T.S. then stated that Bradley had


      Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018   Page 3 of 21
      touched her breasts; that he had touched her genitals over her clothes with his

      hand; that he had placed a finger inside her vagina; and that he had made “her

      face touch[] his penis.” Id. at 194. When asked if Bradley had made any

      specific parts of her face touch his penis, T.S. stated that he had made “all of”

      her face touch it. State’s Ex. 1 at 16:21.


[7]   On May 1, the State charged Bradley with Count 1: child molesting, as a Level

      1 felony; Count 2: child molesting, as Level 1 felony; Count 3: child

      molesting, as a Level 4 felony; and Count 4: incest, as a Level 4 felony. After

      various continuances, on September 1, 2016, Bradley moved for discharge

      pursuant to Indiana Criminal Rule 4(C). The trial court denied his motion. At

      his ensuing jury trial, during cross-examination, A.S. testified that she did not

      take T.S. to a hospital or emergency room immediately after she had learned of

      Bradley’s acts because A.S. believed that “[n]othing was inserted . . . that would

      have passed an STD.” Tr. Vol. I at 26-27. The jury returned a hung verdict,

      and the court declared a mistrial.


[8]   Prior to the second trial, Bradley filed a renewed motion for discharge pursuant

      to Criminal Rule 4(C), which the court again denied. Also prior to the second

      trial, the State filed a motion in limine to prohibit Bradley from asking A.S.

      whether anything had been inserted into T.S. because A.S. lacked personal

      knowledge of such an act. The trial court granted the State’s motion.


[9]   The court held Bradley’s second trial in September of 2017. At that trial, A.S.,

      D.B., and Elfreich testified, and the State introduced T.S.’s recorded interview


      Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018   Page 4 of 21
       with Elfreich as well as a video-recording of police officers’ interview with

       Bradley, which was conducted shortly after the initial allegations had been

       made. During her testimony, A.S. stated that she did not take T.S. to a hospital

       immediately after learning of the allegations because of the stress of the

       moment and also because they “were a tight-knit family” and she “would have

       known” if Bradley had an STD that he could have passed to T.S. Id. at 148-49.

       Bradley then moved to impeach A.S. using her testimony from the first trial.

       The trial court denied Bradley’s request and noted that A.S.’s second testimony

       was made while “she was trying very hard not to violate” the court’s order on

       the motion in limine. Id. at 152.


[10]   Following the presentation of evidence, the prosecutor stated as follows,

       without objection, during closing argument:


               [The court’s instruction] defines other sexual conduct. It is an act
               involving the sex organ of one person and the mouth or anus of
               another person, or it’s the penetration of a sex organ or anus of a
               person by any object.


               In this case we have both. Count [1] involves oral sex, and
               Count [2] involves digital penetration. So what the State would
               have to prove would be a mouth of [one] person coming into
               contact with a sex organ or an object, which can be a finger,
               penetrating a sex organ of another person.


                                                        ***


               In Count [1] the State has to prove the defendant . . . [p]erformed
               or submitted to oral sex. And, again, the definition I just read to

       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018   Page 5 of 21
        you is the mouth in contact with the sex organ. So the State
        doesn’t have to prove beyond a reasonable doubt that his penis
        went into her mouth and stayed for any period of time. Her
        testimony was that her face, all of the parts, came into contact
        with his parts. That satisfies the element.


        . . . In Count [2,] the State has to prove the defendant
        . . . knowingly performed digital penetration. Digital penetration
        is what it sounds like. That is, his finger went into her
        vagina. . . .


        In Count [3], that’s a fondling count. . . . [A]ll the State has to
        prove is the defendant . . . did it with the intent to arouse or
        satisfy either [T.S.’s] sexual desires—and that’s what the statute
        says and there’s no evidence that [T.S.] had any sexual desires
        here—or his own sexual desires . . . .


        Then Count [4]—if you find guilt in Count [1] or Count [2],
        Count [4] should be a slam dunk . . . .


                                                 ***


        Think about Mr. Bradley in [the police interrogation] video.
        “Did you put your penis in her anus?” “No.” “Did you put your
        penis in her vagina?” “No.” “Did you rub up on her a little bit?”
        There’s a theory in logic called Ockham’s razor. All right?
        Which is the simplest explanation is probably the right one. The
        simplest explanation is that Mr. Bradley didn’t put his penis in
        her vagina. He didn’t put his penis in her anus, but he’s got a
        guilty look on his face because he’s guilty.


        Now’s our chance to hold him accountable. In the end the jury
        doesn’t decide what should happen; the judge does. He has . . . a
        wide range of choices, but he can’t do anything until [twelve]

Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018   Page 6 of 21
               people decide to hold him accountable and hold him guilty.
               Thank you.


       Tr. Vol. II. at 31-34, 37. Following closing arguments, the jury found Bradley

       guilty as charged. The court then entered its judgment of conviction on all

       counts and sentenced Bradley to an aggregate term of thirty years. This appeal

       ensued.


                                       Discussion and Decision
                                           Issue One: Speedy Trial

                                               Criminal Rule 4(C)


[11]   On appeal, Bradley first asserts that the trial court erred when it denied his

       motions for discharge under Indiana Criminal Rule 4(C). That Rule states:


               No person shall be held on recognizance or otherwise to answer
               a criminal charge for a period in aggregate embracing more than
               one year from the date the criminal charge against such
               defendant is filed, or from the date of his arrest on such charge,
               whichever is later; except where a continuance was had on his
               motion, or the delay was caused by his act, or where there was
               not sufficient time to try him during such period because of
               congestion of the court calendar . . . . Any defendant so held
               shall, on motion, be discharged.


       Ind. Criminal Rule 4(C).


[12]   Because Bradley preserved his Rule 4(C) motion for discharge prior to the start

       of his first trial, our first question in this appeal is whether the trial court erred

       when it denied that motion. Cf. Faulisi v. State, 602 N.E.2d 1032, 1039 (Ind. Ct.

       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018   Page 7 of 21
       App. 1992) (noting that the defendant’s “first trial . . . was within the one year

       mandate of” Rule 4(C) before proceeding to a constitutional analysis of the

       interstice between the mistrial and the retrial), trans. denied;1 Driver v. State, 594

       N.E.2d 488, 491-92 (Ind. Ct. App. 1992) (same), trans. denied. In reviewing

       Criminal Rule 4 claims, we review questions of law de novo, and we review

       factual findings under the clearly erroneous standard. Austin v. State, 997

       N.E.2d 1027, 1039-40 (Ind. 2013). Here, the facts are undisputed, and therefore

       our review is de novo. Id.


[13]   The parties agree that the one-year period began to run on May 4, 2015, when

       officers arrested Bradley. Thus, the trial court initially had until May 3, 2016,

       to hold Bradley’s trial under Rule 4(C) unless valid circumstances existed to

       delay that date. On July 24, 2015, the trial court, with Bradley’s agreement, set

       the trial date for February 1, 2016, which was well within that initial one-year

       period.


[14]   On January 8, 2016, Bradley moved to vacate the February 1 trial date due to a

       medical condition with his attorney, and, due to that circumstance, Bradley

       later requested a new trial date of May 9, 2016, which request the court granted.

       “[W]hen a defendant asks for a continuance, the time between the motion for a

       continuance and the new trial date is chargeable to the defendant.” Vermillion v.

       State, 719 N.E.2d 1201, 1204 (Ind. 1999). Accordingly, the Rule 4(C) period



       1
         In Faulisi, there is a misstated reference to “March 1990” when the facts from the opinion make clear that
       the reference should have been to “March 5, 1991.” 602 N.E.2d at 1039-40.

       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018                      Page 8 of 21
       here was extended by the 122 days between January 8, 2016, and May 9, 2016.

       Adding those days to the initial May 3, 2016, requirement gave the trial court

       until September 2, 2016, to hold Bradley’s trial.


[15]   On April 15, 2016, the State moved to continue the May 9 trial date “due to the

       unavailability of an essential witness.” Appellant’s App. Vol. 2 at 7. Our

       Supreme Court has long held that “[t]he absence of a key witness through no

       fault of the State is good cause for extending the time period requirements for

       early trial under Rule 4.” Woodson v. State, 466 N.E.2d 432, 434 (Ind. 1984); see

       also Wooley v. State, 716 N.E.2d 919, 924 (Ind. 1999). Although Bradley

       objected to the motion to continue, his objection was not based on his speedy

       trial rights. See Todisco v. State, 965 N.E.2d 753, 756 (Ind. Ct. App. 2012), trans.

       denied. Indeed, that same day Bradley agreed to a new trial date of August 1,

       2016. This extended the period in which the court needed to hold Bradley’s

       trial under Rule 4(C) by an additional 84 days, from May 9, 2016, to August 1,

       2016. See, e.g., State v. Black, 947 N.E.2d 503, 509 (Ind. Ct. App. 2011). Thus,

       the trial court had until November 25, 2016, to hold Bradley’s trial.


[16]   On July 8, 2016, the State moved to vacate the August 1 trial date due to the

       unavailability of another key witness. Over Bradley’s objection, the court

       granted the motion and reset the trial date for October 31, 2016. Again, the

       State’s request was a valid reason to delay the trial date under Rule 4, and the

       rescheduled trial date, despite Bradley’s objection, was still well within the Rule

       4(C) period.



       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018   Page 9 of 21
[17]   Nonetheless, on September 1, 2016, Bradley moved for discharge under Rule

       4(C). However, as demonstrated above, Bradley’s motion was premature as the

       trial court had not yet set Bradley’s trial for a date beyond the one-year period.

       See, e.g., Wood v. State, 999 N.E.2d 1054, 1060 (Ind. Ct. App 2013), trans. denied.

       “It is well established that[,] when a motion for discharge for a Criminal Rule 4

       violation is made prematurely, it is properly denied.” Stephenson v. State, 742

       N.E.2d 463, 487 n.21 (Ind. 2001). Accordingly, we affirm the trial court’s

       denial of Bradley’s first motion for discharge.


[18]   As for Bradley’s second motion for discharge under Rule 4(C), which he filed

       after the mistrial and prior to his second trial, we note that there is no Rule 4(C)

       issue. Rather, Criminal Rule 4(C) does not apply to the time period after a

       mistrial and prior to a retrial. E.g., Lahr v. State, 615 N.E.2d 150, 151 (Ind. Ct.

       App. 1993). “Instead, when a retrial is required, a defendant must rely on his

       constitutional speedy trial right, which requires that a defendant be tried within

       a reasonable time.” Id. (citations omitted).2 The trial court held Bradley’s

       second trial 111 days, or just under four months, after it had declared a mistrial

       in the first trial, and Bradley provides no argument supported by cogent

       reasoning on appeal that that length of time was, standing alone, unreasonably

       long. See Ind. Appellate Rule 46(A)(8)(a). Accordingly, we affirm the trial

       court’s denial of Bradley’s second Rule 4(C) motion as well.




       2
         The federal constitutional analysis for speedy trial claims is the same analysis that applies to claims made
       under our state constitution. Lahr, 615 N.E.2d at 151 n.2.

       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018                       Page 10 of 21
                                     Constitutional Speedy Trial Rights


[19]   Bradley’s Rule 4(C) motions aside, he also argues on appeal that the total delay

       between his arrest and his second trial violated his constitutional rights to a

       speedy trial. The Sixth Amendment to the United States Constitution

       guarantees to an accused in a criminal prosecution “the right to a speedy and

       public trial.” Article 1, Section 12 of the Indiana Constitution likewise

       guarantees that justice “shall be administered . . . speedily, and without delay.”


[20]   As our Supreme Court has explained: “In evaluating both federal and Indiana

       constitutional speedy trial claims, courts balance the same four factors: (1) the

       length of delay; (2) the reason for delay; (3) the defendant’s assertion of the

       right to a speedy trial; and (4) any resulting prejudice to the defendant.” Griffith

       v. State, 59 N.E.3d 947, 955 (Ind. 2016) (citing Barker v. Wingo, 407 U.S. 514,

       530 (1972); Sweeney v. State, 704 N.E.2d 86, 102 (Ind. 1998)). Further, as

       Bradley’s argument alleges constitutional violations, “the proper standard of

       appellate review is de novo.” Ackerman v. State, 51 N.E.3d 171, 177 (Ind. 2016).


[21]   Applying those factors here, we conclude that Bradley has not been denied his

       constitutional rights to a speedy trial. The length of the delay between his arrest

       and the beginning of his second trial was 855 days. However, as noted above,

       Bradley’s own requests for or acquiescence in pushing back the trial date was

       the reason for much of the delay. On July 24, 2015, Bradley agreed to an initial

       trial date on February 1, 2016, 192 days later. Bradley subsequently agreed to

       later trial dates of May 9, 2016, and August 1, 2016, which pushed his trial date


       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018   Page 11 of 21
       back by another 182 days. An additional delay of seventy-one days, to October

       11, 2016, resulted from the absence of a necessary witness. And on October 11,

       the court, at Bradley’s request, stayed the trial court proceedings for Bradley to

       seek an interlocutory appeal. After our Court denied his request and the trial

       court resumed jurisdiction, the trial court set his trial date for May 15, 2017,

       “[b]y agreement of the parties.” Appellant’s App. Vol. 2 at 12. Thus, the 216-

       day delay between October 11, 2016, and the start of Bradley’s first trial on

       May 15, 2017, was also attributable to Bradley’s requests or acquiescence.


[22]   Of the remaining 194 days, 111 days resulted from the need for a second trial.

       And, while Bradley did twice assert his right to a speedy trial under Rule 4(C),

       he filed those motions notwithstanding his requests for or acquiescence in

       numerous delays. Finally, Bradley fails to show any prejudice from the delay.

       See, e.g., Griffith, 59 N.E.3d at 955 (Ind. 2016). Accordingly, the trial court did

       not err under either the United States Constitution or the Indiana Constitution

       when it denied Bradley’s motion for discharge.


                                        Issue Two: Double Jeopardy

[23]   We next address Bradley’s argument that his convictions for Count 3, child

       molesting, as a Level 4 felony, and for Count 4, incest, as a Level 4 felony,

       violate his right to be free from double jeopardy under Indiana law. Article 1,

       Section 14 of the Indiana Constitution provides that “[n]o person shall be put in

       jeopardy twice for the same offense.” Our Supreme Court has interpreted that

       clause to prohibit multiple convictions based on the same “actual evidence used

       to convict.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). To determine
       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018   Page 12 of 21
       the actual evidence used to establish a conviction, we look to the “evidentiary

       facts” as they relate to “all” of the elements of both offenses. Spivey v. State, 761

       N.E.2d 831, 833 (Ind. 2002). In other words, the actual evidence test requires

       “the evidentiary footprint for all the elements required to prove one offense” to

       be “the same evidentiary footprint as that required to prove all the elements of

       another offense.” Thrash v. State, 88 N.E.3d 198, 208 (Ind. Ct. App. 2017)

       (quoting Berg v. State, 45 N.E.3d 506, 510 (Ind. Ct. App. 2015)).


[24]   Bradley’s convictions are not in violation of the actual evidence test under

       Article 1, Section 14. Bradley’s conviction for Count 1, child molesting, as a

       Level 1 felony, was based on the allegation that he had made T.S. touch his

       penis with her mouth. His conviction for Count 2, child molesting, as a Level 1

       felony, was based on the allegation that he had penetrated T.S.’s vagina with

       his finger. His conviction for Count 3 was based on “fondling or touching” of

       T.S. but, unlike his convictions for Counts 1 and 2, required the State to

       additionally prove that he had engaged in that fondling or touching with the

       intent to arose or satisfy his own sexual desires. Ind. Code § 35-42-4-3(b)

       (2018); Tr. Vol. II at 63. And his conviction for Count 4, unlike his other three

       convictions, required the State to additionally prove that Bradley was T.S.’s

       grandparent.3 I.C. § 35-46-1-3(a). As the “evidentiary footprints” of each of




       3
         In its brief on appeal, the State asserts that Bradley’s conviction for incest was based on evidence that he
       had anally penetrated T.S. with his finger. There is no such evidence in the record. See, e.g., Tr. Vol. II at 54
       (arguing, during the prosecutor’s rebuttal at closing argument, that the “evidence . . . of digital penetration”
       was of T.S.’s “genitals”). As such, we do not consider this purported evidentiary basis for Bradley’s
       conviction for incest.

       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018                         Page 13 of 21
       Bradley’s four convictions were not the same, his convictions do not run afoul

       of Article 1, Section 14.


[25]   However, the Indiana Supreme Court has also “long adhered to a series of rules

       of statutory construction and common law that are often described as double

       jeopardy[] but are not governed by the constitutional test set forth in

       Richardson.” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quotation

       marks omitted). One such rule prohibits “[c]onviction and punishment for a

       crime which consists of the very same act as another crime for which the

       defendant has been convicted and punished.” Id.


[26]   Although our Supreme Court has expressly identified that “very same act” test

       as distinct from the actual evidence test, id., Indiana’s subsequent case law4 has

       not clearly delineated the two tests or articulated how they might be different.

       For example, in Quiroz v. State, we held that “[t]he only evidence supporting”

       the defendant’s two convictions “consist[ed] of the very same act,” and, as

       such, his convictions were “improper under the Richardson actual evidence

       test.” 963 N.E.2d 37, 41 (Ind. Ct. App. 2012), trans. denied. On the other hand,

       in Taylor v. State, we acknowledged that the very same act test is different than

       the actual evidence test, and we held that the very same act test applies when

       the defendant’s “behavior” underlying one offense is “coextensive with the




       4
         Although the very same act test arises with some frequency in our Court, since adopting this test in Guyton
       the Indiana Supreme Court has not yet applied or otherwise revisited this category of our common-law
       double jeopardy protections.

       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018                     Page 14 of 21
       behavior . . . necessary to establish an element of” another offense. Taylor v.

       State, 101 N.E.3d 865, 972 (Ind. Ct. App. 2018).


[27]   While Taylor articulates a logical test to determine whether the very same act

       underlies multiple convictions, under that reasoning the actual evidence test is

       superfluous, as the evidentiary facts underlying only one element of multiple

       offenses is thus sufficient to find a double jeopardy violation. Cf. Spivey, 761

       N.E.2d at 833 (requiring the defendant to show, for purposes of establishing a

       double jeopardy violation under the actual evidence test, that the “evidentiary

       facts” as they relate to “all” of the elements of both offenses were the same).

       That is, a defendant cannot demonstrate a violation of the actual evidence test

       without showing the same act underlies both convictions, see id., but once the

       defendant has met that marginal burden there is no need to proceed to the other

       elements under the actual evidence test, see Taylor, 101 N.E.3d at 972.


[28]   Be that as it may, our Supreme Court has concluded that the very same act test

       is a test apart from the actual evidence test. Guyton, 771 N.E.2d at 1143. As

       such, following the reasoning of Taylor, we conclude that there is a reasonable

       possibility that the behavior underlying Bradley’s convictions for Count 1 and

       Count 2 was coextensive with the behavior underlying his convictions for

       Count 3 and Count 4. Although the “reasonable possibility” language is most

       commonly associated with the actual evidence test, see, e.g., Richardson, 717

       N.E.2d at 53, we have also used that language to determine whether a double

       jeopardy violation may have occurred under the very same act test, e.g.,

       Vandergriff v. State, 812 N.E.2d 1084, 1089-90 (Ind. Ct. App. 2004), trans. denied.

       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018   Page 15 of 21
       A “reasonable possibility” that the trier of fact used the same facts to reach two

       convictions requires substantially more than a logical possibility. Lee v. State,

       892 N.E.2d 1231, 1236 (Ind. 2008). “‘[R]easonable possibility’ turns on a

       practical assessment of whether the jury may have latched on to exactly the

       same facts for both convictions.” Id. In determining the facts used by the jury

       to establish the elements of each offense, we consider the charging information,

       jury instructions, and arguments of counsel. Id. at 1234.


[29]   Again, the act underlying Count 3 was Bradley’s “fondling or touching” of T.S.

       Appellant’s App. Vol. 2 at 22. Neither the charging information nor the jury

       instructions more specifically identified an act on which to base Count 3. And

       neither did the attorneys in their arguments to the jury. Indeed, in his rebuttal

       during closing arguments, the prosecutor expressly stated that Bradley wanted

       to “satisfy his sexual urges when he fondled her breasts, when he fondled her

       genitals, when he made her put her face on his genitals, and when he inserted

       the one finger into her vagina.” Tr. Vol. II at 59. The last two acts were the

       factual bases for Count 1 and Count 2, respectively.


[30]   The State argues that Count 3 might have been based on fondling or touching

       other than those acts that formed the bases of Count 1 and Count 2 and that it is

       speculation to surmise otherwise. But neither the charging information, the

       prosecutor’s arguments to the jury, nor the jury instructions directed the jury to

       consider for Count 3 only behavior other than the behavior that was the basis

       for Count 1 or Count 2. See, e.g., Lee, 892 N.E.2d at 1236; see also Tr. Vol. II at

       33-34, 59. To the contrary, again, during closing argument the prosecutor

       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018   Page 16 of 21
       conflated the factual bases for Count 1 and Count 2 with the basis for Count 3.

       Thus, it is reasonably possible that the jury latched onto the behavior that

       formed the bases for Count 1 and Count 2 as the factual predicate for Count 3.

       Accordingly, Bradley’s conviction for Count 3, child molesting, as a Level 4

       felony, is reversed.


[31]   The same analysis applies to Bradley’s conviction for Count 4. The behavior

       underlying Count 4 was the same behavior that the State alleged as the premise

       for Count 1 and Count 2. Indeed, in his closing argument, the prosecutor did

       not attempt to delineate a different act but, instead, informed the jury that if it

       found Bradley guilty on Count 1 and Count 2 then the incest allegation was a

       “slam dunk.” Tr. Vol. II at 34. We reverse Bradley’s conviction for Count 4,

       incest, as a Level 4 felony.


                                    Issue Three: Admission of Evidence

[32]   We next consider Bradley’s argument that the trial court abused its discretion

       when it prohibited him from introducing A.S.’s testimony from the first trial to

       impeach her during the second trial. We review a trial court’s evidentiary

       rulings for an abuse of discretion. Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017).

       “An abuse of discretion occurs when the ruling is clearly against the logic and

       effect of the facts and circumstances.” Id.


[33]   According to Bradley, A.S.’s testimony at the first trial was inconsistent with

       her testimony at the second trial. As such, he continues, the prior testimony

       was admissible as a prior inconsistent statement, and the refusal to admit that


       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018   Page 17 of 21
       testimony impaired his right to cross-examine A.S. and present his defense. We

       cannot agree that the trial court was obliged to admit A.S.’s prior testimony.


[34]   Prior to Bradley’s second trial, the trial court excluded A.S.’s first testimony on

       the basis that she lacked personal knowledge of any penetration and, thus, her

       answer to Bradley’s question was the product of hearsay. The trial court’s

       assessment is correct, and Bradley does not suggest otherwise on appeal.

       Rather, he instead asserts that the hearsay was reliable as an excited utterance

       from T.S., but he made no offer of proof to the trial court on that theory.

       Further, Bradley makes no argument on appeal that he has a constitutional

       right to present otherwise inadmissible hearsay evidence. See App. R.

       46(A)(8)(a). As such, we cannot say that the trial court abused its discretion

       when it excluded A.S.’s prior statement. See also Snow, 77 N.E.3d at 177

       (noting that “discretion means that, in many cases, trial judges have options.

       They can admit or exclude evidence, and we won’t meddle with that decision

       on appeal.”).


                                 Issue Four: Sufficiency of the Evidence

[35]   We next turn to Bradley’s argument that the State failed to present sufficient

       evidence to support his convictions. As we have already determined that

       Bradley’s convictions for Count 3 and Count 4 must be vacated under double

       jeopardy principles, we limit our review of this issue to Bradley’s convictions

       for Count 1 and Count 2. In our review of sufficiency issues, “we examine only

       ‘the probative evidence and reasonable inferences’ that support the verdict.”


       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018   Page 18 of 21
       Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (quoting Drane v. State, 867 N.E.2d

       144, 146 (Ind. 2007)).


[36]   The State presented sufficient evidence to support Bradley’s conviction for

       Count 1, which required the State to show that Bradley had engaged in an act

       that involved his penis and T.S.’s mouth.5 In her recorded statement to

       Elfreich, which was played to the jury, T.S. stated that Bradley touched his

       penis against “all of” the parts of her face. State’s Ex. 1 at 16:21. As the

       prosecutor suggested during his closing argument, that includes the mouth. We

       agree and hold that the State presented sufficient evidence to support Count I.

       See, e.g., Meehan v. State, 7 N.E.3d 255, 258-59 (Ind. 2014).


[37]   The State also presented sufficient evidence to support Bradley’s conviction for

       Count 2, which required the State to show that Bradley had penetrated T.S.’s

       vagina with his finger.6 Again, in her recorded statement to Elfreich, T.S. stated

       that Bradley had done just that. As such, the State presented sufficient evidence

       to support Bradley’s conviction for Count 2.


[38]   Nonetheless, Bradley argues on appeal that we should disregard T.S.’s

       statements under the incredible dubiosity rule. Under that rule, “a court will

       impinge on the jury’s responsibility to judge the credibility of witnesses only

       when it has confronted ‘inherently improbable’ testimony or coerced,




       5
           Bradley does not challenge the sufficiency of the State’s evidence on the other elements of this conviction.
       6
           Bradley does not challenge the sufficiency of the State’s evidence on the other elements of this conviction.

       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018                         Page 19 of 21
       equivocal, wholly uncorroborated testimony of ‘incredible dubiosity.’” Moore v.

       State, 27 N.E.3d 749, 755 (Ind. 2015) (quoting Tillman v. State, 642 N.E.2d 221,

       223 (Ind. 1994)). But, for the incredible dubiosity rule to apply, there must be,

       among other things, a “sole testifying witness.” Id. at 756. That is not the case

       here, where D.B. testified and at least partly corroborated T.S.’s experience

       with Bradley. And insofar as Bradley asserts on appeal that D.B.’s testimony or

       other evidence presented by the State should not have been given weight by the

       jury, we will not consider such arguments. We affirm Bradley’s convictions for

       Count 1 and Count 2.


                                       Issue Five: Fundamental Error

[39]   Finally, Bradley asserts that the trial court committed fundamental error when

       it did not intervene during closing arguments after the prosecutor had stated

       that Bradley had “a guilty look on his face because he’s guilty.” Tr. Vol. II at

       37. Because Bradley did not preserve this issue by objecting and requesting an

       admonishment from the trial court, to succeed on appeal he must demonstrate

       that fundamental error occurred. E.g., Dumas v. State, 803 N.E.2d 1113, 1117-

       18 (Ind. 2004). Fundamental error is an “extremely narrow” exception to the

       usual rule of waiver and “encompasses only errors so blatant that the trial judge

       should have acted independently to correct the situation.” Durden v. State, 99

       N.E.3d 645, 652 (Ind. 2018) (quotation marks omitted). Fundamental error is

       error that “made a fair trial impossible or constituted a clearly blatant violation

       of basic and element principles of due process presenting an undeniable and

       substantial potential for harm.” Id. (quotation marks omitted).

       Court of Appeals of Indiana | Opinion 87A01-1711-CR-2584 | October 30, 2018   Page 20 of 21
[40]   Bradley has not met that high burden. While we do not approve of the

       prosecutor’s comment, the comment was de minimis and did not make a fair

       trial impossible. We affirm.


                                                  Conclusion
[41]   In sum, we affirm Bradley’s convictions for Count 1, child molesting, as a Level

       1 felony, and Count 2, child molesting, as a Level 1 felony. However, as it is

       reasonably possible that the jury found Bradley guilty on Count 3 and Count 4

       for the very same acts that were the bases of his convictions for Count 1 and

       Count 2, we reverse Bradley’s convictions for Count 3, child molesting, as a

       Level 4 felony, and Count 4, incest, as a Level 4 felony. We remand with

       instructions that the trial court vacate Bradley’s convictions and sentences on

       Count 3 and Count 4 accordingly.


[42]   Affirmed in part, reversed in part, and remanded with instructions.


       Crone, J., and Pyle, J., concur.




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