MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Apr 27 2020, 6:39 am
regarded as precedent or cited before any                                     CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                           Curtis T. Hill, Jr.
Brownsburg, Indiana                                       Attorney General of Indiana

                                                          George P. Sherman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Northerner,                                          April 27, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1994
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Grant W.
Appellee-Plaintiff                                        Hawkins, Judge
                                                          Trial Court Cause No.
                                                          49G05-1701-F1-264



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020                    Page 1 of 21
[1]   John Northerner appeals his convictions of two counts of Level 1 felony child

      molesting; 1 three counts of Level 4 felony child molesting; 2 two counts of Class

      A felony child molesting; 3 and one count of Class C felony child molesting. 4

      He raises four issues, which we revise, reorder, and restate as:


             1.       Whether the State’s medical expert gave improper opinion testimony,

                      resulting in fundamental error;


             2.       Whether the trial court erred in denying Northerner’s motion for a

                      mistrial;


             3.       Whether the State committed prosecutorial misconduct during closing

                      argument, resulting in fundamental error; and


             4.       Whether the State presented sufficient evidence to sustain his

                      convictions.


      We affirm.



                                 Facts and Procedural History




      1
          Ind. Code § 35-42-4-3(a) (2014 & 2015) (change in statute effective July 1, 2015, not material in case at bar).
      2
          Ind. Code § 35-42-4-3(b) (2014 & 2015) (change in statute effective July 1, 2015, not material in case at bar).
      3
          Ind. Code § 35-42-4-3(a) (2007).
      4
          Ind. Code § 35-42-4-3(b) (2007).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020                        Page 2 of 21
[2]   Northerner is the uncle of both E.E. and S.M.M. Northerner’s wife, Aumanda

      Northerner, is the sister of their mother, Shannon Strong. Northerner and

      Aumanda have two daughters, N.A.N. and N.I.N. E.E. and S.M.M. live

      primarily with Strong. However, from shortly after S.M.M. was born until she

      was about thirteen years old, S.M.M. would regularly stay the night at

      Northerner’s house in Indianapolis. E.E. would also regularly spend the night

      at Northerner’s house beginning shortly after she was born. E.E. has ADHD

      and is on the spectrum for autism. E.E. was twelve years old at the time of

      trial, and S.M.M. was seventeen years old.


[3]   In July or August 2012, S.M.M. spent the night at Northerner’s house.

      S.M.M., N.A.N., and N.I.N. were sleeping on the floor in the living room.

      S.M.M. woke up during the middle of the night. When she woke up, she felt

      Northerner’s fingers in her vagina. Her pants and underwear were pulled down

      to her ankles, and her blanket had been removed. Northerner was kneeling

      near her feet and had a beer bottle sitting next to him. S.M.M. did not scream,

      yell, or say anything because she was scared. S.M.M. heard footsteps on the

      floor as Aumanda walked out of her bedroom. Northerner then put the blanket

      back over S.M.M. and left the living room. S.M.M. went to the bathroom and

      noticed a couple drops of blood on her underwear. S.M.M. did not tell anyone

      what happened until years later.


[4]   When E.E. was six years old, she spent the night at Northerner’s house. E.E.

      and S.M.M. slept on the living room floor while N.A.N., N.I.N., and two of

      their friends slept on the couch. E.E. woke up when she felt Northerner rolling

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 3 of 21
      her from her side to her back. Northerner was kneeling by E.E. and had a beer

      with him. He pulled E.E.’s blanket off her, and he pulled her pants and

      underwear down to her ankles. Northerner then pulled his pants down and

      inserted his penis into E.E.’s vagina. E.E. did not say anything. Eventually, a

      timer went off in the kitchen. When Aumanda walked from her bedroom to the

      kitchen, Northerner pulled up E.E.’s pants and underwear. He also pulled up

      his own pants and went into the kitchen. Northerner and Aumanda then

      retired to their bedroom.


[5]   Later that night, Northerner came back into the living room. Northerner pulled

      down E.E.’s pants and underwear. He also pulled down his own pants.

      Northerner put his mouth on E.E.’s vagina, and E.E. felt Northerner’s tongue

      move from side to side. After about four minutes, Northerner stopped. E.E.

      did not say anything during the encounter, and she went back to sleep when it

      was over.


[6]   E.E. continued to visit Northerner’s house and play with N.A.N. and N.I.N.

      When E.E. was eight, Northerner told E.E. that he wanted to show her

      something in their finished basement. Aumanda, N.A.N., and N.I.N. stayed

      upstairs, but E.E. and Northerner went down to the basement. E.E. sat on a

      couch in the basement. Northerner then pulled E.E.’s pants and underwear

      down to her ankles. Northerner also pulled down his own pants and inserted

      his penis into E.E.’s vagina for about four minutes.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 4 of 21
[7]   Another time, E.E. and Northerner were in a bathroom in the basement. There

      was a “spinning chair” with a footrest in the bathroom. (Tr. Vol. II at 97.) The

      chair was like those commonly found in hair salons. E.E. was sitting in the

      chair and Northerner was standing in front of her. Northerner asked E.E. to

      pull her pants down, but she refused. Northerner then pulled down her pants

      and underwear. Northerner also pulled down his own pants and underwear.

      He then inserted his tongue into E.E.’s vagina and moved it from side to side.

      Next, Northerner put his penis in E.E.’s vagina. They then heard what

      sounded like N.A.N. and N.I.N. coming down into the basement. E.E. pulled

      up her pants and underwear, and Northerner did the same. N.A.N. and N.I.N.

      did not end up coming downstairs, and E.E. and Northerner went upstairs to

      the main level of the house.


[8]   When E.E. was eight, she was playing with her cousins in a small pool in the

      front lawn of the Northerner’s house. The pool was above-ground,

      approximately three feet high, and inflatable. E.E. left the pool to go inside the

      house to use the bathroom. Northerner stopped E.E. while she was inside and

      instructed her to sit on a couch. He then shut the blinds on the window facing

      out into the front yard. Northerner stood in front of E.E. and pulled down his

      pants. He pulled down E.E.’s swimsuit and inserted his penis into her vagina.

      Northerner then told E.E., “Put your mouth on my penis.” (Id. at 104.) 5




      5
          E.E.’s testimony at trial does not indicate whether she complied with this request.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020            Page 5 of 21
[9]    Later that same summer, E.E., N.A.N., N.I.N., and two friends were playing in

       the pool. E.E. got something in her eye. She left the pool and grabbed a towel

       near the side of the house. Northerner asked her to sit next to him on an

       outside bench near the front lawn, facing the pool. Northerner unzipped his

       pants and exposed his penis. He then asked E.E. to perform fellatio, and E.E.

       did so. While this was going on, the other girls were playing a “mermaid

       game” in the pool, which involved staying mostly underwater. (Id. at 107.)


[10]   During Thanksgiving weekend 2016, E.E. stayed at Northerner’s house from

       Thursday night until Sunday. On Sunday, Northerner took E.E. back to

       Strong’s house. During the ride, Northerner unzipped his pants and exposed

       his penis. He asked E.E. to per her mouth on his penis, and she did so. Also,

       during the car ride, Northerner inserted his fingers into E.E.’s vagina. E.E. felt

       Northerner’s fingers move around in her vagina. Northerner directed E.E. not

       to tell anyone about what happened in the car. Strong noticed E.E.’s return

       was irregular in that Northerner returned E.E. to her home later than usual and

       Northerner did not walk E.E. to the door, as was his routine. Later that

       evening, E.E. told Strong that her vagina hurt.


[11]   E.E. went to visit her Aunt Norma and Uncle Chris the following weekend.

       Uncle Chris is the brother of E.E.’s father. During the visit, E.E. told her

       cousin S.A.E. that she was bleeding. S.A.E. gave E.E. a pad. Norma was

       away from the house when this conversation between S.A.E. and E.E.

       happened, but S.A.E. relayed the conversation to Norma when she returned to

       the house. Norma was concerned because E.E. was only nine years old at the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 6 of 21
       time and too young to have started having her period. Norma then talked to

       E.E. privately. E.E. told Norma she had something she wanted to say, but E.E.

       wanted to wait until after her basketball game. After the game, Norma and

       Chris took E.E. home with them, and E.E. described what Northerner had

       done to her. Norma called the police, and E.E. spoke with Officer Justin Gray

       of the Indianapolis Metropolitan Police Department. Dr. Shannon Thompson

       later examined E.E. at Riley Children’s Hospital and diagnosed E.E. with a

       history of sexual abuse. E.E. did not display any physical signs of sexual abuse

       during the exam.


[12]   The State charged Northerner with one count of Class A felony child molesting

       for acts against S.M.M. For acts against E.E., the State charged Northerner

       with two counts of Level 1 felony child molesting; three counts of Level 4

       felony child molesting; and one count each of Class A felony child molesting;

       Class C felony child molesting; Level 5 felony criminal confinement; 6 and Level

       6 felony strangulation. 7 The court held a jury trial from June 3 to June 5, 2019.

       The jury returned verdicts of not guilty of criminal confinement, strangulation,

       and one count of Level 4 felony child molesting. 8 The jury returned verdicts of




       6
           Ind. Code § 35-42-3-3.
       7
           Ind. Code § 35-42-2-9.
       8
        This count concerned an allegation that Northerner exposed himself and directed E.E. to perform oral sex
       on him while he was driving.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020                 Page 7 of 21
       guilty on all remaining counts. The trial court sentenced Northerner to an

       aggregate term of seventy years.



                                  Discussion and Decision
                                  1. Dr. Thompson’s Testimony
[13]   Northerner argues Dr. Thompson impermissibly testified as to the truthfulness

       of E.E.’s allegations, which he contends amounts to fundamental error. We

       generally review a trial court’s decision on the admission or exclusion of

       evidence for an abuse of discretion. Hill v. State, 51 N.E.3d 446, 450 (Ind. Ct.

       App. 2016). A trial court abuses its discretion if the decision “is clearly

       erroneous and against the logic and effect of the facts and circumstances before

       it.” Id. A party waives a claim of error on appeal by not objecting at the trial

       court level. Quiroz v. State, 963 N.E.2d 37, 42 (Ind. Ct. App. 2012), trans. denied.

       Nonetheless, a party may still advance a procedurally defaulted claim on direct

       appeal if the error amounts to fundamental error. Jewell v. State, 887 N.E.2d

       939, 942 (Ind. 2008). However,


               fundamental error is extremely narrow and available only when
               the record reveals a clearly blatant violation of basic and
               elementary principles, where the harm or potential for harm
               cannot be denied, and which violation is so prejudicial to the
               rights of the defendant as to make a fair trial impossible.


       Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 8 of 21
[14]   Indiana Evidence Rule 704(b) states: “Witnesses may not testify to opinions

       concerning intent, guilt, or innocence in a criminal case; the truth or falsity of

       allegations; whether a witness has testified truthfully; or legal conclusions.”

       This rule protects the fact-finding function of the jury. “The jury, not the

       witness, is responsible for deciding the ultimate issues in a trial, and opinion

       testimony concerning guilt ‘invades the province of the jury in determining

       what weight to place on a witness’ testimony.’” Williams v. State, 43 N.E.3d

       578, 581 (Ind. 2015) (quoting Blanchard v. State, 803 N.E.2d 14, 34 (Ind. Ct.

       App. 2004)).


[15]   Northerner argues Dr. Thompson impermissibly testified as to the truth of

       E.E.’s allegations in response to a juror’s question.


               [Court:] I think this is a process question. Abuse is reported, you
               get the—you do the physical exam and it’s—it’s a normal
               finding. How do you come up with a—a diagnosis of abuse?


               [Dr. Thompson:] So the way we come up with a diagnosis is the
               totality of the allegations, because we know so much about
               sexual abuse and physical exams and the findings that are there
               and how children can act and not act, this—the history is the
               single most important part of that. So an accurate allegation or
               history provided for sexual abuse is the main way that diagnosis
               is made and that child is treated accordingly.


       (Tr. Vol. III at 50.) Northerner contends that Dr. Thompson’s diagnosis of a

       history of sexual abuse amounts to an opinion that E.E.’s allegations were

       credible.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 9 of 21
[16]   The following exchange occurred before the jury was given the opportunity to

       ask questions, during Northerner’s counsel’s cross-examination of Dr.

       Thompson:


               [Counsel:] You made your diagnosis that she had been molested
               because she told you she’d been—she said she’d been molested,
               right?


               [Dr. Thompson:] I made my diagnosis based on the history that
               was provided about her allegation.


               [Counsel:] Right. The history provided about her allegation was
               that she told people she had been molested, right?


               [Dr. Thompson:] That she had a forensic—forensic history—
               exam and she gave disclosure to her family, yes.


               [Counsel:] Just so we’re clear, forensic history is her telling
               somebody that it happened?


               [Dr. Thompson:] Correct.


       (Id. at 43.) Thus, Dr. Thompson testified that her diagnosis of E.E.’s history of

       sexual abuse was based on E.E.’s self-report.


[17]   The juror’s question regarding how Dr. Thompson typically diagnosed a history

       of sexual abuse allowed Dr. Thompson to explain that such diagnoses were

       typically based on the victim’s self-report. In fact, Northerner’s counsel

       attempted to cast doubt on the reliability of Dr. Thompson’s diagnosis during

       closing argument. (See id. at 126 (“In this case, [Dr. Thompson] did a physical

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 10 of 21
       exam—there’s no evidence of abuse. None. Her conclusion? There was abuse.

       Why? ‘Cause the girl said she was abused. That’s not much of system if you

       ask me, but that’s the way they do it.”).) Dr. Thompson’s testimony regarding

       the process for making her diagnosis of E.E did not encroach on the jury’s fact-

       finding function. She did not testify that she believed E.E. In fact, she

       illustrated that a diagnosis of sexual abuse is based largely on the patient’s self-

       report rather than an objective evaluation of the credibility of the patient’s

       claims. Therefore, we hold Dr. Thompson did not give improper opinion

       testimony. See State v. Velasquez, 944 N.E.2d 34, 46 (Ind. Ct. App. 2011)

       (holding psychologist’s testimony that child victim exhibited behaviors

       consistent with post-traumatic stress disorder did not constitute impermissible

       vouching testimony), trans. granted, opinion vacated, order vacated, trans. denied.


                             2. Northerner’s Motion for Mistrial
[18]   Northerner argues he did not receive a fair trial because the State asked

       questions that he believes implied he began a sexual relationship with his wife,

       Aumanda, while she was still underage. Northerner testified that he was fifty-

       five years old at the time of trial and that he lived in a house on Tade Lane with

       his wife and two daughters. On cross-examination, the State asked Northerner,

       “when your wife moved in with you, did she move into that address at Tade

       Lane or did she move into the other houses that you discussed?” (Tr. Vol. III at

       87.) Northerner’s counsel objected, and the court held a bench conference.

       Northerner’s counsel raised a concern that the State was preparing to ask

       Northerner how old his wife was when she started dating him. The court ruled

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 11 of 21
that asking which house Aumanda moved into when she first started living with

Northerner was permissible, but the court directed the State to “stay away from

how old she is.” (Id. at 89.) Following the bench conference, the following

exchange occurred:


        [State:] And, sir, when she moved in with—with you, was that to
        the address on Tade Lane or was that somewhere else?


        [Northerner:] She—when she moved in with me, yes, I was
        living on Tade Lane.


        [State:] And approximately when was that?


        [Northerner:] I’m thinking, like, 15 years ago.


        [State:] Okay. And you knew your wife for quite a while before
        that; is that correct?


        [Northerner’s Counsel:] Objection, Your Honor.


        [Court:] Sustained.


        [State:] Judge, I asked if he knew her before she moved in. How
        is that—


        [Court:] Well, I’m hopin’ that he knew her before she moved in,
        but—


        [State:] As do I.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 12 of 21
               [Court:] –you’re not—but we’re not—but we’re not gonna go
               there.


               [State:] How old was your wife when you met her?


               [Northerner’s Counsel:] Objection, Your Honor.


               [Court:] Sustained.


               [State:] Let’s back up. How old is your wife right now?


               [Northerner’s Counsel:] Your Honor—


               [Court:] Sustained.


       (Id. at 89-90.) In a hearing outside the presence of the jury, Northerner moved

       for a mistrial, and the trial court denied his motion. The court explained,

       “Well, the jury has been instructed that questions are not evidence, only

       answers of—[sic] evidence. They’ve heard no answers.” (Id. at 91.) Further,

       the court stated, “I don’t think your client’s been put in a position of grave

       peril.” (Id.)


[19]   A mistrial is an extreme remedy meant to be granted only when no other relief

       can adequately correct an error. Mickens v. State, 742 N.E.2d 927, 929 (Ind.

       2001). “Whether to grant or deny a motion for a mistrial is a decision left to the

       sound discretion of the trial court. We will reverse the trial court’s ruling only

       upon an abuse of that discretion.” Stokes v. State, 919 N.E.2d 1240, 1243 (Ind.

       Ct. App. 2010) (internal citation omitted), trans. denied. “In determining

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 13 of 21
       whether a mistrial was warranted, we consider whether the defendant ‘was

       placed in a position of grave peril to which he should not have been subjected.’

       The gravity of the peril is determined by ‘the probable persuasive effect on the

       jury’s decision.’” Brooks v. State, 934 N.E.2d 1234, 1243 (Ind. Ct. App. 2010)

       (quoting Leach v. State, 699 N.E.2d 641, 644 (Ind. 1998)), reh’g denied, trans.

       denied.


[20]   Northerner argues the State’s questions amount to an “evidentiary harpoon”

       meant to insinuate he had sexual relations with Aumanda when she was

       underage and before they were married. (Appellant’s Br. at 29.) An evidentiary

       harpoon can be so damaging as to require a mistrial. Roberts v. State, 712

       N.E.2d 23, 34 (Ind. Ct. App. 1999), trans. denied. “An evidentiary harpoon is

       the placing of inadmissible evidence before the jury so as to prejudice the jurors

       against the defendant.” Perez v. State, 728 N.E.2d 234, 237 (Ind. Ct. App.

       2000), trans. denied. The defendant must demonstrate “1) the prosecution acted

       deliberately to prejudice the jury and 2) the evidence was inadmissible.” Jewell

       v. State, 672 N.E.2d 417, 424 (Ind. Ct. App. 1996), trans. denied. The defendant

       is not required to show that he would not have been convicted absent the

       evidentiary harpoon. Id. Rather, he “need only show that he was placed in a

       position of grave peril to which he should not have been subjected.” Id.


[21]   Northerner contends the State acted deliberately to prejudice him by repeatedly

       asking questions related to Aumanda’s age after the court directed the deputy

       prosecutor not to do so. Northerner argues the State’s questions about

       Aumanda’s age insinuated to the jury that Northerner committed prior acts of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 14 of 21
       molestation. We do not condone the State’s decision to ask Northerner

       questions about how old his wife was when he met her, how old his wife was at

       the time of trial, and how long Northerner knew his wife before she moved in

       with him after the trial court explicitly directed the State not to ask about

       Aumanda’s age. These questions brought unnecessary attention to the age

       disparity between Northerner and his wife.


[22]   Nonetheless, the jury did not hear answers to the State’s questions about

       Aumanda’s age. It is entirely speculative to conclude that the jury deduced

       from the State’s questions that she and Northerner started dating when she was

       underage. See Rose v. State, 36 N.E.3d 1055, 1060 (Ind. Ct. App. 2015) (noting a

       purely speculative argument does not serve as a basis for reversal). Therefore,

       we hold the State’s questions could not have had such a persuasive effect on the

       jury as to require a mistrial. See DeBerry v. State, 659 N.E.2d 665, 669 (Ind. Ct.

       App. 1995) (holding defendant was not subjected to grave peril by state

       trooper’s testimony).


                                   3. Prosecutorial Misconduct
[23]   Northerner argues the deputy prosecutor committed prosecutorial misconduct

       by improperly vouching for the victims during closing argument and by making

       comments not supported by the evidence. A defendant must object at trial to a

       prosecutor’s improper argument and request an admonishment in order to

       properly preserve a claim of prosecutorial misconduct. Neville v. State, 976

       N.E.2d 1252, 1258 (Ind. Ct. App. 2012), trans. denied. If an admonishment is


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 15 of 21
       not given or is insufficient, then the defendant must move for a mistrial. Id.

       We evaluate a properly preserved claim of prosecutorial misconduct by looking

       at “(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 or she would not have been subjected’ otherwise.” Ryan v. State, 9

       N.E.3d 663, 667 (Ind. 2014) (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind.

       2006)), reh’g denied. However, if a defendant fails to object to alleged

       prosecutorial misconduct at the trial level, we will reverse only if the alleged

       misconduct amounts to fundamental error. Gregory v. State, 885 N.E.2d 697,

       706 (Ind. Ct. App. 2008), trans. denied. Northerner did not object during the

       State’s closing argument, but he argues on appeal that the deputy prosecutor’s

       comments constitute fundamental error.


[24]   Northerner argues the deputy prosecutor improperly vouched for E.E.’s and

       S.M.M.’s credibility during closing argument. The deputy prosecutor

       commented that E.E. and S.M.M. “were able to give us details of adult sexual

       conduct. And the reason that that is important is because you can’t lie about

       what you don’t know about.” (Tr. Vol. III at 113-14.) Further, the deputy

       prosecutor also noted that E.E. and S.M.M. would have to be “evil” to falsely

       accuse Northerner of molestation and stick with their stories for years despite

       being questioned by multiple people multiple times about the allegations. (Id.

       at 132.)


[25]   We look to caselaw and the Code of Professional Responsibility to determine if

       misconduct occurred. Bassett v. State, 895 N.E.2d 1202, 1208 (Ind. 2008), cert.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 16 of 21
       denied 556 U.S. 1171 (2009). “In arguments to the jury, a prosecutor can state

       and discuss the evidence and reasonable inferences that can be derived

       therefrom so long as there is no implication of personal knowledge that is

       independent of the evidence.” Emerson v. State, 952 N.E.2d 832, 837 (Ind. Ct.

       App. 2011), trans. denied. This includes commenting on a witness’ credibility if

       the assertions are supported by the evidence. Neville, 976 N.E.2d at 1260. In

       the comments above, the deputy prosecutor did not assert independent

       knowledge of the truthfulness of E.E. or S.M.M. Her comments were logical

       conclusions drawn from the evidence. Ryan v. State, 9 N.E.3d at 671 (holding it

       was not prosecutorial misconduct for deputy prosecutor to assert the victim was

       telling the truth when evidence suggested she was being honest), reh’g denied.


[26]   Additionally, Northerner contends the State asserted facts not in evidence

       during closing argument. The deputy prosecutor argued that Northerner

       molested E.E. more times than he molested S.M.M. because E.E.’s medical

       problems made her vulnerable and less believable. Also, during closing

       argument, the deputy prosecutor commented, “[a]nd I would note for you that

       this first incident with EE and the only incident that we have with SMM, both

       involved alcohol or I guess we could say a little liquid courage on the part of the

       defendant.” (Id. at 111.) 9 Further, the deputy prosecutor asserted that

       Northerner molested E.E. and S.M.M. even though his children were sleeping



       9
         “Liquid courage” is an idiom referring to the “decrease in timidity or inhibition that comes from imbibing
       alcoholic beverages.” Liquid courage, Farlex Dictionary of Idioms (2015).
       https://idioms.thefreedictionary.com/liquid+courage [https://perma.cc/MCB7-5SRA]

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020                  Page 17 of 21
       in the same room because he knew his children were deep sleepers. While there

       was no direct testimony of Northerner’s knowledge of his daughters’ sleep

       habits or why he had beer during two of the incidents, all the deputy

       prosecutor’s comments comport with common sense. A criminal may logically

       choose a victim that minimizes the chance of resistance or risk of getting

       caught. A father likely understands how well his children sleep, and it is not

       uncommon for someone to engage in risky behavior after consuming alcohol.

       Therefore, we hold the State’s comments during closing argument did not

       constitute misconduct, let alone fundamental error. See Ramsey v. State, 853

       N.E.2d 491, 501 (Ind. Ct. App. 2006) (holding comment made during closing

       argument was permissible comment on the evidence and not prosecutorial

       misconduct), trans. denied.


                                  4. Sufficiency of the Evidence
[27]   Northerner contends the State presented insufficient evidence to sustain his

       convictions. In assessing whether there was sufficient evidence to support a

       conviction, we consider the probative evidence in the light most favorable to the

       verdict. Burns v. State, 91 N.E.3d 635, 641 (Ind. Ct. App. 2018). “It is the fact-

       finder’s role, not that of appellate courts, to assess witness credibility and weigh

       the evidence to determine whether it is sufficient to support a conviction.”

       Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). “Reversal is appropriate only

       when no reasonable fact-finder could find the elements of the crime proven

       beyond a reasonable doubt. Thus, the evidence is not required to overcome

       every reasonable hypothesis of innocence and is sufficient if an inference may

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 18 of 21
       reasonably be drawn from it to support the verdict.” Burns, 91 N.E.3d at 641

       (internal citation omitted).


[28]   A person commits child molesting as a Level 1 felony if the person is older than

       twenty-one years of age, and with a child less than fourteen years of age,

       “knowingly or intentionally performs or submits to sexual intercourse or other

       sexual conduct[.]” Ind. Code § 35-42-4-3(a) (2014). “Other sexual conduct” is

       defined as “an act involving: (1) a sex organ of one (1) person and the mouth or

       anus of another person; or (2) the penetration of the sex organ or anus of a

       person by an object.” Ind. Code § 35-31.5-2-221.5 (2014). If the act was

       committed prior to July 1, 2014, the conduct constitutes a Class A felony. Ind.

       Code § 35-42-4-3(a) (2007). 10 A person commits child molesting as a Level 4

       felony if the person “with a child under fourteen (14) years of age, performs or

       submits to any fondling or touching, of either the child or the older person, with

       intent to arouse or to satisfy the sexual desires of either the child or the older

       person[.]” Ind. Code § 35-42-4-3(b) (2014). If the fondling or touching

       occurred prior to July 1, 2014, the conduct constitutes a Class C felony. Ind.

       Code § 35-42-4-3(b) (2007).


[29]   Northerner argues the State should have been required to provide testimony to

       corroborate his victims’ testimonies. However, we are bound to follow the




       10
         Prior to July 1, 2014, Ind. Code § 35-42-4-3(a) referenced “deviate sexual conduct” rather than “other
       sexual conduct.” Compare Ind. Code § 35-42-4-3(a) (2014) with Ind. Code § 35-42-4-3(a) (2007). However,
       “deviate sexual conduct” and “other sexual conduct” refer to the same conduct. Compare Ind. Code § 35-
       31.5-2-94 (2012) (repealed 2014) with Ind. Code § 35-31.5-2-221.5 (2014).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020               Page 19 of 21
       decisions of our Indiana Supreme Court. See Dragon v. State, 774 N.E.2d 103,

       107 (Ind. Ct. App. 2002) (“Supreme court precedent is binding upon us until it

       is changed either by that court or by legislative enactment.”), trans. denied. Our

       Indiana Supreme Court has explained that “[a] molested child’s uncorroborated

       testimony is sufficient to sustain a conviction.” Carter v. State, 754 N.E.2d 877,

       880 (Ind. 2001), reh’g denied. Therefore, we will follow our Supreme Court’s

       directive and not impose a corroboration requirement.


[30]   Northerner asserts E.E.’s and S.M.M.’s descriptions of being molested by him

       “run counter to human experience and basic common sense.” (Appellant’s Br.

       at 22.) Northerner testified he never touched either E.E. or S.M.M.

       inappropriately, and he denied ever having intercourse with E.E. However, it is

       the province of the jury to weigh the conflicting evidence and to assess what to

       believe. See Scott v. State, 867 N.E.2d 690, 694 (Ind. Ct. App. 2007) (“We must

       respect the jury’s exclusive province to weigh conflicting evidence[.]”), trans.

       denied.


[31]   S.M.M. testified that Northerner molested her, and E.E. testified that

       Northerner molested her multiple times under several different circumstances.

       A reasonable juror could believe that a sex offender would molest a child even

       though other people are close by, especially if the other people are asleep, in

       another room, or distracted. See Leyva v. State, 971 N.E.2d 699, 702 (Ind. Ct.

       App. 2012) (holding child’s testimony that defendant molested her while others

       were sleeping in the same room was not incredibly dubious and sufficient

       evidence supported defendant’s conviction), trans. denied. Sufficient evidence

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 20 of 21
       supports Northerner’s convictions, and we will not reweigh the evidence or

       assess witness credibility. See Drane, 867 N.E.2d at 148 (holding sufficient

       evidence supported convictions for rape and murder even though defendant

       testified he did not commit the crimes).



                                               Conclusion
[32]   The trial court did not abuse its discretion when it admitted Dr. Thompson’s

       testimony because it was not improper opinion testimony. Further, the trial

       court did not abuse its discretion in denying Northerner’s motion for a mistrial,

       and the deputy prosecutor did not commit misconduct during closing

       argument. Given current Indiana Supreme Court precedent, we will not

       impose an additional corroboration requirement in cases involving abuse of a

       minor. Therefore, we affirm.


[33]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1994 | April 27, 2020   Page 21 of 21
