MEMORANDUM DECISION                                                          FILED
                                                                        Mar 22 2016, 9:42 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                             CLERK
this Memorandum Decision shall not be                                    Indiana Supreme Court
                                                                            Court of Appeals
regarded as precedent or cited before any                                     and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
Hilary Bowe Ricks
Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Fred Baumgardner,                                        March 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1507-CR-917
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Annie Christ-
Appellee-Plaintiff.                                      Garcia, Judge
                                                         The Honorable Ronnie Huerta,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49F24-1302-FD-12186



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016             Page 1 of 11
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Fred Baumgardner (Baumgardner), appeals his

      conviction for sexual battery, a Class D felony, Ind. Code § 35-42-4-8(a)(1)(A)

      (2013), and battery, a Class B misdemeanor, I.C. § 35-42-2-1(a).


[2]   We affirm.


                                                    ISSUE

[3]   Baumgardner raises one issue on appeal, which we restate as follows: Whether

      the State committed prosecutorial misconduct by improperly vouching for its

      own witness.


                           FACTS AND PROCEDURAL HISTORY

[4]   On January 19, 2013, Baumgardner and his long-time friend and former sexual

      partner, D.G., met for dinner, watched a performance, and each consumed

      approximately four drinks and three shots of alcoholic beverages. At some

      point after midnight, they went to Baumgardner’s residence, and D.G. asked

      Baumgardner if he could spend the night there because he did not want to risk

      driving intoxicated. They went downstairs to Baumgardner’s room in the

      basement where they removed their pants and laid down on Baumgardner’s

      bed. Baumgardner attempted to interest D.G. in sexual intercourse, but D.G.

      refused stating that he had a boyfriend. After kissing D.G.’s neck and lips,

      Baumgardner pulled D.G.’s underwear down and “grabbed [his] penis.”

      (Transcript p. 16). D.G. continued to resist, but Baumgardner, while “holding


      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016   Page 2 of 11
      [D.G.] down” with one hand, “[spat] into his [other] hand[,] put it on his

      penis[,] and inserted it into [D.G.’s] anus.” (Tr. pp. 17-18). Baumgardner kept

      repeating to D.G., “[W]hat your boyfriend doesn’t know won’t hurt him.” (Tr.

      p. 18). D.G. finally “lost it”—he rolled off the bed, put his clothes on, and left.

      (Tr. p. 18).


[5]   Two days later, on January 22, 2013, D.G. reported the incident to law

      enforcement and brought with him his blood-stained underwear. D.G. was

      interviewed by Indianapolis Metropolitan Police Department’s (IMPD)

      Detective David Miller (Detective Miller), who sent him to Methodist Hospital

      for a sexual assault examination. After obtaining a search warrant for a buccal

      swab, Detective Miller went to Baumgardner’s residence to interview

      Baumgardner and execute the warrant on January 28, 2013. Baumgardner first

      insisted that D.G. never entered his residence, but then stated that D.G. entered

      the residence to use the restroom. When Detective Miller asked him why he

      was lying, Baumgardner indicated that he would retain counsel. Detective

      Miller executed the warrant and transported Baumgardner’s buccal swab to

      IMPD’s property room. Baumgardner’s DNA was later matched with the

      DNA material collected from D.G.’s underwear.


[6]   On March 19, 2013, the State filed an Information charging Baumgardner with

      Count I, sexual battery, a Class D felony; and Count II, battery, a Class B

      misdemeanor. At a jury trial on May 12, 2015, the State called D.G., Detective

      Miller, and a DNA analyst of the Indianapolis-Marion County Forensic



      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016   Page 3 of 11
      Services Agency to testify. Following the testimonies of the State’s witnesses,

      the State made its closing argument:

              [State]: So at the beginning of the trial [my colleague] told you
              that you would hear from [D.G.] and he would tell you about
              what happened to him that night um, the night of [January 19,
              2013,] into the early morning hours of [January 20, 2013]. And
              what you heard was [D.G.] tell you the truth and you heard
              some corroborating evidence that went along with that. You
              heard [Baumgardner’s] statement through [Detective Miller] that
              they were friends, they’d known each other for a while. They
              had engaged in intercourse before … [Baumgardner] actually
              said they only had sex one time and the victim, [D.G.],
              indicate[d] that they actually had um, sex more than that[;] so he
              was telling the truth about that. He didn’t hide the fact that he
              had sex with...


              [Defense]: I’m going to object at this point to her testifying that
              someone was telling the truth.


      (Tr. p. 94).


[7]   The trial court sustained the objection, and the State continued:

              [State]: You also heard them say that they both agree that they
              were friends, that they’d known each other for quite a while and
              um, that there was no reason for anything going on and bad on
              (sic.) their relationship. They um, hadn’t talked to each other for
              a while and then they um, meet each other up to just catch up
              right, like friends do. You text each other and then you see each
              other. There was no conversation about sex uh, before or after
              when they were out drinking at the bar, there was no
              conversation about sex on the drive home. [D.G.] told you[, “]I
              was too drunk to drive[,”] so they [went] home[;] he told you,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016   Page 4 of 11
               [“H]onestly, I drunk a lot that night, okay maybe it was four
               beers maybe it…[”]


               [Defense]: Judge again the word honestly, truth all of those [the
               State] can’t refer to those in closing argument.


               [Court]: Okay, [the State] please refrain from um, those specific
               words.


       (Tr. p. 95).


[8]    Finally, when discussing the DNA evidence from D.G.’s underwear and its

       match to Baumgardner’s DNA, the State again stated, “[D.G.] was honest, oh

       sorry, I will not use that word, he tried to tell you the truth about what would

       happen and you can believe that because he told you everything about their

       relationship.” (Tr. p. 97). At the conclusion of the jury trial, Baumgardner was

       found guilty as charged. On June 30, 2015, the trial court sentenced

       Baumgardner to an aggregate term of 730 days of imprisonment suspended to

       probation.


[9]    Baumgardner now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

[10]   We first note that the State did not file an appellee’s brief. The obligation of

       controverting arguments presented by the appellant properly remains with the

       State. Bovie v. State, 760 N.E.2d 1195, 1197 (Ind. Ct. App. 2002). When the

       appellee does not submit a brief, the appellant may prevail by making a prima

       facie case of error—an error at first sight or appearance. Id. However, we are
       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016   Page 5 of 11
       still obligated to correctly apply the law to the facts of the record to determine if

       reversal is required. Id.


[11]   Baumgardner alleges that the prosecutor committed misconduct by improperly

       vouching for the State’s witness. Specifically, in her closing argument, the

       prosecutor stated that Baumgardner and D.G. “had … sex more than [once] so

       [D.G.] was telling the truth about that.” (Tr. p. 94). The prosecutor further

       stated to the jury, “[D.G.] told you[, ‘]I was too drunk to drive[,’] so they [went]

       home[;] he told you, [‘H]onestly, I drunk a lot that night, okay maybe it was

       four beers maybe it…[’]” (Tr. p. 95). Finally, the prosecutor stated, “[D.G.]

       was honest, oh sorry, I will not use that word, he tried to tell you the truth

       about what would happen and you can believe that because he told you

       everything about their relationship.” (Tr. p. 97).

               In reviewing a claim of prosecutorial misconduct properly raised
               in the trial court, we 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 or she would not have been subjected otherwise. A
               prosecutor has the duty to present a persuasive final argument
               and thus placing a defendant in grave peril, by itself, is not
               misconduct. Whether a prosecutor’s argument constitutes
               misconduct is measured by reference to case law and the Rules of
               Professional Conduct. The gravity of peril is measured by
               the probable persuasive effect of the misconduct on the jury’s
               decision rather than the degree of impropriety of the conduct. To
               preserve a claim of prosecutorial misconduct, the defendant
               must—at the time the alleged misconduct occurs—request an
               admonishment to the jury, and if further relief is desired, move
               for a mistrial.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016   Page 6 of 11
       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (internal citations omitted), reh’g

       denied.


[12]   We have previously held that it is inappropriate for a prosecutor to make an

       argument which takes the form of personally vouching for a witness. Gaby v.

       State, 949 N.E.2d 870, 880 (Ind. Ct. App. 2011). As set forth in the Rules of

       Professional Conduct:

                 A lawyer shall not ... in trial, allude to any matter that the lawyer
                 does not reasonably believe is relevant or that will not be
                 supported by admissible evidence, assert personal knowledge
                 of facts in issue except when testifying as a witness, or state a
                 personal opinion as to the justness of a cause, the credibility of a witness,
                 the culpability of a civil litigant or the guilt or innocence of the accused[.]


       Ind. Professional Conduct Rule 3.4(e) (emphasis added). However, a

       prosecutor may comment on the credibility of the witness if the assertions are

       based on reasons which arise from the evidence. Gaby, 949 N.E.2d at 881.


[13]   Baumgardner asserts that the prosecutor’s conduct in this case resembles the

       prosecutor’s conduct in Gaby “to a tee.” (Appellant’s Br. p. 13). In Gaby, a

       child molestation case that was tried more than ten years after the alleged

       conduct, the State’s case was based on the child’s recollection of the events. Id.

       at 873. During closing argument, the prosecutor stated that she was

       “confident” that the jury would “come to the same conclusion” that she and the

       police detectives had come to. Id. at 881. The prosecutor continued, “I cannot

       and would not bring charges that I believe were false.” Id. The prosecutor

       finally stated, “I can tell you that with a guilty verdict on this case I will be able
       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016    Page 7 of 11
       to sleep fine tonight. Just fine. In fact, better than fine. You will be able to

       also.” Id. We found that the prosecutor’s remarks constituted improper

       vouching for the child’s credibility, which was the central issue in the case. Id.

       As such, we held that

               [a]lthough we recognize that the prosecutor’s comments were in
               response to [the defendant’s] argument that [the child’s]
               accusations were false, the prosecutor’s response still crosse[d]
               the line into improper vouching as her comments were not based
               solely on reasons which arose from the evidence, but rather,
               asserted a personal knowledge of the facts at issue.


       Id.


[14]   Nonetheless, we find Baumgardner’s reliance on Gaby to be misplaced.

       Baumgardner argues that “D.G.’s credibility, or lack thereof, was really the

       only issue for the jury to decide.” (Appellant’s Br. p. 9). He acknowledges that

       the “uncorroborated testimony of a single witness,” a testimony similar to the

       child’s testimony in Gaby, could be deemed sufficient to sustain a conviction on

       appeal. (Appellant’s Br. p. 17). Baumgardner continues, “Sufficient does not

       mean overwhelming, however; there were parts of D.G.’s testimony that

       seemed implausible, but the State diminished their affect [sic] by arguing that if

       [D.G.] was honest about some of it, he must be truthful about all of it.”

       (Appellant’s Br. p. 17). We disagree. While it is true that parts of D.G.’s

       testimony seemed implausible, his testimony was not the only evidence

       presented to the jury. Contrary to Baumgardner’s argument and unlike the

       child’s testimony in Gaby, D.G.’s testimony was corroborated by other

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016   Page 8 of 11
       evidence, such as the physical DNA evidence and Detective Miller’s testimony

       at trial.


[15]   Further, our review of the record indicates that the prosecutor’s comments

       during her closing argument were not unfounded attempts to bolster D.G.’s

       credibility, but were assertions and conclusions, albeit poorly worded,

       sufficiently supported by the evidence presented at the trial. Specifically, the

       prosecutor’s remarks regarding Baumgardner and D.G.’s sexual relationship

       were supported by D.G.’s numerous admissions during the trial, the DNA

       material found in D.G’s underwear that matched Baumgardner’s DNA, and

       Detective Miller’s testimony, who testified that Baumgardner informed him

       that “they were friends but that they had sex[;] it was on one other occasion …

       threesome with a, with [an] ex-boyfriend or boyfriend at the time.” (Tr. p. 55).

       The prosecutor’s statement when she said, “[D.G.] told you[, ‘]I was too drunk

       to drive[,’] so they [went] home[;] he told you, [‘H]onestly, I drank a lot that

       night, okay so maybe it was four beers maybe it…[,’]” was not even vouching

       because the prosecutor was quoting and paraphrasing D.G.’s statement, where

       the adverb “honestly” in the context of the whole statement served to indicate

       the speaker’s attitude.


[16]   In sum, although the objectionable words somewhat bolstered the credibility of

       the witness and the State should have refrained from using these specific words

       after two sustained objections, we find that the prosecutor’s statements in their

       entirety were nonetheless supported by the evidence and the effect of the

       specific words on the jury’s decision was minimal because the jury received

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016   Page 9 of 11
       proper preliminary and final instructions. See, e.g., Neville v. State, 976 N.E.2d

       1252, 1263-65 (Ind. Ct. App. 2012) (the defendant was not placed in grave peril

       by prosecutor’s statement because the trial court’s preliminary and final jury

       instructions diminished any persuasive effect the prosecutor’s comments might

       have had on the jury’s decision if left unanswered), trans. denied; Stephenson v.

       State, 742 N.E.2d 463, 485 (Ind. 2001) (“Having found that any prosecutorial

       impropriety which may have occurred was de minimus or otherwise overcome

       by the trial court’s admonishments and instructions, we are unable to conclude

       that Defendant was placed in grave peril.”). Specifically, in its preliminary

       instructions, the trial court informed the jury that it must base its decision only

       on the evidence presented during the trial and the trial court’s instructions on

       the law. In its Preliminary Instruction No. 15, the trial court tendered:

               When the evidence is completed, the State and the Defense will
               make final statements. These final statements are not evidence
               but are given to assist you in evaluating the evidence. Each side
               is also permitted to argue, to characterize the evidence and to
               attempt to persuade you to particular verdicts. You may accept
               or reject those arguments as you see fit.


       (Appellant’s App. p. 115).


[17]   In its Final Instruction No. 8, the trial court also stated:

               The unsworn statements or comments of the Defense and the
               Prosecutor should not be considered as evidence in this case. It
               is your duty to determine the facts from the testimony and the
               evidence admitted by the [trial court] and given in your presence


       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016   Page 10 of 11
               and you should disregard any and all information that you may
               derive from any other source.


       (Appellant’s App. p. 132).


[18]   Under these circumstances, we find that the jury instructions were sufficient to

       overcome any potential harm to Baumgardner from the prosecutor’s use of the

       specific words. We further find that, when referring to D.G.’s credibility, the

       prosecutor did not base her comments on her personal opinion, but instead

       based it on the evidence presented at the trial. As such, we conclude that the

       prosecutor’s comments did not place Baumgardner in a position of grave peril

       to which he would not have been subjected otherwise.


                                               CONCLUSION

[19]   Based on the foregoing, we hold that there was no improper vouching.


[20]   Affirmed.


[21]   Najam, J. and May, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016   Page 11 of 11
