Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be

                                                              FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
                                                           Jun 13 2012, 9:17 am
collateral estoppel, or the law of the
case.
                                                                   CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
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ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

ELIZABETH A. BELLIN                              GREGORY F. ZOELLER
Elkhart, Indiana                                 Attorney General of Indiana

                                                 ANN L. GOOWIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CARL D. JACKSON, JR.,                            )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 20A03-1111-CR-500
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ELKHART SUPERIOR COURT
                       The Honorable George W. Biddlecome, Judge
                             Cause No. 20D03-0803-FD-96


                                       June 13, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

        Carl Jackson, Jr., appeals his conviction for Class D felony battery. We affirm.

                                           Issues

        Jackson raises three issues, which we restate as:

               I.     whether fundamental error occurred when two child
                      witnesses made in-court identifications of Jackson;

               II.    whether fundamental error occurred as a result of the
                      prosecution’s closing argument; and

               III.   whether the evidence is sufficient to sustain Jackson’s
                      conviction.

                                            Facts

        Jackson and his wife, Elika, lived in Goshen and had several children, including

four-year-old A.J., six-year-old C.A., and seven-year-old C.Y. Elika also had a daughter,

fifteen-year-old V.D., from a prior relationship. On January 14, 2007, Jackson told the

children that they were not allowed to have cookies or sweets at church. However, A.J.

had animal crackers at church, Jackson took the crackers away, and A.J. threw a temper

tantrum.

        On January 16, 2007, Officer Darrell Robinson with the Goshen Police

Department was dispatched to the West Goshen Elementary School to meet Jamie

Pippen, an employee of the Department of Child Services (“DCS”). Officer Robinson

and Pippen met with A.J., who had extensive bruising and lacerations on his back and

arms.    Officer Robinson saw that the bruising and lacerations were consistent with

injuries from a belt. Officer Robinson was unable to determine how many times A.J. had


                                              2
been hit because of the numerous, overlapping marks and bruises. A.J. also appeared to

have fingertip bruises on his right arm from being held in place. A.J. and C.A. were

taken into protective custody at that time.

       Officer Matt Yoder was dispatched to assist a DCS worker with interviewing

Jackson.   Officer Yoder listened to the conversation between the DCS worker and

Jackson. Jackson, Elika, and the other children, including V.D., told the DCS worker that

A.J. got into a fight with his brother, C.Y., and that C.Y. hit A.J. with a belt.

       In March 2008, the State charged Jackson with Class D felony battery. At trial,

V.D. testified that, after A.J.’s tantrum at church, Jackson told A.J. “that he was going to

get him when [he] got home.” Tr. p. 214. The next day was a holiday, and V.D. heard

Jackson tell A.J. “to take his clothes off because he was going to get him for old to new.”

Id. at 217. Jackson then started hitting A.J. with his belt, and A.J. was yelling in pain.

V.D. saw Jackson hit A.J. ten to twelve times. The next day, Jackson told A.J. to wear a

long-sleeved shirt to school. When she got home from school, Jackson told V.D. and the

other children that the police and DCS were on their way and that they should say C.Y.

hit A.J. with a belt. V.D. testified that, a year after A.J. was injured, Elika kicked

Jackson out of the house. V.D. then told the police that Jackson had hit A.J. with a belt.

V.D. hoped that, if she told the truth, the other children would be allowed to come home.

However, Jackson and Elika reconciled, and V.D. went to live with her grandmother.

V.D. also testified that her siblings had new last names.

       C.Y. also testified at the trial. C.Y. said that Jackson was his biological father, and

he needed assistance identifying Jackson. Jackson did not object to this identification.

                                               3
C.Y. denied hitting A.J. with a belt and testified that Jackson would use a belt to strike

A.J. C.Y. did not remember talking to the police or DCS worker. C.A. also testified at

the trial and needed assistance identifying Jackson.       Jackson did not object to this

identification.   C.A. testified that Jackson told her, “Don’t say anything when the

policeman comes in.” Id. at 252. C.A. did not testify regarding A.J.’s injuries.

       Jackson testified in his defense that C.Y. injured A.J. during a fight. Jackson

denied hitting or using a belt on A.J. Jackson testified that he had been “almost five

years without [his] children.” Id. at 259. Jackson denied telling Officer Yoder that C.Y.

hit A.J. with a belt.

       During closing arguments, the deputy prosecutor stated:

               At that point in time, let’s stop and think about what 15 year
               old [V.D.] is thinking. She is thinking that her mother is
               finally getting away from this man. She is thinking what she
               told you from the very beginning. She had always believed in
               her heart that no one believed her story, no one believed that
               little A.J. [sic] beat on little [C.Y.]. She told you no one she
               knew believed it. And obviously [DCS] did not believe it
               because they took the kids away. So was she bringing the
               children back into a home where Carl, Junior, was living?
               No, he was gone.

Id. at 294-95. Jackson did not object to the deputy prosecutor’s comments. The jury

found Jackson guilty of Class D felony battery. Jackson now appeals.

                                          Analysis

                                I. Identification of Jackson

       The first issue is whether fundamental error occurred when C.Y. and C.A.

identified Jackson during their testimony. Jackson argues that the actions of the deputy


                                              4
prosecutor in assisting C.Y. and C.A. to identify Jackson were unduly suggestive. During

the questioning of C.Y. and C.A., the children struggled with identifying Jackson. The

following colloquy occurred between C.Y. and the deputy prosecutor:

             Q.     And the person that you know as Carl Jackson, do you
             see him in the courtroom here today?

             A.     Yes.

             Q.     Could you point him out and describe an article of his
             clothing?

             A.     Different, I guess.

             Q.     Well, let me help. Is this Carl Jackson?

             A.     No.

             Q.     Is this Carl Jackson?

             A.     Yes.

             Ms. Snyder: May the record reflect, your Honor, that I am
             standing behind the defendant Carl Jackson, who [C.Y.] has
             indicated is Carl Jackson, his biological father?

             The Court:    The record will so reflect.

Tr. pp. 245-46. During C.A.’s testimony, the following discussion occurred:

             Q.     That person you know as Carl Jackson, Jr., I see you
             keep shooting your eyes over to your right. Do you recognize
             him in the courtroom?

                                          *****

             A.     Oh, yeah.

             Q.     That’s okay. Is this Carl Jackson, Jr., your dad?

             A.     No.

                                            5
              Q.     Is this Carl Jackson, Jr., your dad?

              A.     Yeah.

              Ms. Snyder: May the record reflect, your Honor, that the
              witness has identified the defendant as Carl Jackson, Jr.?

              The Court:     The record will so reflect.

Id. at 251-52. Jackson did not object to either identification.

       “There is a degree of suggestiveness which is inherent in all in-court

identifications; the practical necessity of having the appellant sit at the defendant’s table

with defense counsel naturally sets him apart from everyone else in the courtroom.”

Jeter v. State, 888 N.E.2d 1257, 1266 (Ind. 2008), cert. denied. “Whether a particular

identification procedure rises to a level of suggestiveness that constitutes reversible error

must be determined from the context of the case.” Id. “Suggestiveness is proscribed

only when it can reasonably be avoided under the circumstances.” Id. “[A]bsent any

extraordinary effort to single out the defendant at trial, in-court identification is not

unduly suggestive where the witness is firm in his identification.” Id. Because of a

criminal defendant’s right to be present and confront his or her accusers, some amount of

suggestiveness cannot be avoided. Id.

       Jackson, however, did not object to the allegedly suggestive identification.

“Failure to object at trial waives the issue for review unless fundamental error occurred.”

Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012). “The fundamental error doctrine

provides a vehicle for the review of error not properly preserved for appeal.” Id. “In

order to be fundamental, the error must represent a blatant violation of basic principles

                                              6
rendering the trial unfair to the defendant and thereby depriving the defendant of

fundamental due process.” Id. Harm is found when error is so prejudicial as to make a

fair trial impossible. Id.

        Jackson argues that the identifications resulted in fundamental error, but we

disagree. Jackson must show that the allegedly suggestive identification made a fair trial

impossible. However, C.Y. and C.A. merely identified Jackson as their father, and his

status as their father was not at issue in the case. Rather, the issue here was whether

Jackson or C.Y. injured A.J.        Moreover, V.D. also identified Jackson during her

testimony.   Under these circumstances, Jackson cannot show that the identifications

resulted in fundamental error.

                             II. Prosecutor’s Closing Statement

       The next issue is whether fundamental error occurred as a result of the deputy

prosecutor’s closing argument. Jackson argues that the deputy prosecutor’s comments

during closing argument constituted misconduct that resulted in fundamental error.

During his closing argument, Jackson questioned V.D.’s credibility.              The deputy

prosecutor responded in part with the following statement:

              At that point in time, let’s stop and think about what 15 year
              old [V.D.] is thinking. She is thinking that her mother is
              finally getting away from this man. She is thinking what she
              told you from the very beginning. She had always believed in
              her heart that no one believed her story, no one believed that
              little A.J. [sic] beat on little [C.Y.]. She told you no one she
              knew believed it. And obviously [DCS] did not believe it
              because they took the kids away. So was she bringing the
              children back into a home where Carl, Junior, was living?
              No, he was gone.


                                             7
Tr. pp. 294-95. According to Jackson, these comments indicate that DCS believed

Jackson was lying about A.J.’s injuries and took the children out of the home as a result.

       “In reviewing a properly preserved claim of prosecutorial misconduct, we

determine: (1) whether the prosecutor engaged in misconduct, 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.” Cooper v. State, 854 N.E.2d

831, 835 (Ind. 2006). 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. Id. When an improper argument is alleged to have been made, the correct

procedure is to request the trial court to admonish the jury. Id. If the party is not

satisfied with the admonishment, then he or she should move for mistrial. Id. Failure to

request an admonishment or to move for mistrial results in waiver. Id.

       Here, Jackson did not object, request an admonishment, or move for a mistrial.

Where a claim of prosecutorial misconduct has not been properly preserved, our standard

for review is different from that of a properly preserved claim. Id. The defendant must

establish not only the grounds for the misconduct but also the additional grounds for

fundamental error. Id. Fundamental error is an extremely narrow exception that allows a

defendant to avoid waiver of an issue. Id. It is error that makes a fair trial impossible or

constitutes clearly blatant violations of basic and elementary principles of due process

presenting an undeniable and substantial potential for harm. Id.

       Even if we assume that the deputy prosecutor’s comments were improper, the

comments did not rise to the level of fundamental error. Although the State did not

                                             8
present evidence from DCS regarding the reasons for the removal of the children, Officer

Robinson testified that, upon seeing A.J.’s bruising, A.J. and C.A. were placed in

protective custody. V.D. testified that she hoped that, if she told the truth, the other

children would be allowed to come home. During his testimony, Jackson admitted that

he had been “almost five years without [his] children.” Tr. p. 259. It was clear from the

evidence presented at trial that the children had been removed by DCS. Further, given

V.D.’s testimony and the photographs of A.J.’s injuries, it is unlikely that Jackson was

denied a fair trial as a result of the deputy prosecutor’s brief comment about DCS’s

beliefs.

                             III. Sufficiency of the Evidence

       Jackson next argues that the evidence is insufficient to sustain his conviction for

Class D felony battery. When reviewing the sufficiency of the evidence needed to

support a criminal conviction, we neither reweigh evidence nor judge witness credibility.

Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence

supporting the judgment and any reasonable inferences that can be drawn from such

evidence.” Id. We will affirm if there is substantial evidence of probative value such that

a reasonable trier of fact could have concluded the defendant was guilty beyond a

reasonable doubt. Id.

       “A person who knowingly or intentionally touches another person in a rude,

insolent, or angry manner commits battery . . . .” Ind. Code § 35-42-2-1(a). The offense

is a Class D felony if it results in bodily injury to “a person less than fourteen (14) years

of age and is committed by a person at least eighteen (18) years of age.” I.C. § 35-42-2-

                                             9
1(a)(2).     Thus, the State was required to demonstrate that Jackson knowingly or

intentionally touched A.J. in a rude, insolent, or angry manner, that bodily injury to A.J.

resulted, that A.J. was less than fourteen years old, and that Jackson was at least eighteen

years old.

       Jackson argues that the evidence is insufficient because only V.D. testified that

Jackson inflicted the injuries on A.J. and V.D. had originally told the DCS worker that

C.Y. had hit A.J. with a belt. Jackson argues that A.J., Elika, and the other children

should have testified about A.J.’s injuries too. V.D.’s credibility and the fact that A.J.

and Elika did not testify were circumstances for the jury to weigh. Through V.D.’s

testimony, the State presented evidence that Jackson repeatedly struck four-year-old A.J.

on the back with a belt, resulting in bruising and lacerations. This evidence is sufficient

to sustain Jackson’s conviction.

                                       Conclusion

       No fundamental error occurred as a result of C.Y. and C.A.’s identification of

Jackson or the deputy prosecutor’s comments during closing arguments. Further, the

evidence is sufficient to sustain Jackson’s conviction. We affirm.

       Affirmed.

FRIEDLANDER, J., and MAY, J., concur.




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