Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

VALERIE K. BOOTS                                   GREGORY F. ZOELLER
Marion County Public Defender                      Attorney General of Indiana
Indianapolis, Indiana
                                                   JOBY D. JERRELLS
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana
                                                                                 FILED
                                                                             Jan 17 2012, 9:37 am

                              IN THE                                                 CLERK
                    COURT OF APPEALS OF INDIANA
                                                                                   of the supreme court,
                                                                                   court of appeals and
                                                                                          tax court




JEROME MAXWELL,                                    )
                                                   )
       Appellant,                                  )
                                                   )
           vs.                                     )       No. 49A04-1101-CR-6
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee.                                   )

                     APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Lisa Borges, Judge
                            Cause No. 49G04-0910-FA-86943


                                        January 17, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
      Jerome Maxwell was convicted in Marion Superior Court of one count of Class A

felony child molesting and two counts of Class C felony child molesting and was

sentenced to an aggregate term of forty years incarceration.         Maxwell appeals and

presents numerous issues, which we reorder, renumber, and restate as the following eight:

      I.       Whether the trial court abused its discretion in permitting the State to call
               as a witness the victim’s young sister;

      II.      Whether the trial court abused its discretion in denying Maxwell’s motion
               for a mistrial;

      III.     Whether the trial court abused its discretion in propounding certain jury
               questions to the witnesses;

      IV.      Whether the prosecutor committed various acts of misconduct;

      V.       Whether the trial court abused its discretion in permitting a police detective
               to testify regarding the content of telephone calls Maxwell made while in
               jail;

      VI.      Whether the trial court committed fundamental error in instructing the jury
               regarding unanimity;

      VII.     Whether Maxwell’s convictions for Class C felony child molesting
               constitute double jeopardy; and

      VIII. Whether Maxwell’s forty-year sentence is inappropriate.

      We affirm.

                              Facts and Procedural History

      At the time relevant to this appeal, T.H. (“Mother”) and Ra.H. (“Father”) were

married and had three children: the seven-year-old victim in this case, R.H., her three-

year-old sister C.W., and a younger brother. In 2009, Mother started school to study

nursing.     When she first started school, Mother’s sister watched the children while



                                              2
Mother was at school. But in March of 2009, Maxwell, who is Mother’s uncle, began to

watch the children both at their home and at his house.

       On one occasion while Maxwell watched the children at Mother’s home, Maxwell

took R.H. into her brother’s room and attempted to take off her pants. He told her,

“Don’t worry, nothing’s gonna happen,” and “Don’t tell anyone, it’s private.” Tr. pp. 49,

51. Maxwell then pulled R.H.’s underwear down to her ankles and touched her bottom.

On another occasion, Maxwell touched R.H. on the outside of her clothes in her genital

area. Maxwell then touched R.H.’s vaginal area, moving his fingers around the inside of

her labia, which felt “really scary” to her. Id. at 55-56.

       On another occasion, Maxwell touched R.H. with his hands on her bottom. She

described this as being “a little bit inside” her bottom. Tr. pp. 58-60. Maxwell instructed

R.H. to not tell anyone about what he had done to her, and R.H. was afraid that she would

be in trouble if she told anyone. R.H. later explained that Maxwell touched her every

time he watched her.

       On September 17, 2009, Father was helping C.W. use the restroom at a

department store when C.W. told him something that made him concerned. After they

left the store, he asked R.H. what happened when Maxwell babysat her. R.H. initially

stated that she watched television and played, but upon further questioning she began to

cry. She then told her father that Maxwell touched her “potty.” Tr. p. 219. Father called

the family pediatrician and then took R.H. to the hospital, where she was examined by a

sexual assault examination nurse. The examination results were normal, which is not

unusual of children who have been sexually molested.

                                              3
       On September 22, 2009, R.H. was interviewed at the Child Advocacy Center by

Jill Carr (“Carr”), a forensic interviewer for Child Protective Services. Indianapolis

Metropolitan Police Detective Shawn Looper (“Detective Looper”) then began to

investigate R.H.’s allegations. Detective Looper interrogated Maxwell, who denied the

allegations. On October 14, 2009, the State charged Maxwell with two counts of Class A

felony child molesting and two counts of Class C felony child molesting, all alleging that

R.H. was the victim.

       While in jail, Maxwell made several telephone calls that were recorded. Detective

Looper reviewed the calls Maxwell made in jail and took notes about the substance of the

calls. However, Detective Looper was later unable to retrieve the actual recorded calls

because the jail changed the call logging system. According to Detective Looper’s notes,

Maxwell made several incriminating statements to his wife during the calls. Specifically,

Maxwell told her that “if the accusers don’t show up, the State could drop the charges.

Call [Mother] and tell her please.” Tr. p. 343. He also told his wife, “They show up, I’m

totally f**ked. Offer them what you got not to show up. If you hand money to them, get

it in writing.” Id. Maxwell, demonstrating a serious misunderstanding of the law, further

told his wife, “You must do it face to face. If not, it’s bribery.” Id. at 344. Maxwell later

made another telephone call in which he crudely stated, “No semen. Their cherries

weren’t popped. There is no evidence.” Id. at 345.

       Prior to trial, the trial court granted, in part, a motion in limine filed by Maxwell,

prohibiting any reference to any uncharged past sexual misconduct by Maxwell and

reference to Maxwell touching C.W. in a sexual manner. A jury trial commenced on

                                             4
November 15, 2010. During trial, Maxwell twice moved for a mistrial based on alleged

violations of the motion in limine, but the trial court denied these motions. On November

16, the jury acquitted Maxwell on one count of Class A felony child molesting but found

Maxwell guilty on the remaining count of Class A felony child molesting and two counts

of Class C felony child molesting. On December 17, 2010, the trial court sentenced

Maxwell to forty years on the Class A felony conviction and concurrent terms of four

years on each Class C felony conviction, for an aggregate term of forty years. Maxwell

now appeals.

                         I. Calling Victim’s Sister as a Witness

       Maxwell claims that the trial court erred in permitting the State to call as a witness

R.H.’s younger sister, C.W.       Although a child under the age of ten was formerly

presumed to be incompetent, the statute setting forth that presumption was repealed in

1990. See Newsome v. State, 686 N.E.2d 868, 871 (Ind. Ct. App. 1997). Now, Indiana

Evidence Rule 601 provides that “[e]very person is competent to be a witness except as

otherwise provided in these rules or by [statute.]” When a child is called to testify at trial,

the trial court has the discretion to determine if a child witness is competent based on the

court’s observation of the child’s demeanor and responses to questions posed by counsel

and the court. Haycraft v. State, 760 N.E.2d 203, 209 (Ind. Ct. App. 2001), trans. denied.

       Here, Maxwell does not claim that the trial court erred in permitting C.W. to

testify. In fact, the trial court did not permit C.W. to testify because the child was too

young and frightened to answer the court’s preliminary questions to determine her



                                              5
competence. Thus, Maxwell argues that the trial court erred in permitting the State to

call C.W. as a witness at all. We are unable to agree.

       Certainly, it would have been more prudent for the trial court to have excused the

jury before C.W. took the stand. That way, the parties and the court could have better

assessed the young child’s competence to testify. Instead, the jury was exposed to a child

too young and frightened to even speak in court. That having been said, however, the

fact remains that C.W. provided no testimony. We are unable to say that simply allowing

the jury to see C.W. on the stand was error.

       Moreover, the time C.W. spent on the witness stand was brief. The trial court

asked the child what her name was, and although she was unable to give a verbal

response, C.W. did nod her head. When the State attempted to ask even the most basic

questions of C.W., however, she was unable to give any response. Thereafter, the trial

court found that “[C.W.] is by virtue of her age and apparent emotional state . . . unable

to communicate with us out loud here today[.]” Tr. p. 41. The State then proceeded to its

next witness. Again, the better practice would have been to determine C.W.’s ability to

testify outside the presence of the jury. But we are unable to say that the brief time C.W.

spent on the witness stand in the presence of the jury was reversible error when her time

on the stand was brief and when she was unable to provide any testimony or other

evidence.

                                II. Motions for Mistrial

       Maxwell also claims that he was denied a fair trial because the jury was exposed

to evidence indicating that Maxwell had molested R.H.’s younger sister C.W. in addition

                                               6
to molesting R.H. Maxwell claims that the trial court abused its discretion in denying his

motions for mistrial which were made when such evidence was placed before the jury.

We have repeatedly explained that “[a] mistrial is an extreme remedy warranted only

when no other curative measure will rectify the situation.” Henson v. State, 790 N.E.2d

524, 535 (Ind. Ct. App. 2003) (quoting Kirby v. State, 774 N.E.2d 523, 533-34 (Ind. Ct.

App. 2002)). The decision to grant or deny a mistrial is within the trial court’s discretion,

and we will reverse only for an abuse of that discretion. Id. An abuse of discretion

occurs if the trial court’s decision is clearly against the logic and effect of the facts and

circumstances before the trial court. Id. On appeal, we accord the trial court’s decision

great deference, as it is in the best position to gauge the circumstances and the probable

impact on the jury. Id. When determining whether a mistrial is warranted, we consider

whether the defendant was placed in a position of “grave peril” to which he should not

have been subjected.     Id.   The gravity of the peril is determined by the probable

persuasive effect of the matter complained of on the jury’s decision. Id.

       Maxwell argues that the trial court erred in denying his motion for a mistrial made

after R.H. testified regarding Maxwell touching C.W. He specifically refers to that

portion of R.H.’s testimony in which she stated that Father had asked her, “who did this

to you and C.W.?” Tr. p. 63 (emphasis added). R.H. also testified, “C.W. was there

when . . . it . . . happened and then he did it to her too.” Tr. pp. 96-97 (emphasis added).

       Maxwell now claims that these references required a mistrial because they were

inadmissible under Indiana Evidence Rule 404(b), were irrelevant, and highly prejudicial.

Even if R.H.’s testimony regarding Maxwell molesting C.W. was inadmissible under

                                              7
Evidence Rule 404(b), we disagree with Maxwell that these two statements required the

trial court to grant his request for a mistrial.

        At the time of the trial, R.H. was an eight-year-old child. And although her

testimony regarding what her Father asked her could be taken as evidence that Maxwell

molested both girls, there is nothing that suggests that her response was a deliberate

attempt to get such evidence before the jury. To the contrary, the State indicated that it

had instructed R.H. not to mention that Maxwell had molested C.W. as well. Moreover,

R.H.’s reference to C.W. was brief and was in the context of relating Father’s question.

She did not affirmatively say that Maxwell molested C.W.; only that Father asked her

who did “this” to R.H. and C.W. Under these facts and circumstances, we cannot say

that the trial court abused its discretion in denying Maxwell’s motion for a mistrial.1

        With regard to R.H.’s testimony that Maxwell “did it to [C.W.] too,” we admit that

this is evidence more strongly states that Maxwell molested C.W. in addition to R.H. Yet

again, we are unable to conclude that the trial court abused its discretion in denying

Maxwell’s motion for a mistrial. First, it is important to note the context of R.H.’s

response. Maxwell’s counsel cross-examined R.H. regarding where the various instances

of sexual molestation took place and where the other children were at the times of the

molestations. On re-direct examination, the State attempted to clarify R.H.’s testimony:




1
  Maxwell also takes issue with the trial court’s comment that “I thought [R.H.’s response] was very
garbled and that’s one of the other reasons I don’t think that all the . . . jurors heard it at all. I could barely
understand what she said.” Tr. p. 64. We are certainly in no position on appeal to second guess the trial
court with regard to the intelligibility of R.H.’s speech.

                                                        8
       [State]:   About C.W. being – I think the word is “there”. If you said C.W.
                  was “there”, did that mean in the house, in the room, or
                  something else?
       [R.H.]:    Something else.
       [State]:   What did it mean?
       [R.H.]:    It meant that C.W. was there when -- when it had had [sic]
                  happened and then he did it to her, too.

Tr. pp. 96-97. Once again, R.H.’s reference to C.W. was brief, and there is again no

indication that the State intentionally elicited this response. In fact, R.H.’s reference to

Maxwell doing “it” to C.W. was extraneous to her answer to the State’s question. We

note again that R.H. was a young child undergoing the stressful and emotional experience

of testifying at a jury trial. Even though she was instructed not to mention Maxwell’s

behavior toward C.W., it is not surprising that a small child might “slip up” during her

lengthy testimony. Indeed, the trial court noted that R.H. had been testifying for over an

hour at the time of her reference to C.W. Tr. p. 104. Moreover, the length of R.H.’s

testimony at the time of the statement in question—over one hour in length and covering

dozens of pages of transcript—compared to her two brief mentions of C.W. further

support the trial court’s decision to deny Maxwell’s motion for a mistrial.

       We further note that the trial court specifically admonished the jury to disregard

R.H.’s testimony regarding Maxwell and C.W. as follows:

       With regard to the last question and answer, I’m going to strike that from
       the evidence and you are instructed that you are to absolutely disregard that
       last question and answer. And it is not to be considered by you nor
       discussed among you during this trial, during any recesses, or during your
       deliberations, all right?

Tr. p. 116-17. Where the trial court adequately admonishes the jury, such admonishment

is presumed to cure any error that may have occurred. Johnson v. State, 901 N.E.2d 1168,

                                             9
1173 (Ind. Ct. App. 2009). However, that an admonition is given does not necessarily

mean that particularly prejudicial, erroneously admitted evidence will be erased from the

minds of reasonable jurors or omitted from their deliberations. Beer v. State, 885 N.E.2d

33, 48 (Ind. Ct. App. 2008).

       As set forth in Beer, our supreme court has acknowledged a number of factors to

examine when considering the adequacy of striking improper testimony and admonishing

the jury:

       (1) the effect of constitutional provisions, statutes or rules relating to
       harmless error; (2) the degree of materiality of the testimony; (3) other
       evidence of guilt; (4) other evidence tending to prove the same fact; (5)
       other evidence that may cure the improper testimony; (6) possible waiver
       by the injured party; (7) whether the statement was volunteered by the
       witness and whether there had been deliberate action on the part of the
       prosecution to present the matter to the jury; (8) the penalty assessed; (9)
       whether or not the testimony, although volunteered by the witness, was in
       part brought out by action of the defendant or his counsel; (10) the
       existence of other errors; (11) whether the question of guilt is close or clear
       and compelling; (12) the standing and experience of the person giving the
       objectionable testimony; and (13) whether or not the objectionable
       testimony or misconduct was repeated.

Id. (citing White v. State, 257 Ind. 64, 69, 272 N.E.2d 312, 314-15 (1971)). We will

examine a number of these factors. See id.

       Clearly, there was other evidence of Maxwell’s guilt outside the brief references to

his conduct with C.W. And R.H.’s statements were volunteered and were not the product

of any deliberate action by the State to introduce inadmissible evidence to the jury. And

as noted, R.H. was not an experienced witness; she was a frightened eight-year-old child

in an extremely stressful situation.    And although R.H. made the mistake of twice



                                             10
mentioning Maxwell’s alleged behavior with C.W.,2 there is again no indication that her

behavior was in any way intentionally designed to introduce inadmissible evidence to the

jury. Under these facts and circumstances, we are again unable to say that the trial court

abused its discretion in denying Maxwell’s motion for a mistrial.3

                                          III. Jury Questions

        Maxwell claims that the trial court erred in allowing the jury to propound certain

questions to witnesses. Whether to submit a juror’s question to a witness is within the

discretion of the trial court. Amos v. State, 896 N.E.2d 1163, 1169 (Ind. Ct. App. 2008).

We will therefore review the trial court’s decision only for an abuse of that discretion. Id.

at 1170.

        Indiana Evidence Rule 614(d) provides:

        Interrogation by Juror. A juror may be permitted to propound questions
        to a witness by submitting them in writing to the judge, who will decide
        whether to submit the questions to the witness for answer, subject to the
        objections of the parties, which may be made at the time or at the next
        available opportunity when the jury is not present. Once the court has ruled
        upon the appropriateness of the written questions, it must then rule upon the
        objections, if any, of the parties prior to submission of the questions to the
        witness.

A proper juror question is one that allows the jury to understand the facts and discover

the truth. Amos, 896 N.E.2d at 1170.

2
  Maxwell claims that the trial court improperly stated that it would not consider the cumulative effect of
R.H.’s statements. We disagree. In discussing Maxwell’s motion for a mistrial with Maxwell’s counsel,
the trial court simply indicated that it was focusing on R.H.’s most recent statement and did not wish to
rehash its prior rulings. See Tr. p. 98 (where trial court stated, “but we’re with this incident. So, let’s just
focus on this one because we’re not going to argue about the others again).
3
  Maxwell briefly claims that the trial court’s ruling prevented him from cross-examining R.H. regarding
prior inconsistent statements. But Maxwell does not explain what the prior inconsistent statements were
or precisely how he was prevented from cross-examining R.H. with regard to these inconsistencies.

                                                      11
      Here, the trial court submitted the following jury question to Father: “Did you ask

R.H. about what happens at [Maxwell]’s house because of what C.W. said in the

bathroom at Walmart?” Tr. p. 242. Father responded, “Yes.” Id. Maxwell now claims

that this question was irrelevant and prejudicial. We disagree. The question was relevant

to explain why Father suspected that R.H. might have been sexually molested. Nor do

we think it was unduly prejudicial. Neither the question itself nor the response indicate

that C.W. was herself molestated.       Although Maxwell claims that such evidence

suggested that he molested C.W., evidence which creates a mere inference of prior bad

conduct does not fall within the purview of Evidence Rule 404(b)’s general prohibition of

evidence of uncharged crimes, wrongs, or acts. Rogers v. State, 897 N.E.2d 955, 960 n.3

(Ind. Ct. App. 2008), trans. denied; Dixson v. State, 865 N.E.2d 704, 712 (Ind. Ct. App.

2007), trans. denied; Allen v. State, 743 N.E.2d 1222, 1232 (Ind. Ct. App. 2001), trans.

denied; see also Haak v. State, 695 N.E.2d 944, 947 (Ind. 1998) (even if witness’s

testimony that she was afraid of the defendant caused the jury to infer that the defendant

had engaged in other crimes, wrongs, or acts, Evidence Rule 404(b) was inapplicable

where the witness did not testify as to any conduct by the defendant). Moreover, the

question was cumulative of Father’s earlier testimony that he questioned R.H. about

Maxwell after speaking with C.W. in the restroom. See Goodson v. State, 747 N.E.2d

1181, 1185 (Ind. Ct. App. 2001) (noting that any error in the admission of evidence is

harmless when cumulative of properly admitted evidence).

      Maxwell also finds fault with the trial court submitting the following jury question

to Detective Looper: “Were the names [R.H.] and/or [C.W.] ever used in the calls? If so,

                                           12
in what context?” Tr. pp. 352-53. Detective Looper responded, “I would have to go

through each individual note, but I believe not, no. It was just in reference to them.” Id.

at 353. Although Maxwell objected to Detective Looper’s response to the question, he

did not object to the question itself. He has therefore failed to preserve any error in this

regard for purposes of appeal. Waiver notwithstanding, we fail to see how the fact that

Maxwell mentioned both R.H. and C.W. in his phone calls was unduly prejudicial. It was

clear from the other evidence that Maxwell babysat both children. Thus, the fact that he

might mention both of them in his telephone calls does not necessarily mean that he was

referring to both children as his victims. And again, evidence that merely implies prior

misconduct is not prohibited by Evidence Rule 404(b). Rogers, 897 N.E.2d at 960 n.3;

Dixson, 865 N.E.2d at 712; Allen, 743 N.E.2d at 1232. Therefore, the trial court did not

abuse its discretion in submitting the juror’s questions to the witnesses.

                              IV. Prosecutorial Misconduct

       Maxwell also claims that the prosecutor committed various acts of misconduct. In

reviewing a claim of prosecutorial misconduct, we determine first whether the prosecutor

engaged in misconduct and, if so, whether that misconduct, under all of the circumstances,

placed the defendant in a position of grave peril to which he should not have been

subjected. Waldon v. State, 829 N.E.2d 168, 178 (Ind. Ct. App. 2005). The gravity of

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

decision, not on the degree of impropriety of the misconduct. Id.

       In order to properly preserve a claim of prosecutorial misconduct for appeal, a

defendant must not only raise a contemporaneous objection, he must also request an

                                             13
admonishment and, if the admonishment is not given or is insufficient to cure the error,

then he must request a mistrial. Lainhart v. State, 916 N.E.2d 924, 931 (Ind. Ct. App.

2009). If a defendant fails to make an objection, fails to request an admonishment, and

fails to move for a mistrial, he forfeits any appellate claim of prosecutorial misconduct.

Id. at 290; Adcock v. State, 933 N.E.2d 21, 26 (Ind. Ct. App. 2010) (noting that failure to

request an admonishment or move for a mistrial following alleged prosecutorial

misconduct results in waiver), trans. denied; see also Flowers v. State, 738 N.E.2d 1051,

1059 (Ind. 2000) (although defendant objected to alleged prosecutorial misconduct at trial,

his failure to request an admonition resulted in waiver of the issue on appeal).

       Maxwell first claims that the prosecutor engaged in misconduct by calling C.W. to

testify. We have already concluded that the trial court did not abuse its discretion in

permitting the State to call C.W. as a witness. Moreover, we reject Maxwell’s argument

that calling C.W. to testify was akin to calling a witness whom the prosecutor knows will

refuse to testify based on the right against self-incrimination. See, e.g., Brown v. State,

671 N.E.2d 401, 405 (Ind. 1996) (reaffirming rule that it is impermissible to call a co-

defendant or accomplice to testify if the party calling that witness knows that the witness

will refuse to testify).

       Here, there is no indication that the prosecutor knew that C.W. would be unable to

testify, nor has Maxwell referred us to any evidence supporting such a proposition.

Moreover, C.W. did not refuse to testify based on the right against self-incrimination; she

was simply unable to testify due to her young age. And again, we fail to see how

permitting the jury to simply see C.W. constitutes misconduct.

                                             14
      Maxwell also insists that the prosecutor engaged in misconduct when it questioned

Mother with regard to her children’s behavior after Maxwell started to babysit them. The

following exchange took place between the prosecutor and Mother:

      Q.    When the kids first started going to – or when [Maxwell] first started
            babysitting, how did the children respond?
      A.    They were okay with it.
      Q.    Was there a point in time where you noticed that that changed?
      A.    Yes.
      Q.    Do you remember about when that was?
      A.    I don’t.
      Q.    And that’s okay.    What was the change that you noticed?
      A.    That C.W. and R.H. didn’t want to go anymore.             They cried
            about going.
      Q.    Okay. So, when it was time to go, they would cry?
      A.   Yes.

Tr. pp. 287-88. Maxwell now claims that the prosecutor was suggesting that both R.H.

and C.W. were molested. We note, however, that there is no indication that Maxwell

objected to this line of questioning, that he requested an admonishment, or that he moved

for a mistrial. Maxwell therefore failed to preserve any appellate claim of prosecutorial

misconduct. See Adcock, 933 N.E.2d at 26.

      Even if we considered the merits of this claim, Maxwell would not prevail. The

prosecutor’s questions merely explained how Mother’s children began to be fearful of

going to Maxwell. It did not indicate that Maxwell had also molested C.W. Indeed, C.W.

would likely be frightened of Maxwell even if she simply witnessed Maxwell molesting

R.H. Moreover, Mother’s testimony never referred to any conduct by Maxwell. We


                                           15
again note that evidence which creates a mere inference of prior bad conduct does not fall

within the purview of Evidence Rule 404(b)’s general prohibition of evidence of

uncharged crimes, wrongs, or acts. Rogers, 897 N.E.2d at 960 n.3; Dixson, 865 N.E.2d

at 712; Allen, 743 N.E.2d at 1232.

      Maxwell also contends that the prosecutor committed misconduct when the State

elicited testimony from Mother that she had observed R.H. and C.W. lying in bed

together while naked and may have been touching each other in a sexual manner. Tr. p.

295. Although Maxwell objected, his objection was based solely on the leading nature of

the prosecutor’s question.    Id. at 296.    And at no time did Maxwell request an

admonishment or move for a mistrial. Again, his claim of prosecutorial misconduct is

therefore waived. See Adcock, 933 N.E.2d at 26. Waiver notwithstanding, Maxwell

fails to explain how this testimony was inadmissible other than to again claim that it

might imply that he also molested C.W. Even if we agreed with this proposition, which

we do not, the mere inference of other misconduct is not prohibited by Evidence Rule

404(b). Rogers, 897 N.E.2d at 960 n.3.

      Maxwell also complains that the prosecutor engaged in misconduct when, in the

State’s closing argument, the prosecutor stated that Mother “never once thought

[Maxwell] was the kind of person that would do this to her children.” Tr. pp. 424-25

(emphasis added). Yet again, however, Maxwell did not object to this statement, did not

request an admonishment, and did not move for a mistrial. The issue is therefore waived.

See Adcock, 933 N.E.2d at 26. Waiver notwithstanding, Maxwell would not prevail.

The prosecutor’s reference to the plural “children” was inappropriate, but we are unable

                                            16
to say that this brief reference subjected Maxwell to the grave peril required for a mistrial,

nor did it deny Maxwell a fair trial as is required to establish fundamental error. See

Munford v. State, 923 N.E.2d 11, 13 (Ind. Ct. App. 2010) (“To rise to the level of

fundamental error, the error must be so prejudicial to the rights of the defendant as to

make a fair trial impossible.”).

       Maxwell further claims that the prosecutor engaged in misconduct by suggesting

to the jury that there was evidence of his guilt beyond that which was presented in court.

Maxwell claims that the first instance of this misconduct occurred during the State’s

closing argument, during which the prosecutor told the jury that it could not properly

convict Maxwell of Count II of the charging information which referred to anal

penetration. Specifically, the prosecutor stated:

       The other easy thing on the charging information in Count 2, there’s no
       anal penetration. So, come back with a not guilty on that because that’s the
       fair thing to do. When R.H. testified today, she wasn’t able to tell you
       about that. That’s okay, she wasn’t. . . . Don’t give me a verdict on
       Count 2, forget that.
                                          ***
       And [R.H.] took an oath and that’s the evidence that you’re relying on.
       That’s why you can’t convict him on the anal penetration because [R.H.]
       didn’t testify about that.

Tr. pp. 429, 459. Maxwell now claims that this somehow suggested to the jury that

Maxwell had penetrated R.H.’s anus with his fingers, but that R.H. simply had not

testified to that fact. We strongly disagree.

       First, we note yet again that Maxwell did not object, request an admonishment, or

move for a mistrial after this statement, and this claim is waived. See Adcock, 933

N.E.2d at 26. Moreover, the jury was already aware of the charge in Count II, which

                                                17
alleged anal penetration. The prosecutor was simply admitting to the jury that the State

had failed to present any evidence to support his charge. Indeed, the prosecutor reminded

the jury that R.H. was under oath and that, based on her testimony, the jury could not

properly return a verdict of guilty on Count II. We are at a loss as to how this subjected

Maxwell to any grave peril.

      Maxwell also claims that the prosecutor improperly referred to a prior statement

that R.H. made to a forensic child examiner.       In the State’s closing argument, the

prosecutor said:

      Jill Carr is the forensic interviewer. You didn’t get to see the interview.
      You didn’t because you got to see R.H. and the law doesn’t allow you to
      have both. The Judge determined that if R.H. would become unavailable,
      that that video would have been admissible and you could have seen it. But
      R.H. did fine.

Tr. p. 431. Maxwell now claims that this statement suggested to the jury that the State’s

case would have been stronger had the jury been allowed to see Ms. Carr’s interview of

R.H. and that R.H. made “consistent or additional accusations in it.” Appellant’s Br. p.

22.

      Maxwell yet again failed to preserve this issue by objecting to the prosecutor’s

allegedly improper statement, requesting an admonishment, or moving for a mistrial. See

Adcock, 933 N.E.2d at 26. Moreover, we fail to see how merely mentioning the fact that

R.H. had been interviewed by Ms. Carr suggests that R.H. made additional accusations.

The prosecutor simply commented on the fact that R.H. “did fine” as a witness. This

statement did not constitute misconduct or fundamental error.



                                           18
       Maxwell also complains that the prosecutor made several references to medical

evidence during the State’s closing argument when, Maxwell claims, there was no

medical evidence of molestation. Once again, Maxwell failed to object, request an

admonishment, or move for a mistrial based on these allegedly improper statements, and

the issue is therefore waived. See Adcock, 933 N.E.2d at 26. Nor can we say that the

prosecutor’s statements amounted to fundamental error. Although there was no medical

evidence that R.H. had any physical trauma as a result of Maxwell’s molestation, the

medical evidence also indicated that physical trauma is present in only five to six percent

of child molestation victims. In addition, there was evidence that R.H. had a history of

vaginal discharge that was diagnosed as being the result of yeast infections. But there

was medical testimony that the most likely cause of vaginal discharge in pre-pubescent

girls was “non-specific vaginitis,” which can be caused by irritants, including bubble bath

or “inadequate wiping after going to the bathroom.” Tr. p. 144. The medical expert

witness also agreed that “an adult male hand rubbing the vaginal area” was also an

irritant that could cause such vaginitis. Id. at 145. Thus, even though the medical

evidence of molestation was tenuous, it was not non-existent. We therefore cannot say

that the prosecutor’s comments amounted to fundamental error.

       Maxwell next complains of the following statement made by the prosecutor during

the State’s closing argument:

       [A nurse practitioner at Riley Hospital] said if the Defendant had touched
       R.H.’s hymen, it’s very sensitive in a pre-pubertal girl, they come off the
       table screaming and the exam is over. Did R.H. say it hurt? No, because
       he didn’t get into the hymen. He did penetrate. He penetrated the labia
       majora, he penetrated the labia minora, he didn’t penetrate the hymen. We

                                            19
       have several layers as girls and you have . . . to get past all of them to win
       the prize. He didn’t get past all of them. He didn’t hurt her. If she was
       making up a story, which is his defense, this is all made up, why didn’t she
       make up a story where she got hurt? Wouldn’t that make more sense?

Tr. p. 427 (emphasis added).

       Maxwell now claims that the emphasized portion of prosecutor’s statement was

“crude” and had no basis in the evidence.     Once again, Maxwell’s argument is waived

for failure to object, request an admonishment, or move for a mistrial. Moreover, even if

crude, the comment was supported by the evidence in that there was testimony that

Maxwell penetrated R.H.’s labia with his fingers, but did not penetrate or damage her

hymen. We cannot say that the prosecutor’s statement constituted fundamental error.

       Maxwell’s next claim of prosecutorial misconduct involves the prosecutor’s

mention of the notorious serial killer Ted Bundy during the State’s closing argument.

Specifically, the prosecutor stated:

       [Mother] trusted [R.H.] with her children. Just like those women trusted
       Ted Bundy. He seemed like a nice guy. They got in the cars and nobody
       ever saw them again. Someone’s outward appearance – their appearance of
       being a warm, trusting, person is no guarantee that that’s what they actually
       are on the inside.

Tr. pp. 424-45. Maxwell claims that comparing him to a serial killer was little more than

an attempt to inflame the jury’s passions and prejudices. Yet again, Maxwell waived this

issue by failing to object, request an admonishment, or move for a mistrial. See Adcock,

933 N.E.2d at 26.

       Still, we certainly do not condone the prosecutor’s reference to a notorious serial

killer. But the prosecutor’s comment, however ill-advised, was simply trying to explain


                                            20
why Mother allowed Maxwell to watch her children and that outwardly pleasant people

can commit horrific crimes. Simply put, we do think the prosecutor’s isolated comment

amounted to fundamental error.

       Maxwell’s last claim of prosecutorial misconduct is that the State violated local

discovery rules by failing to provide the defense with Detective Looper’s notes regarding

what Maxwell said during his recorded jail telephone calls.         On appeal, the State

acknowledges that it was “unfortunate” that Detective Looper’s notes were not disclosed

until trial. But the State argues that this late disclosure did not constitute misconduct.

We agree.

       Maxwell was made aware during discovery that the State planned to use the

telephone calls as evidence. In a pre-trial conference memorandum dated November 4,

2009, the prosecutor acknowledged that the jail telephone calls had yet to be provided to

the defense. But this also means that the defense was aware that evidence of the phone

calls existed. Yet, despite the State’s failure to provide Maxwell with this evidence, he

did not ask for the trial court’s assistance to compel the State to provide any evidence of

the calls to him. The trial court also recessed the trial so that Maxwell’s counsel could

speak with Detective Looper about the calls. More importantly, Maxwell was a party to

the telephone calls and was himself aware of what he stated while he was in jail. It

cannot be said that Maxwell was unfairly surprised by the content of his own statements.

Indeed, Maxwell testified at trial regarding the telephone calls and attempted to explain

his statements to his wife. We therefore cannot conclude that the prosecutor committed

misconduct in this regard.

                                            21
                                 V. Jail Telephone Calls

       Maxwell also makes a separate claim that the trial court abused its discretion in

permitting Detective Looper to testify regarding the content of the telephone calls

Maxwell made while he was in jail. The admission of evidence is within the sound

discretion of the trial court, and we review the court’s decision only for an abuse of that

discretion. Rogers, 897 N.E.2d at 959. A trial court abuses its discretion if its decision is

clearly against the logic and effect of the facts and circumstances before the court, or if

the court has misinterpreted the law. Id.

       Maxwell claims that the trial court erred in permitting Detective Looper to testify

regarding the content of the jail calls because they were “out of context” and because

Detective Looper had no independent memory of the content of the calls. Appellant’s Br.

p. 28. Thus, Maxwell argues, “[n]o proper grounds existed for the admission of Looper’s

testimony in this unique circumstance.” Id. We disagree.

       Detective Looper testified regarding Maxwell’s out-of-court statements. The out-

of-court statement of a party is by operation of rule not hearsay. See Ind. Evidence Rule

801(d)(2)(A) (a statement is not hearsay if the statement is offered against a party and is

the party’s own statement); Dorsey v. State, 802 N.E.2d 991, 995 (Ind. Ct. App. 2004)

(concluding that trial court did not err in admitting into evidence a jailhouse telephone

conversation under Evidence Rule 801(d)(2)).

       Moreover, the State established at trial that Detective Looper’s testimony

regarding the telephone calls was admissible pursuant to Indiana Evidence Rule 803(5),

which provides:

                                             22
       (5) Recorded Recollection. A memorandum or record concerning a matter
       about which a witness once had knowledge but now has insufficient
       recollection to enable the witness to testify fully and accurately, shown to
       have been made or adopted by the witness when the matter was fresh in the
       witness’s memory and to reflect that knowledge correctly. If admitted, the
       memorandum or record may be read into evidence but may not itself be
       received as an exhibit unless offered by an adverse party.

Maxwell, without citation or further elaboration, claims that this provision was

inapplicable because “the recorded recollections were Looper’s notes. Within Looper’s

notes were his ‘shorthand’ of Maxwell’s statements.” Appellant’s Br. p. 28.

       Detective Looper's notes, whether shorthand or not, concerned a matter about

which he once had knowledge, but which by the time of trial, he had insufficient

recollection to enable him to testify fully and accurately. Moreover, when made, the

matter was fresh in his memory. We therefore conclude that the trial court did not abuse

its discretion in admitting Detective Looper’s testimony pursuant to Evidence Rule

803(5). See United States v. Cash, 394 F.3d 560, 564 (7th Cir. 2005) (holding that

testimony read from “report of contact form” filled out by federal employee was

admissible under Federal Rule of Evidence 803(5), which is substantially similar to

Indiana Evidence Rule 803(5), where the employee testified that the defendant made

statements to her during their telephone conversation, that she could not remember the

statements verbatim, and that she recorded defendant’s words during the course of the

conversation); see also Impson v. State, 721 N.E.2d 1275, 1282-83 (Ind. Ct. App. 2000)

(holding that affidavit describing incident of domestic battery could be read into evidence

under Evidence Rule 803(5) where it was signed by the victim shortly after the incident

and where the victim denied having any specific memory of the battery at trial).

                                            23
       Maxwell also complains that Detective Looper’s testimony placed his statements

out of context, citing Indiana Evidence Rule 106. This rule provides, “When a writing or

recorded statement or part thereof is introduced by a party, an adverse party may require

at that time the introduction of any other part or any other writing or recorded statement

which in fairness ought to be considered contemporaneously with it.” Evid. R. 106. As

the State notes, Detective Looper based his testimony on his notes, but no written or

recorded statement of the calls was itself admitted into evidence. Accordingly, Evidence

Rule 601 is inapplicable.

       We again note that Maxwell testified at his own trial, and he gave his version of

what he said in the recorded telephone calls. He was thus able to put his statements in the

phone calls into context. That the jury did not believe him does not make the evidence

inadmissible. In short, the trial court did not abuse its discretion in admitting Detective

Looper’s testimony regarding the content of Maxwell’s jail telephone calls.

                                   VI. Jury Instruction

       Maxwell next claims that the trial court committed fundamental error in

instructing the jury with regard to the requirement of jury unanimity. The manner of

instructing a jury is left to the sound discretion of the trial court. Rogers, 897 N.E.2d at

962. We will not reverse the trial court’s ruling unless the instructional error is such that

the charge to the jury misstates the law or otherwise misleads the jury.           Id.   Jury

instructions must be considered as a whole and in reference to each other, and even an

erroneous instruction will not constitute reversible error if the instructions, taken as a

whole, do not misstate the law or otherwise mislead the jury. Id.

                                             24
       Maxwell neither objected to the trial court’s unanimity instruction nor offered an

instruction of his own. The issue is therefore waived. See Baker v. State, 948 N.E.2d

1169, 1178 (Ind. 2011) (noting that a defendant who fails to object to an instruction at

trial waives any challenge to that instruction on appeal and that the failure to tender an

instruction likewise results in waiver of any claim of instructional error on appeal), reh’g

denied. Maxwell attempts to avoid waiver by claiming that the trial court’s instruction

constituted fundamental error. The fundamental error doctrine provides a vehicle for the

review of error not properly preserved for appeal. Baker, 948 N.E.2d at 1178. But in

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

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

fundamental due process. Id. The error must be so prejudicial to the defendant’s rights

as to make a fair trial impossible. Id. In considering whether a claimed error denied the

defendant a fair trial, we determine whether the resulting harm or potential for harm is

substantial. Id. at 1178-79. Harm is not shown by the fact that the defendant was

ultimately convicted; instead, harm is determined by whether the defendant’s right to a

fair trial was detrimentally affected by the denial of procedural opportunities for the

ascertainment of truth to which he would have been entitled. Id. at 1179.

       Maxwell notes that Counts III and IV alleged two acts of child molestation by

fondling or touching both using identical wording. See Appellant’s App. p. 26. He also

notes that R.H. testified as to multiple instances of such molestation over an extended

period of time. He therefore claims that each guilty verdict on these counts may not have

been unanimous with regard to which instance of abuse supported each verdict.

                                            25
       Maxwell argues that the trial court erred by giving only a general unanimity

instruction, which stated in relevant part:

       To return a verdict, each of you must agree to it. Each of you must decide
       the case for yourself, but only after considering the evidence with the other
       jurors. It is your duty to consult each other. You should try to agree on a
       verdict, if you can do so without compromising your individual judgment.
       Do not hesitate to re-examine your own views and change your mind if you
       believe you are wrong. But do not give up your honest belief just because
       the other jurors may disagree, or just to end deliberations.

Appellant’s App. p. 146. Maxwell now argues that the jury should have been instructed

that it had to unanimously agree as to which particular act supported which count alleged

in the information.

       This very issue was recently addressed by our supreme court in Baker, supra. In

that case, the defendant complained that although he was charged with one count of child

molesting with respect to each of his three victims, the jury heard evidence of multiple

acts of molestation concerning each alleged victim. He therefore claimed that some

jurors might have relied on different evidence than other jurors to convict him on all three

counts. On appeal, our supreme court adopted the approach taken by the California

Supreme Court, holding:

       [T]he State may in its discretion designate a specific act (or acts) on which
       it relies to prove a particular charge. However if the State decides not to so
       designate, then the jurors should be instructed that in order to convict the
       defendant they must either unanimously agree that the defendant committed
       the same act or acts or that the defendant committed all of the acts
       described by the victim and included within the time period charged.

948 N.E.2d at 1177 (citing People v. Jones, 792 P.2d 643, 658-59 (1990)).




                                              26
       In Baker, as here, the jury was not instructed that they must either unanimously

agree that the defendant committed the same act or acts or that the defendant committed

all of the acts described by the victim. But, as here, the defendant did not object to the

trial court’s unanimity instruction or tender his own instruction.          The Baker court

therefore had to decide whether the instructional error was fundamental. In addressing

that question, the court noted that the only issue at trial was the credibility of the victims.

Id. at 1179. And the only defense was to undermine the victims’ credibility. Because

the jury resolved the basic credibility dispute against Baker, it would have convicted him

of any of the various offenses shown by the evidence to have been committed. Id. The

court therefore concluded that Baker had not demonstrated that the instructional error in

his case so prejudiced him that he was denied a fair trial. Id.

       We think the same is true here. The main issue for the jury to resolve was whether

R.H. was telling the truth with regard to Maxwell’s acts of molestation. If the jury

believed her, it could have convicted him of any of the offenses shown by the evidence to

have been committed. As did the court in Baker, we conclude that Maxwell has failed to

demonstrate that the instructional error constituted fundamental error.

                                  VII.   Double Jeopardy

       In a similar vein, Maxwell claims that his convictions for both counts of Class C

felony child molesting constitute double jeopardy because there was a reasonable

possibility that actual evidence used to convict him of one count was used to convict him

of the other count. Article 1, Section 14 of the Indiana Constitution provides that “[n]o

person shall be put in jeopardy twice for the same offense.”

                                              27
       The standard for evaluating an alleged double jeopardy violation is well-settled.

In Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999), our supreme court established a

two-part test for analyzing double jeopardy claims under the Indiana Constitution and

concluded that two or more offenses are the “same offense” for double jeopardy purposes

“if, with respect to either the statutory elements of the challenged crimes or the actual

evidence used to convict, the essential elements of one challenged offense also establish

the essential elements of another challenged offense.” Thus, a double jeopardy violation

may occur if the actual evidence presented at trial demonstrates that each offense was not

established by separate and distinct facts. Williams v. State, 892 N.E.2d 666, 668–69

(Ind. Ct. App. 2008). To establish a violation of the “actual evidence” test, the defendant

must demonstrate a reasonable possibility that the evidentiary facts used by the fact-

finder to establish the essential elements of one offense may also have been used to

establish the essential elements of a second challenged offense. Id.

       Here, Maxwell claims that there is a reasonable possibility that the jury used the

same evidentiary facts to convict him of both counts of Class C felony child molesting.

Maxwell admits that R.H. testified that “inappropriate touching” occurred in three

separate locations at different times, but claims that no clear distinction was made for the

jury “as to which count encompassed which incident.” Appellant’s App. pp. 33-34.

Maxwell emphasizes that at one point during deliberations, the jury asked the trial court

if it could clarify the differences between Counts III and IV, which as noted above, were

identically worded.



                                            28
       The State alleged that Maxwell committed three separate acts of child molestation,

and the State presented evidence of three acts of molestation: two that occurred at R.H.’s

home and one that occurred at Maxwell’s house. And although Maxwell claims that the

State did not distinguish between the two counts of Class C felony child molestation in its

closing arguments, we disagree. With regard to Counts III and IV, the prosecutor stated

that these counts “are fondlings. R.H. told you every time he babysat he touched her.

Find him guilty on the . . . two C felony fondlings.” Tr. p. 429 (emphasis added). The

State presented evidence of multiple acts of fondling and emphasized the repeated acts of

molestation to the jury. Under these facts and circumstances, we conclude that Maxwell

has not demonstrated a reasonable possibility that the jury used the same evidentiary facts

to convict him of both counts of Class C felony child molesting.

                                     VIII. Sentencing

       The trial court sentenced Maxwell to four years on each of the two Class C felony

convictions, to be served concurrently with a forty-year sentence imposed on the Class A

conviction. Maxwell claims that his aggregate forty-year sentence is inappropriate in

light of the nature of his offenses and his character.

       Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence otherwise

authorized by statute if, “after due consideration of the trial court’s decision, the Court

finds that the sentence is inappropriate in light of the nature of the offense and the

character of the offender.” Although we have the power to review and revise sentences,

“[t]he principal role of appellate review should be to attempt to leaven the outliers, and

identify some guiding principles for trial courts and those charged with improvement of

                                              29
the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). It is on the basis of Appellate

Rule 7(B) alone that a criminal defendant may now challenge his sentence “where the

trial court has entered a sentencing statement that includes a reasonably detailed

recitation of its reasons for imposing a particular sentence that is supported by the record,

and the reasons are not improper as a matter of law, but has imposed a sentence with

which the defendant takes issue.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007).

It is the defendant’s burden on appeal to persuade the reviewing court that the sentence

imposed by the trial court is inappropriate. Id. at 494.

         The advisory sentence for a Class A felony is thirty years, and the maximum

sentence is fifty years. Ind. Code § 35-50-2-4 (2004). Thus, Maxwell’s sentence lies

between the advisory and maximum sentence. And the trial court imposed the advisory

four-year sentence on Maxwell’s Class C felony convictions, which is half the maximum

sentence of eight years. See Ind. Code § 35-50-2-6 (2004). The maximum possible

sentence Maxwell faced was sixty-six years, had the trial court ordered the sentences to

be served consecutively. Instead, the trial court sentenced Maxwell to a total of forty

years.

         The nature of Maxwell’s offenses reveals that Maxwell was a family member

entrusted to take care of R.H. and her siblings. Maxwell violated this trust by repeatedly

molesting R.H. He then instructed R.H. not to tell anyone of his actions, and R.H. was

afraid she would get in trouble if she did tell. Although this is not among the worst

possible scenarios for a Class A felony child molesting conviction, Maxwell’s violation

                                             30
of a position of trust justifies a sentence above the advisory. See Horton v. State, 949

N.E.2d 346, 348 (Ind. 2011) (concluding that defendant’s sentence should be greater than

the advisory where he abused a position of trust). Maxwell’s character also justifies the

trial court’s sentence. The trial court found that Maxwell had a criminal history that

included prior misdemeanor convictions for domestic battery and harassment. Although

this criminal history relatively minor, it does reveal that Maxwell has not led an entirely

law-abiding life. The nature of Maxwell’s offenses and his character might not justify a

maximum sentence, but we are unable to say that the trial court’s decision to sentence

Maxwell to an aggregate term of forty years is inappropriate.

                                        Conclusion

       The trial court did not abuse its discretion in denying Maxwell’s motions for a

mistrial, nor did the trial court abuse its discretion in permitting the State to call R.H.’s

young sister as a witness, even though the child was ultimately unable to testify. The trial

court did not abuse its discretion in propounding to the witnesses various questions posed

by the jury. Maxwell also failed to establish any reversible error in the conduct of the

prosecutor. Further, the trial court did not abuse its discretion in permitting Detective

Looper to testify regarding the content of telephone calls Maxwell made while in jail.

The trial court’s did not commit fundamental error in instructing the jury with regard to

unanimity, and Maxwell’s two convictions for Class C felony child molesting do not

constitute double jeopardy. Lastly, Maxwell’s forty-year sentence is not inappropriate in




                                             31
light of the nature of the offense and the character of the offender.

      Affirmed.

BAILEY, J., and CRONE, J., concur.




                                             32
