Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
                                                                    Jun 20 2013, 5:46 am
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:

LISA M. JOHNSON                                      GREGORY F. ZOELLER
Brownsburg, Indiana                                  Attorney General of Indiana

                                                     GARY R. ROM
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JOSEPH BAREFIELD,                                    )
                                                     )
        Appellant-Defendant,                         )
                                                     )
               vs.                                   )      No. 49A05-1210-CR-528
                                                     )
STATE OF INDIANA,                                    )
                                                     )
        Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Carol J. Orbison, Judge
                            Cause No. 49G22-1103-FB-18623


                                            June 20, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       Joseph Barefield appeals his convictions for three counts of Class B felony sexual

misconduct with a minor. We affirm.

                                          Issues

       Barefield raises four issues, which we reorder and restate as:

              I.     whether the trial court properly excluded certain
                     evidence;

              II.    whether the prosecutor’s closing argument resulted in
                     fundamental error;

              III.   whether the evidence is sufficient to support his
                     convictions; and

              IV.    whether his convictions for Count II and Count III
                     violate double jeopardy.

                                           Facts

       In November 2010, fourteen-year-old K.T. spent the night before Thanksgiving at

her sister’s apartment in Indianapolis. Her sister lived with her boyfriend, Barefield, who

was twenty-seven. That night, while her sister was in the bedroom, Barefield began

talking to K.T. about sexual experimentation. Barefield asked K.T. to sit on his penis,

which she did while she was clothed. The two then went into the dining room, K.T. sat

on a chair, and Barefield put his penis in K.T.’s mouth. Barefield then got a condom

from the kitchen, asked K.T. to put her hands on the dining room table, pulled her pants

and underwear down, and put his penis in her vagina “[a] little bit[.]”         Tr. p. 44.

Barefield told K.T. that her vagina was “too tight.” Id. He also rubbed his penis against

her anus. When K.T.’s sister came out of the bedroom, Barefield and K.T. pulled their

                                             2
pants up. Barefield went outside, and K.T. sat on the couch. K.T.’s sister went back to

the bedroom, and K.T. went with Barefield to buy cigarettes. While in the car, Barefield

told K.T. that he was not finished and that he wanted to pull over, and she told him no.

The two went back to the apartment and went to bed.

       K.T., her sister, and Barefield spent Thanksgiving with family and, several days

later, K.T. reported the incident to her mother. K.T.’s mother took K.T. to a hospital, and

the incident was reported to police.

       On March 21, 2011, the State charged Barefield with three counts of Class B

felony sexual misconduct with a minor, Class C felony sexual misconduct with a minor,

and Class D felony child solicitation. A jury found Barefield guilty as charged. The trial

court did not enter convictions on the Class C felony sexual misconduct with a minor

charge or the child solicitation charge. Barefield now appeals.

                                        Analysis

                                I. Exclusion of Evidence

       During K.T.’s cross-examination, defense counsel asked K.T., “[d]id you miss a

lot of school?” Tr. p. 122. The prosecutor objected, and the trial court sustained the

objection.   On appeal, Barefield argues that exclusion of this evidence was legally

incorrect and violated his right to cross-examine K.T. and his right to present a defense.

In his brief, Barefield asserts, “[i]f K.T. had been permitted to answer the question, the

anticipated response would have been that she missed more than a month of school due to

her allegations against Barefield.” Appellant’s Br. p. 38. Barefield suggests that most

children would perceive a month away from school as a substantial benefit and that,

                                            3
because of the trial court’s erroneous ruling, the jury never knew K.T. gained this benefit

and was left with the false impression K.T. gained nothing by her accusations.

         Barefield, however, did not make an offer of proof at trial. On appeal, Barefield

argues in a footnote that the issue is properly preserved because the substance of the

excluded testimony was presented to the trial court in a post-trial motion to modify bond.

In that motion, Barefield asserted in a footnote that, during trial, defense counsel

attempted to solicit cross-examination testimony from K.T. about her “missing more than

a month of school as a result of her making the allegations in this case despite the

complete absence of any medical reason for her to miss school.” App. p. 121. Barefield

argues that this presentation of the purported testimony serves the primary purpose of an

offer of proof because it makes the substance of the excluded evidence known to this

court.

         “The purpose of an offer of proof is to convey the point of the witness’s testimony

and provide the trial judge the opportunity to reconsider the evidentiary ruling.” State v.

Wilson, 836 N.E.2d 407, 409 (Ind. 2005). “Equally important, it preserves the issue for

review by the appellate court.” Id. “To accomplish these two purposes, an offer of proof

must be sufficiently specific to allow the trial court to determine whether the evidence is

admissible and to allow an appellate court to review the correctness of the trial court’s

ruling and whether any error was prejudicial.” Id.

         Because the purported offer of proof was not made until after trial in a motion to

modify bond, the trial court was not given an opportunity to rule on the admissibility of

the excluded testimony in the context it was offered at trial. The offer of proof was

                                              4
untimely, and this issue is waived. See Dowdell v. State, 720 N.E.2d 1146, 1150 (Ind.

1999).

                                II. Prosecutorial Misconduct

         Barefield argues that several statements made by the prosecutor during closing

argument rose to the level of prosecutorial misconduct. As Barefield acknowledges, he

did not object to the comments, and his claims are only reviewable for fundamental error.

Specifically:

                        If a defendant properly raises and preserves the issue
                of prosecutorial misconduct, then the reviewing court
                determines (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.
                Where a claim of prosecutorial misconduct has not been
                properly preserved, our standard for review is different from
                that of a properly preserved claim. More specifically, the
                defendant must establish not only the grounds for the
                misconduct but also the additional grounds for fundamental
                error. Fundamental error is an extremely narrow exception
                that allows a defendant to avoid waiver of an issue. It is error
                that makes “a fair trial impossible or constitute[s] clearly
                blatant violations of basic and elementary principles of due
                process . . . present[ing] an undeniable and substantial
                potential for harm.”

Coleman v. State, 946 N.E.2d 1160, 1166-67 (Ind. 2011) (alteration in original) (citation

omitted).

                                  A. Facts Not in Evidence

         During closing argument, the prosecutor stated, “he then tells her to get up and put

her hands on the table. So this is not something that a 14-year-old child would do unless

she was being told by someone who is grown and has done these sorts of things before . .

                                               5
. .” Tr. p. 211. According to Barefield, the prosecutor was asking the jury to infer that

K.T. was sexually inexperienced, which was contrary to K.T.’s own testimony.             In

support of this argument, Barefield relies on K.T.’s testimony that Barefield told her he

knew she was not a virgin and that he told K.T. that her sister told him K.T. was not a

virgin. See id. at 40, 76. This testimony, however, establishes only that Barefield

believed K.T. was not a virgin. It does not establish, as Barefield argues, “that K.T. was

familiar with sexual acts.” Appellant’s Br. p. 28. Barefield has not shown that this

comment is an improper reference to facts not in evidence.

                                    B. Future Crimes

       Barefield contends that the prosecutor improperly suggested that he would commit

future crimes if he was not convicted. The prosecutor stated, “You know he’s going to

wait for another opportunity. That’s going to come next, right? So good thing she finally

tells before she gets back over there.” Tr. p. 215. Taken in context, however, this line of

argument was based on the ongoing nature of the relationship between K.T. and

Barefield.   The prosecutor was suggesting that K.T. was not inclined to report the

incident because she did not want to hurt her sister and that Barefield had continued

access to K.T. Further, this line of argument is consistent with the evidence that, while in

the car with K.T. shortly after committing the offenses, Barefield propositioned K.T.

again. When taken in context, we do not believe that the prosecutor was urging to the

jury to convict Barefield because of his propensity to commit future crimes. Even if it

was improper to suggest that Barefield might have committed another offense if K.T. had



                                             6
not reported the incident, we do not believe this brief comment amounted to fundamental

error.1

                                 C. Reference to Jerry Sandusky

          Barefield also objects to the prosecutor’s argument that the crimes could have

occurred even while K.T.’s sister was in the other room. The prosecutor stated, “And the

other sister is in the room there. Jerry Sandusky was molesting children down in his

basement. Jerry Sandusky was molesting children in a gym, in a shower.” Id. at 215-

216. As the State points out, these two references were part of the prosecutor’s twenty-

two page closing argument and were not a central theme of the argument, and Barefield

agrees that Sandusky was not a central theme of the State’s closing argument. Further,

the jury was instructed that the attorneys’ unsworn statements were not evidence and that

the verdict should be based on the law and the facts, not sympathy or prejudice. “[A]

trial court’s jury instructions are presumed to cure any improper statements made during

trial.” Guy v. State, 755 N.E.2d 248, 258 (Ind. Ct. App. 2001), trans. denied. Under

these circumstances, these references did not constitute fundamental error.

                                   D. Misstatement of the Law

          Barefield contends that the prosecutor misstated the law when she argued, “[w]e

talked about this in jury selection the uncorroborated testimony of a single eyewitness

and if you belief [sic] her testimony, then he’s guilty.” Tr. p. 216. The prosecutor went

on to explain why there was no reason to disbelieve K.T.’s testimony. In context, the

1
   As part of this argument, Barefield objects to the prosecutor’s argument that the jury not “walk”
Barefield because K.T. was not the perfect victim, did not tell right away, and because there was not DNA
evidence. Tr. p. 225. We fail to see how this implies Barefield will commit future crimes.
                                                   7
prosecutor was explaining that K.T. was a credible witness and that her testimony alone

could support a guilty verdict. Even if it was a misstatement of the law, the jury was

instructed on the burden of proof, and Barefield does not challenge the manner in which

the jury was instructed. Because a trial court’s jury instructions are presumed to cure any

improper statements made during trial, Barefield has not shown fundamental error. See

Guy, 755 N.E.2d at 258.

                             E. Misstatement of the Evidence

       Barefield argues that, in a calculated effort to mislead the jury, the prosecutor

misstated K.T.’s testimony. On direct examination, K.T. testified that, after Barefield put

his penis in her mouth, she got something in her mouth and she “spit it out and wiped it

on [her] shirt.” Tr. p. 43. When asked, “what did you wipe on your shirt; your mouth or

what was in your mouth?”, K.T. answered, “[w]hat was in my mouth.” Id. On cross-

examination, K.T. clarified that she spit onto the floor and wiped her mouth on her shirt.

See id. at 93-94, 96. There was extensive testimony about K.T. spitting on the floor.

       In her rebuttal, the prosecutor discussed K.T.’s cross-examination testimony about

spitting and wiping her mouth as follows:

                     And then she tells you, and this is important, an
              important detail, after she was drilled for an hour and twenty
              minutes by defense counsel she still tells you, I spit it on the
              floor. If it’s a science fiction tale, and in science fiction tales
              you get to decide the facts yourself, if you’re telling a lie, you
              decide the facts that you’re going to tell to make your story
              better. Why does she say she spit anything out at all? Why
              doesn’t she just say she swallowed it so there’s an excuse for
              no evidence to be there?



                                              8
                     But what did she say: I spit it on the floor and then I
              rubbed my mouth on my shirt. And when he asked her, why
              did you do that, her exact words: It was a reaction.
                     She didn’t say, I wiped what was in my mouth on my
              shirt. She was wearing a capped-sleeved short shirt. Tr. p.
              230.

This argument accurately reflected K.T.’s cross-examination testimony and, even when

considering K.T.’s direct examination testimony, there is no indication that this argument

was calculated effort to mislead the jury in light of the entirety of K.T.’s extensive

testimony on this point.

                                  F. Failure to Testify

       Barefield also argues that the prosecutor implicitly commented on his failure to

testify when she referenced K.T.’s testimony about Barefield telling her that he and a

friend experimented with each other sexually so they would not get their feelings hurt.

The prosecutor stated:

              [K.T.] told you that he told her a story about him and a friend
              as a teenager. Isn’t that something that could be refuted?
              Why make that up, why make that up? She didn’t have to say
              that she was talking—she didn’t have to say that he talked
              about anything personal to him. It would have been much
              easier to say that he just came out and said, hey, [K.T.], I
              want to do some sexual things with you. But she told you the
              details of information that was personal to him, that she
              would not know about, had he not said those things to her.

Id. at 228. Barefield argues that, because the only way to refute this story was for him to

testify, the prosecutor was improperly inviting the jury to draw an inference from his

failure to testify. See Moore v. State, 669 N.E.2d 733, 739 (Ind. 1996) (“The Fifth

Amendment privilege against compulsory self-incrimination is violated when a


                                            9
prosecutor makes a statement that is subject to reasonable interpretation by a jury as an

invitation to draw an adverse inference from a defendant’s silence.”).

       We disagree that this statement would be reasonably interpreted by a jury as an

invitation to draw an adverse inference from Barefield’s silence. Instead, in context, the

prosecutor was trying to show that K.T.’s testimony was credible because of the details it

included and that, if K.T. was making up the allegations, she would not have included

unnecessary details that could have exposed her as a being untruthful. This argument is

unavailing.

                                       G. Hearsay

       During her testimony, K.T. testified that she told her boyfriend and a friend about

the incident soon after it happened. In his closing argument, defense counsel questioned

why the State did not call K.T.’s boyfriend and friend to testify about what K.T. told

them. In her rebuttal, the prosecutor asserted:

              Throughout this trial, you have heard an objection to hearsay.
              And you have heard both sides say you can only testify to
              personal knowledge. You can’t say what someone else has
              said and you heard the judge sustain those objections. So
              [K.T.’s boyfriend] couldn’t tell you what [K.T.] told him
              because of the Rules of Evidence. [K.T.’s friend] couldn’t do
              that….

Tr. p. 232.

       Barefield contends that this argument was misleading and inaccurate because not

all out-of-court statements are subject to exclusion, and he suggests that these witnesses

could have testified to K.T.’s prior consistent statements to rebut the allegation of recent

fabrication. See Lovitt v. State, 915 N.E.2d 1040, 1043 (Ind. Ct. App. 2009) (analyzing

                                            10
Ind. Evidence Rule 801(d)(1)(B)).         Even if the prosecutor’s assessment of the

admissibility of K.T.’s boyfriend’s and friend’s testimony was not accurate,

“[p]rosecutors are entitled to respond to allegations and inferences raised by the defense

even if the prosecutor’s response would otherwise be objectionable.” Dumas v. State,

803 N.E.2d 1113, 1118 (Ind. 2004). Because this assessment of the admissibility of the

testimony was in response to defense counsel’s argument, Barefield has not established

that this argument amounted to fundamental error.

                          H. Comments about Defense Counsel

       Barefield argues that the prosecutor made “disparaging and inappropriate

comments about defense counsel’s legitimate challenges to K.T.’s credibility.”

Appellant’s Br. p. 33. Barefield references the prosecutor’s suggestion that it is not fair

to ask children to report sex offenses and then call them liars when they do and the

suggestion that defense counsel put K.T. on trial. In making these arguments, it is clear

the prosecutor was addressing Barefield’s theory of the case—that K.T. had fabricated

the allegations. Although the prosecutor attempted to refute the allegation that K.T. was

lying, she did not personally attack defense counsel or otherwise make disparaging

remarks about him. This argument fails.

                                   I. Cumulative Error

       Barefield argues that the cumulative effect of the prosecutor’s inappropriate

comments resulted in fundamental error. We disagree. K.T.’s testimony regarding the

offenses was unequivocal. To the extent the prosecutor’s various arguments amounted to

misconduct, if at all, they, either individually or collectively, were relatively minor in the

                                             11
context in which they were offered and did not make a fair trial impossible or constitute

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

                             III. Sufficiency of the Evidence

       Barefield argues there is insufficient evidence to support his convictions. When

reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence

nor assess the credibility of witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).

We view the evidence—even if conflicting—and all reasonable inferences drawn from it

in a light most favorable to the conviction and affirm if there is substantial evidence of

probative value supporting each element of the crime from which a reasonable trier of

fact could have found the defendant guilty beyond a reasonable doubt. Id.

       Barefield argues that K.T.’s uncorroborated testimony is not reliable enough to

support a finding of guilty beyond a reasonable doubt.          In making this argument,

Barefield relies on a dissenting opinion suggesting “that it is time to consider whether we

should require corroborating evidence when these type of offenses are supported only by

the testimony of a single witness.” Leyva v. State, 971 N.E.2d 699, 705 (Ind. Ct. App.

2012), (Baker, J., dissenting), trans. denied. As our supreme court has recently restated,

however, “[a] conviction can be sustained on only the uncorroborated testimony of a

single witness, even when that witness is the victim.” Bailey, 979 N.E.2d at 135; see also

Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012) (“The testimony of a sole child

witness is sufficient to sustain a conviction for molestation.”).      Despite Barefield’s

challenge to his conviction resting on K.T.’s uncorroborated testimony alone, our

supreme court’s precedent is binding until it is changed by our supreme court or

                                            12
legislative enactment. Culbertson v. State, 929 N.E.2d 900, 906 (Ind. Ct. App. 2010),

trans. denied.

        K.T. unequivocally testified that Barefield put his penis in her mouth, in her

vagina, and against her anus. This testimony is sufficient to support the Class B felony

sexual misconduct with a minor convictions. See Ind. Code § 35-42-4-9(a)(1) (defining

Class B felony sexual misconduct with a minor a person at least twenty-one years of age

who, with a child at least fourteen years of age but less than sixteen years of age,

performs or submits to sexual intercourse or deviate sexual conduct). Barefield’s various

challenges to K.T.’s credibility include that he would not jeopardize his relationship with

K.T.’s sister,2 that K.T.’s sister would have seen him committing the offense when she

came out of the bedroom, that K.T. could have awoken her sister or used her phone to

call for help, that K.T. would not have voluntarily gotten in the car with Barefield after he

committed the offenses, and that there is no physical, medical, or scientific evidence to

corroborate her testimony. These arguments, however, were made at trial and were

available for the jury’s consideration when assessing K.T.’s credibility. We cannot and

will not reweigh the evidence or reassess a witness’s credibility.                   The evidence is

sufficient to support the convictions.

                                       IV. Double Jeopardy

        Barefield argues that his convictions for Count II and Count III violate Article 1,

Section 14 of the Indiana Constitution as set forth in Richardson v. State, 717 N.E.2d 32

2
    This argument is based largely on citations to transcripts of post-trial proceedings, including the
sentencing hearing and a hearing on a no-contact order. This evidence is not relevant to our consideration
of the sufficiency of the evidence presented to the jury at trial.
                                                   13
(Ind. 1999). “To show that two challenged offenses constitute the same offense under the

actual evidence test, ‘a 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.’” Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002) (quoting Richardson, 717

N.E.2d at 53). Application of the actual evidence test requires us to identify the essential

elements of each of the challenged crimes and to evaluate the evidence from the jury’s

perspective, considering where relevant the jury instructions, argument of counsel, and

other factors that may have guided the jury’s determination. Id. Under the Richardson

actual evidence test, the Indiana Double Jeopardy Clause is not violated when the

evidentiary facts establishing the essential elements of one offense also establish only one

or even several, but not all, of the essential elements of a second offense. Id. at 833.

       Count III was based on Barefield engaging in sexual intercourse with K.T. Sexual

intercourse is defined as, “an act that includes any penetration of the female sex organ by

the male sex organ.” I.C. § 35-31.5-2-302. Count II was based on Barefield performing

deviate sexual conduct involving his penis and K.T.’s anus. Deviate sexual conduct is

defined in part as an act involving a sex organ of one person and the mouth or anus of

another person. I.C. § 35-31.5-2-94. Barefield claims there is a reasonable probability

that the jury relied on the same evidence to find Barefield guilty of Counts II and III. We

disagree.

       K.T. testified that Barefield tried to put his penis in her vagina but could not

because “it was too tight.” Tr. p. 44. She stated that his penis went inside her vagina “[a]

                                             14
little bit[.]” Id. She also testified that Barefield did not try to put his penis anywhere else

but did “rub it against [her] anus.” Id. She described it as the outside of her anus. She

said that Barefield tried to put his penis in her vagina for five minutes and that he stopped

when her sister came out. On cross-examination K.T. again testified to the intercourse

and, when asked if anything else happened, she stated, “He kind of wiped—like he kind

of wiped his penis on my anus.” Id. at 103-04. She then reconfirmed this testimony and

stated that this happened when her sister came out of the bedroom. During closing

argument, the prosecutor clearly distinguished between the two offenses and the jury

instructions defined each count separately by referring to sexual deviate conduct

involving the Barefield’s sex organ and K.T.’s anus in Count II and to sexual intercourse

in Count III.

       Based on K.T.’s testimony, the closing arguments, and the manner in which the

jury was instructed, a clear distinction was made between Count II and Count III. There

is not a reasonable possibility the jury relied on the same evidence to find Barefield guilty

of Counts II and III.

       Barefield also appears to argue that common law double jeopardy principles

prohibit multiple convictions for acts committed within moments of each other as part of

one incident. See Watkins v. State, 575 N.E.2d 624, 625 (Ind. 1991). Assuming this line

of cases is based on common law double jeopardy principles and is still valid after




                                              15
Richardson,3 K.T.’s testimony described two distinct acts—the slight penetration of her

vagina and the wiping of his penis against her anus. Barefield has not established that

common law double jeopardy principles were violated.

                                             Conclusion

        There is sufficient evidence to support the convictions.                    Barefield has not

established that any alleged prosecutorial misconduct resulted in fundamental error,

either individually or collectively. Barefield waived any error based on the exclusion of

K.T.’s testimony about missing school because he did not make a timely offer of proof.

Barefield has not established that his convictions violate constitutional or common law

double jeopardy principles. We affirm.

        Affirmed.

NAJAM, J., and BAILEY, J., concur.




3
  Barefield cites a line of cases decided before Richardson, which rely on the rationale in Ellis v. State,
528 N.E.2d 60 (Ind. 1988) and Hansford v. State, 490 N.E.2d 1083 (Ind. 1986). Richardson, however,
expressly superceded Ellis and Hansford. See Richardson, 717 N.E.2d 49 at n.36.
                                                    16
