MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Oct 17 2019, 10:40 am

court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David W. Stone IV                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael W. Willhoite,                                    October 17, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-158
        v.                                               Appeal from the
                                                         Madison Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Thomas Newman, Jr.
                                                         Trial Court Cause No.
                                                         48C03-1601-F1-144



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019                  Page 1 of 17
[1]   Following a jury trial, Michael W. Willhoite (“Willhoite”) was convicted of

      child molesting1 as a Level 1 felony and incest2 as a Level 4 felony. The trial

      court sentenced him to twenty-five years for child molesting and a concurrent

      six years for incest for an aggregate sentence of twenty-five years. On appeal,

      Willhoite raises the following restated issues:


                 I.       Whether the trial court abused its discretion when it
                          denied Willhoite’s motion for continuance on the eve of
                          trial;


                 II.      Whether statements made by the prosecutor during closing
                          argument—statements to which Willhoite raised no
                          objection at trial—constituted prosecutorial misconduct,
                          the cumulative effect of which rose to the level of
                          fundamental error; and


                 III.     Whether Willhoite’s convictions for child molesting and
                          incest violated Indiana’s prohibition against double
                          jeopardy.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                       Facts and Procedural History
[3]   Willhoite and S.Y. were married and had three daughters, J.W., T.W., and

      S.W. In 2015, after Willhoite and S.Y.’s marriage ended, Willhoite and his




      1
          See Ind. Code § 35-42-4-3(a)(1).
      2
          See Ind. Code § 35-46-1-3.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 2 of 17
      daughters lived together in a home in Anderson, Indiana, with Willhoite’s

      mother. Willhoite slept in a makeshift bedroom in the attic. The girls

      occasionally slept with Willhoite in his bed, sometimes all together, and other

      times just one of the girls slept with him. Once, when T.W. was alone in bed

      with Willhoite, he put his hand on her thigh and touched both the inside and

      outside of her leg. Tr. Vol. III at 19, 22, 30-31. T.W. pushed Willhoite’s hand

      off. When he put his hand back on T.W.’s thigh, she went “to the bottom of

      the bed” to sleep. Id. at 19. T.W. did not tell anyone about the incident. Id. at

      31.


[4]   Sometime after December 25, 2015, when she was nine years old, T.W. was

      sleeping on her side in Willhoite’s bed and was awakened when he “put[] his

      penis in [her] butt.” Id. at 13-14. Willhoite was “moving” his penis by “pulling

      it out and putting it back in”; T.W. estimated that Willhoite continued this

      motion for one to two minutes. Id. at 14, 15. T.W. said that while Willhoite

      initially made no sound, he later “started to moan.” Id. at 15. T.W. began to

      turn around because she “didn’t know what he was gonna do next” and saw

      Willhoite “pulling up his pants the rest of the way.” Id. at 16. T.W. sat up and

      asked, “[D]ad, can I use the restroom?” Id. at 17. When Willhoite said,

      “[Y]eah, you don’t have to ask,” T.W. pulled up her pants and “went

      downstairs to the restroom to think about what [she] was gonna do because

      [she] was scared.” Id.


[5]   Leaving the bathroom, T.W. went into her grandmother’s bedroom, where her

      grandmother was already sleeping. T.W. used tote bags and blankets to cover

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 3 of 17
      herself and fell asleep on her grandmother’s bedroom floor. Id. at 18. T.W.’s

      grandmother did not wake up, and T.W. left the room the next morning

      without anyone seeing her. Id. Shortly thereafter, T.W. told her older sister,

      J.W., what had happened. T.W. explained, that J.W. “was always there for

      [her,] and [T.W.] knew it was good if [she] told somebody.” Id. at 20. J.W.

      said that, when T.W. told her about the incident, T.W. was “afraid and like

      scared,” and she was “very emotional,” which was not normal for T.W. Id. at

      64. T.W. told J.W. not to tell anyone about the incident, but J.W. thought she

      should tell someone, so she told their aunt. Id. at 65. The aunt subsequently

      informed T.W.’s mother, S.Y. Soon thereafter, T.W. and her sisters were

      interviewed at Kids Talk, “a forensic interview location” with a specialty in

      interviewing child victims. Id. at 20, 107. During the interview, T.W. related

      the same details of the sexual assault.


[6]   After the interview, S.Y. took T.W. to an Anderson hospital for a sexual assault

      exam. Tr. Vol. III at 71. On the way there, S.Y. asked T.W. what Willhoite

      had done. Id. Although T.W. was scared and crying, she told her mother how

      Willhoite had sexually assaulted her. Id. The results of T.W.’s medical

      examination were normal; the exam found no physical injuries or DNA

      present. On January 25, 2016, Willhoite, who was at that time thirty-one years

      old, was arrested and charged with Level 1 felony child molesting and Level 4

      felony incest. Id. at 113.


[7]   Willhoite’s trial was initially set for May 24, 2016. The trial court granted

      numerous continuances during the next two and a half years before trial. At

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 4 of 17
      least four of those continuances were requested by Willhoite. On the eve of

      what was then a November 26, 2018 trial date, the trial was continued to

      November 28, 2018, by agreement of both parties. Appellant’s App. Vol. II at 17.

      On November 26, 2018, defense counsel, David Alger (“Alger”), filed an

      amended motion for continuance, arguing that his father was ill, and his illness

      would prevent Alger from giving the trial his full attention. Id. at 153. The trial

      court denied that motion. Id. at 17. On November 28, 2018, after defense

      counsel had engaged in extensive voir dire, and a jury was empaneled, Alger

      renewed his motion for a continuance, which the trial court again denied. Tr.

      Vol. II at 242.


[8]   A jury trial was held November 28 and 29, 2018. Willhoite’s defense during

      trial was that T.W. had fabricated the story about him because she was mad at

      him and jealous of her sisters. To counter the fact that T.W.’s physical

      examination showed no sign of injury, the State offered the testimony of Holly

      Renz (“Renz”), a sexual assault nurse examiner employed by Community

      Hospital in Anderson. Renz explained the examination procedure and said,

      “[A]bout ninety-five percent (95%) of [the] time we see normal exams.” Tr.

      Vol. III at 45. Renz said that one of the reasons for a normal exam is “the

      perpetrator . . . may groom the child in such a way that there is no injury.” Id.

      at 46. Furthermore, there is delayed disclosure because “children generally are

      told not to tell and they don’t,” and injuries may not show because “our bodies

      can heal very quickly.” Id. at 45-46.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 5 of 17
[9]    During closing argument, defense counsel suggested that Willhoite could not be

       the monster that T.W. had claimed; otherwise he would have abused his other

       daughters and would have sexually abused T.W. more than once. Tr. Vol. III at

       151-52. The prosecutor responded, in closing argument, that he was not asking

       the jury to call Willhoite a monster; he only wanted them to find that he is a

       “molester, cause he is, cause that’s what he did.” Id. at 156. Suggesting an

       alternate theory as to why T.W. might be the only victim, the prosecutor said:


               I thank God that he didn’t do this to the other girls. But I think
               had he gotten away with this he probably would have. I think
               T.[W.] saved her sisters. . . . Because there’s a grooming
               behavior. He started with just sleeping with [T.W.], putting his
               arm around her. He told you he’d snuggle, spoon. Put his hand
               on a thigh. She didn’t like it so she moved it, he put it back.
               Waited. When she didn’t tell anyone he went further. That’s
               grooming.


       Id. at 156. Willhoite did not object. Id.


[10]   At the conclusion of trial, the jury found Willhoite guilty of both child

       molesting and incest, and the trial court sentenced him to twenty-five years for

       the Level 1 felony child molesting conviction and a concurrent six-year

       sentence for the Level 4 felony incest conviction, for an aggregate sentence of

       twenty-five years. Willhoite now appeals.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 6 of 17
                                      Discussion and Decision

                                     I. Denial of Continuance
[11]   Willhoite contends that the trial court abused its discretion when it denied his

       request for a continuance on the eve of trial. As our Supreme Court noted in

       Gibson v. State:


               Courts are generally reluctant to grant continuances in criminal
               cases merely to allow for additional preparation. But a defendant
               is statutorily entitled to a continuance where there is an absence
               of material evidence, absence of a material witness, or illness of
               the defendant, and the specially enumerated statutory criteria are
               satisfied. If none of those conditions are present, however, a trial
               court has wide discretion to deny a motion to continue. We will
               only find an abuse of that discretion where a defendant was
               prejudiced as a result of not getting a continuance. To
               demonstrate such prejudice, a party must make a specific
               showing as to how the additional time requested would have
               aided counsel.


       43 N.E.3d 231, 235-36 (Ind. 2015) (internal citations and quotations omitted),

       cert. denied, 137 S. Ct. 54 (2016). In other words, “continuances . . . will be

       granted only in the furtherance of justice on a showing of good cause.” Harbert

       v. State, 51 N.E.3d 267, 279 (Ind. Ct. App. 2016), trans. denied. “‘There is a

       strong presumption that the trial court properly exercised its discretion.’”

       Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (quoting Warner v. State, 773

       N.E.2d 239, 247 (Ind. 2002)). Here, Willhoite was not statutorily entitled to a

       continuance.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 7 of 17
[12]   Willhoite’s trial was initially set for May 24, 2016. During the two-and-a-half-

       year period between Willhoite’s arrest and his November 28, 2018 trial, the trial

       court reset his trial date nine times, twice due to congestion of the court, three

       times due to joint motions for continuance, and four times due to Willhoite’s

       motions for continuance. Closer to trial, the trial court denied two of defense

       counsel Alger’s motions for continuance, one filed on November 7, 2018

       relating to the November 26, 2018 trial date and one filed on November 26,

       2018 relating to the November 28, 2018 trial date.3 Appellant’s App. Vol. II at 17,

       53-54, 59-61, 84-86, 88-89, 118-120, 125-26.


[13]   In his November 26, 2018 amended motion, Alger asserted a continuance was

       needed because: (1) he assists his mother in providing care to his father, who is

       ninety-five years old and suffers from COPD and liver cancer; (2) just the

       previous day, his father had lost the use of his legs, was less responsive, and was

       hospitalized; (3) he would be spending each evening at his father’s bedside; and

       (4) his “attention would be diverted from his representation of defendant.” Id.

       at 153. The trial court denied Alger’s motion on November 27, 2018. On

       November 28, 2018, following extensive voir dire and the empanelment of the

       jury, Alger renewed his November 26 motion to continue trial. The State

       objected, and the trial court responded, “Court denies the motion for




       3
        By agreement of the parties, the November 26, 2018 trial date was continued to November 28, 2018.
       Appellant’s App. Vol. II at 17.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019              Page 8 of 17
       continuance. I will be happy to be reconsidered [sic] if other issues—other

       exigencies happen.” Id. at 242-43.


[14]   Willhoite contends he “suffered prejudice because the denial of the continuance

       meant he was represented by an attorney who was distracted by the terminal

       illness of his father and who was spending his evenings with his hospitalized

       father.” Appellant’s Br. at 8. However, Willhoite did not “make a specific

       showing as to how the additional time requested would have aided counsel.”

       Gibson, 43 N.E.3d at 236. Willhoite did not introduce any evidence that Alger

       was distracted at trial. In fact, the transcript reveals that Alger was engaged,

       attentive, asked appropriate questions during voir dire and trial, effectively

       cross-examined the State’s witnesses, presented an affirmative defense, and

       objected when necessary. Here, while Willhoite was charged with two felonies,

       the evidence for the charges was the same for both, Willhoite’s trial was held

       more than two and a half years after he was charged, Willhoite’s trial date was

       rescheduled about nine times, and Willhoite, himself, was granted four

       continuances. Thus, Willhoite was not prejudiced by the denial of the

       continuance.


[15]   We sympathize with an attorney who is dealing with both personal issues and

       the responsibility of trying a criminal case; however, a continuance is for the

       protection of a defendant, and in the absence of prejudice, the trial court does

       not abuse its discretion when it denies a motion for a continuance. See Elmore v.

       State, 657 N.E.2d 1216, 1218-19 (Ind. 1995) (denial of continuance upheld in

       case involving five felony charges, when the attorney had only one month to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 9 of 17
       prepare); Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011) (no abuse of

       discretion in denying continuance of defendant’s case, which consisted of one

       felony count and had been ongoing for over a year), trans. denied; Schmid v. State,

       804 N.E.2d 174, 178 (Ind. Ct. App. 2004) (no abuse of discretion when court

       denied continuance in murder case because the case “had been pending for

       quite some time” and two months was “adequate time [for counsel] to

       prepare.”), trans. denied. Considering this precedent, we cannot say the trial

       court abused its discretion when it denied Willhoite’s final motion for

       continuance.


                                        II. Closing Argument
[16]   Willhoite next challenges his convictions on the grounds of prosecutorial

       misconduct, citing the prosecutor’s statements during closing argument that

       Willhoite groomed T.W. Willhoite argues that it was inappropriate for the

       State to reference “grooming” because the concept was raised only once during

       Renz’s testimony at trial. Appellant’s Br. at 10.


[17]   When we review a claim of prosecutorial misconduct that was properly raised

       in the trial court, “we determine (1) whether misconduct occurred, and if so, (2)

       ‘whether the misconduct, under all of the circumstances, placed the defendant

       in a position of grave peril to which he or she would not have been subjected’

       otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (quoting Cooper v.

       State, 854 N.E.2d 831, 835 (Ind. 2006)). “A prosecutor has the duty to present

       a persuasive final argument and thus placing a defendant in grave peril, by


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 10 of 17
       itself, is not misconduct.” Id. (citing Mahla v. State, 496 N.E.2d 568, 572 (Ind.

       1986)). “‘Whether a prosecutor’s argument constitutes misconduct is measured

       by reference to case law and the Rules of Professional Conduct. The gravity of

       peril is measured by the probable persuasive effect of the misconduct on the

       jury’s decision rather than the degree of impropriety of the conduct.’” Id.

       (quoting Cooper, 854 N.E.2d at 835 (citations omitted)). “To preserve a claim of

       prosecutorial misconduct, the defendant must—at the time the alleged

       misconduct occurs—request an admonishment to the jury, and if further relief is

       desired, move for a mistrial.” Id. Here, Willhoite did not object to the State’s

       reference to “grooming” in its closing argument.


[18]   “Our standard of review is different where a claim of prosecutorial misconduct

       has been procedurally defaulted for failure to properly raise the claim in the trial

       court, that is, waived for failure to preserve the claim of error.” Id. “The

       defendant must establish not only the grounds for prosecutorial misconduct but

       must also establish that the prosecutorial misconduct constituted fundamental

       error. Id. at 667-68. “Fundamental error is an extremely narrow exception to

       the waiver rule where the defendant faces the heavy burden of showing that the

       alleged errors are so prejudicial to the defendant’s rights as to ‘make a fair trial

       impossible.’” Id. at 668 (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind.

       2002)). In other words, to establish fundamental error, the defendant must

       show that, under the circumstances, “the trial judge erred in not sua sponte

       raising the issue because alleged errors (a) constitute clearly blatant violations of

       basic and elementary principles of due process’ and (b) ‘present an undeniable


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 11 of 17
       and substantial potential for harm.” Id. (internal quotation marks omitted).

       The element of such harm is not established by the fact of ultimate conviction

       but rather “depends upon 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 otherwise would have been entitled.” Id.

       (quoting Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994)).


[19]   Our evaluation of fundamental error requires this court to look at the alleged

       misconduct “in the context of all that happened and all relevant information

       given to the jury—including evidence admitted at trial, closing argument, and

       jury instructions—to determine whether the misconduct had such an

       undeniable and substantial effect on the jury’s decision that a fair trial was

       impossible.” Ryan, 9 N.E.3d at 668. At trial, Willhoite’s defense was that

       T.W. concocted the story about the assault, either because she was jealous of

       her sisters and hoped for attention or because she was mad at Willhoite. Tr.

       Vol. III at 28-30. On cross-examination, defense counsel confirmed that T.W.

       received no treatment at the hospital and that she had not told her grandmother

       about the sexual assault. Id. at 32. Through this line of questioning, defense

       counsel suggested that T.W.’s account of events was not credible. Id. at 32.


[20]   During the State’s initial closing argument, the prosecutor said that T.W. had

       not made up the story; she was not jealous of her sisters, and she was not mad

       at Willhoite. Id. at 138. The prosecutor related that T.W.’s demeanor on the

       stand was that of a young girl who is afraid and does not want to talk about the

       assault. Id. The prosecutor then set forth the elements of the crimes and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 12 of 17
       reviewed the testimony. The prosecutor explained that T.W. did not tell her

       grandmother because T.W. did not think her grandmother would believe her.

       Id. at 142. On the way to the hospital, T.W. shared with her mother the same

       version of events surrounding the assault that she had shared with her sister and

       Kids Talk. T.W.’s mother noticed that she was trembling but not talkative

       during the physical examination. Id. at 146.


[21]   During defense counsel’s closing argument, Alger told the jury that the case was

       about the testimony of two people, Willhoite and T.W. Id. at 151.

       Recognizing that there was no medical testimony or DNA that linked Willhoite

       to the crime, defense counsel said that the hard thing about the case was that

       one of them “has to be telling the truth and one has to be telling a lie.” Id.


               If T.[W.] is telling the truth, Michael Willhoite is a monster. A
               monster. You heard his testimony. Can you say beyond a
               reasonable doubt that Michael Willhoite is a monster? Does he
               appear to be a monster to you? Wouldn’t a monster be someone
               who not only has violated and molested one of his daughters,
               wouldn’t he have violated and molested another, both older and
               younger? Wouldn’t he have violated and molested her more
               than once? If you believe T.[W.], Michael Willhoite is a
               monster. But nine (9) year old girls can also lie.


       Id. at 151-52.


[22]   In rebuttal, the prosecutor said:


               I’m not gonna ask you to call him a monster cause it’s not our
               job. I’m gonna ask you to find him a molester, cause he is, cause
               that’s what he did. We talked a little bit about grooming. They

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 13 of 17
               said grooming is some—they don’t things [sic]. And he said if he
               would have done this he would have done it to the other two (2)
               girls. I thank God that he didn’t do this to the other girls. But I
               think had he gotten away with this he probably would have. I
               think T.[W.] saved her sisters. How do I—Why do I think this?
               Because there’s a grooming behavior. He started with just
               sleeping with [T.W.], putting his arm around her. He told you
               he’d snuggle, spoon. Put his hand on a thigh. She didn’t like it
               so she moved it, he put it back. Waited. When she didn’t tell
               anyone he went further. That’s grooming.


       Id. at 156.


[23]   During the State’s initial closing argument, the State made no mention that

       Willhoite was grooming T.W. Instead, the State focused on the elements that it

       had to prove to convict Willhoite of child molesting and incest. Id. at 137-51.

       It was Alger who suggested to the jury that the case could be decided on the one

       issue of whether T.W. lied. Id. at 152. To cast doubt on T.W.’s testimony,

       defense counsel suggested for the first time that Willhoite was not the monster

       he seemed because he had not molested his other daughters and he had

       molested T.W. only once.


[24]   Read in context, the prosecutor’s comments regarding grooming behavior arose

       from Renz’s testimony at trial, when she said that one of the reasons for a

       normal exam is the perpetrator “may groom the child in such a way that there

       is no injury.” Tr. Vol. III at 46. Furthermore, the prosecutor was making a

       direct rebuttal to defense counsel’s implication that, because Willhoite had not

       molested his other daughters, he must be innocent of having molested T.W.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 14 of 17
       Willhoite slept with T.W. on numerous occasions, and prior to this incident, he

       had put his hand on the inside and outside of T.W.’s thigh even after she told

       Willhoite to stop. T.W. told no one about that incident. The State’s comments

       offered an alternative theory as to why T.W. could be telling the truth and, yet,

       still be the sole victim. It remained within the purview of the jury to determine

       who was telling the truth.


[25]   To prove fundamental error Willhoite faced the heavy burden of showing that

       the alleged errors were so prejudicial as to make a fair trial impossible. Ryan, 9

       N.E.3d at 668. Based on the evidence before us, we cannot say that the

       prosecutor’s comments amounted to prosecutorial misconduct, let alone

       misconduct that constituted fundamental error. The State did not commit

       misconduct during its rebuttal to defense counsel’s closing argument.


                                         III. Double Jeopardy
[26]   Finally, Willhoite contends that because he committed only one act of sexual

       misconduct against T.W., his convictions for Level 1 felony child molesting and

       Level 4 felony incest violated the Indiana prohibition against double jeopardy.

       Appellant’s Br. at 12. The State agrees that Willhoite’s convictions for child

       molesting and incest cannot both stand. Appellee’s Br. at 14.


[27]   The Indiana Double Jeopardy Clause, Article 1, Section 14 of the Indiana

       Constitution, provides, “No person shall be put in jeopardy twice for the same

       offense.” “‘[T]wo or more offenses are the “same offense” in violation of

       Article I, Section 14 of the Indiana Constitution, if, with respect to either the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 15 of 17
       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.’” Howell v. State, 97 N.E.3d

       253, 263 (Ind. Ct. App. 2018) (quoting Richardson v. State, 717 N.E.2d 32, 49

       (Ind. 1999)), trans. denied.


[28]   Willhoite’s double jeopardy challenge is based on the actual evidence used to

       convict him. Appellant’s Br. at 12. Under the “actual evidence” test, the actual

       evidence presented at trial is examined to determine whether each challenged

       offense was established by separate and distinct facts. Howell, 97 N.E.3d at 264.

       The State agrees that “[t]here was a reasonable possibility that the jury used the

       same facts to find [Willhoite] guilty of child molesting and incest because the

       evidence established only one act of sexual misconduct.” Appellee’s Br. at 15

       (citing Tr. Vol. III at 13-14, 18).


[29]   When a double jeopardy violation has occurred, the “reviewing court may

       remedy the violation by reducing either conviction to a less serious form of the

       same offense if doing so will eliminate the violation.” Thompson v. State, 82

       N.E.3d 376, 383 (Ind. Ct. App. 2017) (citing Richardson, 717 N.E.2d at 54),

       trans. denied. However, if doing so will not eliminate the violation, one of the

       convictions must be vacated. Id. Reducing either of Willhoite’s convictions

       will not eliminate the double jeopardy violation, so we must vacate his

       conviction for Level 4 felony incest since it is the conviction with a lesser penal

       consequence. See Richardson v. State, 717 N.E.2d 32, 55 (Ind. 1999) (when two

       convictions cannot stand, the conviction with the less severe penal
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 16 of 17
       consequences should be vacated). Vacating this conviction and the

       corresponding sentence does not affect Willhoite’s aggregate twenty-five-year

       sentence because the sentences for Level 1 felony child molesting and Level 4

       felony incest were ordered to run concurrently.


[30]   In conclusion, we find that the trial court did not abuse its discretion when it

       denied Willhoite’s motion for continuance on the eve of trial. We also find that

       the State did not commit fundamental error or deprive Willhoite of a fair trial

       when the prosecutor referenced “grooming” in her closing argument. Finally,

       because Willhoite’s convictions for both Level 1 felony child molesting and

       Level 4 felony incest violate the double jeopardy prohibition, we affirm his

       conviction for child molesting and reverse his conviction for incest and remand

       to the trial court to vacate that conviction. Recognizing that Willhoite’s

       sentences were to be served concurrently, vacating the incest conviction does

       not alter Willhoite’s aggregate sentence of twenty-five years.


[31]   Affirmed in part, reversed in part, and remanded with instructions.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019   Page 17 of 17
