MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Mar 17 2017, 8:24 am
court except for the purpose of establishing
                                                                     CLERK
the defense of res judicata, collateral                          Indiana Supreme Court
                                                                    Court of Appeals
estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jill M. Acklin                                           Curtis T. Hill, Jr.
Shelbyville, Indiana                                     Attorney General of Indiana

                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Miguel A. Garcia-Cheverez,                               March 17, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1606-CR-1469
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Stanley Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1502-F1-5898



Altice, Judge.


                                         Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1469 | March 17, 2017    Page 1 of 8
[1]   Following a jury trial, Miguel Garcia-Cheverez was convicted of three counts of

      Level 1 felony child molesting. On appeal, Garcia-Cheverez argues that several

      statements made by the State during closing argument—statements to which he

      raised no objection—constitute prosecutorial misconduct and that such

      misconduct rises to the level of fundamental error warranting reversal of his

      convictions.


[2]   We affirm.


                                       Facts & Procedural History


[3]   During the evening of November 1, 2014, Garcia-Cheverez, then twenty-four

      years old, had been drinking at the home of his uncle and his five cousins,

      including ten-year-old R.R.A. Later that night, Garcia-Cheverez’s uncle

      permitted Garcia-Cheverez to stay and sleep on the couch because he had been

      drinking. R.R.A. testified that her father asked her to take a pillow to Garcia-

      Cheverez. R.R.A. did as her father asked, and when she was returning to her

      room, Garcia-Cheverez asked her to “[c]ome here.” Transcript at 72. R.R.A.

      went over to Garcia-Cheverez, who told her to lie down on the couch. He then

      removed his pants, but left his “short pants” on. Id. Garcia-Cheverez then put

      his finger into R.R.A.’s vagina. R.R.A. testified that she felt a “little bit” of

      pressure and pain. Id. at 73. Garcia-Cheverez then licked R.R.A.’s genitalia

      and put his tongue in her vagina. He then instructed R.R.A. to put her mouth

      on his penis, which she did. R.R.A. told Garcia-Cheverez she needed to use

      the bathroom and while in there, she washed out her mouth. When R.R.A.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1469 | March 17, 2017   Page 2 of 8
      returned, Garcia-Cheverez asked her if she wanted to do more, and R.R.A. said

      “No.” Id. at 75. R.R.A. then went back to her room.


[4]   R.R.A. was briefly in her room before she decided to go and tell her parents

      that Garcia-Cheverez had touched her “private part.” Id. at 77. R.R.A. “was

      shaking, she was in tears, nervous” when she told her parents what had

      happened. Id. at 278. R.R.A.’s mother followed R.R.A. back to her room,

      where her mother looked at her genitalia and noticed blood on her vagina and

      underwear. R.R.A. started crying and said “I am sorry.” Id. at 48. R.R.A.’s

      older sister helped their father call the police. After being confronted by

      R.R.A.’s father, Garcia-Cheverez left the house.


[5]   R.R.A.’s mother took R.R.A. to the hospital where she was examined by a

      sexual assault nurse. The examination showed an area of bruising and a one

      centimeter laceration to her hymen that extended to her vaginal wall. The

      nurse observed blood in R.R.A.’s underwear, but did not observe blood on her

      external or internal genitalia. Male DNA from sperm cells that matched the

      DNA profile of Garcia-Cheverez was found on R.R.A.’s underwear.


[6]   On February 19, 2015, Garcia-Cheverez was charged with three counts of Level

      1 felony child molesting and one count of Level 6 felony sexual battery. A jury

      trial was held on June 9 and 10, 2016. The jury found Garcia-Cheverez guilty

      of all three child molesting counts and not guilty of sexual battery. On June 24,

      2016, the trial court sentenced Garcia-Cheverez to thirty-five years with five




      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1469 | March 17, 2017   Page 3 of 8
      years suspended to probation for each conviction and ordered the sentences to

      be served concurrently. Additional facts will be provided as necessary.


                                          Discussion & Decision


[7]   On appeal, Garcia-Cheverez challenges his convictions on grounds of

      prosecutorial misconduct, pointing to three different statements by the

      prosecutor during closing argument. Garcia-Cheverez acknowledges that he

      did not object to the prosecutor’s statements or request an admonishment at

      trial. To avoid waiver, he argues that the prosecutor’s statements constitute

      fundamental error. See Booher v. State, 773 N.E.2d 814, 818 (Ind. 2002)

      Fundamental error is meant to permit appellate courts a means to correct the

      most egregious and blatant trial errors that otherwise would have been

      procedurally barred, not to provide a second bite at the apple for defense

      counsel who ignorantly, carelessly, or strategically fail to preserve an error. See

      Baer v. State, 942 N.E.2d 80, 99 (Ind. 2011) (noting it is “highly unlikely” to

      prevail on a claim of fundamental error relating to prosecutorial misconduct).


[8]   To establish prosecutorial misconduct, we must “determine (1) whether the

      prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under

      all of the circumstances, placed the defendant in a position of grave peril to

      which he or she would not have been subjected.” Booher, 773 N.E.2d at 817

      (quoting Coleman v. State, 750 N.E.2d 370, 374 (Ind. 2001)). 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. For


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1469 | March 17, 2017   Page 4 of 8
       prosecutorial misconduct to constitute fundamental error, it must “make a fair

       trial impossible or constitute clearly blatant violations of basic and elementary

       principles of due process [and] present an undeniable and substantial potential

       for harm.” Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002).


[9]    First, Garcia-Cheverez argues that the deputy prosecutor improperly asked the

       jurors to put themselves in the victim’s place. The statement, in context,

       follows:


                [Garcia-Cheverez] put his finger inside her private part, which
                she clarified, she means vagina when she says that. She felt
                pressure when he put his finger in there and she felt pain. That’s
                also consistent and clear, but that’s consist [sic] with a ten year
                old’s, now 12 year old’s experience of that particular act. If you
                think about it you’re not required to abandon your common
                sense as jurors, not at all. But if you think about, think about how
                that would feel, pressure and pain.


       Id. at 448 (emphasis supplied).


[10]   Garcia-Cheverez directs us to McBride v. State, 785 N.E.2d 312 (Ind. Ct. App.

       2003), trans. denied. We find the prosecutor’s statement in this case is

       distinguishable from the challenged statements in McBride.1 Here, the




       1
         In McBride, the prosecutor asked the jury to consider “[if] this was your son or daughter that was sitting in
       the cab of the truck, or if this was you, and somebody fired on your child twice like that, what would you call
       it?” 785 N.E.2d at 320. This court found that the statement was “ill-advised and inappropriate” because it
       was “potentially misleading” in that the jury was asked to put themselves in the victim’s shoes thereby
       shifting the emphasis to the victim. Id. Despite the finding of misconduct, however, the court concluded that
       such did not rise to the level of fundamental error. Id.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1469 | March 17, 2017              Page 5 of 8
       prosecutor did not ask the jury to put themselves in the place of the victim, but

       instead, asked the jury to use their common sense and good judgment to assess

       whether the victim was credible when she explained that Garcia-Cheverez

       caused her to feel pressure and pain when he put his finger in her vagina. In

       other words, the prosecutor was not asking the jurors how they would feel if

       this was done to them, but rather, whether R.R.A.’s statement was consistent

       with how a twelve-year old would describe what had occurred to her when she

       was ten years old. There is nothing improper in this regard with the

       prosecutor’s statement. Garcia-Cheverez has failed to establish error, let alone

       fundamental error.


[11]   Garcia-Cheverez next argues that the prosecutor committed misconduct by

       personally vouching for the credibility of R.R.A. At trial, R.R.A. testified that

       Garcia-Cheverez digitally penetrated her, performed oral sex on her, and had

       her perform oral sex on him. When she came back from the bathroom, Garcia-

       Cheverez asked her if she wanted to do “more.” Transcript at 75. During

       closing argument, the prosecutor stated:


               And then he asked if she wanted to do more, that’s what she
               testified to. The defendant asked her if she wanted to do more.
               It’s not something a kid comes up with. And the reason it’s not
               something a kid comes up with out of nowhere is because it’s what
               happened. It’s what he said to her. It wouldn’t occur to a child, oh, let’s
               do more. It doesn’t.


       Id. at 449 (emphasis supplied).



       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1469 | March 17, 2017   Page 6 of 8
[12]   This statement is not an example of vouching on the part of the prosecutor. Cf.

       Schlomer v. State, 580 N.E.2d 950, 957 (Ind. 1991) (prosecutor’s statement, “I

       believe Detective McGee when he tell[s] us what happened,” held improper).

       The prosecutor did not state her personal opinion as to the credibility of R.R.A.

       Rather, the prosecutor’s statement is a direct reference to very specific

       testimony from R.R.A. By emphasizing this testimony, the prosecutor was

       urging the jury to consider the evidence in conjunction with R.R.A.’s age in

       assessing her credibility. This does not amount to prosecutorial misconduct.

       Even if such statement constituted improper vouching, Garcia-Cheverez clearly

       has not met his burden of establishing fundamental error.


[13]   Garcia-Cheverez’s third argument is that the prosecutor committed misconduct

       by expressing her personal opinion about his guilt or innocence. See Ellison v.

       State, 717 N.E.2d 211, 213 (Ind. Ct. App. 1999) (citing Ind. Professional

       Conduct Rule 3.4(e)). He directs us to this statement made by the prosecutor

       during closing argument:

               We’re not asking that you find an innocent man guilty, not at all.
               We’re asking you to find that man guilty (pointing) and the
               reason we’re asking you to do that is because he is.


       Transcript at 455.


[14]   Even if we assume that the prosecutor’s statements in this regard amounts to

       misconduct, the harm done to Garcia-Cheverez does not rise to the level of

       fundamental error. Where there is overwhelming independent evidence of a


       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1469 | March 17, 2017   Page 7 of 8
       defendant’s guilt, error made by a prosecutor during the closing argument is

       harmless. Jerden v. State, 37 N.E.3d 494, 500 (Ind. Ct. App. 2015). Here,

       R.R.A. provided compelling testimony that Garcia-Cheverez committed three

       separate acts of sexual abuse against her. Her testimony was buttressed with

       evidence that R.R.A. had bruising and a tear in her hymen, there was blood in

       her underwear, and male DNA from sperm cells that matched the DNA profile

       of Garcia-Cheverez was found on R.R.A.’s underwear. Garcia-Cheverez does

       not dispute the evidence against him, which was overwhelming. Thus, even if

       we assume the prosecutor improperly remarked to the jury regarding her

       personal opinion as to guilt or innocence, any error is at most harmless and

       therefore not fundamental.


[15]   In sum, Garcia-Cheverez has failed to establish that the prosecutor engaged in

       misconduct that rises to the level of fundamental error. 2


[16]   Judgment affirmed.


[17]   Riley, J. and Crone, J., concur.




       2
         Garcia-Cheverez presents the same arguments in challenging each of the prosecutor’s statements as
       violating his due process rights under the Fourteenth Amendment. As our Supreme Court has stated, like the
       federal plain error doctrine, “[o]ur fundamental error doctrine is equal to the task” of reviewing claims not
       preserved or procedurally defaulted. Addison v. State, 962 N.E.2d 1202, 1213 (Ind. Ct. App. 2012). Here,
       even if the federal standard were applicable, the same result obtains.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1469 | March 17, 2017             Page 8 of 8
