MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Dec 20 2019, 5:44 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
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Justin A. Conrad,                                        December 20, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-756
        v.                                               Appeal from the Fountain Circuit
                                                         Court
State of Indiana,                                        The Honorable Stephanie S.
Appellee-Plaintiff.                                      Campbell, Judge
                                                         Trial Court Cause No.
                                                         23C01-1710-F4-524



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019                  Page 1 of 12
                                       Statement of the Case

[1]   Justin Conrad (“Conrad”) appeals, following a jury trial, his conviction for

      Level 4 felony child molest1 and the sentence imposed. Conrad argues that: (1)

      the prosecutor engaged in prosecutorial misconduct that amounted to

      fundamental error; and (2) that his sentence is inappropriate. Concluding that

      Conrad has failed to show fundamental error and that his sentence is not

      inappropriate, we affirm Conrad’s conviction.


[2]   We affirm.


                                                    Issues

                  1. Whether the prosecutor’s statements during closing
                  argument amounted to fundamental error.

                  2. Whether Conrad’s sentence is inappropriate.

                                                     Facts

[3]   On October 20, 2017, twelve-year-old J.L. (“J.L.”), the victim, and her family

      hosted a memorial at their home following a funeral for J.L.’s uncle. Several

      family members and friends attended the memorial, including twenty-eight-year

      -old Conrad, who was best friends with J.L.’s uncle. At some point during the

      evening, J.L. and her younger cousin fell asleep on a couch in the living room.




      1
          IND. CODE § 35-42-4-3.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019   Page 2 of 12
      J.L. wore a shirt, pajama pants, and underwear as she slept. Nearby, her

      grandmother and two other cousins slept on the living room floor.


[4]   The following morning, J.L. woke up because she felt a “scratching pain”

      immediately above her vagina. (Tr. Vol. 2 at 130, 208). J.L. testified that she

      could only see Conrad’s wrist because the rest of his hand was in her underwear

      and that his hand was in her pants for “about 20 seconds.” (Tr. Vol. 2 at 208).

      Following the encounter, J.L. saw Conrad sitting in the chair immediately next

      to her. After looking at Conrad, J.L. moved to the opposite end of the couch to

      lie behind her cousin. Conrad then moved to the couch and sat by J.L.’s feet.

      Visibly upset, J.L. eventually woke her mother up and informed her about what

      had occurred. Her mother looked for Conrad, but he had left the house.


[5]   Fountain County Sheriff Deputy Scott Rainey (“Deputy Rainey”) responded to

      the call and advised J.L.’s parents to take her to the hospital for a sexual assault

      examination. Deputy Rainey later located Conrad on a street near J.L.’s home

      and noticed that he “smell[ed] of alcohol” and “had some slurred speech.” (Tr.

      Vol. 2 at 157). Deputy Rainey proceeded to interview Conrad because he was

      able to communicate “just fine” and could “understand what [they] were

      talking about.” (Tr. Vol. 2 at 157-58). During this first interview, Conrad

      initially claimed that he had touched J.L.’s toe, then her waistline, and finally

      admitted that he touched the “fuzzy area above [J.L.’s] vagina.” (Tr. Vol. 2 at

      162). The next day, during a second interview, Conrad insisted that he had

      accidentally touched J.L., but not inside her pants, while he was trying to stand

      up.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019   Page 3 of 12
[6]   The State charged Conrad with Level 4 felony child molest and Level 6 felony

      sexual battery. The case proceeded to a jury trial, wherein J.L., J.L.’s mother,

      and Deputy Rainey testified to the facts above. During the State’s closing

      argument, the following colloquy ensued:


              [The State]: You saw and heard directly from the victim what
              took place that morning. Based off that the defendant even
              verified a lot of the information but he just couldn’t go as far as to
              tell you he did what he did. Defense counsel’s role is to confuse
              you in the process. We heard in opening statements [that
              Defense Counsel] –

              [Defense Counsel]: Objection. Object to that characterization.

              [The State]: Each side has a role to play.

              The Court: It’s closing argument.

              [The State]: Defense counsel is here to mislead you.

              [Defense Counsel]: Objection. That is not appropriate
              argument.

              [The State]: I can rephrase, Your Honor.

              The Court: Go ahead.

              [The State]: Defense counsel will characterize the evidence one
              way, but I will show you our way, what is true.

      (Tr. Vol. 2 at 227). Conrad did not request an admonishment or move

      for a mistrial.


[7]   In its final instructions to the jury, the trial court stated, in relevant part, that the

      “burden is upon the State to prove beyond a reasonable doubt that the

      defendant is guilty[,]” that Conrad was “presumed to be innocent[,]” and that



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019   Page 4 of 12
      “[s]tatements made by the attorneys are not evidence.” (Tr. Vol. 3 at 7, 9).

      Thereafter, the jury found Conrad guilty as charged.


[8]   At the ensuing sentencing hearing, the trial court merged the sexual battery

      conviction into the child molest conviction for double jeopardy purposes. At

      the conclusion of the hearing, the trial court stated the following:


              In determining sentencing[,] the Court will not consider lack of
              remorse as an aggravating circumstance in that the defendant has
              maintained his innocence through trial, has the right to do that.
              That the Court will further take into consideration that while the
              victim was not less than 12 years of age[,] she was 12 years of
              age. That the crime was committed in the presence of other
              individuals who were 18 years of age, whether or not they were
              awake or asleep. The Court does not consider the failure to pay
              the community corrections supervision fee in full to be an
              aggravating circumstance or something that the Court will
              consider with regard to sentencing. The Court does consider the
              impact on the victim. Court does consider the relationship to the
              victim, but does not believe that the victim was in the care,
              custody or control of the defendant. The Court does consider the
              relationship of the defendant to the victim and the history in that
              as one of trust due to the close -- while not familial but close
              relationship of the victim to the defendant. The Court does not
              consider the criminal conviction of Mr. Conrad as a
              misdemeanor to be an aggravating circumstance. The Court
              does take into account Mr. Conrad’s compliance with the terms
              of his community correction placement presentence. The
              likelihood as to whether or not this crime is likely to reoccur.
              The Court notes your request, [defense counsel], to take into
              account what you characterize as exceptional circumstances, but
              the Court declines to place itself in the position of the jury as the
              trier of the fact in that situation.2




      2
       The exceptional circumstances comment was in reference to what defense counsel had previously described
      as a “significant lack of proof as to what happened” in the living room. (Tr. Vol. 3 at 34).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019            Page 5 of 12
       (Tr. Vol. 3 at 36-37). Thereafter, the trial court sentenced Conrad to an

       advisory six (6) year sentence, with four (4) years executed in the Department

       of Correction and two (2) years suspended to probation. Conrad now appeals.


                                                   Decision

[9]    On appeal, Conrad argues that: (1) the prosecutor engaged in prosecutorial

       misconduct that amounted to fundamental error; and (2) his sentence is

       inappropriate. We will address each of these arguments in turn.


       1. Prosecutorial Misconduct

[10]   Conrad argues that the prosecutor committed two instances of prosecutorial

       misconduct during closing argument by inappropriately commenting on the

       role of his trial attorney. When reviewing an allegation of prosecutorial

       misconduct, we make two inquiries. First, we determine by reference to case

       law and rules of conduct whether the prosecutor engaged in misconduct, and if

       so, we next determine whether the misconduct, under all 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),

       reh’g denied.


[11]   Generally, in order to properly preserve a claim of prosecutorial misconduct for

       appeal, a defendant must not only raise a contemporaneous objection but must

       also request an admonishment; if the admonishment is not given or is

       insufficient to cure the error, then the defendant must request a mistrial. Neville

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019   Page 6 of 12
       v. State, 976 N.E.2d 1252, 1258 (Ind. Ct. App. 2012), trans. denied. Here,

       Conrad concedes that he did not request an admonishment after objecting to

       the comments made by the prosecutor during closing argument. Where a

       defendant does not raise a contemporaneous objection, request an

       admonishment, or, where necessary, request a mistrial, the defendant does not

       properly preserve his claims of prosecutorial misconduct. Cooper v. State, 854

       N.E.2d 831, 835 (Ind. 2006).


[12]   To prevail on a claim of prosecutorial misconduct that has been procedurally

       defaulted, a defendant must establish the grounds for the prosecutorial

       misconduct, and he must also establish that the prosecutorial misconduct

       resulted in fundamental error. Ryan, 9 N.E.3d at 667-68. For a claim of

       prosecutorial misconduct to rise to the level of fundamental error, a 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 (internal

       quotation marks omitted). Thus, 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 and substantial potential

       for harm.” Id. (internal quotation marks omitted). The element of harm is not

       shown by the fact that a defendant was ultimately convicted. Id. Instead, it

       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 would have been entitled. Id. (quotation marks omitted).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019   Page 7 of 12
[13]   Here, Conrad asserts that the prosecutor committed two instances of

       prosecutorial misconduct. Specifically, Conrad argues that the prosecutor

       committed misconduct when he told the jury that defense counsel’s “role is to

       confuse you in this process” and that she was there to “mislead you.” (Tr. Vol.

       2 at 227). When objecting to the prosecutor’s comments regarding the role of

       opposing counsel, Conrad argued that the characterizations were not

       appropriate arguments. He did not, however, request an admonishment nor

       move for a mistrial.


[14]   We acknowledge that the prosecutor’s comments here “attack the integrity of

       defense counsel by suggesting that [s]he is trying to mislead the jury.” Marcum

       v. State, 725 N.E.2d 852, 859 (Ind. 2000), reh’g denied. We, however, need not

       determine whether the prosecutor’s two comments were improper or amount to

       misconduct because Conrad has not established fundamental error. See Ryan, 9

       N.E.3d at 667-68 (explaining that to prevail on a claim of prosecutorial

       misconduct that has been procedurally defaulted, a defendant must establish the

       grounds for the prosecutorial misconduct and that the prosecutorial misconduct

       resulted in fundamental error). “In evaluating the issue of fundamental error,

       our task in this case is 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 of the jury’s

       decision that a fair trial was impossible.” Id. (emphasis in original).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019   Page 8 of 12
[15]   In looking at the challenged comments in light of the above mentioned relevant

       information, we do not believe that the comments by the prosecutor had a

       substantial effect on the jury’s decision, making a fair trial impossible. Here,

       the jury had testimony from J.L., the victim, that Conrad placed his hand inside

       her underwear and scratched her pubic area. See Baltimore v. State, 878 N.E.2d

       253, 258 (Ind. Ct. App. 2007) (holding that a conviction may be sustained by

       the uncorroborated testimony of a victim), trans. denied. Moreover, the jury was

       given instructions that the State had the burden of proof, that Conrad was

       innocent until proven guilty, and that statements made by counsel were not

       evidence. See Ryan, 9 N.E.3d at 672-73 (concluding that there was no

       fundamental error resulting from prosecutorial misconduct where the jury was

       properly instructed); Emerson v. State, 952 N.E.2d 832, 838 (Ind. Ct. App. 2011)

       (any misconduct in prosecutor’s statement cured by court’s general instruction),

       trans. denied. As a result, we conclude that, in the context of all that occurred

       during the trial and all relevant information given to the jury, the alleged

       misconduct did not have a substantial effect of the jury’s decision and that it did

       not make a fair trial impossible.3 Conrad has not shown that fundamental error

       occurred.




       3
         Notwithstanding our conclusion, it is well-settled that prosecutor’s who impugn the integrity and demean
       the role of defense counsel fall short of their obligation to show respect for our legal system. See Marcum, 725
       N.E.2d at 859 (“comments that demean opposing counsel, especially in front of a jury, are inappropriate[]”);
       Brummett v. State, 10 N.E.3d 78, 85 (Ind. Ct. App. 2014). We caution the State against referring to defense
       counsel in this manner in all future proceedings.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019                    Page 9 of 12
       2. Inappropriate Sentence

[16]   Next, Conrad argues that his advisory sentence, which includes two years

       suspended to probation, is inappropriate. “This Court may revise a sentence if

       it is inappropriate in light of the nature of the offense and the character of the

       offender. Ind. Appellate Rule 7(B). “The 7(B) ‘appropriateness’ inquiry is a

       discretionary exercise of the appellate court’s judgment, not unlike the trial

       court’s discretionary sentencing determination.” Knapp v. State, 9 N.E.3d 1274,

       1291-92 (Ind. 2014), cert. denied. “On appeal, though, we conduct that review

       with substantial deference and give due consideration to the trial court’s

       decision—since the principal role of our review is to attempt to leaven the

       outliers, and not to achieve a perceived correct sentence.” Id. at 1292 (internal

       quotation marks, internal bracket, and citation omitted). “Appellate Rule 7(B)

       analysis is not to determine whether another sentence is more appropriate but

       rather whether the sentence imposed is inappropriate.” Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

       reh’g denied. The defendant has the burden of persuading the appellate court

       that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

       (Ind. 2006). Whether we regard a sentence as inappropriate turns on the

       “culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008).


[17]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence is the starting point the General Assembly has selected as
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019   Page 10 of 12
       an appropriate sentence for the crimes committed. Childress, 848 N.E.2d 1081.

       Since the advisory sentence is the starting point our General Assembly has

       selected as an appropriate sentence for the crime committed, the defendant

       bears a particularly heavy burden in persuading us that his sentence is

       inappropriate when the trial court imposes the advisory sentence. Golden v.

       State, 862 N.E.2d 1212, 1216 (Ind. Ct. App. 2007), trans. denied. Here, Conrad

       was convicted of one (1) Level 4 felony. The sentencing range for a Level 4

       felony is “for a fixed term of between two (2) and twelve (12) years, with the

       advisory sentence being six (6) years.” I.C. § 35-50-2-5.5. For his Level 4

       felony conviction, the trial court sentenced Conrad to the advisory sentence of

       six (6) years, with two (2) years suspended to probation. Accordingly, Conrad

       received an executed sentence two years below the advisory sentence.


[18]   Regarding the nature of his offense, Conrad attempts to mitigate the seriousness

       of his offense by arguing that the “event was neither prolonged nor extremely

       invasive.” (Conrad’s Br. 15). This argument is unavailing. As this Court has

       recognized, the nature of the offense is found in the details and circumstances of

       the commission of the offense and the defendant’s participation. Perry v. State,

       78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Here, while twelve-year-old J.L. slept,

       twenty-eight-year-old Conrad placed his hand inside J.L.’s underwear and

       scratched her pubic area. Nothing about the nature of the offense warrants a

       reduction in Conrad’s advisory sentence, with two years suspended to

       probation.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019   Page 11 of 12
[19]   As for his character, Conrad argues that his limited criminal history and mostly

       low risk scores on the Indiana Risk Assessment System (“IRAS”) tool warrants

       a reduced sentence. Conrad is correct that when considering the character of

       the offender prong, one relevant consideration is the defendant’s criminal

       history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). Here,

       Conrad’s prior conviction for theft reflects poorly on his character. See Id. (any

       criminal history reflects poorly on a person’s character). Additionally,

       Conrad’s IRAS scores are insufficient indicators of his good character. Our

       Supreme Court has held that such assessments are prepared by probation

       officers and other administrators relying on data and evaluations that “are not

       necessarily congruent with a sentencing judge’s findings and conclusions

       regarding relevant sentencings factors.” Malenchick v. State, 928 N.E.2d 564,

       573 (Ind. 2010). Moreover, they are neither “intended nor recommended to

       substitute for the judicial function of determining the length of sentence

       appropriate for each offender.” Id. Accordingly, based on the nature of the

       offense and his character, Conrad has failed to persuade us that his advisory

       sentence, with two years suspended to probation, is inappropriate.


[20]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019   Page 12 of 12
