Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                           FILED
any court except for the purpose of                           Aug 28 2012, 8:46 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                         CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

BRUCE W. GRAHAM                                   GREGORY F. ZOELLER
Graham Law Firm P.C.                              Attorney General of Indiana
Lafayette, Indiana
                                                  GARY R. ROM
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

WILLIAM BRUCE,                                    )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 79A05-1112-CR-671
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                           The Honorable Thomas H. Busch, Judge
                               Cause No. 79D02-1005-FA-16



                                        August 28, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                               STATEMENT OF THE CASE

       William Bruce appeals his two convictions for child molesting, each as a Class A

felony, following a jury trial. Bruce raises three issues for our review, which we restate

as the following two issues:

       1.     Whether the prosecutor committed fundamental error when she
              made certain comments during her closing remarks; and

       2.     Whether the trial court committed fundamental error when it
              permitted the State to introduce evidence that Bruce had had his
              parental rights over his own children terminated.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       During the fall of 1999 and the spring of 2000, D.J., who was four or five at the

time, was at Bruce’s house playing hide-and-seek with Bruce’s child, B.B. D.J. went

upstairs looking for B.B., but found Bruce on a bed without pants. Bruce told D.J. to

come over to him and perform oral sex on him. Afterwards, Bruce told D.J. that he

would be in trouble if he said anything about it to anyone.

       On a later date, D.J. was again playing with B.B. at Bruce’s house when Bruce

accompanied D.J. into a bathroom. Bruce’s wife at the time, Rhonda, observed this but

did not think anything of it. Inside the bathroom, Bruce had D.J. perform oral sex on

him. D.J. later told his mother that he did not want to go to Bruce’s house anymore.

       Almost a decade later, in 2009 D.J. was at his mother’s licensed daycare when his

mother observed him inappropriately touching two young girls.              D.J.’s mother

immediately called the police. She also called a family friend, who came over and spoke



                                             2
with D.J. During this conversation, D.J. informed her of the incidents with Bruce, and

D.J.’s mother relayed that information to police.

       On May 19, 2010, the State charged Bruce with four counts of child molesting,

which it later amended to two counts. At the ensuing jury trial, the State called as

witnesses D.J.’s mother and her friend, who each testified, without objection, that D.J.

had told them that Bruce had molested him. The State also called D.J., who described the

molestation to the jury. The State then called Gypsy Raber and Nancy Quigly, teachers

at the Head Start program in 1999-2000 when both D.J. and B.B. were students. Raber

testified that they “had a lot of concerns” about B.B. Transcript at 129. And Quigly

testified that Bruce was the only parent who objected to the teachers teaching the students

“good touch, bad touch.” Id. at 144-46.

       The State then called Bruce’s former wife, Rhonda, to testify. She corroborated

D.J.’s account of having once been accompanied into the bathroom by Bruce. Without

objection, Rhonda testified that she and Bruce had their parental rights terminated in late

2004 or early 2005 and that their children have been adopted. However, when the jurors

informed the trial court that they wanted to ask Rhonda why her and Bruce’s parental

rights had been terminated, the trial court refused to ask the question. The State’s last

witness was Sergeant Anthony McCoy of the Lafayette Police Department, who testified

as to the State’s investigation of Bruce.

       After the State closed its case, the defense rested without presenting any evidence.

During her closing remarks, the prosecutor stated as follows:

       You’ve heard nothing to refute [D.J.’s] testimony. No reason why he
       would tell you anything if it wasn’t true. So I go through and I try to think
                                             3
      of what’s all the—all the even conceivable possibilities of what would
      bring us here other than what [D.J.] was telling was true. Who has a motive
      to lie here? Who has a motive not to lie here? Who has the cause to
      benefit? Well look at the costs to [D.J.] He’s carried this with him . . .
      [f]or at least eleven or more years. I asked him did you ever forget it? Is
      this like something that you just now remembered? Nope, he’s lived with
      this for eleven years or more years. He never forgot what happened to him.
      Has anybody else done this to you? Like did you get it mixed up with
      somebody else? Either somebody do this before or since? Nope, that was
      the only man. I’m thinking, well, maybe you made this up to try to make
      yourself look better when you got caught doing something maybe you did it
      for that reason. Well, you heard about what that day was like. . . . Autumn
      [the mother’s friend] used the word chaos that day. [D.J.’s mother] was
      quite distraught too. So he’s a fourteen year old boy kind of caught in the
      act and he makes this up all of a sudden to try to make himself look better?
      Nope, that doesn’t fly. If you’re going to make up something to get
      somebody else in trouble you do it to your benefit. Well, what happened to
      him got him in two years of treatment and counseling . . . . If you’re gonna
      make up something you make up a good one. You . . . remember names,
      you remember dates, you remember locations, you remember all those
      details that somebody would like to hear. [D.J.] doesn’t remember those
      big details . . . . He was about five years old. Think back to what you can
      remember at five years old . . . .

      Did you hear any challenges to [D.J.’s] credibility? Did you hear any
      inconsistencies among these years of anything that’s changed in his account
      of what the defendant did to him? Not one. Not one at all. So he’s been
      very, very consistent throughout that. . . .

      So here’s what has been proven beyond a reasonable doubt[:] that it was
      this defendant. No other name has been presented to you, no other identity,
      no other person. Nothing. This defendant. This man right here . . . . And
      . . . through the investigation, through the memories they were able to
      narrow it down to that school year of ’99/2000. I thought that was pretty
      good. And I have every confidence in the twelve of you, thirteen if
      necessary that you will see the defendant for what he is. He’s a child
      molester. He knows it. Sergeant McCoy knows it. I know it and now with
      this evidence you know it. . . .

Id. at 191-92, 195, 197-98. And in her rebuttal, the prosecutor added:

      Remember that friend of mine from Atlanta who had that trial a couple of
      weeks ago and he said he wanted to make sure that was his verdict? He’s
      gonna know you have doubts but he needed to make sure that when he
                                            4
      made that decision he was going to be able to sleep that night and sleep
      soundly. Detective McCoy did his job. He investigated and corroborated
      everything that was available. I presented a case where the evidence
      showed you beyond a reasonable doubt that man’s a child molester. It’s
      time to do your job and find this defendant guilty and you’ll sleep just fine
      tonight.

Id. at 202. At no point during any of those comments did Bruce object.

      The jury found Bruce guilty on both of the Class A felony allegations, and the trial

court sentenced him to an aggregate term of fifty years, fully executed. This appeal

ensued.

                           DISCUSSION AND DECISION

                                 Standard of Review

      On appeal, Bruce argues that fundamental error occurred during his trial. As our

supreme court has explained:

      A claim that has been waived by a defendant’s failure to raise a
      contemporaneous objection can be reviewed on appeal if the reviewing
      court determines that a fundamental error occurred. See, e.g., Trice v.
      State, 766 N.E.2d 1180, 1182 (Ind. 2002); Hayworth v. State, 904 N.E.2d
      684, 694 (Ind. Ct. App. 2009). The fundamental error exception is
      “extremely narrow, and applies only when the error constitutes a blatant
      violation of basic principles, the harm or potential for harm is substantial,
      and the resulting error denies the defendant fundamental due process.”
      Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The error claimed
      must either “make a fair trial impossible” or constitute “clearly blatant
      violations of basic and elementary principles of due process.” Clark v.
      State, 915 N.E.2d 126, 131 (Ind. 2009). This exception is available only in
      “egregious circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind.
      2003).

            This doctrine has been applied, for example, to review a conviction
      without proof of an element of the crime despite the lack of objection.
      Smith v. State, 459 N.E.2d 355, 357 (Ind. 1984). . . .




                                           5
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). With that stringent standard in mind,

we turn to Brown’s two arguments on appeal.

                             Issue One: Closing Remarks

      Bruce first contends that the prosecutor’s closing remarks constituted fundamental

error because the prosecutor inappropriately “comment[ed] upon the failure of [Bruce] to

testify.” Appellant’s Br. at 9-10. We cannot agree. As our supreme court has explained:

      The Fifth Amendment privilege against self-incrimination is violated
      “when a 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.” Moore v. State, 669 N.E.2d 733, 739 (Ind. 1996).
      However, statements by the prosecutor concerning the uncontradicted
      nature of the State’s evidence do not violate the defendant’s Fifth
      Amendment rights. Martinez v. State, 549 N.E.2d 1026, 1028 (Ind. 1990).
      Rather, comment on the lack of defense evidence is proper so long as the
      State focuses on the absence of any evidence to contradict the State’s
      evidence and not on the accused’s failure to testify. Id.; see also
      Timberlake v. State, 690 N.E.2d 243, 254 (Ind. 1997) (observing “[d]uring
      argument, the prosecutor may argue and comment upon the evidence
      presented at trial. . . . A comment based upon uncontradicted evidence is
      not equivalent to an impermissible comment upon a defendant’s decision
      not to testify”).

Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004). Here, the prosecutor’s closing

remarks focused only on the absence of any evidence to contradict the State’s evidence.

The prosecutor did not address Bruce’s failure to testify, explicitly or implicitly, and

nothing in her closing remarks is subject to a reasonable interpretation that the jury was

being asked to draw an adverse inference from Bruce’s silence. As such, this argument is

without merit.

      Bruce also argues that the prosecutor used her closing remarks to impermissibly

vouch for the witnesses. While a prosecutor may not personally vouch for a witness, “a


                                            6
prosecutor may comment on the credibility of the witnesses as long as the assertions are

based on reasons which arise from the evidence.” Cooper v. State, 854 N.E.2d 831, 836

(Ind. 2006).     Having reviewed the totality of the prosecutor’s closing remarks, we

conclude that the prosecutor did not impermissibly vouch for a witness. Rather, the

prosecutor merely commented on the credibility of the witnesses based on reasons arising

from the evidence. And even if some of the prosecutor’s comments were objectionable,

they do not come close to the “clearly blatant” error required for Bruce to show

reversible, fundamental error. See Brown, 929 N.E.2d at 207. Accordingly, we hold that

there is no fundamental error in the prosecutor’s closing remarks.

                              Issue Two: Admission of Evidence

       Bruce also contends that the trial court committed fundamental error when it

permitted the State to introduce into evidence the fact that he had had his parental rights

terminated. But, again, Bruce cannot show that this alleged error, even if there were any,

is fundamental error. The improper admission of evidence

       ordinarily does not cause us to question guilt. That is the case here. The
       only basis for questioning [the defendant’s] conviction lies not in doubt as
       to whether [he] committed these crimes, but rather in a challenge to the
       integrity of the judicial process. . . . Here, there is no claim of fabrication
       of evidence or willful malfeasance on the part of the investigating officers
       and no contention that the evidence is not what it appears to be. In short,
       the claimed error does not rise to the level of fundamental error.

Id. For the same reasons stated by our supreme court in Brown, Bruce’s challenge to the

allegedly inadmissible evidence here does not demonstrate fundamental error. Hence, we

affirm his convictions.1


       1
         Because we hold that Bruce has not demonstrated error, we need not address his contention that
“the cumulative effect” of the alleged errors was “not harmless.” Appellant’s Br. at 17.
                                                  7
      Affirmed.

KIRSCH, J., and MAY, J., concur.




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