Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                            Jul 15 2014, 10:24 am
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:

DAVID P. LYNCH                                      GREGORY F. ZOELLER
Amy Noe Law                                         Attorney General of Indiana
Richmond, Indiana
                                                    GEORGE P. SHERMAN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

PAUL A. CROUCHER,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 89A01-1401-CR-23
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE WAYNE SUPERIOR COURT
                          The Honorable Gregory A. Horn, Judge
                              Cause No. 89D02-1204-FA-16



                                          July 15, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       During a period of over four years, Appellant-Defendant Paul A. Croucher engaged in

the repeated inappropriate touching of his nephew, S.C. At all times relevant to this appeal,

Croucher was over the age of twenty-one and S.C. was under the age of twelve. Appellee-

Plaintiff the State of Indiana (the “State”) subsequently charged Croucher with Class A

felony child molesting and Class C felony child molesting. Following a three-day trial, the

jury found Croucher guilty as charged. The trial court subsequently imposed an aggregate

forty-year sentence and determined that Croucher qualified as a credit restricted felon.

       On appeal, Croucher raises three issues which we restate as follows: (1) whether the

trial court abused its discretion in admitting certain evidence at trial, (2) whether the deputy

prosecutor committed prosecutorial misconduct, and (3) whether the trial court abused its

discretion in determining that Croucher qualifies as a credit restricted felon. Concluding that

the trial court did not abuse its discretion in admitting the challenged evidence, Croucher

failed to establish that the deputy prosecutor committed prosecutorial misconduct, and the

trial court abused its discretion in determining that Croucher qualifies as a credit restricted

felon, we affirm in part, reverse in part, and remand the matter to the trial court with

instructions.

                        FACTS AND PROCEDURAL HISTORY

       S.C. was born on May 17, 1999. S.C. and his siblings began living with Croucher,

their uncle, after their father died in August of 2007. At the time, Croucher was living in

Connersville with his business partner.

                                               2
       Following the conclusion of the spring semester of the school year, Croucher, S.C.,

and S.C.’s siblings moved to Richmond. The children lived with Croucher in Richmond until

January of 2012. The sleeping arrangements at the home in Richmond consisted of S.C.’s

siblings sleeping in upstairs bedrooms and S.C. sleeping in a downstairs bedroom with

Croucher.

       Croucher began touching S.C. inappropriately when S.C. was seven or eight years old.

The inappropriate touching began occurring on a repetitive basis at some point after August

of 2007, but before January of 2008. During the instances of inappropriate touching, S.C.

would usually awake to find Croucher unbuckling his pants. Croucher would often place

S.C.’s penis in his mouth or place his mouth on S.C.’s genitals. In addition to putting his

mouth on S.C.’s genitals, Croucher would sometimes rub S.C.’s genital area, the outside of

S.C.’s thigh, and S.C.’s back and buttocks. After he finished touching S.C., Croucher would

occasionally masturbate. Croucher’s actions continued on at least a monthly basis for a

period of more than four years. Croucher placed S.C.’s penis in his mouth “most of” the

times that his inappropriate touching of S.C. occurred. Tr. p. 251. Croucher last touched

S.C. inappropriately in “the latter part of 2011.” Tr. p. 255.

       After remaining silent about Croucher’s actions for approximately four years, S.C.

decided to report Croucher in January of 2012, after he became aware that another person

had levied molestation allegations against Croucher. S.C. first told his brother about

Croucher’s actions.     S.C.’s brother contacted the police.     S.C. then recounted the

inappropriate touchings inflicted by Croucher for investigating officials with the Richmond

                                              3
Police Department and the Department of Child Services. S.C. subsequently indicated that

he did not report Croucher’s actions before this time because he was “afraid of going to

foster care.” Tr. p. 256. S.C. indicated that he feared going to foster care because Croucher

had suggested that if S.C. reported Croucher’s actions, S.C. would “probably have to be split

up” from his siblings. Tr. p. 256.

       On April 18, 2012, the State charged Croucher with Class A felony child molesting

and Class C felony child molesting. Following a jury trial which was conducted on

November 12 through 14, 2013, Croucher was found guilty as charged. The trial court

subsequently sentenced Croucher to an aggregate forty-year term of imprisonment. The trial

court also determined that Croucher qualified as a credit restricted felon. This appeal

follows.

                            DISCUSSION AND DECISION

                                I. Admission of Evidence

       Croucher contends that the trial court abused its discretion in admitting certain

evidence at trial in violation of Indiana Evidence Rule 404(b) (“Evidence Rule 404(b)”).

       Our standard of review for rulings on the admissibility of evidence is
       essentially the same whether the challenge is made by a pre-trial motion to
       suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-
       75 (Ind. Ct. App. 2002), reh’g denied, trans. denied. We do not reweigh the
       evidence, and we consider conflicting evidence most favorable to the trial
       court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005),
       trans. denied. We also consider uncontroverted evidence in the defendant’s
       favor. Id.

Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct. App. 2007).


                                             4
       A trial court has broad discretion in ruling on the admissibility of evidence.

Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003) (citing Bradshaw v. State,

759 N.E.2d 271, 273 (Ind. Ct. App. 2001)). Accordingly, we will reverse a trial court’s

ruling on the admissibility of evidence only when the trial court abused its discretion. Id.

(citing Bradshaw, 759 N.E.2d at 273). An abuse of discretion involves a decision that is

clearly against the logic and effect of the facts and circumstances before the court. Id. (citing

Huffines v. State, 739 N.E.2d 1093, 1095 (Ind. Ct. App. 2000)).

              When addressing the admissibility of evidence under [Evidence] Rule
       404(b), courts must utilize a two-prong analysis. Scalissi v. State, 759 N.E.2d
       618, 623 (Ind. 2001). First, the court must assess whether the evidence has
       some relevancy to a matter at issue other than the defendant’s propensity to
       commit the charged act. Id. Second, the court must weigh the probative value
       of the evidence against its prejudicial effect, pursuant to Evidence Rule 403.
       Id. We will reverse a trial court’s determination of admissibility only for an
       abuse of discretion. Id.

Wages v. State, 863 N.E.2d 408, 410 (Ind. Ct. App. 2007).

       “Evidence Rule 404(b) was designed to assure that ‘the State, relying upon evidence

of uncharged misconduct, may not punish a person for his character.’” Lee v. State, 689

N.E.2d 435, 439 (Ind. 1997) (quoting Wickizer v. State, 626 N.E.2d 795, 797 (Ind. 1993)).

Evidence Rule 404(b)(1) provides that “[e]vidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular occasion the

person acted in accordance with the character.”          However, “[t]his evidence may be

admissible for another purpose, such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.” Ind. Evid. R. 404(b)(2).


                                               5
In addition, “‘[e]vidence of happenings near in time and place that complete the story of the

crime is admissible even if it tends to establish the commission of other crimes not included

among those being prosecuted.’” Wages, 863 N.E.2d at 411 (quoting Bocko v. State, 769

N.E.2d 658, 664-65 (Ind. Ct. App. 2002), trans. denied).

       Prior to trial, the State notified the trial court that it planned to introduce evidence that

Croucher had molested multiple victims and that Croucher acted with a common scheme or

plan when sexually abusing these victims. The trial court, however, determined that the

proffered evidence relating to Croucher’s other alleged victims was not relevant to prove

whether Croucher sexually assaulted S.C. The trial court also determined that because

Croucher’s actions with regard to S.C. were consistent with and similar to those seen in most

child abuse cases, his actions were not indicative of a particularized scheme or plan.

Accordingly, the trial court ruled that the proffered evidence was inadmissible under

Evidence Rule 404(b) because it created the forbidden inference that Croucher acted in

accordance with his character when he sexually abused S.C.

       Croucher claims on appeal that the trial court abused its discretion in admitting

Richmond Police Officer Michael Britt’s reference to “potential victims.” Croucher also

claims that the trial court abused its discretion in admitting S.C.’s statement as to why he

waited over four years before deciding to report Croucher’s actions in January of 2012. We

will discuss each claim in turn.

               A. Officer Britt’s Reference to Multiple Potential Victims

       Officer Britt testified at trial that he investigated the report that Croucher had sexually

                                                6
abused S.C. In describing the steps that he took while completing his investigation, Officer

Britt testified that once S.C.’s older brother “had explained to me the nature of the allegation

and identified the potential victims, uh, I determined that it was going to be impossible to go

any further with an investigation in that household[.]” Tr. p. 194. Croucher’s counsel

immediately objected and, after the jury was sent to the jury room, requested a mistrial. After

having the court reporter play back Officer Britt’s exact testimony, the trial court denied

Croucher’s request for a mistrial, finding that Officer Britt’s statement “simply indicates that

[S.C.’s older brother] identified the potential victims and [Officer Britt] determined that it

was going to be impossible to go any further.” Tr. p. 197. The trial court further stated that

it did not “believe that, that violates the [Evidence Rule] 404(b) order that I entered. Nothing

was said as to any alleged acts or anything of the other children.” Tr. p. 197.

       Upon review, we conclude that the trial court did not abuse its discretion in admitting

the challenged statement. Officer Britt’s statement did not refer to any specific potential

victims of, or prior misconduct committed by, Croucher. We also agree with the State’s

assertion that Officer Britt’s use of the words “potential victims” was not a definitive

statement that there were multiple victims but rather an indication that he was in the process

of conducting an investigation into the matter. This statement falls far short of suggesting

that Croucher’s character indicates that he had a propensity to commit the charged act. As

such, Croucher has failed to demonstrate that Officer Britt’s testimony was inadmissible

under Evidence Rule 404(b).

         B. S.C.’s Statement Regarding Why He Reported the Sexual Abuse

                                               7
       Prior to trial, the trial court determined that S.C.’s general statements as to why he

waited over four years to report the sexual abuse inflicted by Croucher did not, without

additional specific statements relating to Croucher’s other potential victims, violate Evidence

Rule 404(b). Subsequently, during trial, S.C. testified as to why he waited over four years to

report the sexual abuse that was inflicted upon him by Croucher. S.C. testified that he did

not report the abuse because he was “afraid of going to foster care.” Tr. p. 256.           S.C.

indicated that he feared going to foster care because Croucher had suggested that if S.C.

reported Croucher’s actions, S.C. would “probably have to be split up” from his siblings. Tr.

p. 256. S.C. further indicated that despite his fear of being sent to foster care, he decided to

report Croucher’s actions after he became aware that another person had levied molestation

allegations against Croucher.

       Croucher did not object to S.C.’s testimony at trial. In addition, Croucher does not

argue on appeal that the admission of S.C.’s testimony constituted fundamental error. As

such, Croucher has waived his appellate challenge to the above-stated testimony. See

McCarthy v. State, 749 N.E.2d 528, 537 (Ind. 2001) (providing that a party may not assert a

claim of trial court error on appeal unless the party objected to the evidence at the time it was

offered).

        C. Alleged Cumulative Effect of Admission of Challenged Statements

       Croucher appears to argue that the cumulative effect of the admission of the

challenged statements, when considered together, constituted fundamental error because of

the probable impact that these statements had on the jury potentially made it impossible for

                                               8
him to receive a fair trial. We disagree.

       Fundamental error “is extremely narrow and available only when the record reveals a

clearly blatant violation of basic and elementary principles, where the harm or potential for

harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as

to make a fair trial impossible.” Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008).

       The appellant bears the burden of proving that the alleged error occurred, and
       that the error was fundamental in nature. Baird v. State (1992), Ind., 604
       N.E.2d 1170. Not all errors a party fails to assert at trial are fundamental
       errors. Some uncontested errors may be harmless, or otherwise have no
       substantial impact on the verdict. Such errors are insufficient to overcome the
       bar of procedural default. See Davis v. State (1992), Ind., 598 N.E.2d 1041.
       In determining whether a claimed error denies the defendant a fair trial, we
       consider whether the resulting harm or potential for harm is substantial. The
       element of harm is not shown by the fact that a defendant was ultimately
       convicted; rather, it depends upon whether his 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. [Hart
       v. State (1991), Ind., 578 N.E.2d 336]. Our task is to look at all that happened,
       including the erroneous action, and decide whether the error had substantial
       influence upon the verdict to determine whether the trial was unfair.

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

       In the instant matter, Croucher has failed to establish that the challenged statements

were so prejudicial so as to make a fair trial impossible. Both Officer Britt’s and S.C.’s

statements appeared to be innocuous in light of the other evidence presented during trial.

Again, S.C. provided detailed testimony of the repeated sexual abuse inflicted upon him by

Croucher. In light of S.C.’s detailed testimony relating to Croucher’s actions, it seems

unlikely that either of the challenged statements detrimentally affected Croucher’s right to a

fair trial. As such, we conclude that the admission of the challenged statements did not

                                              9
constitute fundamental error, and, as a result, the trial court did not abuse its discretion in this

regard.

                                II. Prosecutorial Misconduct

       Croucher also contends that the deputy prosecutor committed prosecutorial

misconduct during trial. Specifically, Croucher claims that the deputy prosecutor committed

prosecutorial misconduct during his closing argument and rebuttal closing argument by

vouching for S.C.’s credibility, referring to Croucher’s sexuality, requesting the jury to do

justice and protect children, and suggesting that S.C. was groomed by Croucher. We will

address each claim in turn.

                                    A. Standard of Review

              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 of the circumstances, placed the
       defendant in a position of grave peril to which he or she would not have been
       subjected. Hall v. State, 796 N.E.2d 388, 401 (Ind. Ct. App. 2003). The
       gravity of the 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.

Ramsey v. State, 853 N.E.2d 491, 498 (Ind. Ct. App. 2006), trans. denied; see also Delarosa

v. State, 938 N.E.2d 690, 696 (Ind. 2010).

       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 v. State, 976 N.E.2d 1252, 1258 (Ind. Ct. App.

                                                10
2012) (citing Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)), trans. denied. 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. See generally Brown v. State, 799 N.E.2d 1064, 1066 (providing

that because appellant failed to request an admonishment or move for a mistrial when the

trial court overruled his objection, his claim of prosecutorial misconduct was procedurally

foreclosed); Neville, 976 N.E.2d at 1258 (providing that because appellant failed to object to

the prosecutor’s statements, his claim of prosecutorial misconduct was procedurally

foreclosed).

       “To prevail on a claim of prosecutorial misconduct that has been procedurally

defaulted, the defendant must establish not only the grounds for the prosecutorial

misconduct, but also the additional grounds for fundamental error.” Neville, 976 N.E.2d at

1258; see also Brown, 799 N.E.2d at 1066. Again,

       [f]undamental error is an “extremely narrow exception” to the
       contemporaneous objection rule that allows a defendant to avoid waiver of an
       issue. [Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)]. For a claim of
       prosecutorial misconduct to rise to the level of 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.” [Booher v. State, 773 N.E.2d 814, 817 (Ind.
       2002)] (citation, quotation marks, and brackets omitted). “The element of
       harm is not shown by the fact that a defendant was ultimately convicted.”
       Davis v. State, 835 N.E.2d 1102, 1107 (Ind. Ct. App. 2005), trans. denied
       (2006). “Rather, 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. at 1107-08.

Neville, 976 N.E.2d at 1258-59.

                                             11
                                      B. Vouching

       Croucher claims that the State committed prosecutorial misconduct by vouching for

S.C.’s credibility. Specifically, Croucher challenges numerous statements made by the

deputy prosecutor during his closing argument and rebuttal closing argument.

       It is well settled that vouching for witnesses is generally impermissible.
       Lainhart v. State, 916 N.E.2d 924, 938 (Ind. Ct. App. 2009). However, “‘a
       prosecutor may comment on the credibility of the witnesses as long as the
       assertions are based on reasons which arise from the evidence.’” Cooper, 854
       N.E.2d at 836 (quoting Lopez v. State, 527 N.E.2d 1119, 1127 (Ind. 1988)).
       See also Hobson v. State, 675 N.E.2d 1090, 1095 (Ind. 1996) (prosecutor’s
       statement “I warned you that [defendants] are liars” was not misconduct
       because incongruities in testimony supported inference that someone had not
       been testifying truthfully). In addition, an attorney may properly argue any
       logical or reasonable conclusions based on his or her own analysis of the
       evidence. Bennett v. State, 423 N.E.2d 588, 592 (Ind. 1981); see also Turnbow
       v. State, 637 N.E.2d 1329, 1334 (Ind. Ct. App. 1994) (“A prosecutor may also
       properly comment on the evidence presented to the jury and argue logical
       conclusions from that evidence.”)[,] trans. denied.

Id. at 1260.

       In Neville, the appellant argued that the prosecutor improperly vouched for the

credibility of the State’s witnesses during closing argument by describing one witness as

“courageous” and another as “one of the ‘good people.’” Id. Neville further alleged that the

prosecutor told the jury that a witness “told you the truth” and stated that she had been

“especially corroborated.” Id. The prosecutor also indicated that the crime scene technician

was “very good at what she does.” Id. Upon review, this court determined that the record

demonstrated that the prosecutor’s comments did not amount to improper vouching because

the statements were supported by the evidence and were consistent with the prosecutor’s


                                            12
analysis of the evidence and theory of the case. Id. at 1260-61.

       Croucher argues that the deputy prosecutor committed misconduct by making

numerous references to S.C.’s testimony as truthful during his closing argument. The deputy

prosecutor’s comments in this regard were as follows:

       Believable testimony, maybe not totally consistent.… In fact the Court will
       instruct you in this way, “you should not disregard the testimony”, let me
       repeat that. “You should not disregard the testimony of any witness without a
       reason and without careful consideration.” Factors you may consider, and it
       list [sic] a lot and I won’t go through all of them, the witness’s ability and
       opportunity to observe, obviously. His behavior, his manner and his conduct
       while he was testifying. And most importantly your knowledge, experience,
       common sense gained from day to day living. Ten times, thirty times, how
       many per month, [S.C.] was not looking at a clock and a calendar. This
       became unfortunately the way of life with him because of what that man did.
       He wasn’t counting the number of times. He was trying to think of other
       things. He was being truthful when answering [the] questions [of] both me
       and of [defense counsel].

Tr. p. 370.

       Now let’s think about that a little bit. If [S.C.] really wanted to lie, if [S.C.]
       really wanted to make you really made [sic] at [Croucher] for what he did, all
       he had to say was, yeah, that was true. He did perform anal intercourse on me.
       He said it wasn’t. That kid’s not lying. He’s telling you the truth.… There’s
       no motive for him to lie. He could have made [Croucher] look worse. On the
       other hand … when [S.C.] said for the first time yesterday when he was asked
       well did you ever put … your mouth on [Croucher’s] penis and he said, yes.
       Again, you know, what’s odd and [S.C.’s] right, he said, I’ve never been asked
       that question before.… And he’s right, he was never asked that question. But
       you know, again, that goes back to his honesty, Ladies and Gentlemen,
       because when [defense counsel] asked that question … [i]f [S.C.] wanted to all
       he had to say was one simple word, no, I didn’t do it.… But you know, he was
       under oath, I have to tell the truth.… If he was going to lie about things he
       could have done a lot better job. He could have said, yeah, anal course [sic].
       He put his (unintelligible) in my anus. No, I never did anything to him. But
       that goes to his credibility, that tells you something.… He told the truth
       because he knew he had too [sic]. He knew he was under oath … [S.C.]
       understood that, and he told you the truth.
                                              13
Tr. pp. 371-73.

       If [S.C.] wanted to lie he could have done a lot better job. There’s no reason,
       there’s no evidence, remember a witness is presumed to be telling the truth,
       unless shown otherwise, why you should not believe [S.C.].
              [S.C.] told the truth, no matter how embarrassing to [sic] was to him.

Tr. p. 378.

       No motive to lie. No reason, and he didn’t.… In fact, it’s almost like he’s
       being punished for telling the truth because he’s taken out of school where he
       wanted to be. All those multiple teachers and friends, he’s suffering. It was
       [S.C.] that was jerked out of his home. It was [S.C.] that was jerked out of
       school.

Tr. p. 379. Croucher did not object to any of these statements.

       In addition, Croucher also claims that the deputy prosecutor committed misconduct

when, during his rebuttal closing argument, the deputy prosecutor stated the following: “And

now [defense counsel] wants to say to you because he knows how truthful [S.C.] was and is.”

Tr. pp. 403-04. Croucher objected to this statement, claiming that the deputy prosecutor

“keeps vouching for credibility.” Tr. p. 404. The trial court stated, “Well, you both have

done it.… [W]hy don’t we just move on. But you both have done it.” Tr. 404. Croucher did

not request an admonishment or a mistrial.

       The deputy prosecutor’s comments during closing argument and rebuttal closing

argument referred to the evidence and reflected the deputy prosecutor’s analysis of the

evidence and theory of the case. S.C. testified during trial that he did not count the number

of times he was subjected to sexual abuse or record the dates that the sexual abuse was

inflicted upon him by Croucher. S.C. stated that during the abuse, he would try to

                                             14
concentrate on other things such as homework or school the next day because he “didn’t

really want to be part of it.” Tr. p. 250. In addition, S.C. testified that Croucher did not

subject him to anal intercourse but admitted that he fellated Croucher. When asked why he

had never reported that he had fellated Croucher, S.C. responded that he had never been

asked about what acts he had performed on Croucher. S.C. also testified that he enjoyed the

school he attended and the activities he participated in when he lived with Croucher. S.C.

indicated that he missed the school and the activities. S.C. also indicated that he missed the

friends he made at school and through his participation in the various activities. Because the

deputy prosecutor’s statements referred to the evidence and reflected the deputy prosecutor’s

analysis of the evidence, the statements did not amount to improper vouching. Croucher has

failed to prove that the State committed prosecutorial misconduct in this regard.

       Furthermore, because Croucher failed to object to or request an admonishment or

mistrial after the alleged misconduct by the deputy prosecutor, he must prove that the alleged

misconduct amounted to fundamental error. See Neville, 976 N.E.2d at 1258. Croucher has

failed to do so. Thus, even if Croucher had established that the deputy prosecutor’s

statements amounted to improper vouching, Croucher has failed to establish on appeal that

the deputy prosecutor’s statements placed him in a position of grave peril or made a fair trial

impossible. As such, Croucher has failed to establish prosecutorial misconduct with regard

to the deputy prosecutor’s alleged vouching for S.C.’s credibility.

                          C. Reference to Croucher’s Sexuality

       During voir dire, defense counsel asked a prospective juror the following question: “If

                                              15
a witness come [sic] in and they have a different sexuality than you do, okay? Does that, is

that going to make them more or less believable?” Tr. p. 116. S.C. subsequently provided

testimony suggesting that Croucher might be a homosexual. During his closing argument,

the deputy prosecutor made reference to defense counsel’s use of the term “different

sexuality,” stating:

       [Defense counsel] mentioned the words “different sexuality”. And as, in other
       words (unintelligible) I’m going by my notes if you heard something different
       or observed, that’s up to you, I’m just arguing what I heard. Brought before us
       a different sexuality, matter of course [Croucher] and victim lived in and slept
       in the same bedroom, remember that. I didn’t bring p [sic] the lifestyle.

Tr. p. 369. The deputy prosecutor twice more referred to defense counsel’s use of the term

“different sexuality,” stating: “[i]t’s a different type of sexuality, like [defense counsel] said,”

tr. p. 378, and “I’ll never understand the life style, but on the other hand you can’t speculate.”

Tr. p. 381. Croucher did not object to any of the above-quoted comments.

       Again, because Croucher did not object to the deputy prosecutor’s statements during

closing argument referring to defense counsel’s use of the term “different sexuality,”

Croucher must prove not only misconduct but also fundamental error. Croucher argues that

the deputy prosecutor’s comments constituted fundamental error because the comments lead

one to the “forbidden inference that, because he was homosexual, he was likely to have

molested this young male child.” Appellant’s Br. p. 12. However, we must note that the

Indiana Supreme Court has held that prosecutors “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) (citing Brown v. State,

                                                16
746 N.E.2d 63, 68 (Ind. 2001)). Therefore, even if the deputy prosecutor’s comments did

lead one to the forbidden inference argued by Croucher, the deputy prosecutor’s reference to

the term “different sexuality” must be treated as invited error as it was raised as a response to

defense counsel’s comments before the jury during voir dire. Croucher did not establish

prosecutorial misconduct in this regard.

                D. Request for Jury to Do Justice and Protect Children

       During closing argument, the deputy prosecutor made the following statement:

       And after hearing the evidence I now ask you to return a verdict of guilty on
       both counts. And I ask you without hesitation based upon what you saw
       yesterday from this witness stand, without any hesitation, without any doubt in
       my mind, to ask each one of you to bring back guilty verdicts so that justice
       may be done, and children may be protected.

Tr. p. 381. Croucher objected to this statement. The trial court sustained Croucher’s

objection and admonished the jury to disregard the statement. Croucher did not request a

mistrial.

       The Indiana Supreme Court has held that appellate courts “may presume that a timely

and accurate admonishment by the trial court will cure any defect.” Green v. State, 587

N.E.2d 1314, 1317 (Ind. 1992) (citing Bell v. State, 267 Ind. 1, 8, 366 N.E.2d 1156, 1160

(1977)). In light of the Indiana Supreme Court’s holding in Green, coupled with the trial

court’s timely admonishment for the jury to disregard the deputy prosecutor’s statement, we

conclude that Croucher could not have been prejudiced by the deputy prosecutor’s remark.

                                    E. Cumulative Effect

       Croucher appears to argue that while any of the above-stated alleged acts may not,

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without more, subject Croucher to grave peril, the cumulative effect of the deputy

prosecutor’s comments during closing argument and rebuttal closing argument “undoubtedly

impacted” the jury. Appellant’s App. p. 13. Croucher, however, does not provide any

argument detailing what specific impact he believes these statements had on the jury. The

State, for its part, reiterates its claim the challenged comments do not rise to the level of

misconduct. Alternatively, the State argues that any improper comments were cured by the

trial court’s preliminary and final instructions.

       The trial court instructed the jury that the attorneys’ final arguments “are not

evidence.” Tr. p. 161. Both the Indiana Supreme Court and this court have held that

improper arguments made during closing argument may be cured by the trial court’s

instructions to the jury. See Flowers v. State, 738 N.E.2d 1051, 1059 (Ind. 2000) (providing

that improper comment by prosecutor was de minimis in nature and overcome by the trial

court’s instructions to the jury); Surber v. State, 884 N.E.2d 856, 866 (Ind. Ct. App. 2008)

(providing that any prejudicial impact of the prosecutor’s allegedly improper comments

during closing argument was minimal and did not create an undeniable and substantial for

harm in light of the trial court’s instruction that such comments were not evidence), trans.

denied. As in Surber, we conclude that, in the instant matter, any cumulative prejudicial

impact of the deputy prosecutor’s allegedly improper comments during closing argument and

rebuttal closing argument was minimal and did not create an undeniable and substantial

potential for harm in light of the trial court’s instruction to the jury that said comments were



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not evidence.1

                     III. Croucher’s Status as a Credit Restricted Felon

        Croucher also contends that the trial court abused its discretion in determining that he

qualified as a credit restricted felon. Specifically, Croucher claims that application of the

2008 credit restricted felon statute violated the constitutional prohibition of ex post facto laws

because the charging information included the allegation that some of his criminal acts

occurred before the credit restricted felon statute went into effect.

               The credit restricted felon statute was enacted through Pub. L. 80-2008,
        Sec. 6, which was effective on July 1, 2008 and applied “only to persons
        convicted after June 30, 2008.” The statute defined “credit restricted felon” as:
               [A] person who has been convicted of at least one (1) of the
               following offenses:
               (1) Child molesting involving sexual intercourse or deviate
               sexual conduct (IC 35-42-4-3(a)), if:
               (A) the offense is committed by a person at least twenty-one
               (21) years of age; and
               (B) the victim is less than twelve (12) years of age.
               (2) Child molesting (IC 35-42-4-3) resulting in serious bodily
               injury or death.
               (3) Murder (IC 35-42-1-1), if:
               (A) the person killed the victim while committing or attempting
               to commit child molesting (IC 35-42-4-3);
               (B) the victim was the victim of a sex crime under IC 35-42-4
               for which the person was convicted; or
               (C) the victim of the murder was listed by the state or known by
               the person to be a witness against the person in a prosecution for

        1
            Furthermore, we cannot agree with Crouchers’ apparent assertion that the deputy prosecutor
committed prosecutorial misconduct in his closing argument by suggesting that one reason why S.C. might
have waited four years to report the sexual abuse inflicted by Croucher was that Croucher “groomed” S.C.,
convincing him not to tell anyone. The evidence supports the deputy prosecutor’s suggestion that Croucher
groomed S.C. to accept his sexual advances and convinced S.C. not to report the sexual abuse. “It is proper for
a prosecutor to argue both law and fact during final argument and propound conclusions based upon his
analysis of the evidence.” Hand v. State, 863 N.E.2d 386, 394 (Ind. Ct. App. 2007). The deputy prosecutor
did not commit misconduct by propounding his conclusion that the evidence indicated that Croucher groomed
S.C.
                                                     19
               a sex crime under IC 35-42-4 and the person committed the
               murder with the intent to prevent the person from testifying.
       Ind. Code § 35-41-1-5.5. “A person who is a credit restricted felon and who is
       imprisoned for a crime or imprisoned awaiting trial or sentencing is initially
       assigned to Class IV. A credit restricted felon may not be assigned to Class I
       or Class II.” Ind. Code § 35-50-6-4(b). Ind. Code § 35-50-6-3(d) provides
       that: “A person assigned to Class IV earns one (1) day of credit time for every
       six (6) days the person is imprisoned for a crime or confined awaiting trial or
       sentencing.”

Upton v. State, 904 N.E.2d 700, 704-05 (Ind. Ct. App. 2009).

       Although by its own terms, the restricted credit felon statute would apply to an

individual who was convicted of a requisite criminal act at any time after July 1, 2008, we

concluded in Upton that retroactive application of the credit restricted felony statute to a

defendant who committed an offense before the effective date of the statute was an ex post

facto violation even though the defendant was convicted after the effective date of the statute.

Id. at 706. Likewise, in Gaby v. State, 949 N.E.2d 870, 883 (Ind. Ct. App. 2011), we noted

that the defendant, who was convicted of Class A felony child molesting in 2010, would

appear to qualify as a credit restricted felon under the terms of the credit restricted felon

statute. However, we concluded that, in light of our opinion in Upton, the application of the

credit restricted felon statute to the defendant would be an unconstitutional ex post facto

violation because the defendant committed his offense prior to the effective date of the

statute. Id.   Thus, we concluded that the defendant could not be sentenced as a credit

restricted felon. Id.

       Since Croucher was convicted in 2013, the statute would, by its own terms, apply to

Croucher. However, we must conclude that in light of our conclusions in Gaby and Upton,

                                              20
application of the statute to Croucher would constitute an ex post facto violation.        The

charging information relating to the requisite criminal act alleges the following:

       [B]etween August 2007, and August 2011, in Wayne County, State of Indiana,
       Paul A. Croucher, a person over 21 years of age, did, with a child under 14
       years of age, to-wit: S.C., perform or submit to deviate sexual conduct,
       contrary to Indiana law.

Appellant’s App. p. 11. Croucher correctly asserts that there is no way to determine whether

the jury determined that he committed the requisite acts before or after the credit restricted

felon statute went into effect on June 30, 2008. Accordingly, we conclude that the trial court

abused its discretion in classifying Croucher as a credit restricted felon.

                                      CONCLUSION

       In sum, we conclude that the trial court did not abuse its discretion in admitting the

challenged evidence at trial and that Croucher failed to establish that the deputy prosecutor

engaged in prosecutorial misconduct. However, we also conclude that the trial court abused

its discretion in determining that Croucher qualified as a credit restricted felon. Accordingly,

we affirm in part, reverse in part, and remand to the trial court to amend its sentencing order

to remove the classification of Croucher as a credit restricted felon.

       The judgment of the trial court is affirmed in part, reversed in part, and remanded with

instructions.

RILEY, J., and ROBB, J., concur.




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