MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Jul 20 2017, 8:39 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
Darren Bedwell                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Armex Brown,                                             July 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1610-CR-2416
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G04-1602-F3-7066



Altice, Judge.


                                          Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2416 | July 20, 2017            Page 1 of 8
[1]   Armex Brown appeals following his convictions for two counts of child

      molesting, one as a Level 3 felony and one as Level 4 felony. He raises two

      issues on appeal, which we restate as follows:


              1. Did statements made by the prosecution during closing
              argument constitute prosecutorial misconduct rising to the level
              of fundamental error?


              2. Do Brown’s convictions violate Indiana’s double jeopardy
              prohibition?


[2]   We affirm.


                                       Facts & Procedural History


[3]   In February 2016, Brown was living with his girlfriend, Ashley Mahaffey, and

      her children, including five-year-old M.M. While Mahaffey was at a medical

      appointment one morning, Brown gave M.M. a shower and rubbed lotion on

      her body, including her “private parts and bottom.” Transcript Vol. 2 at 165.

      Brown then took M.M. into his bedroom, where he inserted his finger into her

      vagina and her anus.


[4]   When Mahaffey returned, she saw that M.M. had changed from her pajamas

      into regular clothes, which Mahaffey found odd. When Mahaffey spoke to

      M.M., M.M. made a disclosure. Mahaffey then confronted Brown about what

      M.M. had said, and Brown admitted that he had given M.M. a shower and

      rubbed lotion on her body, but denied any inappropriate touching. Mahaffey

      told Brown to leave the residence, but he returned that evening and refused to

      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2416 | July 20, 2017   Page 2 of 8
      leave. The police were called and Brown was taken into custody. After

      Brown’s fingers were swabbed for DNA, he stated that he might have

      inadvertently touched M.M.’s vagina and buttocks while rubbing lotion on her.


[5]   Brown was charged with one count of Level 3 felony child molesting and one

      count of Level 4 felony child molesting. A two-day jury trial commenced on

      August 22, 2016, at the conclusion of which Brown was found guilty as

      charged. Brown received an aggregate sentence of eleven years, with eight

      years executed and three years suspended to probation. Brown now appeals.


                                          Discussion & Decision


                                           1. Fundamental Error


[6]   Brown first argues that the State’s comments in closing argument amounted to

      prosecutorial misconduct. Conceding that he failed to properly preserve this

      issue, Brown argues that the prosecuting attorney’s allegedly improper

      statements resulted in fundamental error.


              In reviewing a claim of prosecutorial misconduct properly raised
              in the trial court, we determine (1) whether misconduct occurred,
              and if so, (2) “whether the misconduct, under all of the
              circumstances, placed the defendant in a position of grave peril to
              which he or she would not have been subjected” otherwise. . . .
              To preserve a claim of prosecutorial misconduct, the defendant
              must—at the time the alleged misconduct occurs—request an
              admonishment to the jury, and if further relief is desired, move
              for a mistrial.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2416 | July 20, 2017   Page 3 of 8
              Our standard of review is different where a claim of prosecutorial
              misconduct has been procedurally defaulted for failure to
              properly raise the claim in the trial court, that is, waived for
              failure to preserve the claim of error. The defendant must
              establish not only the grounds for prosecutorial misconduct but
              must also establish that the prosecutorial misconduct constituted
              fundamental error. Fundamental error is an extremely narrow
              exception to the waiver rule where the defendant faces the heavy
              burden of showing that the alleged errors are so prejudicial to the
              defendant’s rights as to “make a fair trial impossible.” In other
              words, to establish fundamental error, the defendant must show
              that, under the circumstances, the trial judge erred in not sua
              sponte raising the issue because alleged errors (a) “constitute
              clearly blatant violations of basic and elementary principles of
              due process” and (b) “present an undeniable and substantial
              potential for harm.” . . . 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.


      Ryan v. State, 9 N.E.3d 663, 667-69 (Ind. 2014) (citations, footnotes, and

      emphasis omitted).


[7]   On appeal, Brown takes issue with the following statements of the prosecuting

      attorney during closing argument:

              Let’s talk about M.M.’s consistency. Her account of events never
              changed over the course of six months. At least seven different
              times she had to talk about this, at least seven. She told her
              mommy. She told her Aunt Daphne. She told Officer Daggy.
              She told Jill Carr. She told the nurse and she told you. There
              were not any inconsistencies. There were distinctions, no
              differences.
      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2416 | July 20, 2017   Page 4 of 8
      Transcript Vol. 2 at 200. Brown argues that the prosecuting attorney’s

      statements in this regard mischaracterized the evidence because, with the

      exception of the forensic nurse examiner, none of the witnesses referenced

      testified as to what M.M. had told them. Thus, according to Brown, there was

      no evidentiary basis for the claim that M.M. gave a consistent account of the

      molestation to multiple people. Brown argues further that by stating that M.M.

      gave the same account seven times, but listing only six instances in which M.M.

      discussed the matter, the prosecutor alluded to personal knowledge of matters

      not in evidence. The State responds that the jury would not have understood

      the prosecutor’s statements to suggest personal knowledge, and the references

      to M.M.’s consistency were based on reasonable inferences from the evidence

      and were appropriate comments on the absence of evidence to support Brown’s

      claim that M.M. had been coached.


[8]   We need not resolve this issue because even if we assume the statements were

      improper, Brown has not established fundamental error. The jury received

      preliminary and final instructions accurately stating the law, and these

      instructions reminded the jury that the arguments of counsel should not be

      considered evidence and that the jury should base its decision on the evidence

      admitted at trial. In light of these instructions, we cannot conclude that the

      prosecutor’s brief references to statements M.M. allegedly made to other

      witnesses rose to the level of fundamental error. See Ryan, 9 N.E.3d at 672-73

      (finding no fundamental error resulting from prosecutorial misconduct where

      jury was properly instructed that arguments of counsel were not evidence).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2416 | July 20, 2017   Page 5 of 8
                                            2. Double Jeopardy


[1]   Brown also argues that his convictions violate Indiana’s double jeopardy

      prohibition. The double jeopardy clause found in Article 1, section 14 of the

      Indiana Constitution “was intended to prevent the state from being able to

      proceed against a person twice for the same criminal transgression.” Richardson

      v. State, 717 N.E.2d 32, 49 (Ind. 1999). Two or more offenses are the “same

      criminal transgression” for the purposes of the Indiana double jeopardy clause

      if, “with respect to either the statutory elements of the challenged crimes or the

      actual evidence used to convict, the essential elements of one challenged offense

      also establish the essential elements of another challenged offense.” Id.


[2]   Brown challenges his convictions under the actual-evidence test, which

      “prohibits multiple convictions if there is ‘a reasonable possibility that the

      evidentiary facts used by the fact-finder to establish the essential elements of

      one offense may also have been used to establish the essential elements of a

      second challenged offense.’” Davis v. State, 770 N.E.2d 319, 323 (Ind. 2002)

      (quoting Richardson v. State, 717 N.E.2d at 53). Establishing a “‘reasonable

      possibility’ that the jury used the same facts to reach two convictions requires

      substantially more than a logical possibility.” Lee v. State, 892 N.E.2d 1231,

      1236 (Ind. 2008). Instead, the existence of a reasonable possibility “turns on a

      practical assessment of whether the jury may have latched on to exactly the

      same facts for both convictions.” Id. In applying this test, we seek “to identify

      the essential elements of each of the challenged crimes and to evaluate the

      evidence from the jury’s perspective, considering where relevant the jury

      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2416 | July 20, 2017   Page 6 of 8
      instructions, argument of counsel, and other factors that may have guided the

      jury’s determination.” Wright v. State, 950 N.E.2d 365, 369 (Ind. Ct. App.

      2011).


[3]   Brown does not dispute that there is evidence in the record to support two

      separate child molesting convictions—specifically, there was evidence that he

      inserted his finger into both M.M.’s vagina and her anus. Brown argues,

      however, that the charging information did not specify which act supported

      which count and that the prosecuting attorney’s closing argument invited the

      jury to rely on exactly the same evidence to support both convictions. He

      directs our attention to the prosecuting attorney’s statement that the “second

      count is mostly the same stuff just said in a slightly different way. The only

      difference here between those counts is intent.” Transcript Vol. 2 at 199.


[4]   It is clear to us that the prosecuting attorney was referring in this statement to

      the statutory elements of the charged crimes, not the evidence presented to

      support a finding of guilt. When referring to the evidence, the prosecuting

      attorney consistently indicated that there were two separate acts. See, e.g., id. at

      223 (“This happened twice. Finger inside her vagina, fingers at her—her anus.

      That was clear.”). Accordingly, Brown has not established a reasonable

      possibility that the jury relied on exactly the same facts to support both

      convictions.


[5]   Judgment affirmed.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2416 | July 20, 2017   Page 7 of 8
[6]   Kirsch, J. and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2416 | July 20, 2017   Page 8 of 8
