Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                 Jun 17 2014, 6:18 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JENNIFER A. JOAS                                GREGORY F. ZOELLER
Madison, Indiana                                Attorney General of Indiana

                                                KATHERINE MODESITT COOPER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

TREVOR NASH TICE,                               )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 15A01-1307-CR-301
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE DEARBORN CIRCUIT COURT
                        The Honorable James D. Humphrey, Judge
                             Cause No. 15C01-1209-FB-45



                                       June 17, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Trevor Nash Tice appeals his conviction and sentence for child molesting as a

class B felony. Tice raises three issues, which we revise and restate as:

       I.     Whether the court abused its discretion or committed fundamental
              error in admitting evidence of out-of-court statements and
              videotaped interviews;

       II.    Whether the prosecutor committed misconduct during closing
              argument which resulted in fundamental error; and

       III.   Whether his sentence is inappropriate in light of the nature of the
              offense and the character of the offender.

We affirm.

                        FACTS AND PROCEDURAL HISTORY

       On June 11, 2012, Tice, then nineteen years old, babysat his nephew C.P., then

two years and ten months old. Tice lived with his mother Sherry next door to C.P. and

Karen, who was C.P.’s mother and Tice’s sister. Karen and Tice had a close relationship

and saw each other nearly every day. Members of Karen’s family, including Tice,

frequently babysat C.P. while Karen and her husband, who was C.P.’s father, worked,

and that day her niece was supposed to babysit, but Tice babysat instead.

       On June 15, 2012, upon returning from a family outing Karen was changing C.P.’s

pants when C.P. told her that his “butt hurt.” Transcript at 279. Karen thought the

statement was strange and she asked him why, and C.P. put his head down and stopped

talking. Karen asked C.P. if somebody had touched him and C.P. said “yes.” Id. at 281.

Upon hearing this, Karen left C.P. to play with toys while she composed herself, and

when she returned she asked C.P. who had touched him and named family members,

including herself and her husband. C.P. said “no” to all the names until Karen named

                                             2
Tice, to which C.P. replied “yes.” Id. at 283. Karen then asked what Tice did, and C.P.

replied: “He stuck a pencil in my butt.” Id. C.P. also told Karen that “[h]e put his finger

in my butt and it smells good,” meaning that Tice “said ‘that it smelled good.’” Id.

Karen phoned Sherry, Sherry asked if Karen wanted her to come over, and Karen told her

no and that she wanted to “let it go for now and just try to wrap [her] head around it.” Id.

at 284. Later, before putting C.P. to bed, Karen assisted C.P. in the bathroom and

“casually” examined his buttocks for signs of injury but did not observe any, and C.P. did

not complain again of pain after that evening. Id.

          The next morning, Sherry visited Karen’s house and spoke with C.P. While

watching cartoons with C.P., Sherry asked C.P. if he loved various members of the

family, and after going through several names she asked C.P. if he loved Tice, to which

C.P. replied “no.” Id. at 358. Sherry asked C.P. why he did not love Tice, and C.P.

responded: “Because he stuck a pencil in my butt.” Id. Sherry then told C.P., “[w]ell,

that wasn’t very nice,” and C.P. put a blanket over his head and “kind of shut down.” Id.

at 359.

          That evening, after her husband returned home, Karen told him what C.P. had

said, and they decided to go to the police station. Karen asked the police whether they

should take C.P. to the hospital and was told that it was not necessary as there were no

signs of injury and, at that point, they did not know when the incident had occurred.

After leaving the police station, Karen learned from her niece that Tice had watched C.P.

on June 11, 2012. Karen then contacted Detective Travis Pendergast to inform him of

this.

                                             3
        Detective Vernon McBride scheduled an interview for C.P. at the Child Advocacy

Center on June 20, 2012. At the interview, the interviewer asked C.P. to identify certain

body parts on an anatomical drawing, and when the interviewer asked C.P. to identify the

buttocks, C.P. stopped responding to questions, lay down on the floor, and covered his

head with a blanket. The interviewer attempted to engage C.P. after bringing Karen into

the room, but C.P. crawled under a chair and covered his head with his blanket when Tice

was mentioned.      They decided to conclude the interview, and Detective McBride

instructed Karen and her husband to not discuss the topic with C.P. Later, on July 10,

2012, a second interview was held, but shortly after the interview began C.P. left the

room and would not engage with the interviewer even after she brought Karen into the

room.

        Meanwhile, in the days following June 15, 2012, Sherry told Tice that he needed

to leave her home. Sherry did not reveal C.P.’s statements to Tice and instead “made

something up because [she] knew he would not believe [she] was . . . making him leave

for no reason” and “told him it was because he . . . told [her] that he got suspended . . .

from a job and that he . . . got fired . . . .” Id. at 365. Tice responded “through the whole

conversation” that “I didn’t do anything, but I didn’t do anything,” and before leaving he

stated: “I just want you to know, just so you know, I didn’t do anything.” Id. On June

21, 2012, Detective McBride interviewed Tice in which Tice initially indicated that he

had not “been around [C.P.] for quite some time” and “that he was out of town” on or

about June 11, 2012, but he later admitted that he had watched C.P. on June 11, 2012, for

about two or three hours. Id. at 401.

                                             4
       On September 18, 2012, the State charged Tice with child molesting as a class B

felony. On March 8, 2013, the court held a hearing on the admissibility of child hearsay

during which C.P. testified and was subjected to cross-examination, and on March 19,

2013, the court issued an order determining admissibility of child hearsay finding that

C.P. was a protected person pursuant to Ind. Code § 35-37-4-6, that he was competent to

testify and that certain statements, including those made at the March 8, 2013 hearing, as

well as statements made to Karen, Sherry, and Karen’s sister Sarah, and the videotaped

interviews held on June 20 and July 10, 2012, were reliable, noting that “time, content

and circumstances of the statements and non-verbal assertions and video-tape interviews

of the child . . . provide sufficient indications of reliability to allow admissibility pursuant

to Indiana Code 35-37-4-6.” Appellant’s Appendix at 103. The court also noted in its

order that the “statements were substantially volunteered by” C.P., that “[t]hose asking

the questions were not unduly suggestive,” and that specifically regarding the questions

in which “a list of names was stated to [C.P.] it does not appear that the persons

suggested the name of” Tice. Id.

       On March 26, 2013, the court commenced a jury trial in which evidence consistent

with the foregoing was presented. At trial, the videotaped interviews with C.P. were

played, and C.P., Karen, Sherry, and C.P.’s father all testified. Karen testified, among

other things, that some time following June 15, 2012, she observed C.P. stick a toy in his

buttocks during bath time, and when she told C.P. not to do that C.P. replied: “Well

[Tice] stuck a pencil in my butt.” Transcript at 303-304. She testified that on another

occasion C.P. was playing in the park when he ran to her, and when she asked C.P. why

                                               5
he was not playing C.P. told her it was because “[Tice is] here.” Id. at 304. She asked

C.P. to show her where Tice was, he pointed the person out, Karen told C.P. that the

person was not Tice and that C.P. would “never have to see [Tice] ever again,” and C.P.

said “[t]hank you, mommy,” and hugged her. Id. at 307. She testified that another time

C.P. refused to leave the car after arriving at a restaurant, telling Karen that he did not

want to go inside “[b]ecause [Tice is] in there” and “[h]e stuck a pencil in my butt.” Id.

at 308.

          On March 28, 2013, the jury found Tice guilty as charged. On May 28, 2013, the

court held a sentencing hearing and sentenced Tice to twelve years, including seven years

in the Department of Correction and five years suspended to probation. The court also

found Tice to be a sex offender and sex or violent predator and ordered him to register as

a sex offender for life.

                                        DISCUSSION

                                               I.

          The first issue is whether the court abused its discretion or committed fundamental

error in admitting evidence of out-of-court statements and videotaped interviews.

Generally, we review the trial court’s ruling on the admission or exclusion of evidence

for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g

denied. We reverse only where the decision is clearly against the logic and effect of the

facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied.

Even if the trial court’s decision was an abuse of discretion, we will not reverse if the




                                               6
admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App.

1999), reh’g denied, trans. denied.

       Initially, we observe that Tice raises two sub-issues regarding the admission of the

statements and videotaped interviews.        First, he challenges the court’s finding of

reliability of the statements, and second he argues that the evidence constituted a

“drumbeat of repetition” of the allegations, violating Ind. Evidence Rule 403. The State

observes in its brief that Tice did not object at trial to the admission of the evidence and

that any challenge must be brought under the fundamental error exception.                See

Appellee’s Brief at 9-10 (citing Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh’g

denied). The State then notes that to the extent Tice challenges the reliability of the

statements, he does not allege fundamental error in his brief and accordingly has waived

that claim as well.

       In the section of Tice’s brief challenging the admission of the out-of-court

statements and videotaped interviews as unreliable based upon Ind. Code § 35-37-4-6, he

asserts that the applicable standard of review is an abuse of discretion standard. Tice

cites to Carpenter v. State, 786 N.E.2d 696 (Ind. 2003), and argues that the facts of the

instant case are similar to those in Carpenter and that reversal is warranted. We note that

the Indiana Supreme Court in Carpenter did not apply the fundamental error doctrine.

       In his reply brief Tice concedes that any alleged error in admitting the evidence

related to the reliability of the statements was not preserved at trial by objection and that

the fundamental error doctrine is applicable. He argues that “while the magical words

‘fundamental error’ were not used [in his appellant’s brief], [he] alleged that he did not

                                             7
receive a fair trial because the admission of these statements affected his substantial

rights and are inconsistent with substantial justice.” Appellant’s Reply Brief at 2. It is

true that in Tice’s appellant’s brief, he stated that “[e]rrors in the admission of evidence

will be disregarded unless they affect a party’s substantial rights.” Appellant’s Brief at 8.

For the proposition, Tice cites to a statement in Camm v. State, 908 N.E.2d 215, 218

(Ind. 2009), reh’g denied, specifically to Westlaw Headnote 13 of the Indiana Supreme

Court’s opinion,1 which states that “‘Harmless error’ is error that does not affect the

substantial rights of a party given the error’s likely impact on the jury in light of other

evidence presented at trial. Trial Procedure Rule 61.”                    Thus, Tice’s reference to

“substantial rights” was made in the context of harmless error analysis, rather than the

fundamental error doctrine. Tice did not challenge the reliability of the out of court

statements pursuant to the fundamental error doctrine in his appellant’s brief, and

accordingly he has waived this issue on appeal.2 See Curtis v. State, 948 N.E.2d 1143,

1148 (Ind. 2011) (holding that where the defendant “failed to allege fundamental error in

his principal appellate brief, this issue is waived”).

        To the extent that Tice alleges that the evidence constituted a “drumbeat of

repetition” of the allegations, Appellant’s Brief at 11, we note that he does allege that

such admission constituted fundamental error. Fundamental error is an extremely narrow
        1
        Tice directs our attention to page 218 of Northeast Reporter Volume 908, which contains
Westlaw Headnotes. The text of the opinion begins on page 219.
        2
          The State observes in its brief that Tice did object to admitting the videotaped interviews based
upon relevance, but he did not raise an objection on the basis that the interviews were not reliable. “It is
well-settled law in Indiana that a defendant may not argue one ground for objection at trial and then raise
new grounds on appeal.” D.G.B. v. State, 833 N.E.2d 519, 525 (Ind. Ct. App. 2005) (quoting Burnett v.
State, 815 N.E.2d 201, 207 (Ind. Ct. App. 2004), reh’g denied). Thus, Tice did not preserve the issue on
appeal, and he was required to assert in his brief that admitting the interviews constituted fundamental
error, which he did not do.
                                                     8
exception that allows a defendant to avoid waiver of an issue. Cooper v. State, 854

N.E.2d 831, 835 (Ind. 2006). It is error that makes “a fair trial impossible or constitute[s]

clearly blatant violations of basic and elementary principles of due process . . .

present[ing] an undeniable and substantial potential for harm.” Id. “This exception is

available only in ‘egregious circumstances.’” Brown, 929 N.E.2d at 207 (quoting Brown

v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)).

       Tice argues that the facts of his case are akin to Stone v. State, in which we

reversed a conviction for child molesting because the State used multiple witnesses to

produce a “drum beat repetition” of the child victim’s story. 536 N.E.2d 534, 541 (Ind.

Ct. App. 1989), trans. denied. In Stone, the State had four adult witnesses and the child’s

sister testify to out-of-court statements made by the child, and at least one of the adults

testified before the child took the stand. Id. at 537. The child’s story was repeated a total

of seven times during the trial. Id. We found that the child’s credibility “became

increasingly unimpeachable as each adult added his or her personal eloquence, maturity,

emotion, and professionalism to [the child’s] out-of-court statements,” so that the

“presumption of innocence was overcome long before [Stone] got to the stand.” Id. at

540.

       Tice points to Karen’s testimony that C.P. told her Tice “stuck a pencil in my butt”

while changing C.P., that C.P. stuck a toy in his buttocks and when she told him to stop

“again said ‘[Tice] stuck a pencil in my butt,’” that C.P. ran to her while playing at a park

believing Tice was at the park, that C.P. once refused to leave the car because he thought

Tice was in the restaurant “and ‘he stuck a pencil in my butt,[’]” and that “Karen testified

                                             9
that C.P. had brought up this same topic on approximately ten occasions.” Appellant’s

Brief at 12. He also points to Sherry’s testimony in which she stated that during a

conversation with C.P. he told her that “he does not love [Tice] ‘because he stuck a pencil

in my butt’” and further testified about the restaurant incident. Id. Tice further asserts

that Sherry testified “C.P. brought up this topic on ten (10) or more occasions with her.”

Id. Tice further argues that Karen’s husband, the father of C.P., “testified that there were

three (3) to four (4) occasions when C.P. brought up the same topic . . . .” Id. at 13. He

contends that the videotaped interviews demonstrating “C.P. shutting down at the

mention of [Tice’s] name or identifying buttocks on the anatomical drawing” was further

drumbeat repetition evidence. Id. He notes that C.P. testified at the trial “and when

asked if [Tice] did something to him, he replied, ‘[n]o, he just stuck a pencil in my butt,’”

and that these other statements and evidence “were cumulatively used to bolster C.P.’s

testimony,” were prejudicial, and were a violation Ind. Evidence Rule 403. Id. The State

posits that “this is not a drumbeat repetition case because the statements were merely

cumulative of C.P.’s testimony, were brief, and did not elaborate on C.P.’s testimony that

[Tice] stuck a pencil in his ‘butt.’” Appellee’s Brief at 19.

       The Indiana Supreme Court in Modesitt v. State, 578 N.E.2d 649, 653 (Ind. 1991),

sought to curb abuses resulting from admission of a victim’s prior statement by a

drumbeat repetition of the same statement through other witnesses. The Court adopted

Federal Rule of Evidence 801(d)(1) to govern the use of the victim’s prior consistent and

inconsistent statements at trial and reversed Modesitt’s child molesting and criminal

deviate conduct convictions because the “drumbeat repetition of the victim’s original

                                             10
story” by three witnesses unfairly bolstered the victim’s credibility and precluded

meaningful cross-examination.3 Modesitt, 578 N.E.2d at 652-653. The Court’s opinion

overruled Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (1975), which allowed “prior

out-of-court statements, not under oath,” into evidence “as substantive evidence if the

declarant was present and available for cross examination at the time of the admission of

such statements.” Id. at 651. The Court observed that the Patterson rule’s rationale “that

truthfulness is safeguarded by having the declarant available for cross examination as to

the out-of-court statements” had been undercut when the prosecutor put into evidence,

over the objection of Modesitt, “the victim’s out-of-court charges against Modesitt by

three separate and repetitive witnesses prior to calling the victim herself,” and therefore

“effectively precluded Modesitt from effective cross examination of these charges.” Id.

at 651 (emphasis omitted). The Court explained:

       The jury first heard and was allowed to consider, as substantive evidence,
       the victim’s statements made to her mother many months prior to trial. At
       this point, Modesitt had not yet had an opportunity to cross examine the
       victim herself concerning these charges and, obviously, he could not cross
       examine the mother concerning the truthfulness of the charges which had
       been leveled by her daughter. This lack of ability to cross examine the
       veracity of the statements continued through the repetitive testimony of the
       welfare caseworker and the psychologist. Prior to putting the victim on the
       stand, the victim’s veracity had been, in essence, vouchsafed by permitting
       the three witnesses to repeat the accusations of the victim.

Id. The Court, citing to Stone, held that it could not say “the drumbeat repetition of the

victim’s original story prior to calling the victim to testify did not unduly prejudice the

jury . . . .” Id. at 651-652 (citing Stone, 536 N.E.2d at 541).


       3
           The Court’s holding in Modesitt has been codified as Ind. Rule of Evidence 801(d). See Brown
v. State, 671 N.E.2d 401, 406 n.4 (Ind. 1996).
                                                  11
       The Indiana Supreme Court has found that evidence improperly admitted under

Ind. Evidence Rule 801(d)(1)(B) to be subject to harmless error analysis. See Bouye v.

State, 699 N.E.2d 620, 625-626 (Ind. 1998) (holding that allowing a detective, pursuant

to Ind. Evidence Rule 801(d)(1)(B), to read statements of codefendant as they appeared

in the probable cause affidavit as evidence of codefendant’s prior consistent statements

was improper because such statements were made after the codefendant’s motive to

fabricate arose, but that such error was harmless because it “was merely duplicative of

properly admitted evidence” and did not affect the defendant’s substantial rights). A

panel of this court has previously found the erroneous admission of evidence in violation

of Modesitt to be harmless where the victim’s prior consistent statements were

cumulative and witness testimony concerning the statements was “brief and consistent

with” the victim’s later testimony. McGrew v. State, 673 N.E.2d 787, 796 (Ind. Ct. App.

1996), reh’g denied, summarily aff’d by 682 N.E.2d 1289, 1292 (Ind. 1997). However,

in this particular context, we believe that subjecting the rule in Modesitt to a harmless

error analysis directly undermines the purpose of the rule, as well as the purpose of Ind.

Evidence Rule 801(d)(1)(B), which is to generally prohibit, unless certain narrow criteria

are met, the introduction of prior consistent out-of-court statements of a witness through

other witnesses in order to “bolster” a weak witness’s testimony. Modesitt, 578 N.E.2d at

653.   It would therefore be circular to say that error in admitting prior consistent

statements of a witness is harmless if the statements are consistent with the witness’s

testimony.




                                           12
        Here, however, we need not reach the issue because regardless of whether or not

the testimony admitted in this case constituted a “drumbeat repetition,” we cannot say

such error was fundamental. The record indicates that C.P. testified specifically to the act

Tice was accused of performing. Although Karen testified before C.P., C.P.’s testimony

came prior to the testimony of Sherry and C.P.’s father. Cf. id. at 650 (noting that

“[o]nly after the testimony of [] three witnesses was completed was the victim called to

testify).   Importantly, unlike the defendant in Modesitt, Tice did not object to the

presentation of evidence by these witnesses. See Eastwood v. State, 984 N.E.2d 637, 641

(Ind. Ct. App. 2012) (holding that evidence challenged on appeal as “drumbeat

repetition” of victim’s testimony was not objected to at trial and that the defendant failed

to establish fundamental error with regard to the issue), trans. denied. Also, to the extent

Tice challenges admitting the interviews into evidence on this basis, we note that the

interviews contain almost no verbal communication by C.P. regarding the incident.

        We find that the admission of the out-of-court statements and interviews did not

deprive Tice of a fair trial, and we conclude that such admission does not constitute

fundamental error.

                                            II.

        The next issue is whether the prosecutor committed prosecutorial misconduct that

resulted in fundamental error. In reviewing a properly preserved claim of prosecutorial

misconduct, we determine: (1) whether the prosecutor engaged in misconduct, and if so,

(2) whether the misconduct, under all of the circumstances, placed the defendant in a

position of grave peril to which he should not have been subjected. Cooper, 854 N.E.2d

                                            13
at 835.   Whether a prosecutor’s argument constitutes misconduct is measured by

reference to case law and the Rules of Professional Conduct. Id. The gravity of peril is

measured by the probable persuasive effect of the misconduct on the jury’s decision

rather than the degree of impropriety of the conduct. Id.

       When an improper argument is alleged to have been made, the correct procedure is

to request the trial court to admonish the jury. Id. If the party is not satisfied with the

admonishment, then he should move for mistrial.               Id.   Failure to request an

admonishment or to move for mistrial results in waiver. Id.

       Where, as here, a claim of prosecutorial misconduct has not been properly

preserved, our standard of review is different from that of a properly preserved claim. Id.

More specifically, the defendant must establish not only the grounds for the misconduct,

but also the additional grounds for fundamental error. Id.

       Tice argues that the prosecutor made certain statements during closing argument

which constituted improper vouching.       Specifically, he directs our attention to the

following statements made by the prosecutor:

       You should not disregard the testimony of any witness without a reason,
       you don’t have any reason to disregard the testimony of any of our
       witnesses because they told you the truth and their testimony matches up
       with that instruction.

                                         *****

       [W]hat [C.P.] says is that man molested him. It ain’t pretty close to the
       truth, ladies and gentlemen, it is the truth, it is the evidence.

                                         *****

       Ladies and gentlemen, I just ask for one thing…one thing, a verdict you can
       be proud of, a verdict that protects the community, and I ask this one thing
                                            14
       because it is all one thing, the truth…the true verdict, he’s guilty beyond a
       reasonable doubt, and I ask that you return the appropriate verdict and hold
       him accountable . . . .

Transcript at 438, 442, 444; see also Appellant’s Brief at 16.

       Tice argues that the prosecutor improperly commented on the truthfulness of

various witnesses, including C.P., arguing that these statements were “very direct [and]

very bold” and “must have had a great deal of impact on the jury and gave the jury the

inference that the prosecutor knew something that they did not.” Appellant’s Brief at 17.

In support, Tice cites Ind. Professional Conduct Rule 3.4(e), which states:

               A lawyer shall not . . . in trial, allude to any matter that the lawyer
       does not reasonably believe is relevant or that will not be supported by
       admissible evidence, assert personal knowledge of facts in issue except
       when testifying as a witness, or state a personal opinion as to the justness of
       a cause, the credibility of a witness, the culpability of a civil litigant or the
       guilt or innocence of an accused . . . .

       The State argues that the comments cited by Tice do not constitute misconduct at

all, let alone misconduct resulting in fundamental error. The State contends regarding the

first comment that “when viewed in context, the prosecutor’s word choice did not reflect

his own personal views but instead directed the jury to consider the demeanor of the

witnesses and content of their testimony,” noting that the prosecutor explained

immediately following the statement citied by Tice that Karen and Sherry “were

credible[] because neither had a motivation to lie or fabricate their testimony due to their

professed love of and trust in [Tice].” Appellee’s Brief at 25. The State maintains that

“the prosecutor illustrated ways the jury could assess the witnesses’ credibility and what

factors the jury might consider . . . but did not express his personal opinion . . . .” Id.

Regarding the second comment cited above by Tice, the State argues that “immediately
                                              15
preceding this remark, the prosecutor encouraged the jury to view the tapes of C.P. and to

consider [his] demeanor and countenance, and argued that in doing so the jurors would

observe a bright little boy who even [Tice] admitted to police generally told the truth.”

Id. at 26. The State also notes that immediately prior to making the comment, the

prosecutor also discussed Tice’s credibility and noted “that he lied when he said he had

not seen or been around C.P. for a long time” initially to the police. Id. Regarding the

final comment the State argues that it was not improper vouching because “the prosecutor

did not vouch for anyone by asking the jury to return a ‘true verdict’ and find [Tice]

guilty as charged.”    Id.   The State further asserts that even if one or more of the

comments constituted improper vouching, reversal is not warranted because Tice was not

deprived of a fair trial, distinguishing the instant comments from other cases.

       To the extent Tice challenges the prosecutor’s statements regarding the relative

truthfulness of the various witnesses, we observe that the Indiana Supreme Court has held

that “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. In Hobson v. State, 675 N.E.2d 1090, 1095-1096 (Ind. 1996), the Court discussed a

claim of fundamental error involving the prosecutor’s personal opinions as to the

truthfulness of witnesses, noting that the “prosecutor gave personal opinions as to the

truthfulness of witnesses” when the prosecutor stated to the jury during closing

arguments, “I warned you that [the defendants] are liars.” 675 N.E.2d at 1095. The

Court held that “[a] prosecutor, in final arguments, can ‘state and discuss the evidence

and reasonable inferences derivable therefrom so long as there is no implication of

                                            16
personal knowledge that is independent of the evidence.’” Id. at 1096 (quoting Kappos v.

State, 577 N.E.2d 974, 977 (Ind. Ct. App. 1991), trans. denied).

       Although we do not approve of the prosecutor’s statement that “what [C.P.] says is

that man molested him. It ain’t pretty close to the truth, ladies and gentlemen, it is the

truth, it is the evidence,” Transcript at 442, we also believe that, when read in context, the

prosecutor was making observations regarding witness credibility based on inferences

derivable from the evidence. As noted by the State, Tice was the brother of Karen and

the son of Sherry, and both testified that they loved and trusted Tice, and on that basis the

prosecutor suggested that they had no motivation to fabricate their testimony.           The

prosecutor emphasized Tice’s initial fabrications to detectives, in which he initially

indicated that he had not “been around [C.P.] for quite some time” and “that he was out

of town” on or about June 11, 2012, but he later admitted that he had watched C.P. on

June 11, 2012, for about two or three hours. Transcript at 401. The prosecutor in making

his remark that C.P.’s allegation that Tice molested him was “the truth” was immediately

preceded by the State encouraging the jury to review the videotaped interviews and infer

whether they depicted a child who was not telling the truth. This statement was a

directive by the prosecutor to examine the evidence and make reasonable inferences

based thereon.

       However, in so holding we wish to underscore that “[i]t is improper for the

prosecutor to make an argument which takes the form of personally vouching for the

witness.” Schlomer v. State, 580 N.E.2d 950, 957 (Ind. 1991) (finding error in the

prosecutor telling jury that he believed a police officer’s testimony). We find that here,

                                             17
although the prosecutor’s statement that what C.P. testified “is the truth” approaches the

line of impropriety or misconduct, the context of the statement demonstrates that he

stopped short of explicitly vouching for C.P. In any event, we cannot say that such

statement amounted to fundamental error.

       Finally, regarding the challenge to the prosecutor’s final remarks to the jury asking

them to return a verdict they “can be proud of” and that “protects the community,” we

agree with the State that such statements do not run afoul of Ind. Professional Rule 3.4(e),

and Tice does not cite other authority challenging them. This statement did not imply

personal knowledge on the part of the prosecutor. We note that it may be misconduct for

a prosecutor to ask a jury to convict a defendant for any reason other than his or her guilt,

or to attempt to inflame the passions or prejudices of the jury. Wisehart v. State, 693

N.E.2d 23, 59 (Ind. 1998). Indeed, the Indiana Supreme Court has disapproved of

prosecutors invoking a general concern for “community safety” as a legitimate basis for

returning a guilty verdict. See Maldonado v. State, 265 Ind. 492, 501, 355 N.E.2d 843,

849 (1976) (finding error in the prosecutor arguing, “this may be the most important

thing you’ll ever do for your community”). However, Tice brings his challenge under the

fundamental error exception, which is extremely narrow and is “available only in

‘egregious circumstances’” Brown, 929 N.E.2d at 207, and again we cannot say that he

has demonstrated fundamental error in this regard.

                                            III.

       The next issue is whether Tice’s sentence is inappropriate in light of the nature of

the offense and his character. Ind. Appellate Rule 7(B) provides that we “may revise a

                                             18
sentence authorized by statute if, after due consideration of the trial court’s decision, [we

find] that the sentence is inappropriate in light of the nature of the offense and the

character of the offender.” Under this rule, the burden is on the defendant to persuade the

appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006). Tice argues that “he should have received a sentence less than

the advisory sentence,” noting that the facts do not show that this particular crime is any

worse than other child molesting cases charged as a class B felony, that “there was a

single act against a single victim,” that he had no criminal convictions at the time of his

sentencing, and that he “is an extremely young man” and “[i]f anyone is capable of

rehabilitation it is someone of Tice’s age . . . .” Appellant’s Brief at 20-22. He also

highlights facts including his work history, that he graduated from high school, and that

his presentence investigation report (“PSI”) “identifies his overall risk assessment score

to be ‘in the LOW risk category to reoffend.’” Id. at 23.

        Our review of the nature of the offense reveals that Tice, while babysitting his

two-year-old nephew C.P., inserted a pencil into C.P.’s buttocks and told C.P. that it

“smell[ed] good.” Transcript at 283. This incident caused C.P.’s buttocks to hurt.

Because of the incident, C.P. exhibited fear at various times, including refusing to enter a

restaurant and running to Karen while playing in a park, because he believed Tice was in

the vicinity. Our review of the character of the offender reveals that Tice did not have

any criminal convictions at the time of sentencing.4 He graduated high school and held

various jobs. When questioned by Detective McBride about the incident, Tice initially
        4
         We note that Tice’s PSI reveals that he was charged on April 6, 2012, with forgery as a class C
felony for “present[ing] BMV registration as if signed by Gary Tice” and that the case was pending.
Appellant’s Appendix at 209.
                                                  19
told him that he had not “been around [C.P.] for quite some time” and “that he was out of

town” on or about June 11, 2012, before later admitting that he had watched C.P. on June

11, 2012, for about two or three hours. Id. at 401.

       After due consideration of the trial court’s decision and recognizing the position of

trust Tice held over C.P., we cannot say that he has met his burden of showing that his

sentence of twelve years, including seven years in the Department of Correction and five

years suspended to probation is inappropriate in light of the nature of the offense and the

character of the offender.

                                     CONCLUSION

       For the foregoing reasons, we affirm Tice’s conviction and sentence for child

molesting as a class B felony.

       Affirmed.

BARNES, J., and ROBB, J., concur.




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