FOR PUBLICATION                                                         Oct 31 2013, 5:33 am




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                            GREGORY F. ZOELLER
Marion County Public Defender Agency          Attorney General of Indiana
Indianapolis, Indiana
                                              IAN McLEAN
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

GARY TIBBS,                                   )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 49A05-1210-CR-517
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Lisa F. Borges, Judge
                          Cause No. 49G04-1106-FA-40789


                                   October 31, 2013

                             OPINION - FOR PUBLICATION

MAY, Judge
        Gary Tibbs appeals his convictions of two counts of Class A felony child molesting,1

three counts of Class B felony child molesting,2 one count of Class D felony intimidation,3

and one count of Class D felony child solicitation.4 He claims the State committed

prosecutorial misconduct when it commented during closing argument on the truthfulness of

his testimony. We affirm.

                          FACTS AND PROCEDURAL HISTORY

        Between 2002 and 2011, Tibbs molested D.J. and his sister J.J., and solicited oral sex

from a third child, T.W. In early 2011, D.J., J.J., and T.W. told T.W.’s grandmother of

various sexual acts Tibbs had forced, or attempted to force, the children to commit. The next

day the children were interviewed by police and examined by a pediatrician.

        Based on those interviews and a search of Tibbs’ home, the State charged Tibbs with

three counts of Class A felony child molesting; four counts of Class B felony child

molesting; one count of Class D felony intimidation, for allegedly threatening to kill J.J. if

she reported the molestation; one count of Class D felony child solicitation, and one count of

Class D felony dissemination of matter harmful to minors, for allegedly exposing his

genitalia to T.W..5 Tibbs waived his right to a jury trial and the court heard evidence on

August 10, 2012.

        During trial, Tibbs claimed he could not have committed two counts of Class B felony



1
  Ind. Code § 35-42-4-3(b).
2
  Ind. Code § 35-2-4-3(a).
3
  Ind. Code § 35-45-2-1(b)(1).
4
  Ind. Code § 35-42-4-6(b).
5
  Ind. Code § 35-49-3-3(a).
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child molesting against D.J. because he was “incarcerated at South Bend Correctional

Facility[,]” (Tr. at 168), for the entire time alleged in those two counts, specifically between

“November 21, 2002, and November 20, 2003[.]” (App. at 33.) On cross-examination, the

State asked Tibbs if his juvenile record would indicate he was serving time at the South Bend

Correctional Facility on the dates he alleged, and Tibbs indicated it would. The State

introduced Tibbs’ juvenile record into evidence, which record did not show Tibbs was

incarcerated in South Bend. The State attempted to locate, but could not find in the

Department of Correction online offender database, any information regarding Tibbs’ alleged

incarceration in South Bend.

       During closing argument, the State said:

       Can you take what the Defendant and his mother say to the bank? Absolutely
       not. The records that the Defendant agrees with contradict his own testimony.
        And even if you believe his testimony that he was in South Bend for a period
       of time, he was back in Indianapolis in 2003 and that’s what he testified to.
       And he’s provided this court with no documentation to show he was sent to the
       Department of Corrections [sic]. And his juvenile record does not show him
       being sent to the Department of Corrections [sic].

(Tr. at 186-87.) Tibbs did not object, but during his closing argument he asked the trial court

to “hold up on [its] opinion until I go to South Bend and render – give us (unintelligible) and

see if he in fact was in South Bend incarcerated.” (Id. at 189.) The trial court denied Tibbs’

request because Tibbs had rested his case. However, the trial court indicated it would

entertain a motion to consider new evidence if the documentation was found. The trial court

then found Tibbs guilty to of two counts of Class A felony child molesting, three counts of

Class B felony child molesting, one count of Class D felony intimidation, and one count of

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Class D felony child solicitation.

       Tibbs did not file a motion to consider new evidence. His pre-sentence investigation

(PSI) report indicated Tibbs was incarcerated from August 15, 2002, until approximately

August 25, 2003, when Tibbs began a portion of his sentence on home detention. During

sentencing, Tibbs argued the information in the PSI proved he could not have committed an

offense between November 21, 2002, and November 20, 2003. However, the State noted

Tibbs was released prior to the end of the charged date range and the date of the crime was

not an element of the crime. The trial court sentenced Tibbs to an aggregate term of 83.5

years incarcerated.

                             DISCUSSION AND DECISION

       Tibbs argues the State committed prosecutorial misconduct when “the deputy

prosecutor created the false impression that Tibbs was lying when he testified truthfully that

he had been incarcerated during part of the time he was alleged to have molested D.J.[.]”

(Br. of Appellant at 1.) In reviewing a 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. Schmidt v. State, 816 N.E.2d 925, 944 (Ind. Ct. App. 2004), trans.

denied.

       Tibbs’ trial counsel did not object to the statements Tibbs now argues were

prosecutorial misconduct. A claim of prosecutorial misconduct presented on appeal without

a contemporaneous trial objection will not succeed unless the defendant establishes not only

                                              4
prosecutorial misconduct but also the additional grounds for fundamental error. Id. For

prosecutorial misconduct to be fundamental error, it must make a fair trial impossible or

amount to clearly blatant violations of basic and elementary principles of due process and

present an undeniable and substantial potential for harm. Id.

       The mere fact that an alleged error implicates constitutional issues does not establish it

was fundamental. Id. at 945. Our Indiana Supreme Court has emphasized the “extremely

narrow” application of the fundamental error doctrine:

       To qualify as fundamental error, an error must be so prejudicial to the rights of
       the defendant as to make a fair trial impossible. To be fundamental error, the
       error must constitute a blatant violation of basic principles, the harm or
       potential for harm must be substantial, and the resulting error must deny the
       defendant fundamental due process.

Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002) (citations and quotations omitted).

       However, this case was not tried before a jury, but instead was tried before the bench.

“[I]n criminal bench trials, we presume that the court disregard[s] inadmissible testimony and

render[s] its decision solely on the basis of relevant and probative evidence.” Griffin v. State,

698 N.E.2d 1261, 1267 (Ind. Ct. App. 1998), trans. denied. Further, generally valid issues

with regard to fundamental error such as “unfair prejudice, confusion of the issues, or

potential to mislead the jury” are relevant only in jury trials. Ruiz v. State, 926 N.E.2d 532,

535 (Ind. Ct. App. 2010), reh’g denied.

       We cannot say that the prosecutor’s actions amounted to fundamental error. The

comment was merely a comment upon the evidence, which is permitted during closing

argument. See Lopez v. State, 527 N.E.2d 1119, 1127 (Ind. 1988) (“a prosecutor may

                                               5
comment on the credibility of witnesses as long as the assertions are based on reasons which

arise from the evidence.”). Accordingly, we affirm.

       Affirmed.

BAILEY, J., and BRADFORD, J., concur.




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