Pursuant to Ind.Appellate Rule 65(D),
                                                                      Aug 14 2013, 5:40 am
this Memorandum Decision shall not be
regarded as precedent or cited before
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:

PAULA M. SAUER                                  GREGORY F. ZOELLER
Danville, Indiana                               Attorney General of Indiana

                                                CYNTHIA L. PLOUGHE
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JONATHON MCDONALD,                              )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 32A01-1210-CR-483
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE HENDRICKS CIRCUIT COURT
                          The Honorable Jeffrey V. Boles, Judge
                              Cause No. 32C01-1009-FA-1



                                      August 14, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
        Jonathon McDonald appeals his convictions for three counts of child molesting as

class A felonies and two counts of vicarious sexual gratification as class B felonies.

McDonald raises three issues, which we revise and restate as:

        I.      Whether any error in the admission of the testimony of the child
                victim is harmless;

        II.     Whether the trial court abused its discretion in denying McDonald’s
                motions for mistrial; and

        III.    Whether an accumulation of certain alleged errors constitute
                fundamental error.

We affirm.

                           FACTS1 AND PROCEDURAL HISTORY

        McDonald has three children, A.M., his daughter born on April 28, 2001, his son

J.M., who was five years old in August 2008, and his daughter K.M., who was four years

old in August 2008. Between July 2007 and August 2008, McDonald inserted his penis

into J.M.’s anus, McDonald and J.M. placed their mouths on each other’s penises, and

McDonald had or helped J.M. insert his penis into A.M.’s vagina and anus. McDonald

told A.M. and J.M. not to tell anyone.

        In the summer of 2008, McDonald’s three children were removed from the care of

McDonald and his wife by the Department of Child Services (“DCS”) due to unsanitary

conditions in the home. State v. McDonald, 954 N.E.2d 1031, 1032 (Ind. Ct. App. 2011).

The foster mother reported that the children were acting out sexually and that A.M.

claimed McDonald had molested her. Id. During the initial interviews, J.M. was unable



        1
         The facts recited here are taken in part from this court’s previous opinion in State v. McDonald,
954 N.E.2d 1031 (Ind. Ct. App. 2011).
                                                    2
to communicate due to severe speech delays and impaired hearing, and as a result DCS

did not substantiate sexual abuse allegations against McDonald as to J.M. Id.

      In December 2008, the State charged McDonald with two counts of felony child

molesting as class A felonies and one count of child molesting as a class C felony related

to McDonald’s alleged actions against A.M. and three counts of neglect of a dependent as

class D felonies related to the living conditions for A.M., J.M., and K.M. The State later

added a count of performing sexual conduct in the presence of a minor as a class D

felony for having sexual intercourse in the presence of A.M. Id. at 1032-1033. In March

2009, McDonald pled guilty to performing sexual conduct in the presence of a minor as a

class D felony and was sentenced to three years in the Department of Correction, and the

State dismissed the remaining charges. Id. at 1033. After receiving speech therapy

which started in November 2008, J.M. was reinterviewed in July 2010, and, based on the

interview, DCS substantiated sexual abuse allegations against McDonald related to J.M.

Id.

      In September 2010, the State charged McDonald, as amended, with: Count I, child

molesting as a class A felony for deviate sexual conduct involving the sex organ of

McDonald and the anus of J.M.; Count II, child molesting as a class A felony for deviate

sexual conduct involving the sex organ of McDonald and the mouth of J.M.; Count III,

child molesting as a class A felony for deviate sexual conduct involving the sex organ of

J.M. and the mouth of McDonald; Count IV, vicarious sexual gratification as a class B

felony for inducing or causing J.M. to engage in sexual intercourse with another child

under the age of sixteen; and Count V, vicarious sexual gratification as a class B felony

for inducing or causing J.M. to engage in deviate sexual conduct with another person.
                                          3
McDonald filed a motion to dismiss the charges against him in December 2010, arguing

that the charges should be dismissed pursuant to Indiana’s successive prosecution statute,

and the trial court granted the motion. Id. The State appealed the court’s ruling, and this

court reversed the ruling and remanded for further proceedings. Id. at 1035. In July

2012, the trial court granted the State permission to file an amended information related

to the counts of vicarious sexual gratification to correct a scrivener’s error. The State

filed a notice of intent to offer evidence under Ind. Evidence Rule 404(b) on July 13,

2012. McDonald filed a motion in limine seeking to exclude evidence of prior crimes or

misconduct on July 19, 2012, and the court granted the motion. The State then filed an

amended notice of intent to offer evidence under Ind. Evidence Rule 404(b) on July 23,

2012, which included evidence related to sexual acts and touches that A.M. was forced to

participate in with McDonald. At his jury trial, the evidence included the testimony,

among others, of J.M., A.M., Plainfield Police Detective Allison Ritter, the foster mother

of J.M. and A.M., the children’s bus driver, a volunteer at J.M.’s church group, and a

forensic interviewer. During the trial, McDonald challenged the competency of J.M.,

arguing in part that the State failed to demonstrate that J.M. understood the difference

between telling a lie and telling the truth or that he understood the consequences of lying,

and the court permitted J.M. to testify. In addition, McDonald filed two motions for

mistrial, one of which was based upon a statement by A.M. that McDonald had sex with

her, and the other of which was based upon alleged vouching testimony of Detective

Ritter. The court denied the motions. The jury found McDonald guilty as charged on all

five counts. The court sentenced McDonald to forty years for each of his convictions for

child molesting as class B felonies, to be served concurrently with each other, and ten
                                            4
years for each of his convictions for vicarious sexual gratification as class A felonies, to

be served concurrently with each other and consecutive to the sentences for child

molesting, for an aggregate sentence of fifty years.

                                      DISCUSSION

                                             I.

       The first issue is whether any error in the admission of J.M.’s testimony is

harmless. McDonald contends that the trial court abused its discretion in determining

that J.M. was competent to testify at trial. McDonald specifically asserts that J.M. is

learning disabled with a communication disorder and has a low IQ, that McDonald had

objected and stated that the State failed to establish a foundation that J.M. understood the

difference between the truth and a lie or that J.M. understood the possible consequences

of lying, that the evidence contradicted a number of J.M.’s responses, and that J.M.

would agree with anything to make conflicts go away. The State maintains that the court

acted within its discretion when it found J.M. to be a competent witness and that, even if

the foundation was insufficient, such a deficiency does not warrant reversal of

McDonald’s convictions because J.M.’s testimony was merely cumulative of A.M.’s

more detailed testimony. In his reply brief, McDonald contends that J.M.’s testimony

was crucial to the State’s case, that it was J.M.’s bearing and demeanor that strengthened

the State’s case, that there is little doubt that J.M. was a sympathetic witness, and that

“[h]is testimony was that much more compelling when the court declared him to be

competent, despite his obvious disabilities.” Appellant’s Reply Brief at 4.

       Ind. Evidence Rule 601 provides: “Every person is competent to be a witness

except as otherwise provided in these rules or by act of the Indiana General Assembly.”
                                            5
“A child’s competency to testify at trial is established by demonstrating that he or she (1)

understands the difference between telling a lie and telling the truth, (2) knows he or she

is under a compulsion to tell the truth, and (3) knows what a true statement actually is.”

Richard v. State, 820 N.E.2d 749, 755 (Ind. Ct. App. 2005), trans. denied, cert. denied,

546 U.S. 1091, 126 S. Ct. 1034 (2006). “It is within the sound discretion of the trial court

to determine whether a child is competent to testify based upon the judge’s observation of

the child’s demeanor and responses to questions posed to her by counsel and the court,

and a trial court’s determination that a child is competent will only be reversed for an

abuse of discretion.” Harrington v. State, 755 N.E.2d 1176, 1181 (Ind. Ct. App. 2001).

“Errors in the admission or exclusion of evidence are to be disregarded as harmless error

unless they affect the substantial rights of a party.” Fleener v. State, 656 N.E.2d 1140,

1141 (Ind. 1995) (citations omitted). An error in the admission of evidence does not

justify reversal if the evidence is cumulative of other evidence presented at trial. Cole v.

State, 970 N.E.2d 779, 784 (Ind. Ct. App. 2012).

         In this case, even if the trial court abused its discretion in admitting J.M.’s

testimony, the admission was harmless and does not require reversal of McDonald’s

convictions. The record reveals that, when asked one of the things McDonald did to him,

J.M., who was nine years old at the time of trial, testified “[h]im done sex with me,” and

when asked the body part he was talking about, J.M. stated “[d]ick on your butt.”

Transcript at 550-551. When asked “whose dick went in whose butt,” J.M. stated “[l]ike

mine.”     Id. at 551.   When asked “[y]ours went in whose butt,” J.M. stated “[i]n

[McDonald].”      Id. at 551-552.   J.M. responded affirmatively when asked if he did


                                             6
anything with A.M. and if McDonald was present. When asked what he and A.M. did,

J.M. testified “[w]e just put my body part in her butt.” Id. at 552.

       Prior to J.M.’s testimony, the jury heard the testimony of A.M., who was eleven

years old at the time of trial. When asked what she remembered happening between

McDonald and J.M., A.M. testified that they “had sex together and play with each other

and putting their mouth on each other’s parts.” Id. at 414. A.M. testified that McDonald

“put his part up [J.M.’s] butt . . . .” Id. at 414-415. When asked what body part

McDonald “put” in J.M.’s butt, A.M. stated “[a] dick,” and when asked “[y]ou saw

[McDonald] put his dick in [J.M.’s] butt,” A.M. stated “Yes.” Id. at 415-416. A.M.

further testified that she observed McDonald and J.M. “put each other’s mouth on their

parts,” and when asked “[s]o as far as you saw them each put their mouth on each other’s

dick,” A.M. stated “Yes.” Id. at 416. A.M. also indicated that she observed McDonald

insert his penis into J.M.’s butt more than once. When asked if she “ever [saw] anything

come out of [McDonald’s] dick,” A.M. testified “[j]ust white stuff,” and when asked

“what would [McDonald] do with this white stuff,” A.M. testified “[h]e just make put it

in his mouth or, and drink it.” Id. at 419.

       In addition, A.M. testified that McDonald “made [her] and [J.M.] have sex

together,” and when asked what she meant, A.M. testified “[l]ike [J.M.] putting his part

up my butt or front of me.” Id. at 420. When asked “when you’re talking about the front

part here, are you talking about the outside of the part[] or did he actually put it . . . inside

your body,” A.M. testified “[i]nside,” and when asked the same question “about the back

part of your body” where “the poop comes out,” A.M. also testified “[i]nside.” Id. A.M.

testified that McDonald would be “standing by” her and J.M. “showing [them] how to do
                                           7
it” and that he “moved [J.M.] and put it right, in the right, his right spot.” Id. at 421.

A.M. indicated that McDonald “would help put [J.M.’s] dick in [her].” Id. at 422. When

asked how many times she thought this happened, A.M. testified “[a]lmost every day and

all, all the time.” Id.

       J.M.’s testimony was substantially similar to the testimony of A.M., and A.M.

testified as to each of the acts to which J.M. testified and alleged by the State, and

defense counsel was able to cross-examine J.M. and A.M. about their observations and

memories. We conclude that any possible error in the admission of J.M.’s testimony was,

at most, harmless because the testimony was cumulative of A.M.’s testimony. See Cole,

970 N.E.2d at 784 (holding the admission of hearsay is not grounds for reversal where it

is merely cumulative of other evidence admitted); Purvis v. State, 829 N.E.2d 572, 581-

585 (Ind. Ct. App. 2005) (holding that the admission of statements of a child molesting

victim to an officer was erroneous because the child was unable to understand the nature

and obligation of an oath and thus was incompetent to testify, but that the erroneous

admission was harmless because the testimony was cumulative and that the properly

admitted testimony was a lengthier recounting of events), trans. denied, cert. denied, 457

U.S. 1026 (2006). Accordingly, we conclude that reversal of McDonald’s convictions on

this basis is unwarranted.

                                           II.

       The next issue is whether the court abused its discretion in denying McDonald’s

motions for mistrial. “The granting of a mistrial lies within the sound discretion of the

trial court, and we reverse only when an abuse of discretion is clearly shown.” Davis v.

State, 770 N.E.2d 319, 325 (Ind. 2002), reh’g denied.        “The remedy of mistrial is
                                        8
‘extreme,’ Warren v. State, 757 N.E.2d 995, 998-999 (Ind. 2001), strong medicine that

should be prescribed only when ‘no other action can be expected to remedy the situation’

at the trial level, Gambill v. State, 436 N.E.2d 301, 304 (Ind. 1982).” Lucio v. State, 907

N.E.2d 1008, 1010-1011 (Ind. 2009). We afford the trial court such deference on appeal

because the trial court is in the best position to evaluate the relevant circumstances of an

event and its impact on the jury. Alvies v. State, 795 N.E.2d 493, 506 (Ind. Ct. App.

2003), trans. denied. To prevail on appeal from the denial of a motion for a mistrial, the

appellant must demonstrate the statement or conduct in question was so prejudicial and

inflammatory that he was placed in a position of grave peril to which he should not have

been subjected. Id. We determine the gravity of the peril based upon the probable

persuasive effect of the misconduct on the jury’s decision rather than upon the degree of

impropriety of the conduct. Id. A mistrial is an extreme sanction warranted only when

no other cure can be expected to rectify the situation. Id.

       McDonald asserts that the court abused its discretion in denying his motions for

mistrial because the jury was improperly exposed to prior bad acts through a statement

made by A.M. and vouching testimony when Detective Ritter gave certain testimony

regarding the victims’ statements. The State maintains that the court properly denied the

motions for mistrial, that A.M.’s statement, which the State did not anticipate, did not

place McDonald in a position of grave peril, and that Detective Ritter’s testimony did not

constitute improper vouching testimony and did not place McDonald in a position of

grave peril.

       With respect to McDonald’s motion for mistrial based upon A.M.’s statement,

during the direct examination of A.M., the following exchange occurred:
                                            9
      Q         Did [McDonald] ever tell you or say anything to you about talking
                about what was going on?

      A         Yes.

      Q         What did he tell you?

      A         He told me you better not tell anyone or you’ll be killed.

      Q         Who would kill you?

      A         Huh?

      Q         Who would kill you?

      A         [McDonald].

      Q         Did you believe him?

      A         Yes, and no.

      Q         But yet you told?

      A         Yes.

      Q         Uh, if you didn’t do these things, have sex with [J.M.], uh, or [J.M.]
                wouldn’t have sex with [McDonald], what would [McDonald] do to
                you?

      A         He had sex with me.

Transcript at 424-425. McDonald moved for a mistrial and stated that “the witness was

advised not to speak [of] any sexual acts between herself or anybody else and

[McDonald],”2 that A.M.’s statement was highly prejudicial, that “[n]ow [] the jury’s


      2
          Ind. Evidence Rule 404(b) provides:

      Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not
      admissible to prove the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such as proof of motive,
      intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided
      that upon request by the accused, the prosecution in a criminal case shall provide
      reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on
                                                   10
been told that these things happened which we can rebut that her dad was going to kill

he[r] and that if she didn’t have sex with [J.M.] dad was going to have sex with her then,”

and that “I don’t think I can cure that, especially now through what this witness has said.”

Id. at 425. The trial court stated that A.M.’s response was not a violation of the motion in

limine,3 that McDonald could ask for a curative response from the court, and that the

motion for mistrial was denied. The court instructed the jury to disregard A.M.’s last

answer, in no way during deliberations to discuss or refer to her answer, and that the

answer could not be used as evidence. The court asked the jury whether they could all do

those things and noted that all of the jury members responded affirmatively.

        Based upon the record, including A.M.’s extended and detailed testimony

regarding the actions of McDonald with J.M. and in causing J.M. and A.M. to have sex

with each other, and in light of the court’s admonition to the jury to disregard the

statement and the jury’s indication that they could do so, we conclude that McDonald has

not established that A.M.’s statement “[h]e had sex with me” was so prejudicial and

inflammatory that he was placed in a position of grave peril to which he should not have

been subjected, or that the jury’s decision was affected by the statement. The trial court

did not abuse its discretion in denying McDonald’s motion for mistrial on this basis.




        good cause shown, of the general nature of any such evidence it intends to introduce at
        trial.
        3
          In his motion in limine, McDonald requested that the State make no comment or argument on
his apparent criminal adult or juvenile record of any reference to any prior misconduct. In its amended
notice of intent to offer evidence pursuant to Ind. Evidence Rule 404(b), the State said in part that it still
intended to present evidence related to sexual acts and touches that A.M. was forced to participate in with
McDonald and that, pursuant to Marshall v. State, 893 N.E.2d 1170 (Ind. Ct. App. 2008), those acts are
considered intrinsic to the acts charged and therefore admissible, as Evidence Rule 404(b) does not apply.
                                                     11
        With respect to McDonald’s motion for mistrial based upon Detective Ritter’s

testimony, Detective Ritter testified as to her role in the investigation of the allegations

against McDonald involving the children.                  During cross-examination, McDonald’s

defense counsel questioned Detective Ritter in part regarding her investigation and

several individuals she did not interview during the investigation.                          On redirect

examination, the prosecutor asked Detective Ritter why she had not talked during her

investigation “to the volumes of people that [defense counsel] listed off,” and Detective

Ritter responded by explaining her role on a multidisciplinary team and that other team

members perform other parts of the investigation. Id. at 473. The following exchange

then occurred:

        Q       All right. In other words, in making the determination to file
                charges, uh, what is that, that you, made you decide to actually file
                charges?

        A       Uh, the main point is the reliability of the victim’s statements. Uh,
                once you are able to get the victim’s statements, the allegations, uh,
                determining believability and corroboration of their statements.

Id. at 474. McDonald moved for a mistrial on the basis that Detective Ritter’s testimony

constituted improper vouching for a witness under Ind. Evidence Rule 704(b). 4 The trial

court informed the jury there had been an objection and to disregard the question and

Detective Ritter’s response above. The prosecutor then asked Detective Ritter if she felt

that she did a complete and thorough examination prior to bringing charges to the

prosecutor’s office, and Detective Ritter responded affirmatively.



        4
           Ind. Evidence Rule 704(b) provides: “Witnesses may not testify to opinions concerning intent,
guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified
truthfully; or legal conclusions.”
                                                    12
       If a witness’s testimony does not opine about the specific child in the case, it

leaves the ultimate credibility determination for the jury and, therefore, is not vouching

testimony prohibited by Rule 704(b). See Kindred v. State, 973 N.E.2d 1245, 1257 (Ind.

Ct. App. 2012) (contrasting general testimony about the signs of coaching from specific

testimony about the child victim in a given case, and noting that general testimony

preserves the ultimate credibility determination for the jury and therefore does not

constitute vouching, whereas a witness who opines as to whether the child victim was

coached vouches for the child and invades the province of the jury), trans. denied; see

also Otte v. State, 967 N.E.2d 540, 544 (Ind. Ct. App. 2012) (holding that a domestic

violence expert’s non-specific statements regarding victims of domestic violence was not

impermissible vouching testimony under Indiana Evidence Rule 704(b)), trans. denied.

       Detective Ritter gave only brief testimony regarding the reliability of victims’

statements and did not testify as to any opinion concerning the veracity of the allegations

or testimony of J.M. or A.M. Based upon the record, including the fact that Detective

Ritter did not specifically vouch for any witness or testify that any witness testified

truthfully, the trial court’s admonition, and McDonald’s cross-examination of Detective

Ritter concerning the investigation, we conclude that McDonald has not established that

Detective Ritter’s response was so prejudicial and inflammatory that he was placed in a

position of grave peril. Accordingly, the trial court did not abuse its discretion in denying

McDonald’s motion for mistrial on this basis.

                                            III.

       The next issue is whether an accumulation of certain alleged errors constitute

fundamental error. McDonald contends that the admission of hearsay, testimony by an
                                       13
incompetent complainant, testimony of prior bad acts, and vouching evidence combined

to deny him a fair trial and constitute fundamental error. In support of his position,

McDonald points to certain comments made during the prosecutor’s opening statement,

and certain alleged hearsay testimony including that of the foster mother of J.M. and

A.M., their bus driver, a volunteer for J.M.’s church group, and a forensic interviewer.

The State maintains that McDonald fails to show fundamental error, that the challenged

opening statements were not improper, that some of the challenged testimony did not

constitute inadmissible hearsay, and that, to the extent that some of the testimony

involved hearsay, the testimony was harmless.

       To the extent that McDonald failed to object or otherwise challenge the argument

or admission of evidence he claims was improper, McDonald’s claims are waived. See

Johnson v. State, 734 N.E.2d 530, 532 (Ind. 2000) (holding that the failure to object at

trial waives any claim of error and allows otherwise inadmissible hearsay evidence to be

considered for substantive purposes). Also, errors in the admission of evidence are to be

disregarded as harmless unless they affect the substantial rights of a party. McClain v.

State, 675 N.E.2d 329, 331 (Ind. 1996). In determining whether error in the introduction

of evidence affected the defendant’s substantial rights, this court must assess the probable

impact of the evidence upon the jury. Id. In addition, a claim waived by a defendant’s

failure to raise a contemporaneous objection can be reviewed on appeal if the reviewing

court determines that fundamental error occurred. Delarosa v. State, 938 N.E.2d 690,

694 (Ind. 2010). The fundamental error exception is extremely narrow and applies only

when the error constitutes a blatant violation of basic principles, the harm or potential for


                                             14
harm is substantial, and the resulting error denies the defendant fundamental due process.

Id. This exception is available only in egregious circumstances. Id.

      In this case, some of the testimony challenged by McDonald does not constitute

inadmissible hearsay.   The testimony of the children’s foster mother regarding her

observations of the children simulating sexual acts with each other, and A.M.’s statement

that “daddy taught me” after being asked where she learned “to do this,” explained why

the foster mother contacted DCS and why the children were interviewed. Transcript at

490. See Goldsworthy v. State, 582 N.E.2d 921, 922 (Ind. Ct. App. 1991) (noting that

trial courts may admit into evidence statements that would otherwise be hearsay where

those statements are introduced to explain a witness’s actions rather than for their

probative value). Also, the testimony of the church volunteer regarding J.M.’s statements

that he was scared to pray, he felt like he was a bad person because he had done bad

things, and that these things were “sexy things,” explained why the volunteer reported the

conversation to church staff and DCS.       Transcript at 631.   Further, the prosecutor

withdrew the question and asked the volunteer to describe his response without referring

to what J.M. may have stated, and the volunteer explained that he “felt that there was

something unusual about [J.M.’s] comments” and discussed the matter with the staff at

the church and then reported the incident to child services. Id. at 632. And to the extent

that other testimony McDonald challenges constitute inadmissible hearsay, the evidence

is cumulative of properly admitted testimony. The testimony of the forensic interviewer

regarding certain statements made by A.M. and J.M. during their interviews and by the

children’s bus driver was cumulative of the testimony of A.M. Admission of hearsay

evidence is not grounds for reversal where it is merely cumulative of other evidence
                                         15
admitted. McClain, 675 N.E.2d at 331-332. Any such admission was harmless and does

not require reversal. See id. (holding that any error in the admission of the therapist’s

testimony was harmless and reversal was not required where hearsay evidence was

merely cumulative of other evidence admitted).

      We further note that the prosecutor’s statements informing the jury of the evidence

and witnesses which the State expected to present was not improper. See Splunge v.

State, 526 N.E.2d 977, 981 (Ind. 1988) (noting that the scope and content of the opening

statement is within the discretion of the trial court and that the purpose of an opening

statement is to inform the jury of the charges as well as the contemplated evidence), reh’g

denied, cert. denied, 490 U.S. 1110, 109 S. Ct. 3165 (1989). Further, the trial court

instructed the jury that the opening statements of the attorneys are not evidence and

should be considered by the jury only as a preview of what the attorneys expect the

evidence will be. In light of the testimony against McDonald, we cannot say that the

prosecutor’s comments prejudiced him, denied him a fair trial, or affected his substantial

rights. See id. (holding that “[i]n view of the testimony of all the other witnesses

establishing Splunge’s participation with Fox in these crimes, it does not appear the

statements made by the prosecuting attorney in opening statement prejudiced Splunge . . .

.”). We also note that we addressed the testimony of J.M. and alleged prior bad acts and

vouching evidence above. Additionally we observe that McDonald does not contend that

each of his alleged errors, standing alone, constitutes fundamental error, but rather that

the cumulative effect constitutes fundamental error.

      Based upon the record and the evidence, we conclude that the cumulative effect of

the admission of any inadmissible hearsay evidence does not establish a substantial
                                        16
likelihood that any improper testimony contributed to McDonald’s conviction, that

McDonald was deprived of fundamental due process, that his substantial rights were

affected, or that any such error constitutes fundamental error. See Bryant v. State, 984

N.E.2d 240, 247 (Ind. Ct. App. 2013) (finding that the challenged testimony was for the

most part cumulative, that there was not a substantial likelihood that the hearsay

testimony contributed to the conviction, and consequently that admission of the

challenged testimony was harmless error), trans. denied.            McDonald has not

demonstrated fundamental error requiring reversal of his convictions.

                                    CONCLUSION

      For the foregoing reasons, we affirm McDonald’s convictions.

      Affirmed.

RILEY, J., and BRADFORD, J., concur.




                                           17
