 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
 establishing the defense of res judicata,                         May 19 2014, 9:12 am
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
BROOKE N. RUSSELL                                  GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   JUSTIN F. ROEBEL
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

WILLIAM HODAPP, JR.,                               )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )      No. 07A01-1307-CR-342
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                       APPEAL FROM THE BROWN CIRCUIT COURT
                           The Honorable Judith A. Stewart, Judge
                               Cause No. 07C01-1103-FB-78

                                          May 19, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       William Hodapp, Jr. (“Hodapp”) was convicted in Brown Circuit Court of Class B

felony incest, Class C felony incest, Class D felony possession of child pornography, and

Class A misdemeanor battery. Hodapp appeals and presents three issues, which we

restate as:

       I.     Whether the trial court abused its discretion in denying Hodapp’s motion
              for mistrial and motion to set aside the verdict based upon allegations of
              juror misconduct;

       II.    Whether certain comments by the prosecuting attorney constituted
              prosecutorial misconduct rising to the level of fundamental error; and

       III.   Whether the State presented evidence sufficient to convict Hodapp of Class
              B felony incest.

       We affirm.

                             Facts and Procedural History

       Hodapp had a daughter, C.H., who was born in March 1994. When C.H. was ten

years old, she reported to officials at her school that her father had made her touch his

penis. The school officials reported this to the authorities, and C.H. was removed from

Hodapp’s home for eight months. Eventually, however, C.H. was returned to her father’s

home, and no criminal charges were apparently filed at that time.

       Then, in the winter of 2008–2009, Hodapp showed C.H. his penis and asked her to

“play” with it. Tr. p. 238. Hodapp took C.H.’s hand and placed it on his penis and made

her manipulate his penis. He also put his fingers into C.H.’s vagina. C.H. testified that

this occurred “multiple times.” Tr. p. 258. These incidents quickly escalated to the point

that Hodapp began engaging in sexual intercourse with his daughter. C.H. testified

regarding several specific incidents of sexual intercourse. One incident occurred around

                                            2
Halloween, after Hodapp had purchased a large amount of mulch. Hodapp had sexual

intercourse with C.H. on a pile of this mulch. Shortly thereafter, C.H. had purchased a

Marilyn Monroe costume for Halloween, and Hodapp had sexual intercourse with C.H.

while she wore the costume. During another incident, Hodapp and C.H. slept outside to

watch a meteor shower. Hodapp zipped their two sleeping bags together and had sexual

intercourse with C.H. On another occasion, Hodapp had sexual intercourse with C.H. on

the floor of her bedroom.

      Hodapp paid C.H. twenty dollars for each of these incidents of sexual intercourse.

Hodapp told C.H. that he was “teach[ing] [her] to be better” at sex and that no one would

believe her if she told someone about the incest. Tr. p. 243. Hodapp also took nude

pictures of C.H., and C.H. took nude pictures of herself. C.H. sent some of the pictures

she had taken of herself to two of her boyfriends. These pictures were later found on

computers and computer drives used by Hodapp.

      The last time Hodapp had sexual intercourse with C.H. was in May of 2010, but

when Hodapp approached C.H. for sex on May 23, 2010, she refused.                Hodapp

threatened to take away certain of C.H.’s privileges and warned her that he would not pay

her. An argument ensued during which Hodapp hit C.H. in the face, threw her to the

ground, and slammed her head into the floor. This caused injuries to C.H.’s face and leg.

C.H. informed a friend of what had happened and reported the physical and sexual abuse

to a counselor at her school the following Monday.

      The State initially charged Hodapp with Class A misdemeanor battery. On March

11, 2011, after a police investigation, the State additionally charged Hodapp in another

                                           3
cause with three counts of Class B felony incest with a person less than sixteen years of

age, one count of Class C felony incest, and one count of Class D felony possession of

child pornography. The court later consolidated these causes, and the case proceeded to

trial on May 29–30, 2013. At the conclusion of the trial, the jury found Hodapp guilty as

charged. Hodapp subsequently filed a motion to correct error, motion to set aside the

verdict, and motion for mistrial, claiming that one of the jurors had committed

misconduct and that the prosecutor had committed prosecutorial misconduct. The trial

court denied these motions, and on July 15, 2013, sentenced Hodapp to ten years on each

of the Class B felony incest convictions, two years on the Class D felony possession of

child pornography conviction, and one year on the Class A misdemeanor battery

conviction. The trial court ordered all of these sentences to be served concurrently. The

trial court also imposed a five-year sentence on the Class C felony incest conviction, to

be served consecutively to the other sentences, for an aggregate term of fifteen years.

Hodapp now appeals. Additional facts will be provided as necessary.

                                 I. Juror Misconduct

      Hodapp first claims that the trial court erred in denying his motion to set aside the

verdict and motion for a mistrial based on alleged juror misconduct.          The alleged

misconduct at issue involves the juror referred to by the parties as Juror No. 2. During

voir dire, Juror No. 2 made no response when the jury panel was asked if any of the

jurors had seen or heard about the case or had any personal knowledge about the case. At

trial, Hodapp’s wife, and C.H.’s stepmother, Kim Hodapp (“Kim”) testified on behalf of

her husband. After Kim’s testimony, Juror No. 2 told the bailiff that she recognized Kim

                                            4
and “knew who she was [and] knew . . . her mom, [but] she didn’t really know her except

by sight.” Tr. p. 458. The trial court then brought Juror No. 2 into the courtroom for

questioning. Juror No. 2 explained that “probably thirty or forty years ago, I went to

church with [Kim’s] mother.” Id. at 459. When asked if this would impact her ability to

“determine [Kim’s] truthfulness and credibility,” Juror No. 2 stated, “No,” and indicated

she would treat Kim just like she would any other witness. Further questioning by the

parties revealed that Juror No. 2 knew Kim by her maiden name and that she “seen [sic]

her growing up some, but as far as being personally involved with her, nothing like that.”

Id. at 460. Hodapp made no objection to Juror No. 2 continuing to serve as a juror at that

time.

        Twenty-nine days after the jury returned its verdict, but before he had been

sentenced, Hodapp filed a combined motion to correct error, motion to set aside the jury’s

verdict, and motion for mistrial, claiming in part that Juror No. 2 engaged in misconduct.

In support of this motion, Hodapp submitted an affidavit in which Kim averred that she

had known Juror No. 2 since 1975, that Juror No. 2 was a “close friend and confidante”

of Kim’s mother, that she had often been in Juror No. 2’s home, and that Juror No. 2 had

often been in her mother’s home. The affidavit also stated that Kim knew Juror No. 2’s

children and that Juror No. 2 would have been aware that Kim had a “falling out” with

Kim’s mother after Kim moved in with Hodapp prior to her marriage with Hodapp.

Appellant’s App. pp. 42-43. At a hearing on Hodapp’s motions on July 1, Kim testified

that she had known Juror No. 2 since she was eight or nine years old and had been to

Juror No. 2’s house “a few times.” Tr. p. 540. Kim explained that she believed her

                                            5
mother had confided with Juror No. 2 and that Juror No. 2 would therefore be aware of

“negative things” going on in Kim’s family, but Kim admitted that she was not privy to

any conversations between her mother and Juror No. 2. Tr. pp. 540-41. Kim also

testified that she had seen Juror No. 2 at a funeral and discussed her family issues “in

passing.”   Tr. p. 541.   After hearing the parties’ arguments, the trial court denied

Hodapp’s post-verdict motions, an action which Hodapp now claims was erroneous.

       A trial court’s discretion in determining whether to grant a mistrial is afforded

great deference, because the trial court is in the best position to gauge the surrounding

circumstances of an event and its impact on the jury. Mickens v. State, 742 N.E.2d 927,

929 (Ind. 2001). A court on appeal therefore reviews the trial court’s decision solely for

abuse of discretion. Id. “After all, a mistrial is an extreme remedy that is only justified

when other remedial measures are insufficient to rectify the situation.” Id. To prevail on

appeal from the denial of a motion for mistrial, a defendant must establish that the

questioned conduct was so prejudicial and inflammatory that he was placed in a position

of grave peril to which he should not have been subjected. Id. The gravity of the peril is

determined by considering the alleged misconduct’s probable persuasive effect on the

jury’s decision, not the impropriety of the conduct. Id.

       With regard to juror misconduct, the failure of a juror to disclose a relationship to

one of the parties may, in certain circumstances, entitle a party to a new trial. Roberts v.

State, 894 N.E.2d 1018, 1022 (Ind. Ct. App. 2008) (citing Stephenson v. State, 864

N.E.2d 1022, 1055 (Ind. 2007). But in order to obtain a new trial based on a claim of

juror misconduct, the defendant must demonstrate that the misconduct was both gross

                                             6
and likely harmed the defendant. Id. It is the defendant’s burden to present specific and

substantial evidence establishing that a juror was possibly biased. Id. Like the related

question of whether to grant a mistrial, the issue of juror misconduct is a matter within

the trial court’s discretion. Id. (citing Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988)).

         We first question the timeliness of Hodapp’s motion. Hodapp was made aware of

Juror No. 2’s familiarity with Kim’s family during the trial, yet he made no motion for a

mistrial or other objection to Juror No. 2 continuing to serve as a juror. In fact, after

Juror No. 2 had answered the court’s and the parties’ questions, the trial court asked

counsel for both parties if they needed to make “any record.” Tr. p. 461. Hodapp’s

counsel specifically stated, “No” and rested his case-in-chief. Under these facts and

circumstances, we conclude that Hodapp failed to preserve the issue of whether the trial

court should have granted a mistrial. See Hale v. State, 875 N.E.2d 438, 444 (Ind. Ct.

App. 2007) (concluding that defendant’s motion for mistrial was untimely, and issue on

appeal had been waived, where defendant did not move for mistrial until after admission

of allegedly improper evidence); Fleener v. State, 648 N.E.2d 652, 660–61 (Ind. Ct. App.

1995) (concluding that the defendant waived issue of whether trial court’s erred in

denying his motion for mistrial because the motion was untimely, coming the day after

the alleged misconduct occurred), summarily aff’d in relevant part, 656 N.E.2d 1140 (Ind.

1995).

         Setting aside any questions about the timeliness of Hodapp’s motion for mistrial,

we cannot say that the trial court abused its discretion in denying Hodapp’s motion. The

trial court was faced with two conflicting accounts regarding the closeness of the

                                             7
relationship between Juror No. 2, Kim, and Kim’s mother.           Kim claimed that the

relationship was closer than Juror No. 2 had indicated during her questioning. The trial

court obviously gave Kim’s testimony and affidavit little credit, and we are in no position

to second-guess this credibility determination.      See Roberts, 894 N.E.2d at 1022

(concluding that defendant had not established alleged misconduct when juror’s affidavit

directly conflicted with testimony of defendant and his father indicating a close

relationship between juror and defendant’s mother). Accordingly, we are unable to agree

with Hodapp that the trial court abused its discretion in denying Hodapp’s post-trial

motions alleging juror misconduct.

                             II. Prosecutorial Misconduct

       Hodapp also claims that the prosecuting attorney committed misconduct during

the State’s opening and closing statements.       To preserve a claim of prosecutorial

misconduct, a defendant must both make a contemporaneous objection and request an

admonishment. Shelby v. State, 986 N.E.2d 345, 363 (Ind. Ct. App. 2013), trans. denied.

If the objecting party is not satisfied with the admonishment, the proper procedure is to

move for a mistrial. Id. Failure to request an admonishment or move for a mistrial

results in waiver of the issue on appeal. Id. Where a claim of prosecutorial misconduct

has been properly preserved, the reviewing court must 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. Id. (citing Coleman v. State, 946 N.E.2d 1160, 1166 (Ind. 2011)).



                                            8
       Here, however, Hodapp made no objections to the comments by the prosecuting

attorney that he now claims constituted misconduct. As such, he has failed to preserve

his claim for appeal. See id. Where, as here, a claim of prosecutorial misconduct has not

been properly preserved, the defendant must establish not only the grounds for the

misconduct, but also the additional grounds of fundamental error. Id. The fundamental

error exception to the waiver rule is an extremely narrow one. Id. at 364. To rise to the

level of fundamental error, the error complained of must be so prejudicial to the rights of

the defendant as to make a fair trial impossible.        Id.   Specifically, 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. Id.

As our supreme court quite recently explained, “[a] ‘finding of fundamental error

essentially means that the trial judge erred . . . by not acting when he or she should have,’

even without being spurred to action by a timely objection.” Brewington v. State, No.

15S01-1405-CR-309, slip op. at 29 (Ind. May 1, 2014) (quoting Whiting v. State, 969

N.E.2d 24, 34 (Ind. 2012)). We will examine each of Hodapp’s claims with this standard

in mind.

       A. Statements Regarding Facts Not in Evidence

       Hodapp first complains that the prosecuting attorney made claims that were not

supported by the evidence. He specifically complains about the following portions of the

State’s opening statement: “In 2004, [C.H.] had disclosed that Bill Hodapp was touching

her,” and “It was her freshman year when he started touching her . . . when she . . . when

he started touching her again.” Tr. p. 205.

                                              9
       These statements are in apparent reference to C.H.’s report in 2004 that Hodapp

had made her touch his penis. It does not appear that Hodapp complains that this was

improper because it referred to the uncharged 2004 misconduct. Indeed, a review of the

trial transcript reveals that part of Hodapp’s trial strategy was to refer to this earlier

allegation, which was apparently determined to be unsubstantiated, and argue that C.H.’s

current claims were similarly unworthy of credit. On appeal, Hodapp claims that the

prosecutor’s reference to the 2004 incident was improper because it mischaracterized the

evidence because it refers to Hodapp touching C.H. as opposed to C.H. touching him.

       During its opening statement, the State may relate to the jury what it expects the

evidence to be. Ind. Code § 35-37-2-2(1); Splunge v. State, 526 N.E.2d 977, 981 (Ind.

1988); Tacy v. State, 452 N.E.2d 977, 981 (Ind. 1983). That the State failed to provide

any evidence that Hodapp improperly touched C.H., as opposed to C.H. touching Hodapp,

in 2004 does not mean that the prosecuting attorney’s reference to this during the State’s

opening statement constituted fundamental error.       Indeed, it is black-letter law that

statements by attorneys, including opening statements, are not evidence, Bradford v.

State, 675 N.E.2d 296, 301 (Ind. 1996), and the jury in this case was so instructed. Tr. pp.

204, 514.

       Hodapp also complains about statements made during the State’s closing

arguments, which included: “I want you to think about a 10 year old girl, who tells the

authorities that she’s been touched by her father.” Tr. p. 499. Again, Hodapp claims that

this mischaracterizes the evidence because the only evidence admitted at trial regarding

the 2004 allegations were that Hodapp made C.H. touch him, not that he touched her.

                                            10
Regardless of whether Hodapp touched C.H or or forced C.H. to touch him in 2004, the

fact remained that there was an unsubstantiated allegation of improper sexual contact in

2004. We are unable to say that this minor mischaracterization of the 2004 event arose to

the level of fundamental error.

         Another comment by the prosecuting attorney during the State’s closing argument

was with reference to one of C.H.’s boyfriends: “About the time they started dating, . . . I

think he said within a month, she said about six months, she starts talking about this 40

year old secret. And about this time . . . all around the same time that the defendant

begins having sex with her again.” Tr. p. 473. It is unclear precisely which conduct this

refers to, but we reject Hodapp’s suggestion that this reference to his having sex with C.H.

“again” must refer to the 2004 incident or some other uncharged conduct. Given the

repeated nature of Hodapp’s reprehensible behavior towards C.H., it is at best unclear as

to what the prosecuting attorney was referring to in this statement, but we cannot say that

this reference to Hodapp having sex with C.H. “again” rises to the level of fundamental

error.

         B. Inflaming the Passions and Prejudices of the Jury

         It is well established that it is improper for a prosecutor to request the jury to

convict a defendant for any reason other than his guilt or to phrase final argument in a

manner calculated to inflame the passions or prejudice of the jury. Neville v. State, 976

N.E.2d 1252, 1264 (Ind. Ct. App. 2012), trans. denied.           Hodapp claims that the

prosecutor committed such misconduct during the State’s closing argument.



                                             11
      C.H. testified that Hodapp told her that, by having sexual intercourse with her, he

was doing her a favor by teaching and educating her about how to have sex. Hodapp

testified that he taught his daughter about photography, but not about how to take

pornographic pictures. In reference to this evidence, the prosecuting attorney stated

during closing argument, “And you heard the kind of eery [sic] testimony from the

defendant about how we don’t teach that. We don’t teach pornography. Eerily similar to

what she says comes out of his mouth when he’s raping her and molesting her.” Tr. p.

473. Hodapp claims used the terms “rape” and “molest” to inflame the passions and

prejudices of the jury because Hodapp was not charged with rape or child molesting.

      In addressing this argument, we again emphasize that Hodapp failed to object to

these statements at trial. Had he done so, the trial court might well have sustained his

objection.   But he did not object, and the question before us is not whether the

prosecuting attorney should have used the terms “rape” or “molesting.” Clearly, he

should not. The question before us, however, is whether using these terms constituted a

blatant violation of basic principles that denied the defendant fundamental due process.

We conclude that it did not.

      The term “rape” in Indiana criminal law is strictly limited to knowingly or

intentionally having sexual intercourse with a member of the opposite sex when the other

person is either compelled by force or the imminent threat of force, is unaware that the

intercourse is occurring, or so mentally disabled or deficient that consent to intercourse

cannot be given. Ind. Code § 35-42-4-1(a). This definition does not encompass rape of

someone of the same sex or forcible, nonconsensual anal intercourse, or sex with

                                           12
someone under a certain “age of consent,” all of which are sometimes colloquially

referred      to   as    “rape.”       See     Mirriam-Webster        Online,     http://www.merriam-

webster.com/dictionary/rape, (defining “rape” as a noun as “unlawful sexual activity and

usually sexual intercourse carried out forcibly or under threat of injury against the will

usually of a female or with a person who is beneath a certain age or incapable of valid

consent.”); Oxford English Dictionary, OED Online, http://www.oed.com/view/Entry/

158145?rskey=19Xp2F&result=3&isAdvanced=false#eid (defining “rape” to include “In

later use more generally: the act of forced, non-consenting, or illegal sexual intercourse

with another person; sexual violation or assault.”).1

          While we do not condone the prosecuting attorney’s use of the word “rape,” we

cannot say it amounted to fundamental error. The jury was not encouraged to convict

Hodapp of “rape”; it was instructed on the statutory definitions of the charged crimes of

incest. And the jury was repeatedly instructed that the arguments of counsel were not

evidence. Under these facts and circumstances, we cannot say that this reference to “rape”

deprived Hodapp of fundamental due process.

          We reach a similar conclusion with regard to the prosecuting attorney’s use of the

word “molest.” Hodapp was not charged with child molesting, which involves sexual

conduct with a child under the age of fourteen. See Ind. Code § 35-42-4-3. But the word

“molest” has a much broader meaning. See Oxford English Dictionary, OED Online,

1
  In fact, during the trial, one of C.H.’s ex-boyfriends testified that he asked C.H., “is [Hodapp] raping
you, and she said, yeah, he is.” Tr. p. 214. Hodapp made no objection to this testimony, and on cross-
examination of this witness, Hodapp’s counsel even brought the subject up again, asking the witness “and
you asked [C.H] if [Hodapp] was raping . . her.” Tr. p. 219.
2
  Neither do we agree with Hodapp that the cumulative effect of the prosecuting attorney’s statements
constituted fundamental error.
3                                                    13
    Hodapp also claims that the evidence is insufficient to support his conviction for Class B felony incest
http://www.oed.com/view/Entry/120866?rskey=XStFX1&result=3&isAdvanced=false

(defining “molest” as a verb as “To harass, attack, or abuse sexually.”). It was imprudent

and improper for the prosecuting attorney to use this word to describe to the jury what

happened to C.H. If Hodapp had objected, his objection should have been sustained. But

Hodapp did not object, and the jury was not encouraged to convict Hodapp of child

molesting. Instead, the jury was instructed on the charged crime of incest. And yet again,

the jury was repeatedly instructed that the arguments of counsel were not evidence.

Under these facts and circumstances, we cannot say that the prosecuting attorney’s

improper comments amounted to fundamental error.

      Hodapp also complains of the prosecuting attorney’s reference to the sexually-

transmitted disease herpes. At trial, evidence was presented that Hodapp and his wife

Kim have herpes. The defense elicited testimony from C.H. that she did not have herpes.

The State also elicited testimony from C.H. that Hodapp always used a condom when he

had sexual intercourse with her. The defense presented testimony that a condom was not

a surefire means of preventing the transmission of herpes during sexual intercourse,

thereby claiming that the fact that C.H. did not have herpes supported Hodapp’s denial of

having sexual intercourse with C.H. During its closing argument, the State referenced the

issue of herpes in a manner that Hodapp now claims was improper. The portions of the

prosecuting attorney’s statement Hodapp complains about include:

      Now, much has been made about herpes today. And what you saw
      yesterday was I think one of the cruel things that can happen. (Inaudible)
      [C.H.] [wa]s up here telling the world about the abuse that she suffered.
      She gets down and leaves, and thinks she’s done, and then she comes back.
      And all of a sudden, is asked, do you have herpes. And [C.H.]’s (inaudible),

                                           14
       she’s going to probabl[y] go home and figure out what that question meant,
       and what that question means for this trial. And it’s not enough for the
       defendant to have abused her body, attack her self worth, told her that
       nobody would believe her, but now . . as a parting shot, to leave her with
       the understanding that she’s been now . . that she’s been exposed to a life
       long illness. Something that she’s going to share with her most intimate
       partners. And she didn’t even know until yesterday. How horrifying for
       her. And you heard evidence that the defendant has herpes, that he passed
       it on to his wife, because they didn’t use condoms, that he . . herpes is
       (inaudible) and easy to transmit when you have an outbreak, but that he has
       outbreaks that take up to about 10 days every couple months. [C.H.] told
       you that he was having sex with her every two weeks or so. Came out to be
       about (inaudible). And on cross examination, I suspect you heard this too,
       when asked the question, why did you buy condoms for [C.H.] , the answer
       was not because I didn’t want her to get pregnant, the answer was because I
       didn’t want her to get herpes. Because that’s what he has and he didn’t
       want to pass it along to his daughter! It would be evidence and it would
       damage her for life. And so he used a condom every single time. He
       wasn’t concerned about what she was going to get from [her boyfriend]
       Rusty. He wasn’t concerned about whether or not he was going to make
       her pregnant. He was concerned that she didn’t get herpes! The very
       disease he carries, that he knows he can transmit to somebody else and so
       he’s very careful to buy her condoms and use her condoms! And that’s
       forefront on his mind, even when he’s testifying here! I don’t want her to
       get herpes! And who has got herpes? . . . .

Tr. pp. 475-76.

       Hodapp now claims that this was improper because it implied that the defense

surprised C.H. about herpes and because it mischaracterizes Hodapp’s testimony.

Hodapp argues that he had a constitutional right to cross-examine C.H., including about

whether she had any sexually-transmitted diseases. He therefore argues that the State’s

statements regarding the cruelty of asking C.H. such questions penalized him for

exercising this right. We first note that the State was referring not simply to the question

of whether C.H. had herpes, but the manner in which she was asked this, i.e., after she



                                            15
had been excused as a witness then re-called for this line of questioning. We cannot say

that this line of questioning deprived Hodapp of fundamental due process.

       But Hodapp also claims that the State mischaracterized the evidence by claiming

that he had testified that he bought C.H. condoms because he did not want her to get

herpes. Hodapp claims that his actual testimony was that he bought her condoms so that

she would not get any sexually-transmitted disease.              Importantly, the substance of

Hodapp’s testimony was somewhere in between these two characterizations.                      When

asked why he bought C.H. condoms if he did not wish her to have sexual intercourse,

Hodapp testified, “I bought her condoms because I’ve got herpes. I don’t want her to get

a str . . a sexually transmitted disease, like I got. The only way she’s going to do that is if

she knows how to stay protected.” Tr. p. 428. Therefore, although the prosecuting

attorney’s statements weren’t entirely accurate, they were not wholly inaccurate. Hodapp

testified that he bought his daughter condoms because he had herpes and he did not want

her to similarly get a sexually-transmitted disease. Under these facts and circumstances,

we cannot say that this amounted to fundamental error. 2 Accordingly, we reject

Hodapp’s claims that the prosecuting attorney committed misconduct constituting

fundamental error.

                               III. Sufficiency of the Evidence

       Lastly, Hodapp claims that the State presented insufficient evidence to convict him

of incest as a Class B felony. When reviewing a claim that the evidence is insufficient to


2
  Neither do we agree with Hodapp that the cumulative effect of the prosecuting attorney’s statements
constituted fundamental error.
                                                 16
support a conviction, we neither reweigh the evidence nor judge the credibility of the

witnesses; instead, we respect the exclusive province of the trier of fact to weigh any

conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We consider

only the probative evidence and reasonable inferences supporting the verdict, and we will

affirm if the probative evidence and reasonable inferences drawn from the evidence could

have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable

doubt. Id.

        Incest as a criminal offense is defined as follows:

        A person eighteen (18) years of age or older who engages in sexual
        intercourse or deviate sexual conduct with another person, when the person
        knows that the other person is related to the person biologically as a parent,
        child, grandparent, grandchild, sibling, aunt, uncle, niece, or nephew,
        commits incest, a Class C felony. However, the offense is a Class B felony
        if the other person is less than sixteen (16) years of age.

        Ind. Code § 35-46-1-3(a) (emphasis added). Hodapp claims that the State failed to

prove that he had sexual intercourse with C.H. when she was under the age of sixteen.

However, Hodapp admits that C.H. described several instances of sexual intercourse with

her father, two of which occurred when she was fifteen years old. See Appellant’s Br. p.

23. This evidence by itself is sufficient to support Hodapp’s conviction for Class B

felony incest.3 See Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (“A conviction can




3
  Hodapp also claims that the evidence is insufficient to support his conviction for Class B felony incest
because the State failed to prove precisely where he and C.H. were when he placed his fingers in her
vagina. He claims that this means that there was insufficient evidence to find that the events occurred in
Brown County. However, C.H. specifically testified that the sexual intercourse took place in Brown
County, and he attacks only the sufficiency of the evidence on the conviction for Class B felony incest,
which was based on sexual intercourse.
                                                   17
be sustained on only the uncorroborated testimony of a single witness, even when that

witness is the victim.”).

                                       Conclusion

       The trial court did not abuse its discretion when it denied Hodapp’s motions for

mistrial and to set aside the verdict based on alleged juror misconduct, as the trial court

was under no obligation to credit the testimony and affidavit of Hodapp’s wife. The

prosecuting attorney made several statements that were improper, and had Hodapp

objected, his objections should have been sustained. However, Hodapp did not object,

and these improper statements by the prosecuting attorney did not constitute fundamental

error. Lastly, the State presented sufficient evidence to convict Hodapp of Class B felony

incest because his daughter testified that Hodapp had sexual intercourse with her when

she was fifteen years old.

       Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.




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