MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Jul 09 2020, 9:27 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Darren Bedwell                                          Curtis T. Hill, Jr.
Marion County Public Defender                           Attorney General of Indiana
Indianapolis, Indiana
                                                        Steven Hosler
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Justin Leffler,                                         July 9, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2939
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark D. Stoner,
Appellee-Plaintiff,                                     Judge
                                                        Trial Court Cause No.
                                                        49G06-1806-F1-19158



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2939 | July 9, 2020                      Page 1 of 12
                                Case Summary and Issue
[1]   Following a jury trial, Justin Leffler was found guilty of two counts of child

      molesting, a Level 1 and a Level 4 felony, and not guilty of three additional

      counts of child molesting, all Level 4 felonies. The trial court entered judgment

      of conviction on the guilty verdicts and sentenced Leffler to a total of forty-two

      years at the Indiana Department of Correction. Leffler appeals his convictions,

      raising one issue for our review: whether the State committed prosecutorial

      misconduct amounting to fundamental error during its closing argument.

      Concluding there was no error, but if there was, it was not fundamental, we

      affirm.



                            Facts and Procedural History
[2]   In October of 2017, thirty-three-year-old Leffler lived with Tianna Doty and her

      daughter, J.M., who was seven or eight, and her son, D.M., who was five or

      six. On March 9, 2018, Leffler was arrested on charges unrelated to the present

      case. On March 12, Siara Cox, a family case manager from the Indiana

      Department of Child Services (“DCS”), did a general safety evaluation of the

      Doty family because of those charges. In conducting such an evaluation, Cox

      asks questions related to “body safety, drugs, alcohol, all things related to any

      kind of safety.” Transcript of Evidence, Volume III at 4. When she asked J.M.

      body safety questions, J.M. denied that she had ever been touched

      inappropriately. Leffler did not return to the home after his arrest.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2939 | July 9, 2020   Page 2 of 12
[3]   Approximately one week later, Doty called both Cox and the Indianapolis

      Metropolitan Police Department and reported that J.M. claimed Leffler had

      molested her. Two police officers came to the apartment and took a report.

      The case was referred to a child abuse detective who requested a forensic

      interview. On March 21, Jill Carr of the Child Advocacy Center conducted a

      forensic interview of J.M. during which J.M. said Leffler had molested her. No

      details of the police report or the forensic interview were revealed other than

      that J.M. said Leffler molested her.


[4]   At trial, J.M. described several occasions on which Leffler touched her. She

      recalled that on Halloween night, Leffler “slept with” her on the couch. Tr.,

      Vol. II at 142. She was laying on her side and Leffler was laying behind her,

      also on his side, both facing the same direction. Leffler did not touch her, but

      she felt uncomfortable in that situation. Approximately one week after

      Halloween, Leffler was in J.M.’s bed with her at night and touched her skin-to-

      skin on her “front private” with his “front private.” Id. at 144. On another

      occasion when Leffler was in J.M.’s bed with her at night, he touched her “back

      private” with his “front private.” Id. at 147.1 Another time, J.M. and Leffler

      were laying in a blanket fort they had made in the living room and J.M. saw

      Leffler’s penis and he touched J.M.’s “front private” with it. Id. at 149. On a

      different night when they were sleeping in J.M.’s bedroom, Leffler licked his




      1
       Through questioning by the State, J.M. clarified that her “front private” was her vagina, her “back private”
      was her buttocks, and Leffler’s “front private” was his penis. Id. at 144-45, 147.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2939 | July 9, 2020                     Page 3 of 12
      finger and touched J.M.’s “front private” and chest. Id. at 151. That same

      night, Leffler again touched J.M.’s “back private” with his “front private.” Id.

      at 152. And on one occasion, Leffler asked J.M. to touch his “front private”

      with her mouth, which she did even though she did not want to. Id. at 153.

      Every time, J.M. felt uncomfortable, and every time, Leffler told her that

      something would happen to her mom if she told. She did not tell anyone,

      including the DCS family case manager, what was happening because she was

      “scared and anxious.” Id. at 154. After it was clear to J.M. that Leffler would

      not be returning to the home, she felt more comfortable and told her mom, who

      immediately called the police.


[5]   Stephany Knight, a close friend of Doty’s, had been living with Doty and her

      children but moved out when Leffler moved in. She still visited and would

      occasionally stay overnight at the apartment even after moving out, however.

      At first, Knight believed Leffler was trying to be a good role model, but she

      became concerned when she noticed that Leffler was “a little too touchy-feely”

      with J.M. and favored her over her brother. Id. at 198. Knight was at the

      apartment Halloween night and saw Leffler and J.M. on the couch together.

      She thought they “were laying more like a couple than someone looking out for

      someone’s child.” Id. at 196. Knight never witnessed any inappropriate

      touching, but she did witness Leffler and J.M. come into the living room

      together from J.M.’s bedroom upon waking one morning.


[6]   The State initially charged Leffler with one count of child molesting as a Level

      1 felony and two counts of child molesting as Level 4 felonies. The information

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2939 | July 9, 2020   Page 4 of 12
      was later amended to add two additional counts of child molesting as Level 4

      felonies. Although the information itself is worded vaguely as to which

      allegations support which count,2 during its closing argument, the State

      explained that Count One, the Level 1 felony, was based on the incident where

      Leffler made J.M. touch his penis with her mouth. Counts Two through Five,

      the Level 4 felonies, were based on, sequentially, Leffler touching J.M.’s vagina

      with his penis shortly after Halloween; Leffler touching J.M.’s buttocks with his

      penis; Leffler touching J.M.’s vagina with his penis when they were in the

      blanket fort; and Leffler licking his finger and touching J.M.’s vagina. See Tr.,

      Vol. III at 17-20; see also Appellant’s App., Vol. II at 137-41 (verdict forms

      requiring specific findings as to each count).


[7]   At Leffler’s jury trial,3 in a lengthy sidebar discussion about whether the defense

      had opened the door to the State eliciting evidence about coaching, counter-

      intuitive victim behavior, and child sexual abuse accommodation syndrome,

      Leffler’s counsel summarized his defense as “essentially that [J.M.]'s testimony

      evolved over time, not because she was coached on what to say but because she

      was improperly questioned by multiple people.” Tr., Vol. II at 210. The

      defense reiterated this theory during its closing argument, challenging J.M.’s

      credibility by noting that her description of the molestations had “evolved,




      2
       The information alleges Leffler engaged in “fondling or touching” with respect to all Level 4 felonies.
      Appellant’s Appendix, Volume II at 55.
      3
          Doty passed away shortly before trial.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2939 | July 9, 2020                      Page 5 of 12
      changed over time” as she “had the opportunity to discuss her story with adults

      over the last two and a half years[; a]nd when she gave her story to those adults,

      they provided her with positive reinforcement[.]” Tr., Vol. III at 24. In

      rebuttal, the State argued:


               Her mom called the police. The officers come out and they ask
               enough details to know what they’re looking for. . . . And
               then . . . [an officer] pages the detective, and [J.M.] comes in for
               a forensic interview where she has said from day one it happened
               multiple times, that he did it and that he put his penis in her mouth and
               touched her over and over and over. And this evolution is adding
               details.


      Id. at 28-29 (emphasis added).4


[8]   The jury found Leffler guilty of Count One, child molesting as a Level 1 felony

      based on Leffler putting his penis in J.M.’s mouth, and Count Five, child

      molesting as a Level 4 felony based on Leffler licking his finger and touching

      J.M.’s vagina. The jury found him not guilty of the remaining counts. Leffler

      now appeals his convictions.



                                   Discussion and Decision




      4
        Although the entire case is based upon this statement during the State’s rebuttal argument, instead of a
      clear, up front presentation of the statement in the Statement of Facts or at the outset of the Argument, both
      parties bury the actual statement at issue in the Argument section.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2939 | July 9, 2020                       Page 6 of 12
                                      I. Standard of Review
[9]    Leffler argues the State committed prosecutorial misconduct during its closing

       argument when it told the jury a detail that was not in evidence; that is, “that

       J.M. had disclosed the most important detail of the most serious charge of all

       ‘from day one[.]’” Brief of Appellant at 16.


[10]   As our supreme court has explained,


               [i]n reviewing a claim of prosecutorial misconduct properly
               raised in the trial court, we determine (1) whether misconduct
               occurred, and if so, (2) whether the misconduct, under all of the
               circumstances, placed the defendant in a position of grave peril to
               which he or she would not have been subjected otherwise. A
               prosecutor has the duty to present a persuasive final argument
               and thus placing a defendant in grave peril, by itself, is not
               misconduct. Whether a prosecutor’s argument constitutes
               misconduct is measured by reference to case law and the Rules of
               Professional Conduct. 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.


       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (quotations and citations omitted).


[11]   To preserve a claim of prosecutorial misconduct, the defendant must—at the

       time the alleged misconduct occurs—request an admonishment to the jury, and

       if further relief is desired, move for a mistrial. Gridley v. State, 121 N.E.3d 1071,

       1078 (Ind. Ct. App. 2019), trans. denied. Failure to comply with these

       requirements forfeits a prosecutorial misconduct claim. Delarosa v. State, 938

       N.E.2d 690, 696 (Ind. 2010). Leffler concedes he did not properly preserve his


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2939 | July 9, 2020   Page 7 of 12
       claim of prosecutorial misconduct for appeal because he did not object during

       the State’s rebuttal argument. See Br. of Appellant at 15. Thus, to prevail on

       appeal, Leffler must establish not only the grounds for prosecutorial misconduct

       but must also establish that the prosecutorial misconduct constituted

       fundamental error. Ferree v. State, 124 N.E.3d 109, 114 (Ind. Ct. App. 2019),

       trans. denied.


[12]   Fundamental error is an extremely narrow exception to waiver, and a

       defendant faces the heavy burden of demonstrating that the alleged error is so

       prejudicial to his rights that it rendered a fair trial impossible. Jerden v. State, 37

       N.E.3d 494, 498 (Ind. Ct. App. 2015).


               [T]o establish fundamental error, the defendant must show that,
               under the circumstances, the trial judge erred in not sua sponte
               raising the issue because alleged errors (a) “constitute clearly
               blatant violations of basic and elementary principles of due
               process” and (b) “present an undeniable and substantial potential
               for harm.” The element of such harm is not established by the
               fact of ultimate conviction but rather “depends upon whether
               [the defendant’s] right to a fair trial was detrimentally affected by
               the denial of procedural opportunities for the ascertainment of
               truth to which he otherwise would have been entitled.


       Ryan, 9 N.E.3d at 668 (citations and footnote omitted). To determine whether

       the misconduct had such an undeniable and substantial effect on the jury’s

       decision that a fair trial was impossible, we look at the alleged misconduct in

       the context of all that happened and all relevant information given to the jury—

       including evidence admitted at trial, closing arguments, and jury instructions.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2939 | July 9, 2020   Page 8 of 12
       Jerden, 37 N.E.3d at 498. Review for fundamental error is not intended to grant

       the defendant a second bite at the apple; it is meant to permit appellate courts

       “to correct the most egregious and blatant trial errors that otherwise would have

       been procedurally barred[.]” Ryan, 9 N.E.3d at 668.


                                      II. Closing Argument
[13]   Leffler correctly notes that because there were no corroborating witnesses, the

       State’s case rested on J.M.’s testimony about the acts of molestation and

       therefore on her credibility. See Br. of Appellant at 12. He couches his

       argument in terms of the State’s closing argument impermissibly encroaching

       on the jury’s right to determine the credibility of witnesses. “[T]he jury is the

       sole judge of a witness’s credibility.” Kemper v. State, 35 N.E.3d 306, 310 (Ind.

       Ct. App. 2015), trans. denied. Therefore, the prosecutor may not state his or her

       personal opinion of the credibility of a witness during trial. Thomas v. State, 965

       N.E.2d 70, 77 (Ind. Ct. App. 2012), trans. denied. A prosecutor may comment

       on witness credibility “if the assertions are based on reasons arising from the

       evidence presented in the trial[,]” however. Id. (emphasis added); see also Ind.

       Professional Conduct Rule 3.4(e) (stating a lawyer shall not allude to any

       matter “that will not be supported by admissible evidence [or] assert personal

       knowledge of facts in issue[.]”).


[14]   Leffler interprets the State’s comment during its rebuttal to mean that “J.M.

       specifically accused Leffler of putting his penis in her mouth ‘from day one[,]’”

       and argues that the statement was unsupported by the evidence from trial


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2939 | July 9, 2020   Page 9 of 12
because the content of J.M.’s pretrial statements was not admitted. Br. of

Appellant at 15. We do not interpret the comment so narrowly. In considering

the propriety of a particular statement, we consider it in the context of the

argument as whole. Hand v. State, 863 N.E.2d 386, 394 (Ind. Ct. App. 2007).

The challenged statement does reference the specific allegation that Leffler put

his penis in J.M.’s mouth, and there was no evidence that J.M. specifically

disclosed that act to her mom or to police on the day she first disclosed the

molestation or to Carr several days later. But considering the oral sex

allegation in the larger context of the entire statement—"he put his penis in her

mouth and touched her over and over”—and the State’s entire closing and

rebuttal arguments, the State was not necessarily saying J.M. had disclosed that

particular allegation on “day one,” or even that she had disclosed every

instance of molestation on “day one.” Rather, the statement could be

interpreted to convey that she had consistently said from the time she finally felt

safe to disclose the molestation that Leffler had molested her multiple times

(“she has said from day one it happened multiple times”) and then disclosed

additional details of the molestations throughout the process as she was

questioned and interviewed (“that he put his penis in her mouth and touched

her over and over. And this evolution is adding details.”). Tr., Vol. III at 29;

see also id. at 22 (State arguing that “when she did first disclose to mom and then

to [the police] and then to Jill Carr, her brain had been repressing those

memories for months. So you got more detail today.”); at 22-23 (arguing kids

“tell on their own time. And they test the waters first, so they give some details

and they see an adult’s reaction and then they feel safe telling more.”); and at
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2939 | July 9, 2020   Page 10 of 12
       27-28 (State arguing on rebuttal that “[t]hese aren’t inconsistencies. . . . Those

       are details being added, not inconsistencies.”). Thus, as the evidence would

       support an assertion that J.M. consistently disclosed multiple instances of

       abuse, and as the prosecutor is allowed to comment on witness credibility based

       on evidence presented at trial, see Thomas, 965 N.E.2d at 77, we conclude the

       prosecutor did not commit misconduct in making this statement.


[15]   However, even if we interpret the statement as Leffler does and assume the

       prosecutor committed misconduct by making an improper statement during

       rebuttal, we conclude this was not fundamental error. The challenged

       statement was brief, it was immediately followed by an acknowledgement that

       the details of J.M.’s allegations had evolved since day one, and the trial court

       gave the jury the following instruction:


               The unsworn statements or comments of counsel . . . should not
               be considered as evidence in the case. It is your duty to
               determine the facts from the testimony and evidence admitted by
               the Court and given in your presence and you should disregard
               any and all [other] information[.]


       Appellant’s App., Vol. II at 127. The trial court’s jury instructions are

       presumed to cure any improper statements made during trial. Guy v. State, 755

       N.E.2d 248, 258 (Ind. Ct. App. 2001), trans. denied.


[16]   Fundamental error “must be of such magnitude to persuade the reviewing court

       that the defendant could not possibly have received a fair trial or that the verdict

       is clearly wrong or of such dubious validity that justice cannot permit it to


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2939 | July 9, 2020   Page 11 of 12
       stand.” Id. We do not believe the prosecutor’s statement, even if improper,

       made it impossible for Leffler to receive a fair trial. See Wright v. State, 690

       N.E.2d 1098, 1112 (Ind. 1997) (providing that the prosecutor’s statement, while

       improper, was fleeting, and when considered together with the trial court’s

       instructions that statements of counsel are not evidence and that it is the duty of

       the jury to decide a case only on evidence given in court, did not place

       defendant in a position of grave peril). J.M testified at Leffler’s trial about the

       instances of molestation. Although the jury found Leffler guilty of the count

       related to Leffler putting his penis in J.M.’s mouth, it also found him not guilty

       of three additional charges of child molesting, indicating it carefully parsed the

       evidence and considered the proof relevant to each charge. We are not

       persuaded that the verdicts are clearly wrong or of dubious validity and

       therefore, Leffler has failed to show fundamental error.



                                               Conclusion
[17]   Leffler has failed to prove prosecutorial misconduct, and even if we assume

       there was misconduct, he has failed to prove that any such misconduct

       constituted fundamental error. Accordingly, Leffler’s convictions for child

       molesting are affirmed.


[18]   Affirmed.


       May, J., and Vaidik, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2939 | July 9, 2020   Page 12 of 12
