FOR PUBLICATION
ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

KIMBERLY A. JACKSON                         GREGORY F. ZOELLER
Indianapolis, Indiana                       Attorney General of Indiana

                                            J. T. WHITEHEAD
                                            Deputy Attorney General
                                            Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

                                                                          Dec 10 2014, 9:29 am
PAUL PHILLIPS,                              )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )    No. 49A02-1402-CR-86
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Marc Rothenberg, Judge
                          Cause No. 49G02-1302-FA-9107


                                 December 10, 2014

                            OPINION - FOR PUBLICATION

BARTEAU, Senior Judge
                                     STATEMENT OF THE CASE

          Paul Phillips appeals from his conviction after a jury trial of one count of child
                1
molesting as a Class A felony. We affirm.

                                                ISSUES

          Phillips presents the following issues for our review:

          I.        Whether the trial court denied Phillips the right to an impartial jury and a fair
                    trial under the federal and state constitutions by denying Phillips’s motion
                    for mistrial and motion to replace a juror after a juror asked a question,
                    instead choosing to offer a curative instruction.

          II.       Whether the prosecutor engaged in prosecutorial misconduct amounting to
                    fundamental error during closing argument.

          III.      Whether the trial court erred by instructing the jury about voluntary
                    intoxication.

                                    FACTS AND PROCEDURAL HISTORY

          E.C., who lives with his mother, I.C., his father, J.C., and his brother, M.C., has

known Penny Phillips and her husband, Paul, for a long time. I.C. had met Penny

approximately one year before E.C. was born and the two families were close. Penny and

Phillips frequently would babysit E.C. and M.C. while I.C. was working ten-hour shifts six

days a week. Additionally, E.C. and his family visited Penny and Phillips at least once a

week. E.C. and his brother viewed Penny and Phillips as grandparents, referring to them

as Mamaw and Papaw. During his visits with Penny and Phillips, E.C. would go into their

bedroom to watch cartoons, having done so since he was a toddler in diapers.

           I.C.’s sister, Stacy, lived in a house near Penny and Phillips’s home. On February


1
    Ind. Code § 35-42-4-3 (2007).

                                                    2
7, 2013, when E.C. was eight years old, and when Stacy was pregnant, I.C. stopped by

Penny and Phillips’s house with her children, so they could watch the children while I.C.

checked on her sister’s well-being. On that particular day, I.C. made several trips between

houses until Stacy returned home from the hospital. M.C. went with his mother to check

on Stacy while E.C. stayed with Penny and Phillips.

       When E.C. went to Phillips’s bedroom to watch cartoons, Phillips was already in

the room lying down, but was awake. E.C. subsequently described the following events

that occurred while E.C. was in Phillips’s bedroom on that occasion. Phillips kissed E.C.

on the mouth and the kiss was “inside” E.C.’s mouth. Tr. p. 54. Phillips touched E.C. on

E.C.’s “pee pee” and on his “butt.” Id. at 57-58. E.C. also said that Phillips forced him to

touch Phillips’s “pee pee” with E.C.’s hand. Id. at 60-61. Philips touched the inside of

E.C.’s mouth with Phillips’s “pee pee” and told E.C. to touch Phillips’s “pee pee” with

E.C.’s mouth. Id. at 53-54, 59. E.C. further stated that Phillips touched E.C.’s “butt” with

Phillips’s “pee pee.” Id. at 57-59.

       I.C. and M.C. had been gone about fifteen to twenty minutes to visit Stacy when

Penny opened the closed door and walked into the bedroom where she observed that E.C.

was performing oral sex on Phillips. Penny saw both E.C. and Phillips on the bed with

Phillips lying on his side and E.C. under a blanket with his head down on Phillips’s penis.

Penny further observed that Phillips was awake and he sat up when she entered. In a state

of disbelief over what she had seen, Penny became upset and began to cry. When she asked

Phillips and E.C. what they were doing, Phillips replied that they were playing hide and

seek, and covered himself with the blanket. Penny told E.C. to come out from under the

                                             3
blanket, and she asked him what was happening. E.C., who had been instructed to mimic

Phillips’s responses, said to her that “Paul made me play hide to go seek.” Id. at 62.

       Penny asked Phillips more than once to walk over toward her because she wanted

to see if his pants were on. When Phillips ultimately stood up, his genitalia were

completely out of his pants, which were unbuttoned and unzipped. Penny asked Phillips

to walk with her to the bathroom nearby and demanded that Phillips show her his penis.

Phillips’s penis was wet because E.C. had been licking it. When Penny asked Phillips why

his pants were unfastened, he denied that they were undone. At that point Penny was

confused, nervous, and scared.

       Penny directed E.C. to go to the front room with her, and made him sit near her.

When she again asked E.C. what had happened, he would not speak about it. Penny then

asked Phillips “why did you do this?” Id. p. 94. Phillips responded that E.C. had kissed

him first, to which Penny replied that Phillips was the adult in that situation. Phillips asked

Penny not to call the police, but she did so nonetheless. She called 911 twice, placing the

second call after Phillips had left the house.

       Indianapolis Metropolitan Police Officers Matthew Coffey, Seth Ferrell, and

Matthew Cook responded to the dispatch reporting child molestation. Officer Coffey went

directly to Penny’s home at 50 South Colorado in response to the call while Officers Ferrell

and Cook drove to the area to search for Phillips, who had left the house.

       Officer Coffey observed E.C., who looked confused and embarrassed, and spoke

with Penny, who was upset and crying. Penny told Officer Coffey that she had walked in

on Phillips who was doing inappropriate things with a boy in the house. Penny gave a

                                                 4
description of Phillips to Officer Coffey, who communicated that description over the

police radio.

       Officers Ferrell and Cook were told that Phillips was running west-bound on

railroad tracks near Sherman Drive. After receiving the description of Phillips, Officers

Ferrell and Cook were able to locate Phillips, who was walking quickly into traffic

approximately half of a mile from his house. When Officer Ferrell apprehended Phillips,

Phillips voluntarily stated “it wasn’t me, I’m not the guy, you got the wrong guy.” Id. at

187. After the officers handcuffed Phillips, he requested an ambulance and was transported

to Wishard Hospital.

       Officer Coffey chose not to interview E.C. because he wanted to wait for a detective

to arrive and conduct that part of the investigation. When I.C. returned to Penny’s house

she observed that both Penny and E.C. were crying and that E.C. seemed upset and

confused. I.C. spoke with officers there at the house and took E.C. to the Peyton Manning

Children’s Hospital, where she gave permission to the forensic and sexual assault nurse

examiners to examine E.C.

       Indiana Metropolitan Police Officer Robert Chappell, a sex crimes child abuse

detective, began the investigation. Detective Chappell observed that E.C. was nervous and

fidgety during the interview, and Penny, who had been transported to the location of the

interview, appeared to be shaken, nervous, upset, red-faced and animated. Detective

Christopher Lawrence also participated in the investigation. The two officers called

Christine Ondek, a crime scene investigator, who helped to photograph, diagram, and

collect evidence in the case. The officers also obtained search warrants for Phillips’s house

                                             5
and person.    They executed the warrants, collected bedding from the scene of the

molestation, and with the assistance of hospital medical staff, collected swabs and DNA

samples from both E.C. and Phillips.

       Forensic nurse examiner Elizabeth Kleeman collected Phillips’s clothing and took

swabs from Phillips’s mouth, hands, and penis pursuant to the search warrant. Sexual

Assault Nurse Examiner Patrisha Anderson examined E.C. and conducted a chart review

of his examination conducted by another nurse. That examination was invasive and

lengthy beginning at 12:30 a.m. and ending at 3:40 a.m. During the examination, a blue

light fluorescence test was positive for the presence of biologic material on E.C.’s clothing.

Nurses took swabbed samples from E.C.’s anal and genital areas. Sexual Assault Nurse

Examiner Anderson noted redness in E.C.’s anal area.

       The samples collected from both E.C. and Phillips were sent to the crime lab for

testing and analysis. Penile swabs taken from Phillips tested positive for seminal material.

E.C.’s DNA was also found on Phillips’s penile swab and on the inside of Phillips’s jeans.

       The State charged Phillips with two counts of child molesting as a Class A felony,

one count of child molesting as a Class C felony, and one count of child solicitation as a

Class D felony. At the conclusion of Phillips’s jury trial, the jury found Phillips guilty on

all counts. The trial court sentenced Phillips to a term of forty-two years, with five years

suspended to probation, for one of the Class A felony counts, and vacated the remaining

convictions due to double jeopardy concerns. Phillips now appeals. Additional facts will

be supplied as needed.

                             DISCUSSION AND DECISION

                                              6
                                   I. JUROR QUESTION

       Phillips claims that his conviction should be reversed and the matter remanded for

a new trial because he was denied his federal and state constitutional rights to a fair trial.

Phillips argues that the trial court erred by failing to allow him to question a juror about his

or her potential bias after a juror asked a question Phillips contends revealed his or her

potential bias against him. Phillips claims that the question established that the juror failed

to reserve judgment about the case until deliberations and that the trial court consequently

abused its discretion by denying his motion for mistrial. We address each of these

contentions in turn.

       Indiana Trial Rule 47(B) provides in pertinent part as follows:

       Alternate jurors in the order in which they are called shall replace jurors who,
       prior to the time the jury returns its verdict, become or are found to be unable
       or disqualified to perform their duties.

“Specifically, a number of cases have given trial courts significant leeway under Indiana

Trial Rule 47(B) in determining whether to replace a juror with an alternate, and reverse

only for an abuse of discretion.” Riggs v. State, 809 N.E.2d 322, 327 (Ind. 2004). “These

cases deal with removal of a prospective juror from a panel, or removal as a result of

developments during the trial.” Id.

       During the trial, but prior to deliberations, and at the conclusion of E.C.’s testimony,

a juror sent a question to the trial court, which reads in pertinent part as follows:

       Question about [E.C.]: My concern for him is the long-term effects on him
       of implicating someone he has been so close to—that telling the truth has
       hurt someone who has been like a grandfather to him—Does the court ever
       order counseling for children in situations like this?


                                               7
Court’s Ex. 1, Ex. Vol. p. 54. The trial court read the question to the parties outside the

presence of the jury and initially stated that no response was required. Phillips asked the

trial court to identify the juror in order to question him or her about whether he or she had

already reached a decision as to Phillips’s guilt or innocence. The trial court disagreed

with Phillips’s contention that the question suggested that the juror had reached a final

determination about Phillips’s guilt or innocence. Phillips argued that the phrase “that

telling the truth has hurt someone….” suggested a bias in favor of conviction.

         The trial court stated that a juror can find a witness to be credible or not at the time

of their testimony without disregarding the instruction to withhold judgment until final

deliberation. The trial court further stated that this particular juror’s question, in the trial

court’s opinion, did not present the issue of outcome determination. The trial court

acknowledged that had the question contained a definitive statement of guilt or an

indication of premature outcome determination, then Phillips would have been entitled to

have the juror identified and questioned. Ultimately, the trial court concluded that to

question the juror would be akin to polling the jury prior to reaching the verdict, giving the

parties a preview of how the case was proceeding. Instead, the trial court repeated the jury

instructions including the instruction informing the jury not to reach a conclusion on guilt

or innocence until all the evidence was presented and deliberations commenced. Phillips’s

motion for a mistrial, which was made to preserve the objection, was denied by the trial

court.

         Under federal constitutional analysis governing the exclusion of a juror due to bias,

the “standard is whether the juror’s views would ‘prevent or substantially impair the

                                                8
performance of his duties as a juror in accordance with his instructions and his oath.’”

Wainwright v. Witt, 469 U.S. 412, 424 (1985). Here, the trial court instructed the jurors

that they were the exclusive judges of the evidence, that they were to determine which

witnesses to believe or disbelieve, that they could choose to believe all, part, or none of a

witness’s testimony, and that they should attempt to fit the evidence to the presumption

that the defendant is innocent and that every witness is telling the truth. The question posed

by the juror had more to do with what happened to E.C. after the trial regardless of the

verdict reached. The juror used the word “implicate,” which reveals no bias in favor of

guilt or innocence. Further, the question presented by the juror reflects that the juror was

following the trial court’s instructions; therefore, Phillips has revealed no basis for

removing the juror under federal constitutional analysis.2

        Phillips also raises a state constitutional claim based upon an alleged violation of

his right to a public trial by an impartial jury. See Ind. Const. art. I, §13. “Trial courts have

broad discretion in determining whether to replace a juror with an alternate, and we will

only reverse such determinations where we find them to be arbitrary, capricious or an abuse

of discretion.” Morgan v. State, 903 N.E.2d 1010, 1018-19 (Ind. Ct. App. 2009) (quoting

May v. State, 716 N.E.2d 418, 421 (Ind. 1999)), trans. denied. Many of the cases

evaluating requests to replace a juror with an alternate involve allegations of juror



2
  Phillips cites to an unreported opinion from the United States District Court Southern Division of
Michigan as support for his position about the right to a fair trial and juror questions. See Gaither v. Birkett,
2006 WL 1547636 (S.D. Mich. 2006). This unreported opinion has no precedential value and its persuasive
effect actually weighs in favor of the State’s position on this issue. The court found that cautionary
instructions cured any misconceptions the jurors might have had about the law as reflected by questions
that were challenged by the petitioner as reflecting a bias against the petitioner.

                                                       9
misconduct in the context of out-of-court communications with unauthorized persons. See

e.g., May v. State, 716 N.E.2d 419 (Ind. 1999); Morgan v. State, 903 N.E.2d 1010 (Ind. Ct.

App. 2009), trans. denied. Such is not the case here, but the review applied to the trial

court’s decision in those situations is helpful to the resolution of the issue presented here.

       “Typically, ‘[t]he trial court [is] in the best position to assess the honesty and

integrity of [a juror and their] ability to perform as a conscientious, impartial juror.’”

Morgan, 903 N.E.2d at 1019 (quoting Harris v. State, 659 N.E.2d 522, 525 (Ind. 1995)),

trans. denied. “‘As such, our review of the trial court’s decisions in these matters is highly

deferential.’” Id. Additionally, we begin with the presumption that the jury follows the

trial court’s instructions. Harris v. State, 824 N.E.2d 432, 440 (Ind. Ct. App. 2005). As

we explained with respect to federal constitutional analysis, the juror’s question reflected

that the juror was following the trial court’s instructions and had not prematurely reached

a final determination of Phillips’s innocence or guilt. The trial court’s decision to allow

the juror to remain on the panel was not an abuse of discretion.

       Likewise, the trial court’s refusal to identify the juror and allow questioning of that

juror was not an abuse of discretion under state constitutional analysis. The juror’s

question did not indicate a bias in favor of or against a particular verdict. To further

question the juror would, as the trial court noted, be akin to polling the jury during the trial,

thus giving counsel a preview of the progress in the case. “[O]nce deliberations begin,

discharge of a juror is warranted only in the most extreme situations where it can be shown

that the removal of the juror is necessary for the integrity of the process, does not prejudice

the deliberations of the rest of the panel, and does not impair the parties’ right to a trial by

                                               10
jury.” Leslie v. State, 978 N.E.2d 486, 493 (Ind. Ct. App. 2012). Phillips has not

demonstrated that by posing this particular question, removal of this juror was necessary

for the integrity of the process. The trial court did not abuse its discretion by denying

Phillips’s request.

       In order to preserve his objection to the trial court’s decision to re-read the

preliminary instructions, in lieu of identifying and questioning the juror, Phillips made a

motion for mistrial. The trial court’s decision to grant or deny a motion for a mistrial is

within the discretion of the trial court, and its ruling is reviewed solely for an abuse of

discretion. Jackson v. State, 925 N.E.2d 369, 373 (Ind. 2010). “‘We accord great deference

to the trial court’s decision, as it is in the best position to gauge the circumstances and the

probable impact on the jury.’” Evans v. State, 855 N.E.2d 378, 386 (Ind. Ct. App. 2006)

(quoting Kirby v. State, 774 N.E.2d 523, 533-34 (Ind. Ct. App. 2002), trans. denied), trans.

denied (2007). In determining whether a mistrial is warranted, the relevant inquiry is

whether the defendant was placed in a position of grave peril to which he should not have

been subjected; the gravity of the peril is determined by the probable persuasive effect on

the jury’s decision. Id.

       The trial court’s decision to deny Phillips’s motion for mistrial was appropriate in

this situation. The trial court reinforced the instructions that were previously given to the

jury. The language of the juror’s question reflected that he or she was already following

those instructions. We find no abuse of discretion in the trial court’s decision.

      II. PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT

       Generally, in order to properly preserve a claim of prosecutorial misconduct for

                                              11
appeal, a defendant must not only raise a contemporaneous objection, but he must also

request an admonishment; if the admonishment is not given or is insufficient to cure the

error, then he must request a mistrial. Owens v. State, 937 N.E.2d 880, 893 (Ind. Ct. App.

2010). Failure to request an admonishment or to move for mistrial results in waiver. Id.

Phillips did not object to many of the claims of misconduct he raises on appeal and,

therefore, did not properly preserve those claims. Phillips did object during the State’s

closing argument when the State pointed to Phillips while arguing that Phillips was trying

to cover his tracks. That claim has been properly preserved and will be addressed under

the appropriate standard of review.

       During closing argument, the prosecutor pointed at Phillips, arguing as follows:

       You knew what you were doing, Mr. Phillips. You started covering your
       tracks from the word go.

Tr. p. 458. Phillips objected to the State pointing at and accusing Phillips, contending that

such was improper during final argument. The prosecutor apologized, contending that she

was merely gesturing. As for the accusation, the evidence referred to by the prosecutor all

supported the contention that Phillips had attempted to avoid responsibility for the crimes

since the moment of Penny’s discovery. The trial court warned the prosecutor to be

cautious and allowed her to continue with her closing argument. Further, although not

explicitly requested, an admonishment was given after Phillips objected. After that

admonishment, Phillips did not object again on that ground and there is no claim that the

prosecutor continued to point at Phillips. Therefore, the admonishment sufficiently cured

the alleged error. Consequently, Phillips’s argument on his only preserved claim of


                                             12
prosecutorial misconduct does not establish that a reversal of his conviction is necessary.

       In order to prevail on Phillips’s remaining claims of prosecutorial misconduct, the

claims must withstand review for fundamental error. To prevail on a claim of prosecutorial

misconduct where the misconduct has not been properly preserved, the defendant must

establish not only the grounds for the prosecutorial misconduct, but also the additional

grounds for fundamental error. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). 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 would not have

been subjected. Nichols v. State, 974 N.E.2d 531, 535 (Ind. Ct. App. 2012). We determine

whether a prosecutor’s argument constitutes misconduct by referring to case law and the

Rules of Professional Conduct. Id. “‘The gravity of peril is measured by the probable

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

impropriety of the conduct.”’ Id. (quoting Cooper, 854 N.E.2d at 835).

       “Fundamental error is an ‘extremely narrow exception’ to the contemporaneous

objection rule that allows a defendant to avoid waiver of an issue.” Id. “For a claim of

prosecutorial misconduct to rise to the level of fundamental error, it must ‘make a fair trial

impossible or constitute clearly blatant violations of basic and elementary principles of due

process and present an undeniable and substantial potential for harm.’” Id. (quoting Booher

v. State, 773 N.E.2d 814, 817 (Ind. 2002)).

       First, Phillips argues that the State committed prosecutorial misconduct by

improperly vouching for E.C.’s and Penny’s credibility. In particular, during closing

                                              13
argument, the prosecutor stated as follows:

       We know that E.C. is telling the truth. We know that. . . . There’s simply no
       motive for E.C. to lie. He liked going over to Meemaw Penny’s and Papaw
       Paul’s and watching cartoons. Why would he make this up? What could he
       possibly gain from making this up, from going through not one invasive
       sexual assault exam but two? Nothing. Nothing. Because he’s not making
       this up, ladies and gentlemen. And you saw Penny’s emotions, those real
       emotions that came pouring out. This was hard on her. Her life as she’d
       known it for thirty years came crashing down in a single second and it’s in
       the details, the things that she saw—his penis was wet—and the things that
       the defendant said to her—we were just playing hide and go seek, don’t call
       the police, he kissed me first. The disbelief still today in her eyes, not
       wanting to believe that this is true, not wanting to believe, but knowing—
       what she saw. Those details are real. That 911 call, both 911 calls, those are
       real. Those are real. She has no motive to lie, ladies and gentlemen. No
       motive. . . . But E.C.’s DNA is on Paul Phillips’[s] penis and it’s in Paul
       Phillips’[s] blue jeans that he was wearing that night. And it’s there because
       Paul Phillips made E.C. lick his pee pee and because Paul Phillips inserted
       his penis into E.C.’s anus. This is how we know that E.C. and Penny Phillips
       are telling the truth.

Tr. pp. 455-57.

       A prosecutor may not personally vouch for a witness. Schlomer v. State, 580 N.E.2d

950, 957 (Ind. 1991); Ind. Professional Conduct Rule 3.4(e). “But a prosecutor may

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

which arise from the evidence.’” Ryan v. State, 9 N.E.3d 663, 671 (Ind. 2014) (emphasis

in original) (quoting Lopez v. State, 527 N.E.2d 1119, 1127 (Ind. 1988)).

       Here, the prosecutor connected her commentary on E.C.’s and Penny’s credibility

with evidence in the record that supported the testimony. While we agree that the State

should not vouch for a witness, the facts here do not amount to prosecutorial misconduct,

and thus, do not constitute fundamental error.

       Phillips also contends that the following excerpt from the State’s rebuttal closing

                                              14
argument, to which no objection was made, establishes prosecutorial misconduct

amounting to fundamental error:

       But there’s circumstantial evidence and I think what—the fact—a fact that I
       found to be probative or important, I hope you do too, is what [t]he nurse
       testified to about E.C. and his demeanor and how he reacted during the exam.
       She recalled—she told you that she tells the patient how she would like them
       to be on the table so that she can perform her exam and that E.C. would not
       get on his knees and stick his butt in the air. He was not going to do that
       again. Why do you think that is? Why do you think E.C. was not about to
       put himself in that position again? Because E.C. had found out the day
       previous what happened when you stuck your bare butt in the air to an adult.
       And now forever that is what will be with him, thanks to Mr. Phillips.

Tr. pp. 466-67. Phillips claims that the evidence does not support the interpretation

advanced by the State.

       When placed in context, the State’s rebuttal closing argument is in response to the

following excerpt of Phillips’s closing argument regarding the sexual assault exam

testimony:

       I had [E.C.] come down to my office and took his statement called a
       deposition. A representative from the State was there. Initially he denied
       anything ever happened. Only after some prodding did he ever say anything
       happened. He kept telling the prosecutor that he was annoying. He
       obviously was embarrassed. Now why was he embarrassed? Well, that
       should be obvious. Did he think that he had done something wrong? Does
       he have homosexual tendencies at a young age? That’s something that we
       don’t know. But is it possible? Yes. Is homosexuality, innate, something
       that you discover as you’re growing up? Possibly. Is that what happened
       here? Could have. Now we do know that during the physical examination
       there was absolutely no evidence whatsoever of any anal tears or –the DNA
       examination, we know that there was absolutely no evidence of any DNA in
       that area of the body. There’s a very good chance I think that it shows that
       he was lying about that, that that certainly never happened. In fact, the only
       evidence that it did happen is his own statement.

Tr. pp. 460-61. Thus, the portion of the State’s rebuttal closing argument at issue here was


                                            15
a permissible response to Phillips’s characterization of the evidence during closing

argument. We find no fundamental error here.

       While the criminal charges were pending against Phillips, he wrote a postcard to his

neighbor, but mailed the postcard to his home address. The State offered the postcard at

trial and it was admitted in evidence. In the post card, Phillips described seeing Penny and

I.C. recently in court and experiencing the animosity directed at him. Phillips claimed that

Penny had intentionally sent E.C. into Phillips’s bedroom to set him up and claimed that

E.C. was the instigator of the sexual act Penny saw. He further stated that he had passed

out in the bedroom after taking some Xanax and Vicodin that he claimed I.C. had purchased

for him. Phillips used derogatory language to describe E.C.

       Phillips also challenges the State’s rebuttal closing argument that Phillips had seen

the DNA report prior to writing the postcard to his neighbor and testifying at trial, and that

E.C., on the other hand, had seen none of the evidence prior to testifying. The State did

present an argument along those lines during rebuttal closing argument. However, other

than mentioning those references, Phillips has failed to present an argument specifically

addressing those comments.       Waiver notwithstanding, Phillips has not demonstrated

fundamental error here. The State is permitted to comment on the credibility of the

witnesses as long as the assertions made arise from the evidence. Phillips was in the

courtroom and heard all of the evidence presented before taking the stand. E.C., on the

other hand, was the State’s first witness and testified without knowing how other witnesses

would testify.

       Phillips also attacks the State’s “plug” for the public servants who were involved in

                                             16
the investigation of this matter. Id. at 470. Phillips also contends that the State improperly

pleaded for the jury to render a verdict in support of E.C.’s cause. The State’s compliments

to those who were involved in the investigation of the case were gratuitous and do not rise

to the level of prosecutorial misconduct. However, Phillips is correct in his challenge of

the State’s plea to the jury to further support E.C.’s cause for justice by rendering a guilty

verdict. The State’s argument here does cross the line into prosecutorial misconduct in the

rebuttal closing argument.

       Nevertheless, Phillips failed to object to the argument. Thus, we must review those

comments for fundamental error. The State’s comments, while improper, did not place

Phillips in a position of grave peril to which he would not have been subjected. Unlike

other cases where the issue turns solely on the credibility of the witnesses, E.C.’s testimony

was corroborated and supported by forensic evidence. The probable persuasive effect of

the State’s plea on the jury’s decision in this case is minimal. Therefore, we find no

fundamental error on this claim.

                  III. VOLUNTARY INTOXICATION INSTRUCTION

       On appeal, Phillips alleges instructional error in the giving of the voluntary

intoxication instruction, contending that he did not raise the defense and that there was no

evidence to support giving the instruction. Our standard of review upon claims of

instructional error is well settled:

       The purpose of jury instructions is to inform the jury of the law applicable to
       the facts without misleading the jury and to enable it to comprehend the case
       clearly and arrive at a just, fair, and correct verdict. In reviewing a trial
       court’s decision to give a tendered jury instruction, we consider (1) whether
       the instruction correctly states the law, (2) is supported by the evidence in

                                             17
        the record, and (3) is not covered in substance by other instructions. The trial
        court has discretion in instructing the jury, and we will reverse only when the
        instructions amount to an abuse of discretion. To constitute an abuse of
        discretion, the instructions given must be erroneous, and the instructions
        taken as a whole must misstate the law or otherwise mislead the jury. We
        will consider jury instructions as a whole and in reference to each other, not
        in isolation.

Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010) (quoting Murray v. State, 798

N.E.2d 895, 899-900 (Ind. Ct. App. 2003)).

        The trial court gave the following final instruction on voluntary intoxication to the

jury:

        Voluntary Intoxication is not a defense to a criminal charge. You may not
        take voluntary intoxication into consideration in determining whether the
        Defendant acted intentionally as alleged in the charging information.

Appellant’s App. p. 119. At the time the trial court announced that a ruling had been made

regarding that instruction, Phillips stated that he had no objection to the final instructions,

except the objection already noted.        Earlier, Phillips had argued that the proposed

instruction on voluntary intoxication was objectionable because in place of the words

“criminal charge” the proposed instruction said “child molesting.” Tr. p. 399. The trial

court agreed to change the instruction to read as it was given, replacing “child molesting”

with “criminal charge.”

        “When objecting to an instruction, the objection at trial must be sufficiently clear

and specific to inform the trial court of the claimed error, identifying both the claimed

objectionable matter and the grounds for the objection.” Childers v. State, 719 N.E.2d

1227, 1231 (Ind. 1999). In fact, Indiana Trial Rule 51(C) requires the parties to identify

the specific objection to the instruction in part to provide the trial court the opportunity to

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correct an instructional error, if any. Id. at 1232. Here, the trial court arguably preserved

Phillips’s objection to the instruction by noting that the instruction had been previously

challenged. However, the previous grounds for the objection had been cured by changing

the language of the instruction. Now, Phillips raises different grounds for the alleged error.

An argument is waived where the appellant presents one argument at trial and raises a

different argument on appeal. Marshall v. State, 621 N.E.2d 308, 314 (Ind. 1993).

       Waiver notwithstanding, we address Phillips’s concerns, ultimately concluding that

there was no instructional error. Our Supreme Court has outlined the standard trial courts

are to use when determining whether to give the voluntary intoxication instruction as

follows:

       When the prosecution requests the instruction it seeks to avoid acquittal on
       the basis of evidence of simple voluntary consumption of alcohol. When the
       defense requests the instruction it seeks to achieve acquittal by insuring
       consideration by the jury of evidence of intoxication. In either case the
       question for the court is whether there is an adequate evidentiary basis for it.
       That basis exists where the evidence of intoxication, if believed, is such that
       it could create a reasonable doubt in the mind of a rational trier of fact that
       the accused entertained the requisite specific intent. If it could do so the
       refusal of the instruction is error.

Hubbard v. State, 469 N.E.2d 740, 742 (Ind. 1984) (quoting Williams v. State, 273 Ind.

105, 108-09, 402 N.E.2d 954, 956 (1980)).

       Here, State’s Exhibit 3, a postcard written by Phillips to his next door neighbor, was

admitted into evidence. In the postcard, Phillips discussed the allegations against him,

claiming that E.C. was the instigator, and that Phillips was “passed out on [Xanax] and

[Vicodin].” He further claims that Penny sent E.C. into the room while Phillips was passed

out, and that Phillips awoke to hear Penny yelling at him, and to observe that E.C.’s head

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was under the covers. If believed, this evidence could create a reasonable doubt in the

minds of the jury about the requisite specific intent. As Hubbard and Williams make clear,

which party requests the instruction is irrelevant to the determination of whether the

instruction should be given. Instead, the trial court must focus on the evidentiary basis.

We conclude that there was sufficient evidence to support the trial court’s decision to give

the voluntary intoxication instruction. The trial court did not abuse its discretion.

                                      CONCLUSION

       In light of the above, we affirm the trial court’s decision.

       Affirmed.

       BARNES, J., and MATHIAS, J., concur.




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