Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                Aug 20 2014, 9:27 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

SUSAN D. RAYL                                    GREGORY F. ZOELLER
Smith Rayl Law Office, LLC                       Attorney General of Indiana
Indianapolis, Indiana
                                                 CYNTHIA L. PLOUGHE
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

BRANDON BRUMMETT,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 49A02-1304-CR-378
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Marc T. Rothenberg, Judge
                            Cause No. 49G02-1206-FB-42411



                                      August 20, 2014

     MEMORANDUM DECISION ON REHEARING – NOT FOR PUBLICATION

BAKER, Judge
      The State seeks rehearing following our opinion, Brummett v. State, 10 N.E.3d 78

(Ind. Ct. App. 2014), arguing that this Court failed to apply an appropriately high

standard for fundamental error when reversing appellant-defendant Brandon Brummett’s

convictions for child molesting due to prosecutorial misconduct. The State argues that

this Court should apply the fundamental error standard as recently articulated by our

Supreme Court in Ryan v. State, 9 N.E.3d 663 (Ind. 2014), handed down June 3, 2014.

We issue this opinion on rehearing but re-affirm our original decision in all respects,

finding that the prosecutorial misconduct present in this case was much more egregious

than that in Ryan and concluding that the prosecutor’s misconduct did amount to

fundamental error under the standard now to be used.        Although we have granted

rehearing, we reverse and remand for further proceedings.

VAIDIK, J., concurs, and BAILEY, J., concurs in result.




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