                                                        FILED
FOR PUBLICATION                                       Aug 13 2012, 9:03 am


                                                             CLERK
                                                           of the supreme court,
                                                           court of appeals and
                                                                  tax court



ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

MARK SMALL                                    GREGORY F. ZOELLER
Marion County Public Defender Agency          Attorney General of Indiana
Indianapolis, Indiana
                                              KATHERINE MODESITT COOPER
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

DENNIS FEYKA,                                 )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 49A02-1108-CR-703
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Mark D. Stoner, Judge
                          Cause No. 49G06-1006-FA-45550


                                   August 13, 2012

                             OPINION – FOR PUBLICATION




MAY, Judge
         Dennis Feyka appeals his conviction of Class A felony child molesting.1 He argues

the prosecutor’s comments during closing argument were fundamental error and the evidence

was insufficient to convict him because the victim’s testimony was incredibly dubious. We

affirm.2

                             FACTS AND PROCEDURAL HISTORY

         The facts most favorable to the judgment are that during spring break of 2010, Feyka’s

daughter hosted a sleepover for a number of girls at Feyka’s house. T.B., then nine years old,

attended the sleepover. The other girls in attendance were older than T.B., and they spent the

evening in a locked bedroom while T.B. remained in the living room. T.B. slept on one part

of an L-shaped couch, and Feyka slept on the other part. On three occasions during the night,

Feyka placed his mouth on T.B.’s vagina. When school resumed after spring break, T.B.

attended a “good touch/bad touch” program and then reported the incident. The State

charged Feyka with three counts of Class A felony child molesting, and a jury found him

guilty of all three counts. The trial court merged Counts Two and Three into Count One,

then entered a judgment of conviction on that count.

                                         DISCUSSION

         1.      Prosecutorial Misconduct

         Feyka claims the prosecutor committed misconduct during closing argument by



1
    Ind. Code § 35-42-4-3.
2
 We heard oral argument July 11, 2012, at the Statehouse. We commend counsel on the quality of their
advocacy.

                                                 2
referring to the fact that Feyka did not testify. In reviewing a claim of prosecutorial

misconduct, we must determine whether the prosecutor engaged in misconduct, and if so,

whether the misconduct had a probable persuasive effect on the jury. Ritchie v. State, 809

N.E.2d 258, 268 (Ind. 2004), reh’g denied, cert. denied. A claim of improper argument to

the jury is measured by the probable persuasive effect of any misconduct on the jury’s

decision and whether there were repeated occurrences of misconduct, which would evidence

a deliberate attempt to improperly prejudice the defendant. Id. at 269.

       Feyka did not object to the statements he now alleges were error. Failure to object to

alleged misconduct precludes appellate review of the claim, Booher v. State, 773 N.E.2d 814,

817 (Ind. 2002), unless the alleged misconduct amounts to fundamental error. Id. To

demonstrate fundamental error, the defendant must establish not only prosecutorial

misconduct but also the additional grounds for fundamental error. Id. at 818. To be

fundamental error, the misconduct must have made a fair trial impossible or been a clearly

blatant violation of basic and elementary principles of due process that presents an

undeniable and substantial potential for harm. Id. at 817.

       The Fifth Amendment to the United States Constitution prohibits the State from

commenting on a defendant’s failure to testify in his own defense. Owens v. State, 937

N.E.2d 880, 893 (Ind. Ct. App. 2010), reh’g denied, trans. denied. Such a comment violates

a defendant’s privilege against compulsory self-incrimination if a jury could reasonably

interpret the comment as an invitation to draw an adverse inference from a defendant’s

silence. Boatright v. State, 759 N.E.2d 1038, 1043 (Ind. 2001). But if the prosecutor’s

                                             3
comment in its totality addresses other evidence, and not the defendant’s failure to testify, it

is not grounds for reversal. Owens, 937 N.E.2d at 893. The prosecutor may, for example,

comment that the State’s evidence is uncontradicted without violating the defendant’s Fifth

Amendment rights. Id.3

        Feyka points to three parts of the State’s closing argument during which he claims the

prosecutor impermissibly referred to Feyka’s choice not to testify in his own defense. None

of those references amounted to fundamental error.

        First, at the beginning of closing argument, the prosecutor said, “During voir dire, we

talked about we’re only going to present to you – there are two people that know what

happened. And [T.B.] told you what happened.” (Tr. at 271.)

        Second, in Feyka’s closing argument, counsel argued Feyka’s innocence based on the

State’s inability to present a witness to corroborate T.B.’s testimony. During rebuttal of that

argument, the prosecutor said, “Of course we’re not going to have anybody to corroborate

[T.B.]’s testimony that [Feyka] licked her vagina; that the hair was pinching and it hurt her.

No, because no one was there for that. He’s not going to do that.”4 (Id. at 294-95.)


3
  Feyka urges us to analyze the prosecutor’s statements using the five factor test set forth in Bieghler v. State,
481 N.E.2d 78, 92 (Ind. 1985). Because the State did not address those factors, Feyka asserts in his Reply
Brief, the State has waived its argument and Feyka need show only prima facie error to gain reversal. See Nat'l
Oil & Gas, Inc. v. Gingrich, 716 N.E.2d 491, 496 (Ind. Ct. App. 1999) (failure to respond to an issue raised by
an appellant is akin to the failure to file a brief, and under such circumstances we may reverse the unaddressed
issue on a showing of prima facie error). As Bieghler involved an analysis of harmless error rather than
fundamental error, and post-arrest silence rather than a comment on failure to testify, we cannot find the State
waived its argument regarding prosecutorial misconduct by declining to address Bieghler.
4
  The State asserts the prosecutor’s statement “He’s not going to do that” was not a reference to Feyka’s failure
to testify, but meant Feyka would not have molested T.B. in front of witnesses. The State offers no explanation
or citation to the record to support that apparent speculation about what the prosecutor meant.

                                                        4
         Finally, the prosecutor stated at the end of her rebuttal argument:

         Remember the rules I set down for her? If you don’t know, say so. If you
         don’t remember, say so. And she followed those rules. She told you the
         absolute truth. And the very, very, very important thing is there is no one
         contesting her testimony. Her testimony is uncontested. You can take it to the
         bank.5

(Id. at 296) (footnote added).

         Feyka likens his circumstances to those in Owens, where the prosecutor said during

closing argument: “Ultimately, you can rely on [C.R.’s] testimony. And in all honesty, in

large part, if not exclusively, that’s what you have to rely on. Because the reality is, other

than Mr. Owens, she is the only one who knows what happened to her that night.” Owens,

937 N.E.2d at 894. We held:

         The prosecutor highlighted the fact that C.R.’s testimony was the only
         evidence before the jury and then explicitly referred to Owens by name and
         directly compared his knowledge to C.R.’s. We conclude that the jury
         reasonably could have interpreted the prosecutor’s comment as an invitation to
         draw an adverse inference from Owens’s failure to testify.

5
   Feyka asserts in his reply brief that the “you can take it to the bank” statement was “vouchsafing the
credibility of the State’s only witness to the alleged incident, a witness who admitted to being told by her
mother, in part, what to say.” (Appellant’s Reply Br. at 3.)
  When it is alleged the prosecutor made an improper statement in closing argument, the correct procedure is
to ask the trial court to admonish the jury. Dumas v. State, 803 N.E.2d 1113, 1117 (Ind. 2004). If the party is
not satisfied with the admonition, he should move for mistrial. Id. Failure to request an admonition or to move
for mistrial results in waiver. Id. Feyka did neither, and offers no argument or explanation on appeal why
“take it to the bank” amounted to vouchsafing.
  It is inappropriate for a prosecutor to make an argument that takes the form of personally vouching for a
witness. Lainhart v. State, 916 N.E.2d 924, 938 (Ind. Ct. App. 2009). Indiana Professional Conduct Rule
3.4(e) provides a lawyer “shall not . . . in trial . . . state a personal opinion as to the . . . credibility of a witness.”
 Id. A prosecutor may comment on the credibility of the witnesses only if the assertions are based on reasons
that arise from the evidence. Id.
  As noted above, this allegation of error is waived for appeal, and as explained below, the prosecutor’s
statements did not amount to fundamental error.
  As for Feyka’s allegation T.B. was “a witness who admitted to being told by her mother, in part, what to
say,” (Appellant’s Reply Br. at 3), Feyka notes T.B. was asked at trial “so [your mother] helped you go over
what you should say and things like that?” and she replied, “[a] little bit.” (Tr. at 137.)

                                                             5
Id.

       In Davis v. State, 685 N.E.2d 1095 (Ind. Ct. App. 1997), reh’g denied, cert. denied,

Davis fled after he crashed a car into a tree. When police asked him why he fled, Davis said,

“I took it.” Id. at 1097. At trial, the police officer testified as to what Davis said, and Davis

did not testify. During closing argument, the prosecutor said, “Davis said he took the car.

There is nothing to controvert that. There is no evidence saying that isn’t so. There’s not

even an argument that he didn’t say that.” Id. at 1089 (brackets omitted). That statement was

improper:

       By calling attention to the defendant’s alleged admission and pointing out that
       there was no claim to the contrary, the prosecutor indirectly brings to the jury’s
       attention the fact that Davis did not deny this allegation. Davis was the only
       one who could have denied that this statement was made since only he and
       Officer Kaszas were present at the time. Thus, a reasonable jury could have
       taken that comment as an invitation to consider Davis’ failure to testify as an
       inference of guilt. We conclude that the prosecutor’s comments were
       improper.

Id. at 1098.

       In Owens, 937 N.E.2d at 894, we contrasted statements that were found to be

comments on the evidence, not on a defendant’s failure to testify, e.g., Hopkins v. State, 582

N.E.2d 345, 347-48 (Ind. 1991) (prosecutor’s statement that “it is certainly worthy of

comment that you never heard any testimony during this trial that the defendant was

anywhere else” was a comment on evidence from five different witnesses to whom defendant

made admissions concerning the crime and not on the absence of testimony from the

defendant), reh’g denied; Channell v. State, 658 N.E.2d 925, 931–32 (Ind. Ct. App. 1995)

                                               6
(prosecutor did not impermissibly refer to defendant’s failure to testify where prosecutor

stated, “What testimony did you hear from that witness stand that this Defendant consumed

any alcohol or had any drug on that day? Absolutely none. There’s no testimony he had any

alcohol or any drug or was talking under the influence of alcohol or drugs.”) (brackets

omitted), reh’g denied, trans. denied.

       The statement in Owens was improper, but it was not fundamental error because it did

not make a fair trial impossible, amount to a blatant violation of basic and elementary

principles of due process, or create an undeniable and substantial potential for harm. Owens,

937 N.E.2d at 894. We noted “the narrow applicability of the fundamental error doctrine,”

id., that the prosecutor’s comment was “an isolated statement,” id., and as to the evidence of

Owens’s guilt, the victim testified and was vigorously cross-examined and recross-examined.

Id. The prosecutor’s improper comment therefore was not fundamental error. Id.

       The prosecutor’s comments about Feyka were not fundamental error for the same

reasons. As did defense counsel in Owens, Feyka vigorously cross-examined the witnesses,

including the victim. The jury could have considered the prosecutor’s comments as

commentary on the nature of the evidence presented, which is permitted. See Martinez v.

State, 549 N.E.2d 1026, 1028 (Ind. 1990) (State permitted to comment on the uncontradicted

nature of the evidence without violating defendant’s Firth Amendment rights). We cannot

say the references to Feyka’s failure to testify were fundamental error.

       2.     Sufficiency of the Evidence

       When reviewing sufficiency of evidence to support a conviction, we consider only the

                                              7
probative evidence and reasonable inferences supporting the trial court’s decision. Drane v.

State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s role, and not ours, to assess

witness credibility and weigh the evidence to determine whether it is sufficient to support a

conviction. Id. To preserve this structure, when we are confronted with conflicting

evidence, we consider it most favorably to the trial court’s ruling. Id. We affirm a

conviction unless no reasonable fact-finder could find the elements of the crime proven

beyond a reasonable doubt. Id. It is therefore not necessary that the evidence overcome

every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference

reasonably may be drawn from it to support the trial court’s decision. Id. at 147.

        Feyka argues the State did not present sufficient evidence to convict him of Class A

felony child molesting because his conviction “was based solely on the uncorroborated and

inherently dubious testimony of the child in question and was contradicted in material ways

by others present in the house.”6 (Br. of Appellant at 11.) Under the “incredible dubiosity”

rule, we may “impinge on the jury’s responsibility to judge the credibility of the witness only

when it has confronted ‘inherently improbable testimony or coerced, equivocal, wholly

uncorroborated testimony of incredible dubiosity.” Rodgers v. State, 422 N.E.2d 1211, 1213

(Ind. 1981). We will reverse a conviction if the sole witness presents inherently improbable

testimony and there is no circumstantial evidence of the defendant’s guilt. White v. State,

706 N.E.2d 1078, 1079-80 (Ind. 1999). Application of the incredible dubiosity rule “is rare


6
 The State recounts at length T.B.’s trial testimony, and asserts the alleged facts to which she testified are
sufficient to support the convictions. But Feyka does not argue otherwise; instead, he argues T.B.’s testimony
was incredibly dubious.
                                                      8
and the standard to be applied is whether the testimony is so incredibly dubious or inherently

improbable that no reasonable person could believe it.” Fajardo v. State, 859 N.E.2d 1201,

1208 (Ind. 2007).

       Those cases where we have found testimony inherently improbable or of incredible

dubiosity have involved either situations where the facts as alleged “could not have happened

as described by the victim and be consistent with the laws of nature or human experience,”

Watkins v. State, 571 N.E.2d 1262, 1265 (Ind. Ct. App. 1991), aff’d in part and vacated in

part, 575 N.E.2d 624 (Ind. 1991), or the witness was so equivocal about the act charged that

his uncorroborated and coerced testimony “was riddled with doubt about its trustworthiness.”

Id. The case before us does not fall within either category.

       To support his argument T.B.’s testimony was incredibly dubious, Feyka first notes

the State conceded in closing argument that her testimony was not corroborated: “we’re not

going to have anybody to corroborate [T.B.’s] testimony . . . no one was there for that.” (Tr.

at 295.) He next notes much of T.B.’s testimony was inconsistent with that given by another

witness. T.B. testified she was molested during the nighttime, but a guest at the sleepover,

thirteen-year-old L.G., testified everyone stayed up until 7:00 a.m., and during that time she

did not see Feyka do anything to the victim. T.B. testified L.G. and the other girls at the

sleepover stayed in a locked bedroom all night, while she and Feyka were in the living room.

Feyka offers no explanation why conflicting testimony by another witness necessarily

renders T.B.’s own testimony incredibly dubious, and we decline to so hold.

       Feyka also notes T.B. testified she acted like she was asleep when Feyka molested her,

                                              9
and that she is “a really good faker.” (Id. at 98.) In a pretrial interview, T.B. told an

investigator she did not know whether the incident was real or a dream. T.B. testified at trial

she knew the molestation was real and not a dream because she can control what happens in

her dreams, but she could not control what happened with Feyka. At various times, T.B.

testified each instance of molestation lasted “about like a minute,” (id. at 122), and “like five,

maybe less.” (Id.) But in a prior statement she had said one instance lasted fifteen minutes

and another lasted eighteen. Finally, Feyka notes T.B. was initially unable to identify him in

court. When asked, “Do you see [Feyka] in the court room today,” she replied “Uh. I don’t

know.” (Id. at 100.) After she was prompted to “look around and take your time,” (id.), she

pointed to Feyka.

       T.B.’s testimony provided ample evidence to support Feyka’s conviction. The

uncorroborated testimony of the victim, even if the victim is a minor, is sufficient to sustain a

conviction of child molesting, Morrison v. State, 462 N.E.2d 78, 79 (Ind. 1984), and it is

within the province of the trier of fact to reject evidence to the contrary. See, e.g., Bennett v.

State, 409 N.E.2d 1189, 1191 (Ind. Ct. App. 1980) (conflict between the State’s case and a

defendant’s alibi is a matter to be resolved by the jury, whose decision will not be overturned

on appeal if there is substantial evidence of probative value in the record to support it).

       This is true even if there are inconsistencies in the child victim’s own testimony. See,

e.g., Surber v. State, 884 N.E.2d 856, 869 (Ind. Ct. App. 2008) (testimony of six-year-old

victim was not so incredibly dubious or inherently improbable that no reasonable person

could believe it; “[w]hile there are inconsistencies between some of [the child’s] statements,

                                               10
the inconsistencies ‘are appropriate to the circumstances presented, the age of the witness,

and the passage of time between the incident and the time of her statements and testimony.’”

(quoting Fajardo v. State, 859 N.E.2d 1201, 1209 (Ind. 2007)).

       We acknowledge the conflicting testimony and some inconsistencies in T.B.’s own

statements. However, we cannot find equivocal, coerced, or inherently contradictory T.B.’s

statements establishing the elements of the crime and why she knew Feyka was the person

who molested her. That T.B. did not immediately identify Feyka at trial is insignificant; she

testified she had known Feyka for seven or eight years and he was a friend of her parents. As

for T.B.’s pretrial statement she did not know whether the incident was a dream, the State

notes the prosecutor questioned T.B. at length and T.B. testified she was positive it was real.

       The jury, having heard T.B.’s testimony and having had the opportunity to determine

the credibility of the witnesses, found Feyka guilty of molesting T.B. We must decline

Feyka’s invitation to invade the province of the jury by reweighing the evidence and

reassessing witness credibility.

                                      CONCLUSION

       As alleged prosecutorial misconduct was not fundamental error and there was

sufficient evidence to support Feyka’s conviction, we affirm.

       Affirmed.

FRIEDLANDER, J., and BARNES, J., concur.




                                              11
