MEMORANDUM DECISION
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                              FILED
the defense of res judicata, collateral                              Jul 27 2017, 11:19 am
estoppel, or the law of the case.
                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark S. Lenyo                                            Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Mincey, Jr.,                                       July 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1611-CR-2720
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-1503-F3-8



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017          Page 1 of 21
                                          Case Summary
[1]   In September of 2014, J.T. was living in Indianapolis and working as a home

      assistant aid for elderly persons. On September 14, 2014, J.T. took a bus to

      South Bend for the purpose of visiting family who lived in the area. Later that

      evening, J.T. decided to walk from her aunt’s home to a nearby club called

      Amvets. While walking to the club, J.T. was approached by Appellant-

      Defendant James Mincey, Jr., who offered to give her a ride to the club.

      Mincey, however, did not take J.T. straight to the club. Instead he took her to

      his home, forced her inside, and battered and anally raped her. Mincey

      eventually dropped J.T. off at the club. J.T. hid in the bushes outside the club

      and notified police. After police arrived, J.T. identified Mincey as her assailant

      and led police to his home.


[2]   With respect to his actions involving J.T., Mincey was subsequently charged

      with and convicted of Level 3 felony rape and Class A misdemeanor battery

      resulting in bodily injury. On appeal, he challenges his rape conviction, arguing

      that (1) the trial court abused its discretion by improperly limiting his cross-

      examination of J.T. and (2) the deputy prosecutor committed prosecutorial

      misconduct during his closing argument. We affirm.



                            Facts and Procedural History
[3]   J.T. is a mother and grandmother. In September of 2014, J.T. was living in

      Indianapolis and working as a home assistant aid for elderly persons. On


      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 2 of 21
      September 14, 2014, J.T. took a bus from Indianapolis to South Bend so that

      she could visit family members who lived there. J.T. arrived in South Bend

      during the mid- to late-afternoon. Upon arriving, J.T. called her cousin and got

      a ride to her aunt’s house. Over the next few hours, J.T. spent time with family

      at her aunt’s house. J.T. subsequently indicated that “[w]e sat around. We

      laughed, talked like we always do. We ate and had a few beers. Well, of

      course, everybody was all together.” Tr. Vol. II, p. 59.


[4]   Later that evening, J.T. decided to walk to a nearby dance club and bar called

      Amvets. J.T. indicated that she would normally go to Amvets during her visits

      to South Bend because “that’s the only place I know I can go and see all my old

      friends and family members be there, you know. And [on past visits] I’ve ran

      [sic] into people I haven’t seen in years.” Tr. Vol. II, p. 57.


[5]   While J.T. was walking to Amvets, Mincey approached her in a “grayish

      SUV,” asked where she was going, and offered her a ride. Tr. Vol. II, p. 62.

      J.T. accepted the ride. While en route to Amvets, J.T. and Mincey stopped at a

      service station where Mincey bought cigarettes and a cup of ice. Upon leaving

      the service station, however, Mincey did not take J.T. to Amvets. Instead,

      Mincey “turned off down a real dark like alley where there’s like trees

      everywhere.” Tr. Vol. II, p. 65. J.T. indicated that


              [Mincey] was going really, really fast, and I was like, well, you
              know the Amvets is the other way. And he was saying he had to
              stop somewhere, you know. And then I was like – that’s when I
              kinda got feeling nervous because you can’t see on either side of
              you. You know, it’s just a lot of trees, a lot of trees all the way

      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 3 of 21
              down. And he just kept going. And I was saying what I was
              saying. He was focusing on -- you know, he was just doing what
              he -- you know, he wouldn’t listen to me. He just kept going.


      Tr. Vol. II, pp. 65-66. Mincey would not look at J.T., but kept driving until he

      came to a stop behind a white house.


[6]   Once the vehicle stopped, Mincey told J.T. to “get out, we’re going in.” Tr.

      Vol. II, p. 67. J.T. “wasn’t going to go in” because she “didn’t feel

      comfortable” doing so. Tr. Vol. II, p. 67. However, the next thing she knew

      Mincey punched her in the head and after which she “was seeing stars.” Tr.

      Vol. II, p. 67. Mincey then “forced [J.T.] into the house.” Tr. Vol. II, p. 69.

      After forcing J.T. into the house, Mincey “made [her] take [her] clothes off.”

      Tr. Vol. II, p. 69. J.T. indicated that after Mincey ordered her to remove her

      clothing,


              I was standing there and I was looking at him. And I was
              fidgeting around kind of like, but he just started hitting me all up
              side my head and, you know, in my jaw. And like I said, it
              wasn’t love taps. I mean he was -- I mean I was just seeing stars,
              and I just started taking the stuff off. You know, I didn’t know
              what to do.


      Tr. Vol. II, p. 70. J.T. was “terrified” but did as Mincey ordered. Tr. Vol. II, p.

      71.


[7]   After J.T. removed her clothing, Mincey “forced [J.T.] over this couch” by

      using his elbows to force her “neck down” and continuing to hit her. Tr. Vol.

      II, p. 71. Mincey then “started having anal sex with” her. Tr. Vol. II, p. 71.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 4 of 21
      J.T. was fighting him even though “every time [she] would twist or move, he

      would hit [her].” Tr. Vol. II, p. 71. J.T. indicated that there were “no words”

      for the amount of pain that she felt when Mincey penetrated her anus. Tr. Vol.

      II, p. 72.


[8]   At some point, J.T. realized that Mincey was going to really hurt her if she kept

      resisting because the more she resisted, “the more force he put down on [her]

      head and the more he would hit [her] in the side of [her] head.” Tr. Vol. II, p.

      72. J.T. realized that she “didn’t have no win” because Mincey was a big,

      strong guy. Tr. Vol. II, p. 72. J.T. indicated that the attack “wasn’t nothing

      nice” and seemed to have “lasted hours.” Tr. Vol. II, p. 72. J.T. further

      indicated that Mincey “didn’t care … [h]e wanted what he wanted, and he took

      it.” Tr. Vol. II, p. 72. J.T. eventually quite resisting and “just prayed to God”

      because “[t]hat’s all [she] could do.” Tr. Vol. II, p. 73.


[9]   Mincey stopped his attack when J.T. indicated that she needed to use the

      bathroom. J.T. had hoped that there would be a window in the bathroom

      through which she could escape. This was not the case, however. Mincey

      stood in the open bathroom door watching J.T. After J.T. attempted to use the

      bathroom, Mincey “forced [her] back over the couch” and continued to forcibly

      anally penetrate her. Tr. Vol. II, p. 78. J.T. subsequently described Mincey’s

      actions as being “painful.” Tr. Vol. II, p. 80. Mincey “jumped up” and

      stopped the attack when J.T. “set [ ] off” a can of roach spray which she found

      on the floor. Tr. Vol. II, p. 81. Mincey ordered J.T. to put her clothes on

      before leading her out of the house, putting her in his vehicle, and taking her to

      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 5 of 21
       Amvets. Mincey dropped J.T. off at Amvets. Upon discovering that Amvets

       had closed for the evening, J.T. “hid in the bushes and called the police.” Tr.

       Vol. II, p. 82.


[10]   When South Bend Police Officer Andrew Jackson arrived at the scene, J.T. was

       “very upset.” Tr. Vol. II, p. 38. She was crying and “was frantically waving

       her arms to try to get [the officer’s] attention.” Tr. Vol. II, p. 38. Officer

       Jackson “could immediately tell that [J.T.] needed help.” Tr. Vol. II, p. 38.

       Officer Jackson unsuccessfully attempted to identify the location of the attack

       before taking J.T. to the hospital. Once at the hospital, J.T. was found to

       having bruising and swelling on the side of her face. J.T. complained of

       “having a large amount of rectal tenderness” and was found to have an “anal

       fissure which is a tear in the skin” near the rectum. Tr. Vol. II, pp. 170, 177.

       J.T. also suffered from “recent incontinence of stool” which occurs “when the

       muscles around the rectum can’t hold stool in and stool sips out from the rectal

       area.” Tr. Vol. II, pp. 191, 190. Both the anal fissure and incontinence of stool

       can be signs of anal rape. J.T. later identified Mincey as her attacker and led

       police to the location of the attack.


[11]   On March 9, 2015, Appellee-Plaintiff the State of Indiana (“the State”) charged

       Mincey with Counts I through III – Level 3 felony rape, Count IV – Level 5

       felony criminal confinement, Counts V and VI – Level 3 felony rape, and

       Count VII – Class A misdemeanor battery resulting in bodily injury. Because

       the charges related to two separate victims, on March 24, 2016, the trial court

       severed Counts I through IV from Counts V through VII. A jury trial

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 6 of 21
       commenced on Counts V through VII on August 15, 2016. Following the

       conclusion of trial, the jury found Mincey guilty of Counts VI and VII, but not

       guilty of Count V.1 Mincey subsequently pled guilty to Count I. In exchange

       for Mincey’s guilty plea, the State agreed to dismiss Counts II through IV. On

       November 1, 2016, the trial court imposed an aggregate twelve-year sentence.

       This appeal follows.



                                    Discussion and Decision
                                      I. Exclusion of Evidence
[12]   Mincey contends that the trial court abused its discretion by excluding evidence

       relating to J.T.’s prior 2004 prostitution conviction. On appeal, “[w]e afford

       broad discretion to a trial court’s decisions on whether to admit or exclude

       evidence, and review such decisions for abuse of discretion.” Conrad v. State,

       938 N.E.2d 852, 855 (Ind. Ct. App. 2010). “An abuse of discretion occurs

       when the trial court’s ruling is clearly against the logic of the facts and

       circumstances before it.” Id. (citing Oatts v. State, 899 N.E.2d 714, 719 (Ind. Ct.

       App. 2009)).


[13]   Mincey argues that the trial court abused its discretion by ruling that he could

       not ask J.T. about her 2004 prostitution conviction during cross examination.

       We observe that despite the trial court’s ruling that Mincey could not cross-




       1
           Count V alleged that Mincey vaginally raped J.T.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 7 of 21
examine J.T. by questioning her about her prior prostitution conviction, the

trial court did allow Mincey to question J.T. extensively about whether she was

engaged in prostitution on the night in question. During cross examination, the

following exchanges took place between defense counsel and J.T.:


        Q      Okay. And you saw Mr. Mincey driving by; isn’t that
        right?
        A      I saw him when he asked me did I want a ride, yes.
        Q      Okay. You in fact waved him over, didn’t you?
        A      No, I didn’t.
        Q      You didn’t go up to his window and stick your head in
        and start talking with him?
        A      No, I didn’t.
        Q      And you didn’t engage in some little banter with him
        about wanting to party?
        A      Not at all.
        Q      Not at all. Okay. Yet after he pulls over you get into the
        car with him. Right?
        A      Yes.


Tr. Vol. II, pp. 119-20.

        Q     All right. And when you got to the house, you willingly
        went into the house; isn’t that right?
        A     No.
        Q     And you willingly took your clothes off, didn’t you?
        A     No, I didn’t.
        Q     In fact Mr. Mincey had asked you to perform sex for
        money; isn’t that right?
        A     No, it’s not.
        Q     Okay. So you’re saying you didn’t offer to have sex with
        him for money that evening?
        A     No.
        Q     Is that something you’d never do?

Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 8 of 21
               A      Have sex for money? No.
               Q      You’d never do that?
               A      Have sex for money? No. I didn’t have a reason to have
               sex for money.
               Q      Okay. Is that something you would never do?
               A      No, I’m not going to have sex for money. No.
               Q      Okay.
               A      This date, no.


       Tr. Vol. II, pp. 129-30.


[14]   At this point, defense counsel requested permission to approach the trial judge

       and the following side bar was held out of the hearing of the jury:

               [Defense Counsel]: At this time I would like to impeach her by
               way of a conviction for Prostitution. At her deposition she lied
               and said she had no convictions for prostitution. I did find that
               she does have one. Number one, she lied about it in her
               deposition. Number two, she opened the door by saying she
               would never have sex for money.
               [The Court]:         Go ahead, State.
               [The State]:         This is going square against rape shield. He
               has put this into issue himself. You can’t open your own door
               here, and that’s what he is trying to do. At no point did we ask
               anything related to this. This was all his questioning.
               [Defense Counsel]: Well, it is our defense that she offered to have
               sex with him for money.
               [The State]:         And in addition to that she said in this day
               and age, no. I would not. This conviction looks like it’s around -
               -
               [Defense Counsel]: 2004.
               [The State]:         Yeah.
               [The Court]:         I have to tell you that I am generally in
               agreement with the State in regard to this prior conviction. But
               you tell me why you think it comes in.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 9 of 21
               [Defense Counsel]: It comes in because she has flat out denied
               that she would have sex for money and this is rebutting our
               defense. And she’s also testifying that she would not have sex for
               money which we know is not true. And on top of that, she was
               specifically asked --
               [The Court]:          So you think it comes in because of why? To
               impeach her?
               [Defense Counsel]: Well, to impeach her.
               [The State]:          Your Honor, that’s akin to in a domestic
               battery trial me asking the defendant who is on the stand you
               would never hit a woman, would you? And then say, oh, I get to
               talk about 404(b) now. You don’t get to open your own door. If
               she were to say it on her own, you know, I would never have sex
               for money, it might be different. But this --
               [The Court]:          Yeah, I think I’m going to sustain the
               objection. I’m not going to let you get into the prostitution
               conviction.
               [Defense Counsel]: Okay.


       Tr. Vol. II, pp. 130-31.


[15]   Defense counsel later revisited the subject of prostitution, engaging in the

       following exchange with J.T.:


               Q     Okay. So you didn’t agree to go back to Mr. Mincey’s
               house and have sex with him in exchange for money?
               A     No.
               Q     And you weren’t working as a prostitute that night?
               A     No, I’m a home assistant aide, sir. I take care of elderly
               people. I had a paycheck. I work for my living.


       Tr. Vol. II, p. 143. J.T. further admitted that she receives social security

       disability benefits due to the fact that she has been diagnosed as being both

       bipolar and schizophrenic. Following the conclusion of J.T.’s testimony, a
       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 10 of 21
       member of the jury submitted the following question: “Does J.T. have a history

       of prostitution?” Tr. Vol. II, p. 152. The trial court, however, did not ask J.T.

       this question.


[16]   The trial court excluded the testimony regarding J.T.’s prior conviction for

       prostitution because evidence of a victim’s past sexual conduct is not admissible

       except as provided in Indiana’s Rape Shield Rule, Indiana Evidence Rule 412.

       See Williams v. State, 681 N.E.2d 195, 200 (Ind. 1997). Evidence Rule 412

       provides, in relevant part, as follows:


               (a) Prohibited Uses. The following evidence is not admissible in
               a civil or criminal proceeding involving alleged sexual
               misconduct:
                       (1) evidence offered to prove that a victim or witness
                       engaged in other sexual behavior; or
                       (2) evidence offered to prove a victim’s or witness’s
                       sexual predisposition.
               (b) Exceptions.
                       (1) Criminal Cases. The court may admit the
                       following evidence in a criminal case:
                              (A) evidence of specific instances of a
                              victim’s or witness’s sexual behavior, if
                              offered to prove that someone other
                              than the defendant was the source of
                              semen, injury, or other physical
                              evidence;
                              (B) evidence of specific instances of a
                              victim’s or witness’s sexual behavior
                              with respect to the person accused of the
                              sexual misconduct, if offered by the
                              defendant to prove consent or if offered
                              by the prosecutor; and


       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 11 of 21
                        (C) evidence whose exclusion would
                        violate the defendant’s constitutional
                        rights.
                                            ****
         (c) Procedure to Determine Admissibility.
                (1) Motion. If a party intends to offer evidence under
                Rule 412(b), the party must:
                        (A) file a motion that specifically
                        describes the evidence and states the
                        purpose for which it is to be offered;
                        (B) do so at least ten (10) days before
                        trial unless the court, for good cause,
                        sets a different time;
                        (C) serve the motion on all parties; and
                        (D) notify the victim or, when
                        appropriate, the victim’s guardian or
                        representative.
                (2) Hearing. Before admitting evidence under this
                rule, the court must conduct an in camera hearing and
                give the victim and parties a right to attend and be
                heard. Unless the court orders otherwise, the
                motion, related materials, and the record of the
                hearing is confidential and excluded from public
                access in accordance with Administrative Rule 9.


(Emphases in original).2




         2
           The Indiana Supreme Court has held that Indiana’s Rape Shield Statute does not violate
         a defendant’s Sixth Amendment right to confront witnesses absent a showing of actual
         impingement on cross examination. Thomas v. State, 471 N.E.2d 677, 679 (Ind. 1984), reh’g
         denied. Thus, the trial court’s exclusion of evidence must not prevent the defendant from
         conducting a full, adequate, and effective cross-examination. See Lagenour v. State, 268 Ind.
         441, 444-45, 376 N.E.2d 475, 478 (1978).

Oatts, 899 N.E.2d at 722. The above-quoted language demonstrates that the trial court’s exclusion of
evidence relating to J.T.’s approximately ten-year-old prostitution conviction did not impinge Mincey’s cross
examination of J.T. as it did not prevent Mincey from conducting a full, adequate, and effective cross-

Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017             Page 12 of 21
[17]   Our review of the record reveals that none of the exceptions set forth in Rule

       412(b)(1) apply to the instant case. J.T.’s prior prostitution conviction dated

       back to 2004, and there is no indication or allegation that Mincey was in any

       way involved in J.T.’s prior sexual acts. Rather, the evidence offered here was

       of the classic sort precluded by the Rape Shield Rule: purported incidents with

       other men at other times offered simply to show that J.T. had consented in the

       past in the hope the inference will be drawn that she consented here.


                Rule 412 was enacted to prevent just this kind of generalized
                inquiry into the reputation or past sexual conduct of the victim in
                order to avoid embarrassing the victim and subjecting the victim
                to possible public denigration. Stephens v. Miller, 13 F.3d 998,
                1002 (7th Cir. 1994), cert. denied, 513 U.S. 808, 115 S.Ct. 57, 130
                L.Ed.2d 15. The Rule reflects a policy first embodied in
                Indiana’s Rape Shield Act, Indiana Code § 35-37-4-4, that
                inquiry into a victim’s prior sexual activity is sufficiently
                problematic that it should not be permitted to become a focus of
                the defense. Rule 412 is intended to prevent the victim from
                being put on trial, to protect the victim against surprise,
                harassment, and unnecessary invasion of privacy, and,
                importantly, to remove obstacles to reporting sex crimes. See id.


       Williams, 681 N.E.2d at 200.


[18]   In Williams, the Indiana Supreme Court went on to state the following:




       examination. Mincey was permitted to question J.T. at length about whether she was engaged in prostitution
       on the night in question. As such, the trial court’s exclusion of the evidence relating to J.T.’s 2004 conviction
       for prostitution did not violate Mincey’s Sixth Amendment right to confront witnesses.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017               Page 13 of 21
               Balanced against these considerations is the defendant’s right to
               present relevant evidence. For this reason, Rule 412 permits
               evidence of the defendant’s past experience with the victim, but
               does not permit a defendant to base his defense of consent on the
               victim’s past sexual experiences with third persons. The
               allegation of prostitution does not affect this calculus. We agree
               with the Fourth Circuit’s view that it is “intolerable to suggest
               that because the victim is a prostitute, she automatically is
               assumed to have consented with anyone at any time.” United
               States v. Saunders, 943 F.2d 388, 392 (4th Cir. 1991), cert. denied,
               502 U.S. 1105, 112 S.Ct. 1199, 117 L.Ed.2d 439 (1992).
               Moreover, even when evidence does fall within one of Rule 412’s
               exceptions and is admissible, it is still subject to Evidence Rules
               401 and 403. In this case, the evidence would shift the jury’s
               attention away from the defendants’ actions to the past acts of
               the victim. Any probative value is “substantially outweighed by
               the danger of unfair prejudice.” Evid. R. 403. Thus, the trial
               court properly excluded the evidence.


       Id. at 200-01. We find the Williams Court’s conclusion to be instructive and

       reach the same conclusion here.


[19]   Further, review of the record reveals that Mincey, i.e., the party seeking to

       introduce the evidence relating to J.T.’s prior prostitution conviction, did not

       file a motion as required by the procedures set for in Evidence Rule 412(c) for

       determining whether such evidence should be admitted at trial. Mincey did not

       inform the trial court, the State, or J.T. prior to trial that it intended to

       introduce such evidence or describe the evidence or state the purpose for such

       evidence. In light of Mincey’s failure to provide timely written notice as

       required by Evidence Rule 412(c), any evidence related to J.T.’s prior sexual

       conduct was properly excluded. See Conrad, 938 N.E.2d at 856 (providing that

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 14 of 21
       in light of the requirements of Evidence Rule 412(c), “Conrad’s failure to

       provide timely written notice required exclusion of any evidence related to any”

       prior sexual conduct of the victim); Sallee v. State, 785 N.E.2d 645, 651 (Ind. Ct.

       App. 2003) (providing that the defendant’s failure to comply with the

       requirements of Evidence Rule 412 “precluded her from presenting evidence of

       the victim’s past sexual history” and that the failure “also results in waiver of

       this issue on appeal”), trans. denied. As such, we conclude that the trial court

       did not abuse its discretion in excluding evidence relating to J.T.’s prior sexual

       conduct.


                                II. Prosecutorial Misconduct
[20]   Mincey also contends that the deputy prosecutor committed prosecutorial

       misconduct during his closing argument.


               In 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.
               Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), quoted in Castillo
               v. State, 974 N.E.2d 458, 468 (Ind. 2012). A prosecutor has the
               duty to present a persuasive final argument and thus placing a
               defendant in grave peril, by itself, is not misconduct. Mahla v.
               State, 496 N.E.2d 568, 572 (Ind. 1986). “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.” Cooper, 854 N.E.2d at 835 (emphasis added) (citations
               omitted). To preserve a claim of prosecutorial misconduct, the

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 15 of 21
               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. Id.; see also Maldonado v. State, 265
               Ind. 492, 498, 355 N.E.2d 843, 848 (1976).


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


[21]   During closing argument, the deputy prosecutor made the following argument:

               Let’s talk about what you saw there yesterday, her demeanor on
               the stand. She was testifying about the worse [sic] day in her life,
               the day in which her anus was lacerated when she had to go to
               the hospital and have a rape kit done. She described the sexual
               assault. Then defense began asking questions. And I want you
               to think back about how those questions were asked. Think
               about the demeanor of not just J.T. but how those questions were
               asked to her. Were those questions asked in the same way that
               questions were asked to other witnesses? Was the doctor asked
               questions in the same manner? Or the DNA experts? Were the
               officers? No. That was reserved for J.T. And it wasn’t
               necessarily polite. It doesn’t have to be, but it makes sense that
               she would be upset about it. Not only that, but she was called a
               prostitute while she was sitting on the stand. After describing a
               violent anal rape, she got called a prostitute. Think back to her
               head whipping over and looking when that question was asked.
               Who wouldn’t be upset by that?


       Tr. Vol. III, pp. 122-23. At the same time as the deputy prosecutor was making

       this argument, he displayed a PowerPoint slide to the jury which stated the

       following:

               Demeanor
               • Demeanor on the Stand


       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 16 of 21
                        ∙ She had just finished testifying about the worst day
                        in her life
                               ∙ She graphically described a violent
                               sexual assault
                               ∙ Then, the Defense began asking
                               questions - How were those questions
                               asked?
                               ∙ In addition to that, he accused her of
                               being a prostitute
                        ∙ She’s Angry -
                               ∙ SO WHAT?
                               ∙ Can You Tell Me How a Rape Victim
                               Should Act?


       Tr. Vol. IV, p. 67 (emphasis in original).


[22]   At this point, defense counsel requested permission to approach and the

       following exchange occurred outside of the hearing of the jury:

               [Defense Counsel]: This is inappropriate argument by the State.
               They know she has a conviction for prostitution. That was
               brought to their attention, and he’s arguing -- he is in fact taking
               that and arguing that. That is inappropriate. That is
               prosecutorial misconduct.
               [The State]:         At no point did I say she wasn’t convicted. I
               didn’t even comment on that. All I said was she accused of it
               right after she got done testifying about a rape. I think that’s
               relevant.
               [The Court]:         Now, wait a minute though. You did object
               to him bringing up -- and I kept that out. And now when he
               can’t respond to that, you’re bringing it up that he accused her of
               being a prostitute when you know for a fact that – there’s nothing
               he can do in response to that. And you know she has a
               conviction for that.
               [The State]:         From ten years ago.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 17 of 21
        [The Court]:         But still --
        [The State]:         And I’ve just talked about this night.
        [Defense Counsel]: He has it up on his PowerPoint. In addition
        to that, he accused her of being a prostitute.
        [The Court]:         So what do we do now?
        [Defense Counsel]: I mean I’m moving for a mistrial.
        [The State]:         Is the peril so grave that there’s no way that
        he can receive a fair trial?
        [The Court]:         Okay. So how do we correct that problem?
        [The State]:         The same way we did when he was asking
        her the question on the stand.
        [The Court]:         What’s that?
        [The State]:         Instruct the jury that they can use their
        memory of the questions --
        [The Court]:         But the issue is -- the issue is that you
        objected to him getting into the prostitution even after she denies
        she had a conviction for being a prostitute. And I said you’re
        right; I’m going to keep that evidence out. Then you turn around
        and the impression that you create is that she was not being a
        prostitute and she did not have a conviction for being a prostitute
        --
        [The State]:         Correct --
        [The Court]:         Hear me out. At a point where he can’t say
        anything to rebut that.
        [The State]:         I would be happy to clarify and say that she
        was being accused of being a prostitute that day and she was
        upset about that.
        [Defense Counsel]: Well, here’s the problem --
        [The State]:         I think that clarification is enough.
        [Defense Counsel]: The problem is that one of these jurors
        actually asked a question asking her about that. We were unable
        to give that evidence to the jury because of the State’s objection.
        [The State]:         And I am not even talking -- we’re talking
        about two separate lines of questions here. I am talking about
        when he said --
        [The Court]:         Here’s what we’re going to do. You’re going
        to move on from this subject. I’m going to instruct the jury that

Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 18 of 21
               that argument that you just made in regard to being accused of
               being a prostitute was inappropriate for you to make --
               [The State]:        Okay. That’s fair.
               [The Court]:        -- given the rulings in this case. And you’re
               to move on.
               [The State]:        Okay.


       Tr. Vol. III, pp. 123-25. The trial court then gave the following admonishment

       to the jury:


               Okay. The last argument that was made -- or you see in the
               PowerPoint, in addition to that he’s accused her of being a
               prostitute, was an improper argument for the State to have made.
               And I’m going to ask you to ignore that part of his closing
               argument. It’s not evidence of anything. It was inappropriate.
               We dealt with this issue before. It was inappropriate for him to
               bring it up and argue it. So ignore it. It’s not a reflection on him
               or on the State, but just ignore that portion of the argument.


       Tr. Vol. III, p. 126. Mincey did not object to this admonishment.


[23]   Mincey claims that the deputy prosecutor “[u]ndeniably” committed

       prosecutorial misconduct in his closing argument because he (1) “implied that

       J.T. had no history or convictions for prostitution, when in fact the prosecutor

       was aware of such a conviction” and (2) “resisted every attempt by the defense

       to bring out” information indicating that J.T. had lied during her deposition

       about ever being convicted of prostitution. Appellant’s Br. p. 20. Mincey

       further claims that the deputy prosecutor’s closing argument “clearly implied

       that J.T. had no history of prostitution and was being unjustly accused of acts of



       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 19 of 21
       prostitution and that it was understandable why she would be upset being

       accused of being a prostitute.” Appellant’s Br. p. 20.


[24]   Our review of the State’s comments and PowerPoint presentation convince us

       that contrary to Mincey’s claims, the deputy prosecutor was referring to the

       contemporaneous allegations made by Mincey that J.T. was involved in

       prostitution on the night in question and in no way implied that J.T. had no

       history or convictions for prostitution. Mincey acknowledges that throughout

       the trial, “the defense had consistently advanced a theory of an act of

       prostitution that went bad.” Appellant’s Br. p. 20. As is mentioned above, the

       trial court had allowed Mincey to question J.T. at length about whether she was

       engaged in prostitution on the night in question. The fact that J.T. had engaged

       in prostitution on at least one occasion in 2004 does not prove that she was

       engaged in prostitution in 2014. Mincey did not present any evidence

       indicating that J.T. was engaged in prostitution in 2014, and J.T. flatly denied

       each allegation raised by Mincey that she was engaged in prostitution on the

       night in question. It is not unreasonable that a witness would be upset about

       being alleged to currently be a prostitute, even if one had committed

       prostitution on at least one occasion at least ten years prior. Further, given

       Indiana’s Rape Shield Rule, the State was correct to resist every attempt by the

       defense to “bring out” information relating to prior sexual acts of an alleged

       rape victim. As such, we conclude that the deputy prosecutor’s comments did

       not amount to prosecutorial misconduct.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 20 of 21
[25]   Furthermore, even if the deputy prosecutor’s comments could be deemed to

       amount to prosecutorial misconduct, Mincey has failed to establish that such

       comments placed him in a position of grave peril to which he would not have

       been otherwise subjected. First, as the State notes, the deputy prosecutor’s

       comments did not add anything to the evidence, as Mincey repeatedly

       insinuated that J.T. was engaged in prostitution on the night in question.

       Second, the trial court admonished the jury that the deputy prosecutor’s

       comments were merely argument, not evidence, and should be ignored. We

       assume that “‘the jury are [persons] of sense, and that they will obey the

       admonition of the court.’” Thomas v. State, 9 N.E.3d 737, 743-44 (Ind. Ct. App.

       2014) (quoting Moore v. State, 669 N.E.2d 733, 741 (Ind. 1996)) (brackets

       added). Absent an argument that the admonishment was ineffective, which

       Mincey does not make on appeal, we conclude that the trial court’s curative

       instruction defused the impact of the State’s allegedly improper comments. Id.

       at 744 (citing Bernard v. State, 540 N.E.2d 23, 25 (Ind. 1989); Parsons v. State, 472

       N.E.2d 915 (Ind. 1985)).


[26]   The judgment of the trial court is affirmed.


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2720 | July 27, 2017   Page 21 of 21
