Opinion
22A-CR-2604
08-22-2023
Charles A. Alexander, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Susan D. Rayl Harshman | Ponist Smith & Rayl Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Courtney Staton Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Shatrese M. Flowers, Judge Trial Court Cause No. 49D28-2006-F1-19872
ATTORNEY FOR APPELLANT
Susan D. Rayl
Harshman | Ponist Smith & Rayl
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Crone, Judge.
Case Summary
[¶1] Charles A. Alexander appeals his convictions for level 1 felony child molesting and two counts of level 4 felony child molesting. He contends that the deputy prosecutor committed misconduct which resulted in fundamental error. Concluding that he has not met his burden to establish that misconduct occurred, we affirm.
Facts and Procedural History
[¶2] The facts most favorable to the convictions follow. Starting around 2009 when C.M. was one year old, her mother Amber began dating Alexander. Alexander became a father figure to C.M. and her siblings. On one occasion when C.M. was "super young[,]" Alexander and C.M. were sitting in the living room of the house where they lived at the time, and Alexander was playing video games. Tr. Vol. 3 at 188. Alexander was sitting on a kitchen chair, and C.M. was on the floor next to him. Alexander unbuttoned his pants, pulled them down, and told C.M. to place her hand on his penis and "make an upward and downward motion." Id. at 189. C.M. did what Alexander told her to do.
[¶3] On another occasion, after the family had moved to their current home, C.M. and her siblings were outside jumping on the trampoline when Alexander came and "picked [C.M.] up" and "[brought her] into this-the little bathroom [...] by the kitchen." Id. at 191. Alexander started "touching [C.M.] very inappropriately, like, grabbing [her] breasts, telling [her] to suck his penis[.]" Id. After C.M. obliged Alexander's instruction to suck his penis, he told her to "spit it out" and wiped her face with "a random piece of clothing he [found] on the floor" and then told her to go brush her teeth. Id. at 197.
[¶4] Then, on yet another occasion while living in their current house, and while Amber was at work, C.M. was lying face down on the bedroom room floor and Alexander was on top of her. He touched her breasts and was "rubbing his penis" against her buttocks. Id. at 192. C.M. recalled that from when she was eight years old until she was eleven years old, Alexander touched her inappropriately "almost every week." Id. at 194. Alexander told her that if she "[told] on him, [C.M.] would end up getting arrested along with him." Id. C.M was afraid to tell anyone about the molestations because she was "scared of getting in trouble" and scared of her "mom being upset" with her, and she "was also scared of [her] little sisters and little brother losing their father." Id.
[¶5] In June 2020, eleven-year-old C.M. revealed to her older brother N.M. that Alexander had touched her inappropriately in the past. Either later that day or the following day, N.M. told Amber what C.M. had disclosed to him. After confirming what had happened with C.M., Amber was so upset that she grabbed a sign from outside the house and struck Alexander in the head. She then called 911 and made a report.
[¶6] The State charged Alexander with level 1 felony child molesting and two counts of level 4 felony child molesting. A jury trial was held in September 2022. During voir dire, the deputy prosecutor asked potential jurors what type of evidence they would need to convict a defendant of child molesting, and she also asked them what demeanor they might expect from a child who has been molested. Alexander did not object to this line of questioning. During closing argument, defense counsel argued:
C.M. is scared, right? She's scared of this man who told her she's going to jail if she talks to-if she tells anybody. But the minute that mom hits him in the head with the sign, she's out here, sticking up for herself. Yelling at him. This is not a girl that's afraid of the man that's been molesting her [her] entire life. You don't suddenly get the courage after four years to start yelling at your abuser. Not like that.Tr. Vol. 4 at 73. On rebuttal, the deputy prosecutor argued,
In regards to the disclosure, there is something that when we talk about sex abuse, a phrase that has started being used after the Me-Too movement called, Start by Believing. And why is that so powerful? So many people are afraid that they're not going to be believed. What C.M. does, is tells her brother. Look at his actions after she tells him. He believed her. She tells her mom. She's so upset, she hits him. These actions are Starting by Believing. They did empower her. She was terrified to tell. But no one questioned her. They believed her. And that's why she was embolden[ed]. That is why she found the strength to consistently say over and over, the defendant molested her.Id. at 77. Alexander did not object to the prosecutor's statements or request that the jury be admonished. At the conclusion of trial, the jury found Alexander guilty as charged. The trial court sentenced him to a thirty-year aggregate sentence. This appeal ensued.
Discussion and Decision
[¶7] Alexander challenges statements made by the deputy prosecutor during voir dire and closing argument. Specifically, he argues that certain questions and statements constituted misconduct because they "reduced the State's burden of proof, and shifted the burden of proof" to him. Appellant's Br. at 9. As a general matter, in reviewing a claim of prosecutorial misconduct, 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." Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citation omitted). "Whether a prosecutor's argument constitutes misconduct is measured by reference 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. (emphasis omitted). "To preserve a claim of prosecutorial misconduct, the defendant must-at the time the alleged misconduct occurs-request an admonishment to the jury, and if further relief is desired, move for a mistrial." Id.
[¶8] Here, because Alexander did not object to the deputy prosecutor's comments or request an admonishment, he must establish not only the grounds for prosecutorial misconduct but also that the prosecutorial misconduct constituted fundamental error. Id. at 667-68. "Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to make a fair trial impossible." Id. at 668. To establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because the alleged error constituted a clearly blatant violation of basic and elementary principles of due process and presented an undeniable and substantial potential for harm. Id. In evaluating whether fundamental error occurred, we look at the alleged misconduct in the context of everything that happened-including the evidence admitted at trial, closing arguments, and jury instructions. Id. A defendant is "highly unlikely" to prevail on a claim of fundamental error relating to prosecutorial misconduct. Id.
[¶9] We need not reach the fundamental error issue, as Alexander has not established the grounds for prosecutorial misconduct. Starting with the deputy prosecutor's questioning of potential jurors during voir dire, we note that "[t]he purpose of voir dire is to determine whether a prospective juror can render a fair and impartial verdict in accordance with the law and the evidence." Joyner v. State, 736 N.E.2d 232, 237 (Ind. 2000). Thus, parties may "inquire into jurors' biases or tendencies to believe or disbelieve certain things about the nature of the crime itself or about a particular line of defense." Glover v. State, 179 N.E.3d 526, 533 (Ind.Ct.App. 2021) (citation omitted), trans. denied (2022). Here, after reviewing the record, we discern that the deputy prosecutor's line of questioning was simply exploring whether any of the potential jurors had the preconceived incorrect notion that more evidence than just the victim's uncorroborated testimony was needed to convict a defendant of child molesting. See Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (noting that the uncorroborated testimony of a victim is sufficient to sustain a criminal conviction). This was a proper inquiry by the deputy prosecutor, as such a preconception would call into question a juror's ability to render a fair and impartial verdict in accordance with the law and the evidence. Additionally, the prosecutor's questions regarding what jurors expected as far as the demeanor of a victim was a similar attempt to determine whether the jurors could be impartial. The deputy prosecutor's line of questioning was not misconduct.
[¶10] Regarding the deputy prosecutor's statements during rebuttal closing argument, it is well established that "[p]rosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable." Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004). Here, the deputy prosecutor was directly responding to defense counsel's challenge to C.M.'s credibility, the length of time it took her to come forward, and why she was unable to be more specific about the timing of each instance of molestation. Contrary to Alexander's assertions, this did not inappropriately shift the burden of proof to him. Nevertheless, it is undisputed that the jury was properly instructed on the State's burden of proof so as to cure any confusion. See Pritcher v. State, 208 N.E.3d 656, 665 (Ind.Ct.App. 2023) ("[O]ur courts have long held that any misstatement of law during closing arguments is presumably cured by the trial court's final jury instructions."). Thus, even assuming misconduct, Alexander has failed to establish that he was placed in a position of grave peril.
[¶11] Because Alexander has failed to establish the grounds for prosecutorial misconduct, he has not established that any error occurred, much less fundamental error. His convictions are affirmed.
[¶12] Affirmed.
Brown, J., and Felix, J., concur.