Opinion
23A-CR-2133
07-19-2024
Michael W. Simpson, Jr., and Tequilla Simpson, Appellants-Defendants v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANTS David W. Stone IV Stone Law Office & Legal Research Anderson, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Supervising 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Madison Circuit Court The Honorable Angela G. Warner Sims, Judge Trial Court Cause Nos. 48C01-2009-F1-2163 48C01-2009-F1-2183
ATTORNEY FOR APPELLANTS David W. Stone IV Stone Law Office & Legal Research Anderson, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE.
[¶1] Michael W. Simpson, Jr., and Tequilla Simpson (together, "the Simpsons") were tried jointly and convicted of committing multiple felonies against Tequilla's daughter, and Michael's stepdaughter, C.H., including child molesting, neglect of a dependent, vicarious sexual gratification, and performance before a minor that is harmful to minors. They appeal their convictions arguing the trial court abused its discretion in several instances and that fundamental error occurred during the State's closing argument. We affirm.
Facts and Procedural History
[¶2] C.H. was born on February 18, 2008. She lived with her mother, Tequilla, and her father, Charles Hoskins, until her parents divorced and Tequilla started dating Michael when C.H. was around seven or eight years old. At some point, Tequilla and Michael married. C.H spent four nights a week with Tequilla and Michael, and three nights a week with Hoskins. Tequilla and Michael lived in a home in Summitville with C.H.'s older half-brothers, A.H., and P.I., and Michael's daughters, A.S., C.S., and Al.S. Because the other children also split time or lived primarily with another parent, C.H. and A.H. were often the only children present in the home.
C.H.'s half-brother P.I. spent a considerable amount of time outside of Tequilla's home with his father. A.H.'s father lived in Kentucky so A.H. did not spend as much time outside of the home.
[¶3] In February 2018, C.H. turned ten years old. For her tenth birthday, C.H. picked to celebrate at Ruby Tuesday's in Muncie. Tequilla laid out two outfits for C.H. to choose from, which included two of Tequilla's dresses and a thong. C.H. "got to pick [her] dress" and "they had [her] wear a thong." Transcript Volume III at 186. C.H. had never worn a thong before. It was "lacy" and "uncomfortable." Id. at 188. Michael sat next to C.H. at the restaurant and slid "his hand under [her] dress and under [her] thong" touching "[her] vagina." Id. at 189. He "would just move [his hand] around and like rub on" "both" the inside and outside of "[her] vagina[,]" and this "happened a few times" during the dinner. Id. at 190-191.
[¶4] While C.H. was ten years old and living in the Summitville home, she and her mother "would do like lingerie shows" for Michael. Id. at 192. Tequilla would "lay out [lingerie] pieces on the bed" that "were very see-through and not very much coverage." Id. Tequilla and C.H. would put on the pieces and "go out into the living room and there'd be music playing" and they would just "dance around." Id. at 193. A.H. was present for these shows "a couple of times." Id. Sometimes Tequilla would give Michael a "lap dance" and "start like rubbing her butt all over him and just dancing, but like on him" and he would have his hands on "her hips" and "moving her around" in "a circular motion back and forth." Id. at 194-195. When Tequilla would "do it to Michael[,]" then C.H. would "do it to A.H." and "there were a couple of times" that C.H. gave a lap dance to Michael. Id. at 195. Michael would grab C.H.'s "hand and pull [her] over" to him and "move [her] hips in like a circular motion or back and forth" as he had done with Tequilla. Id. at 196. C.H. could feel Michael's "penis through his pants." Id.
[¶5] Once during the same time period, Tequilla and C.H. cooked dinner while wearing lingerie. Tequilla "jumped on Michael and like wrapped her legs around him" while "they were facing each other." Id. at 198. Michael was "touching" Tequilla and put his fingers inside her vagina. Id. at 199. Michael then had C.H. "do the same thing." Id. C.H. "jumped on him and he . . . put his fingers inside [her] vagina as well." Id. Michael asked C.H. to come back to his and Tequilla's bedroom and had her "stand up on the bed and face him" and put her arms around "his neck." Id. at 200. While she was standing on the bed, he "stuck his fingers inside [her] vagina." Id.
[¶6] Tequilla and Michael's bed had ropes tied to the legs and C.H. witnessed several instances of sexual activity between them. She remembered a few times when her mother was bound with the ropes while naked. C.H. was also "tied down a couple of times" by both Tequilla and Michael, and Michael used a "sex toy" with a feather on the end of it to "like tickle [her] vagina" while Tequilla "was sitting on the bed" watching. Id. at 203-204. Tequilla would show C.H. sex toys kept in the bedroom, explain how to use them, and C.H. saw Michael use one of the "dildos on [her] mom." Id. at 208. One time, Tequilla and Michael had C.H. "come in their room and sit on the bed while they had sex" and they "would just ask [her] if [she] knew what certain things were," and when Michael ejaculated, they'd ask [her] if [she]knew what" the "[w]hite stuff" was that she observed "come out of their bodies." Id. at 208-209. A few times, Michael made C.H. "touch his penis with [her] hands" and move her "hand in an up and down motion" until "white stuff" came out. Id. at 210. Michael would make C.H. "rub [the white stuff] on his penis." Id. at 211. Tequilla also took pictures of C.H. and one of Michael's daughters, C.S., while the girls were dressed in lingerie. On five to ten occasions, Michael "ma[d]e" C.H. and her half-brother A.H. "get undressed and lay together." Id. Michael would "tell" the children to "touch each other" "in the vagina and penis." Id. at 212.
[¶7] C.H. stopped living with Tequilla and Michael and stayed with her father, Hoskins, for about nine months beginning in May of 2018 after Tequilla hit her. C.H. started spending time with Tequilla and Michael again in August of 2018. In November 2018, the mother of A.S., one of Michael's daughters, brought her to the Madison County Sheriff's Department to make a statement that included reporting that Tequilla would have C.H., A.S., and C.S. dress in lingerie and "parad[e] around." Transcript Volume IV at 134. C.H. and C.S. were both subsequently interviewed at a child advocacy center. During her interview, C.H. denied that she had ever been touched sexually by "anyone" because she did not "want her mom to get in trouble." Transcript Volume III at 213. During C.S.'s interview, C.S. said that she had been shown sex toys by Tequilla and had seen a photograph of Tequilla naked, that Michael and Tequilla discussed threesomes and having sex in every room of the home, that Tequilla would "squeeze" C.S.'s breast, and that A.H. touched her vagina during a car ride. Transcript Volume IV at 187-193.
[¶8] Hoskins was given full custody of C.H. in December 2019. In September 2020, when C.H. was twelve years old, she finally revealed the abuse to one of her friend's mothers, and also to her stepmother, Kathy. C.H. was forensically interviewed for the second time on September 14, 2020, and she recounted the sexual abuse she had suffered at the hands of Michael and Tequilla.
[¶9] In September 2020, the State charged Michael with: child molesting as a level 1 felony; child molesting as a level 4 felony; aiding, inducing or causing child molesting as a level 4 felony; two counts of vicarious sexual gratification as level 4 felonies; neglect of a dependent as a level 5 felony; neglect of a dependent as a level 6 felony; vicarious sexual gratification/fondling in the presence of a minor as a level 6 felony; and performance before a minor that is harmful to minors as a level 6 felony. The State charged Tequilla with: aiding inducing or causing child molesting as a level 1 felony; child molesting as a level 4 felony; aiding, inducing or causing child molesting as a level 4 felony; neglect of a dependent as a level 5 felony; neglect of a dependent as a level 6 felony; vicarious sexual gratification/fondling in the presence of a minor as a level 6 felony; and performance before a minor that is harmful to minors as a level 6 felony.
[¶10] On July 1, 2022, Michael filed a written motion to depose then fourteen-year- old C.H. pursuant to the Child Deposition Statute, Ind. Code § 35-40-5-11.5. Following a hearing, the trial court denied the motion by an order entered on September 6, 2022. On December 21, 2022, the State filed a motion for the Simpsons to be tried jointly, which the court granted. On June 13, 2023, the State filed a motion in limine to, among other things, exclude pursuant to Ind. Evidence Rule 704, "[a]ny questions, comments, testimony, or references to findings or conclusions of Indiana Department of Child Services [("DCS")] reports or investigations including whether substantiated or unsubstantiated." Appellants' Appendix Volume III at 55. Following a hearing, the court granted the State's motion and determined that certain DCS reports would be excluded but left the issue open for reconsideration during trial depending "on how the defense wishes to use that evidence" and if the Simpsons could establish that it could be presented in a form that did not constitute impermissible opinion testimony or that it was admissible on other grounds. Transcript Volume II at 84. On June 16, 2023, the State filed a motion to dismiss the vicarious sexual gratification counts against Michael, and the court dismissed those charges. On June 21, one week before the scheduled trial, the Simpsons filed a motion for the court to reconsider its denial of the request to depose C.H. The court denied the motion on June 23, 2023.
As we will discuss more fully later, the trial court indicated that evidence would be permitted that could be presented in line with the holding in Bean v. State, 15 N.E.3d 12 (Ind.Ct.App. 2014), trans. denied, and the cases cited therein. Appellants' Appendix Volume III at 68.
[¶11] A jury trial began on June 27, 2023. After the jury was selected but before it was sworn, the Simpsons renewed their request to depose C.H., and the court again denied the request. The State presented twelve witnesses, including fifteen-year-old C.H., who gave detailed testimony regarding the sexual crimes committed against her. The defense presented seven witnesses, including both of C.H.'s older half-brothers and two of Michael's daughters, who testified to their opinions that C.H. was not "truthful" and denied witnessing any abuse. Transcript Volume V at 95, 114, 150, 201. Prior to final instructions, the State moved to dismiss the level 4 felony child molesting count against Tequilla, which was granted by the court. The jury found the Simpsons guilty as charged of the remaining counts. The court sentenced each defendant to an aggregate fifty-eight-year term.
It appears that after jury deliberations began, the parties informed the court that dismissal of the aiding, inducing, or causing child molesting count against Michael was warranted because it was "connected" to the count against Tequilla that was dismissed. Transcript Volume VI at 195. Accordingly, during sentencing, the court set aside that guilty verdict against Michael and did not enter judgment of conviction on that count.
Discussion
A. Denial of Request to Depose Child-Victim
[¶12] The Simpsons challenge the trial court's denial of their request to depose C.H. They argue the court abused its discretion in determining that "extraordinary circumstances" did not exist in this case to necessitate the deposition. Appellants' Brief at 16.
[¶13] It is well established that our trial courts have broad discretion over discovery issues and we review their rulings only for an abuse of that discretion. Ramirez v. State, 186 N.E.3d 89, 93 (Ind. 2022); see Rosenbaum v. State, 193 N.E.3d 417, 426 (Ind.Ct.App. 2022) (applying discovery abuse of discretion standard to review of trial court's denial of request to depose child sex-abuse victim), trans. denied. As the Indiana Supreme Court observed in Church v. State, 189 N.E.3d 580, 584 (Ind. 2022), the Child Deposition Statute, Ind. Code § 35-40-5-11.5, "limits depositions of child victims of sex offenses if they are under the age of sixteen." The Court explained,
Per this statute, a defendant must first contact the prosecuting attorney about deposing the child victim. Ind. Code § 35-40-5-11.5(d) (2020). If the prosecuting attorney does not agree to a deposition, the defendant may petition the court to authorize one. I.C. § 35-40-5-11.5(d)-(e). After holding a hearing, a trial court may only authorize the deposition if it finds either a "reasonable likelihood that the child victim will be unavailable for trial and the deposition is necessary to preserve the child victim's testimony," or that the deposition is necessary due to the "existence of extraordinary circumstances" and is "in the interest of justice." I.C. § 35-40-5-11.5(d)(2)-(3). The defendant must prove either circumstance by a preponderance of the evidence. I.C. § 35-40-5-11.5(f)-(g).Church, 189 N.E.3d at 584-585.
[¶14] "[T]his statute 'creates substantive protections for child victims of sex crimes that guard against needless trauma inflicted through compelled discovery depositions' by 'declining to grant defendants in this limited set of circumstances the substantive right to take discovery depositions.'" Id. at 590591 (citation omitted). The statute recognizes that "[v]ictims in Indiana have a constitutional 'right to be treated with fairness, dignity, and respect throughout the criminal justice process . . . to the extent that exercising these rights does not infringe upon the constitutional rights of the accused'" as well as the "statutory right to be 'treated with fairness, dignity, and respect,' and be 'free from intimidation, harassment, and abuse' 'throughout the criminal justice process.'" Id. at 591 (citing Ind. Const. art. 1, § 13(b) and Ind. Code § 35-40-5-1). It further recognizes that criminal defendants have no constitutional right to discovery depositions, and although they generally have the substantive right to take and use depositions of witnesses in accordance with the Indiana Rules of Trial Procedure, the limitations to a criminal defendant's substantive rights provided by statute reflect a "careful legislative balancing of policy considerations." Id. (citation omitted). In short, the "true nature" of the Child Deposition Statute is "a substantive right for this class of victims" and "a limitation on the substantive rights of defendants." Id.
[¶15] During the hearing on their request to depose then fourteen-year-old C.H., the Simpsons referenced five reasons they believed extraordinary circumstances existed in this case necessitating the deposition. Specifically, they argued: (1) there were inconsistencies in C.H.'s prior statements; (2) C.H. was not living in the home during the timeline of the alleged criminal conduct; (3) C.H. did not disclose allegations in therapy; (4) C.H. made other allegations to DCS but did not disclose the allegations in this case; and (5) C.H. was interviewed regarding Michael's criminal "charge that occur[ed] after the [present] allegations" and there was no disclosure of the allegations in this case. Transcript Volume I at 164. In its order denying the Simpsons' motion to depose C.H., the trial court found that, although the Simpsons cited these reasons that extraordinary circumstances existed and argued that "the taking of [C.H.'s] deposition is in the interests of justice[,]" they failed to "present any evidence of the above or any other evidence at the hearing." Appellants' Appendix Volume II at 206.
[¶16] Our review of the record confirms the court's finding in this regard. Other than bald assertions, the Simpsons presented no evidence to support their claims of extraordinary circumstances. They did not provide the court with C.H.'s prior statements or, provide any evidence that she was not present in the home during the relevant period, that she did not disclose allegations in therapy, or that she made prior complaints to DCS without revealing the current allegations. They also did not present the contents of her alleged interview on Michael's other charge. Moreover, the Simpsons made no real effort to explain to the trial court why other discovery tools, including requests for admissions, interrogatories, requests for production, as well as the depositions of other witnesses, would be inadequate such that C.H.'s deposition was necessary in the interests of justice. As noted above, the Child Deposition Statute commands that "the court may not authorize the deposition of a child victim . . . unless the defendant establishes by a preponderance of the evidence that the deposition is necessary: (1) due to the existence of extraordinary circumstances; and (2) in the interest of justice." Ind. Code § 35-40-5-11.5(g). The Simpsons did not meet their burden and therefore, we cannot say the trial court abused its discretion in denying their request to depose C.H.
To the extent that the Simpsons now point to exhibits and evidence presented at trial that they claim support some of their allegations of extraordinary circumstances, the Simpsons had the burden to make their evidentiary showing at the time of the hearing held pursuant to the Child Deposition Statute. See Ind. Code § 35-40-5-11.5(d)(3)-(g) (providing defendant's burden of proof during hearing when seeking court authorization to depose a child who is alleged victim of a sex offense).
[¶17] As for the trial court's denial of the Simpsons' motion to reconsider the deposition request made a week before trial, and their renewed request to depose C.H. made after jury selection, we reach a similar conclusion as the Simpsons did not meet their evidentiary burden. We find no abuse of discretion.
B. Exclusion of Evidence
[¶18] The Simpsons next contend the trial court abused its discretion in "refusing to admit" eight "DCS reports to show [prior unsubstantiated abuse] accusations made by C.H." in order to attack her credibility based on a "pattern of bogus claims." Appellants' Brief at 19-20. "[T]he decision to admit or exclude evidence is within a trial court's sound discretion and is afforded great deference on appeal." Carpenter v. State, 786 N.E.2d 696, 702 (Ind. 2003). We will reverse only if the trial court's ruling was clearly against the logic and effect of the facts and circumstances before it and the errors affect a party's substantial rights. Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021).
[¶19] The DCS reports at issue here were subject to a pretrial motion in limine. Specifically, the State moved to exclude the DCS reports and related testimony pursuant to Ind. Evidence Rule 704(b), which provides: "Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." The court ruled that the evidence would be excluded unless the defense could show during trial that it intended to present the reports in a way that did not violate Bean v. State, 15 N.E.3d 12, 19 (Ind.Ct.App. 2014), trans. denied, in which this Court ruled that a DCS employee's testimony that abuse allegations had been "substantiated" constituted an opinion on the truth of the allegations that violated Ind. Evidence Rule 704(b). In addition, during the hearing on the motion in limine, the State argued that, even assuming the evidence could be presented in a way that did not violate Evidence Rule 704(b), the court would have the discretion to find the evidence inadmissible pursuant to Ind. Evidence Rules 403 and 608(b). Transcript Volume II at 81. The trial court agreed, noting the delicate balance necessary when determining the admissibility of such evidence and the importance of the defense's purpose when offering the evidence. See id. at 83-84 (court observing "we all know at least in this circle that substantiated or unsubstantiated doesn't necessarily mean it's true or not true" or "the credibility of the information disclosed" and "the defense has to be mindful of how they present" this kind of evidence because it is a "problem" if their purpose is to say C.H. "wasn't truthful").
Ind. Evidence Rule 403 provides: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Ind. Evidence Rule 608(b) provides in pertinent part: "Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness."
[¶20] It is well established that "[r]ulings on motions in limine are not final decisions and, therefore, do not preserve errors for appeal." Swaynie v. State, 762 N.E.2d 112, 113 (Ind. 2002). "In order to preserve an error for appellate review, a party must do more than challenge the ruling on a motion in limine." Azania v. State, 730 N.E.2d 646, 651 (Ind. 2000) (citing Miller v. State, 716 N.E.2d 367, 370 (Ind. 1999)), reh'g denied. "Absent either a ruling admitting evidence accompanied by a timely objection or a ruling excluding evidence accompanied by a proper offer of proof, there is no basis for a claim of error." Id.
[¶21] The State asserts the Simpsons have "not properly preserved" their claim that "any DCS reports were improperly excluded from the evidence." Appellee's Brief at 23. During an offer to prove made at trial, the Simpsons questioned DCS employee Angela Gilbert generally about the DCS reports and whether the specific allegations made in at least two of the reports were "substantiated" or "not substantiated." Transcript Volume VI at 39, 48. However, at the conclusion of the offer to prove, the Simpsons did not ask the court to reconsider its order in limine and, most significantly, they provided no argument to the court as to how the evidence did not run afoul of Ind. Evidence Rule 704(b) as provided by the court's prior order, or why the evidence was relevant and admissible on other grounds. Indeed, our review of the testimony elicited from Gilbert during the offer to prove reveals that at least some of her answers involved precisely the type of testimony that Bean cautioned against. See Bean, 15 N.E.3d at 20 (differentiating between impermissible testimony regarding an investigation and whether specific allegations were substantiated or unsubstantiated and permissible testimony regarding general investigatory process and how allegations of child molestation are substantiated).
[¶22] Moreover, despite the trial court's acknowledgement that the admissibility of the evidence would also hinge on Ind. Evidence Rules 403 and 608(b), the Simpsons made no argument along these lines during their offer to prove, nor do they do so on appeal, to call into question the trial court's prior ruling disallowing the evidence. The purpose of an offer to prove is to enable the trial court and this Court to determine the admissibility and relevance of the proffered evidence. Carter v. State, 932 N.E.2d 1284, 1287 (Ind.Ct.App. 2010). The Simpsons' offer to prove was insufficient to convince the trial court that the evidence should be admitted, and it is insufficient to convince this Court that the trial court's prior ruling was erroneous or clearly against the logic and effect of the facts and circumstances before it. We find no abuse of discretion.
C. Denial of Request to Cross-Examine Prosecutor
[¶23] The Simpsons claim they were improperly denied the right to cross-examine the prosecutor. They argue that, by questioning a defense witness regarding phone conversations she had with the witness, the prosecutor "chose to make herself an unsworn witness" and thus, they should have been allowed to call the prosecutor to the stand for cross-examination. Appellants' Brief at 22. The Simpsons suggest the trial court's denial of their request to put the prosecutor on the witness stand resulted in a violation of their Sixth Amendment right to confrontation.
[¶24] During direct examination of defense witness Daniel Tucker, the pastor at the church the Simpsons attended, Tucker was asked to give an opinion on C.H.'s character for truthfulness and he stated, "I find C.H. could be greatly lacking in truthfulness." Transcript Volume V at 247. During cross-examination, the following exchange occurred between the prosecutor and Tucker:
Q. Okay. Um, and we, we've actually spoke on the phone, right?
A. Ah, yes, ma'am.
Q. Um, and we talked about that opinion about um, C.H.'s truthfulness um, do you remember saying, "I don't see any benefit here to not telling the truth."? Do you remember saying that?
A. For me to not tell the truth, yes.
Q. No for her to not tell the truth in this situation. You said, "I don't see, . . .
A. I don't remember saying that to you, ma'am.
Q. ... any benefit here. Just lots of negatives." That's what you said.
A. No.
Q. You don't remember saying that?
A. I, no, I remember saying, . . .
Q. That's all, yes or no, sir. You don't remember saying that?
A. I do not, ma'am.
Q. Alright. Okay. You do remember talking to [me] though, right?
A. I believe twice.Id. at 249-250. Defense counsel objected, requested a bench conference, and indicated to the court that the prosecutor "just made herself a witness" and asked, "Does this mean we can put her on the stand and go through everything?" Transcript Volume VI at 2. The prosecutor attempted to explain and justify her questions but assured the court that "those questions are done and gone" and that the issue was over. Id. at 4. Defense counsel called another witness, and then outside the presence of the jury, made an oral motion to call the prosecutor as a witness based upon her cross-examination of Tucker. The court denied the motion.
The Simpsons state that, after their objection and the bench conference, the prosecutor "resumed her effort to impeach the [witness] over what she claimed he had said to her in a phone conversation . . . [t]hat resulted in another bench conference." Appellants' Brief at 24. However, our review reveals that two pages of Tucker's testimony and a portion of the bench conference that appear on pages 249-250 of Volume V of the Transcript are duplicated, placed out of order, and repeated as pages 3 and 4 in Volume VI of the Transcript. To be clear, it appears that the prosecutor's impeachment questioning was extremely brief and concluded following the single defense objection and bench conference.
[¶25] As a general rule, a prosecuting attorney cannot be called as a witness by defense counsel unless the testimony sought is required by compelling and legitimate need. Ingle v. State, 746 N.E.2d 927, 933 (Ind. 2001). In its discretion, the trial court "may deny the request if the prosecutor does not have information vital to the case. Where the evidence is easily available from other sources and absent 'extraordinary circumstances' or 'compelling reasons,' an attorney who participates in a case should not be called as a witness." Id. (quoting Matheney v. State, 583 N.E.2d 1202, 1206 (Ind. 1992), cert. denied). "[W]hen [a] defendant asserts that his right to compulsory process has been unconstitutionally limited," we must determine (1) "whether the trial court arbitrarily denied the Sixth Amendment rights of the person calling the witness," and (2) "whether the witness was competent to testify and his testimony would have been relevant and material to the defense." Ferguson v. State, 670 N.E.2d 371, 375 (Ind.Ct.App. 1996), trans. denied. "The defendant must indicate how the witness' testimony would have been both material and favorable to the defense." Id.
[¶26] The Simpsons have not shown they were arbitrarily denied their constitutional right to confront the witnesses against them and that the prosecutor's testimony would have been both material and favorable to the defense. While we do not condone the prosecutor's line of questioning regarding her personal conversations with Tucker in an effort to impeach his trial testimony, the exchange was very brief and he denied making the statements she referenced. Additionally, it is quite likely that if called as a witness, the prosecutor would have repeated her conversation with Tucker, thereby emphasizing the inconsistency of that conversation with his trial testimony, which would have been unfavorable to the defense. Under the circumstances, we cannot say the trial court's denial of the Simpsons' request to call the prosecutor as a witness warrants reversal.
D. Fundamental Error
[¶27] Finally, the Simpsons argue that the prosecutor committed misconduct during closing argument which denied them a fair trial. Specifically, they claim the prosecutor "repeatedly made arguments on matters not in evidence." Appellants' Brief at 28.
[¶28] It is well established that "[t]o 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." Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh'g denied. Because the Simpsons failed to object to the prosecutor's closing argument, they must establish both the grounds for prosecutorial misconduct and the grounds for fundamental error to succeed on their claim. Id. When determining whether prosecutorial misconduct has occurred, we first determine whether misconduct has in fact occurred, and if so, whether the misconduct placed the defendant in a position of grave peril to which he or she would not have been subjected otherwise. Id.
[¶29] As for fundamental error, we observe that it is an extremely narrow exception that allows a defendant to avoid waiver of an issue. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). It is error that makes a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process presenting an undeniable and substantial potential for harm. Id. This exception is available only in "egregious circumstances." Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh'g denied. "Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error." Ryan, 9 N.E.3d at 667.
[¶30] The Simpsons point to statements by the prosecutor indicating that: this trial included evidence corroborating the victim's abuse claims which is "usually not the case" in child molesting cases; child molesting has "longstanding ramifications and consequences" to the child; and "millions of kids" who are molested never reveal what happened to them. Transcript Volume VI at 80, 134, 142. They argue that "there was no evidence" to support these general statements and they cite to Craig v. State, 267 Ind. 359, 366, 370 N.E.2d 880, 883 (1977), for the proposition that "argument of counsel should not invite the jury to consider matters not in evidence as a basis for their decision." Appellants' Brief at 28-29.
[¶31] Even assuming the prosecutor's remarks can be construed as an invitation for the jury to consider matters not in evidence, we cannot say that these statements placed the Simpsons in grave peril, made a fair trial impossible, or constituted clearly blatant violations of basic and elementary principles of due process presenting an undeniable and substantial potential for harm. As noted by the State, the challenged remarks, two of which occurred during rebuttal and in direct response to the defense's closing, were isolated and insubstantial in light of the prosecutor's thirty-seven-page closing argument. The court also instructed the jury that the "[s]tatements made by the attorneys are not evidence." Transcript Volume VI at 162. Absent evidence to the contrary, we generally presume the jury follows the trial court's instructions in reaching its determination. Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015), reh'g denied.
Under the circumstances, we conclude the Simpsons have failed to establish both the grounds for prosecutorial misconduct and fundamental error.
[¶32] For the foregoing reasons, we affirm the Simpsons' convictions.
[¶33] Affirmed.
May, J., and Pyle, J., concur.