Jason Deaton v. State of Indiana

999 N.E.2d 452, 2013 WL 6196286, 2013 Ind. App. LEXIS 590
CourtIndiana Court of Appeals
DecidedNovember 27, 2013
Docket79A02-1303-CR-282
StatusPublished
Cited by13 cases

This text of 999 N.E.2d 452 (Jason Deaton v. State of Indiana) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jason Deaton v. State of Indiana, 999 N.E.2d 452, 2013 WL 6196286, 2013 Ind. App. LEXIS 590 (Ind. Ct. App. 2013).

Opinion

OPINION

MAY, Judge.

Jason Deaton appeals his conviction of two counts of Class A felony child molesting. 1 *454 He presents two issues for our re-

1. Whether alleged misconduct by the prosecutor was fundamental error; and
2. Whether the State presented sufficient evidence to convict Deaton.

We affirm.

FACTS AND PROCEDURAL HISTORY 2

On August 17, 2011, E.D. revealed to her sister that their father, Deaton, 3 had been forcing E.D. to perform oral sex for approximately one year. The State charged Deaton with two counts of Class A felony child molesting.

Deaton's jury trial commenced on November 27, 2012. E.D. testified Deaton forced her to perform oral sex on him on multiple occasions, she identified unique marks on his genitalia, and she described his post-molestation practices, which were similar to things Deaton did after engaging in sexual activity with E.D.'s mother. The jury found Deaton guilty as charged, and the trial court sentenced Deaton to thirty years, with twenty-eight years executed and two years on supervised probation.

DISCUSSION AND DECISION

1. Prosecutorial Misconduct

Deaton claims certain comments by the prosecutor during voir dire and closing argument were misconduct. 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, 546 U.S. 828, 126 S.Ct. 42, 163 LEd.2d 76 (2005). 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.

Deaton 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.

a. Voir Dire

The function of voir dire is to ascertain whether jurors can render "a fair *455 and impartial verdict in accordance with law and the evidence." Von Almen v. State, 496 N.E.2d 55, 59 (Ind.1986). Jurors may be asked questions to eliminate bias but "not to condition them to be receptive to the questioner's position." Id. "Questions that seek to shape a favorable jury by deliberate exposure to the substantive issues in the case are therefore improper." Id.

During voir dire, the State engaged in this dialogue with a potential juror in front of the other potential jurors:

[State]: Does anyone watch CSI? I watch it. It's a good show,
[Potential Juror], right?
[Potential Juror]: Um-hum.
[State]: Do you agree that it's not reality?
[Potential Juror]: It's so not reality.
[State]: The police don't solve crimes in an hour. Would you need DNA evidence in a case like this to be able to consider-
[Potential Juror]: Hard and fast DNA? No.
[State]: Does-anyone would anyone need DNA evidence in a case like this?
Would anyone need fingerprint evidence in a case like this? Is anyone going to hold me to a CSI standard? Make me bring in all sorts of forensic evidence and fingerprints and DNA and do the light shows that they do on that show? Is anyone expecting that?

(Tr. at 48.) Deaton argues that, through these comments, the State sought to "reduce its burden by eliminating any negative inferences to be drawn from any lack of evidence on the State's side." (Br. of Appellant at 9.)

As Deaton did not object to the State's questions during voir dire, he must demonstrate the alleged prosecutorial misconduct rose to the level of fundamental error, that is, the State's comments made a fair trial impossible. Deaton has not demonstrated the State's comments deprived him of a fair trial. The court reminded the jury of the State's burden of proof six times, including twice before voir dire and four times during final instrue-tions. The State also reminded the jurors of its burden two times, once right after the exchange Deaton challenges. Any error was cured by the multiple reminders of the proper burden of proof and any error was therefore not fundamental. See Emerson v. State, 952 N.E.2d 832, 838 (Ind.Ct.App.2011) (any misconduct in prosecutor's statement cured by court's general instruction regarding prosecutor's comment).

b. Closing Argument

As part of its closing argument, the State may argue both law and fact, and "propound conclusions based upon his analysis of the evidence." Poling v. State, 938 N.E.2d 1212, 1217 (Ind.Ct.App.2010). However, it is improper for the State to comment on the credibility of a witness unless "the assertions are based on reasons which arise from the evidence." Gaby v. State, 949 N.E.2d 870, 881 (Ind.Ct.App.2011). It is also misconduct for the State to suggest the burden of proof shifts to the defendant during a criminal case. Dobbins v. State, 721 N.E.2d 867, 874 (Ind.1999).

Deaton argues the State made comments during closing argument vouching for E.D.'s credibility and suggesting the burden of proof rested with Deaton. As Deaton did not object to the statements, he must demonstrate fundamental error. See Booher, 773 N.E.2d at 817 (Gf appellant does not make objection at trial, issue of prosecutorial misconduct is waived *456 unless appellant demonstrates fundamental error). He has not met that burden.

During closing argument, the prosecutor said:

[E.D.'s] testimony alone is sufficient to support a conviction for child molest. We don't need an eyewitness. We don't need any physical evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
999 N.E.2d 452, 2013 WL 6196286, 2013 Ind. App. LEXIS 590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jason-deaton-v-state-of-indiana-indctapp-2013.