MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 20 2019, 5:44 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana Josiah Swinney Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Justin A. Conrad, December 20, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-756 v. Appeal from the Fountain Circuit Court State of Indiana, The Honorable Stephanie S. Appellee-Plaintiff. Campbell, Judge Trial Court Cause No. 23C01-1710-F4-524
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019 Page 1 of 12 Statement of the Case
[1] Justin Conrad (“Conrad”) appeals, following a jury trial, his conviction for
Level 4 felony child molest1 and the sentence imposed. Conrad argues that: (1)
the prosecutor engaged in prosecutorial misconduct that amounted to
fundamental error; and (2) that his sentence is inappropriate. Concluding that
Conrad has failed to show fundamental error and that his sentence is not
inappropriate, we affirm Conrad’s conviction.
[2] We affirm.
Issues
1. Whether the prosecutor’s statements during closing argument amounted to fundamental error.
2. Whether Conrad’s sentence is inappropriate.
Facts
[3] On October 20, 2017, twelve-year-old J.L. (“J.L.”), the victim, and her family
hosted a memorial at their home following a funeral for J.L.’s uncle. Several
family members and friends attended the memorial, including twenty-eight-year
-old Conrad, who was best friends with J.L.’s uncle. At some point during the
evening, J.L. and her younger cousin fell asleep on a couch in the living room.
1 IND. CODE § 35-42-4-3.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019 Page 2 of 12 J.L. wore a shirt, pajama pants, and underwear as she slept. Nearby, her
grandmother and two other cousins slept on the living room floor.
[4] The following morning, J.L. woke up because she felt a “scratching pain”
immediately above her vagina. (Tr. Vol. 2 at 130, 208). J.L. testified that she
could only see Conrad’s wrist because the rest of his hand was in her underwear
and that his hand was in her pants for “about 20 seconds.” (Tr. Vol. 2 at 208).
Following the encounter, J.L. saw Conrad sitting in the chair immediately next
to her. After looking at Conrad, J.L. moved to the opposite end of the couch to
lie behind her cousin. Conrad then moved to the couch and sat by J.L.’s feet.
Visibly upset, J.L. eventually woke her mother up and informed her about what
had occurred. Her mother looked for Conrad, but he had left the house.
[5] Fountain County Sheriff Deputy Scott Rainey (“Deputy Rainey”) responded to
the call and advised J.L.’s parents to take her to the hospital for a sexual assault
examination. Deputy Rainey later located Conrad on a street near J.L.’s home
and noticed that he “smell[ed] of alcohol” and “had some slurred speech.” (Tr.
Vol. 2 at 157). Deputy Rainey proceeded to interview Conrad because he was
able to communicate “just fine” and could “understand what [they] were
talking about.” (Tr. Vol. 2 at 157-58). During this first interview, Conrad
initially claimed that he had touched J.L.’s toe, then her waistline, and finally
admitted that he touched the “fuzzy area above [J.L.’s] vagina.” (Tr. Vol. 2 at
162). The next day, during a second interview, Conrad insisted that he had
accidentally touched J.L., but not inside her pants, while he was trying to stand
up.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019 Page 3 of 12 [6] The State charged Conrad with Level 4 felony child molest and Level 6 felony
sexual battery. The case proceeded to a jury trial, wherein J.L., J.L.’s mother,
and Deputy Rainey testified to the facts above. During the State’s closing
argument, the following colloquy ensued:
[The State]: You saw and heard directly from the victim what took place that morning. Based off that the defendant even verified a lot of the information but he just couldn’t go as far as to tell you he did what he did. Defense counsel’s role is to confuse you in the process. We heard in opening statements [that Defense Counsel] –
[Defense Counsel]: Objection. Object to that characterization.
[The State]: Each side has a role to play.
The Court: It’s closing argument.
[The State]: Defense counsel is here to mislead you.
[Defense Counsel]: Objection. That is not appropriate argument.
[The State]: I can rephrase, Your Honor.
The Court: Go ahead.
[The State]: Defense counsel will characterize the evidence one way, but I will show you our way, what is true.
(Tr. Vol. 2 at 227). Conrad did not request an admonishment or move
for a mistrial.
[7] In its final instructions to the jury, the trial court stated, in relevant part, that the
“burden is upon the State to prove beyond a reasonable doubt that the
defendant is guilty[,]” that Conrad was “presumed to be innocent[,]” and that
Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019 Page 4 of 12 “[s]tatements made by the attorneys are not evidence.” (Tr. Vol. 3 at 7, 9).
Thereafter, the jury found Conrad guilty as charged.
[8] At the ensuing sentencing hearing, the trial court merged the sexual battery
conviction into the child molest conviction for double jeopardy purposes. At
the conclusion of the hearing, the trial court stated the following:
In determining sentencing[,] the Court will not consider lack of remorse as an aggravating circumstance in that the defendant has maintained his innocence through trial, has the right to do that. That the Court will further take into consideration that while the victim was not less than 12 years of age[,] she was 12 years of age. That the crime was committed in the presence of other individuals who were 18 years of age, whether or not they were awake or asleep. The Court does not consider the failure to pay the community corrections supervision fee in full to be an aggravating circumstance or something that the Court will consider with regard to sentencing. The Court does consider the impact on the victim. Court does consider the relationship to the victim, but does not believe that the victim was in the care, custody or control of the defendant. The Court does consider the relationship of the defendant to the victim and the history in that as one of trust due to the close -- while not familial but close relationship of the victim to the defendant. The Court does not consider the criminal conviction of Mr. Conrad as a misdemeanor to be an aggravating circumstance. The Court does take into account Mr. Conrad’s compliance with the terms of his community correction placement presentence. The likelihood as to whether or not this crime is likely to reoccur. The Court notes your request, [defense counsel], to take into account what you characterize as exceptional circumstances, but the Court declines to place itself in the position of the jury as the trier of the fact in that situation.2
2 The exceptional circumstances comment was in reference to what defense counsel had previously described as a “significant lack of proof as to what happened” in the living room. (Tr. Vol. 3 at 34).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019 Page 5 of 12 (Tr. Vol. 3 at 36-37). Thereafter, the trial court sentenced Conrad to an
advisory six (6) year sentence, with four (4) years executed in the Department
of Correction and two (2) years suspended to probation. Conrad now appeals.
Decision
[9] On appeal, Conrad argues that: (1) the prosecutor engaged in prosecutorial
misconduct that amounted to fundamental error; and (2) his sentence is
inappropriate. We will address each of these arguments in turn.
1. Prosecutorial Misconduct
[10] Conrad argues that the prosecutor committed two instances of prosecutorial
misconduct during closing argument by inappropriately commenting on the
role of his trial attorney. When reviewing an allegation of prosecutorial
misconduct, we make two inquiries. First, we determine by reference to case
law and rules of conduct whether the prosecutor engaged in misconduct, and if
so, we next determine whether the misconduct, under all 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),
reh’g denied.
[11] Generally, in order to properly preserve a claim of prosecutorial misconduct for
appeal, a defendant must not only raise a contemporaneous objection but must
also request an admonishment; if the admonishment is not given or is
insufficient to cure the error, then the defendant must request a mistrial. Neville
Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019 Page 6 of 12 v. State, 976 N.E.2d 1252, 1258 (Ind. Ct. App. 2012), trans. denied. Here,
Conrad concedes that he did not request an admonishment after objecting to
the comments made by the prosecutor during closing argument. Where a
defendant does not raise a contemporaneous objection, request an
admonishment, or, where necessary, request a mistrial, the defendant does not
properly preserve his claims of prosecutorial misconduct. Cooper v. State, 854
N.E.2d 831, 835 (Ind. 2006).
[12] To prevail on a claim of prosecutorial misconduct that has been procedurally
defaulted, a defendant must establish the grounds for the prosecutorial
misconduct, and he must also establish that the prosecutorial misconduct
resulted in fundamental error. Ryan, 9 N.E.3d at 667-68. For a claim of
prosecutorial misconduct to rise to the level of fundamental error, a 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 (internal
quotation marks omitted). Thus, the defendant “must show that, under the
circumstances, the trial judge erred in not sua sponte raising the issue because
alleged errors (a) constitute clearly blatant violations of basic and elementary
principles of due process and (b) present an undeniable and substantial potential
for harm.” Id. (internal quotation marks omitted). The element of harm is not
shown by the fact that a defendant was ultimately convicted. Id. Instead, it
depends upon whether the defendant’s right to a fair trial was detrimentally
affected by the denial of procedural opportunities for the ascertainment of truth
to which he would have been entitled. Id. (quotation marks omitted).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019 Page 7 of 12 [13] Here, Conrad asserts that the prosecutor committed two instances of
prosecutorial misconduct. Specifically, Conrad argues that the prosecutor
committed misconduct when he told the jury that defense counsel’s “role is to
confuse you in this process” and that she was there to “mislead you.” (Tr. Vol.
2 at 227). When objecting to the prosecutor’s comments regarding the role of
opposing counsel, Conrad argued that the characterizations were not
appropriate arguments. He did not, however, request an admonishment nor
move for a mistrial.
[14] We acknowledge that the prosecutor’s comments here “attack the integrity of
defense counsel by suggesting that [s]he is trying to mislead the jury.” Marcum
v. State, 725 N.E.2d 852, 859 (Ind. 2000), reh’g denied. We, however, need not
determine whether the prosecutor’s two comments were improper or amount to
misconduct because Conrad has not established fundamental error. See Ryan, 9
N.E.3d at 667-68 (explaining that to prevail on a claim of prosecutorial
misconduct that has been procedurally defaulted, a defendant must establish the
grounds for the prosecutorial misconduct and that the prosecutorial misconduct
resulted in fundamental error). “In evaluating the issue of fundamental error,
our task in this case is to look at the alleged misconduct in the context of all that
happened and all relevant information given to the jury—including evidence
admitted at trial, closing argument, and jury instructions—to determine
whether the misconduct had such an undeniable and substantial effect of the jury’s
decision that a fair trial was impossible.” Id. (emphasis in original).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019 Page 8 of 12 [15] In looking at the challenged comments in light of the above mentioned relevant
information, we do not believe that the comments by the prosecutor had a
substantial effect on the jury’s decision, making a fair trial impossible. Here,
the jury had testimony from J.L., the victim, that Conrad placed his hand inside
her underwear and scratched her pubic area. See Baltimore v. State, 878 N.E.2d
253, 258 (Ind. Ct. App. 2007) (holding that a conviction may be sustained by
the uncorroborated testimony of a victim), trans. denied. Moreover, the jury was
given instructions that the State had the burden of proof, that Conrad was
innocent until proven guilty, and that statements made by counsel were not
evidence. See Ryan, 9 N.E.3d at 672-73 (concluding that there was no
fundamental error resulting from prosecutorial misconduct where the jury was
properly instructed); 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),
trans. denied. As a result, we conclude that, in the context of all that occurred
during the trial and all relevant information given to the jury, the alleged
misconduct did not have a substantial effect of the jury’s decision and that it did
not make a fair trial impossible.3 Conrad has not shown that fundamental error
occurred.
3 Notwithstanding our conclusion, it is well-settled that prosecutor’s who impugn the integrity and demean the role of defense counsel fall short of their obligation to show respect for our legal system. See Marcum, 725 N.E.2d at 859 (“comments that demean opposing counsel, especially in front of a jury, are inappropriate[]”); Brummett v. State, 10 N.E.3d 78, 85 (Ind. Ct. App. 2014). We caution the State against referring to defense counsel in this manner in all future proceedings.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019 Page 9 of 12 2. Inappropriate Sentence
[16] Next, Conrad argues that his advisory sentence, which includes two years
suspended to probation, is inappropriate. “This Court may revise a sentence if
it is inappropriate in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B). “The 7(B) ‘appropriateness’ inquiry is a
discretionary exercise of the appellate court’s judgment, not unlike the trial
court’s discretionary sentencing determination.” Knapp v. State, 9 N.E.3d 1274,
1291-92 (Ind. 2014), cert. denied. “On appeal, though, we conduct that review
with substantial deference and give due consideration to the trial court’s
decision—since the principal role of our review is to attempt to leaven the
outliers, and not to achieve a perceived correct sentence.” Id. at 1292 (internal
quotation marks, internal bracket, and citation omitted). “Appellate Rule 7(B)
analysis is not to determine whether another sentence is more appropriate but
rather whether the sentence imposed is inappropriate.” Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),
reh’g denied. The defendant has the burden of persuading the appellate court
that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006). Whether we regard a sentence as inappropriate turns on the
“culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008).
[17] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence is the starting point the General Assembly has selected as Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019 Page 10 of 12 an appropriate sentence for the crimes committed. Childress, 848 N.E.2d 1081.
Since the advisory sentence is the starting point our General Assembly has
selected as an appropriate sentence for the crime committed, the defendant
bears a particularly heavy burden in persuading us that his sentence is
inappropriate when the trial court imposes the advisory sentence. Golden v.
State, 862 N.E.2d 1212, 1216 (Ind. Ct. App. 2007), trans. denied. Here, Conrad
was convicted of one (1) Level 4 felony. The sentencing range for a Level 4
felony is “for a fixed term of between two (2) and twelve (12) years, with the
advisory sentence being six (6) years.” I.C. § 35-50-2-5.5. For his Level 4
felony conviction, the trial court sentenced Conrad to the advisory sentence of
six (6) years, with two (2) years suspended to probation. Accordingly, Conrad
received an executed sentence two years below the advisory sentence.
[18] Regarding the nature of his offense, Conrad attempts to mitigate the seriousness
of his offense by arguing that the “event was neither prolonged nor extremely
invasive.” (Conrad’s Br. 15). This argument is unavailing. As this Court has
recognized, the nature of the offense is found in the details and circumstances of
the commission of the offense and the defendant’s participation. Perry v. State,
78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Here, while twelve-year-old J.L. slept,
twenty-eight-year-old Conrad placed his hand inside J.L.’s underwear and
scratched her pubic area. Nothing about the nature of the offense warrants a
reduction in Conrad’s advisory sentence, with two years suspended to
probation.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019 Page 11 of 12 [19] As for his character, Conrad argues that his limited criminal history and mostly
low risk scores on the Indiana Risk Assessment System (“IRAS”) tool warrants
a reduced sentence. Conrad is correct that when considering the character of
the offender prong, one relevant consideration is the defendant’s criminal
history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). Here,
Conrad’s prior conviction for theft reflects poorly on his character. See Id. (any
criminal history reflects poorly on a person’s character). Additionally,
Conrad’s IRAS scores are insufficient indicators of his good character. Our
Supreme Court has held that such assessments are prepared by probation
officers and other administrators relying on data and evaluations that “are not
necessarily congruent with a sentencing judge’s findings and conclusions
regarding relevant sentencings factors.” Malenchick v. State, 928 N.E.2d 564,
573 (Ind. 2010). Moreover, they are neither “intended nor recommended to
substitute for the judicial function of determining the length of sentence
appropriate for each offender.” Id. Accordingly, based on the nature of the
offense and his character, Conrad has failed to persuade us that his advisory
sentence, with two years suspended to probation, is inappropriate.
[20] Affirmed.
Robb, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-756 | December 20, 2019 Page 12 of 12