Phillip W. Hutchinson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 27, 2019
• Docket: 18A-CR-1207
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 27 2019, 10:55 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. O’Connor Curtis T. Hill, Jr. O’Connor & Auersch Attorney General of Indiana Indianapolis, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Phillip W. Hutchinson, March 27, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1207 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark D. Stoner, Appellee-Plaintiff Judge Trial Court Cause No. 49G06-1708-F4-28677

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 1 of 8 [1] Phillip Hutchinson appeals his conviction for Level 4 Felony Child Molesting, 1

arguing that the State committed prosecutorial misconduct that amounted to

fundamental error and requires a reversal. Finding no misconduct, we affirm.

Facts [2] In July 2017, then-ten-year-old K.M. was living with her grandmother and her

grandmother’s boyfriend, Hutchinson. K.M.’s parents slept in their vehicle

outside the home. One night, K.M. awoke to find Hutchinson standing over

her and moving his fingers around her genitals. K.M. ran outside, crying, and

began pounding on the door of the vehicle where her parents were sleeping,

awakening them to tell them what had happened. The family immediately

called the police.

[3] On August 7, 2017, the State charged Hutchinson with Level 4 felony child

molesting and Level 1 felony child molesting, later adding an allegation that

Hutchinson was an habitual offender. Hutchinson’s jury trial took place on

April 2-3, 2018. K.M. testified at the trial.

[4] During closing arguments, Hutchinson’s attorney argued that K.M.’s testimony

was not credible, arguing that it could have been a dream, that it could have

been K.M.’s brother sleeping on her, and that K.M. may have made the

accusation to get attention. Tr. Vol. II p. 191-92. On rebuttal, the prosecutor

1 Ind. Code § 35-42-4-3.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 2 of 8 responded, arguing that “[k]ids don’t make this up for attention,” id. at 195, and

explaining the standard of review to the jury:

Ladies and Gentlemen, [in] a second I’m going to sit down and you are going to go back to that jury room and you are going to start to deliberate. And you are going to get to the point where you say, “I believe her but how do you know it’s beyond a reasonable doubt?” Yesterday, you didn’t know K[.]M[.], you didn’t know the Defendant and you didn’t know what he did to her on July 25th of 2017. When you got to believe her, that is proof beyond a reasonable doubt, that’s a guilty. And do not come back here and tell that little girl she is lying. Because to be clear, that’s what a not guilty is. That girl got on the stand, promised to tell you the truth and told you what he did to her. It’s always easier when stuff like this is done at some other time, in some other place, by some other people. But now is the time, this is the place, you are the people. And give the child justice, find him guilty.

Id. at 198-99. Hutchinson did not object to any of these statements. After

deliberating, the jury found Hutchinson guilty of Level 4 felony child molesting

and not guilty of Level 1 felony child molesting. On April 25, 2018, the trial

court sentenced Hutchinson to eighteen years with three years suspended.

Hutchinson now appeals.

Discussion and Decision [5] Hutchinson’s sole argument on appeal is that we should reverse based on

prosecutorial misconduct. He directs our attention to three statements made by

the prosecutor that he claims constitute reversible misconduct:

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 3 of 8 • “Kids don’t make this up for attention.” Tr. Vol. II p. 195.

• “[D]o not come back here and tell that little girl she is lying. Because to be clear, that’s what a not guilty is.” Id. at 198.

• “[G]ive the child justice, find him guilty.” Id. at 199.

[6] Initially, we note that to preserve a claim of prosecutorial misconduct, a

defendant must raise a contemporaneous objection, request that the jury be

admonished, and move for a mistrial if he is unsatisfied with the trial court’s

admonishment. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). Here,

Hutchinson took none of these steps. Therefore, Hutchinson must show that

the alleged misconduct amounts to fundamental error, meaning that the trial

court erred in not sua sponte raising the issue because the alleged misconduct

constituted clearly blatant violations of basic principles and presented an

undeniable and substantial potential for harm. Ryan v. State, 9 N.E.3d 663, 668

(Ind. 2014).

[7] In reviewing a claim of prosecutorial misconduct, we must 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 would not otherwise have been subjected. Id. at 667.

[8] Hutchinson argues that the first statement amounted to impermissible vouching

for the credibility of a witness. See Brummett v. State, 10 N.E.3d 78, 83-84 (Ind.

Ct. App. 2014) (noting that a prosecutor may not state his or her personal

opinion regarding the credibility of a witness during trial). This statement was

made during rebuttal, a time in which a prosecutor may rebut the allegations

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 4 of 8 and inferences raised during the defendant’s closing. Johnson v. State, 584

N.E.2d 1092, 1107 (Ind. 1992). In fact, during rebuttal, prosecutors may

respond to the statements made during defense counsel’s closing argument

“even when such arguments by the State may under different circumstances be

objectionable.” Trice v. State, 519 N.E.2d 535, 538 (Ind. 1988). During closing

argument, Hutchinson’s counsel repeatedly attacked K.M.’s credibility, going

so far as to suggest that she had fabricated the incident to get attention. When

the prosecutor responded during closing argument that “[k]ids don’t make this

up for attention,” tr. vol. II p. 195, it was a direct response to defense counsel’s

statement. Therefore, rather than being impermissible vouching, this was an

appropriate statement to make during rebuttal.

[9] Moreover, this statement was sandwiched between many specific references to

the evidence in the record to support it. Specifically, the prosecutor referred to

evidence that K.M. disliked drama at school, that she referred to her genitals as

her “private part,” id. at 60, and that she had been forced to meet with

numerous law enforcement officials during the investigation, to show that K.M.

did not feel comfortable discussing the events and did not want the attention

that she got as a result. The prosecutor also emphasized circumstantial

evidence supporting K.M.’s allegations and highlighted the fact that K.M. had

sworn an oath to tell the truth.2 By linking the general statement that “[k]ids

2 To the extent that Hutchinson argues that the reference to K.M.’s oath to tell the truth was improper vouching, we disagree. The prosecutor was merely recounting something that the jurors themselves had observed firsthand.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 5 of 8 don’t make this up for attention,” id. at 195, to specific evidence in the record,

the prosecutor appropriately relied on the evidence in the record rather than on

her own personal knowledge. We find no prosecutorial misconduct based on

this statement.

[10] Second, Hutchinson directs our attention to the prosecutor’s direction to the

jury: “[D]o not come back here and tell that little girl she is lying. Because to

be clear, that’s what a not guilty is.” Id. at 198. Hutchinson argues that this

statement was an improper shift of the burden of proof, claiming that “[i]n

effect, the State was arguing that the burden of proof is an all or nothing

proposition, that the jury must either believe K.M. or conclude that she

fabricated her entire story.” Appellant’s Br. p. 11.3

[11] It is true that a prosecutor may not suggest that a defendant shoulders the

burden of proof in a criminal case. E.g., Stephenson v. State, 742 N.E.2d 463, 483

(Ind. 2001). But we fail to see how this statement was designed to, or had the

effect of, requiring Hutchinson to prove his innocence. When viewed in

context, it is apparent that the prosecutor was merely telling the jury that if it

found K.M.’s testimony to be credible, that testimony, alone, was sufficient to

sustain a guilty verdict:

[Y]ou are going to get to the point where you say, “I believe her but how do you know it’s beyond a reasonable doubt?”

3 To the extent that Hutchinson argues that this statement also amounted to improper vouching, we refer to our analysis above and find, again, that there is no misconduct on this basis.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 6 of 8 Yesterday, you didn’t know K[.]M[.], you didn’t know the Defendant and you didn’t know what he did to her on July 25th of 2017. When you got to believe her, that is proof beyond a reasonable doubt, that’s a guilty. And do not come back here and tell that little girl she is lying. Because to be clear that’s what a not guilty is.

Tr. Vol. II p. 198. We acknowledge that the point could have been more

artfully made. But when viewed as a whole, it is apparent that these comments

accurately recounted the burden of proof to the jury. Moreover, the jurors were

properly instructed on the presumption of innocence and the State’s burden of

proof. See Stephenson, 742 N.E.2d at 483 (noting that if prosecutor makes

improper statements shifting burden of proof, the error is cured with a proper

advisement made by the trial court). Therefore, this argument is unavailing.

[12] Finally, Hutchinson argues that the prosecutor committed misconduct when

telling the jury to “give the child justice, find him guilty.” Tr. Vol. II p. 199.

This Court has long held that “[i]t is misconduct for a prosecutor to request the

jury to convict a defendant for any reason other than his guilt or to phrase final

argument in a manner calculated to inflame the passions or prejudice of the

jury.” Neville v. State, 976 N.E.2d 1252, 1264 (Ind. Ct. App. 2012). But even

when this rule is violated, we will not reverse if the statement was “fleeting”

and could not have placed the defendant in grave peril or rendered a fair trial

impossible. Emerson v. State, 952 N.E.2d 832, 838 (Ind. Ct. App. 2011).

[13] We tend to agree that this statement, in a vacuum, suggests that the jury should

convict to give K.M. justice, which is improper. But it was made at the end of a

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 7 of 8 rebuttal that was filled with specific references to evidence in the record and

arguments as to why, based on that evidence, Hutchinson was guilty. We can

only find that this comment was fleeting and was far from placing Hutchinson

in grave peril or rendering a fair trial impossible. Therefore, this argument is

unavailing.

[14] As a final aside, we note that the jury found Hutchinson guilty of Level 4 felony

child molesting and not guilty of Level 1 felony child molesting. This result

shows that the jurors carefully considered and weighed all of the evidence and

the elements that needed to be proved beyond a reasonable doubt to convict.

Given a record that is full of evidence supporting Hutchinson’s guilt and a jury

that diligently exercised its responsibilities, even if we had found that any of the

above statements constituted misconduct, we would not have found that they

amounted to fundamental error.

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

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 8 of 8