As Corrected June 3, 2014.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Marc T. Rothenberg, Judge. Cause No. 49G02-1206-FB-42411.
ATTORNEY FOR APPELLANT: SUSAN D. RAYL, Smith Rayl Law Office, LLC, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; CYNTHIA L. PLOUGHE, Deputy Attorney General, Indianapolis, Indiana.
BAKER, Judge. VAIDIK, C.J., concurs, and BAILEY, J., concurs in result.
Appellant-defendant Brandon Brummett asks this Court to reverse his convictions for Child Molesting as a class B felony, Child Molesting as a class C felony, and three counts of Sexual Misconduct with a Minor, class D felonies. More particularly, Brummett argues that prosecutorial misconduct placed him in grave peril and amounted to fundamental error. Additionally, Brummett argues that the testimony of K.A. was incredibly dubious and, therefore, there was insufficient evidence to support one of his convictions for sexual misconduct with a minor. Finally, Brummett contends that the trial court committed fundamental error when it admitted evidence that Brummett touched A.A. in other states on family vacations. We conclude that the prosecutor's continued misconduct did constitute fundamental error that placed Brummett in grave peril. Therefore, we reverse and remand for a new trial.
Brummett, aged twenty-three at the time of the trial, is the cousin of K.A., aged sixteen at the time of the trial, and A.A., aged fourteen at the time of the trial. The girls' father, Brummett's uncle, was incarcerated in West Virginia. Although the girls' mother, Iva Desonier, was divorced from their father, she encouraged the girls to spend time with their relations on their father's side.
K.A. told Brandon Clem, whom she dated from February 2012 until February 2013, that Brummett had been molesting her since she was nine years old. Clem convinced K.A. that she needed to tell Desonier. On March 20, 2012, Clem met with K.A. and Desonier. When K.A. tried to tell Desonier about Brummett, she became upset and had trouble speaking, so Clem told Desonier what K.A. had told him concerning Brummett. Desonier telephoned the penitentiary where the girls' father was located and had to explain the situation to a counselor before Father could return her call. When A.A. returned home from school that day, Desonier asked her if Brummett had ever touched her inappropriately. A.A. told Desonier that he had.
On June 21, 2012, the State charged Brummett with Count I, class B felony child molesting, Count II, class C felony child molesting, Count III, class D felony sexual misconduct with a minor, Count IV, class D felony sexual misconduct with a minor, and Count V, class D felony sexual misconduct with a minor. Brummett's jury trial began on March 4, 2013.
At the trial, K.A. testified that when she was nine or ten years old, Brummett touched the inside of her vagina underneath her clothes at their Grandmother's house. She also testified that, on another occasion, Brummett touched her vagina over her clothes at her Grandmother's house. K.A. stated that when she was fourteen, Brummett touched her vagina over her clothing at her Aunt Tena's house, and that in January 2012, Brummett touched her outside of her clothing at her Grandmother's house.
K.A. testified that, when Brummett touched her in January 2012, they were at Aunt Tammy's house. She, Aunt Tammy, Aunt Tena, her Grandmother, A.A., and Brummett were all playing Phase Ten at the kitchen table. She testified that, during the card game while they were all seated at the table, Brummett put his leg over hers and forced her legs apart, unzipped her jeans, and put his hand on her vagina over her panties for ten minutes. She further testified that while this happened, she would move her chair away from Brummett and he would move his towards her.
A.A. testified that Brummett began touching her when she was eight or nine years old. She testified that she was at her Grandmother's home, sleeping on the couch while Brummett slept on the floor. She further testified that he reached up and touched her on top of her clothing but did not say where he touched her. A.A. also testified that Brummett touched her inside her privates. She testified that another incident occurred at her Grandmother's house when she was eight or nine, during which Brummett touched her vagina outside her clothing for five minutes. She also testified that the last time something had happened was when they had been in West Virginia visiting her Father.
Brummett's jury trial concluded on March, 5, 2013; the jury found Brummett guilty on all charges. On April 3, 2013, the trial court imposed the following sentences, to be served concurrently: ten years imprisonment with three years suspended on Count I; four years imprisonment for Count II, and 545 days imprisonment on Counts III through IV.
Brummett now appeals.
DISCUSSION AND DECISION
I. Prosecutorial Misconduct
Brummett contends that the prosecutor engaged in misconduct that placed him in grave peril and rendered a fair trial impossible. Although Brummett did not object to the misconduct at trial, he argues that the repeated instances of misconduct resulted in fundamental error.
When reviewing a claim of prosecutorial misconduct, we will first determine whether the prosecutor engaged in misconduct.
Carter v. State, 956 N.E.2d 167, 169 (Ind.Ct.App. 2011). If this Court finds that there has been misconduct, we then determine " whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he should not have been subjected." Id. The gravity of the peril is not measured by the degree of impropriety of the conduct but, rather, by the probable persuasive effect of the misconduct on the jury's decision.
Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002). In order to preserve a claim of prosecutorial misconduct, the defendant must both object to the alleged misconduct and request an admonishment and move for a mistrial.
Cowan v. State, 783 N.E.2d 1270, 1277 (Ind.Ct.App. 2003).
Brummett did not object to the misconduct at trial and, therefore, did not properly preserve his claim. Thus, his argument is waived unless he establishes both the grounds for prosecutorial misconduct as well as the grounds for fundamental error.
Booher, 773 N.E.2d at 818. Fundamental error is a " substantial, blatant violation of due process" so prejudicial to the rights of the defendant that it renders
a fair trial impossible.
Hall v. State, 937 N.E.2d 911, 913 (Ind.Ct.App. 2010).
A. Comments Regarding Defense Counsel and Defense Lawyers Generally
Brummett argues that, during its closing argument, the State made three statements that were disparaging of Brummett's defense counsel and the role of defense counsel in general. First, Brummett contends the State promoted a " good guy/bad guy" theme throughout its closing argument when it stated:
First, I'd like to start as I typically always have to do ah, at this point in a trial and apologize for any rude um, facial expressions I might have made or um, If you thought I got to [sic] angry or to [sic] upset at times I do apologize it's just in my um, nature and I trust that if it was a child that any of you loved having to come into this courtroom you would appreciate um, that same conviction or anger, call it whatever you want, coming out of the State if it was your kid coming on the stand.
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. . . when [the defense attorney] says that it's, it's an empty case or it's a hollow case or it falls short, that's frustrating because we do tell our kids to come forward and tell. And then time and time and time again they do and this is what happens. We tell them to tell us if you're touched, tell us immediately. Come and tell us, we'll keep you safe. We'll protect you. The prosecutors, the police will do things for you but we don't explain to them that all of this will happen. That they'll come and have to speak to you strangers. That there will be people in the back of the courtroom. That they'll have to answer questions for a defense attorney. We don't teach them that what that all entails and then when they're strong enough to do it, when they have the courage or what have you, whatever you want to call it, to do it, then we do this and we say it's not enough. It's not good enough. You coming in and telling the truth when you couldn't possibly give us anymore isn't enough and that's empty and that's hollow and that falls short. And if that's the case and if that's what we're gonna [sic] say in this county then we should start telling our kids not to come forward anymore.
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If it was [sic] my job to pull the wool over you guy's [sic] eyes I wouldn't be here number one and number two, the State wouldn't have been honest about bad facts like Dad being in prison.
Tr. p. 207-8, 208-9, 211.
Additionally, Brummett contends the State's comment below, also made during closing argument, " impl[ies] that because of what defense counsel did in this case, and in child molest cases generally, child molesters 'get away with' their crimes[.]" Appellant's Br. p. 13.
We see these cases on the news and I think all of us think how do these guys get away with that. Or we see them on a Dateline or a whatever and think how do they get away with this. Again, this is how they get away with it. Because this process is hard. It's hard for kids. But this is what they do and it comes down to little things. Little things like I don't know if any of you noticed when [defense attorney] was questioning the girls he stayed at his table. Why, so that they would have to look at him. They have to look right at him. But he questioned his client he was right over there. Why, so that Mr. Brummett is looking at you guys. That's why. How do you make a fourteen or sixteen year
old girl even more uncomfortable to talk about her vagina, well you make her look at the guy who touched it.
Tr. at 209-10. Finally, Brummett claims the State attacked defense counsel's integrity when it stated, during closing argument:
[Brummett] knew in March they were accusing him. And in those months he couldn't come up with anything. But once he hired an attorney and they were able to kind of talk things through all of a sudden it's this money issue which doesn't make any since [sic] anyways and is ...