[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Marc Rothenberg, Judge. Cause No.49G02-1302-FA-9107.
ATTORNEY FOR APPELLANT: KIMBERLY A. JACKSON, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; J. T. WHITEHEAD, Deputy Attorney General, Indianapolis, Indiana.
BARTEAU, Senior Judge. BARNES, J., and MATHIAS, J., concur.
BARTEAU, Senior Judge
STATEMENT OF THE CASE
Paul Phillips appeals from his conviction after a jury trial of one count of child molesting as a Class A felony. We affirm.
Phillips presents the following issues for our review:
I. Whether the trial court denied Phillips the right to an impartial jury and a fair trial under the federal and state constitutions by denying Phillips's motion for mistrial and motion to replace a juror after a juror asked a question, instead choosing to offer a curative instruction.
II. Whether the prosecutor engaged in prosecutorial misconduct amounting to fundamental error during closing argument.
III. Whether the trial court erred by instructing the jury about voluntary intoxication.
FACTS AND PROCEDURAL HISTORY
E.C., who lives with his mother, I.C., his father, J.C., and his brother, M.C., has known Penny Phillips and her husband, Paul, for a long time. I.C. had met Penny approximately one year before E.C. was born and the two families were close. Penny and Phillips frequently would babysit E.C. and M.C. while I.C. was working ten-hour shifts six days a week. Additionally, E.C. and his family visited Penny and Phillips at least once a week. E.C. and his brother viewed Penny and Phillips as grandparents, referring to them as Mamaw and Papaw. During his visits with Penny and Phillips, E.C. would go into their bedroom to watch cartoons, having done so since he was a toddler in diapers.
I.C.'s sister, Stacy, lived in a house near Penny and Phillips's home. On February 7, 2013, when E.C. was eight years old, and when Stacy was pregnant, I.C. stopped by Penny and Phillips's house with her children, so they could watch the children while I.C. checked on her sister's well-being. On that particular day, I.C. made several trips between houses until Stacy returned home from the hospital. M.C. went with his mother to check on Stacy while E.C. stayed with Penny and Phillips.
When E.C. went to Phillips's bedroom to watch cartoons, Phillips was already in the room lying down, but was awake. E.C. subsequently described the following events that occurred while E.C. was in Phillips's bedroom on that occasion. Phillips kissed E.C. on the mouth and the kiss was " inside" E.C.'s mouth. Tr. p. 54. Phillips touched E.C. on E.C.'s " pee pee" and on his " butt." Id. at 57-58. E.C. also said that Phillips forced him to touch Phillips's " pee pee" with E.C.'s hand. Id. at 60-61. Philips touched the inside of E.C.'s mouth with Phillips's " pee pee" and told E.C. to touch Phillips's " pee pee" with E.C.'s mouth. Id. at 53-54, 59. E.C. further stated that Phillips touched E.C.'s " butt" with Phillips's " pee pee." Id. at 57-59.
I.C. and M.C. had been gone about fifteen to twenty minutes to visit Stacy when Penny opened the closed door and walked into the bedroom where she observed that E.C. was performing oral sex on Phillips. Penny saw both E.C. and Phillips on the bed with Phillips lying on his side and E.C. under a blanket with his head down on Phillips's penis. Penny further observed that Phillips was awake and he sat up when she entered. In a state of disbelief over what she had seen, Penny became upset and began to cry. When she asked Phillips and E.C. what they were doing, Phillips replied that they were playing hide and seek, and covered himself with the blanket. Penny told E.C. to come out from under the blanket, and she asked him what was happening. E.C., who had been instructed to mimic Phillips's responses, said to her that " Paul made me play hide to go seek." Id. at 62.
Penny asked Phillips more than once to walk over toward her because she wanted to see if his pants were on. When Phillips ultimately stood up, his genitalia were completely out of his pants, which were unbuttoned and unzipped. Penny asked Phillips to walk with her to the bathroom nearby and demanded that Phillips show her his penis. Phillips's penis was wet because E.C. had been licking it. When Penny asked Phillips why his pants were unfastened, he denied that they were undone. At that point Penny was confused, nervous, and scared.
Penny directed E.C. to go to the front room with her, and made him sit near her. When she again asked E.C. what had happened, he would not speak about it. Penny then asked Phillips " why did you do this?" Id. p. 94. Phillips responded that E.C. had kissed him first, to which Penny replied that Phillips was the adult in that situation. Phillips asked Penny not to call the police, but she did so nonetheless. She called 911 twice, placing the second call after Phillips had left the house.
Indianapolis Metropolitan Police Officers Matthew Coffey, Seth Ferrell, and Matthew Cook responded to the dispatch reporting child molestation. Officer Coffey went directly to Penny's home at 50 South Colorado in response to the call while Officers Ferrell and Cook drove to the area to search for Phillips, who had left the house.
Officer Coffey observed E.C., who looked confused and embarrassed, and spoke with Penny, who was upset and crying. Penny told Officer Coffey that she had walked in on Phillips who was doing inappropriate things with a boy in the house. Penny gave a description of Phillips to Officer Coffey, who communicated that description over the police radio.
Officers Ferrell and Cook were told that Phillips was running west-bound on railroad tracks near Sherman Drive. After receiving the description of Phillips, Officers Ferrell and Cook were able to locate Phillips, who was walking quickly into traffic approximately half of a mile from his house. When Officer Ferrell apprehended Phillips, Phillips voluntarily stated " it wasn't me, I'm not the guy, you got the wrong guy." Id. at 187. After the officers handcuffed Phillips, he requested an ambulance and was transported to Wishard Hospital.
Officer Coffey chose not to interview E.C. because he wanted to wait for a detective to arrive and conduct that part of the investigation. When I.C. returned to Penny's house she observed that both Penny and E.C. were crying and that E.C. seemed upset and confused. I.C. spoke with officers there at the house and took E.C. to the Peyton Manning Children's ...