FILED
                                                              Feb 22 2017, 6:26 am

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Ana M. Quirk                                               Curtis T. Hill, Jr.
Muncie, Indiana                                            Attorney General of Indiana
                                                           J.T. Whitehead
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Thomas E. Stettler,                                        February 22, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A04-1607-CR-1638
        v.                                                 Appeal from the Delaware Circuit
                                                           Court
State of Indiana,                                          The Honorable Linda Ralu Wolf,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           18C03-1212-FB-52



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017             Page 1 of 15
                                             Case Summary
[1]   After a jury trial, Thomas E. Stettler (“Stettler”) was convicted of Child

      Molesting, as a Class B felony.1 He now appeals.


[2]   We affirm.



                                                       Issues
[3]   Stettler raises two issues for our review, which we restate as:


           I.   Whether the trial court abused its discretion in admitting testimony of

                Stettler’s victim concerning his prior conduct toward her under Ind.

                Evidence Rule 404(b); and

          II.   Whether the State engaged in prosecutorial misconduct in closing

                argument rising to the level of fundamental error.



                              Facts and Procedural History
[4]   In 2012, Stettler, then eighteen years old, lived in a house in Muncie with his

      mother, his fiancée, and their infant son. In prior years, Stettler and his mother

      had shared a house with numerous relatives, including S.Y.; S.Y.’s sister, C.Y.;

      and their mother.




      1
        Ind. Code § 35-42-4-3(a). Indiana’s criminal statutes underwent substantial revision in 2013; we refer
      throughout our opinion to the statutes in effect at the time of Stettler’s offense.

      Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017                       Page 2 of 15
[5]   On the evening of Friday, October 26, 2012, Stettler’s mother invited S.Y., then

      twelve years old, and C.Y. to visit and to go with the family to a Halloween-

      themed corn maze. Because of some prior interactions with Stettler, S.Y. was

      somewhat hesitant to go, but eventually S.Y. and C.Y. went to Stettler’s home.


[6]   On either that Friday or the following Saturday, the group went to the corn

      maze. They left the maze late in the evening, and S.Y. and C.Y. decided to

      sleep on the couch at Stettler’s home. The two laid down side by side, each

      with her head at an opposite end of the couch, with S.Y. lying closer to the

      front edge of the couch.


[7]   At some point during the night, Stettler left the room he shared with his fiancée

      and child, and came into the living room where S.Y. and C.Y. were sleeping.

      After briefly standing over the couch and looking at S.Y., Stettler sat down in a

      chair immediately next to the couch. Stettler then pulled down S.Y.’s pants and

      put his penis into S.Y.’s “butt.” (Tr. Vol. 2 at 89.) He also moved S.Y. and put

      his penis into her mouth. S.Y. pretended to be asleep during this, and Stettler

      stopped when S.Y. moved.


[8]   C.Y. had awoken briefly during the night and had seen Stettler come into the

      living room and look down at S.Y., but went back to sleep soon afterward.

      After the girls returned home on the following Sunday, S.Y. told C.Y. about

      what had happened that Friday. S.Y. then told her mother that she did not

      want to go back to Stettler’s house. When S.Y.’s mother asked why, S.Y. “told

      her that [Stettler] was raping me.” (Tr. Vol. 2 at 94.)


      Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017   Page 3 of 15
[9]    A police investigation ensued. Police interviewed Stettler and, subsequent to

       the interview, arrested him.


[10]   On December 7, 2012, the State charged Stettler with Child Molesting. On

       August 29, 2014, the State filed its notice of intent to introduce evidence under

       Evidence Rule 404(b). The cause was set for a jury trial and, after numerous

       continuances, a jury trial was conducted from May 23 to May 25, 2016.

       During the trial, Stettler objected to testimony from S.Y. concerning prior

       alleged sexual conduct on Stettler’s part, and the trial court admitted the

       evidence over his objection. In addition, at one point during closing argument,

       Stettler objected to a statement made by the State, but did not seek a jury

       admonishment or mistrial. At the end of the trial, the jury found Stettler guilty

       as charged. The trial court entered judgment of conviction against Stettler on

       May 26, 2016, and ordered a presentence investigation.


[11]   On June 13, 2016, a sentencing hearing was conducted. At the conclusion of

       the hearing, the trial court sentenced Settler to fifteen years imprisonment.


[12]   This appeal ensued.



                                  Discussion and Decision
                                 Prior Conduct toward Victim
[13]   Stettler contends that the trial court’s admission of testimony from S.Y.

       concerning Stettler’s prior conduct toward her was impermissible under



       Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017   Page 4 of 15
       Evidence Rule 404(b).2 We review such decisions for an abuse of discretion,

       Thompson v. State, 960 N.E.2d 224, 233 (Ind. 1997), which occurs when a

       decision is clearly against the logic and effect of the facts and circumstances

       before the trial court. McClendon v. State, 910 N.E.2d 826, 832 (Ind. Ct. App.

       2009), trans. denied.


[14]   Generally, evidence that is relevant—that is, evidence that has probative value

       as to an issue of fact in a case—is also admissible. Evid. R. 401 & 402.

       Evidence Rule 403 provides that where the probative value of the evidence is

       substantially outweighed by a danger of unfair prejudice, confusion of the

       issues, misleading the jury, undue delay, or needless presentation of cumulative

       evidence, otherwise relevant evidence may be excluded. Evidence Rule 404(b)

       further limits the admissibility of otherwise relevant evidence, and provides:


                (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
                admissible to prove a person's character in order to show that on
                a particular occasion the person acted in accordance with the
                character.


                (2) Permitted Uses; Notice in a Criminal Case. This evidence may be
                admissible for another purpose, such as proving motive,
                opportunity, intent, preparation, plan, knowledge, identity,




       2
        Stettler also argues in his brief that laws related to the non-disclosure of juvenile delinquency records were
       violated through admission of Rule 404(b)-related evidence, and that the evidence could not be properly
       admitted for impeachment or sentencing purposes. Testimony concerning prior acts does not constitute the
       disclosure of records of juvenile proceedings; Stettler did not testify, thereby obviating any concern with
       impermissible impeachment; and the evidence was not admitted for purposes of sentencing. We accordingly
       do not address Stettler’s arguments on those points.

       Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017                       Page 5 of 15
               absence of mistake, or lack of accident. On request by a
               defendant in a criminal case, the prosecutor must:


               (A) provide reasonable notice of the general nature of any such
               evidence that the prosecutor intends to offer at trial; and


               (B) do so before trial—or during trial if the court, for good cause,
               excuses lack of pretrial notice.


[15]   “The well established rationale behind Evidence Rule 404(b) is that the jury is

       precluded from making the ‘forbidden inference’ that the defendant had a

       criminal propensity and therefore engaged in the charged conduct.” Thompson,

       690 N.E.2d at 233.


               When the defendant objects on the ground that the admission of
               particular evidence would violate Rule 404(b), the following test
               should be applied: (1) the court must determine that the evidence
               of other crimes, wrongs, or acts is relevant to a matter at issue
               other than the defendant's propensity to commit the charged act;
               and (2) the court must balance the probative value of the
               evidence against its prejudicial effect pursuant to Rule 403.


       Id.


[16]   If the “sole apparent purpose” of evidence of a prior wrongful act is “to show

       the defendant acted in conformity with that character,” the evidence is

       inadmissible. Pierce v. State, 29 N.E.3d 1258, 1269 (Ind. 2015). “But such

       evidence may be admissible for ‘other purposes,’ provided it survives Rule 403

       balancing.” Id. (quoting Halliburton v. State, 1 N.E.3d 670, 681-82 (Ind. 2013)).

       “[I]t is sufficient that the evidence of … prior bad acts is relevant to a matter at

       Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017   Page 6 of 15
       issue, other than…propensity.” Iqbal v. State, 805 N.E.2d 401, 408 (Ind. Ct.

       App. 2004), trans. denied.


[17]   Here, the State sought to introduce S.Y.’s testimony concerning events that

       occurred with Stettler several years prior to the conduct charged. At the time of

       the charged offense, S.Y. was twelve years old. The State on direct

       examination solicited testimony from S.Y. concerning Stettler having

       repeatedly performed sexual acts on S.Y. from the time she was eight years old

       on the occasions when S.Y. and her family lived in the same home as Stettler

       and his family.


[18]   When the State introduced this evidence, Stettler objected that S.Y.’s testimony

       was “highly inflammatory” and “does not prove any of the things allowed

       under 404B [sic] as a purpose for such testimony.” (Tr. Vol. 2 at 73.) The State

       responded that S.Y.’s testimony “goes to plan, absence of fact [sic], and a

       motive that he committed the same type of behavior it’s a plan and like a M.O.

       basically the time of night, how he would do it, that she was always asleep.”

       (Tr. Vol. 2 at 72-73.) The trial court admitted the evidence over Stettler’s

       objection.


[19]   The State’s argument for admissibility centered on “plan” as used in Rule

       404(b). One branch of the “plan” exception is for acts that are part of a

       common scheme or plan, that is, evidence of acts that constitute an

       uninterrupted transaction, and of which the charged act is one. Greenboam v.

       State, 766 N.E.2d 1247, 1254-55 (Ind. Ct. App. 2002). This Court has


       Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017   Page 7 of 15
       previously held that “‘monthly molesting which continued for six years’” did

       not constitute an uninterrupted transaction within the contemplation of Rule

       404(b). Id. at 1254 (quoting Sloan v. State, 654 N.E.2d 797, 799 (Ind. Ct. App.

       1995), abrogated on other grounds by Hicks v. State, 690 N.E.2d 215, 220-221 (Ind.

       1997)). Likewise, observing that “‘an uninterrupted transaction requires that

       the crimes be committed in conjunction with each other,’” we have held that

       evidence of a defendant’s prior act, eleven months apart from the charged

       offense and in a separate county, but committed in a similar way—by posing as

       a police officer, initiating a traffic stop, and committing rape—did not amount

       to a common scheme or plan. Id. at 1255 (quoting Moore v. State, 653 N.E.2d

       1010, 1014 (Ind. Ct. App. 1995), trans. denied)).


[20]   Here, the prior bad acts solicited through S.Y.’s testimony do not give evidence

       of an uninterrupted transaction. The prior acts elicited in S.Y.’s testimony were

       committed, in some cases, three years prior to the single act alleged in the

       instant case. There was no evidence that the prior acts were in any way

       committed in conjunction with the charged offense, and thus there was no basis

       upon which to conclude that the prior acts were evidence of a common scheme

       or plan.


[21]   The second branch of the “plan” exception in Rule 404(b) relates to questions

       of identity and motive, and often involve an examination of the similarity of the

       prior bad acts to the charged offense, or to the relationship between the

       defendant and the victim as means for showing motive. See Hicks v. State, 690

       N.E.2d 215, 221-22 (Ind. 1997). Evidence of prior acts may be probative in that

       Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017   Page 8 of 15
       respect. Id. (citing, inter alia, Ross v. State, 676 N.E.2d 339, 349 (Ind. 1996);

       Price v. State, 619 N.E.2d 582, 584 (Ind. 1993)) (holding as relevant in a murder

       case a history of domestic violence involving defendant and his victim). Yet the

       State did not articulate how this would give evidence of either a plan or a

       specific motive, there was no dispute as to identity such that a more distinctive

       modus operandi was at issue, and there was no evidence of any particularly

       “unique” manner of committing the prior uncharged offenses. Lannan v. State,

       600 N.E.2d 1334, 1341 (Ind. 1992).


[22]   Further, we note that among the State’s rationales for admission at trial was

       “absence of fact [sic],” which we take to mean absence of mistake. Yet the

       questions of intent and mistake were not put at issue. Intent and mistake often

       go hand-in-hand under Rule 404(b). See, e.g., Goldsberry v. State, 821 N.E.2d

       447, 455-56 (Ind. Ct. App. 2005) (addressing intent and mistake with respect to

       motive and prior relationships between defendant and victim). “[T]he intent

       exception is available only ‘when a defendant goes beyond merely denying the

       charged culpability and affirmatively represents a claim of particular contrary

       intent.’” Goldsberry, 821 N.E.2d at 455 (quoting Wickizer v. State, 626 N.E.2d

       795, 799 (Ind. 1993)).


[23]   In his opening argument, Stettler attacked S.Y.’s credibility and argued that the

       evidence would show that he had not committed any offense against her; no

       argument was made as to intent. And while there is no requirement that a

       defendant put into question the matter of mistake or motive, the State’s opening

       argument and the testimony offered to that point in the trial did not suggest a

       Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017   Page 9 of 15
       question concerning motive or mistake. See Iqbal v. State, 805 N.E.2d 401, 407-

       08 (Ind. Ct. App. 2004) (addressing the use of prior acts to support a claim of

       motive given a history of hostile interactions between two parties). There was

       no connection between the prior bad acts to which S.Y. testified and the

       question of mistake or accident. We accordingly conclude that S.Y.’s

       testimony as to prior bad acts allegedly committed by Stettler was inadmissible

       under Evidence Rule 404(b).


[24]   That does not end the inquiry, however. Even when a trial court abuses its

       discretion in admitting evidence under Rule 404(b), “we will only reverse for

       that error if ‘the error is inconsistent with substantial justice’ or if ‘a substantial

       right of the party is affected.’” Iqbal, 805 N.E.2d at 406 (quoting Timberlake v.

       State, 690 N.E.2d 243, 255 (Ind. 1997)); also Ind. Trial Rule 61. Even though

       S.Y.’s testimony concerning prior acts should not have been admitted, then,

       Stettler’s conviction will stand if the erroneous admission of evidence did not

       affect his substantial rights.


[25]   Our review of the evidence at trial discloses that S.Y. testified in detail about

       the events of the weekend of October 26, 2012. A portion of S.Y.’s account—

       Stettler’s presence in the living room during the middle of the night in close

       proximity to S.Y., and Stettler approaching a sleeping S.Y.—was corroborated

       by C.Y.’s testimony. S.Y.’s testimony concerning Stettler’s treatment of her,

       including buying her presents and giving her money for skating and other

       activities, was corroborated in Stettler’s recorded interview with police. Muncie

       Police Department Detective Linda Cook testified that this conduct was

       Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017   Page 10 of 15
       characteristic of “grooming” a victim. (Tr. Vol. 2 at 200.) And when asked in

       his interview with police what he would say to S.Y., Stettler responded that he

       would say, “I’m sorry.” (Ex. 2.) In light of the foregoing, we conclude that any

       error in the trial court’s admission of impermissible evidence concerning prior

       bad acts was harmless.


                                    Prosecutorial Misconduct
[26]   We turn now to Stettler’s second issue on appeal, whether the State engaged in

       prosecutorial misconduct during closing argument.


[27]   The Indiana Supreme Court has set forth the legal standards under which we

       review a claim of prosecutorial misconduct:


               In reviewing a claim of prosecutorial misconduct properly raised
               in the trial court, we 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 or she would not have been subjected” otherwise.
               Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), quoted in Castillo
               v. State, 974 N.E.2d 458, 468 (Ind. 2012). A prosecutor has the
               duty to present a persuasive final argument and thus placing a
               defendant in grave peril, by itself, is not misconduct. Mahla v.
               State, 496 N.E.2d 568, 572 (Ind. 1986). “Whether a prosecutor’s
               argument constitutes misconduct is measured by reference to
               case law and the Rules of Professional Conduct. The gravity of
               peril is measured by the probable persuasive effect of the misconduct
               on the jury’s decision rather than the degree of impropriety of the
               conduct.” Cooper, 854 N.E.2d at 835 (emphasis added) (citations
               omitted). To preserve a claim of prosecutorial misconduct, the
               defendant must—at the time the alleged misconduct occurs—
               request an admonishment to the jury, and if further relief is

       Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017   Page 11 of 15
               desired, move for a mistrial. Id.; see also Maldonado v. State, 265
               Ind. 492, 498, 355 N.E.2d 843, 848 (1976).


       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014).


[28]   Here, Stettler did not request an admonishment to the jury or move for a

       mistrial, instead objecting only once to a statement during the State’s closing

       arugment. In such instances, appellate review of a claim of prosecutorial

       misconduct is waived for failure to preserve the claim of error. Id. When a

       defendant has waived review of a claim of prosecutorial misconduct for

       appellate review, he “must establish not only the grounds for prosecutorial

       misconduct but must also establish that the prosecutorial misconduct

       constituted fundamental error.” Id. at 667-68. Fundamental error is an

       extremely narrow exception to the waiver rule, and exists only when the trial

       court’s errors are so prejudicial that a fair trial was made impossible. Id. at 668.


[29]   We address each of Stettler’s contentions concerning the deputy prosecutor’s

       closing arguments in turn. Stettler’s first contention is that the prosecutor

       impermissibly commented upon his decision not to testify. The Fifth

       Amendment to the United States Constitution provides that a person shall not

       be compelled to testify against himself in a criminal proceeding. Cameron v.

       State, 22 N.E.3d 588, 592 (Ind. Ct. App. 2014). Moreover, “[t]he Fifth

       Amendment prohibits the prosecution from commenting on a defendant’s

       decision not to testify.” Id. This protection is violated when the prosecution

       “makes a statement that is subject to reasonable interpretation by a jury as an

       invitation to draw an adverse inference from a defendant’s silence.” Thomas v.
       Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017   Page 12 of 15
       State, 9 N.E.3d 737, 742 (Ind. Ct. App. 2014). However, “a prosecutor’s

       statement that simply sets out for the jury the procedure which the trial may

       follow is permissible provided it does not also imply to the jury that the

       defendant’s silence at the trial evidences guilt.” DeBerry v. State, 659 N.E.2d

       665, 668 (Ind. Ct. App. 1995).


[30]   During its closing argument, the State addressed the video recording of

       Stettler’s interview with police. In that context, the State acknowledged a jury

       instruction that “the Defendant doesn’t have to testify and we absolutely agree.

       He has that right.” (Tr. Vol. 3 at 173.) Stettler objected and argued that it was

       entirely forbidden to mention that a defendant did not testify. The trial court

       observed that the State had done no more than recite a jury instruction and

       overruled the objection. Without further objection, the State’s argument

       continued on to address Stettler’s conduct in the video, suggesting that Stettler

       might have objected more strenuously during the police interview, and

       statements during voir dire concerning reasons witnesses might choose not to

       testify. None of this suggested that Stettler’s decision not to testify implied his

       guilt, let alone rose to the level of fundamental error.


[31]   Stettler also contends that the prosecution made statements that demeaned

       defense counsel. During the trial, the prosecution observed that the defense’s

       strategy was to claim that S.Y. was lying, and argued that S.Y. was subjected to

       more vigorous questioning during cross-examination than the police had used

       upon Stettler during the recorded interview that had been played for the jury.

       Stettler contends that these arguments impermissibly demeaned defense counsel

       Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017   Page 13 of 15
       and were statements to the jury that invited the jury to conclude that counsel

       was attempting to mislead the jury, and directs us to Marcum v. State, 725

       N.E.2d 852 (Ind. 2002), in which the prosecution plainly stated that defense

       counsel sought to mislead a jury.


[32]   Yet these arguments did not include statements that Stettler’s counsel was

       trying to mislead the jury, and even acknowledged that defense counsel was

       entitled to observe in opening argument that police lied to Stettler. Stettler also

       contends that the prosecution impermissibly stated that defense counsel’s

       opinion on whether S.Y. was lying “is not a situation that he should submit to

       you.” (Tr. Vol. 3 at 159.) This contention ignores the broader context of the

       closing argument, in which the prosecutor also told the jury that her opinion on

       S.Y.’s truthfulness also “doesn’t matter” and that opining whether S.Y. was

       telling the truth wasn’t “my job.” (Tr. Vol. 3 at 159.) The prosecutor did not

       impugn defense counsel or impermissibly suggest that defense counsel was

       trying to mislead the jury.


[33]   Finally, Stettler contends that the prosecution attempted to vouch for S.Y.’s

       truthfulness by asking the jury to consider whether it appeared easy for S.Y. to

       testify. A prosecutor is not permitted to vouch for a witness’s truthfulness.

       Brummett v. State, 10 N.E.3d 78, 86 (Ind. Ct. App. 2014), reaffirmed on reh’g, 21

       N.E.2d 840, affirmed, 24 N.E.3d 965 (Ind. 2015). Yet the prosecution did not

       make the kinds of explicit statements concerning whether the jury should

       believe S.Y. that were at issue in Brummett, and our review of the record

       discloses that on numerous occasions S.Y. cried, and at least once suffered what

       Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017   Page 14 of 15
       appeared to be a panic attack. (Tr. Vol. 2 at 123.) Thus, the prosecutor’s

       statements concerning S.Y.’s difficulties testifying were at most restatements to

       the jury of what they had already seen during the trial. We accordingly

       conclude that there was no prosecutorial misconduct, and thus no fundamental

       error.



                                                Conclusion
[34]   The trial court’s admission of evidence barred by Evidence Rule 404(b) was

       harmless error. The prosecution did not engage in misconduct during closing

       arguments, and there was accordingly no fundamental error.


[35]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 18A04-1607-CR-1638 | February 22, 2017   Page 15 of 15