MEMORANDUM DECISION FILED
Mar 22 2016, 9:42 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Hilary Bowe Ricks
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Fred Baumgardner, March 22, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1507-CR-917
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Annie Christ-
Appellee-Plaintiff. Garcia, Judge
The Honorable Ronnie Huerta,
Commissioner
Trial Court Cause No.
49F24-1302-FD-12186
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Fred Baumgardner (Baumgardner), appeals his
conviction for sexual battery, a Class D felony, Ind. Code § 35-42-4-8(a)(1)(A)
(2013), and battery, a Class B misdemeanor, I.C. § 35-42-2-1(a).
[2] We affirm.
ISSUE
[3] Baumgardner raises one issue on appeal, which we restate as follows: Whether
the State committed prosecutorial misconduct by improperly vouching for its
own witness.
FACTS AND PROCEDURAL HISTORY
[4] On January 19, 2013, Baumgardner and his long-time friend and former sexual
partner, D.G., met for dinner, watched a performance, and each consumed
approximately four drinks and three shots of alcoholic beverages. At some
point after midnight, they went to Baumgardner’s residence, and D.G. asked
Baumgardner if he could spend the night there because he did not want to risk
driving intoxicated. They went downstairs to Baumgardner’s room in the
basement where they removed their pants and laid down on Baumgardner’s
bed. Baumgardner attempted to interest D.G. in sexual intercourse, but D.G.
refused stating that he had a boyfriend. After kissing D.G.’s neck and lips,
Baumgardner pulled D.G.’s underwear down and “grabbed [his] penis.”
(Transcript p. 16). D.G. continued to resist, but Baumgardner, while “holding
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[D.G.] down” with one hand, “[spat] into his [other] hand[,] put it on his
penis[,] and inserted it into [D.G.’s] anus.” (Tr. pp. 17-18). Baumgardner kept
repeating to D.G., “[W]hat your boyfriend doesn’t know won’t hurt him.” (Tr.
p. 18). D.G. finally “lost it”—he rolled off the bed, put his clothes on, and left.
(Tr. p. 18).
[5] Two days later, on January 22, 2013, D.G. reported the incident to law
enforcement and brought with him his blood-stained underwear. D.G. was
interviewed by Indianapolis Metropolitan Police Department’s (IMPD)
Detective David Miller (Detective Miller), who sent him to Methodist Hospital
for a sexual assault examination. After obtaining a search warrant for a buccal
swab, Detective Miller went to Baumgardner’s residence to interview
Baumgardner and execute the warrant on January 28, 2013. Baumgardner first
insisted that D.G. never entered his residence, but then stated that D.G. entered
the residence to use the restroom. When Detective Miller asked him why he
was lying, Baumgardner indicated that he would retain counsel. Detective
Miller executed the warrant and transported Baumgardner’s buccal swab to
IMPD’s property room. Baumgardner’s DNA was later matched with the
DNA material collected from D.G.’s underwear.
[6] On March 19, 2013, the State filed an Information charging Baumgardner with
Count I, sexual battery, a Class D felony; and Count II, battery, a Class B
misdemeanor. At a jury trial on May 12, 2015, the State called D.G., Detective
Miller, and a DNA analyst of the Indianapolis-Marion County Forensic
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Services Agency to testify. Following the testimonies of the State’s witnesses,
the State made its closing argument:
[State]: So at the beginning of the trial [my colleague] told you
that you would hear from [D.G.] and he would tell you about
what happened to him that night um, the night of [January 19,
2013,] into the early morning hours of [January 20, 2013]. And
what you heard was [D.G.] tell you the truth and you heard
some corroborating evidence that went along with that. You
heard [Baumgardner’s] statement through [Detective Miller] that
they were friends, they’d known each other for a while. They
had engaged in intercourse before … [Baumgardner] actually
said they only had sex one time and the victim, [D.G.],
indicate[d] that they actually had um, sex more than that[;] so he
was telling the truth about that. He didn’t hide the fact that he
had sex with...
[Defense]: I’m going to object at this point to her testifying that
someone was telling the truth.
(Tr. p. 94).
[7] The trial court sustained the objection, and the State continued:
[State]: You also heard them say that they both agree that they
were friends, that they’d known each other for quite a while and
um, that there was no reason for anything going on and bad on
(sic.) their relationship. They um, hadn’t talked to each other for
a while and then they um, meet each other up to just catch up
right, like friends do. You text each other and then you see each
other. There was no conversation about sex uh, before or after
when they were out drinking at the bar, there was no
conversation about sex on the drive home. [D.G.] told you[, “]I
was too drunk to drive[,”] so they [went] home[;] he told you,
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[“H]onestly, I drunk a lot that night, okay maybe it was four
beers maybe it…[”]
[Defense]: Judge again the word honestly, truth all of those [the
State] can’t refer to those in closing argument.
[Court]: Okay, [the State] please refrain from um, those specific
words.
(Tr. p. 95).
[8] Finally, when discussing the DNA evidence from D.G.’s underwear and its
match to Baumgardner’s DNA, the State again stated, “[D.G.] was honest, oh
sorry, I will not use that word, he tried to tell you the truth about what would
happen and you can believe that because he told you everything about their
relationship.” (Tr. p. 97). At the conclusion of the jury trial, Baumgardner was
found guilty as charged. On June 30, 2015, the trial court sentenced
Baumgardner to an aggregate term of 730 days of imprisonment suspended to
probation.
[9] Baumgardner now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] We first note that the State did not file an appellee’s brief. The obligation of
controverting arguments presented by the appellant properly remains with the
State. Bovie v. State, 760 N.E.2d 1195, 1197 (Ind. Ct. App. 2002). When the
appellee does not submit a brief, the appellant may prevail by making a prima
facie case of error—an error at first sight or appearance. Id. However, we are
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still obligated to correctly apply the law to the facts of the record to determine if
reversal is required. Id.
[11] Baumgardner alleges that the prosecutor committed misconduct by improperly
vouching for the State’s witness. Specifically, in her closing argument, the
prosecutor stated that Baumgardner and D.G. “had … sex more than [once] so
[D.G.] was telling the truth about that.” (Tr. p. 94). The prosecutor further
stated to the jury, “[D.G.] told you[, ‘]I was too drunk to drive[,’] so they [went]
home[;] he told you, [‘H]onestly, I drunk a lot that night, okay maybe it was
four beers maybe it…[’]” (Tr. p. 95). Finally, the prosecutor stated, “[D.G.]
was honest, oh sorry, I will not use that word, he tried to tell you the truth
about what would happen and you can believe that because he told you
everything about their relationship.” (Tr. p. 97).
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. A
prosecutor has the duty to present a persuasive final argument
and thus placing a defendant in grave peril, by itself, is not
misconduct. 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. 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 desired, move
for a mistrial.
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Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (internal citations omitted), reh’g
denied.
[12] We have previously held that it is inappropriate for a prosecutor to make an
argument which takes the form of personally vouching for a witness. Gaby v.
State, 949 N.E.2d 870, 880 (Ind. Ct. App. 2011). As set forth in the Rules of
Professional Conduct:
A lawyer shall not ... in trial, allude to any matter that the lawyer
does not reasonably believe is relevant or that will not be
supported by admissible evidence, assert personal knowledge
of facts in issue except when testifying as a witness, or state a
personal opinion as to the justness of a cause, the credibility of a witness,
the culpability of a civil litigant or the guilt or innocence of the accused[.]
Ind. Professional Conduct Rule 3.4(e) (emphasis added). However, a
prosecutor may comment on the credibility of the witness if the assertions are
based on reasons which arise from the evidence. Gaby, 949 N.E.2d at 881.
[13] Baumgardner asserts that the prosecutor’s conduct in this case resembles the
prosecutor’s conduct in Gaby “to a tee.” (Appellant’s Br. p. 13). In Gaby, a
child molestation case that was tried more than ten years after the alleged
conduct, the State’s case was based on the child’s recollection of the events. Id.
at 873. During closing argument, the prosecutor stated that she was
“confident” that the jury would “come to the same conclusion” that she and the
police detectives had come to. Id. at 881. The prosecutor continued, “I cannot
and would not bring charges that I believe were false.” Id. The prosecutor
finally stated, “I can tell you that with a guilty verdict on this case I will be able
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to sleep fine tonight. Just fine. In fact, better than fine. You will be able to
also.” Id. We found that the prosecutor’s remarks constituted improper
vouching for the child’s credibility, which was the central issue in the case. Id.
As such, we held that
[a]lthough we recognize that the prosecutor’s comments were in
response to [the defendant’s] argument that [the child’s]
accusations were false, the prosecutor’s response still crosse[d]
the line into improper vouching as her comments were not based
solely on reasons which arose from the evidence, but rather,
asserted a personal knowledge of the facts at issue.
Id.
[14] Nonetheless, we find Baumgardner’s reliance on Gaby to be misplaced.
Baumgardner argues that “D.G.’s credibility, or lack thereof, was really the
only issue for the jury to decide.” (Appellant’s Br. p. 9). He acknowledges that
the “uncorroborated testimony of a single witness,” a testimony similar to the
child’s testimony in Gaby, could be deemed sufficient to sustain a conviction on
appeal. (Appellant’s Br. p. 17). Baumgardner continues, “Sufficient does not
mean overwhelming, however; there were parts of D.G.’s testimony that
seemed implausible, but the State diminished their affect [sic] by arguing that if
[D.G.] was honest about some of it, he must be truthful about all of it.”
(Appellant’s Br. p. 17). We disagree. While it is true that parts of D.G.’s
testimony seemed implausible, his testimony was not the only evidence
presented to the jury. Contrary to Baumgardner’s argument and unlike the
child’s testimony in Gaby, D.G.’s testimony was corroborated by other
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evidence, such as the physical DNA evidence and Detective Miller’s testimony
at trial.
[15] Further, our review of the record indicates that the prosecutor’s comments
during her closing argument were not unfounded attempts to bolster D.G.’s
credibility, but were assertions and conclusions, albeit poorly worded,
sufficiently supported by the evidence presented at the trial. Specifically, the
prosecutor’s remarks regarding Baumgardner and D.G.’s sexual relationship
were supported by D.G.’s numerous admissions during the trial, the DNA
material found in D.G’s underwear that matched Baumgardner’s DNA, and
Detective Miller’s testimony, who testified that Baumgardner informed him
that “they were friends but that they had sex[;] it was on one other occasion …
threesome with a, with [an] ex-boyfriend or boyfriend at the time.” (Tr. p. 55).
The prosecutor’s statement when she said, “[D.G.] told you[, ‘]I was too drunk
to drive[,’] so they [went] home[;] he told you, [‘H]onestly, I drank a lot that
night, okay so maybe it was four beers maybe it…[,’]” was not even vouching
because the prosecutor was quoting and paraphrasing D.G.’s statement, where
the adverb “honestly” in the context of the whole statement served to indicate
the speaker’s attitude.
[16] In sum, although the objectionable words somewhat bolstered the credibility of
the witness and the State should have refrained from using these specific words
after two sustained objections, we find that the prosecutor’s statements in their
entirety were nonetheless supported by the evidence and the effect of the
specific words on the jury’s decision was minimal because the jury received
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proper preliminary and final instructions. See, e.g., Neville v. State, 976 N.E.2d
1252, 1263-65 (Ind. Ct. App. 2012) (the defendant was not placed in grave peril
by prosecutor’s statement because the trial court’s preliminary and final jury
instructions diminished any persuasive effect the prosecutor’s comments might
have had on the jury’s decision if left unanswered), trans. denied; Stephenson v.
State, 742 N.E.2d 463, 485 (Ind. 2001) (“Having found that any prosecutorial
impropriety which may have occurred was de minimus or otherwise overcome
by the trial court’s admonishments and instructions, we are unable to conclude
that Defendant was placed in grave peril.”). Specifically, in its preliminary
instructions, the trial court informed the jury that it must base its decision only
on the evidence presented during the trial and the trial court’s instructions on
the law. In its Preliminary Instruction No. 15, the trial court tendered:
When the evidence is completed, the State and the Defense will
make final statements. These final statements are not evidence
but are given to assist you in evaluating the evidence. Each side
is also permitted to argue, to characterize the evidence and to
attempt to persuade you to particular verdicts. You may accept
or reject those arguments as you see fit.
(Appellant’s App. p. 115).
[17] In its Final Instruction No. 8, the trial court also stated:
The unsworn statements or comments of the Defense and the
Prosecutor should not be considered as evidence in this case. It
is your duty to determine the facts from the testimony and the
evidence admitted by the [trial court] and given in your presence
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and you should disregard any and all information that you may
derive from any other source.
(Appellant’s App. p. 132).
[18] Under these circumstances, we find that the jury instructions were sufficient to
overcome any potential harm to Baumgardner from the prosecutor’s use of the
specific words. We further find that, when referring to D.G.’s credibility, the
prosecutor did not base her comments on her personal opinion, but instead
based it on the evidence presented at the trial. As such, we conclude that the
prosecutor’s comments did not place Baumgardner in a position of grave peril
to which he would not have been subjected otherwise.
CONCLUSION
[19] Based on the foregoing, we hold that there was no improper vouching.
[20] Affirmed.
[21] Najam, J. and May, J. concur
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