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.
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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.
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[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.)
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[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
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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.
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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