Armex Brown v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 20 2017, 8:39 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Darren Bedwell Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Armex Brown, July 20, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1610-CR-2416
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Lisa F. Borges,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G04-1602-F3-7066
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A04-1610-CR-2416 | July 20, 2017 Page 1 of 8
[1] Armex Brown appeals following his convictions for two counts of child
molesting, one as a Level 3 felony and one as Level 4 felony. He raises two
issues on appeal, which we restate as follows:
1. Did statements made by the prosecution during closing
argument constitute prosecutorial misconduct rising to the level
of fundamental error?
2. Do Brown’s convictions violate Indiana’s double jeopardy
prohibition?
[2] We affirm.
Facts & Procedural History
[3] In February 2016, Brown was living with his girlfriend, Ashley Mahaffey, and
her children, including five-year-old M.M. While Mahaffey was at a medical
appointment one morning, Brown gave M.M. a shower and rubbed lotion on
her body, including her “private parts and bottom.” Transcript Vol. 2 at 165.
Brown then took M.M. into his bedroom, where he inserted his finger into her
vagina and her anus.
[4] When Mahaffey returned, she saw that M.M. had changed from her pajamas
into regular clothes, which Mahaffey found odd. When Mahaffey spoke to
M.M., M.M. made a disclosure. Mahaffey then confronted Brown about what
M.M. had said, and Brown admitted that he had given M.M. a shower and
rubbed lotion on her body, but denied any inappropriate touching. Mahaffey
told Brown to leave the residence, but he returned that evening and refused to
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leave. The police were called and Brown was taken into custody. After
Brown’s fingers were swabbed for DNA, he stated that he might have
inadvertently touched M.M.’s vagina and buttocks while rubbing lotion on her.
[5] Brown was charged with one count of Level 3 felony child molesting and one
count of Level 4 felony child molesting. A two-day jury trial commenced on
August 22, 2016, at the conclusion of which Brown was found guilty as
charged. Brown received an aggregate sentence of eleven years, with eight
years executed and three years suspended to probation. Brown now appeals.
Discussion & Decision
1. Fundamental Error
[6] Brown first argues that the State’s comments in closing argument amounted to
prosecutorial misconduct. Conceding that he failed to properly preserve this
issue, Brown argues that the prosecuting attorney’s allegedly improper
statements resulted in fundamental error.
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. . . .
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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Our standard of review is different where a claim of prosecutorial
misconduct has been procedurally defaulted for failure to
properly raise the claim in the trial court, that is, waived for
failure to preserve the claim of error. The defendant must
establish not only the grounds for prosecutorial misconduct but
must also establish that the prosecutorial misconduct constituted
fundamental error. Fundamental error is an extremely narrow
exception to the waiver rule where the defendant faces the heavy
burden of showing that the alleged errors are so prejudicial to the
defendant’s rights as to “make a fair trial impossible.” In other
words, to establish fundamental error, the defendant must show
that, under the circumstances, the trial judge erred in not sua
sponte raising the issue because alleged errors (a) “constitute
clearly blatant violations of basic and elementary principles of
due process” and (b) “present an undeniable and substantial
potential for harm.” . . . Fundamental error is meant to permit
appellate courts a means to correct the most egregious and
blatant trial errors that otherwise would have been procedurally
barred, not to provide a second bite at the apple for defense
counsel who ignorantly, carelessly, or strategically fail to preserve
an error.
Ryan v. State, 9 N.E.3d 663, 667-69 (Ind. 2014) (citations, footnotes, and
emphasis omitted).
[7] On appeal, Brown takes issue with the following statements of the prosecuting
attorney during closing argument:
Let’s talk about M.M.’s consistency. Her account of events never
changed over the course of six months. At least seven different
times she had to talk about this, at least seven. She told her
mommy. She told her Aunt Daphne. She told Officer Daggy.
She told Jill Carr. She told the nurse and she told you. There
were not any inconsistencies. There were distinctions, no
differences.
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Transcript Vol. 2 at 200. Brown argues that the prosecuting attorney’s
statements in this regard mischaracterized the evidence because, with the
exception of the forensic nurse examiner, none of the witnesses referenced
testified as to what M.M. had told them. Thus, according to Brown, there was
no evidentiary basis for the claim that M.M. gave a consistent account of the
molestation to multiple people. Brown argues further that by stating that M.M.
gave the same account seven times, but listing only six instances in which M.M.
discussed the matter, the prosecutor alluded to personal knowledge of matters
not in evidence. The State responds that the jury would not have understood
the prosecutor’s statements to suggest personal knowledge, and the references
to M.M.’s consistency were based on reasonable inferences from the evidence
and were appropriate comments on the absence of evidence to support Brown’s
claim that M.M. had been coached.
[8] We need not resolve this issue because even if we assume the statements were
improper, Brown has not established fundamental error. The jury received
preliminary and final instructions accurately stating the law, and these
instructions reminded the jury that the arguments of counsel should not be
considered evidence and that the jury should base its decision on the evidence
admitted at trial. In light of these instructions, we cannot conclude that the
prosecutor’s brief references to statements M.M. allegedly made to other
witnesses rose to the level of fundamental error. See Ryan, 9 N.E.3d at 672-73
(finding no fundamental error resulting from prosecutorial misconduct where
jury was properly instructed that arguments of counsel were not evidence).
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2. Double Jeopardy
[1] Brown also argues that his convictions violate Indiana’s double jeopardy
prohibition. The double jeopardy clause found in Article 1, section 14 of the
Indiana Constitution “was intended to prevent the state from being able to
proceed against a person twice for the same criminal transgression.” Richardson
v. State, 717 N.E.2d 32, 49 (Ind. 1999). Two or more offenses are the “same
criminal transgression” for the purposes of the Indiana double jeopardy clause
if, “with respect to either the statutory elements of the challenged crimes or the
actual evidence used to convict, the essential elements of one challenged offense
also establish the essential elements of another challenged offense.” Id.
[2] Brown challenges his convictions under the actual-evidence test, which
“prohibits multiple convictions if there is ‘a reasonable possibility that the
evidentiary facts used by the fact-finder to establish the essential elements of
one offense may also have been used to establish the essential elements of a
second challenged offense.’” Davis v. State, 770 N.E.2d 319, 323 (Ind. 2002)
(quoting Richardson v. State, 717 N.E.2d at 53). Establishing a “‘reasonable
possibility’ that the jury used the same facts to reach two convictions requires
substantially more than a logical possibility.” Lee v. State, 892 N.E.2d 1231,
1236 (Ind. 2008). Instead, the existence of a reasonable possibility “turns on a
practical assessment of whether the jury may have latched on to exactly the
same facts for both convictions.” Id. In applying this test, we seek “to identify
the essential elements of each of the challenged crimes and to evaluate the
evidence from the jury’s perspective, considering where relevant the jury
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instructions, argument of counsel, and other factors that may have guided the
jury’s determination.” Wright v. State, 950 N.E.2d 365, 369 (Ind. Ct. App.
2011).
[3] Brown does not dispute that there is evidence in the record to support two
separate child molesting convictions—specifically, there was evidence that he
inserted his finger into both M.M.’s vagina and her anus. Brown argues,
however, that the charging information did not specify which act supported
which count and that the prosecuting attorney’s closing argument invited the
jury to rely on exactly the same evidence to support both convictions. He
directs our attention to the prosecuting attorney’s statement that the “second
count is mostly the same stuff just said in a slightly different way. The only
difference here between those counts is intent.” Transcript Vol. 2 at 199.
[4] It is clear to us that the prosecuting attorney was referring in this statement to
the statutory elements of the charged crimes, not the evidence presented to
support a finding of guilt. When referring to the evidence, the prosecuting
attorney consistently indicated that there were two separate acts. See, e.g., id. at
223 (“This happened twice. Finger inside her vagina, fingers at her—her anus.
That was clear.”). Accordingly, Brown has not established a reasonable
possibility that the jury relied on exactly the same facts to support both
convictions.
[5] Judgment affirmed.
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[6] Kirsch, J. and Mathias, J., concur.
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