Gary Tibbs v. State of Indiana

FOR PUBLICATION Oct 31 2013, 5:33 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VICTORIA L. BAILEY GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
IAN McLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GARY TIBBS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1210-CR-517
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Lisa F. Borges, Judge
Cause No. 49G04-1106-FA-40789
October 31, 2013
OPINION - FOR PUBLICATION
MAY, Judge
Gary Tibbs appeals his convictions of two counts of Class A felony child molesting,1
three counts of Class B felony child molesting,2 one count of Class D felony intimidation,3
and one count of Class D felony child solicitation.4 He claims the State committed
prosecutorial misconduct when it commented during closing argument on the truthfulness of
his testimony. We affirm.
FACTS AND PROCEDURAL HISTORY
Between 2002 and 2011, Tibbs molested D.J. and his sister J.J., and solicited oral sex
from a third child, T.W. In early 2011, D.J., J.J., and T.W. told T.W.’s grandmother of
various sexual acts Tibbs had forced, or attempted to force, the children to commit. The next
day the children were interviewed by police and examined by a pediatrician.
Based on those interviews and a search of Tibbs’ home, the State charged Tibbs with
three counts of Class A felony child molesting; four counts of Class B felony child
molesting; one count of Class D felony intimidation, for allegedly threatening to kill J.J. if
she reported the molestation; one count of Class D felony child solicitation, and one count of
Class D felony dissemination of matter harmful to minors, for allegedly exposing his
genitalia to T.W..5 Tibbs waived his right to a jury trial and the court heard evidence on
August 10, 2012.
During trial, Tibbs claimed he could not have committed two counts of Class B felony
1
Ind. Code § 35-42-4-3(b).
2
Ind. Code § 35-2-4-3(a).
3
Ind. Code § 35-45-2-1(b)(1).
4
Ind. Code § 35-42-4-6(b).
5
Ind. Code § 35-49-3-3(a).
2
child molesting against D.J. because he was “incarcerated at South Bend Correctional
Facility[,]” (Tr. at 168), for the entire time alleged in those two counts, specifically between
“November 21, 2002, and November 20, 2003[.]” (App. at 33.) On cross-examination, the
State asked Tibbs if his juvenile record would indicate he was serving time at the South Bend
Correctional Facility on the dates he alleged, and Tibbs indicated it would. The State
introduced Tibbs’ juvenile record into evidence, which record did not show Tibbs was
incarcerated in South Bend. The State attempted to locate, but could not find in the
Department of Correction online offender database, any information regarding Tibbs’ alleged
incarceration in South Bend.
During closing argument, the State said:
Can you take what the Defendant and his mother say to the bank? Absolutely
not. The records that the Defendant agrees with contradict his own testimony.
And even if you believe his testimony that he was in South Bend for a period
of time, he was back in Indianapolis in 2003 and that’s what he testified to.
And he’s provided this court with no documentation to show he was sent to the
Department of Corrections [sic]. And his juvenile record does not show him
being sent to the Department of Corrections [sic].
(Tr. at 186-87.) Tibbs did not object, but during his closing argument he asked the trial court
to “hold up on [its] opinion until I go to South Bend and render – give us (unintelligible) and
see if he in fact was in South Bend incarcerated.” (Id. at 189.) The trial court denied Tibbs’
request because Tibbs had rested his case. However, the trial court indicated it would
entertain a motion to consider new evidence if the documentation was found. The trial court
then found Tibbs guilty to of two counts of Class A felony child molesting, three counts of
Class B felony child molesting, one count of Class D felony intimidation, and one count of
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Class D felony child solicitation.
Tibbs did not file a motion to consider new evidence. His pre-sentence investigation
(PSI) report indicated Tibbs was incarcerated from August 15, 2002, until approximately
August 25, 2003, when Tibbs began a portion of his sentence on home detention. During
sentencing, Tibbs argued the information in the PSI proved he could not have committed an
offense between November 21, 2002, and November 20, 2003. However, the State noted
Tibbs was released prior to the end of the charged date range and the date of the crime was
not an element of the crime. The trial court sentenced Tibbs to an aggregate term of 83.5
years incarcerated.
DISCUSSION AND DECISION
Tibbs argues the State committed prosecutorial misconduct when “the deputy
prosecutor created the false impression that Tibbs was lying when he testified truthfully that
he had been incarcerated during part of the time he was alleged to have molested D.J.[.]”
(Br. of Appellant at 1.) In reviewing a claim of prosecutorial misconduct, we determine (1)
whether the prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under
all of the circumstances, placed the defendant in a position of grave peril to which he should
not have been subjected. Schmidt v. State, 816 N.E.2d 925, 944 (Ind. Ct. App. 2004), trans.
denied.
Tibbs’ trial counsel did not object to the statements Tibbs now argues were
prosecutorial misconduct. A claim of prosecutorial misconduct presented on appeal without
a contemporaneous trial objection will not succeed unless the defendant establishes not only
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prosecutorial misconduct but also the additional grounds for fundamental error. Id. For
prosecutorial misconduct to be fundamental error, it must make a fair trial impossible or
amount to clearly blatant violations of basic and elementary principles of due process and
present an undeniable and substantial potential for harm. Id.The mere fact that an alleged error implicates constitutional issues does not establish it
was fundamental. Id. at 945. Our Indiana Supreme Court has emphasized the “extremely
narrow” application of the fundamental error doctrine:
To qualify as fundamental error, an error must be so prejudicial to the rights of
the defendant as to make a fair trial impossible. To be fundamental error, the
error must constitute a blatant violation of basic principles, the harm or
potential for harm must be substantial, and the resulting error must deny the
defendant fundamental due process.
Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002) (citations and quotations omitted).
However, this case was not tried before a jury, but instead was tried before the bench.
“[I]n criminal bench trials, we presume that the court disregard[s] inadmissible testimony and
render[s] its decision solely on the basis of relevant and probative evidence.” Griffin v. State,
698 N.E.2d 1261, 1267 (Ind. Ct. App. 1998), trans. denied. Further, generally valid issues
with regard to fundamental error such as “unfair prejudice, confusion of the issues, or
potential to mislead the jury” are relevant only in jury trials. Ruiz v. State, 926 N.E.2d 532,
535 (Ind. Ct. App. 2010), reh’g denied.
We cannot say that the prosecutor’s actions amounted to fundamental error. The
comment was merely a comment upon the evidence, which is permitted during closing
argument. See Lopez v. State, 527 N.E.2d 1119, 1127 (Ind. 1988) (“a prosecutor may
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comment on the credibility of witnesses as long as the assertions are based on reasons which
arise from the evidence.”). Accordingly, we affirm.
Affirmed.
BAILEY, J., and BRADFORD, J., concur.
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