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Judges find no prosecutorial misconduct at molestation trial

October 31, 2013

The Indiana Court of Appeals affirmed a man’s multiple convictions for molesting three children, rejecting the defendant’s claims that the state committed prosecutorial misconduct when it commented during closing arguments on the truthfulness of his testimony.

During his bench trial on the molestation claims, Tibbs claimed he couldn’t have committed two counts of Class B felony child molesting against one of the victims because he was incarcerated in South Bend for the entire time alleged in those two counts – between Nov. 21, 2002, and Nov. 20, 2003. But Tibbs’ juvenile record did not show he was incarcerated in South Bend. The state could not find any information on the incarceration.

At closing arguments, the state mentioned the lack of documentation to support Tibbs’ claim, saying “Can you take what the defendant and his mother say to the bank? Absolutely not.”

Tibbs didn’t object at trial and never filed a motion to consider new evidence.

“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,” Judge Melissa May wrote in Gary Tibbs v. State of Indiana, 49A05-1210-CR-517.
 

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