The Indiana Court of Appeals acknowledged that although a defendant did not receive a perfect trial, it is confident that Steven Malloch received a fair trial on a charge of Class A felony child molesting relating to his stepdaughter.

Malloch was accused of fondling C.P.’s breast and inserting a finger in her vagina in 2003 and 2004, which he claimed happened when he was sleeping and sharing a bed with the girl. The molestation allegations did not come to light until nearly five years later. Malloch was questioned by DeKalb County Sheriff’s detective Donald Lauer. The two interviews were videotaped. During the second interview, Malloch admitted to touching the girl’s vagina while he was awake and wrote an apology letter to C.P.

Malloch was originally charged with two counts of child molesting, but one was dismissed for statute of limitations. After a mistrial at his first trial, Malloch was convicted of the Class A felony in September 2011.

Malloch raised five issues on appeal, including whether the trial court abused its discretion in denying his motion for a continuance made three days before his second trial;  whether the court erred by admitting Malloch’s statements in the recorded interviews, in which he ultimately confessed; and whether the state committed prosecutorial misconduct amounting to fundamental error.

After his mistrial, Malloch wanted to call a doctor as a sleep expert who had treated Malloch, but the doctor would not be able to testify at the trial. The trial court denied the continuance. The record here is devoid of any indication that the doctor ever intended to appear and Malloch made no record as to when the doctor would be able to testify.

The judges found no abuse of discretion in admitting Malloch’s statements. He never unambiguously and unequivocally invocated the right to counsel and his statements in both interviews were voluntary.

The appellate court found the state did not predispose the jury against him and that the state’s improper impeachment of Malloch’s wife and C.P.’s mother did not place Malloch in grave peril.

“We have concluded, however, that at most, only two isolated, brief remarks during closing argument constituted prosecutorial misconduct. These instances must be viewed in light of the evidence at trial, which included C.P.’s testimony and Malloch’s confession. The jury was able to view the interactions between Malloch and Detective Lauer during both interviews and could thus evaluate the voluntariness of Malloch’s confession against his claim of coercion and sexsomnia. Although Malloch did not receive a perfect trial, we are confident that he received a fair trial,” Senior Judge John Sharpnack wrote in Steven E. Malloch v. State of Indiana, 17A03-1201-CR-37.