There was no prosecutorial misconduct or errors by the trial court that would require the Indiana Court of Appeals to reverse a Marion County man’s child molesting conviction. The man raised several claims, including he was denied the right to an impartial jury and fair trial.
Paul Phillips was convicted of one count of Class A felony child molesting stemming from an incident with E.C., who was 8 years old at the time. E.C.’s family was close with Phillips’ family and the Phillips often watched E.C. and his brother while his parents worked. Phillips’ wife, Penny, walked in on E.C. performing a sex act on Phillips. His DNA and Phillips’ DNA were found on the other.
In Paul Phillips v. State of Indiana, 49A02-1402-CR-86, Phillips raised three arguments: he was denied a fair trial and impartial jury when the state denied Phillips’ motion for a mistrial and motion to replace a juror after the juror asked a question; the prosecutor engaged in misconduct amounting to fundamental error during closing argument, and the jury should not have been instructed on voluntary intoxication.
Prior to deliberations, a juror sent a question to the trial court asking if the court orders counseling for children in these situations. Phillips argued that this question showed the juror was biased and already had made up his or her mind regarding his guilt. Instead of questioning the juror, the trial court instead included the instruction informing the jury not to reach a conclusion on guilt or innocence until all evidence was presented and deliberations began.
The judges found no need to remove the juror under the federal or state constitutional analyses.
Regarding Phillips’ claims of prosecutorial misconduct, he only preserved one for review by the COA, and the judges found that an admonishment given by the trial court sufficiently secured the alleged error. But he claims several other instances of misconduct, which the appeals court reviewed for fundamental error. He argued the prosecutor improperly vouched for E.C.’s and Penny Phillips’ credibility, but the judges found the prosecutor in this case just connected her commentary on their credibility with evidence in the record that supported that testimony.
The state’s plea to the jury to further support E.C.’s cause for justice by rendering a jury verdict crosses the line into prosecutorial misconduct, but there is no fundamental error on this claim because the possible persuasive effect of the state’s plea on this case is minimal, Senior Judge Betty Barteau wrote.
There was also no error in giving the voluntary intoxication instruction, which stated voluntary intoxication is not a defense to a criminal charge. The door was opened to give this instruction based on evidence admitted of a postcard Phillips’ sent to a neighbor claiming he was “passed out” on Xanax and Vicodin at the time of the molestation.