Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019 Page 1 of 17

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

David W. Stone IV

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana 

Sierra A. Murray

Deputy Attorney General 

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Michael W. Willhoite,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 17, 2019

Court of Appeals Case No.

19A-CR-158

Appeal from the 

Madison Circuit Court

The Honorable 

Thomas Newman, Jr.

Trial Court Cause No.

48C03-1601-F1-144

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-158 | October 17, 2019 Page 2 of 17

[1] Following a jury trial, Michael W. Willhoite (“Willhoite”) was convicted of 

child molesting1 as a Level 1 felony and incest2 as a Level 4 felony. The trial 

court sentenced him to twenty-five years for child molesting and a concurrent 

six years for incest for an aggregate sentence of twenty-five years. On appeal, 

Willhoite raises the following restated issues:

I. Whether the trial court abused its discretion when it 

denied Willhoite’s motion for continuance on the eve of 

trial;

II. Whether statements made by the prosecutor during closing 

argument—statements to which Willhoite raised no 

objection at trial—constituted prosecutorial misconduct, 

the cumulative effect of which rose to the level of 

fundamental error; and

III. Whether Willhoite’s convictions for child molesting and 

incest violated Indiana’s prohibition against double 

jeopardy. 

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[3] Willhoite and S.Y. were married and had three daughters, J.W., T.W., and 

S.W. In 2015, after Willhoite and S.Y.’s marriage ended, Willhoite and his 

1

See Ind. Code § 35-42-4-3(a)(1).

2

See Ind. Code § 35-46-1-3.
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daughters lived together in a home in Anderson, Indiana, with Willhoite’s 

mother. Willhoite slept in a makeshift bedroom in the attic. The girls 

occasionally slept with Willhoite in his bed, sometimes all together, and other 

times just one of the girls slept with him. Once, when T.W. was alone in bed 

with Willhoite, he put his hand on her thigh and touched both the inside and 

outside of her leg. Tr. Vol. III at 19, 22, 30-31. T.W. pushed Willhoite’s hand 

off. When he put his hand back on T.W.’s thigh, she went “to the bottom of 

the bed” to sleep. Id. at 19. T.W. did not tell anyone about the incident. Id. at 

31. 

[4] Sometime after December 25, 2015, when she was nine years old, T.W. was 

sleeping on her side in Willhoite’s bed and was awakened when he “put[] his 

penis in [her] butt.” Id. at 13-14. Willhoite was “moving” his penis by “pulling 

it out and putting it back in”; T.W. estimated that Willhoite continued this 

motion for one to two minutes. Id. at 14, 15. T.W. said that while Willhoite 

initially made no sound, he later “started to moan.” Id. at 15. T.W. began to 

turn around because she “didn’t know what he was gonna do next” and saw 

Willhoite “pulling up his pants the rest of the way.” Id. at 16. T.W. sat up and 

asked, “[D]ad, can I use the restroom?” Id. at 17. When Willhoite said, 

“[Y]eah, you don’t have to ask,” T.W. pulled up her pants and “went 

downstairs to the restroom to think about what [she] was gonna do because 

[she] was scared.” Id. 

[5] Leaving the bathroom, T.W. went into her grandmother’s bedroom, where her 

grandmother was already sleeping. T.W. used tote bags and blankets to cover 
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herself and fell asleep on her grandmother’s bedroom floor. Id. at 18. T.W.’s 

grandmother did not wake up, and T.W. left the room the next morning 

without anyone seeing her. Id. Shortly thereafter, T.W. told her older sister, 

J.W., what had happened. T.W. explained, that J.W. “was always there for 

[her,] and [T.W.] knew it was good if [she] told somebody.” Id. at 20. J.W. 

said that, when T.W. told her about the incident, T.W. was “afraid and like 

scared,” and she was “very emotional,” which was not normal for T.W. Id. at 

64. T.W. told J.W. not to tell anyone about the incident, but J.W. thought she 

should tell someone, so she told their aunt. Id. at 65. The aunt subsequently 

informed T.W.’s mother, S.Y. Soon thereafter, T.W. and her sisters were 

interviewed at Kids Talk, “a forensic interview location” with a specialty in 

interviewing child victims. Id. at 20, 107. During the interview, T.W. related 

the same details of the sexual assault. 

[6] After the interview, S.Y. took T.W. to an Anderson hospital for a sexual assault 

exam. Tr. Vol. III at 71. On the way there, S.Y. asked T.W. what Willhoite 

had done. Id. Although T.W. was scared and crying, she told her mother how 

Willhoite had sexually assaulted her. Id. The results of T.W.’s medical 

examination were normal; the exam found no physical injuries or DNA

present. On January 25, 2016, Willhoite, who was at that time thirty-one years 

old, was arrested and charged with Level 1 felony child molesting and Level 4

felony incest. Id. at 113.

[7] Willhoite’s trial was initially set for May 24, 2016. The trial court granted 

numerous continuances during the next two and a half years before trial. At 
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least four of those continuances were requested by Willhoite. On the eve of

what was then a November 26, 2018 trial date, the trial was continued to 

November 28, 2018, by agreement of both parties. Appellant’s App. Vol. II at 17. 

On November 26, 2018, defense counsel, David Alger (“Alger”), filed an 

amended motion for continuance, arguing that his father was ill, and his illness 

would prevent Alger from giving the trial his full attention. Id. at 153. The trial 

court denied that motion. Id. at 17. On November 28, 2018, after defense 

counsel had engaged in extensive voir dire, and a jury was empaneled, Alger 

renewed his motion for a continuance, which the trial court again denied. Tr. 

Vol. II at 242. 

[8] A jury trial was held November 28 and 29, 2018. Willhoite’s defense during 

trial was that T.W. had fabricated the story about him because she was mad at 

him and jealous of her sisters. To counter the fact that T.W.’s physical 

examination showed no sign of injury, the State offered the testimony of Holly 

Renz (“Renz”), a sexual assault nurse examiner employed by Community 

Hospital in Anderson. Renz explained the examination procedure and said, 

“[A]bout ninety-five percent (95%) of [the] time we see normal exams.” Tr. 

Vol. III at 45. Renz said that one of the reasons for a normal exam is “the 

perpetrator . . . may groom the child in such a way that there is no injury.” Id.

at 46. Furthermore, there is delayed disclosure because “children generally are 

told not to tell and they don’t,” and injuries may not show because “our bodies 

can heal very quickly.” Id. at 45-46. 
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[9] During closing argument, defense counsel suggested that Willhoite could not be 

the monster that T.W. had claimed; otherwise he would have abused his other 

daughters and would have sexually abused T.W. more than once. Tr. Vol. III at 

151-52. The prosecutor responded, in closing argument, that he was not asking 

the jury to call Willhoite a monster; he only wanted them to find that he is a 

“molester, cause he is, cause that’s what he did.” Id. at 156. Suggesting an 

alternate theory as to why T.W. might be the only victim, the prosecutor said:

I thank God that he didn’t do this to the other girls. But I think 

had he gotten away with this he probably would have. I think 

T.[W.] saved her sisters. . . . Because there’s a grooming 

behavior. He started with just sleeping with [T.W.], putting his 

arm around her. He told you he’d snuggle, spoon. Put his hand 

on a thigh. She didn’t like it so she moved it, he put it back.

Waited. When she didn’t tell anyone he went further. That’s 

grooming. 

Id. at 156. Willhoite did not object. Id.

[10] At the conclusion of trial, the jury found Willhoite guilty of both child 

molesting and incest, and the trial court sentenced him to twenty-five years for 

the Level 1 felony child molesting conviction and a concurrent six-year

sentence for the Level 4 felony incest conviction, for an aggregate sentence of 

twenty-five years. Willhoite now appeals. 
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Discussion and Decision

I. Denial of Continuance

[11] Willhoite contends that the trial court abused its discretion when it denied his

request for a continuance on the eve of trial. As our Supreme Court noted in 

Gibson v. State:

Courts are generally reluctant to grant continuances in criminal 

cases merely to allow for additional preparation. But a defendant 

is statutorily entitled to a continuance where there is an absence 

of material evidence, absence of a material witness, or illness of 

the defendant, and the specially enumerated statutory criteria are 

satisfied. If none of those conditions are present, however, a trial 

court has wide discretion to deny a motion to continue. We will 

only find an abuse of that discretion where a defendant was 

prejudiced as a result of not getting a continuance. To 

demonstrate such prejudice, a party must make a specific 

showing as to how the additional time requested would have 

aided counsel.

43 N.E.3d 231, 235-36 (Ind. 2015) (internal citations and quotations omitted), 

cert. denied, 137 S. Ct. 54 (2016). In other words, “continuances . . . will be 

granted only in the furtherance of justice on a showing of good cause.” Harbert 

v. State, 51 N.E.3d 267, 279 (Ind. Ct. App. 2016), trans. denied. “‘There is a 

strong presumption that the trial court properly exercised its discretion.’” 

Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (quoting Warner v. State, 773 

N.E.2d 239, 247 (Ind. 2002)). Here, Willhoite was not statutorily entitled to a 

continuance.
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[12] Willhoite’s trial was initially set for May 24, 2016. During the two-and-a-halfyear period between Willhoite’s arrest and his November 28, 2018 trial, the trial 

court reset his trial date nine times, twice due to congestion of the court, three 

times due to joint motions for continuance, and four times due to Willhoite’s 

motions for continuance. Closer to trial, the trial court denied two of defense 

counsel Alger’s motions for continuance, one filed on November 7, 2018 

relating to the November 26, 2018 trial date and one filed on November 26, 

2018 relating to the November 28, 2018 trial date.3 Appellant’s App. Vol. II at 17, 

53-54, 59-61, 84-86, 88-89, 118-120, 125-26. 

[13] In his November 26, 2018 amended motion, Alger asserted a continuance was 

needed because: (1) he assists his mother in providing care to his father, who is 

ninety-five years old and suffers from COPD and liver cancer; (2) just the 

previous day, his father had lost the use of his legs, was less responsive, and was 

hospitalized; (3) he would be spending each evening at his father’s bedside; and 

(4) his “attention would be diverted from his representation of defendant.” Id.

at 153. The trial court denied Alger’s motion on November 27, 2018. On 

November 28, 2018, following extensive voir dire and the empanelment of the 

jury, Alger renewed his November 26 motion to continue trial. The State 

objected, and the trial court responded, “Court denies the motion for

3 By agreement of the parties, the November 26, 2018 trial date was continued to November 28, 2018. 

Appellant’s App. Vol. II at 17.
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continuance. I will be happy to be reconsidered [sic] if other issues—other 

exigencies happen.” Id. at 242-43.

[14] Willhoite contends he “suffered prejudice because the denial of the continuance

meant he was represented by an attorney who was distracted by the terminal 

illness of his father and who was spending his evenings with his hospitalized 

father.” Appellant’s Br. at 8. However, Willhoite did not “make a specific 

showing as to how the additional time requested would have aided counsel.” 

Gibson, 43 N.E.3d at 236. Willhoite did not introduce any evidence that Alger 

was distracted at trial. In fact, the transcript reveals that Alger was engaged, 

attentive, asked appropriate questions during voir dire and trial, effectively 

cross-examined the State’s witnesses, presented an affirmative defense, and 

objected when necessary. Here, while Willhoite was charged with two felonies, 

the evidence for the charges was the same for both, Willhoite’s trial was held 

more than two and a half years after he was charged, Willhoite’s trial date was 

rescheduled about nine times, and Willhoite, himself, was granted four 

continuances. Thus, Willhoite was not prejudiced by the denial of the 

continuance.

[15] We sympathize with an attorney who is dealing with both personal issues and 

the responsibility of trying a criminal case; however, a continuance is for the 

protection of a defendant, and in the absence of prejudice, the trial court does 

not abuse its discretion when it denies a motion for a continuance. See Elmore v. 

State, 657 N.E.2d 1216, 1218-19 (Ind. 1995) (denial of continuance upheld in 

case involving five felony charges, when the attorney had only one month to 
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prepare); Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011) (no abuse of 

discretion in denying continuance of defendant’s case, which consisted of one 

felony count and had been ongoing for over a year), trans. denied; Schmid v. State,

804 N.E.2d 174, 178 (Ind. Ct. App. 2004) (no abuse of discretion when court 

denied continuance in murder case because the case “had been pending for 

quite some time” and two months was “adequate time [for counsel] to 

prepare.”), trans. denied. Considering this precedent, we cannot say the trial 

court abused its discretion when it denied Willhoite’s final motion for 

continuance.

II. Closing Argument

[16] Willhoite next challenges his convictions on the grounds of prosecutorial 

misconduct, citing the prosecutor’s statements during closing argument that 

Willhoite groomed T.W. Willhoite argues that it was inappropriate for the 

State to reference “grooming” because the concept was raised only once during 

Renz’s testimony at trial. Appellant’s Br. at 10. 

[17] When we review a claim of prosecutorial misconduct that was 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.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (quoting Cooper v. 

State, 854 N.E.2d 831, 835 (Ind. 2006)). “A prosecutor has the duty to present 

a persuasive final argument and thus placing a defendant in grave peril, by 
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itself, is not misconduct.” Id. (citing Mahla v. State, 496 N.E.2d 568, 572 (Ind. 

1986)). “‘Whether a prosecutor’s argument constitutes misconduct is measured 

by reference to case law and the Rules of Professional Conduct. The gravity of 

peril is measured by the probable persuasive effect of the misconduct on the

jury’s decision rather than the degree of impropriety of the conduct.’” Id.

(quoting Cooper, 854 N.E.2d at 835 (citations omitted)). “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.” Id. Here, Willhoite did not object to the State’s 

reference to “grooming” in its closing argument.

[18] “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.” Id. “The 

defendant must establish not only the grounds for prosecutorial misconduct but 

must also establish that the prosecutorial misconduct constituted fundamental 

error. Id. at 667-68. “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.’” Id. at 668 (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind.

2002)). 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 
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and substantial potential for harm.” Id. (internal quotation marks omitted). 

The element of such harm is not established by the fact of ultimate conviction 

but rather “depends upon whether [the defendant’s] right to a fair trial was 

detrimentally affected by the denial of procedural opportunities for the 

ascertainment of truth to which he otherwise would have been entitled.” Id.

(quoting Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994)). 

[19] Our evaluation of fundamental error requires this court to look at the alleged 

misconduct “in the context of all that happened and all relevant information 

given to the jury—including evidence admitted at trial, closing argument, and 

jury instructions—to determine whether the misconduct had such an 

undeniable and substantial effect on the jury’s decision that a fair trial was 

impossible.” Ryan, 9 N.E.3d at 668. At trial, Willhoite’s defense was that 

T.W. concocted the story about the assault, either because she was jealous of 

her sisters and hoped for attention or because she was mad at Willhoite. Tr. 

Vol. III at 28-30. On cross-examination, defense counsel confirmed that T.W. 

received no treatment at the hospital and that she had not told her grandmother 

about the sexual assault. Id. at 32. Through this line of questioning, defense 

counsel suggested that T.W.’s account of events was not credible. Id. at 32. 

[20] During the State’s initial closing argument, the prosecutor said that T.W. had 

not made up the story; she was not jealous of her sisters, and she was not mad

at Willhoite. Id. at 138. The prosecutor related that T.W.’s demeanor on the 

stand was that of a young girl who is afraid and does not want to talk about the 

assault. Id. The prosecutor then set forth the elements of the crimes and 
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reviewed the testimony. The prosecutor explained that T.W. did not tell her 

grandmother because T.W. did not think her grandmother would believe her. 

Id. at 142. On the way to the hospital, T.W. shared with her mother the same 

version of events surrounding the assault that she had shared with her sister and 

Kids Talk. T.W.’s mother noticed that she was trembling but not talkative 

during the physical examination. Id. at 146. 

[21] During defense counsel’s closing argument, Alger told the jury that the case was 

about the testimony of two people, Willhoite and T.W. Id. at 151. 

Recognizing that there was no medical testimony or DNA that linked Willhoite 

to the crime, defense counsel said that the hard thing about the case was that 

one of them “has to be telling the truth and one has to be telling a lie.” Id. 

If T.[W.] is telling the truth, Michael Willhoite is a monster. A 

monster. You heard his testimony. Can you say beyond a 

reasonable doubt that Michael Willhoite is a monster? Does he 

appear to be a monster to you? Wouldn’t a monster be someone 

who not only has violated and molested one of his daughters, 

wouldn’t he have violated and molested another, both older and 

younger? Wouldn’t he have violated and molested her more 

than once? If you believe T.[W.], Michael Willhoite is a 

monster. But nine (9) year old girls can also lie.

Id. at 151-52. 

[22] In rebuttal, the prosecutor said:

I’m not gonna ask you to call him a monster cause it’s not our 

job. I’m gonna ask you to find him a molester, cause he is, cause 

that’s what he did. We talked a little bit about grooming. They 
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said grooming is some—they don’t things [sic]. And he said if he 

would have done this he would have done it to the other two (2) 

girls. I thank God that he didn’t do this to the other girls. But I 

think had he gotten away with this he probably would have. I 

think T.[W.] saved her sisters. How do I—Why do I think this? 

Because there’s a grooming behavior. He started with just 

sleeping with [T.W.], putting his arm around her. He told you 

he’d snuggle, spoon. Put his hand on a thigh. She didn’t like it 

so she moved it, he put it back. Waited. When she didn’t tell 

anyone he went further. That’s grooming. 

Id. at 156. 

[23] During the State’s initial closing argument, the State made no mention that 

Willhoite was grooming T.W. Instead, the State focused on the elements that it 

had to prove to convict Willhoite of child molesting and incest. Id. at 137-51. 

It was Alger who suggested to the jury that the case could be decided on the one 

issue of whether T.W. lied. Id. at 152. To cast doubt on T.W.’s testimony, 

defense counsel suggested for the first time that Willhoite was not the monster 

he seemed because he had not molested his other daughters and he had 

molested T.W. only once. 

[24] Read in context, the prosecutor’s comments regarding grooming behavior arose 

from Renz’s testimony at trial, when she said that one of the reasons for a 

normal exam is the perpetrator “may groom the child in such a way that there 

is no injury.” Tr. Vol. III at 46. Furthermore, the prosecutor was making a 

direct rebuttal to defense counsel’s implication that, because Willhoite had not 

molested his other daughters, he must be innocent of having molested T.W. 
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Willhoite slept with T.W. on numerous occasions, and prior to this incident, he 

had put his hand on the inside and outside of T.W.’s thigh even after she told 

Willhoite to stop. T.W. told no one about that incident. The State’s comments 

offered an alternative theory as to why T.W. could be telling the truth and, yet, 

still be the sole victim. It remained within the purview of the jury to determine 

who was telling the truth. 

[25] To prove fundamental error Willhoite faced the heavy burden of showing that 

the alleged errors were so prejudicial as to make a fair trial impossible. Ryan, 9 

N.E.3d at 668. Based on the evidence before us, we cannot say that the 

prosecutor’s comments amounted to prosecutorial misconduct, let alone 

misconduct that constituted fundamental error. The State did not commit 

misconduct during its rebuttal to defense counsel’s closing argument. 

III. Double Jeopardy

[26] Finally, Willhoite contends that because he committed only one act of sexual 

misconduct against T.W., his convictions for Level 1 felony child molesting and 

Level 4 felony incest violated the Indiana prohibition against double jeopardy. 

Appellant’s Br. at 12. The State agrees that Willhoite’s convictions for child 

molesting and incest cannot both stand. Appellee’s Br. at 14. 

[27] The Indiana Double Jeopardy Clause, Article 1, Section 14 of the Indiana 

Constitution, provides, “No person shall be put in jeopardy twice for the same 

offense.” “‘[T]wo or more offenses are the “same offense” in violation of 

Article I, Section 14 of the Indiana Constitution, if, with respect to either the 
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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.’” Howell v. State, 97 N.E.3d 

253, 263 (Ind. Ct. App. 2018) (quoting Richardson v. State, 717 N.E.2d 32, 49 

(Ind. 1999)), trans. denied. 

[28] Willhoite’s double jeopardy challenge is based on the actual evidence used to 

convict him. Appellant’s Br. at 12. Under the “actual evidence” test, the actual 

evidence presented at trial is examined to determine whether each challenged

offense was established by separate and distinct facts. Howell, 97 N.E.3d at 264. 

The State agrees that “[t]here was a reasonable possibility that the jury used the 

same facts to find [Willhoite] guilty of child molesting and incest because the 

evidence established only one act of sexual misconduct.” Appellee’s Br. at 15 

(citing Tr. Vol. III at 13-14, 18).

[29] When a double jeopardy violation has occurred, the “reviewing court may 

remedy the violation by reducing either conviction to a less serious form of the 

same offense if doing so will eliminate the violation.” Thompson v. State, 82 

N.E.3d 376, 383 (Ind. Ct. App. 2017) (citing Richardson, 717 N.E.2d at 54), 

trans. denied. However, if doing so will not eliminate the violation, one of the 

convictions must be vacated. Id. Reducing either of Willhoite’s convictions 

will not eliminate the double jeopardy violation, so we must vacate his

conviction for Level 4 felony incest since it is the conviction with a lesser penal 

consequence. See Richardson v. State, 717 N.E.2d 32, 55 (Ind. 1999) (when two 

convictions cannot stand, the conviction with the less severe penal 
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consequences should be vacated). Vacating this conviction and the 

corresponding sentence does not affect Willhoite’s aggregate twenty-five-year 

sentence because the sentences for Level 1 felony child molesting and Level 4

felony incest were ordered to run concurrently.

[30] In conclusion, we find that the trial court did not abuse its discretion when it 

denied Willhoite’s motion for continuance on the eve of trial. We also find that 

the State did not commit fundamental error or deprive Willhoite of a fair trial 

when the prosecutor referenced “grooming” in her closing argument. Finally, 

because Willhoite’s convictions for both Level 1 felony child molesting and 

Level 4 felony incest violate the double jeopardy prohibition, we affirm his 

conviction for child molesting and reverse his conviction for incest and remand 

to the trial court to vacate that conviction. Recognizing that Willhoite’s 

sentences were to be served concurrently, vacating the incest conviction does 

not alter Willhoite’s aggregate sentence of twenty-five years. 

[31] Affirmed in part, reversed in part, and remanded with instructions.

Baker, J., and Crone, J., concur.