Court of Appeals of Indiana | Memorandum Opinion 71A03-1610-CR-2319 | October 31, 2017 Page 1 of 16

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

Mark S. Lenyo

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jonathan Webster,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 31, 2017

Court of Appeals Cause No.

71A03-1610-CR-2319

Appeal from the St. Joseph Superior 

Court

The Honorable John M. Marnocha, 

Judge

Trial Court Cause No. 71D02-1509-

FA-3

Riley, Judge.
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STATEMENT OF THE CASE

[1] Appellant-Defendant, Jonathan Webster (Webster), appeals his conviction and 

sentence for child molesting, a Class A felony, Ind. Code § 35-42-4-3(a)(1).

[2] We affirm.

ISSUES

[3] Webster presents four issues on appeal, which we restate as follows: 

(1) Whether the State’s comments during closing argument constituted 

misconduct;

(2) Whether the trial court abused its discretion by responding to a jury

question; 

(3) Whether the trial court improperly determined that Webster was a credit

restricted felon; and

(4) Whether Webster’s sentence is inappropriate in light of the nature of the 

offense and his character.

FACTS AND PROCEDURAL HISTORY

[4] M.W., who was born in June 1999, lived with her father, mother, brother, and 

sister. In September of 2006, M.W.’s family moved to a house on Caroline 

Street in South Bend, St. Joseph County, Indiana. In 2008, Webster, who is 

M.W.’s uncle, and M.W.’s paternal grandmother (Grandmother) moved into 

M.W.’s family home. Sometime thereafter, Webster molested M.W. The first 
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time, Webster and M.W. were alone in the living room and M.W. asked 

Webster to scratch her back. At first, Webster scratched M.W.’s back, but then 

he began moving his hand down M.W.’s lower back, he touched M.W.’s butt, 

and eventually slipped his finger inside M.W.’s vagina. Another time, M.W. 

was in the backyard of her family home playing. Webster joined M.W. outside 

and directed M.W. behind a shed where he squatted and put his finger inside 

M.W.’s vagina. 

[5] In 2014, M.W.’s mother passed away, and sometime thereafter, M.W. began 

seeing a counselor. In June of 2015, M.W. disclosed to her counselor that 

Webster had molested her. M.W. also reported that she had nightmares of 

Webster molesting her. Based on the molestation claims, M.W.’s counselor 

contacted the Department of Child Services, and a forensic interview of M.W. 

was conducted at the Casie Center. On July 11, 2015, Webster was called for 

an interview at the St. Joseph County Special Victims Unit. During a recorded 

interview, Webster admitted that he rubbed M.W.’s back, and that during the 

back rub, he put his hand on M.W.’s “butt” underneath her underwear. (State’s 

Exh. 2A). Webster additionally confessed that he had his hand in M.W.’s 

“privates,” but he denied inserting his finger inside M.W.’s vagina. (State’s 

Exh. 2A). Webster added that he rubbed M.W.’s back “more than once.” 

(State’s Exh. 2A). Webster also penned an apology letter to M.W. stating, in 

part, “I am very sorry for the things I did. I never wanted to hurt you. What I 

did was wrong.” (State’s Exh. 3). 
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[6] On September 1, 2015, the State filed an Information, charging Webster with 

child molesting, a Class A felony. Following a jury trial on August 10, 2016, 

Webster was found guilty as charged. On September 7, 2016, the trial court 

conducted a sentencing hearing. At the close of the hearing, the trial court 

sentenced Webster to thirty years in the Department of Correction. 

[7] Webster now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Prosecutorial Misconduct

[8] Webster argues that the State committed misconduct by referring to a decision 

from our supreme court during closing argument. To properly preserve 

appellate review of an improper argument made by the State during trial, the 

defendant must request an admonishment. Cooper v. State, 854 N.E.2d 831, 835 

(Ind. 2006). If the admonishment is believed to be insufficient, then the 

defendant should move for a mistrial. Id. If properly preserved, we consider 

claims of prosecutorial misconduct under a two-step inquiry: “(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 or she should not have been subjected.” Id. 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. Booher v. State, 

773 N.E.2d 814, 818 (Ind. 2002).
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[9] During closing argument, the State displayed a PowerPoint slide with a citation 

to Bowles v. State, 738 N.E.2d 1150 (Ind. 2000). Citing to Bowles, the State 

proceeded to state:

A victim’s testimony, even if uncorroborated is ordinarily sufficient to 

sustain a conviction for child molesting. And that’s from the Indiana 

Supreme Court. All you need is to believe [M.W.]. One witness is 

enough.

(Tr. Vol. IV, p. 12). Following the State’s argument, Webster’s counsel sought 

permission for a sidebar conference. Outside the jury’s presence, Webster’s 

counsel asked whether the Bowles’ case was part of the jury instruction and the 

State responded that it was not. Webster’s counsel then proceeded to argue that 

even though the State had a right to cite case law, the trial court should issue 

“some kind of a cautionary instruction” to the jury. (Tr. Vol. IV, p. 13). In 

denying Webster’s request, the trial court stated, “[T]he parties can argue case 

law, so long as it’s not contrary to the instructions, [and] so long as the [c]ourt 

hasn’t denied giving a particular instruction.” (Tr. Vol. IV, p. 13). Here, 

Webster’s request that the trial court should have issued some kind of cautionary 

instruction to the jury is equivalent to a request for admonishment. Thus, 

Webster must prove (1) that misconduct occurred, and if it did, (2) that the 

misconduct, considering all of the circumstances, placed him in a position of 

grave peril to which he would not have been subjected otherwise. See Cooper, 

854 N.E.2d at 835. 
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[10] In the instant case, we only need to address the first prong—whether there was 

misconduct. We recognize that, as part of its closing argument, the State may 

argue both law and fact and propound conclusions based upon an analysis of 

the evidence. Poling v. State, 938 N.E.2d 1212, 1217 (Ind. Ct. App. 2010). This 

court and our Indiana Supreme Court have upheld child molesting convictions 

on the uncorroborated testimony of the victim on many occasions. See, e.g., 

Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012); Young v. State, 973 N.E.2d 

1225, 1227 (Ind. Ct. App. 2012); Baber v. State, 870 N.E.2d 486, 490 (Ind. Ct. 

App. 2007), trans. denied. The State’s inclusion of our supreme court opinion in 

its closing argument did not amount to prosecutorial misconduct. Besides, we 

view the State’s argument that the jury could convict Webster if it believed 

M.W.’s testimony as an appropriate characterization of the evidence, and its 

reference to the Bowles case as a proper statement of the law. See Poling, 938 

N.E.2d at 1217; Bowles, 737 N.E.2d at 1152.

[11] Moreover, during the final instructions, the jury was reminded that closing 

arguments 

are not evidence but were made to help you evaluate the evidence. In 

final arguments, the attorneys are permitted to characterize the 

evidence, to argue the law and try to persuade you to a particular 

verdict. You may accept or reject those arguments as you see fit.

****

Since this is a criminal case you are the judges of both the law and the 

facts, you have the right to determine the law for yourself. You may 

not, however, make, repeal, disregard or ignore the law as it exists. 
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These [jury] instructions are the best source as to the law applicable to 

this case.

(Tr. Vol. IV, pp. 46, 48). Here, the trial court’s final instructions were sufficient 

to cure any improper comments by the State. See Emerson v. State, 952 N.E.2d 

832, 838 (Ind. Ct. App. 2011) (any misconduct in prosecutor’s statement cured 

by court’s general instruction regarding prosecutor’s comment). Based on the 

foregoing, we conclude by stating that the State did not commit misconduct 

quoting Bowles in its closing argument. 

II. Jury Question

[12] After the jury retired to deliberate, the jury passed a note to the trial court 

consisting of two questions, the second of which is at issue in this appeal. 

Recapping the jury’s question, the trial court stated, “One witness is enough 

with no corroboration ordinarily. What does ordinarily mean?” (Tr. Vol. IV. 

pp. 51-52 (quotation marks omitted)). Thereafter, the trial court advised the 

parties that it would instruct the jury on the dictionary definition of the word 

ordinarily from the American Heritage Dictionary, Second College Edition. 

Webster, through his counsel, objected to the instruction, but the trial court 

proceeded to instruct the jury with the dictionary-definition of the word 

“ordinarily.” Webster now argues that the trial court abused its discretion by 

instructing the jury on the dictionary definition of the word “ordinarily,” 

because that word “was an excerpt from the prosecutor’s power point slide”

which was used to bolster its argument during the closing arguments. 

(Appellant’s Br. p. 12). 
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[13] A trial court’s decision whether to respond to jury questions is treated on appeal 

in the same manner as jury instructions. Gantt v. State, 825 N.E.2d 874, 877 

(Ind. Ct. App. 2005). Instructing the jury lies within the sole discretion of the 

trial court. Id. Jury instructions are to be considered as a whole and in 

reference to each other. Id. An error in a particular instruction will not result in 

reversal unless the entire jury charge misleads the jury as to the law in the case. 

Id. Before a defendant is entitled to a reversal, he or she must affirmatively 

show that the erroneous instruction prejudiced his substantial rights. Id. An 

error is to be disregarded as harmless unless it affects the substantial rights of a 

party. Ind. Trial Rule 61.

[14] In Thomas v. State, 774 N.E.2d 33, 36 (Ind. 2002), which Webster claims is 

analogous, the jury requested that the trial court reread the portion of the 

prosecution’s closing argument that referred to a portion of an Indiana Supreme 

Court opinion. Id. at 34. Our supreme court determined that it was improper 

for the trial court to reread a section of the supreme court case as quoted by the 

State during closing argument “the way that it did” because it was not a valid 

point of law. Id. at 36. Nevertheless, the Thomas court determined that 

although the trial court’s recitation of the case law to the jury was error, it was

harmless under the circumstances because the instruction was cumulative of 

other evidence, and there was overwhelming evidence establishing the 

defendant’s guilt. Id. 

[15] Webster argues that even if the Thomas court determined that the jury 

instruction was harmless based on the fact that there was sufficient evidence 
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establishing the defendant’s guilt, the same conclusion cannot be made in the 

present case. Specifically, Webster argues that:

The present case dealt with acts which allegedly had occurred about 

ten (10) years prior. There was no scientific or forensic evidence 

supporting the conviction. M.W. had forgotten many of the pertinent 

details about the case and was impeached on a number of occasions 

due to her inconsistent statements regarding the offense.

(Appellant’s Br. p. 16). To the extent that Webster asserts that M.W.’s 

testimony was less believable due to inconsistencies, we note that this is an 

issue of witness credibility. The function of weighing witness credibility lies 

with the trier of fact, not this court. Whited v. State, 645 N.E.2d 1138, 1141 

(Ind. Ct. App. 1995). We cannot reweigh the evidence and judge the credibility 

of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). Again, we 

reiterate that a conviction of child molesting may rest on the uncorroborated 

testimony of the victim. Rose v. State, 36 N.E.3d 1055, 1061 (Ind. Ct. App.

2015). Although he denied putting his finger inside M.W.’s vagina at his trial, 

Webster had confessed to the police during a recorded interview that he rubbed 

M.W.’s “back,” he had his hand on M.W.’s “butt,” and that he had his hand in 

M.W.’s “privates.” (State’s Ex. 2A). Webster also confessed that the back 

rubbing happened more than once. Additionally, M.W. unequivocally testified 

that Webster had, on more than one occasion, penetrated her vagina with his 

finger. 

[16] Moreover, although not similar but close to the facts of this case, in Shultz v. 

State, 417 N.E.2d 1127, 1133-34 (Ind. Ct. App. 1981), we surveyed the opinions 
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of various jurisdictions with regard to a jury’s use of a dictionary during 

deliberations. We held that the presence of a dictionary in the jury deliberation 

room did not raise a presumption of prejudice and did not constitute reversible 

error. Id. In sum, taking into account the Thomas and Shultz decisions, we 

conclude that the trial court did not prejudice Webster’s substantial rights when 

it offered to the jury the dictionary-definition of the word ordinarily, and even if 

it was error, it was harmless. See Ind. Trial Rule 61.

III. Credit-Restricted Felon

[17] Webster argues that the trial court’s application of the 2008 credit restricted 

felon statute violated the federal and state constitutional prohibition against ex 

post facto laws. “An ex post facto law is one which applies retroactively to 

disadvantage an offender’s substantial rights.” Armstrong v. State, 848 N.E.2d 

1088, 1092 (Ind. 2006). Both the United States Constitution and the Indiana 

Constitution prohibit ex post facto laws. U.S. Const. art. I, § 10; Ind. Const. art. 

1 § 24. The ex post facto analysis is the same under both constitutions. Upton v. 

State, 904 N.E.2d 700, 705 (Ind. Ct. App. 2009), trans. denied. 

[18] The credit restricted felon statute took effect on July 1, 2008, and applied “only 

to persons convicted after June 30, 2008.” Id. at 704 (quoting Pub.L. 80-2008, § 

6). The statute, in relevant part, defined “credit restricted felon” as:

[A] person who has been convicted of at least one (1) of the following 

offenses:

(1) Child molesting involving sexual intercourse or deviate sexual 

conduct (IC 35-42-4-3(a)), if:
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(A) the offense is committed by a person at least twenty-one (21) years 

of age; and

(B) the victim is less than twelve (12) years of age.

Ind. Code § 35-41-1-5.5.

1

[19] “A person who is a credit restricted felon and who is imprisoned for a crime or 

imprisoned awaiting trial or sentencing is initially assigned to Class IV. A 

credit restricted felon may not be assigned to Class I or Class II.” I.C. § 35-50-

6-4(b). Indiana Code section 35-50-6-3(d) provides that: “A person assigned to 

Class IV earns one (1) day of credit time for every six (6) days the person is 

imprisoned for a crime or confined awaiting trial or sentencing.” 

[20] In the instant matter, it is undisputed that Webster was at least twenty-one 

years old and that M.W. was less than twelve years old in July of 2008. On 

appeal, Webster claims that the criminal acts in question occurred 

between June, 2006 and June, 2007. The State’s charging information 

alleges the acts took place between June 2, 2006 and June 2, 2007, 

prior to the July 1, 2008 effective date of the credit-restricted felon 

statute. . . . M.W. ’s father, confirmed that . . . Webster was living at 

his residence where the acts occurred during the period of 2006 to 

 

1 Effective July 1, 2012, this statute was recodified under Indiana Code section 35-31.5-2-72.
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2007. . . . M.W. also confirmed that the relevant time period was 

[between] June 2006 to June 2007. 

(Appellant’s Br. p. 18).

[21] In Upton v. State, 904 N.E.2d 700 (Ind. Ct. App. 2009), trans. denied, the 

defendant committed several child molesting offenses between 2003 and 2007. 

When he was sentenced, the trial court ordered that he would receive Class IV 

pre-sentencing credit time pursuant to the newly-enacted credit restricted felon 

statute. Id. at 705. We reversed the trial court’s classification of the defendant 

as a credit restricted felon because it was an ex post facto violation because at the 

time he committed his offenses, the law did not so restrict the credit time he 

could earn. Id. Likewise, in Gaby v. State, 949 N.E.2d 870, 883 (Ind. Ct. App. 

2011), we noted that the defendant, who was convicted of Class A felony child 

molesting in 2010, would appear to qualify as a credit restricted felon under the 

terms of the credit restricted felon statute. However, we concluded that, in light 

of our opinion in Upton, the application of the credit restricted felon statute to 

the defendant would be an ex post facto violation because the defendant 

committed his offense prior to the effective date of the statute. Id.

[22] Based on the above discussion, the pertinent question here is whether there is 

sufficient evidence to support the trial court’s determination that Webster

molested M.W. on or after July 1, 2008, the effective date of the credit restricted 

felon statute.
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[23] Indeed, the charging Information alleged that the Webster molested M.W. 

between June 2, 2006 and June 2, 2007. Also, at Webster’s jury trial, M.W.’s 

father testified that Webster and Grandmother lived at his house for a short 

while, but moved out in 2007. In addition, when the State questioned M.W. 

whether the molestation occurred between June 2006 and June 2007, M.W. 

confirmed that was the particular time period. 

[24] Aside from the foregoing, our supreme court has held that even in the absence 

of a specific finding that an act of molesting occurred after the effective date of 

the credit-restricted felon statute, a credit-restriction designation does not 

violate the ex post facto prohibition if the evidence allows a reasonable jury to 

conclude that at least one incident of the charged conduct occurred after July 1, 

2008. See Sharp v. State, 970 N.E.2d 647, 648 n. 1 (Ind. 2012) (violation of ex 

post facto prohibition not explored where victim testified that defendant 

committed the act about “every other weekend,” the last of which would have 

been after July 1, 2008). 

[25] Apart from M.W.’s father testimony that Webster lived in his home, but moved 

out of his home in 2007, and M.W.’s testimony that the molestation occurred 

between June 2006 and June 2007; at his jury trial, Webster testified that “I 

lived at [M.W.’s home] from 2008 to 2010.” (Tr. Vol. III, p. 112). In addition, 

during M.W.’s direct examination, the State presented M.W. with a picture of 

herself, and M.W. confirmed that the picture was from “2007 and 2008” when 

she was about “eight” years old. (Tr. Vol. III, pp. 35-36). Thereafter, M.W. 

averred that Webster molested her on at least two instances when she lived in 
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her family home on Caroline Street. Webster’s own testimony that he lived at 

M.W.’s family home between 2008 and 2010, allows an inference that he 

molested M.W. after the effective date of the credit-restriction felon statute. 

Applying the same logic of the Sharp case to the instant case, we find no ex post 

facto violation, and conclude that the trial court properly designated Webster as

a credit restricted felon.

IV. Inappropriate Sentence 

[26] Webster claims that his thirty-year sentence is inappropriate in light of the 

nature of the offenses and his character. Indiana Appellate Rule 7(B) empowers 

us to independently review and revise sentences authorized by statute if, after 

due consideration, we find the trial court’s decision inappropriate in light of the 

nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d 

1114, 1116 (Ind. 2007). The “nature of offense” compares the defendant’s 

actions with the required showing to sustain a conviction under the charged 

offense, while the “character of the offender” permits a broader consideration of 

the defendant’s character. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008); 

Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears 

the burden of showing that both prongs of the inquiry favor a revision of his 

sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we 

regard a sentence as appropriate at the end of the day turns on our sense of the 

culpability of the defendant, the severity of the crime, the damage done to 

others, and a myriad of other considerations that come to light in a given case. 
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Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate 

sentence and how it is to be served.” Id. 

[27] The advisory sentence is the starting point the legislature has selected as an 

appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016, 

1019 (Ind. 2012). For his Class A felony child molesting offense, Webster faced 

a sentencing range of twenty to fifty years, with the advisory sentence being 

thirty years. I.C. § 35-50-2-4. Here, the trial court imposed the advisory thirtyyear sentence. 

[28] Turning to the nature of the offense, Webster, who is M.W.’s uncle, inserted his 

finger inside M.W.’s vagina on at least two occasions. M.W. later reported that 

she had nightmares afterward of Webster molesting her. We do not believe that 

Webster’s sentence was inappropriate in light of the nature of the offense. As 

for Webster’s character, we note that one relevant fact is the defendant’s 

criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). 

Webster correctly notes that that he has no criminal record, but his lack of a 

formal record is offset by the fact that he molested M.W. on multiple instances. 

Moreover, as M.W.’s uncle, he violated his position of trust with M.W. by 

molesting her, which speaks volumes of his unsavory character. Here, Webster

has failed to meet his burden in persuading us that his sentence is inappropriate 

in light of his character. Having reviewed the matter, we conclude that the trial 

court did not impose an inappropriate sentence under Appellate Rule 7(B).
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CONCLUSION

[29] In sum, we conclude that the State did not commit misconduct by referencing 

case law during its closing argument; the trial court did not abuse its discretion 

by responding to a jury question; the trial court properly determined that 

Webster was a credit restricted felon; and Webster sentence is appropriate in 

light of the nature of the offense and his character.

[30] Affirmed. 

[31] Robb, J. and Pyle, J. concur