Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 1 of 8

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

Timothy J. O’Connor

O’Connor & Auersch

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Phillip W. Hutchinson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

March 27, 2019

Court of Appeals Case No.

18A-CR-1207

Appeal from the Marion Superior 

Court

The Honorable Mark D. Stoner, 

Judge

Trial Court Cause No.

49G06-1708-F4-28677

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 2 of 8

[1] Phillip Hutchinson appeals his conviction for Level 4 Felony Child Molesting,1

arguing that the State committed prosecutorial misconduct that amounted to 

fundamental error and requires a reversal. Finding no misconduct, we affirm.

Facts

[2] In July 2017, then-ten-year-old K.M. was living with her grandmother and her 

grandmother’s boyfriend, Hutchinson. K.M.’s parents slept in their vehicle

outside the home. One night, K.M. awoke to find Hutchinson standing over 

her and moving his fingers around her genitals. K.M. ran outside, crying, and 

began pounding on the door of the vehicle where her parents were sleeping,

awakening them to tell them what had happened. The family immediately 

called the police.

[3] On August 7, 2017, the State charged Hutchinson with Level 4 felony child

molesting and Level 1 felony child molesting, later adding an allegation that 

Hutchinson was an habitual offender. Hutchinson’s jury trial took place on 

April 2-3, 2018. K.M. testified at the trial. 

[4] During closing arguments, Hutchinson’s attorney argued that K.M.’s testimony 

was not credible, arguing that it could have been a dream, that it could have 

been K.M.’s brother sleeping on her, and that K.M. may have made the 

accusation to get attention. Tr. Vol. II p. 191-92. On rebuttal, the prosecutor 

 

1

Ind. Code § 35-42-4-3.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 3 of 8

responded, arguing that “[k]ids don’t make this up for attention,” id. at 195, and 

explaining the standard of review to the jury:

Ladies and Gentlemen, [in] a second I’m going to sit down and 

you are going to go back to that jury room and you are going to 

start to deliberate. And you are going to get to the point where 

you say, “I believe her but how do you know it’s beyond a 

reasonable doubt?” Yesterday, you didn’t know K[.]M[.], you 

didn’t know the Defendant and you didn’t know what he did to 

her on July 25th of 2017. When you got to believe her, that is 

proof beyond a reasonable doubt, that’s a guilty. And do not 

come back here and tell that little girl she is lying. Because to be 

clear, that’s what a not guilty is. That girl got on the stand, 

promised to tell you the truth and told you what he did to her. 

It’s always easier when stuff like this is done at some other time, 

in some other place, by some other people. But now is the time, 

this is the place, you are the people. And give the child justice, 

find him guilty.

Id. at 198-99. Hutchinson did not object to any of these statements. After 

deliberating, the jury found Hutchinson guilty of Level 4 felony child molesting 

and not guilty of Level 1 felony child molesting. On April 25, 2018, the trial 

court sentenced Hutchinson to eighteen years with three years suspended. 

Hutchinson now appeals.

Discussion and Decision

[5] Hutchinson’s sole argument on appeal is that we should reverse based on 

prosecutorial misconduct. He directs our attention to three statements made by 

the prosecutor that he claims constitute reversible misconduct:
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 4 of 8

• “Kids don’t make this up for attention.” Tr. Vol. II p. 195.

• “[D]o not come back here and tell that little girl she is lying. Because to 

be clear, that’s what a not guilty is.” Id. at 198.

• “[G]ive the child justice, find him guilty.” Id. at 199.

[6] Initially, we note that to preserve a claim of prosecutorial misconduct, a 

defendant must raise a contemporaneous objection, request that the jury be 

admonished, and move for a mistrial if he is unsatisfied with the trial court’s 

admonishment. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). Here, 

Hutchinson took none of these steps. Therefore, Hutchinson must show that 

the alleged misconduct amounts to fundamental error, meaning that the trial 

court erred in not sua sponte raising the issue because the alleged misconduct 

constituted clearly blatant violations of basic principles and presented an 

undeniable and substantial potential for harm. Ryan v. State, 9 N.E.3d 663, 668 

(Ind. 2014). 

[7] In reviewing a claim of prosecutorial misconduct, we must 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 would not otherwise have been subjected. Id. at 667.

[8] Hutchinson argues that the first statement amounted to impermissible vouching

for the credibility of a witness. See Brummett v. State, 10 N.E.3d 78, 83-84 (Ind. 

Ct. App. 2014) (noting that a prosecutor may not state his or her personal 

opinion regarding the credibility of a witness during trial). This statement was 

made during rebuttal, a time in which a prosecutor may rebut the allegations 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 5 of 8

and inferences raised during the defendant’s closing. Johnson v. State, 584 

N.E.2d 1092, 1107 (Ind. 1992). In fact, during rebuttal, prosecutors may 

respond to the statements made during defense counsel’s closing argument 

“even when such arguments by the State may under different circumstances be

objectionable.” Trice v. State, 519 N.E.2d 535, 538 (Ind. 1988). During closing 

argument, Hutchinson’s counsel repeatedly attacked K.M.’s credibility, going 

so far as to suggest that she had fabricated the incident to get attention. When 

the prosecutor responded during closing argument that “[k]ids don’t make this 

up for attention,” tr. vol. II p. 195, it was a direct response to defense counsel’s 

statement. Therefore, rather than being impermissible vouching, this was an 

appropriate statement to make during rebuttal. 

[9] Moreover, this statement was sandwiched between many specific references to 

the evidence in the record to support it. Specifically, the prosecutor referred to 

evidence that K.M. disliked drama at school, that she referred to her genitals as 

her “private part,” id. at 60, and that she had been forced to meet with 

numerous law enforcement officials during the investigation, to show that K.M. 

did not feel comfortable discussing the events and did not want the attention 

that she got as a result. The prosecutor also emphasized circumstantial 

evidence supporting K.M.’s allegations and highlighted the fact that K.M. had 

sworn an oath to tell the truth.2 By linking the general statement that “[k]ids 

 

2 To the extent that Hutchinson argues that the reference to K.M.’s oath to tell the truth was improper 

vouching, we disagree. The prosecutor was merely recounting something that the jurors themselves had 

observed firsthand.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 6 of 8

don’t make this up for attention,” id. at 195, to specific evidence in the record, 

the prosecutor appropriately relied on the evidence in the record rather than on 

her own personal knowledge. We find no prosecutorial misconduct based on 

this statement.

[10] Second, Hutchinson directs our attention to the prosecutor’s direction to the 

jury: “[D]o not come back here and tell that little girl she is lying. Because to 

be clear, that’s what a not guilty is.” Id. at 198. Hutchinson argues that this 

statement was an improper shift of the burden of proof, claiming that “[i]n 

effect, the State was arguing that the burden of proof is an all or nothing 

proposition, that the jury must either believe K.M. or conclude that she 

fabricated her entire story.” Appellant’s Br. p. 11.3

[11] It is true that a prosecutor may not suggest that a defendant shoulders the 

burden of proof in a criminal case. E.g., Stephenson v. State, 742 N.E.2d 463, 483 

(Ind. 2001). But we fail to see how this statement was designed to, or had the 

effect of, requiring Hutchinson to prove his innocence. When viewed in 

context, it is apparent that the prosecutor was merely telling the jury that if it 

found K.M.’s testimony to be credible, that testimony, alone, was sufficient to 

sustain a guilty verdict:

[Y]ou are going to get to the point where you say, “I believe her 

but how do you know it’s beyond a reasonable doubt?” 

 

3 To the extent that Hutchinson argues that this statement also amounted to improper vouching, we refer to 

our analysis above and find, again, that there is no misconduct on this basis.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 7 of 8

Yesterday, you didn’t know K[.]M[.], you didn’t know the 

Defendant and you didn’t know what he did to her on July 25th 

of 2017. When you got to believe her, that is proof beyond a 

reasonable doubt, that’s a guilty. And do not come back here 

and tell that little girl she is lying. Because to be clear that’s what 

a not guilty is.

Tr. Vol. II p. 198. We acknowledge that the point could have been more 

artfully made. But when viewed as a whole, it is apparent that these comments 

accurately recounted the burden of proof to the jury. Moreover, the jurors were 

properly instructed on the presumption of innocence and the State’s burden of 

proof. See Stephenson, 742 N.E.2d at 483 (noting that if prosecutor makes 

improper statements shifting burden of proof, the error is cured with a proper 

advisement made by the trial court). Therefore, this argument is unavailing.

[12] Finally, Hutchinson argues that the prosecutor committed misconduct when 

telling the jury to “give the child justice, find him guilty.” Tr. Vol. II p. 199. 

This Court has long held that “[i]t is misconduct for a prosecutor to request the 

jury to convict a defendant for any reason other than his guilt or to phrase final 

argument in a manner calculated to inflame the passions or prejudice of the 

jury.” Neville v. State, 976 N.E.2d 1252, 1264 (Ind. Ct. App. 2012). But even 

when this rule is violated, we will not reverse if the statement was “fleeting” 

and could not have placed the defendant in grave peril or rendered a fair trial 

impossible. Emerson v. State, 952 N.E.2d 832, 838 (Ind. Ct. App. 2011).

[13] We tend to agree that this statement, in a vacuum, suggests that the jury should 

convict to give K.M. justice, which is improper. But it was made at the end of a 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1207 | March 27, 2019 Page 8 of 8

rebuttal that was filled with specific references to evidence in the record and 

arguments as to why, based on that evidence, Hutchinson was guilty. We can 

only find that this comment was fleeting and was far from placing Hutchinson 

in grave peril or rendering a fair trial impossible. Therefore, this argument is 

unavailing.

[14] As a final aside, we note that the jury found Hutchinson guilty of Level 4 felony 

child molesting and not guilty of Level 1 felony child molesting. This result 

shows that the jurors carefully considered and weighed all of the evidence and 

the elements that needed to be proved beyond a reasonable doubt to convict. 

Given a record that is full of evidence supporting Hutchinson’s guilt and a jury 

that diligently exercised its responsibilities, even if we had found that any of the 

above statements constituted misconduct, we would not have found that they 

amounted to fundamental error.

[15] The judgment of the trial court is affirmed.

May, J., and Robb, J., concur.