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.

A TTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : ROSS G. THOMAS GREGORY F. ZO E LLER Indianapolis, Indiana Attorney General of Indiana

GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

RICHARD A. PERKEY, ) ) Appellant

- Defendant, ) )
vs. ) No. 20A03

- 1303

- CR

- 77 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable Evan S. Roberts , Judge Cause No. 20D01

- 1110

- FB

- 18

May 14, 2014

MEMORANDUM DECISION ON REHEARING

- NOT FOR PUBLICATION

SHEPARD, Senior Judge2

This Court earlier considered Richard Perkey’s appeal of his conviction for rape, a
class B felony, and we affirmed. Perkey has now filed for rehearing. Counsel observes
that we addressed his claims that various statements by witnesses were wrongly admitted,

but did not cover his claim of prosecutorial misconduct. Counsel is correct, and we grant
rehearing to do so.
Counsel’s task on appeal has been complicated by the fact that all of the enumerated
pieces of testimony or moments of claimed misconduct occurred without objection.
Perkey’s contentions about misconduct largely fall into three categories. The first

of t hese relates to the prosecutor reminding the jury of various things witnesses ha d said
during trial. Perkey has said that these statements were inadmissible as hearsay and
drumbeat repetition. In dealing with this claim in our earlier opinion, we held th at this

evidence did not meet the test of Modesitt v. State , 578 N.E.2d 649 (Ind. 1991), in effect
saying that we would not have reversed even if the evidence in question had been the
subject of timely objection. Having reached that conclusion, we see no wrong

- doing in the
prosecutor’s mention of that evidence during closing argument.
Second, Perkey says the prosecutor misbehaved by vouching for some of the

witnesses. Indiana’s long

- standing rule against vouching has its origins in cases where the

prosec utor told the jury that he had special knowledge about facts beyond those in the trial

record. See, e.g. , Strickland v. State , 265 Ind. 664, 359 N.E.2d 244 (1977); Jackson v.

State , 116 Ind. 464 , 19 N.E. 330 (1889). Where the prosecutor does no t claim special
knowledge, the prosecutor is permitted to comment on the credibility of witnesses or even3

on the ultimate question (as in “I don’t think there is much doubt that there was in fact a
robbery and who did it”). Miller v. State , 623 N.E.2d 403 (Ind. 1 993).
The comments at issue here fall into the latter category. “Well, if she’s not telling
the truth then I guess she deserves an academy aw ard for sticking to her account

. . . . ” Tr.

p. 603. Or, “She didn’t make it up.” Id. at 634.

The third kin d of misconduct claimed here is the prosecutor’s reference to the victim

as a child, though the victim was twenty

- one years old at the time of trial, and the
prosecutor’s reference to the defendant’s act of rape as having taken “a very real and
personal th ing from her.” Id. at 593.
All in all, we conclude that these comments and others of similar rank did n ot make
a fair trial impossible and were not fundamental error. They were not preserved for appeal.
We therefore affirm the conviction, as before.

BAKER, J., and BAILEY, J., concur.