William Hodapp, Jr. v. State of Indiana ( 2014 )

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, May 19 2014, 9:12 am
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BROOKE N. RUSSELL GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILLIAM HODAPP, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 07A01-1307-CR-342
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BROWN CIRCUIT COURT
The Honorable Judith A. Stewart, Judge
Cause No. 07C01-1103-FB-78
May 19, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
William Hodapp, Jr. (“Hodapp”) was convicted in Brown Circuit Court of Class B
felony incest, Class C felony incest, Class D felony possession of child pornography, and
Class A misdemeanor battery. Hodapp appeals and presents three issues, which we
restate as:
I. Whether the trial court abused its discretion in denying Hodapp’s motion
for mistrial and motion to set aside the verdict based upon allegations of
juror misconduct;
II. Whether certain comments by the prosecuting attorney constituted
prosecutorial misconduct rising to the level of fundamental error; and
III. Whether the State presented evidence sufficient to convict Hodapp of Class
B felony incest.
We affirm.
Facts and Procedural History
Hodapp had a daughter, C.H., who was born in March 1994. When C.H. was ten
years old, she reported to officials at her school that her father had made her touch his
penis. The school officials reported this to the authorities, and C.H. was removed from
Hodapp’s home for eight months. Eventually, however, C.H. was returned to her father’s
home, and no criminal charges were apparently filed at that time.
Then, in the winter of 2008–2009, Hodapp showed C.H. his penis and asked her to
“play” with it. Tr. p. 238. Hodapp took C.H.’s hand and placed it on his penis and made
her manipulate his penis. He also put his fingers into C.H.’s vagina. C.H. testified that
this occurred “multiple times.” Tr. p. 258. These incidents quickly escalated to the point
that Hodapp began engaging in sexual intercourse with his daughter. C.H. testified
regarding several specific incidents of sexual intercourse. One incident occurred around
2
Halloween, after Hodapp had purchased a large amount of mulch. Hodapp had sexual
intercourse with C.H. on a pile of this mulch. Shortly thereafter, C.H. had purchased a
Marilyn Monroe costume for Halloween, and Hodapp had sexual intercourse with C.H.
while she wore the costume. During another incident, Hodapp and C.H. slept outside to
watch a meteor shower. Hodapp zipped their two sleeping bags together and had sexual
intercourse with C.H. On another occasion, Hodapp had sexual intercourse with C.H. on
the floor of her bedroom.
Hodapp paid C.H. twenty dollars for each of these incidents of sexual intercourse.
Hodapp told C.H. that he was “teach[ing] [her] to be better” at sex and that no one would
believe her if she told someone about the incest. Tr. p. 243. Hodapp also took nude
pictures of C.H., and C.H. took nude pictures of herself. C.H. sent some of the pictures
she had taken of herself to two of her boyfriends. These pictures were later found on
computers and computer drives used by Hodapp.
The last time Hodapp had sexual intercourse with C.H. was in May of 2010, but
when Hodapp approached C.H. for sex on May 23, 2010, she refused. Hodapp
threatened to take away certain of C.H.’s privileges and warned her that he would not pay
her. An argument ensued during which Hodapp hit C.H. in the face, threw her to the
ground, and slammed her head into the floor. This caused injuries to C.H.’s face and leg.
C.H. informed a friend of what had happened and reported the physical and sexual abuse
to a counselor at her school the following Monday.
The State initially charged Hodapp with Class A misdemeanor battery. On March
11, 2011, after a police investigation, the State additionally charged Hodapp in another
3
cause with three counts of Class B felony incest with a person less than sixteen years of
age, one count of Class C felony incest, and one count of Class D felony possession of
child pornography. The court later consolidated these causes, and the case proceeded to
trial on May 29–30, 2013. At the conclusion of the trial, the jury found Hodapp guilty as
charged. Hodapp subsequently filed a motion to correct error, motion to set aside the
verdict, and motion for mistrial, claiming that one of the jurors had committed
misconduct and that the prosecutor had committed prosecutorial misconduct. The trial
court denied these motions, and on July 15, 2013, sentenced Hodapp to ten years on each
of the Class B felony incest convictions, two years on the Class D felony possession of
child pornography conviction, and one year on the Class A misdemeanor battery
conviction. The trial court ordered all of these sentences to be served concurrently. The
trial court also imposed a five-year sentence on the Class C felony incest conviction, to
be served consecutively to the other sentences, for an aggregate term of fifteen years.
Hodapp now appeals. Additional facts will be provided as necessary.
I. Juror Misconduct
Hodapp first claims that the trial court erred in denying his motion to set aside the
verdict and motion for a mistrial based on alleged juror misconduct. The alleged
misconduct at issue involves the juror referred to by the parties as Juror No. 2. During
voir dire, Juror No. 2 made no response when the jury panel was asked if any of the
jurors had seen or heard about the case or had any personal knowledge about the case. At
trial, Hodapp’s wife, and C.H.’s stepmother, Kim Hodapp (“Kim”) testified on behalf of
her husband. After Kim’s testimony, Juror No. 2 told the bailiff that she recognized Kim
4
and “knew who she was [and] knew . . . her mom, [but] she didn’t really know her except
by sight.” Tr. p. 458. The trial court then brought Juror No. 2 into the courtroom for
questioning. Juror No. 2 explained that “probably thirty or forty years ago, I went to
church with [Kim’s] mother.” Id. at 459. When asked if this would impact her ability to
“determine [Kim’s] truthfulness and credibility,” Juror No. 2 stated, “No,” and indicated
she would treat Kim just like she would any other witness. Further questioning by the
parties revealed that Juror No. 2 knew Kim by her maiden name and that she “seen [sic]
her growing up some, but as far as being personally involved with her, nothing like that.”
Id. at 460. Hodapp made no objection to Juror No. 2 continuing to serve as a juror at that
time.
Twenty-nine days after the jury returned its verdict, but before he had been
sentenced, Hodapp filed a combined motion to correct error, motion to set aside the jury’s
verdict, and motion for mistrial, claiming in part that Juror No. 2 engaged in misconduct.
In support of this motion, Hodapp submitted an affidavit in which Kim averred that she
had known Juror No. 2 since 1975, that Juror No. 2 was a “close friend and confidante”
of Kim’s mother, that she had often been in Juror No. 2’s home, and that Juror No. 2 had
often been in her mother’s home. The affidavit also stated that Kim knew Juror No. 2’s
children and that Juror No. 2 would have been aware that Kim had a “falling out” with
Kim’s mother after Kim moved in with Hodapp prior to her marriage with Hodapp.
Appellant’s App. pp. 42-43. At a hearing on Hodapp’s motions on July 1, Kim testified
that she had known Juror No. 2 since she was eight or nine years old and had been to
Juror No. 2’s house “a few times.” Tr. p. 540. Kim explained that she believed her
5
mother had confided with Juror No. 2 and that Juror No. 2 would therefore be aware of
“negative things” going on in Kim’s family, but Kim admitted that she was not privy to
any conversations between her mother and Juror No. 2. Tr. pp. 540-41. Kim also
testified that she had seen Juror No. 2 at a funeral and discussed her family issues “in
passing.” Tr. p. 541. After hearing the parties’ arguments, the trial court denied
Hodapp’s post-verdict motions, an action which Hodapp now claims was erroneous.
A trial court’s discretion in determining whether to grant a mistrial is afforded
great deference, because the trial court is in the best position to gauge the surrounding
circumstances of an event and its impact on the jury. Mickens v. State, 742 N.E.2d 927,
929 (Ind. 2001). A court on appeal therefore reviews the trial court’s decision solely for
abuse of discretion. Id. “After all, a mistrial is an extreme remedy that is only justified
when other remedial measures are insufficient to rectify the situation.” Id. To prevail on
appeal from the denial of a motion for mistrial, a defendant must establish that the
questioned conduct was so prejudicial and inflammatory that he was placed in a position
of grave peril to which he should not have been subjected. Id. The gravity of the peril is
determined by considering the alleged misconduct’s probable persuasive effect on the
jury’s decision, not the impropriety of the conduct. Id.With regard to juror misconduct, the failure of a juror to disclose a relationship to
one of the parties may, in certain circumstances, entitle a party to a new trial. Roberts v.
State, 894 N.E.2d 1018, 1022 (Ind. Ct. App. 2008) (citing Stephenson v. State, 864
N.E.2d 1022, 1055 (Ind. 2007). But in order to obtain a new trial based on a claim of
juror misconduct, the defendant must demonstrate that the misconduct was both gross
6
and likely harmed the defendant. Id. It is the defendant’s burden to present specific and
substantial evidence establishing that a juror was possibly biased. Id. Like the related
question of whether to grant a mistrial, the issue of juror misconduct is a matter within
the trial court’s discretion. Id. (citing Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988)).
We first question the timeliness of Hodapp’s motion. Hodapp was made aware of
Juror No. 2’s familiarity with Kim’s family during the trial, yet he made no motion for a
mistrial or other objection to Juror No. 2 continuing to serve as a juror. In fact, after
Juror No. 2 had answered the court’s and the parties’ questions, the trial court asked
counsel for both parties if they needed to make “any record.” Tr. p. 461. Hodapp’s
counsel specifically stated, “No” and rested his case-in-chief. Under these facts and
circumstances, we conclude that Hodapp failed to preserve the issue of whether the trial
court should have granted a mistrial. See Hale v. State, 875 N.E.2d 438, 444 (Ind. Ct.
App. 2007) (concluding that defendant’s motion for mistrial was untimely, and issue on
appeal had been waived, where defendant did not move for mistrial until after admission
of allegedly improper evidence); Fleener v. State, 648 N.E.2d 652, 660–61 (Ind. Ct. App.
1995) (concluding that the defendant waived issue of whether trial court’s erred in
denying his motion for mistrial because the motion was untimely, coming the day after
the alleged misconduct occurred), summarily aff’d in relevant part, 656 N.E.2d 1140 (Ind.
1995).
Setting aside any questions about the timeliness of Hodapp’s motion for mistrial,
we cannot say that the trial court abused its discretion in denying Hodapp’s motion. The
trial court was faced with two conflicting accounts regarding the closeness of the
7
relationship between Juror No. 2, Kim, and Kim’s mother. Kim claimed that the
relationship was closer than Juror No. 2 had indicated during her questioning. The trial
court obviously gave Kim’s testimony and affidavit little credit, and we are in no position
to second-guess this credibility determination. See Roberts, 894 N.E.2d at 1022(concluding that defendant had not established alleged misconduct when juror’s affidavit
directly conflicted with testimony of defendant and his father indicating a close
relationship between juror and defendant’s mother). Accordingly, we are unable to agree
with Hodapp that the trial court abused its discretion in denying Hodapp’s post-trial
motions alleging juror misconduct.
II. Prosecutorial Misconduct
Hodapp also claims that the prosecuting attorney committed misconduct during
the State’s opening and closing statements. To preserve a claim of prosecutorial
misconduct, a defendant must both make a contemporaneous objection and request an
admonishment. Shelby v. State, 986 N.E.2d 345, 363 (Ind. Ct. App. 2013), trans. denied.
If the objecting party is not satisfied with the admonishment, the proper procedure is to
move for a mistrial. Id. Failure to request an admonishment or move for a mistrial
results in waiver of the issue on appeal. Id. Where a claim of prosecutorial misconduct
has been properly preserved, the reviewing court must determine: (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 should not
have been subjected. Id. (citing Coleman v. State, 946 N.E.2d 1160, 1166 (Ind. 2011)).
8
Here, however, Hodapp made no objections to the comments by the prosecuting
attorney that he now claims constituted misconduct. As such, he has failed to preserve
his claim for appeal. See id. Where, as here, a claim of prosecutorial misconduct has not
been properly preserved, the defendant must establish not only the grounds for the
misconduct, but also the additional grounds of fundamental error. Id. The fundamental
error exception to the waiver rule is an extremely narrow one. Id. at 364. To rise to the
level of fundamental error, the error complained of must be so prejudicial to the rights of
the defendant as to make a fair trial impossible. Id. Specifically, the error must
constitute a blatant violation of basic principles, the harm or potential for harm must be
substantial, and the resulting error must deny the defendant fundamental due process. Id.
As our supreme court quite recently explained, “[a] ‘finding of fundamental error
essentially means that the trial judge erred . . . by not acting when he or she should have,’
even without being spurred to action by a timely objection.” Brewington v. State, No.
15S01-1405-CR-309, slip op. at 29 (Ind. May 1, 2014) (quoting Whiting v. State, 969
N.E.2d 24, 34 (Ind. 2012)). We will examine each of Hodapp’s claims with this standard
in mind.
A. Statements Regarding Facts Not in Evidence
Hodapp first complains that the prosecuting attorney made claims that were not
supported by the evidence. He specifically complains about the following portions of the
State’s opening statement: “In 2004, [C.H.] had disclosed that Bill Hodapp was touching
her,” and “It was her freshman year when he started touching her . . . when she . . . when
he started touching her again.” Tr. p. 205.
9
These statements are in apparent reference to C.H.’s report in 2004 that Hodapp
had made her touch his penis. It does not appear that Hodapp complains that this was
improper because it referred to the uncharged 2004 misconduct. Indeed, a review of the
trial transcript reveals that part of Hodapp’s trial strategy was to refer to this earlier
allegation, which was apparently determined to be unsubstantiated, and argue that C.H.’s
current claims were similarly unworthy of credit. On appeal, Hodapp claims that the
prosecutor’s reference to the 2004 incident was improper because it mischaracterized the
evidence because it refers to Hodapp touching C.H. as opposed to C.H. touching him.
During its opening statement, the State may relate to the jury what it expects the
evidence to be. Ind. Code § 35-37-2-2(1); Splunge v. State, 526 N.E.2d 977, 981 (Ind.
1988); Tacy v. State, 452 N.E.2d 977, 981 (Ind. 1983). That the State failed to provide
any evidence that Hodapp improperly touched C.H., as opposed to C.H. touching Hodapp,
in 2004 does not mean that the prosecuting attorney’s reference to this during the State’s
opening statement constituted fundamental error. Indeed, it is black-letter law that
statements by attorneys, including opening statements, are not evidence, Bradford v.
State, 675 N.E.2d 296, 301 (Ind. 1996), and the jury in this case was so instructed. Tr. pp.
204, 514.
Hodapp also complains about statements made during the State’s closing
arguments, which included: “I want you to think about a 10 year old girl, who tells the
authorities that she’s been touched by her father.” Tr. p. 499. Again, Hodapp claims that
this mischaracterizes the evidence because the only evidence admitted at trial regarding
the 2004 allegations were that Hodapp made C.H. touch him, not that he touched her.
10
Regardless of whether Hodapp touched C.H or or forced C.H. to touch him in 2004, the
fact remained that there was an unsubstantiated allegation of improper sexual contact in
2004. We are unable to say that this minor mischaracterization of the 2004 event arose to
the level of fundamental error.
Another comment by the prosecuting attorney during the State’s closing argument
was with reference to one of C.H.’s boyfriends: “About the time they started dating, . . . I
think he said within a month, she said about six months, she starts talking about this 40
year old secret. And about this time . . . all around the same time that the defendant
begins having sex with her again.” Tr. p. 473. It is unclear precisely which conduct this
refers to, but we reject Hodapp’s suggestion that this reference to his having sex with C.H.
“again” must refer to the 2004 incident or some other uncharged conduct. Given the
repeated nature of Hodapp’s reprehensible behavior towards C.H., it is at best unclear as
to what the prosecuting attorney was referring to in this statement, but we cannot say that
this reference to Hodapp having sex with C.H. “again” rises to the level of fundamental
error.
B. Inflaming the Passions and Prejudices of the Jury
It is well established that it is improper 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), trans. denied. Hodapp claims that the
prosecutor committed such misconduct during the State’s closing argument.
11
C.H. testified that Hodapp told her that, by having sexual intercourse with her, he
was doing her a favor by teaching and educating her about how to have sex. Hodapp
testified that he taught his daughter about photography, but not about how to take
pornographic pictures. In reference to this evidence, the prosecuting attorney stated
during closing argument, “And you heard the kind of eery [sic] testimony from the
defendant about how we don’t teach that. We don’t teach pornography. Eerily similar to
what she says comes out of his mouth when he’s raping her and molesting her.” Tr. p.
473. Hodapp claims used the terms “rape” and “molest” to inflame the passions and
prejudices of the jury because Hodapp was not charged with rape or child molesting.
In addressing this argument, we again emphasize that Hodapp failed to object to
these statements at trial. Had he done so, the trial court might well have sustained his
objection. But he did not object, and the question before us is not whether the
prosecuting attorney should have used the terms “rape” or “molesting.” Clearly, he
should not. The question before us, however, is whether using these terms constituted a
blatant violation of basic principles that denied the defendant fundamental due process.
We conclude that it did not.
The term “rape” in Indiana criminal law is strictly limited to knowingly or
intentionally having sexual intercourse with a member of the opposite sex when the other
person is either compelled by force or the imminent threat of force, is unaware that the
intercourse is occurring, or so mentally disabled or deficient that consent to intercourse
cannot be given. Ind. Code § 35-42-4-1(a). This definition does not encompass rape of
someone of the same sex or forcible, nonconsensual anal intercourse, or sex with
12
someone under a certain “age of consent,” all of which are sometimes colloquially
referred to as “rape.” See Mirriam-Webster Online, http://www.merriam-
webster.com/dictionary/rape, (defining “rape” as a noun as “unlawful sexual activity and
usually sexual intercourse carried out forcibly or under threat of injury against the will
usually of a female or with a person who is beneath a certain age or incapable of valid
consent.”); Oxford English Dictionary, OED Online, http://www.oed.com/view/Entry/
158145?rskey=19Xp2F&result=3&isAdvanced=false#eid (defining “rape” to include “In
later use more generally: the act of forced, non-consenting, or illegal sexual intercourse
with another person; sexual violation or assault.”).1
While we do not condone the prosecuting attorney’s use of the word “rape,” we
cannot say it amounted to fundamental error. The jury was not encouraged to convict
Hodapp of “rape”; it was instructed on the statutory definitions of the charged crimes of
incest. And the jury was repeatedly instructed that the arguments of counsel were not
evidence. Under these facts and circumstances, we cannot say that this reference to “rape”
deprived Hodapp of fundamental due process.
We reach a similar conclusion with regard to the prosecuting attorney’s use of the
word “molest.” Hodapp was not charged with child molesting, which involves sexual
conduct with a child under the age of fourteen. See Ind. Code § 35-42-4-3. But the word
“molest” has a much broader meaning. See Oxford English Dictionary, OED Online,
1
In fact, during the trial, one of C.H.’s ex-boyfriends testified that he asked C.H., “is [Hodapp] raping
you, and she said, yeah, he is.” Tr. p. 214. Hodapp made no objection to this testimony, and on cross-
examination of this witness, Hodapp’s counsel even brought the subject up again, asking the witness “and
you asked [C.H] if [Hodapp] was raping . . her.” Tr. p. 219.
2
Neither do we agree with Hodapp that the cumulative effect of the prosecuting attorney’s statements
constituted fundamental error.
3 13
Hodapp also claims that the evidence is insufficient to support his conviction for Class B felony incest
http://www.oed.com/view/Entry/120866?rskey=XStFX1&result=3&isAdvanced=false
(defining “molest” as a verb as “To harass, attack, or abuse sexually.”). It was imprudent
and improper for the prosecuting attorney to use this word to describe to the jury what
happened to C.H. If Hodapp had objected, his objection should have been sustained. But
Hodapp did not object, and the jury was not encouraged to convict Hodapp of child
molesting. Instead, the jury was instructed on the charged crime of incest. And yet again,
the jury was repeatedly instructed that the arguments of counsel were not evidence.
Under these facts and circumstances, we cannot say that the prosecuting attorney’s
improper comments amounted to fundamental error.
Hodapp also complains of the prosecuting attorney’s reference to the sexually-
transmitted disease herpes. At trial, evidence was presented that Hodapp and his wife
Kim have herpes. The defense elicited testimony from C.H. that she did not have herpes.
The State also elicited testimony from C.H. that Hodapp always used a condom when he
had sexual intercourse with her. The defense presented testimony that a condom was not
a surefire means of preventing the transmission of herpes during sexual intercourse,
thereby claiming that the fact that C.H. did not have herpes supported Hodapp’s denial of
having sexual intercourse with C.H. During its closing argument, the State referenced the
issue of herpes in a manner that Hodapp now claims was improper. The portions of the
prosecuting attorney’s statement Hodapp complains about include:
Now, much has been made about herpes today. And what you saw
yesterday was I think one of the cruel things that can happen. (Inaudible)
[C.H.] [wa]s up here telling the world about the abuse that she suffered.
She gets down and leaves, and thinks she’s done, and then she comes back.
And all of a sudden, is asked, do you have herpes. And [C.H.]’s (inaudible),
14
she’s going to probabl[y] go home and figure out what that question meant,
and what that question means for this trial. And it’s not enough for the
defendant to have abused her body, attack her self worth, told her that
nobody would believe her, but now . . as a parting shot, to leave her with
the understanding that she’s been now . . that she’s been exposed to a life
long illness. Something that she’s going to share with her most intimate
partners. And she didn’t even know until yesterday. How horrifying for
her. And you heard evidence that the defendant has herpes, that he passed
it on to his wife, because they didn’t use condoms, that he . . herpes is
(inaudible) and easy to transmit when you have an outbreak, but that he has
outbreaks that take up to about 10 days every couple months. [C.H.] told
you that he was having sex with her every two weeks or so. Came out to be
about (inaudible). And on cross examination, I suspect you heard this too,
when asked the question, why did you buy condoms for [C.H.] , the answer
was not because I didn’t want her to get pregnant, the answer was because I
didn’t want her to get herpes. Because that’s what he has and he didn’t
want to pass it along to his daughter! It would be evidence and it would
damage her for life. And so he used a condom every single time. He
wasn’t concerned about what she was going to get from [her boyfriend]
Rusty. He wasn’t concerned about whether or not he was going to make
her pregnant. He was concerned that she didn’t get herpes! The very
disease he carries, that he knows he can transmit to somebody else and so
he’s very careful to buy her condoms and use her condoms! And that’s
forefront on his mind, even when he’s testifying here! I don’t want her to
get herpes! And who has got herpes? . . . .
Tr. pp. 475-76.
Hodapp now claims that this was improper because it implied that the defense
surprised C.H. about herpes and because it mischaracterizes Hodapp’s testimony.
Hodapp argues that he had a constitutional right to cross-examine C.H., including about
whether she had any sexually-transmitted diseases. He therefore argues that the State’s
statements regarding the cruelty of asking C.H. such questions penalized him for
exercising this right. We first note that the State was referring not simply to the question
of whether C.H. had herpes, but the manner in which she was asked this, i.e., after she
15
had been excused as a witness then re-called for this line of questioning. We cannot say
that this line of questioning deprived Hodapp of fundamental due process.
But Hodapp also claims that the State mischaracterized the evidence by claiming
that he had testified that he bought C.H. condoms because he did not want her to get
herpes. Hodapp claims that his actual testimony was that he bought her condoms so that
she would not get any sexually-transmitted disease. Importantly, the substance of
Hodapp’s testimony was somewhere in between these two characterizations. When
asked why he bought C.H. condoms if he did not wish her to have sexual intercourse,
Hodapp testified, “I bought her condoms because I’ve got herpes. I don’t want her to get
a str . . a sexually transmitted disease, like I got. The only way she’s going to do that is if
she knows how to stay protected.” Tr. p. 428. Therefore, although the prosecuting
attorney’s statements weren’t entirely accurate, they were not wholly inaccurate. Hodapp
testified that he bought his daughter condoms because he had herpes and he did not want
her to similarly get a sexually-transmitted disease. Under these facts and circumstances,
we cannot say that this amounted to fundamental error. 2 Accordingly, we reject
Hodapp’s claims that the prosecuting attorney committed misconduct constituting
fundamental error.
III. Sufficiency of the Evidence
Lastly, Hodapp claims that the State presented insufficient evidence to convict him
of incest as a Class B felony. When reviewing a claim that the evidence is insufficient to
2
Neither do we agree with Hodapp that the cumulative effect of the prosecuting attorney’s statements
constituted fundamental error.
16
support a conviction, we neither reweigh the evidence nor judge the credibility of the
witnesses; instead, we respect the exclusive province of the trier of fact to weigh any
conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We consider
only the probative evidence and reasonable inferences supporting the verdict, and we will
affirm if the probative evidence and reasonable inferences drawn from the evidence could
have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable
doubt. Id.Incest as a criminal offense is defined as follows:
A person eighteen (18) years of age or older who engages in sexual
intercourse or deviate sexual conduct with another person, when the person
knows that the other person is related to the person biologically as a parent,
child, grandparent, grandchild, sibling, aunt, uncle, niece, or nephew,
commits incest, a Class C felony. However, the offense is a Class B felony
if the other person is less than sixteen (16) years of age.
Ind. Code § 35-46-1-3(a) (emphasis added). Hodapp claims that the State failed to
prove that he had sexual intercourse with C.H. when she was under the age of sixteen.
However, Hodapp admits that C.H. described several instances of sexual intercourse with
her father, two of which occurred when she was fifteen years old. See Appellant’s Br. p.
23. This evidence by itself is sufficient to support Hodapp’s conviction for Class B
felony incest.3 See Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (“A conviction can
3
Hodapp also claims that the evidence is insufficient to support his conviction for Class B felony incest
because the State failed to prove precisely where he and C.H. were when he placed his fingers in her
vagina. He claims that this means that there was insufficient evidence to find that the events occurred in
Brown County. However, C.H. specifically testified that the sexual intercourse took place in Brown
County, and he attacks only the sufficiency of the evidence on the conviction for Class B felony incest,
which was based on sexual intercourse.
17
be sustained on only the uncorroborated testimony of a single witness, even when that
witness is the victim.”).
Conclusion
The trial court did not abuse its discretion when it denied Hodapp’s motions for
mistrial and to set aside the verdict based on alleged juror misconduct, as the trial court
was under no obligation to credit the testimony and affidavit of Hodapp’s wife. The
prosecuting attorney made several statements that were improper, and had Hodapp
objected, his objections should have been sustained. However, Hodapp did not object,
and these improper statements by the prosecuting attorney did not constitute fundamental
error. Lastly, the State presented sufficient evidence to convict Hodapp of Class B felony
incest because his daughter testified that Hodapp had sexual intercourse with her when
she was fifteen years old.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.
18