Paul Phillips v. State of Indiana, 2014 Ind. App. LEXIS 599

Background

Victim E.C., age eight, frequently visited Paul and Penny Phillips and was found performing oral sex on Paul in Paul’s bedroom; Penny witnessed the act and called 911.
Medical and forensic testing: penile swabs from Paul tested positive for seminal material; E.C.’s DNA found on Paul’s penile swab and inside Paul’s jeans; nurse observed anal redness and positive fluorescence on E.C.’s clothing.
Paul Phillips was charged with multiple child-molesting counts; convicted by jury of one Class A child-molesting felony; sentenced to 42 years with other convictions vacated on double-jeopardy grounds.
During trial a juror submitted a question about the long-term effects on a child who has “implicated someone” close to him; defense sought to identify and question the juror and moved for mistrial after the court re-read instructions instead of excusing the juror.
Defense raised prosecutorial-misconduct claims based on closing and rebuttal arguments (including alleged vouching, inflammatory appeals, and comments about evidence and witness credibility) and objected to voluntary-intoxication instruction given over earlier, narrower objection.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Phillips)	Held
Whether court erred by refusing to identify/question a juror and denying mistrial after juror’s question	Juror’s question did not show bias; curative instruction sufficient; court has discretion to keep juror	Juror’s question showed juror had pre-judged outcome and revealed bias; needed juror identification and questioning or mistrial	Court affirmed: juror question did not show disqualifying bias; rereading instructions was adequate; no abuse of discretion
Whether prosecutor committed misconduct in closing that requires reversal	Most comments tied to record evidence; admonishment cured an instance of pointing at defendant; some rebuttal comments were permissible response to defense closing	Prosecutor vouched for witnesses, appealed to jurors’ sympathy, and made improper comments about evidence and public servants amounting to fundamental error	Court held preserved claim cured by admonishment; unpreserved claims reviewed for fundamental error and were not sufficiently prejudicial to warrant reversal
Whether prosecutor’s rebuttal comment that E.C. wouldn’t repeat exam posture was unsupported and improper	Rebuttal comments responded directly to defendant’s closing and were reasonable inferences from evidence and demeanor	Comments improperly inferred facts not in evidence and were prejudicial	Court held rebuttal was a permissible response to defense argument; not fundamental error
Whether voluntary-intoxication instruction was erroneous	Instruction was supported by defendant’s postcard admitting he had taken Xanax and Vicodin and claimed he was "passed out"; instruction correctly stated law	Instruction unnecessary because defendant did not properly assert the defense and prior objection was limited to wording; no evidentiary basis	Court held instruction was supported by evidence (postcard); giving instruction was not an abuse of discretion

Key Cases Cited

Wainwright v. Witt, 469 U.S. 412 (1985) (standard for juror bias under federal constitution)
Riggs v. State, 809 N.E.2d 322 (Ind. 2004) (trial court discretion in replacing jurors)
Morgan v. State, 903 N.E.2d 1010 (Ind. Ct. App. 2009) (deferential review of juror-removal decisions)
Harris v. State, 659 N.E.2d 522 (Ind. 1995) (presumption that jury follows instructions)
Cooper v. State, 854 N.E.2d 831 (Ind. 2006) (fundamental-error standard for unpreserved prosecutorial-misconduct claims)
Nichols v. State, 974 N.E.2d 531 (Ind. Ct. App. 2012) (framework for prosecutorial-misconduct review)
Hubbard v. State, 469 N.E.2d 740 (Ind. 1984) (standard for when voluntary-intoxication instruction is warranted)
Williams v. State, 402 N.E.2d 954 (Ind. 1980) (intoxication instruction: evidentiary basis needed)