Thomas E. Stettler v. State of Indiana, 2017 Ind. App. LEXIS 72

In October 2012, then-18-year-old Thomas E. Stettler was accused by S.Y., age 12, of sexually assaulting her while she slept at his home; C.Y. corroborated parts of S.Y.’s account.
Police recorded an interview of Stettler; he was charged with Class B felony child molesting and tried by jury in May 2016.
At trial the State elicited testimony from S.Y. about earlier sexual acts by Stettler when she was as young as eight; Stettler objected under Evidence Rule 404(b).
The trial court admitted S.Y.’s testimony about prior acts; the jury convicted and the court sentenced Stettler to 15 years.
On appeal Stettler challenged (1) admission of prior-act testimony under Evid. R. 404(b) and (2) alleged prosecutorial misconduct in closing argument raising fundamental error. The Court of Appeals affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of prior-act testimony under Evid. R. 404(b)	State: prior acts show plan, modus operandi, absence of mistake (grooming pattern) and thus are admissible for non-propensity purposes	Stettler: testimony was highly inflammatory, not admissible under Rule 404(b), and unrelated to permitted purposes	Court: admission was error because prior acts were not shown to be part of an uninterrupted transaction or tied to motive/intent/mistake, but error was harmless given corroborating evidence of the charged incident
Prosecutorial misconduct in closing argument (including comment on defendant not testifying, demeaning defense counsel, vouching for witness)	State: closing stayed within permissible bounds (recited jury instruction, commented on evidence and witness demeanor)	Stettler: prosecutor improperly invited adverse inference from silence, demeaned defense counsel, and vouched for the victim, amounting to fundamental error	Court: no fundamental error — statements were permissible (recital of instruction, permissible commentary on interview and demeanor); prosecutor did not impermissibly vouch or vilify defense counsel

Thompson v. State, 960 N.E.2d 224 (Ind. 1997) (sets 404(b) admissibility and balancing framework)
Pierce v. State, 29 N.E.3d 1258 (Ind. 2015) (404(b) inadmissible when sole purpose is propensity; evidence may be admitted for other purposes if it survives Rule 403)
Iqbal v. State, 805 N.E.2d 401 (Ind. Ct. App. 2004) (harmless-error standard and relevance of prior acts for non-propensity purposes)
Greenboam v. State, 766 N.E.2d 1247 (Ind. Ct. App. 2002) (distinguishes common-scheme/uninterrupted-transaction applications of 404(b))
Cooper v. State, 854 N.E.2d 831 (Ind. 2006) (standard for reviewing prosecutorial misconduct and requirement to request admonishment/mistrial to preserve error)
Marcum v. State, 725 N.E.2d 852 (Ind. 2002) (examples of impermissible prosecutorial attacks on defense counsel)
Brummett v. State, 10 N.E.3d 78 (Ind. Ct. App. 2014) (prosecutor may not vouch for witness credibility)