Jeremy N. Hull, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Jeremy N. Hull (“Hull”) appeals, following a jury trial, his convictions on ten counts of Level 1 felony child molesting.¹ Hull argues that: (1) the trial court committed fundamental error when it admitted evidence of Hull's internet search history; and (2) the prosecutor engaged in prosecutorial misconduct that constituted fundamental error. We conclude that Hull: (1) has not shown fundamental error in the admission of evidence; and (2) has not met his burden of showing prosecutorial misconduct and fundamental error. Accordingly, we affirm Hull's convictions.²

[2] We affirm.

Issues

1. Whether the trial court committed fundamental error when it admitted evidence of Hull's internet history.

2. Whether the prosecutor engaged in prosecutorial misconduct that constituted fundamental error.

Facts 3

[3] In late June 2022, twenty-three-year-old Hull met thirteen-year-old J.A. (“J.A.”) and J.A.’s fifteen-year-old sister (“J.A.’s sister”) at a local fair in Whitley County. Hull hung out with J.A. and J.A.’s sister and rode rides with them during multiple days of the fair. While at the fair, Hull also met J.A.’s mother (“J.A.’s mother”), who asked Hull why he, as a twenty-three-year-old, wanted to hang out with her teen daughters. Hull responded that they were “just friends” and that he “look[ed] at them like family.” (Tr. Vol. 2 at 211).

[4] Shortly thereafter, Hull started spending time with J.A. and her family at the family's apartment, where J.A. lived with her mother, her older brother, and her two sisters. Initially, Hull would spend time with the family outside wrestling and playing dodgeball and tag. After J.A.’s mother had “started building a relationship [or] friendship” with Hull, she allowed Hull to come inside the apartment. (Tr. Vol. 3 at 105). In July 2022, Hull started staying the night with J.A.’s family on most nights, and he referred to J.A. as his little sister and J.A.’s family as his own family. J.A.’s mother “took him in” and “t[old] people that he was [her] oldest child.” (Tr. Vol. 3 at 105). J.A. developed a crush on Hull, and J.A.’s mother “asked [Hull] to help [her]” and to keep up his “guard[.]” (Tr. Vol. 3 at 105). Hull started to secretly hold J.A.’s hand and kiss her when her family was not looking. At that time, J.A. considered Hull to be her “best friend[,]” and, upon his request, she went with him “[w]herever he would go[.]” (Tr. Vol. 2 at 220).

[5] J.A.’s mother became “suspicious” of Hull's behavior towards J.A. when she saw J.A. putting her legs on Hull while they were sitting. (Tr. Vol. 2 at 221). J.A.’s mother also “found it odd” when she saw Hull hugging J.A. in the kitchen pantry, and Hull told her that J.A. had been having a bad day. (Tr. Vol. 2 at 221). J.A.’s mother expressed some skepticism and told J.A. that she had never hugged her own brother when she had had a bad day. Hull “got mad that [J.A.’s mother] had talked to J.A․ about the hug” and told J.A.’s mother that she was “fucking disgusting for thinking that” and that “he t[hought] of [J.A.] as his sister.” (Tr. Vol. 3 at 107).

[6] During July 2022, Hull started to have sexual intercourse with J.A. Hull told J.A. that they would “get in trouble” if they were caught, and he told J.A. that she would get taken away from her mother if she were to tell anyone. (Tr. Vol. 2 at 222). The first time that Hull “put his dick in [J.A.’s] vagina[,]” J.A. was in her bedroom while her family was outside. That same day, Hull also had J.A. perform oral sex on him. Hull told J.A. to “suck [his] dick[,]” then “grabbed [her] head[,] ․ pushed [her] head onto his dick[,]” and “kept pushing [her] head back and forth[.]” (Tr. Vol. 2 at 224).

[7] During that summer of 2022, Hull continued to have sexual intercourse with J.A. at her family's apartment. Specifically, Hull had sex with J.A. in her bedroom, J.A.’s mother's bedroom, living room, bathroom, kitchen pantry, on an electrical box outside the apartment, and at J.A.’s aunt's house. Before Hull had sexual intercourse, he also digitally penetrated J.A.’s vagina. At one point during that summer, J.A. was concerned that she might be pregnant, and Hull bought a home pregnancy test for her. After J.A. had used the pregnancy test, Hull threw it in the outside dumpster.

[8] J.A. had a phone that did not have cellular service and worked only on Wi-Fi. J.A.’s mother required J.A. to put her phone on the kitchen table during the night so that J.A. would not be on the phone all night. Hull and J.A. communicated through Snapchat via messages or calls. J.A. saved the Snapchat messages from Hull “most of the time, but he [did]n't like that” she would save them. (Tr. Vol. 2 at 233). Hull “would yell at [J.A.]” and tell her not to save the messages and that it was “bad” to do so. (Tr. Vol. 2 at 233). “[I]n the middle of the night[,] [Hull] would get on [J.A.’s] phone and unsave all of the chats.” (Tr. Vol. 2 at 233). Hull also told J.A. that she “better not be talking to any other boys,” and Hull would look at J.A.’s phone during the night to see if she had done so. (Tr. Vol. 2 at 234). At one point, J.A. wanted “some privacy,” and she put a password on her phone. (Tr. Vol. 2 at 234). Thereafter, when Hull attempted to get into J.A.’s password-protected phone, Hull expressed his annoyance to J.A. and made her give him her password.

[9] J.A. also had some “private” photographs of herself that she kept on her phone and hidden in a “my eyes only” file. (Tr. Vol. 2 at 250). Hull knew about the photographs, and J.A. sent him a “couple of them.” (Tr. Vol. 2 at 250). Some of the photographs that J.A. had taken of herself included nude and semi-nude photographs. Hull asked J.A. for some nude photos, but she did not send him any. Instead, Hull got into J.A.’s phone when she slept and sent himself some of J.A.’s nude and semi-nude photographs. Hull later showed J.A. that he had her photographs on his phone.

[10] The last time that Hull had sexual intercourse with J.A. was during the evening of September 21, 2022. Hull woke up J.A. in her bedroom, told her to “go to the fucking living room[,]” and to take out her tampon because she was on her period. (Tr. Vol. 2 at 240). Hull removed his penis from J.A.’s vagina before he had completely ejaculated, but he told J.A. that he had ejaculated “a little bit” inside of her and instructed her “to go to the bathroom to pee” to “get the cum out[.]” (Tr. Vol. 2 at 240). Hull then “ran to the trash can in the kitchen to finish jerking off.” (Tr. Vol. 2 at 240).

[11] The following day, on September 22, 2022, J.A.’s mother sent Hull a text message in the late morning. J.A.’s mother told Hull that, now that school had started, she needed to “get [her] family back on routine” and that he needed to start staying at his own house. (Tr. Vol. 3 at 108). J.A.’s mother also told Hull that she did not appreciate him “being bossy” with her children. (Tr. Vol. 3 at 108). Additionally, J.A.’s mother told Hull that, although she no longer wanted him to stay at their house, he was still welcome to come and visit. J.A.’s mother also told Hull that she had become concerned about Hull's interest in what boys liked J.A. or what boys she liked. J.A.’s mother told Hull that she felt that it was “unhealthy” for J.A. to be worried about what Hull was doing or about making Hull mad. (Tr. Vol. 3 at 124; Ex. Vol. 2 at 82).⁴ In addition, J.A.’s mother told Hull that she “need[ed] [J.A.] to worr[y] about being 13 and going to school” and “not [to be] worried about what a grown man who is 23 is doing[.]” (Ex. Vol. 2 at 82). Hull responded to J.A.’s mother's text and stated that he was just friends with J.A., that she was like his little sister, and that he did not care who she liked. Hull further told J.A.’s mother that he had not tried to boss around her children, that he did not know “where any of this [wa]s really coming from[,]” and that he would pick up his things after work. (Ex. Vol. 2 at 82).

[12] J.A.’s mother packed up the few items that Hull had at the apartment and put those items outside her door in the hallway. When J.A. came home from school that day, she saw Hull's things in the hallway and asked her mother why Hull's things were outside. J.A.’s mother told J.A. that she did not want Hull to stay with them any longer but that Hull could still visit. J.A. took her phone from the kitchen, walked outside, and then sent Hull a text saying, “Dude we won't be able to fuck anymore.” (Ex. Vol. 1 at 40). J.A.’s mother grabbed J.A.’s phone, saw the text that J.A. had sent, and said “oh so you guys are fucking?” (Tr. Vol. 2 at 245). J.A. confirmed that they were, and J.A.’s mother immediately called the police. In the meantime, Hull responded to J.A.’s text and sent two messages. In the first text, Hull stated “Yeah, ik[,]” and in the second text, he stated “We won't be able to do anything really[.]” (Ex. Vol. 1 at 210).

[13] As J.A. and her mother were waiting for the police to arrive, J.A.’s mother asked J.A. when she and Hull had started having sex. J.A. told her mother that they had last had sex the previous night. After police had arrived on the scene, J.A.’s mother took J.A. to a sexual assault treatment center for a physical exam. The sexual assault nurse examiner (“the sexual assault nurse”) talked to J.A. and examined her. During the examination, J.A. described the sexual intercourse encounter from the day prior in the living room and stated that Hull had pulled his penis out of her vagina before he had ejaculated and had then ejaculated in the trashcan in the pantry. J.A. also told the sexual assault nurse that she and Hull had had sexual intercourse on other occasions in the bathroom, pantry, and her bedroom and that he never used a condom. J.A. informed the sexual assault nurse that “[i]t hurt the first time [Hull] popped [her] cherry.” (Tr. Vol. 4 at 34, 35; Ex. Vol. 1 at 143). Additionally, J.A. told the sexual assault nurse that Hull had told her that he loved her and that he had called her “his little sister.” (Tr. Vol. 4 at 35; Ex. Vol. 1 at 144). The sexual assault nurse collected a sexual assault kit from J.A., and this kit included swabs from J.A.’s genital area.

[14] Immediately after J.A. had completed her physical examination, she then had a forensic interview at a child advocacy center. During the forensic interview, J.A. told the forensic interviewer (“the forensic interviewer”) about some of the sexual intercourse encounters that Hull had engaged in with J.A. At that time, J.A. was “scared” that she “was going to get taken away[,]” and she did not disclose the oral sex incident or the full list of locations where the sexual intercourse had occurred. (Tr. Vol. 2 at 249). J.A. told the forensic interviewer that Hull had warned J.A. not to tell anyone about them having sex because “they would both be in deep shit, especially him.” (Tr. Vol. 4 at 106). J.A. had a second forensic interview in October 2023. At that time, she provided additional details about the molestations and discussed the oral sex incident that she had not discussed during her first interview. J.A. also gave her cellphone to the police.

[15] Columbia City Police Department Detective Robert Stephenson (“Detective Stephenson”) interviewed Hull on September 23, 2022. During the interview, Hull denied that he had had sex with J.A. Hull referred to J.A. as his little sister and acknowledged that he had communicated with her on Snapchat. When Detective Stephenson asked Hull if he had any nude images of J.A. on his phone, Hull denied that he did. The detective also asked Hull about J.A.’s Snapchat message that she and Hull could no longer have sex, and Hull denied knowing about the message. After the interview, Detective Stephenson took custody of Hull's phone, and Hull consented to a search of it. The police also took a buccal swap from Hull for DNA testing.

[16] The police sent Hull's phone and J.A.’s phone to the State Police to conduct a digital forensic analysis of the phones. Sergeant Justin Snyder (“Sergeant Snyder”), who was a forensic analyst in the digital forensic unit of the Indiana State Police, analyzed the two phones. The analysis of J.A.’s phone revealed numerous messages and photographs that J.A. and Hull had sent to each other between June 29, 2022 and September 22, 2022. The analysis of Hull's phone revealed that he had multiple nude and semi-nude photographs of J.A. on his phone, and these nude photographs had previously been deleted from Hull's phone.

[17] The State sent Hull's buccal swab and the swabs from J.A.’s sexual assault kit to the Indiana State Police Lab for testing. A forensic analyst conducted initial DNA testing and determined that the various swabs taken during J.A.’s physical exam, which included an external genital swab, an internal genital swab, and a vaginal swab, revealed that “male DNA was present” but that there was an “insufficient quantity of make DNA for further analysis.” (Tr. Vol. 4 at 56). Another forensic analyst then conducted a Y-STR DNA analysis and determined that J.A.’s external genital swabs showed that the Y-STR profile was “5659 times more likely if it originated from Jeremy Hull[.]” (Ex. Vol. 1 at 164).

[18] The State charged Hull with eleven counts of Level 1 felony child molesting. Eight of the child molesting counts alleged that Hull had engaged in acts of sexual intercourse with J.A., and three counts alleged that Hull had engaged in other sexual conduct.

[19] The trial court held a four-day jury trial in January 2024. Hull's defense was that the State would not meet its burden of proving that he had molested J.A. because J.A. was not credible and because no one in the apartment had heard or seen Hull engaged in any sexual act with J.A.

[20] When the State commenced its opening statement, the prosecutor told the jury that “[e]very criminal case [wa]s a journey onto itself[,]” that “[e]very time we embark on this process, there is something we discover along the way[,]” and that [e]very journey ha[d] a conclusion.” (Tr. Vol. 2 at 191). The prosecutor then told the jury that this trial would be the “conclusion of one little girl's journey.” (Tr. Vol. 2 at 191). Thereafter, the prosecutor stated that J.A. would tell the jury about “her journey” or “her story” of how she had met Hull when she was thirteen years old, how he had become friends with her family, how he had repeatedly had sexual intercourse with her, forced her to have oral sex, and how he had told J.A. that she would be taken from her mother if she told anyone. (Tr. Vol. 2 at 191). Additionally, the prosecutor told the jury that J.A. had been “examined thoroughly” during a sexual assault physical examination and that she had undergone a forensic interview. (Tr. Vol. 2 at 194). The prosecutor also stated that, during J.A.’s upcoming testimony, she would be required to identify nude photographs of herself that Hull had on his phone and that she might be embarrassed. The prosecutor also made the following statements to which Hull did not object:

And you'll understand the difficulty that comes with a child disclosing any thing of this magnitude․ And you'll understand exactly the kind of pressure that this little girl was placed under by the Defendant. To tell her story over and over and over again, sometimes with her legs in the air, and then to be criticized for being inconsistent. Or for maybe not remembering a detail.

* * * * *

․ [This] is a little girl on her journey ․ here to tell her story. Again. And Again․ And these are the words of a little girl that must be respected in the courage, in the ․ simplicity and in conjunction with the physical evidence and forensic evidence of this case․ This is her journey. I ask that you respect it.

(Tr. Vol. 2 at 195, 197).

[21] During the trial, the State presented testimony and evidence as set forth in the facts above. J.A. specifically testified that Hull had engaged in numerous acts of sexual intercourse with her, had digitally penetrated her vagina on more than one occasion, and had forced her to perform oral sex on him. She also specified the locations in the apartment where Hull had sex with her. J.A. testified that the first time that Hull had sexual intercourse with her, she had been wearing a black Under Armor shirt and pink Mickey Mouse shorts and that she remembered that event and those details because Hull “had made [her] give him head” and that she “didn't like it[.]” (Tr. Vol. 2 at 223, 224). During J.A.’s testimony, she identified the nude and semi-nude photographs of herself that Hull had put on his phone, and the State introduced those photographs as Exhibit 3. This exhibit also included photographs of J.A. that Hull had taken while J.A. had been sleeping.

[22] Hull's counsel thoroughly cross-examined J.A. for two and one-half hours. Defense counsel asked J.A. specific questions about the “mechanics” and specific descriptions of the sexual acts that she had alleged that Hull had done. For example, when questioning J.A. about the last time that she and Hull had sexual intercourse, Hull's counsel asked J.A. to provide a detailed description of how Hull could have pulled his penis out of her vagina and run to the trash can to ejaculate. (Tr. Vol. 3 at 44). During Hull's cross-examination of J.A., the trial court sustained multiple objections.

[23] Also during the trial, the State presented the DNA testimony and exhibits and the cellphone digital analysis testimony and exhibits. The forensic analyst who had conducted the Y-STR DNA analysis testified that she had determined that J.A.’s external genital swabs showed that the Y-STR profile was “5,659 [times] more [ ] likely if it originat[ed] from Jeremy Hull[.]” (Tr. Vol. 4 at 79).

[24] Sergeant Snyder, the State Police forensic analyst, testified about the forensic analysis of J.A.’s and Hull's cellphones. In part, Sergeant Snyder testified about the nude photographs of J.A. that Hull had had on his phone and had then deleted. Sergeant Snyder explained that he had used a “carving” recovery method to access the deleted nude photographs from Hull's phone. (Tr. Vol. 4 at 149). The State and Sergeant Snyder then had the following colloquy about the deleted photographs:

[The State:] And when you see cases in which you have ․ a naked photo of a child that appears on the phone and ultimately it's marked for deletion and you have to carve it, what do you, what do you say as a state police officer when you're investigating those cases, what are those kind of cases referred to as?

[Sergeant Snyder:] So we have a term that we use typically when we come across these because I would say that more than fifty percent of the cases we do, um, the person views the photo and then when they're done with the photo, they delete it. So we typically use the term beat and delete. What that means is that the person views it, um, masturbates to it, and then once they're done they delete the photo. They don't need it any longer.

(Tr. Vol. 4 at 150). Hull did not object to the State's question or the sergeant's testimony. The State then asked Sergeant Snyder further questions about accessing the deleted nude photographs from Hull's phone.

[25] Thereafter, the State moved to admit State's Exhibit 16, which was a report analysis from Hull's phone. Exhibit 16 consisted of a two-page printout of a table showing the titles of videos from a pornography website and the searches that had been done on that same website. The titles of videos and corresponding dates included the following: (1) “His stepsis squirts while being nailed in the ass real hard” on July 3, 2022 at 3:38 p.m.; (2) “Hypnotized Step Sis has Sex with Bro” on July 3, 2022 at 3:43 p.m. and 3:45 p.m.; and (3) “Young Tiny Blonde Teen Step Sister and Her Best Friends Family Orgy with Step Brother After Catching Them During s. Party” on July 9, 2022 at 4:13 a.m. (Ex. Vol. 2 at 73-74) (misspellings and abbreviations in original). The searches listed on the printout included the following: (1) “brother and sister fuck” on July 9, 2022 at 9:47 a.m.; (2) “sister fucks brother” on July 31, 2022 at 3:22 p.m.; and (3) “brother fuck his sister friends virgin” on August 16, 2022 at 12:04 a.m. (Ex. Vol. 2 at 73-74). When the trial court asked Hull if he had any objection to the admission of Exhibit 16, his counsel responded, “No sir.” (Tr. Vol. 4 at 153).

[26] Subsequently, Sergeant Snyder testified about the specific entries in Exhibit 16, including the names of the video titles and web searches along with the corresponding dates and times for those videos and searches. Hull did not object to Sergeant Snyder's testimony.

[27] During the State's closing arguments, the prosecutor argued, in part, as follows:

Life is a (inaudible) journey. The journey that you walk is individual, is alone, life is a lonely journey. Made more lonely when you are trapped on an island. When you are being judged, when you are under the lights, when you are ashamed, when you are embarrassed, when you are called a liar. There is no lonelier journey. But lonely as it may be, the journey brought us here. Where a little girl under the harshest possible conditions spent two and a half years of her life being attacked, having her motive called into question, being told she was wrong, having her nose rubbed in a sexual assault that was perpetrated upon her by [Hull], not once, not twice, but repeatedly over and over and over and over again. Between the dates of June 21, 2022, to September 21, 2022, Jeremy Hull repeatedly sexually assaulted a child in this community, in your community. And the only person that knows what happened, put herself on the line at fourteen years of age. She looked you in the eyes. She answered hard questions. She did it again and again and again and again, about the most intimate details, her period, her sexual history, photographs of her, her physical examinations, all to be called a liar. So there is no lonelier journey than the one that extended on this witness stand․ The amazing thing is to be called a liar to be questioned, to be stood up, to be ridiculed, when he never told․

(Tr. Vol. 4 at 204-05). Hull did not object to the State's closing argument.

[28] Thereafter, the State argued that the evidence showed that Hull had engaged in the charged child molesting acts involving sexual intercourse, oral sex, and digital penetration. The State reviewed J.A.’s testimony recounting the molestations and the DNA evidence showing that the DNA profile found on J.A.’s genital area was 5,659 times more likely to have originated from Hull. Additionally, the State reminded the jury of Hull's multiple text exchanges with J.A., his possession of nude and semi-nude photographs of J.A. on his phone, and his denial to police that he had any such photographs on his phone. The State also argued that Hull's “mindset” could be seen from his internet searches in Exhibit 16. (Tr. Vol. 4 at 213).

[29] During Hull's closing argument, Hull addressed Exhibit 16 and argued that, contrary to the State's argument, the jury did not need to “focus on [the] internet searches[.]” (Tr. Vol. 4 at 215). Hull acknowledged that the searches “sound[ed] sick” and “how significant that look[ed] with regards to his character.” (Tr. Vol. 4 at 216). Hull further argued that the jury was “not [t]here to judge his character” but that it was there “to judge whether or not he actually [had] committed a crime, the crime that he [had] used his fingers, his tongue, his penis in order to have sex with a thirteen year old.” (Tr. Vol. 4 at 216). Additionally, Hull argued that the State's introduction of the internet searches “was nothing more than to stir up your emotions and get you angry at [Hull] and say that you're a child molester when all he was ․ [was] a man on the internet typing things in.” (Tr. Vol. 4 at 216). Hull then argued about J.A.’s credibility and alleged deficiencies in the police investigation.

[30] Thereafter, the State made its rebuttal argument, and the prosecutor disagreed that the State had introduced the internet searches for the “nefarious ․ reason ․ to inflame [the jury's] passions[.]” (Tr. Vol. 4 at 228). The prosecutor argued that the searches had been relevant to “understand what [wa]s in the mind of the Defendant at the times these crimes [had been] committed.” (Tr. Vol. 4 at 229). The prosecutor finished his rebuttal argument by stating the following: “Honor that journey. And to be called a liar, to be taken to task, to be called a little harlet, worse, maybe a whore, what do we ask our little girls to do? Tell. Tell.” (Tr. Vol. 4 at 230). Hull did not object to the prosecutor's final statement.

[31] The trial court instructed the jury that statements made by the attorneys were not evidence. Additionally, the trial court instructed the jury that its “verdict should be based on the law and the facts as [the jury] f[ound] them” and “not ․ based on sympathy or bias.” (Tr. Vol. 4 at 234). The jury found Hull guilty of ten counts of Level 1 felony child molesting and not guilty of one count.

[32] During Hull's sentencing hearing, the trial court noted that, during Hull's trial, “there was not simply the reliance on the statement of the child [victim] in this case[,] [b]ut that there was strong DNA evidence” and “strong cell phone evidence presented in this case.” (Tr. Vol. 5 at 2). The trial court also stated that Hull's “guilt [wa]s not in doubt with this [trial] court.” (Tr. Vol. 5 at 2). For each of Hull's Level 1 felony child molesting convictions, the trial court sentenced Hull to a thirty (30) year sentence with twenty-five (25) years executed in the Indiana Department of Correction and five (5) years suspended to probation, and the trial court ordered those sentences to be served concurrently.

[33] Hull now appeals.

Decision

[34] Hull argues that: (1) the trial court committed fundamental error when it admitted evidence of Hull's internet search history; and (2) the prosecutor engaged in prosecutorial misconduct that constituted fundamental error. We will review each argument in turn.

1. Fundamental Error in Admission of Evidence

[35] Hull first challenges the trial court's admission of evidence regarding the titles of “internet searches and websites related to sisters and brothers having sex.” (Hull's Br. 15). Specifically, Hull contends that the trial court should have excluded this evidence under Evidence Rules 404(b) and 403, and he asserts that the evidence was “admitted solely to show Hull had the propensity to commit the crime[s.]” (Hull's Br. 13).

[36] Hull acknowledges that he did not object to the evidence of the titles of videos and search history from a pornography website. His failure to object to the challenged exhibit and testimony results in waiver of any argument regarding its admissibility. See Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012) (“Failure to object at trial waives the issue for review unless fundamental error occurred.”), reh'g denied. Hull recognizes this procedural default and argues that the admission of the evidence constituted fundamental error.

[37] “[F]undamental error in the evidentiary decisions of our trial courts is especially rare.” Merritt v. State, 99 N.E.3d 706, 709 (Ind. Ct. App. 2018), trans. denied. The fundamental error exception “is extremely narrow and encompasses only errors so blatant that the trial judge should have acted independently to correct the situation.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (internal quotation marks and citation omitted). “An error is fundamental, and thus reviewable on appeal, if it made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.” Id. (internal quotation marks and citation omitted). “Harm is not shown by the fact that the defendant was ultimately convicted; rather harm is found when error is so prejudicial as to make a fair trial impossible.” Hoglund, 962 N.E.2d at 1239. “Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh'g denied, abrogated on other grounds by Konkle v. State, 253 N.E.3d 1068 (Ind. 2025).

[38] Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Ind. Evid. Rule 404(b)(1). However, such evidence may be “admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Evid. R. 404(b)(2). Evidence “Rule 404(b) is designed to prevent the jury from making the forbidden inference that prior wrongful conduct suggests present guilt.” Halliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013) (citation and internal quotation marks omitted). Evidence Rule 403 provides that a “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.”

[39] We now turn to Hull's challenge to the admission of the titles of the internet search history found on his phone. Hull acknowledges that there was “no evidence of what the actual videos or websites showed[,]” but he contends that the trial court should have excluded this evidence under Evidence Rule 404(b). (Hull's Br. 18). Specifically, he asserts that the “only purpose” for the evidence “was to defame Hull's character and infer guilt from a sexual propensity.” (Hull's Br. 19).

[40] On the other hand, the State argues that Rule 404(b) was not applicable because the challenged evidence was “not evidence of another crime or bad act.” (State's Br. 17). Additionally, the State contends that, even if Rule 404(b) were applicable, the evidence was not offered to prove that Hull had acted in accordance with a character trait and that the evidence was relevant as evidence of motive or plan.

[41] We need not, however, review these arguments on the admissibility of the challenged evidence because even if we assumed error, it was harmless and not fundamental. Our Indiana Supreme Court has explained that when conducting a harmless error review under Appellate Rule 66(A), our Court is to “consider the likely impact of the improperly admitted or excluded evidence on a reasonable, average jury in light of all the evidence in the case.” Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023), reh'g denied, cert. denied. “Ultimately, the error's probable impact is sufficiently minor when—considering the entire record—our confidence in the outcome is not undermined.” Id. See also Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017) (explaining that “[t]he improper admission of evidence is harmless error when the erroneously admitted evidence is merely cumulative of other evidence before the trier of fact”), trans. denied.

[42] Here, the jury heard J.A.’s unequivocal testimony recounting the various acts of molestation that Hull had committed. J.A. specifically testified that Hull had engaged in numerous acts of sexual intercourse, had digitally penetrated her vagina on more than one occasion, and had forced her to perform oral sex on him. She also specified the specific locations in the apartment where Hull had sex with her. Additionally, the State presented DNA evidence showing that the DNA profile found on J.A.’s genital area was 5,659 times more likely to have originated from Hull. Furthermore, J.A. testified that, on the day that she learned that Hull could no longer stay with her family, she had sent him a Snapchat message stating that they would no longer be able to have sex, and the State presented cell phone evidence that corroborated her testimony. Specifically, the State presented J.A.’s message that stated, “Dude we won't be able to fuck anymore.” (Ex. Vol. 1 at 40). J.A. also testified about her relationship with Hull and their exchanged Snapchat messages, and she explained how Hull had taken nude photographs of J.A. from J.A.’s cellphone. Thereafter, the State presented cellphone analysis evidence that showed Hull's multiple text exchanges with J.A. and his possession of nude and semi-nude photographs of J.A. on his phone, which he had denied to police that he possessed. The probable impact of any possible error in admitting the challenged evidence, in light of all the evidence in this case, is sufficiently minor so as not to undermine our confidence in the outcome of this case. Accordingly, we conclude that the alleged improper admission of evidence constituted harmless error. See Hayko, 211 N.E.3d at 492 (explaining that a non-constitutional error in the admission of evidence is harmless when its probable impact in light of all the evidence is so sufficiently minor that it does not impact the substantial rights of the parties). See also Cook v. State, 734 N.E.2d 563, 569 (Ind. 2000) (holding that the erroneous admission of Rule 404(b) evidence was harmless error), reh'g denied; Laird v. State, 103 N.E.3d 1171, 1178 (Ind. Ct. App. 2018) (concluding that, even if the defendant's internet search history had been prohibited by Rule 404(b) and erroneously admitted in a child molesting case, the admission of such evidence was harmless), trans. denied; Stettler v. State, 70 N.E.3d 874, 881 (Ind. Ct. App. 2017) (holding that the trial court's erroneous admission of evidence concerning prior bad acts in a child molesting case was harmless error), trans. denied.

2. Prosecutorial Misconduct as Fundamental Error

[43] We next turn to Hull's argument that the prosecutor engaged in prosecutorial misconduct. Our Indiana Supreme Court has explained the relevant standard of review for a claim of prosecutorial misconduct as follows:

When reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred, and if so, (2) whether the misconduct, under all the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected otherwise. Whether a prosecutor's argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct. The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct. To preserve the misconduct claim for appeal, the defendant must object at the time the alleged misconduct occurs.

Konkle, 253 N.E.3d at 1077 (internal quotation marks, citations, and parentheticals omitted; emphasis in original).⁵

[44] On appeal, Hull asserts that the prosecutor engaged in misconduct during opening statements, closing arguments, and direct examination of Sergeant Snyder. Hull acknowledges that he did not object to the prosecutor's opening statement, closing argument, or witness questioning, and he further recognizes that, in order to avoid procedural default, he has the burden of proving fundamental error.

[45] Where a defendant has waived a claim of prosecutorial misconduct based on a failure to preserve the issue for appeal, such as in this case, our standard of review is “different” and requires a defendant to show “not only the grounds for prosecutorial misconduct but must also establish that the prosecutorial misconduct constituted fundamental error.” Ryan, 9 N.E.3d at 667-68. Accordingly, because Hull failed to object to the alleged misconduct at trial, he must establish: (1) prosecutorial misconduct by showing that misconduct occurred and that the misconduct placed the defendant in a position of grave peril; and (2) fundamental error. See id. at 668; Konkle, 253 N.E.3d at 1077.

Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to make a fair trial impossible. In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors (a) constitute clearly blatant violations of basic and elementary principles of due process and (b) present an undeniable and substantial potential for harm. The element of such harm is not established by the fact of ultimate conviction but rather depends upon whether [the defendant's] right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled. In evaluating the issue of fundamental error, our task in this case is to look at the alleged misconduct in the context of all that happened and all relevant information given to the jury—including evidence admitted at trial, closing argument, and jury instructions—to determine whether the misconduct had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible.

Ryan, 9 N.E.3d at 668 (emphasis in original; internal quotations and citations omitted).

[46] Hull first argues that specific statements in the prosecutor's opening statement and closing arguments as well as in the last statement of the prosecutor's rebuttal argument constituted prosecutorial misconduct. The statements that Hull contends constitute prosecutorial misconduct are contained in the facts above; therefore, we will not repeat them here.

[47] Hull contends that the State improperly “pursued a theme that J.A. was on a journey to tell her story again and again and again and that the trial was the conclusion of her journey.” (Hull's Br. 23) (internal quotation marks omitted). Hull asserts that “the prosecutor's theme of J.A.’s journey crossed the line of zealous advocacy to improper and unfair comments.” (Hull's Br. 29).

[48] Hull sets forth various arguments in his attempt to show that the prosecutor's statements during opening, closing, and rebuttal constituted prosecutorial misconduct and fundamental error. Specifically, Hull argues that “[t]he prosecutor's comments constituted misconduct for multiple reasons, the primary one being they were framed in a manner to invoke sympathy for J.A. and inflame the prejudices of the jury.” (Hull's Br. 24-25). Additionally, Hull asserts that the prosecutor, through his statements, had improperly asked the jury to convict for a reason other than guilty and had demeaned defense counsel. Lastly, Hull contends that the prosecutor's statements were improper comments on his rights to a jury trial and to present a defense. More specifically, Hull asserts that the prosecutor's opening statement comments about J.A. having to repeatedly tell her story and the prosecutor's closing argument characterization of defense counsel's cross-examination were improper comments on Hull's right to cross-examine and to proceed to trial.

[49] On the other hand, the State contends that neither prosecutorial misconduct nor fundamental error occurred. The State argues that the prosecutor's statements were used to show that J.A.’s testimony was credible and that the statements were supported by the evidence. Additionally, the State contends that the prosecutor's reference to J.A. repeatedly telling her story was based on the fact that J.A. had told her mother what had happened and had further recounted the details of the molestations during a sexual assault exam, two forensic exams, direct examination, and cross-examination. Moreover, the State disputes that the prosecutor's statements had demeaned defense counsel, improperly commented on Hull's rights, or had asked the jury to convict Hull for reasons other than guilt. The State points out that the prosecutor, in his opening and closing, told the jury to evaluate the evidence, including the physical and forensic evidence, and that the question for the jurors was whether the evidence convinced them that Hull was guilty.

[50] In reviewing Hull's argument that the prosecutor's comments constituted prosecutorial misconduct and fundamental error, we must review the “alleged misconduct in the context of all that happened and all relevant information given to the jury—including evidence admitted at trial, closing argument, and jury instructions—to determine whether the misconduct had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible. Ryan, 9 N.E.3d at 668 (emphasis in original; internal quotations and citations omitted). Our supreme court has explained that “our basic understanding is that [a] prosecutor has the duty to present a persuasive final argument and thus placing a defendant in grave peril, by itself, is not misconduct.” Konkle, 253 N.E.3d at 1082 (internal quotation marks and citation omitted). See also Ryan, 9 N.E.3d at 667. “Moreover, closing arguments are rightly received by the jury as partisan advocacy, not impartial statements of the law, and thus are likely to have little effect on the jury's understanding of the law.” Konkle, 253 N.E.3d at 1082-83 (internal quotation marks and citations omitted).

[51] After reviewing the prosecutor's challenged statements in the context of all that happened and all relevant information given to the jury, we disagree with Hull's argument that those statements were improper and unfair or that they constituted misconduct as alleged by Hull. Nor has Hull shown that the statements placed him in grave peril or that the statements had a probable persuasive effect on the jury's decision. The statements were merely a small part of the State's overall opening statement and closing argument, and the State did not ask the jury to convict Hull for reasons other than guilt. In the prosecutor's opening statement, he specifically told the jury to “evaluate the evidence” and J.A.’s testimony “in conjunction with the physical and forensic evidence in th[e] case.” (Tr. Vol. 2 at 197). Then, in the prosecutor's closing argument, he reviewed the evidence (including testimony, DNA evidence, and cellphone analysis evidence) that had been presented during the trial and told the jurors that their verdict should be based on that evidence and that the relevant question before them was “whether the facts and the evidence [had] firmly convince[d]” them that Hull had committed the offenses as charged. (Tr. Vol. 4 at 214). Moreover, the trial court specifically instructed the jury that counsels’ statements were not evidence and that the jury's “verdict should be based on the law and the facts as [the jury] f[ound] them” and “not ․ based on sympathy or bias.” (Tr. Vol. 4 at 234). In addition, the jury acquitted Hull of one of the eleven charged offenses. Thus, the jury relied upon the evidence and not any of the prosecutor's comments to reach its verdict. Accordingly, we conclude that Hull has established neither prosecutorial misconduct nor fundamental error in regard to the prosecutor's opening and closing statements. See Ryan, 9 N.E.3d at 667 (explaining that a claim of prosecutorial misconduct involves both a showing that the prosecutor engaged in misconduct and that the misconduct placed the defendant in a position of grave peril). See also Hollowell v. State, 707 N.E.2d 1014, 1024 (Ind. Ct. App. 1999) (explaining that in judging the propriety of the prosecutor's remarks, we consider the statement in the context of the argument as a whole).

[52] Hull's remaining prosecutorial misconduct argument relates to a question posed by the prosecutor during the direct examination of Sergeant Snyder, who had completed a forensic analysis of Hull's cellphone. After Sergeant Snyder had testified that Hull's cellphone had contained nude photographs of J.A. that had at some point been deleted, the prosecutor asked the sergeant how law enforcement “referred” to such “cases in which․ a naked photo of a child that appears on the phone and ultimately [is] marked for deletion[.]” (Tr. Vol. 4 at 150). Sergeant Snyder responded that law enforcement “typically use[d] the term beat and delete[,]” which meant that a person views a photograph, masturbates to it, and then deletes it. (Tr. Vol. 4 at 150).

[53] Hull argues that the prosecutor's question was “inflammatory” and constituted misconduct because it suggested that Hull had masturbated to J.A.’s nude photographs before deleting them. (Hull's Br. 31). To support his argument that a prosecutor should not ask inflammatory questions, Hull cites to Brummett v. State, 10 N.E.3d 78 (Ind. Ct. App. 2014), aff'd on reh'g, summarily aff'd on trans. In Brummett, our Court determined that a prosecutor had engaged in multiple acts of misconduct, including improperly distinguishing the roles of the prosecution and defense, vouching for the credibility of witnesses, and showing a belligerent attitude toward and posing argumentative and inflammatory questions to the defendant during the defendant's cross-examination. Brummett, 10 N.E.3d at 84-88. Here, however, Hull has not shown that the prosecutor's single question about law enforcement slang equated to misconduct. Moreover, Hull has not shown how a suggestion of masturbation placed him in grave peril or had a probable persuasive effect on the jury's decision to find him guilty of the ten counts of Level 1 felony child molesting that were based on acts of sexual intercourse, oral sex, and digital penetration. Nor has Hull shown how the prosecutor's question rose to the level of fundamental error. Because Hull has not established prosecutorial misconduct or fundamental error, we affirm his convictions. See Ryan, 9 N.E.3d at 668 (explaining that a defendant who fails to object to alleged misconduct at trial, must establish prosecutorial misconduct and fundamental error).

[54] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3.

2.   Hull also argues that the cumulative effect of the alleged erroneously admitted evidence and prosecutorial misconduct made a fair trial impossible. However, because we conclude that Hull has failed to show error as alleged in those two arguments, we also conclude that there was no cumulative effect that would have resulted in the denial of a fair trial.

4.   The court reporter labeled the two exhibit volumes as Exhibit Volumes 6 and 7, apparently continuing the numbering after the five volumes of the transcript. Because there are two exhibit volumes, we will refer to Exhibit Volume 6 as “Ex. Vol. 1” and Exhibit Volume 7 as “Ex. Vol. 2.”

5.   In Konkle, our supreme court also clarified the requirements to preserve a prosecutorial misconduct issue for appellate review. Specifically, the Konkle Court explained that “where a defendant timely objects to alleged misconduct by the prosecutor and the trial court overrules the objection, nothing further is required to preserve the issue for appeal.” Konkle, 253 N.E.3d at 1082 (emphasis in original; footnote omitted). “However, ․ to preserve the issue for appeal following a sustained objection, the defendant must request an admonishment of the jury, and if further relief is required, move for a mistrial.” Id. (emphasis in original).

Pyle, Judge.

Judges Weissmann and Felix concur. Weissmann, J., and Felix, J., concur.