Justin A. Gordon, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Justin Gordon was charged with and convicted of child molesting for acts involving his daughter B.G. Gordon now appeals his conviction, raising five issues for our review that we restate and reorder as the following three issues:

1. Whether the trial court erred by admitting certain evidence at trial;

2. Whether the State presented sufficient evidence to support Gordon's child molesting conviction; and

3. Whether the State committed acts of prosecutorial misconduct that cumulatively constitute fundamental error.

[2] We affirm.

Facts and Procedural History

[3] B.G. was born in January 2012 to Gordon and Brandy Cox (“Mother”). In 2019 or 2020, B.G. began staying overnight with Gordon on weekends in his Pike County, Indiana home; Gordon's fiancée Kierston Cates and her three children also lived in the home. In the summer of 2021, B.G. alleged that Gordon had touched her chest under her bra while they were lying on a couch together. According to B.G., Mother did not believe her, and when questioned by a representative of the Indiana Department of Child Services (“DCS”), B.G. recanted “because [she] didn't want to get taken from [her] mom,” Tr. Vol. I at 144.

[4] On the evening of November 18, 2022, B.G. was staying at Gordon's home and watching a movie in the living room with Gordon, Cates, and the other children when she fell asleep on the couch. When B.G. woke up on the morning of November 19, Cates and her children were in the kitchen while Gordon, B.G., and her sister were still lying on the couch. B.G. told Gordon that she was “cold and he said you can just come here with me,” Tr. Vol. I at 120, so B.G. “went and laid down next to him,” id. at 122. Once B.G. laid down, Gordon “just started touching [her] and rolling on top of [her] and stuff.” Id. at 123. Gordon “put his hand down [B.G.’s] pants” and rubbed her vagina then “rolled [her] over and laid on top of” her. Id. at 124. Gordon also “pulled [B.G.] over the top of him,” put his hand “down under [her] shorts,” and touched her buttocks. Id. at 125. At one point, Gordon “was like pushing up on” B.G., and she could feel his “dingdong.” Id. at 128. When B.G. tried to get up while Gordon was molesting her, Gordon “pulled [her] back down.” Id. at 126. Gordon did not stop until a friend of his knocked on the front door. B.G.’s sister was on the couch asleep throughout the entire incident.

[5] Thereafter, Gordon went to work and B.G. went about her day. B.G. decided she was going to tell her sister, her cousin, and her mother about Gordon molesting her once she got out of his house that evening, but she did not tell Cates because B.G. thought Cates would call her “a liar.” Tr. Vol. I at 130. When Gordon returned from work later that day, he took B.G. and her sister to their maternal aunt's family's Thanksgiving dinner. Before leaving, someone took a photo of B.G. with her sister and Gordon; B.G. smiled in the picture because she “was just thinking that [she] just need[ed] to look happy so [Gordon] wouldn't think that [she] was going to” tell her aunts about what he did. Id. at 134.

[6] After arriving at the Thanksgiving dinner, B.G. told her cousin about Gordon molesting her; that cousin then told B.G.’s aunts Marinda and Kristina McLellan. Marinda and Kristina questioned B.G. about what happened. Kristina videoed her and Marinda's conversation with B.G. (the “Thanksgiving Video”) so Mother could “know what her daughter had to say.” Tr. Vol. I at 189. About 30 to 40 seconds after Kristina started to record, B.G. “started to get really upset and start to really tell what happened that night,” so Kristina “stopped the video and went straight to [Mother]’s house.” Id. The next day—November 20—B.G. spoke with law enforcement about Gordon molesting her. On November 21, B.G. participated in a forensic interview at Holly's House.

[7] The State charged Gordon with two counts of child molesting as Level 4 felonies—one count for the summer 2021 incident (the “First Incident”) and one count for the November 2022 incident ¹ (the “Second Incident”). The State also alleged that Gordon was a habitual offender.²

[8] At trial, B.G. testified about the incidents as described above. On cross-examination, Gordon confirmed that even though B.G. knew how to speak and call for help, she chose not to call out to Cates or anyone else in Gordon's house during or after the Second Incident. In response to Gordon “rigorously cross-examin[ing] B[.G.] and suggest[ing] that she was fabricating her testimony,” the State offered into evidence a portion of the video of B.G.’s forensic interview at Holly's House (the “Holly's House Video”). Tr. Vol. I at 170. Over Gordon's objection, the trial court admitted the Holly's House Video for the limited purpose of considering the credibility of B.G.’s trial testimony and not as substantive evidence. After the jury watched the Holly's House Video, Gordon recross-examined B.G. Gordon's questions focused on who B.G. had spoken with before the forensic interview, suggesting through the questioning that family members had improperly influenced her beforehand. In response to that line of questioning, the State offered into evidence the Thanksgiving Video, which the trial court admitted over Gordon's objection.

[9] In addition to B.G.’s testimony, the State called additional witnesses to testify. Kristina testified in relevant part that she has known B.G. since B.G. was born; B.G. had been living with her, Marinda, and their family for approximately two years before trial; and based on her observations of B.G., Kristina stated B.G. is “very truthful.” Tr. Vol. I at 196. Kristina further testified that she relies on B.G. as someone who will tell her the truth when “something ․ happens at the house.” Id. Marinda also testified that B.G. spent a lot of time at her and Kristina's house over the years, and she believes B.G. is “very truthful,” id. at 206.

[10] During Gordon's case-in-chief, he called several family members who testified to their belief that B.G. is a dishonest person. Gordon‘s adoptive mother Kelli Gordon (“Adoptive Grandmother”) testified that B.G. lived with her, her husband Troy (“Adoptive Grandfather”), and their family until B.G. was eight years old. Adoptive Grandfather testified that B.G. was at Kristina's house “most of the time.” Tr. Vol. I at 239. According to Adoptive Grandmother, B.G. “is a very dishonest child,” id. at 227, so much so that she and her household were “never ․ alone with B.[G.],” id., when B.G. lived with Adoptive Grandmother because B.G. “didn't tell the truth,” id. at 228. Adoptive Grandfather also testified that he and Adoptive Grandmother had a policy in their home after May 2021 that “[n]o one should be in a room with [B.G.] by themselves. There should be a witness at all times.” Id. at 238. Later, Adoptive Grandmother conceded that she had previously testified in a deposition that B.G.’s lies were just “kid's stuff,” id. at 228–29, 230; and that she did not know B.G. to carry a grudge. Similarly, Adoptive Grandfather explained that he “was gone a lot” when B.G. lived with him and Adoptive Grandmother. Id. at 241

[11] Gordon's biological father Jeffrey Jones (“Biological Grandfather”) testified B.G. “is very dishonest” and that he felt that way since 2018. Tr. Vol. II at 14. Biological Grandfather also testified that he had not seen B.G. since 2020. Gordon's stepmother Lisa Jones (“Step Grandmother”) testified that she believed B.G. is “a very dishonest child.” Tr. Vol. I at 248. Like Biological Grandfather, Step Grandmother had not seen B.G. since B.G. was eight years old. On cross-examination, Step Grandmother testified that Mother attempted to get a protective order against her in summer 2021 and that Step Grandmother had distanced herself from the family since then. Step Grandmother further testified that B.G.’s dishonesty caused drama among the family “[a]ll the time.” Tr. Vol. II at 8.

[12] Gordon also had his friend and coworker Jason Wildt testify. According to Wildt, when he arrived at Gordon's house on the morning of November 19, 2022, Gordon and the children were in the living room; B.G. “looked like she had just kinda woke up,” id. at 21; B.G. was “her normal, normal typical kid,” id.; and B.G. was “persistent on telling [Wildt] that she was going to work with” him and Gordon, id. at 20. Wildt testified that when he and Gordon returned to Gordon's house after work, B.G. was “[h]appy” and “clinging to [Gordon's] hip.” Id. at 26. The import of Wildt's testimony was that nothing unusual could have happened just prior to his arrival since he did not notice B.G. acting afraid or scared.

[13] The jury found Gordon guilty of child molesting as a Level 4 felony for the Second Incident, but it found him not guilty of child molesting as a Level 4 felony for the First Incident. Gordon admitted to the habitual offender enhancement in exchange for a sentence of no more than 13 years for that enhancement. After a hearing, the trial court sentenced Gordon to a total of 22 years of incarceration. This appeal ensued.³ ,  ⁴

Discussion and Decision

1. The Trial Court Did Not Abuse Its Discretion by Admitting the Thanksgiving Video

[14] Gordon claims that the trial court abused its discretion by admitting certain evidence at trial. We review rulings on admissibility of evidence for an abuse of discretion. Russell v. State, 234 N.E.3d 829, 858 (Ind. 2024) (quoting Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012)), cert. denied, 145 S.Ct. 424 (2024). “[W]e may affirm the trial court's decision on any basis supported by the record,” Means v. State, 201 N.E.3d 1158, 1163 (Ind. 2023) (citing Ramirez v. State, 174 N.E.3d 181, 190 n.2 (Ind. 2021)), and we will reverse “only where the decision is clearly against the logic and effect of the facts and circumstances,” Russell, 234 N.E.3d at 858 (quoting Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001)).

[15] Gordon specifically challenges the admission of the Thanksgiving Video under Indiana Evidence Rules 801(d)(1)(B) and 403. We address each argument in turn.

a. Evidence Rule 801(d)(1)(B)

[16] First, Gordon contends the Thanksgiving Video was inadmissible hearsay because it did not meet the requirements of Evidence Rule 801(d)(1)(B). Hearsay is an out-of-court statement offered for “the truth of the matter asserted.” Ind. Evidence Rule 801(c). Hearsay is generally not admissible as evidence. Id. 802. Whether a statement is hearsay often hinges on the purpose for which it is offered. Blount v. State, 22 N.E.3d 559 (Ind. 2014) (United States v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998)). Pursuant to Evidence Rule 801(d)(1)(B), a statement is not hearsay if (1) the declarant “testifies and is subject to cross-examination about a prior statement,” (2) the statement “is consistent with the declarant's testimony,” and (3) the statement “is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.”

[17] Gordon concedes on appeal that during cross-examination of B.G., he expressly or impliedly charged B.G. with having an improper motive for making statements implicating Gordon during a forensic interview. Appellant's Br. at 29. Gordon's challenge instead focuses on when B.G.’s alleged improper motive arose.

If an adversary has made an express or implied charge against the witness of recent fabrication or improper influence or motive, and the prior consistent statement was made before the motive to fabricate arose, the prior consistent statement is admissible as substantive evidence; if the prior consistent statement was made after the motive to fabricate arose, however, it is admissible to rehabilitate a witness.

Townsend v. State, 33 N.E.3d 367, 371 (Ind. Ct. App. 2015) (quoting Bassett v. State, 895 N.E.2d 1201, 1214 (Ind. 2008)).

[18] On appeal, Gordon argues the Thanksgiving Video was inadmissible under Evidence Rule 801(d)(1)(B) because B.G.’s improper motive arose before the Thanksgiving Video was recorded, namely, when she learned that “Cates's children were getting i[P]hones for Christmas and she was not,” Appellant's Br. at 30. In making this argument, Gordon assumes the trial court's decision to admit the Holly's House Video for the limited purpose of rehabilitation necessarily means the trial court found that B.G. had a bias or improper motive related to the Christmas gifts. The trial court made no such finding in ruling on the admissibility of the Holly's House Video. Gordon's argument about the trial court's alleged finding of bias is therefore unpersuasive.

[19] Instead, Gordon's own cross-examination of B.G. after the Holly's House Video was shown to the jury created the foundation for the Thanksgiving Video to be admitted as substantive evidence. Immediately after the Holly House's Video was played, Gordon questioned B.G. regarding the forensic interview and focused on the potential of her family members improperly influencing her before the interview:

Q. B did you talk to your mother and aunt prior to going into the interview at Holly's House?

A. Yes.

* * *

Q. Did you talk to your mother or aunts, and they told you that makes no sense?

A. No.

Tr. Vol. I at 177–78.

Q. Now in your conversation with the lady for the Holly's House interview November 21, 2022, how many people did you talk to prior to going into that room?

* * *

Q. B did you talk to your mother prior to going into the Holly's House video about the second incident?

A. Yes.

Q. Did you talk to your aunt prior to going into the Holly's House video on the second and first allegations?

A. Yes.

Q. Did you talk to Kris[tina], did you talk to your friends prior to going into the Holly's House video?

A. No.

Q. Did you talk to your uncles prior to going into the Holly's House video?

A. No.

Q. How many people did you talk to prior to going into the Holly's House video?

* * *

A. About the first and second allegations?

A. Like 4 or 5.

Q. And they were all trying to, they were all talking to you, correct?

A. Yes.

* * *

Q. Did they make suggestions to you about what could have happened?

A. What do you mean?

Q. Were they telling you what they think happened?

A. No.

Q. But they were talking to you, correct?

A. Yes.

Q. And they were asking you questions?

A. Yes.

Q. Did they ask you, did this happen?

A. Yes.

Q. Did that happen?

A. Yes.

Q. Did he do it this way?

A. Yes.

Q. Did he do it that way?

A. Yes.

Q. How many, how long did these conversations last?

A. I don't really remember.

Q. Over an hour?

A. Probably.

Q. Many times?

* * *

A. Like twice.

Tr. Vol. I at 180–82. Gordon continued this line of questioning and later concluded it by confirming that B.G. had these conversations with family members before the forensic interview and after learning of the Christmas gifts.

[20] It is clear from the record that Gordon was, at the very least impliedly, suggesting that B.G. was improperly influenced by her family members prior to the Holly House interview. And it is also clear from the record that the alleged improper influence occurred after the Thanksgiving Video was recorded. The Thanksgiving Video was thus admissible to rebut Gordon's suggestion that B.G.’s statements during the forensic interview were made because she had been coached, that is, she had been improperly influenced to make those statements. Therefore, the trial court did not abuse its discretion by admitting the Thanksgiving Video pursuant to Evidence Rule 801(d)(1)(B).

b. Evidence Rule 403

[21] Gordon also contends the Thanksgiving Video was inadmissible because it was irrelevant and more prejudicial than probative. Evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Evid. R. 401. A trial court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice.” Id. 403. “Unfair prejudice ․ looks to the capacity of the evidence to persuade by illegitimate means, or the tendency of the evidence to suggest decision on an improper basis.” Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021) (quoting Camm v. State, 908 N.E.2d 215, 224 (Ind. 2009)). Importantly, “all relevant evidence is ‘inherently prejudicial’ in a criminal prosecution, so the inquiry boils down to a balance of probative value against the likely unfair prejudicial impact that the evidence may have on the jury.” Id. (quoting Richmond v. State, 685 N.E.2d 54, 54–55 (Ind. 1997)).

[22] Gordon specifically argues that the Thanksgiving Video is unfairly prejudicial because it should not have been admitted as substantive evidence as he argued above. His argument proceeds from the position that if the Thanksgiving Video should not have been admitted substantively, then showing B.G. crying and emotional was also highly prejudicial. However, we disagreed with the argument that the Thanksgiving Video should not have been admitted substantively. It is true that B.G. can be heard and seen crying in the Thanksgiving Video. B.G. also describes how Gordon molested her earlier that day. B.G.’s statements are undoubtedly relevant to the child molesting charge for which Gordon was convicted. B.G.’s demeanor—including her crying—was also relevant evidence of her veracity when she disclosed Gordon's abuse, especially in light of Gordon's attempt to impeach B.G.’s credibility by questioning her about her seemingly normal interactions with Gordon shortly after the incident. See Morris v. State, 114 N.E.3d 531, 536 (Ind. Ct. App. 2018) (concluding testimony that victim was “ ‘distraught,’ shaking, and crying” after incident was relevant corroborating evidence); Hennings v. State, 532 N.E.2d 614, 615 (Ind. 1989) (determining “high state of the victim's emotion ․ immediately following the attack” was relevant in evaluating evidence of rape). We cannot say that the Thanksgiving Video was unfairly prejudicial on account of it depicting B.G. crying while disclosing how Gordon molested her. Therefore, the trial court did not abuse its discretion by admitting the Thanksgiving Video pursuant to Evidence Rule 403.

2. The State Presented Sufficient Evidence to Support Gordon's Child Molesting Conviction

[23] Gordon argues that the State presented insufficient evidence at trial to support his conviction for child molesting as a Level 4 felony. Our standard of review for such a claim is as follows:

Our standard for reviewing evidentiary sufficiency challenges is well established, as we have made clear that “[i]t is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction.” Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024) (quoting Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)). “A conviction is supported by sufficient evidence if ‘there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015)). This Court reviews only the evidence most favorable to the verdict and the reasonable inferences therefrom, and will reverse only where it is shown that “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Teising, 226 N.E.3d at 783.

Konkle v. State, 253 N.E.3d 1068, 1090–91 (Ind. 2025).

[24] A person commits Level 4 felony child molesting when that person, with a child under 14 years old, “performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person.” I.C. § 35-42-4-3(b). Gordon does not challenge any specific element of his conviction but instead focuses his argument on the claim that B.G.’s testimony was incredibly dubious.

[25] Generally, a “conviction can be sustained on only the uncorroborated testimony of a single witness, even when that witness is the victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012)) (citing Ferrell v. State, 565 N.E.2d 1070, 1072–73 (Ind. 1991)). However, under the incredible dubiosity rule, a court will impinge upon the jury's duty to judge witness credibility if there is (1) a sole testifying witness; (2) testimony that is inherently contradictory, equivocal, or the result of coercion; and (3) a complete absence of circumstantial evidence. Moore v. State, 27 N.E.3d 749, 755–56 (Ind. 2015) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)). Our Supreme Court has explained that “while incredible dubiosity provides a standard that is not impossible to meet, it is a difficult standard to meet, and one that requires great ambiguity and inconsistency in the evidence. The testimony must be so convoluted and/or contrary to human experience that no reasonable person could believe it.” Id. (internal quotation marks, alteration, and citation omitted) (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)).

[26] Gordon argues B.G.’s testimony was incredibly dubious because although she testified that Gordon molested her, “her actions indicated nothing was happening” during the incident. Appellant's Br. at 62. For instance, Gordon asserts that “B said she did not reach out to get the attentions of others” during the incident, which meant she was not in “danger” because “[s]he avoided taking steps to end or avoid the harm by altering others.” Id. at 63.⁵ In other words, Gordon does not claim that B.G.’s testimony was inherently contradictory, equivocal, or coerced; nor does he claim that there was a complete lack of circumstantial evidence. In fact, B.G. consistently testified that he put his hands in her shorts and directly touched her vagina and buttocks. Cates testified that she observed B.G. and Gordon lying next to one another around the time of the incident. We thus cannot say that B.G.’s testimony was incredibly dubious.

[27] Furthermore, to the extent Gordon challenges the sufficiency of the evidence supporting his conviction on the basis that B.G.’s testimony was contrary to human experience, this argument also fails. In support, Gordon points to scientific articles ⁶ discussing “[r]eflexive self-protection,” which he claims is “involuntary.” Appellant's Br. at 61. Gordon asserts that once “instinct involuntarily kicks in to avoid danger, doing nothing means there is no danger or else one would act.” Id. at 62. Gordon made a similar argument to the jury during closing argument:

Kids have a reflex when they're scared they yell for mom. People when they're scared have a reflex, it's called yelling for help․ Now, if a person is in danger and there's several people nearby, what do you do? You yell for help․ You know how you wake people when something like this is happening? You say Hey! Get off of me! Hey! Help! Hey! Stop! Because people act like people․ Well think about that, if all you got to do is something so simple and you don't do it, the question becomes if people act like people then the solution is because they didn't need to. Because it didn't happen․ That kid knew [Cates] was up. Knew [Cates] had ears, knew she was conscious and yet [B.G.] expects you to believe she was molested when there's an adult in the house awake and 2 other kids, 5 dogs or does she expect you feel sorry for her so you'll believe it and that's why you can't be sympathetic in these cases.

Tr. Vol. II at 44–46 (errors in original). The jury did not discredit B.G. because of how she reacted to Gordon molesting her. See Konkle, 253 N.E.3d at 1090–91 (citing Teising, 226 N.E.3d at 783). B.G.’s reaction to her own father molesting her is not necessarily contrary to human experience. Based on the foregoing, we cannot say the State failed to present sufficient evidence to support Gordon's conviction for child molesting.

3. The Prosecutor's Allegedly Improper Statements during Closing Argument and Rebuttal Closing Argument Do Not Cumulatively Constitute Fundamental Error

[28] Gordon alleges that the State made numerous statements throughout the trial that amount to prosecutorial misconduct and cumulatively constitute fundamental error. “Fundamental error is an exception to the general rule that a party's failure to object at trial results in a waiver of the issue on appeal.” Strack v. State, 186 N.E.3d 99, 103 (Ind. 2022) (citing Kelly v. State, 122 N.E.3d 803, 805 (Ind. 2019)). The fundamental error doctrine is “very narrow and includes only errors so blatant that the trial judge should have acted independently to correct the situation.” Kelly, 122 N.E.3d at 805 (citing Durden v. State, 99 N.E.3d 645 (Ind. 2018)). “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, 667–68 (Ind. 2014) (citing Baer v. State, 942 N.E.2d 80, 99 (Ind. 2011); Stevens v. State, 691 N.E.2d 412, 420 n.2 (Ind. 1997); Wilson v. State, 222 Ind. 63, 83, 51 N.E.2d 848, 856 (1943)), abrogated in part on other grounds by Konkle, 253 N.E.3d 1068.

[29] On appeal, the defendant bears the “heavy burden” of demonstrating fundamental error. Strack, 186 N.E.3d at 103 (citing Isom v. State, 170 N.E.3d 623, 651 (Ind. 2021)). When reviewing a claim of fundamental error premised on prosecutorial misconduct, we

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) (citing Boesch v. State, 778 N.E.2d 1276 (Ind. 2002); Townsend v. State, 632 N.E.2d 727 (Ind. 1994)).

[30] Gordon's challenges fall into two categories: (a) vouching and (b) misstatements of law. We address each category of arguments in turn.

a. Vouching

[31] Gordon also alleges the State improperly vouched for B.G.’s credibility. A prosecutor may not personally vouch for a witness. Schlomer v. State, 580 N.E.2d 950, 957 (Ind. 1991). However, a prosecutor may “comment on the credibility of the witnesses as long as the assertions are based on reasons which arise from the evidence.” Cooper, 854 N.E.2d at 836 (quoting Lopez v. State, 527 N.E.2d 1119, 1127 (Ind. 1988)). That evidence includes witnesses’ demeanor while testifying. C.B. v. B.W., 985 N.E.2d 340, 348 (Ind. Ct. App. 2013); Simpson v. State, 165 Ind. App. 619, 622, 333 N.E.2d 303, 304 (1975). Additionally, “[p]rosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable.” Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004) (citing Brown v. State, 746 N.E.2d 63, 68 (Ind. 2001)), abrogated in part on other grounds by Konkle, 253 N.E.3d 1068.

[32] Gordon specifically challenges the following four statements the prosecutor made during closing argument:

1. “Ladies and Gentlemen all submit to you we started the firs, you're objective evidence there's a liar in the case but it's not B, and the facts prove it.” Tr. Vol. II at 38 (errors in original).

2. “Reason and common sense, may be a witnesses on one side, there's 1 witness who's screaming to you that this is absolutely true. It's not possible that this could be manufactured.” Id. at 39 (errors in original).

3. “I'll submit to you when you look at it, B's credibility is the entire case and her credibility is stone cold trustworthy because of the consistency, because of the demeanor, because it all makes sense.” Id. at 40.

4. “B as believable. What she says makes sense, the only reason she's gonna be here under this type of scrutiny and stress is because it actually happened.” Id. at 43 (errors in original).

Gordon also challenges the following statement the prosecutor made during rebuttal closing argument: “[S]he's shown you she's the one who's telling the truth.” Id. at 62.

[33] The prosecutor's closing argument focused on the credibility of the main witnesses in this case. For example, the prosecutor compared B.G.’s consistency—she did not change her story about the Second Incident in the two years between disclosure and trial—with Cates's inconsistency—she changed her story about what she saw at least three times in the same time span. The prosecutor's challenged statements were also in response to Gordon's defense that B.G. was untruthful. The prosecutor compared the credibility of B.G.’s testimony with the credibility of Gordon's witnesses who testified that they believed B.G. was a liar. None of the prosecutor's comments asserted independent knowledge of B.G.’s truthfulness; instead, the prosecutor's comments were logical conclusions drawn from the evidence, namely B.G.’s consistency and demeanor. The prosecutor also reminded the jury throughout closing argument that the jury was responsible for determining witness credibility, and the trial court instructed the jury to that effect. See Craig v. State, 267 Ind. 359, 367, 370 N.E.2d 880, 884 (1977) (holding the defendant was not subjected to grave peril by the prosecutor's remarks about witness credibility where the jury was “given several instructions to the effect that they were the judges of credibility of witnesses”).

b. Burden of Proof

[34] Gordon next contends that during closing argument, the State misstated the law regarding its burden of proof. A prosecutor “has the duty to present a persuasive final argument,” so “placing a defendant in grave peril, by itself, is not misconduct.” Konkle, 253 N.E.3d at 1082 (quoting Ryan, 9 N.E.3d at 667). Although a misstatement of the law may constitute misconduct, we presume a prosecutor's misstatement of law during closing argument is cured by the trial court's final jury instructions. Id. (quoting Pritcher v. State, 208 N.E.3d 656, 664–65 (Ind. Ct. App. 2023)). “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.’ ” Id. at 1082–83 (quoting Castillo v. State, 974 N.E.2d 458, 469 n.11 (Ind. 2012)).

[35] Gordon challenges the following statement made during the State's closing argument:

One last thing, the jury instruction said beyond reasonable doubt means that you're firmly convinced. Firmly convinced practical way I've heard some good lawyers describe it is if you would find guilty you need to be able to put your head on your pillow and sleep soundly tonight knowing you did the right thing and I'll suggest to you if you are that firmly convinced that Mr. Gordon was guilty then that's exactly what you should do and I'm gonna ask you to find him guilty on both counts because now you put this case to the test.

Tr. Vol. II at 62 (errors in original).

[36] Gordon claims this statement by the prosecutor “lowered the threshold for beyond a reasonable doubt by equating being firmly convinced with a good night's sleep.” Appellant's Br. at 51. But Gordon's argument ignores the trial court's instructions about the applicable burden of proof. In both its preliminary and final jury instructions—the correctness of which Gordon does not dispute—the trial court instructed the jury that it has “the right to determine both the law and the facts” and that the trial court's “instructions are [the] best source in determining the law.” Tr. Vol. I at 5; Tr. Vol. II at 62. The trial court also gave the following relevant preliminary and final jury instructions about the State's burden of proof:

The burden is upon the State to prove beyond a reasonable doubt that the Defendant is guilty of the crime(s) charged. It is a strict and heavy burden. The evidence must overcome any reasonable doubt concerning the Defendant's guilt. But it does not mean that a Defendant's guilt must be proved beyond all possible doubt. A reasonable doubt is a fair, actual and logical doubt based upon reason and common sense. A reasonable doubt may arise either from the evidence or from a lack of evidence. Reasonable doubt exists when you are not firmly convinced of the Defendant's guilt, after you have weighed and considered all the evidence. A Defendant must not be convicted on suspicion or speculation. It is not enough for the State to show that the Defendant is probably guilty. On the other hand, there are very few things in this world that we know with absolute certainty. The State does not have to overcome every possible doubt. The State must prove each element of the crime(s) by evidence that firmly convinces each of you and leaves no reasonable doubt. The proof must be so convincing that you can rely and act upon it in this matter of the highest importance. If you find that there is a reasonable doubt that the Defendant is guilty of the crime(s), you must give the Defendant the benefit of that doubt and find the Defendant not guilty of the crime under consideration.

Tr. Vol. I at 7; Tr. Vol. II at 64.

[37] Assuming arguendo that the prosecutor misstated the law in explaining the State's burden of proof, the trial court's preliminary and final jury instructions cured any such misstatement. Steinberg v. State, 941 N.E.2d 515, 531 (Ind. Ct. App. 2011) (concluding no error where “[a]t worst, the prosecutor gave the jury an incomplete picture of the law” and the trial court correctly instructed the jury on the law).

c. Cumulative Error Analysis

[38] Even assuming prosecutorial misconduct in this case, Gordon has not demonstrated that the harm or potential harm done by the State's comments was substantial. Any harm done by the prosecutor's comments was de minimis, not substantial, and did not result in denying Gordon fundamental due process.

Conclusion

[39] In sum, the trial court did not abuse its discretion by admitting into evidence the Thanksgiving Video, the State presented sufficient evidence to support Gordon's conviction for child molesting, and the prosecutor's statements that Gordon challenges on appeal do not cumulatively constitute fundamental error. We therefore affirm Gordon's conviction.

[40] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(b) (effective July 1, 2022, to June 30, 2025).

2.   I.C. § 35-50-2-8.

3.   We remind Gordon's counsel that the Indiana Appellate Rules expressly provide that the Statement of Facts “shall not be a witness by witness summary of the testimony.” Ind. Appellate Rule 46(A)(6)(c) (emphasis added). We further remind Gordon's counsel that pursuant to Appellate Rule 50(B)(1)(a), the appellant's Appendix in a criminal case such as this must include the entire Clerk's Record, not just a selection of materials therefrom. See App. R. 2(E) (“The Clerk's Record is the Record maintained by the clerk of the trial court ․ and shall consist of the Chronological Case Summary (CCS) and all papers, pleadings, documents, orders, judgments, and other materials filed in the trial court ․ or listed in the CCS.” (emphases added)). To the extent necessary and pursuant to Appellate Rule 27, we have taken judicial notice of the Clerk's Record in this case. See also id. 49(B) (“Any party's failure to include any item in an Appendix shall not waive any issue or argument.”)

4.   Although Gordon requested a transcript of, among other things, the first day of trial—occurring November 12, 2024—the transcript filed with this court does not include that part of the proceedings. We also observe that a confidential version of the transcript was not filed with this court despite portions thereof being deemed not for public access pursuant to Indiana Access to Court Records Rule 5(C). See App. R. 23(F)(3)(b), 28(F)(2). These errors and omissions complicated but did not substantially impede our review of this appeal.

5.   This section of Gordon's Argument is completely devoid of citations to the record, as required by Appellate Rule 46(A)(8)(a). We remind counsel that the purpose of our appellate rules—especially Appellate Rule 46 governing the content of briefs—“is to aid and expedite review and to relieve the appellate court of the burden of searching the record and briefing the case.” Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023) (emphasis added) (quoting Dridi v. Cole Kline LLC, 172 N.E.3d 361, 364 (Ind. Ct. App. 2021)). Nonetheless, because Gordon's noncompliance with Appellate Rule 46(A)(8)(a) does not substantially impede our review of his incredible dubiosity claim, we choose to address the merits thereof. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015).

6.   Gordon asks us to “take judicial notice of science” pursuant to Indiana Evidence Rule 201(c) and (d). Appellant's Br at 60. Evidence Rule 201 allows a trial court to take judicial notice of certain documents. Horton v. State, 51 N.E.3d 1154, 1161–62 (Ind. 2016). As an appellate court, we cannot open the record to receive additional evidence. See Haggarty v. Haggarty, 176 N.E.3d 234, 239 n.1 (Ind. Ct. App. 2021) (citing Morey v. Morey, 49 N.E.3d 1065, 1073 n.3 (Ind. Ct. App. 2016); Ind. Appellate Rule 27).

Felix, Judge.

Judges Vaidik and Tavitas concur. Vaidik, J., and Tavitas, J., concur.