Darrak Orr, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Statement of the Case

[1] A jury convicted Darrak Orr of child molesting and other related charges for sexually abusing his stepdaughter L.B. The trial court sentenced Orr to 68 years of imprisonment with 8 of those years suspended to probation. Orr now appeals and raises two issues for our review:

1. Whether the State committed acts of prosecutorial misconduct that cumulatively constitute fundamental error; and

2. Whether Orr's sentence is inappropriate under Indiana Appellate Rule 7(B).

[2] We affirm.

Facts and Procedural History

[3] In 2015, Orr married L.B.’s mother (“Mother”). When L.B. was young, she and Orr “were really close” and “got along really well.” Tr. Vol. II at 150. According to Mother, Orr “was trying ․ to be kind of a super dad for” L.B. Id.

[4] From 2019 through late October 2022, when L.B. was between 8 and 11 years old, L.B. lived in a house on Maldenhair Drive in Indianapolis, Indiana, with Mother, L.B.’s brother, Orr, and Orr's three children. When L.B. was eight or nine years old, Orr began sexually abusing her. The first instance that L.B. remembers was when she was 10 years old—Orr asked L.B. to “bite on his ․ penis” while the two were in Mother's closet. Tr. Vol. II at 170. This happened “more than once.” Id. at 179. Orr “would basically tell [L.B.] that it felt good and then asked [her] to do it.” Id. at 171. “[B]efore anything came out [of Orr's penis], he would grab a towel and he would grab it on the towel.” Id.

[5] On another occasion, Orr had “taken off [L.B.’s] pants,” Tr. Vol. II at 172, and “licked [her] vagina” in Mother's closet, id. at 171. Orr “stopped, because [L.B.] said ow, and he said [it] was supposed to feel good.” Id. at 173. One time while L.B.’s brother was home, Orr went into L.B.’s room, “laid [her] on the bed,” “spread [her] legs with clothes on,” and “put his stomach on [her vagina.” Id. Orr said “things like, why don't we used to have so much fun? [inaudible] we do that anymore?” Id. (alteration and errors in original). L.B. called for her brother because she knew Orr “wouldn't do anything if [her brother] was there.” Id. When Orr would hug L.B., “he would kind of push his genital area[ ] ․ against [L.B.] ․ closer to [her] vagina.” Id. at 174. On yet another occasion, Orr went into L.B.’s room and “asked to see how [she] masturbate[s].” Id. L.B. told Orr she did not want to, and Orr “ke[pt] asking.” Id. at 175. Orr heard a noise in the house indicating Mother was home, so he abandoned his efforts.

[6] On October 31, 2022, L.B. and her family moved to a different house in Indianapolis. While helping L.B. decorate her new room, Orr “started to stick his hand in his pants and it looked like he was masturbating”—L.B. “could see movement and [she] could see the tip of his penis.” Tr. Vol. II at 176. Leading up to that incident, L.B. “thought things were over ․ [b]ecause it hadn't happened in a while and [she] assumed since [she had] grown up a little bit more, [Orr] had just decided to stop.” Id.

[7] Orr “would tell [L.B.] things that would make [her] scared ․ like ‘oh, I could get in a lot of trouble if you said this to somebody else.’ ” Tr. Vol. II at 177. This made L.B. “really anxious” and feel as though she would “lose a lot of things in [her] life” if she disclosed the abuse. Id. Additionally, as a result of Orr's molestation, L.B. “became a really big germaphobe.” Id. at 176. L.B. “would wash [her] hands to the point where they would be really red and itchy [and] burn,” and she “would shower multiple times a day.” Id. L.B. “felt dirty with [her]self ․ [b]ecause of ․ [t]he things [Orr] asked [her] to do.” Id. at 177.

[8] On November 23, 2022, during a virtual therapy intake session, L.B. disclosed the abuse to Mother. Soon thereafter, Mother reported the abuse to law enforcement, and L.B. participated in a forensic interview. The State charged Orr with two counts of child molesting as Level 1 felonies, one count of child molesting as a Level 4 felony, one count of child solicitation as a Level 5 felony, and one count of performing sexual conduct in the presence of a minor as a Level 6 felony.

[9] At Orr's jury trial, L.B. testified to the abuse as described above. Orr testified in his own defense and denied molesting L.B. The jury found Orr guilty as charged, and the trial court sentenced him to a total of 68 years of imprisonment with 8 of those years suspended to probation. This appeal ensued.¹

Discussion and Decision

1. The State's Allegedly Improper Questions and Statements during Trial Do Not Cumulatively Constitute Fundamental Error

[10] Orr alleges that the State asked questions and made statements during 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.

[11] 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)).

[12] Orr specifically alleges the State improperly vouched for L.B.’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 v. State, 854 N.E.2d 831, 836 (Ind. 2006) (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.

[13] First, Orr appears to challenge the following line of questioning from the State during its redirect examination of Indianapolis Metropolitan Police Department Detective Shane Nicholsen:

Q And why did you ask [L.B.’s father] about coaching?

A It's just, it was something that defense does use in trial and things․

Q And at that point, had there been any evidence of coaching?

A No.

Tr. Vol. III at 2. Importantly, this colloquy occurred in response to Orr's cross-examination of Detective Nicholsen.² During that questioning, Orr introduced and played an audio recording of a conversation between Detective Nicholsen and L.B.’s father (“Father”) during which Detective Nicholsen (1) told Father that a possible defense to child molesting allegations was that the victim had been coached and (2) asked Father if he had coached L.B. Orr then questioned Detective Nicholsen about his conversation with Father:

Q Okay. So approximately a month and a half before charges are even filed, you are telling a witness in this case what a possible defense to an uncharged person, an accused person would be. Is that right?

A Yes.

Q Okay. Did you honestly think the guy would tell you, “Yeah, I coached her and told her all these things?”

A Honestly, at that point there had been no information or any evidence that suggested that he had coached her. There's just ․

Tr. Vol. II at 248 (alteration in original). Orr clearly opened the door for the State to question Detective Nicholsen about evidence of coaching in this case, so it was not impermissible for the State to follow up on Orr's cross-examination of Detective Nicholsen on that topic. See Sampson v. State, 38 N.E.3d 985, 992, 992 n.4 (Ind. 2015).

[14] Second, Orr challenges the following statements the State made during closing argument:

1. “ ․ I [want] you to think about why you should believe L.B. 910. That's how many days since it's been since L.B. reported and disclosed what happened to her.” Tr. Vol. III at 22.

2. “What did we hear from Shane? Detective Nichols[e]n? He collected statements and he said there was no evidence of coaching.” Id. at 25.

3. “ ․ I want you to think about why you should believe L.B. L.B. came up here and told you what happened․ L.B. would not have fabricated this.” Id. at 26.

[15] The prosecutor's closing argument focused on the testimony from each witness in this case and L.B.’s credibility. For example, the State argued,

So you're going to be left with this question of what's reasonable. And when you're thinking about what's reasonable, I want you to think about why you should believe L.B. L.B. came up here and told you what happened. You saw how painful this was for L.B. She was crying. She could barely get it out at first. You saw the tears, you saw the pain. L.B. has gotten absolutely nothing from this except all of her worst fears coming true.

Tr. Vol. III at 26.

[16] The prosecutor's challenged statements were also in response to Orr's defense that L.B. was not credible and had been coached. For instance, during opening statements, Orr told the jury, “The case is a hundred percent about the credibility of the evidence testimony that you're going to hear ․ It's about the process and how flawed the process of being accused falsely of these allegations is, how coached it is, how suggestive it is, how subjective it will be.” Tr. Vol. II at 138. Orr extensively cross-examined the forensic interviewer about her questioning of L.B., including the following exchanges:

Q So you ignored the, “I can't remember.” And then planted three possible answers in her head again by giving her w[ ]ere your clothes on, off, or something else. Right. You gave her the possible answers to your question of something she already said she can't remember. You agree with that?

A Yeah.

Tr. Vol. II at 211.

Q So I've given you a multitude of inconsistencies on a lot of important topics, times, things that happened, places they happened, and you didn't bother to challenge one iota of those inconsistencies in any of that interview, is that correct?

A Correct.

Id. at 216. And Orr testified that he did not molest L.B.

[17] Third, Orr challenges the following statements the State made during rebuttal closing argument: “We also talked, generally speaking, about what kids lie about. They lie about small details to try to not get into trouble. They don't lie consistently from 2019 until 2025 about how they're molested.” Tr. Vol. III at 39. These comments were also in response to Orr's closing argument in which Orr argued that L.B. had not been consistent during her forensic interview, the forensic interviewer asked leading questions, and Detective Nicholsen did not properly investigate the case. Orr also contended that L.B. did not testify truthfully:

[T]here are other reasons why [L.B.] may be telling this story other than it actually happened, and we might know more if there was a more thorough investigation and the State is probably going to come up here and tell you ․ that she has no motivation to fabricate this story. Well, I will submit to you that she does, and number one could be her dad. The relationship with her dad, wanting to see her dad[,] issues she was having that we don't know about because nobody delved into it.

Id. at 35.

[18] None of the State's challenged comments during closing and rebuttal closing argument asserted independent knowledge of L.B.’s truthfulness; instead, these comments were logical conclusions drawn from the evidence, namely L.B.’s consistency and demeanor. Even assuming prosecutorial misconduct in this case, Orr has not demonstrated that the harm or potential harm done by the State's comments was substantial. Any harm done by the prosecutor's questions and comments was de minimis, not substantial, and did not result in denying Orr fundamental due process.

2. Orr's Sentence Is Not Inappropriate under Appellate Rule 7(B)

[19] Orr argues his sentence is inappropriate under Appellate Rule 7(B) and should be revised. The Indiana Constitution authorizes us to independently review and revise a trial court's sentencing decision. Russell v. State, 234 N.E.3d 829, 855–56 (Ind. 2024) (citing Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020)). That authority is implemented through Appellate Rule 7(B), which permits us to revise a sentence if, “after due consideration of the trial court's decision, [we] find[ ] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Konkle v. State, 253 N.E.3d 1068, 1092 (Ind. 2025) (quoting McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020)).

[20] Our Supreme Court has explained our role under Appellate Rule 7(B) as follows:

“[O]ur constitutional authority to review and revise sentences boils down to our collective sense of what is appropriate,” Cramer [v. State], 240 N.E.3d [693,] 698 [(Ind. 2024)] (quoting Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017)), an act that, importantly, is reserved for “exceptional” cases, id. (citing Gibson v. State, 43 N.E.3d 231, 241 (Ind. 2015)). Determining a sentence's appropriateness thus “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” McCain, 148 N.E.3d at 985.

Konkle, 253 N.E.3d at 1092.

[21] Additionally, the defendant bears the burden of proving that “his or her sentence has met the inappropriateness standard of review.” Konkle, 253 N.E.3d at 1092 (quoting Cramer, 240 N.E.3d at 698). And because sentencing “ ‘is principally a discretionary function in which the trial court's judgment should receive considerable deference,’ a trial court's sentencing decision will generally prevail ‘unless overcome by compelling evidence portraying in a positive light the nature of the offense ․ and the defendant's character.’ ” Id. (alteration omitted) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

[22] A trial judge may impose any sentence within the statutory range without regard to the existence of aggravating or mitigating factors. Anglemyer v. State, 868 N.E.2d 482, 489 (Ind. 2007), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). When considering the nature of the offense, we start with the advisory sentence. Brown, 10 N.E.3d at 4 (citing Anglemyer, 868 N.E.2d at 494).

[23] Here, Orr was convicted of and sentenced on two Level 1 felonies, one Level 4 felony, one Level 5 felony, and one Level 6 felony. “[A] person who commits a Level 1 felony child molesting offense ․ shall be imprisoned for a fixed term of between twenty (20) and fifty (50) years, with the advisory sentence being thirty (30) years.” Ind. Code § 35-50-2-4(c) (emphasis added). On each of his Level 1 felony child molesting convictions, the trial court sentenced Orr to 30 years executed at the DOC, with 4 of those years suspended to probation. “A person who commits a Level 4 felony shall be imprisoned for a fixed term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years.” Id. § 35-50-2-5.5 (emphasis added). On his one Level 4 felony conviction, the trial court sentenced Orr to 4 years. “A person who commits a Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years.” Id. § 35-50-2-6(b) (emphasis added). On his one Level 5 felony conviction, the trial court sentenced Orr to 2 years. “A person who commits a Level 6 felony ․ shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 1/212) years, with the advisory sentence being one (1) year.” Id. § 35-50-2-7(b) (emphasis added). On his one Level 6 felony conviction, the trial court sentenced Orr to 2 years. The trial court ordered Orr to serve all five sentences consecutively for a total sentence of 68 years executed at the DOC, with 8 of those years suspended to probation.

[24] Because the trial court imposed less than the total advisory sentence here, Orr bears “a particularly heavy burden to prove it inappropriate under Appellate Rule 7(B).” Kincaid v. State, 171 N.E.3d 1036, 1042 (Ind. Ct. App.) (citing Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied), trans. denied, 173 N.E.3d 1028 (Ind. 2021). We first look to the nature of Orr's offenses and consider, among other things, “whether there is anything more or less egregious” about those offenses that makes them “different from the ‘typical’ offense accounted for by the legislature when it set the advisory sentence,” T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind. Ct. App. 2016) (quoting Holloway v. State, 950 N.E.2d 803, 806–07 (Ind. Ct. App. 2011)), as amended (May 26, 2023).

[25] For several years, Orr used his position of care and trust over L.B. to molest her. Orr had L.B. perform oral sex on him, performed oral sex on L.B., asked her to masturbate for him, masturbated in front of her, and hugged her inappropriately. Orr, recognizing the wrongness of his actions, threatened L.B. to keep quiet by leading her to believe she would lose the things that were important to her. While L.B. may not have been “physically harmed or threatened with harm” as Orr argues on appeal, Appellant's Br. at 17, this does not lessen the severity of his crimes. Nor does it lessen their impact on L.B., who at the time of sentencing continued to “struggle with anxiety, depression, fear, and moments where [she has] felt completely helpless.” Ex. Vol. I at 15. In her victim impact statement, L.B. said that Orr's abuse “has changed how [she] see[s] the world, and how [she] trust[s] people. It's like there's a wall that [she] didn't build, but now [she] live[s] behind it.” Id.

[26] In considering the character of the offender, “we engage in a broad consideration of a defendant's qualities,” T.A.D.W., 51 N.E.3d at 1211 (citing Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on reh'g), including whether the defendant has “substantial virtuous traits or persistent examples of good character,” Konkle, 253 N.E.3d at 1093 (quoting Stephenson, 29 N.E.3d at 122).

[27] In 2006, Orr was found guilty of public intoxication and disorderly conduct. Additionally, before this case went to trial, in 2024, Orr was convicted of strangulation as a Level 6 felony, battery resulting in bodily injury as a Class A misdemeanor, criminal mischief as a Class A misdemeanor, and criminal mischief as a Class B misdemeanor. Orr reported that he began using marijuana at 17 years old and continued to use it daily until November 2022. Despite the nearly 20-year gap in Orr's criminal history, his character is still far from virtuous. For several years, Orr molested L.B. Orr chose criminality, deceit, force, and self-gratification over correcting and concluding his crimes. Although he was never stopped by law enforcement or other authorities during this time span and then returned to the behavior, his own sense of proper conduct and recognition of community standards should have stopped him from continuing to engage in this conduct.

[28] Orr points to evidence of strong family support and gainful employment as positive qualities, but this evidence is not so substantially virtuous that it outweighs his violation of trust, the lasting trauma he inflicted on L.B., and his criminal history. Based on the serious nature of Orr's offenses and his history of criminal behavior, we cannot say that Orr has produced compelling evidence demonstrating that the nature of his offense or his character renders his less-than-advisory sentence inappropriate. See Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (per curiam) (affirming 90-year sentence for three counts of child molesting as Class A felonies, but revising suspended portion of sentence from 20 years to 30 years); McCain v. State, 88 N.E.3d 1066, 1067 (Ind. 2018) (per curiam) (affirming 40-year sentence for one count of child molesting as a Level 1 felony).

Conclusion

[29] In sum, Orr has not shown that the State committed prosecutorial misconduct that cumulatively amounted to fundamental error and that his less-than-advisory sentence is inappropriate under Appellate Rule 7(B). We thus affirm the trial court on all issues raised.

[30] Affirmed.

FOOTNOTES

1.   Before filing his brief in this case, Orr filed a motion in the trial court seeking correction of numerous alleged errors in the Transcript, including a missing exhibit and at least one instance of a witness being misidentified. In his motion, Orr stated that he had attached “[a]n exhaustive list of the errors” in the Transcript, Ver. Mot. Correct R. Appeal at 2, No. 49D07-2301-F1-002432 (Oct. 17, 2025), but no such attachment was filed with the motion. On October 21, 2025, in a Chronological Case Summary entry, the trial court represented that it had consulted with the Court Reporter and the “[m]isidentified witness issue has been corrected”; the trial court also directed Orr to file the exhibit containing the exhaustive list. Orr did not do so.Although “[t]rial records are rarely if ever perfect,” Ben-Yisrayl v. State, 753 N.E.2d 649, 662 (Ind. 2001), the Transcript in this case is far from the best. The Transcript contains various types of errors. In some instances, a witness's answer appears to be included in an attorney's question and vice versa. Tr. Vol. II at 148: 8–9, 11; id. at 151: 23; id. at 154: 18–19; id. at 170: 23–24; id. at 181: 1; id. at 203: 1–6; id. at 210: 29–30. In other instances, a witness's answer appears to be mislabeled as an attorney's question and vice versa. Tr. Vol. II at 163: 2–3; id. at 170: 12, 24; id. at 210: 29–30. At one point in the Transcript, an objection, presumably made by Orr, is attributed to the trial court. Tr. Vol. II at 234: 26–27. These errors, among others not described herein, complicated but did not substantially impede our review of Orr's appeal. Regardless, we remind the Court Reporter and trial court that this court relies on transcripts being true and accurate representations of the transcribed proceedings. See Ind. Appellate Rule 28(B) (“The Court Reporter shall certify the Transcript is correct.”); id. 32(A) (requiring trial court to confirm accuracy of Transcript or to correct Transcript when its accuracy is disputed).We also note that the Transcript—which has not been excluded from public access—contains inconsistent redactions of confidential information. See Ind. Access to Court Records Rule 5(C)(2) (requiring redaction of names of child witnesses in cases involving sex offenses); id. 5(C)(3) (requiring redaction of dates of birth of natural persons who are witnesses or victims in criminal proceedings); App. R. 23(F) (providing for confidentiality of Court Records on appeal).Based upon the types of errors reviewed, it appears that generative artificial intelligence may have assisted with the preparation of this transcript. While AI can improve efficiency and be a productive tool for many professionals, it is incumbent upon those using such systems to proofread and ensure the accuracy of the generated responses.

2.   In his brief, Orr states that this exchange occurred during the State's “direct examination” of Detective Nicholsen. Appellant's Br. at 28 (citing Tr. Vol. III at 2). As stated above, this exchange occurred during the State's redirect examination of Detective Nicholsen.

Felix, Judge.

May, J., and Mathias, J., concur.