Ralph W. Luper, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Ralph Luper was convicted of three counts of child molesting, Level 1 felonies; three counts of child seduction, Level 3 felonies; one count of child molesting, a Level 4 felony; and one count of child solicitation, a Level 5 felony. Luper appeals and claims: (1) the trial court erred by denying his motion for a directed verdict; (2) several of his convictions constitute double jeopardy; and (3) the prosecutor committed misconduct during the State's rebuttal argument. We disagree and, accordingly, affirm.

Issues

[2] Luper presents three issues, which we reorder and restate as:

I. Whether the trial court erred by denying Luper's motion for a directed verdict.

II. Whether the prosecutor committed misconduct during the State's rebuttal argument.

III. Whether several of Luper's convictions constitute double jeopardy.

Facts

[3] Luper and H.L. were married in 2004 and divorced in 2008. The couple had three children, including S.L., whom the parties refer to as “Victim 1.” H.L. had other children following her divorce from Luper, including K.L., whom the parties refer to as “Victim 2.” Although Victim 2 is not Luper's biological daughter, he adopted her in 2012 after the death of her biological father. Luper had custody of the children every other weekend, but H.L. generally allowed Luper to see the children whenever he desired. After his divorce, Luper lived with his parents and at the Mulberry Apartments. From July through December 2018, Luper was the guardian of all the children while H.L. was incarcerated.

[4] When Victim 1 was in third grade, Luper began to sexually abuse her. During the first such incident, Victim 1 and Luper were at Luper's apartment watching television. Luper put a blanket over himself and Victim 1, pulled his penis through his pajama pants, and forced Victim 1 to put her mouth on his penis. On another occasion, Victim 1 was with Luper when he showed her his penis and asked her to put her mouth on his penis; Victim 1 complied with Luper's demand. On yet another occasion, Victim 1 was alone upstairs with Luper when he lived with his parents; Luper again made Victim 1 put her mouth on his penis. Victim 1 testified that these incidents occurred approximately twenty to thirty different times. Luper often “brib[ed]” Victim 1 with money or treats. Tr. Vol. II p. 64.

[5] The last time Luper attempted to molest Victim 1 occurred when she was in sixth grade and spending the night at her paternal grandmother's house, where Luper lived at the time. While Victim 1 was sleeping on the couch, Luper exited his room, exposed his penis to her, and asked Victim 1 if she “wanted to.” Id. at 66-67. Victim 1 ignored Luper, and he never asked her to sexually gratify him thereafter. At the time of these incidents, Victim 1 did not report the molestations.

[6] Luper also sexually abused Victim 2 beginning when she was eight or nine years old and in the fourth grade. During the first incident, she was asleep on the couch in Luper's home and awoke when she noticed Luper had his hand inside her pants, touching her vagina. After this incident, Luper would often go into Victim 2's bedroom while she was sleeping and touch her vagina and sometimes touch her breasts. Luper would stop only when Victim 2 woke up and began to move. Victim 2 stated that Luper touched her in this manner over twenty times, sometimes once or twice per week. Luper last touched Victim 2 in this manner when she was in seventh grade. Victim 2 also did not immediately report the molestations.

[7] In the summer of 2023, before Victim 1 began her junior year in high school, she attended a summer church camp. At the camp, a group of girls were giving testimony regarding what brought them closer to God. Some of the girls explained that they had been sexually abused, how this abuse affected them psychologically, and that “God kind of saved them from a dark place that they felt like they were in.” Id. at 196. Victim 1 shared her experiences of sexual abuse at the camp. Camp employees reported Victim 1's disclosure to the Department of Child Services (“DCS”), and to Victim 1's mother, H.L.

[8] When H.L. learned of Victim 1's disclosure, she went to Luper's home, where Victim 2 was staying at the time. H.L. asked Victim 2 if Luper had done “inappropriate” things to her. Id. at 89. Victim 2 told H.L. that Luper had touched her “up top and below.” Id. at 110. H.L. did not tell Victim 2 that Victim 1 had disclosed sexual abuse by Luper. H.L. then confronted Luper about her daughters’ claims. Luper denied touching Victim 2, but with regard to Victim 1, he stated, “to my recollection, I've never touched her.” Id. at 112. H.L. found this equivocal response to be odd.

[9] The State ultimately charged Luper as follows: Counts I, II, and III—child molesting, Level 1 felonies; Count IV, child solicitation, a Level 5 felony; Counts V, VI, and VII—child seduction, Level 3 felonies; and Count VIII— child molesting, a Level 4 felony. Counts I, II, and III named Victim 1 as the victim, and Counts IV, V, VI, VII, and VIII named Victim 2 as the victim.

[10] Luper was arrested in November 2023 and agreed to submit to a polygraph examination and stipulated that the results would be admissible in court. Clinton County Sheriff's Department (“CCSD”) Detective Mark Pinkard conducted the polygraph examination. Detective Pinkard initially believed that Luper did not give dishonest answers when denying the victims’ allegations, but standard procedure dictated that Detective Pinkard have someone else review the results of the polygraph before creating a report.

[11] CCSD Detective Daniel Roudebush, also trained as a polygraph examiner, reviewed Luper's polygraph results. Detective Roudebush noted that Luper had several premature ventricular contractions (“PVCs”)—a heart arrhythmia—during the test. The PVCs made the polygraph data unusable. Detective Roudebush had never seen so many PVCs in one polygraph and decided that an expert should review the results before making a report. Accordingly, Pamela Shaw, the director of the National Polygraph Academy, reviewed Luper's polygraph results. Shaw determined that the results contained too many distortions or “artifacts” to render an opinion. Tr. Vol. II p. 177. Thus, she determined that the test was neither a pass nor a fail.

[12] A three-day jury trial began on June 10, 2025. At the end of the State's case-in-chief, Luper moved for a directed verdict. The trial court denied the motion, and the defense presented its case, including Luper's own testimony. During closing statements, defense counsel noted that Luper took the polygraph even though he knew the results would be admissible, thereby implying that Luper was innocent. Defense counsel also argued Victim 1 fabricated her claims of sexual abuse to fit in with the other girls at the church camp. In the State's rebuttal, the prosecutor argued that Luper may have taken the polygraph not because he was innocent, but because he thought he could “beat” the test, and the prosecutor referenced the PVCs and other physiological responses exhibited by Luper during the polygraph. Tr. Vol. III p. 58. The prosecutor also stated that she had been to church camp and that such camps always have a time for “testimony” and argued that defense counsel was mischaracterizing Victim 1's testimony regarding her disclosure at the church camp. Id. at 62. Luper made no objection to the prosecutor's statements. The jury found Luper guilty as charged, and the trial court entered judgments of conviction on all counts. On August 13, 2025, the trial court sentenced Luper to an aggregate term of forty-two years. Luper now appeals.

Discussion and Decision

I. Directed Verdict/Sufficiency of the Evidence

A. Luper waived his directed verdict claim.

[13] Luper first claims that the trial court erred by denying his motion for a directed verdict as to Counts V, VI, and VII. After the trial court denied his motion for a directed verdict, however, Luper presented evidence, including his own testimony. It is well settled that a defendant waives his right to appeal a denial of a motion for a directed verdict by presenting evidence after the trial court denies the motion. Luke v. State, 273 N.E.3d 450, 459 (Ind. Ct. App. 2025) (citing Delagrange v. State, 5 N.E.3d 354, 356 n.1 (Ind. 2014)).

We have held, however, that we may review waived challenges to the denial of a motion for a directed verdict alternatively as challenges to the sufficiency of the evidence. We may do so even where the appellant raises the directed verdict argument alone, without a concomitant sufficiency argument, as is the case here. This practice is sensible because the standard of review for both types of challenges is nearly identical; therefore, if the evidence is sufficient to sustain a conviction on appeal, the denial of a motion for a directed verdict could not be error.

Borroel v. State, 241 N.E.3d 8, 16 (Ind. Ct. App. 2024) (citations and internal quotations omitted), trans. denied. Accordingly, even though Luper waived his argument regarding the propriety of the denial of his motion for a directed verdict, we address his claim as one of the sufficiency of the evidence. See id.

B. Sufficient evidence supports Luper's convictions under Counts V, VI, and VII.

[14] As we summarized in Borroel:

Sufficiency of evidence claims warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility. When there are conflicts in the evidence, the fact-finder must resolve them. We consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt. We affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Id. (citations and internal quotations omitted).

[15] To prove that Luper committed child seduction as a Level 3 felony, as alleged in Counts V, VI, and VII, the State had to prove that Luper: (1) was at least eighteen years of age; (2) was the adoptive parent of Victim 2; (3) Victim 2 was less than fourteen years of age; and (4) Luper engaged in “any fondling or touching with the intent to arouse or satisfy the sexual desires” of either himself or Victim 2. Ind. Code § 35-42-4-7(m), (q) (2019)¹ ; see also Appellant's App. Vol. II pp. 131-33.

[16] Luper does not challenge the sufficiency of the evidence proving that he was over eighteen, that Victim 2 was under fourteen, or that he was Victim 2's adopted father. Instead, Luper claims that the State presented insufficient evidence to support all three of his convictions for child seduction because, although Victim 2 testified that Luper touched her over twenty times, she testified in detail regarding only two incidents—one on the couch and the other in her bed.

[17] Our Supreme Court has long held that:

the precise time and date of the commission of a child molestation offense is not regarded as a material element of the crime. Accordingly, this Court has long recognized that time is not of the essence in the crime of child molesting. It is difficult for children to remember specific dates, particularly when the incident is not immediately reported as is often the situation in child molesting cases.

Baker v. State, 948 N.E.2d 1169, 1174 (Ind. 2011) (citations and internal quotations omitted). We see no reason this should not extend to the closely-related crime of child seduction. See Cabrera v. State, 178 N.E.3d 344, 346 (Ind. Ct. App. 2021) (noting that time is not of the essence in crimes of child molesting or sexual misconduct with a minor).

[18] Here, Victim 2 testified that, starting when she was eight or nine years old, Luper touched her vagina and sometimes her breasts with his hands. She testified that these touchings occurred once or twice per week. When asked if this occurred over twenty times, she responded, “[m]aybe a little over,” and stated that it occurred “quite a few” times. Tr. Vol. II p. 90. This is sufficient to establish that Luper touched Victim 2's breast and/or vagina multiple times in addition to the first and last times Luper touched her, about which she testified in some detail.² We, therefore, conclude that the State presented sufficient evidence to support Luper's convictions for three counts of child seduction based upon three separate incidents of touching.³

II. Alleged Prosecutorial Misconduct

[19] Next, Luper claims that the prosecutor made statements during closing argument that constitute prosecutorial misconduct. If a claim of prosecutorial misconduct is properly preserved for appeal, “we determine ‘(1) whether misconduct occurred, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected otherwise.’ ” Konkle v. State, 253 N.E.3d 1068 (Ind. 2025) (quoting Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014)).⁴

[20] Luper acknowledges that his counsel did not object to the statements that he now claims were improper, which results in waiver of the issue on appeal. See Konkle, 253 N.E.3d at 1081. He must, therefore, also show that the prosecutorial misconduct constituted fundamental error.

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.

We stress that [a] finding of fundamental error essentially means that the trial judge erred ․ by not acting when he or she should have․ 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, 9 N.E.3d at 668 (citations and internal quotations omitted, alterations in original). Here, we conclude that the prosecutor's statements did not constitute fundamental error.

A. Polygraph Results

[21] Luper first claims that the prosecutor committed fundamental error by suggesting that Luper submitted to the polygraph not because he was innocent but because Luper thought he could “beat” the test and “maybe” that is why Luper's results had odd physiological readings, including the heart arrhythmia. Tr. Vol. III pp. 57-58. Luper claims that this was misconduct because all three of the polygraph witnesses, including the State's own expert, testified that there was no evidence that Luper did anything to intentionally beat the polygraph test. Instead, the witnesses testified that the odd physiological readings were unexplained.

[22] It was Luper's counsel, however, who first brought up the polygraph readings in his closing argument. Luper's counsel told the jury that Luper took the polygraph knowing it would be admissible in court, suggesting that Luper would not have done so if he were not innocent. See Tr. Vol. III p. 51 (“[Luper] agreed to take that polygraph test at risk of going to prison. He bet on himself. And fortunately for us, now the Jury gets to hear that, because polygraphs are otherwise inadmissable [sic]․”).⁵ The prosecutor was, thus, merely responding to Luper's own argument by positing that there could be another reason why Luper took the polygraph, i.e., he thought he could “beat” the test. Id. at 58. It is well settled that “ ‘[p]rosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable.’ ” Ryan, 9 N.E.3d at 669 (quoting Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006)).

[23] And although the prosecutor's theory was that Luper's PVCs “maybe” were indicative of Luper trying to “beat” the test, the prosecutor admitted that none of the expert witnesses testified that Luper was being deceptive. See Tr. Vol. III p. 58 (“Again, no expert came [ ] forward and said that they could show deception. I'm not going to try and mislead you guys. But maybe that's why he took it.”). Under these facts and circumstances, we cannot say that the prosecutor's statements constituted fundamental error, i.e., made a fair trial impossible.

B. Vouching

[24] Luper also claims that the prosecutor impermissibly vouched for the victims during the State's closing argument. “It is inappropriate for a prosecutor to make an argument which takes the form of personally vouching for a witness.” Gaby v. State, 949 N.E.2d 870, 880-81 (Ind. Ct. App. 2011) (citing Lainhart v. State, 916 N.E.2d 924, 938 (Ind. Ct. App. 2009)). A prosecutor may, however, “comment on the credibility of the witnesses ․ if the assertions are based on reasons which arise from the evidence.” Id. at 882 (citing Lainhart, 916 N.E.2d at 938).

[25] Luper refers to three statements made during the State's closing argument that he claims amounted to impermissible vouching. The first of these was the prosecutor's statement that the jury should believe Victim 1 and Victim 2 based on the timeline of their claims of sexual abuse by Luper:

[F]irst, one of the main reasons I believe you can believe Victim 1 and Victim 2 beyond a reasonable doubt is they had consistent core details. When you go back and you look at the – the final instructions, look at the dates of when things happened to Victim 1 and when they happened to Victim 2. It stopped with Victim 1 and then it started happening to Victim 2. They're pretty [ ] close in time of when they said it ended and it started. That's pretty consistent. They also were roughly the same ages. A lot of child molesters have preferred ages. Preferred development. I know, eww. But that's true for most child molesters. And you're going to see that their ages were very similar. It doesn't bother me that their statements are different․

Tr. Vol. III p. 60.

[26] Luper claims that there was no evidence in the record to support the prosecutor's claims. Luper appears to be correct that there was no evidence presented at the trial that child molesters have a preferred age. But this does not mean that the prosecutor vouched for the victims’ credibility. There is nothing about the prosecutor's statement that constitutes personal vouching. That is, the prosecutor did not say that she believed the victims and that the jury should, therefore, also believe the victims. Instead, she referred to the timeline of the evidence in the record as a reason why the jury should believe the victims. It is axiomatic that the jury determines issues of credibility and found the victims to be credible. The prosecutor's statements were not vouching.

[27] This is a far cry from the impermissible vouching that occurred in Gaby, 949 N.E.2d 870. There, the prosecutor told the jury that she was “confident” that the jury would “come to the same conclusion” that she and the police detectives had come to”; that she “cannot and would not bring charges that I believe were false”; and that “I can tell you that with a guilty verdict on this case I will be able to sleep fine tonight. Just fine. In fact, better than fine. You will be able to also.” Id. at 880 (record citations omitted). This, we held was personally vouching for the witnesses, i.e., arguing to the jury that it should believe the victim's testimony because the prosecutor believed the victim's testimony. Cf. also Lainhart, 916 N.E.2d at 938 (holding that prosecutor improperly vouched for police officer's testimony by stating “it would take an awful lot to get an officer [to lie]” and that “if any officer would even come close to not putting out exactly what happened telling the truth, they're out. I would never, ever, put them in front of a Jury, if I suspected anything”).

[28] The last statement made by the prosecutor that Luper claims was improper involves Victim 1's experience at summer camp. In closing argument, defense counsel stated:

You know that it was not the State that called Ashton Seitz [the camp counselor who reported Victim 1's disclosure to DCS] to the stand today. They wanted no part of that. No part of that testimony. They wanted no part of explaining how these allegations came to sprout. Because they sprouted under the sketchiest of circumstances. It was [Luper] who called Ashton Seitz as a witness. Now, this – this practice of the testimonies, as Ashton said, in this context, in this situation, is horrible. Because what they did, was they took a teenage girl and placed her in a circle of girls, un-vetted and un-substantiated in their testimonies, and they exposed Victim 1 to their tales of child molest. So, Victim 1's sixteen, fifteen at this time, she's with all these kids, who are peers who are all giving all these sad stories. All these horrifying stories. And Victim 1 walks away, right after that and she goes to make her statement or her disclosure to Ashton Seitz. And according to Victim 1's testimony yesterday, this is what really gets me, she's believing, and she said it, you heard it, she's believing that publicly accusing her father is going to get her closer to God. So, this group at the [camp] is using God as an incentive to make an allegation against her parent, which is completely inconsistent about anything [Luper]’s ever done with her.

Tr. Vol. III p. 47-48.

[29] In response, the prosecutor stated during the State's rebuttal argument:

Uhm this is where we're going to talk about [Victim 1's camp] and how Victim 1's disclosure happened. I've been to a lot of church camps. I have experienced at every single church camp that I've been to that there is a testimony time. At every single one. There's a testimony time. And it's not, I also believe that [defense counsel] mis-stated what Victim 1 said on the stand. She didn't say that confessing her dad molested her would bring her closer to God. A testimony is talking about things you've walked through in life and how God met you there and you became closer to God.[6]

Id. at 62. Luper claims that this is impermissible vouching because it was based on a reason that was not in evidence and was instead based on the prosecutor's own personal experiences. We disagree.

[30] Again, it was defense counsel who brought up the church camp in his closing statement by suggesting that Victim 1 fabricated her claims of sexual abuse to either fit in or show a religious experience. The prosecutor was merely responding to this argument. As noted above, prosecutors are entitled to respond to allegations and inferences raised by the defense, even if the response would otherwise be objectionable. Ryan, 9 N.E.3d at 669. More importantly, the prosecutor's statement here was not vouching at all. She simply responded to the defense attorney's argument and did not personally vouch for the credibility of the witnesses.

[31] Even if these statements may have been improper, they did not make a fair trial impossible. Indeed, the jury was instructed that the arguments of counsel were not evidence. See Appellant's App. Vol. II pp. 198, 235. The jury was also instructed to base its verdict solely on the evidence presented at trial and the trial court's instructions. See id. pp. 195, 234. We presume the jury follows the trial court's instructions. Weisheit v. State, 109 N.E.3d 978, 989 (Ind. 2018). Under these circumstances, we cannot say that the prosecutor's statements amounted to fundamental error.

III. Double Jeopardy

[32] Luper next claims that his convictions under Counts V, VI, and VII constitute double jeopardy under Powell v. State, 151 N.E.3d 256 (Ind. 2020), and that his conviction under Count VIII constitutes double jeopardy under Wadle v. State, 151 N.E.3d 227 (Ind. 2020).

[33] Whether multiple convictions constitute double jeopardy is a question of law we review de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024). Our Supreme Court has identified two types of double jeopardy: the first type occurs where “a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims,” and Wadle governs such claims. Wadle, 151 N.E.3d at 247. The second type occurs when “a single criminal act or transaction violates a single statute but harms multiple victims,” and Powell governs such claims. Powell, 151 N.E.3d at 263. Luper's double jeopardy claims implicate both Powell and Wadle.⁷

A. Luper's convictions under Counts V, VI, and VII do not constitute double jeopardy under Powell.

[34] Luper argues that his convictions under Counts V, VI, and VII, all of which were for child seduction, constitute double jeopardy under Powell because “the State only presented evidence regarding two specific child seduction events, yet he was convicted of Counts V, VI, and VII, which contained identical charging language.” Appellant's Br. p. 12. The State agrees that Powell applies to Luper's claim but argues that Luper's convictions do not constitute double jeopardy under the Powell test. We agree that the Powell test applies to Luper's double jeopardy claim. See White v. State, 264 N.E.3d 99, 105 (Ind. Ct. App. 2025) (“Powell applies where the question is whether the State has alleged or shown discrete, prosecutable acts under identical statutory language”). But we conclude that Luper's convictions under Counts V, VI, and VII do not constitute double jeopardy under the Powell test.

[35] In Powell, our Supreme Court explained:

Our legislature possesses the inherent authority, subject to certain constitutional limitations, to define crimes and fix punishments. This prerogative extends to defining whether a single statutory offense will subsist for a definite period or cover successive, similar occurrences. In resolving a claim of multiplicity, our task is to determine whether the statute permits punishment for a single course of criminal conduct or for certain discrete acts—the successive, similar occurrences—within that course of conduct. Put differently, we ask whether—and to what extent—the applicable statute permits the fragmentation of a defendant's criminal act into distinct units of prosecution.

Powell, 151 N.E.3d at 263-64 (footnote, citations, and internal quotations omitted).

[36] “This inquiry involves a two-step process.” Id. at 264. In the first step, the court must “review the text of the statute itself. If the statute, whether expressly or by judicial construction, indicates a unit of prosecution, then we follow the legislature's guidance and our analysis is complete.” Id. (citation omitted). If, however, the statute is ambiguous, “then we proceed to the second step of our analysis.” Id.

[37] Here, the State agrees with Luper that the child seduction statute is conduct based. That is, the crime is committed when the defendant engages in the prohibited conduct—touching or fondling with the intent to arouse or satisfy sexual desires—regardless of whether the conduct produces a specific result. We came to a similar conclusion when analyzing the child molesting statute in White, 264 N.E.3d 99. There, we held that the child molesting statute was conduct based because “for each charge under the same statutory language, the State must prove a discrete act.” Id. at 106. But this “does not mean that the State cannot bring multiple charges against a defendant under the same statutory language for multiple, discrete acts.” Id.

[38] The same is true here; the State can bring multiple charges of child seduction against a defendant under the same statutory language for multiple, discrete acts that violate that statute. We, therefore, proceed to the second step of the Powell analysis to determine whether the State charged and proved discrete acts of child seduction by Luper.

[39] In Powell’s second step:

[We] must determine whether the facts—as presented in the charging instrument and as adduced at trial—indicate a single offense or whether they indicate distinguishable offenses. To answer this question, we ask whether the defendant's actions are so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction. If the defendant's criminal acts are sufficiently distinct, then multiple convictions may stand; but if those acts are continuous and indistinguishable, a court may impose only a single conviction. Any doubt counsels against turning a single transaction into multiple offenses.

Id. at 264-65 (footnote, citations, and internal quotations omitted).

[40] Here, the facts, as presented in the charging information and as adduced at trial, establish that Luper committed distinguishable offenses. As explained above, Victim 2 testified that when she was only eight or nine years old, Luper put his hands inside her pants and touched her vagina. After this first incident, Luper repeatedly went into Victim 2's bedroom as she slept, where he touched her vagina and, sometimes, her breasts. Luper last touched Victim 2 when she was in the seventh grade, and Victim 2 testified that Luper touched her once or twice per week, and over twenty times in total. This clearly shows that Luper committed multiple, distinguishable offenses, not merely a single transaction. Accordingly, his convictions under Counts V, VI, and VII do not constitute double jeopardy. See Henson v. State, 237 N.E.3d 1160, 1168 (Ind. Ct. App. 2024) (holding that defendant's convictions for two counts of child molesting did not constitute double jeopardy because victim described five incidents of sexual abuse), trans. denied.⁸

B. Luper's conviction under Count VIII does not constitute double jeopardy under Wadle.

[41] Luper also claims that his conviction for child molesting, a Level 4 felony, against Victim 2 under Count VIII constitutes double jeopardy because it was a lesser included offense of child seduction, for which Luper was convicted in Counts V, VI, and VII, which also named Victim 2 as the victim. This type of double jeopardy claim is governed by the Wadle test. See Wadle, 151 N.E.3d at 247.

[42] Under the three-part Wadle test, we first determine whether the statutes at issue clearly permit “multiple punishment, whether expressly or by unmistakable implication[.]” Id. at 253. Unless the statutes so permit, we proceed to the second step, which asks whether the offenses are included, “either inherently or as charged[.]” Id. If the offenses are not included, there is no double jeopardy violation. But if the offenses are included, we proceed to the third and final step, in which we “examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial.” Id. If the facts demonstrate that the defendant's actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction,” we will find that the defendant's convictions constitute double jeopardy. Id.

Wadle Step 1

[43] Applying the first step of the Wadle test, we agree with the parties that neither the child molesting statute ⁹ nor the child seduction statute ¹⁰ clearly permit multiple punishment. See Carranza v. State, 184 N.E.3d 712, 716 (Ind. Ct. App. 2022) (holding that neither subsections (a) or (b) of the child molesting statute clearly permits multiple punishments); Koziski v. State, 172 N.E.3d 338, 342 (Ind. Ct. App. 2021) (holding that the child molesting statute does not clearly permit multiple punishment), trans. denied. We, therefore, proceed to the second step of the Wadle test.

Wadle Step 2

[44] Under Wadle step two, we determine whether the two offenses for which the defendant was convicted constitute included offenses. Wadle, 151 N.E.3d at 248. Included offenses come in two varieties: (1) “inherently” included offenses; and (2) offenses that are included “as charged” or “factually included.” A.W. v. State, 229 N.E.3d 1060, 1067 (Ind. 2024). Offenses are included “as charged” when “the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense.” A.W., 229 N.E.3d at 1067. In A.W., our Supreme Court clarified Wadle’s “perhaps misunderstood directions, while adding a modification at Step 2.” Specifically, A.W. held that:

[W]here ambiguities exist in a charging instrument about whether one offense is factually included in another, courts must construe those ambiguities in the defendant's favor, and thus find a presumptive double jeopardy violation at Step 2. In this event, the State can later rebut this presumption at Step 3.

229 N.E.3d at 1069.

[45] Here, the State concedes that the charges at issue—child molesting and child seduction—are included as charged. We agree. The informations charging Luper with child seduction alleged:

[B]etween July 1, 2019 and August 1, 2022 ․ Ralph Luper, being at least eighteen years of age, to-wit: 36-39, and the adoptive parent of Victim 2, a child thirteen years of age or younger, to-wit: 9-12, engaged in fondling or touching with said child with the intent to arouse or satisfy the sexual desires of either Ralph Luper or Victim 2.

Appellant's App. Vol. II p. 133. And the information charging Luper with child molesting alleged:

[B]etween July 3, 2018 and June 12, 2022 ․ Ralph Luper did perform fondling or touching with Victim 2, a child under the age of fourteen years, to-wit: 8-12 years old, with the intent to arouse or satisfy the sexual desires of Victim 2

Id. at 163. We agree with the State that “the only difference between [these] charges is the element that Luper be Victim 2's adoptive father in the child seduction charges.” Appellee's Br. p. 22. This establishes a presumptive double jeopardy violation, which the State can rebut at Step 3. A.W., 229 N.E.3d at 1069.

Wadle Step 3

[46] At the third step of the Wadle analysis, we examine the facts underlying the offenses, “as presented in the charging instrument and as adduced at trial.” Wadle, 151 N.E.3d at 249. “Based on this information, a court must ask whether the defendant's actions were so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Wadle, 151 N.E.3d at 249. “If the defendant's acts constitute a single transaction, the multiple convictions constitute double jeopardy.” Id.

[47] As noted above, the facts as adduced at trial show that Luper committed multiple, distinct acts of sexual contact with Victim 2 over a period of years, as frequently as once or twice per week and over twenty times in total. Furthermore, during the State's final argument, the prosecutor explained that the jury could use one of at least twenty instances in which Luper fondled Victim 2 to find Luper guilty of child molesting but that it could not use the same instance to prove both the child molesting and the child seduction charges. See Tr. Vol. III p. 41 (“[A]ny of the twenty times can count towards [child molesting], as long as you didn't count it on one of the other ones [i.e., the other counts].”). We, therefore, conclude that Luper's actions were not so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction, and his convictions for child seduction and child molesting do not constitute double jeopardy under the Wadle test. See Henson, 237 N.E.3d at 1168.

Conclusion

[48] The trial court properly denied Luper's motion for a directed verdict because the evidence is sufficient to support his convictions. The statements made by the prosecutor during the State's rebuttal argument did not amount to fundamental error. And Luper's convictions involving Victim 2 do not constitute double jeopardy under either Powell or Wadle. Accordingly, we affirm the trial court's judgment.

[49] Affirmed.

FOOTNOTES

1.   This is the version of the statute in effect at the time Luper committed his crimes.

2.   Luper cites Bradley v. State, 113 N.E.3d 742, 753 (Ind. Ct. App. 2018), in support of his argument that there was insufficient evidence to support his convictions for child seduction. We find Bradley readily distinguishable. In that case, we addressed the sufficiency of the evidence regarding two counts of child molesting, which were based on different conduct, i.e., oral-genital contact and penetration of the sex organ with a finger. Bradley did not address whether repeated incidents of the same contact, as occurred here, can support multiple counts under identical statutory language. The portion of Bradley that comes closest to supporting Luper's “specific acts” argument was the double-jeopardy analysis. But Bradley applied the Richardson/Guyton double jeopardy tests, which were abandoned in Wadle v. State, 151 N.E.3d 227, 235 (Ind. 2020).

3.   Luper claims that, if Victim 2's testimony supports three counts of child seduction, this would permit the State to charge him with twenty counts, as that is the number of times Victim 2 testified the touchings occurred. But the State was not required to charge every discrete act Victim 2 described. The prosecutor's discretion to charge only three counts does not mean that the evidence supports fewer convictions than the three that were charged.

4.   Konkle abrogated Ryan and several other cases only to the extent that those cases held that, even if a timely objection was overruled, a claim of prosecutorial misconduct was waived unless the defendant also requested that the jury be admonished and moved for a mistrial. Konkle, 253 N.E.3d at 1080-82. Konkle held that only an objection is required to preserve a claim of prosecutorial misconduct and left undisturbed the other parts of the Ryan opinion and even cited it on other grounds.

5.   In his reply brief, Luper claims that his counsel did not speculate as to Luper's motives for taking the polygraph. But defense counsel's statements at the very least imply that Luper took the polygraph because he was innocent.

6.   We urge prosecutors to refrain from referencing their personal experiences during closing arguments. Even if such remarks do not constitute misconduct, they are unnecessary. A prosecutor's personal experiences are not evidence, and arguments based on such experiences rather than the evidence admitted at trial invite challenges on appeal.

7.   Since the parties submitted their briefs in this case, our Supreme Court issued its opinion in Moyers v. State, No. 26S-CR-86, 2026 WL 786823 (Ind. Mar. 20, 2026). In that case, the Court noted the “uncertainty [that] has persisted over the meaning of ‘single statutory offense’ and, particularly, whether Powell or Wadle applies when a defendant's convictions stem from multiple violations of the same statute with differing enhancing circumstances or penalty levels.” Id., slip op. at 6. Ultimately, the Moyers Court held:We conclude that the Legislature's intent—discerned from statutory text and structure—controls whether two or more elevated offenses are part of a single statutory offense. When a statute defines a common base offense that can be elevated to higher penalty levels through attendant circumstances or results, the base offense and its elevated forms together constitute one statutory offense. But when a statute defines distinct base offenses, the elevated forms derived from those separate bases are distinct statutory offenses. Thus, in deciding whether Powell or Wadle applies, the fact that two offenses either appear in the same statutory section or differ only in their enhancing circumstances is not dispositive. The key question is whether the elevated offenses share a common underlying base offense.Id., slip op. at 7-8. Here, the parties agree that Luper's first argument is controlled by Powell, whereas his second argument is controlled by Wadle. The question resolved in Moyers is, therefore, not at issue here.

8.   Luper claims that because he simultaneously touched Victim 2's vagina and breasts during the bedroom incident, those touches constituted a single transaction and cannot support two separate counts. But even if this were true, there were at least three distinct acts that support Luper's convictions: the couch incident, the bedroom incident, and any of the more-than-twenty additional incidents about which Victim 2 testified. These incidents, separated by days or weeks over a period of years, do not constitute a “single transaction” for purposes of Powell.

9.   The portion of the child molesting statute under which Luper was charged provides: “A person who, with a child under fourteen (14) years of age, 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, commits child molesting, a Level 4 felony.” Ind. Code § 35-42-4-3(b).

10.   The portion of the child seduction statute under which Luper was charged provided:If a person who:(1) is at least eighteen (18) years of age; and(2) is the:(A) guardian, adoptive parent, adoptive grandparent, custodian, or stepparent of; or (B) child care worker for;a child less than eighteen (18) years of age;engages with the child in sexual intercourse, other sexual conduct (as defined in IC 35-31.5-2-221.5), or any fondling or touching with the intent to arouse or satisfy the sexual desires of either the child or the adult, the person commits child seduction.I.C. § 35-42-4-7(q) (2019).

Tavitas, Chief Judge.

Weissmann, J., and Foley, J., concur.