MYERS v. STATE (2026)

MEMORANDUM DECISION

[1] Kenneth Myers repeatedly molested his two step-granddaughters over a roughly three-year period. For this, he was convicted of four counts of Level 4 felony child molesting and sentenced to a total of 28 years in prison, with 4 years suspended to probation. Myers appeals, claiming the deputy prosecutor impermissibly vouched for the children's credibility during closing arguments at trial. He also challenges his sentence as inappropriate in light of the nature of his offenses and his character. We affirm.

Facts

[2] Myers married in 2014 and became the step-grandfather of his wife's three grandchildren: two granddaughters, I.B. and J.C., and one grandson, W.B. (collectively, Children). Children were all under the age of four when Myers married, and throughout their childhood, they often visited Myers's home. They called him “Papaw Kenny.” Tr. Vol. II, pp. 101, 151.

[3] While on spring break from school in 2022, Children spent a week at Myers's home in Indiana followed by a week in Ohio visiting a family friend, Erica Martin, and her teenage children, Damian and Kimberlyn. One day, while in Ohio, W.B. disclosed to Damian something about Myers that made Damian notify Kimberlyn. Kimberlyn, in turn, spoke with I.B., who disclosed that Myers had touched her vagina on multiple occasions, including once during her stay at his home the week prior. Concerned, Kimberlyn called Children's mother and tried to have I.B. speak with her. I.B., however, was crying uncontrollably and unable to speak. Kimberlyn therefore had W.B. tell his mother why I.B. was so upset.

[4] The next day, J.C. learned generally that some information had come to light. She “instantly freaked out,” looked at I.B., and asked, “[W]hat did you say[?]” Id. at 195. Kimberlyn then sat down with J.C. to talk. During their conversation, J.C. disclosed that Myers had touched her vagina on multiple occasions, including twice during her stay at his home the week prior. J.C., as well as I.B. and W.B., also told Kimberlyn that Myers had threatened them and said not to tell anyone about the abuse.

[5] Police were promptly notified of Children's disclosures, and Children soon underwent forensic interviews. During these interviews, I.B. and J.C. both reported being molested by Myers, and W.B. reported being aware of the abuse. Myers denied the allegations when interviewed by police. But the State eventually charged him with four counts of Level 4 felony child molesting: two as to I.B., and two as to J.C.

[6] By the time of trial, I.B. was ten years old, W.B. was twelve, and J.C. was fourteen. I.B. and J.C. testified that they were around four and nine years old, respectively, when Myers began molesting them. Both described the same pattern of abuse: Myers would put his hand inside their pants and touch the outside of their vaginas with his fingers while they watched television at Myers's home. I.B. recalled more than five separate times when this happened. J.C. recalled at least three. According to I.B. and J.C., the abuse sometimes occurred in the presence of each other as well as W.B.

[7] The jury ultimately found Myers guilty of all four counts of child molesting, and the trial court entered judgments of conviction accordingly. The court later sentenced Myers to 7 years in prison on each count and ordered the sentences to run consecutively, for a total sentence of 28 years. The court, however, suspended 4 years to probation.

Discussion and Decision

[8] Myers appeals his child molesting convictions, arguing that the State committed prosecutorial misconduct during closing arguments. He also challenges his 28-year total sentence as inappropriate in light of the nature of the offenses and his character. Neither claim prevails.

I. Prosecutorial Misconduct

[9] Myers argues that the State committed prosecutorial misconduct when, during closing arguments, the deputy prosecutor purportedly vouched for Children's credibility. “When reviewing a claim of prosecutorial misconduct, we will first determine whether the prosecutor engaged in misconduct.” Brummett v. State, 10 N.E.3d 78, 83 (Ind. Ct. App. 2014). “If this Court finds that there has been misconduct, we then determine ‘whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he should not have been subjected.’ ” Id. (quoting Carter v. State, 956 N.E.2d 167, 169 (Ind. Ct. App. 2011)).

[10] But to preserve a claim of prosecutorial misconduct, “the defendant must both object to the alleged misconduct and request an admonishment and move for a mistrial.” Brummett, 10 N.E.3d at 83. Myers did not object to the State's alleged vouching during closing statements and, thus, did not properly preserve his claim. The claim is therefore waived unless Myers can establish that the alleged prosecutorial misconduct amounted to fundamental error. See Booher v. State, 773 N.E.2d 814, 818 (Ind. 2002). “Fundamental error is a ‘substantial, blatant violation of due process’ so prejudicial to the rights of the defendant that it renders a fair trial impossible.” Brummett, 10 N.E.3d at 83-84 (quoting Hall v. State, 937 N.E.2d 911, 913 (Ind. Ct. App. 2010)).

[11] Myers contends the deputy prosecutor made ten statements during closing arguments that impermissibly vouched for Children's credibility. See infra ¶ 14 (challenged statements bolded). But beyond quoting those statements and reciting the legal standard for vouching, he does not develop his prosecutorial misconduct claim. His entire argument on the vouching issue states: “During closing argument, the State committed several instances of prosecutorial misconduct by improperly vouching for witnesses.” Appellant's Br., p. 13. And he only mentions grave peril and fundamental error in the overall conclusion of his appellate brief, stating: “The prosecutorial misconduct of vouching for witnesses amounted to fundamental error, placing Meyers [sic] in grave peril.” Id. at 16.

[12] Indiana Appellate Rule 46(A)(8)(a) requires that an appellant's brief include the contentions of the party supported by cogent reasoning with citations to relevant authorities and the record. A party who fails to provide that analysis waives the argument for appellate review. Hollingsworth v. State, 987 N.E.2d 1096, 1098-99 (Ind. Ct. App. 2013). Here, Myers has waived his claim of prosecutorial misconduct by failing to articulate how the deputy prosecutor's statements constituted vouching, placed Myers in grave peril, and amounted to fundamental error.

[13] Waiver notwithstanding, the challenged statements of the deputy prosecutor did not constitute vouching. “It is the fact-finder's role to determine the truthfulness of witnesses.” Brummett, 10 N.E.3d at 86. Thus, “[a] prosecutor may not state his or her personal opinion regarding the credibility of a witness during trial.” Id. “[S]uch statements amount to vouching for a witness.” Id. But vouching does not occur when a prosecutor's credibility statements are “based on reasons arising from the evidence presented at trial.” Id.

[14] Here, during closing arguments, Myers's defense counsel urged the jury to find reasonable doubt based on what he characterized as “inconsistencies, exaggerations, and absurdities” in Children's testimony. Tr. Vol. III, p. 137. Then, in rebuttal, the deputy prosecutor argued:

․ What exaggerations? These girls testified that he touched them underneath their underwear on their vaginas. They didn't accuse him of fingering. They didn't accuse him of making them perform or making them to perform oral sex on him. They didn't perform sexual intercourse. They didn't accuse him of all kinds of things that they could've accused him of if it was a lie if they were telling the truth. So, what exaggerations is he talking about? J.C. testified that she never saw it happening to I.B. If they were coming in here and just making this up then why not saying, [sic] “Oh yeah he did all this other stuff to us to.” “And oh yeah I did see what he did to my sister.” They didn't testify to that, they told you the truth. These are not exaggerations this is the truth. Their testimony has the ring of truth to it. Again, if they were going to falsely accuse him, why not accuse him of something more serious and something more in greater detail. Why have the difficulty remembering some of the things that you did if it's a lie. Think about their testimony and think about the way they acted when they testified. I.B. started crying at one point. She had trouble remembering some details․ So, you should absolutely consider the evidence. I'm not trying to explain with the inconsistencies, again I acknowledge them. But what is a reasonable conclusion to be drawn from the inconsistencies. One (1) reasonable conclusion could be it's not reasonable when you look at it in the totality of everything else, it's a unreasonable conclusion to think these kids are lying because there [sic] other things and their behavior on the stand, their behavior when they disclose, when I.B. disclosed she was bawling crying uncontrollably at Erica Martin's house. A seven (7) years [sic] child talking to her cousins about what happened. You can consider that, and you know the reasonable conclusion is she's telling the truth. The inconsistencies are due to repression of these memories because of the trauma it caused her and continues to cause her. That's what the reasonable conclusion is. The reasonable conclusion is not that this girl is lying about this stuff․ Even when they did disclose, they didn't go and tell adults, they told teenagers, their cousins about [it] and then it got brought to light. When J.C. found out that I.B. had said something she was like “What did you say?” She knew what she said. That was not like she was truly like, “What did you say?” She was like, “Oh my God you said something.” That's basically the content of what she meant by that and then she freaked out and then she told Erica Martin and her mother what was happening. So, yeah what the kids said has the real truth. Were there some inconsistencies, yes. What's the reason for the inconsistencies and I'm not asking you to speculate, I'm asking you to use your common sense about it. I'm not trying to explain it away or have you like sort of like ignore it. Think about it and think the only reasonable conclusion to draw from that is again like the trauma, repressed memories and the fact that it happened when these kids were very, very young․ It's reasonable [to] conclude that the again the inconsistencies can be contributed to the passage of time, their traumatic memories, again every child is different․ We weren't there, we didn't see them disclose to them, but a reasonable conclusion is that those people, Damian, Kimberlin [sic], Erica, [and Children's mother] all believed the kids when the kids told them what was going on, what was happening because they acted on that information. That's a reasonable conclusion․ Do you think the kids are telling the truth because you know they believe these kids are telling the truth because of the way they acted on information and they're still coming to court, three (3) years later and accusing them of touching them right. That would make no sense. They haven't seen him in three (3) years, why would they continue to say this stuff if it wasn't true. There's no evidence that anyone put these kids up to saying this or coached them as to what to say. There's no evidence of that. Just look at the way the disclosure happened again [W.B.] is the first person who told a teenager or an adult, right. J.C. was like, “What did you say?” You know think about that. They have no reason to falsely accuse the Defendant. Even the Defendant admits that. There's not reason for them to say this unless it's true. No reason at all. They haven't seen him in three (3) years. By his explanation he's a great grandpa and they love him so much they hug him and want to live with him and stuff like that. You know what would they be accusing him of this kind of stuff five (5) days after they left his house if it wasn't true. Again, no evidence of anybody else putting them up to it or coaching them to say this stuff. No motive. Again, I'm not asking you to go back there and speculate, you shouldn't. Remember the Judge's instructions, don't go back there and start what if'ing. “How do we know, maybe there's a whatever”. No, it's the evidence that's admitted at this trial, the reasonable conclusion that can be drawn from that evidence and the reasonable conclusions in the evidence point to one (1) verdict and that's guilty right and even he admits they've got no reason to falsely accuse him of this stuff.

Id. at 142-50 (bolding added).

[15] Myers contends the bolded statements above constitute vouching. But each is tied to the evidence presented at trial. In context, the deputy prosecutor made the statements while: (1) arguing that the limited scope of Children's allegations undermined the defense's exaggeration claim; (2) offering a record-based explanation for Children's inconsistencies, such as trauma, repressed memory, and lapse of time; (3) pointing to the corroborating conduct of adults who acted on Children's disclosures; and (4) noting the absence of any evidence that Children had a motive to lie.

[16] For these reasons, the challenged statements do not constitute vouching, and there was neither prosecutorial misconduct nor fundamental error.

II. Appropriateness of Sentence

[17] Myers next challenges his 28-year sentence as inappropriate under Indiana Appellate Rule 7(B). That rule permits an appellate court to revise a sentence if, “after due consideration of the trial court's decision, the sentence is found to be inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). In reviewing the appropriateness of a sentence, our principal role is to attempt to leaven the outliers, not to achieve a perceived “correct” sentence. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014). Accordingly, we give “substantial deference” to the trial court's sentencing decision. Id. The trial court's judgment should prevail unless it is “overcome by compelling evidence portraying in a positive light the nature of the offense ․ and the defendant's character.” Stephenson v. State, 29 N.E.3d 111, 112 (Ind. 2015).

[18] In assessing the appropriateness of a sentence in light of the nature of the offense, we first look to the statutory range established for that class of offense. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. Myers was convicted of four Level 4 felonies, each of which had a sentencing range of 2 to 12 years and an advisory sentence of 6 years. Ind. Code § 35-50-2-4.5. The trial court sentenced Myers to 7 years on each felony, 1 year above the advisory and 5 years below the maximum. The court then ordered that Myers serve each sentence consecutively, for a total of 28 years. However, the court suspended 4 years of this sentence to probation.

[19] Myers does not attempt to explain why his sentence is inappropriate in light of the nature of his offenses, and for good reason. He abused his position of trust as the step-grandfather of I.B. and J.C.—their “Papaw Kenny”—by repeatedly molesting them over a three-year period. Though Myers was convicted of molesting I.B. and J.C. on only two occasions each, the evidence showed that he committed the offense more than five times against I.B. and at least three times against J.C. See generally Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App. 2005) (recognizing abuse of a trust and serial nature of offenses as valid aggravating circumstances). The evidence also showed that Myers sometimes molested I.B. and J.C. in the presence of each other as well as W.B. See generally Redden v. State, 850 N.E.2d 451, 465 (Ind. Ct. App. 2006) (recognizing commission of a crime in the presence of children as a valid aggravating circumstance).

[20] As for his character, Myers emphasizes his lack of criminal history and notes that his pre-sentence investigation report deems him at low risk of reoffending. Myers also contends that his prior employment as a corrections officer and an unspecified back condition will place an undue hardship on him during incarceration. But these factors do not compel us to grant Myers sentencing relief. See generally Lane v. State, 232 N.E.3d 119, 127 (Ind. 2024) (“[T]o the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.”).

[21] In the end, we do not find Myers's 28-year sentence, with 4 years suspended to probation, inappropriate in light of the nature of his offenses and his character.

Conclusion

[22] We affirm Myers's four Level 4 felony child molesting convictions as well as his 28-year total sentence thereon.

Weissmann, Judge.

Tavitas, C.J., and Foley, J., concur.