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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: KENNETH R. MARTIN Goshen, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana

FILED
Dec 10 2008, 9:36 am

IN THE COURT OF APPEALS OF INDIANA
SHANE L. CUMMINGS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

of the supreme court, court of appeals and tax court

CLERK

No. 20A05-0808-CR-476

APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable George W. Biddlecome, Judge Cause No. 20D03-0403-FB-59

December 10, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Shane L. Cummings appeals his conviction for class B felony sexual misconduct with a minor.1 We affirm. Issues Cummings raises two issues, which we restate as follows: I. Whether the trial court abused its discretion in denying his motion for mistrial; and Whether the prosecutor committed misconduct that constitutes fundamental error. Facts and Procedural History The facts most favorable to the verdict follow. In February 2004, Cummings lived with his half-sister, J.F., in his isolated Elkhart home. He was over twenty-five years old, and she was fifteen. J.F. had been living with Cummings since she was ten or eleven years old. Their relationship resembled that of a husband and wife rather than a brother and a sister. Cummings took care of J.F., buying her food and clothing. The clothing Cummings bought J.F. to wear was age-inappropriate. J.F. did not have her own bedroom and slept with Cummings in his bed. After the eighth grade, J.F. stopped attending school and was homeschooled by Cummings. Around Valentine's Day, J.F. planned a trip with her older sister, Shannon Elliott, to visit their mother in Tennessee. About a week before the trip, J.F. was packing for the trip. Cummings became angry about her leaving, "punching holes in the walls and breaking

II.

1

See Ind. Code

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