MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                      FILED
this Memorandum Decision shall not be                            Jan 12 2017, 8:31 am

regarded as precedent or cited before any                             CLERK
                                                                  Indiana Supreme Court
court except for the purpose of establishing                         Court of Appeals
                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Gonser,                                          January 12, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         61A04-1606-CR-1511
        v.                                               Appeal from the Parke Circuit
                                                         Court
State of Indiana,                                        The Honorable Samuel A. Swaim,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         61C01-1510-F6-224
                                                         61C01-1511-CM-442



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 61A04-1606-CR-1511 | January 12, 2017   Page 1 of 6
                                Case Summary and Issue
[1]   Michael Gonser was convicted of performing sexual conduct in the presence of

      a minor, a Level 6 felony. Gonser appeals, raising one issue for our review:

      whether the trial court committed fundamental error by failing to properly

      instruct the jury as to the requisite mental state of the offense. Finding no error

      in the trial court’s instruction of the jury, we affirm Gonser’s conviction.



                            Facts and Procedural History
[2]   On October 19, 2015, Gonser was at home watching his stepchildren, including

      seven-year-old H.C. When his wife, Lisa, arrived home from work, she found

      Gonser standing next to H.C.’s bed wearing only his underwear. Gonser was

      standing near H.C. and masturbating. Lisa noticed H.C. was still asleep, but

      that her pants and underwear were pulled down so her buttocks were exposed.

      Lisa then called the police.


[3]   The State charged Gonser with performing sexual conduct in the presence of a

      minor, a Level 6 felony. At trial, the trial court’s final jury instructions included

      the following:


              Final Instruction No. 4

              The crime of Performing Sexual Conduct in the Presence of a
              Minor is defined by law as follows:

              A person eighteen (18) years of age or older who knowingly
              touches or fondles the person’s own body in the presence of a
              child less than fourteen (14) years of age with the intent to arouse
              or satisfy the sexual desires of the older person commits
      Court of Appeals of Indiana | Memorandum Decision 61A04-1606-CR-1511 | January 12, 2017   Page 2 of 6
              Performing Sexual Conduct in the Presence of a Minor. A Level
              6 Felony.

              Before you may convict [Gonser] the State must have proved
              each of the following elements beyond a reasonable doubt:

                       1. [Gonser]
                       2. knowingly
                       3. touched or fondled [Gonser’s] own body
                       4. in the presence of H.C., who was at the time less than
                          fourteen (14) years of age
                       5. with the intent to arouse or satisfy the sexual desires of
                          [Gonser].


      Appellant’s Appendix at 70. At trial, Gonser did not object to Final Instruction

      No. 4. The jury found Gonser guilty of performing sexual conduct in the

      presence of a minor. Gonser now appeals.



                                 Discussion and Decision
[4]   Gonser’s sole claim is that the trial court committed fundamental error by

      failing to instruct the jury “on the specific intent Gonser had to possess in order

      to be found guilty of the offense.” Brief of Appellant at 8. Gonser asserts

      Indiana Code section 35-42-4-5(c)(3) requires “the State prove [Gonser’s] sexual

      desires were satisfied by the presence of the child and not just by the sexual

      conduct[,]” id. at 7, and failure to instruct the jury on this element constituted

      fundamental error.


[5]   The manner of instructing a jury is left to the sound discretion of the trial court.

      Quiroz v. State, 963 N.E.2d 37, 41 (Ind. Ct. App. 2012), trans. denied. On appeal,

      we will not reverse the trial court’s ruling unless the instructional error is such

      Court of Appeals of Indiana | Memorandum Decision 61A04-1606-CR-1511 | January 12, 2017   Page 3 of 6
      that the charge to the jury misstates the law or otherwise misleads the jury. Id.

      Jury instructions are to be considered as a whole and in reference to one

      another, and even an erroneous instruction will not constitute reversible error if

      the instructions, taken as a whole, do not misstate the law or otherwise mislead

      the jury. Id.


[6]   Gonser admits he did not object to the jury instruction he now claims is

      improper. This failure to object waives the issue for purposes of appeal. Id. at

      42 (citing Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011)). Gonser attempts

      to avoid this waiver by claiming the trial court’s instructions constituted

      fundamental error. As we explained in Quiroz:


              The fundamental error doctrine provides a vehicle for the review
              of error not properly preserved for appeal. In order to be
              considered fundamental, the error must represent a blatant
              violation of basic principles rendering the trial unfair to the
              defendant and thereby depriving the defendant of fundamental
              due process. The error must be so prejudicial to the defendant’s
              rights as to make a fair trial impossible. In considering whether a
              claimed error denied the defendant a fair trial, we determine
              whether the resulting harm or potential for harm is substantial.
              Harm is not shown by the fact that the defendant was ultimately
              convicted; instead, harm is determined by 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 would have been entitled.


[7]   Id. (internal citations omitted). Our supreme court has emphasized the

      fundamental error exception to the requirement of a contemporaneous

      objection is “extremely narrow” and “is available only in egregious

      Court of Appeals of Indiana | Memorandum Decision 61A04-1606-CR-1511 | January 12, 2017   Page 4 of 6
      circumstances.” Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013) (citations

      omitted).


[8]   The trial court did not err in instructing the jury, much less commit

      fundamental error. Indiana Code section 35-42-4-5(c)(3) states,


              (c) A person eighteen (18) years of age or older who knowingly
              or intentionally:

              ***

              (3) touches or fondles the person’s own body . . . in the presence
              of a child less than fourteen (14) years of age with the intent to
              arouse or satisfy the sexual desires of the child or the older person
              commits performing sexual conduct in the presence of a minor
               ....


      Final Jury Instruction No. 4, in relevant part, states as follows:


              Before you may convict [Gonser] the State must have proved
              each of the following elements beyond a reasonable doubt:

              1. [Gonser]
              2. knowingly
              3. touched or fondled [Gonser’s] own body
              4. in the presence of H.C., who was at the time less than
                 fourteen (14) years of age
              5. with the intent to arouse or satisfy the sexual desires of
                 [Gonser].


      Appellant’s App. at 70. This instruction tracks the statutory language setting

      forth the elements of the offense. Indiana Code section 35-42-4-5(c)

      criminalizes sexual conduct “performed in the presence of a child under the age

      of fourteen when the conduct was done in the presence of such a child with the


      Court of Appeals of Indiana | Memorandum Decision 61A04-1606-CR-1511 | January 12, 2017   Page 5 of 6
       intent to arouse or satisfy the sexual desires of either the defendant or the child.”

       Baumgartner v. State, 891 N.E.2d 1131, 1138 (Ind. Ct. App. 2008) (emphasis in

       original). Contrary to Gonser’s assertion, the statute does not require proof his

       sexual desires were aroused or satisfied by the child’s presence, and the trial

       court did not err in failing to instruct the jury on that element.



                                               Conclusion
[9]    The trial court did not commit fundamental error and Gonser’s conviction is

       affirmed.


[10]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 61A04-1606-CR-1511 | January 12, 2017   Page 6 of 6
