MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                     Feb 17 2015, 10:09 am
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                                    ATTORNEY FOR APPELLEE
Patricia Caress McMath                                    Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Ian McLean
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Anthony D. Evinger,                                      February 17, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1408-CR-327
        v.                                               Appeal from the Vigo Superior
                                                         Court.
                                                         The Honorable John T. Roach,
State of Indiana,                                        Judge.
Appellee-Plaintiff                                       Cause No. 84D01-1208-FC-2875




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015   Page 1 of 9
[1]   Anthony Evinger appeals his conviction for Child Molesting,1 a class C felony.

      He argues that it was fundamental error for the trial court to allow the State to

      condition the jury in its favor during voir dire. He also contends that the trial

      court committed fundamental error when it allowed T.B. to testify to multiple

      incidents of molestation. Finding no fundamental error, we affirm.


                                                     Facts
[2]   T.B. was eight years old during the summer of 2011. Her mother arranged for

      T.B.’s great aunt, Darla Evinger, to provide after-school care for T.B. Both

      T.B. and her younger brother would go to Darla’s home when they finished

      school, and their mother would pick them up after work. Evinger is T.B.’s

      cousin, and he visited Darla’s home occasionally. Sometimes his then-fiancée,

      Samantha, would accompany him.


[3]   Sometime in 2011, T.B.’s mother began to notice a change in her behavior.

      T.B. no longer wanted to go to Darla’s home and asked to stay with her

      grandmother or another relative. While T.B. had previously lingered to speak

      with Darla when her mother arrived after work, she now insisted that they leave

      Darla’s home as soon as her mother came to collect her.


[4]   T.B. attended a YMCA camp sometime in 2012. While she was there, Terre

      Haute Police Department Lieutenant James Brentlinger visited the camp to give




      1
          Ind. Code § 35-42-4-3(b).


      Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015   Page 2 of 9
      a presentation to the children on “good touch, bad touch.” Tr. p. 342. After

      the presentation, a camp counselor told Lieutenant Brentlinger that T.B. had

      reported that she had been touched inappropriately. Lieutenant Brentlinger met

      with T.B. and arranged for her to speak with the Child Advocacy Center. T.B.

      revealed that she had been molested by her cousin, Evinger, while she was at

      Darla’s home. At this point, the investigation was transferred to the Vigo

      County Sheriff’s Department. A deputy took Evinger’s statement, wherein

      Evinger denied molesting T.B.


[5]   On September 4, 2012, the State charged Evinger with child molesting. His

      two-day jury trial began on June 9, 2014. At trial, T.B. testified regarding

      multiple instances of molestation. T.B. testified that in 2011, Evinger molested

      her at Darla’s home. Evinger would have T.B. sit on his lap on a couch in the

      living room. He would then slide his hands beneath her pants and touch her

      vagina. This occurred on seven or eight different occasions. T.B. testified that

      other children were in the room while this occurred and that, on one occasion,

      Evinger’s fiancée was also in the room. On at least one occasion, Evinger used

      a blanket to cover himself and T.B. while he touched her.


[6]   T.B. testified that the last time Evinger touched her, she refused to get on his

      lap, but Evinger forced her to do so. T.B. stated that she continued to get on

      Evinger’s lap because she trusted him, and she did not believe that he would

      continue to touch her. Evinger did not object to T.B.’s testimony.




      Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015   Page 3 of 9
[7]   The jury found Evinger guilty as charged. On July 10, 2014, the trial court

      sentenced Evinger to six years, with three years suspended to probation.

      Evinger now appeals.


                                   Discussion and Decision
[8]   Evinger argues that it was fundamental error for the trial court to allow the

      State to condition the jury during voir dire. He contends that the prosecutor

      introduced substantive facts about the case and conditioned the jury when he

      asked prospective jurors whether they would discount the testimony of a young

      child because of a delay in reporting. The trial court has broad discretionary

      power in regulating the form and substance of voir dire examination. Hopkins v.

      State, 429 N.E.2d 631, 634 (Ind. 1981). In general, the decision of the trial

      court will be reversed only if there is a showing of a manifest abuse of discretion

      and a denial of a fair trial. Logan v. State, 729 N.E.2d 125, 133 (Ind. 2000).

      “This will usually require a showing by the defendant that he was in some way

      prejudiced by the voir dire.” Id.


[9]   Voir dire examination is not to be used to educate jurors, but to ascertain

      whether jurors can render a fair and impartial verdict in accordance with the

      law and the evidence. Coy v. State, 720 N.E.2d 370, 372 (Ind. 1999). Our

      Supreme Court has stated that it is improper to use voir dire “to implant in

      jurors’ minds ideas about the substantive facts of the case being tried.” Id.

      However, it is acceptable to use voir dire “to inquire into jurors’ biases or




      Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015   Page 4 of 9
       tendencies to believe or disbelieve certain things about the nature of the crime

       itself or about the particular line of defense.” Id.


[10]   Here, Evinger failed to object to the prosecutor’s voir dire examination.

       Therefore, he must make a showing of 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 that a fair trial is rendered impossible. Ryan v. State, 9 N.E.3d

       663, 668 (Ind. 2014). In order to establish fundamental error, the defendant

       must show that, under the circumstances, the trial judge erred in not sua sponte

       raising the issue because the 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.” Id. (internal quotations

       omitted).


[11]   During voir dire examination, the prosecutor asked prospective jurors if they

       would “automatically discount the testimony of a young girl just because she

       may have waited to, to tell someone the situation” and inquired as to whether

       they would have any concerns about the delay. Tr. p. 131-33. He also told the

       jurors that “when you’re talking about a child and an older individual, it’s not

       uncommon for someone to delay in reporting.” Tr. p. 130. The prosecutor

       continued on, asking jurors to provide reasons as to why a child might not

       immediately report a molestation. Some of the answers provided included

       “embarrassment,” “because they’re scared,” and “they think they may not be

       believed.” Id. at 131.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015   Page 5 of 9
[12]   As noted above, the State was entitled to use voir dire “to inquire into jurors’

       biases or tendencies to believe or disbelieve certain things about the nature of

       the crime itself or about the particular line of defense.” Hopkins, 429 N.E.2d at

       635. The State was free to question the prospective jurors concerning their

       biases, just as Evinger was free to question the prospective jurors regarding

       possible prejudices in favor of children who may have been molested. Tr. p. 59-

       60. Therefore, the State could properly ask prospective jurors whether they

       would discount the testimony of a young child because of a delay in reporting.

       However, the prosecutor’s statements informing the jury about the tendencies

       of children to delay are concerning, as they are uncomfortably close to the line

       between inquiring and informing. While we would caution counsel to be

       mindful of this distinction, we do not find that it rose to the level of

       fundamental error such that a fair trial was rendered impossible.


[13]   Evinger also argues that fundamental error occurred when the trial court

       allowed T.B. to testify to multiple incidents of molestation. He maintains that

       this evidence was introduced in violation of Indiana Rule of Evidence 404(b).

       The admission of evidence at trial is a matter left to the discretion of the trial

       court. Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). We review these

       determinations for abuse of that discretion, and will reverse only when

       admission is clearly against the logic and effect of the facts and circumstances

       and the error affects a party’s substantial rights. Id. at 260.


[14]   Evinger did not object to T.B.’s testimony at the time of trial, but he contends

       that the trial court’s decision to allow T.B. to testify regarding multiple

       Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015   Page 6 of 9
       incidents of molestation amounts to fundamental error. As noted above,

       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 that a fair trial is rendered impossible.

       Ryan, 9 N.E.3d at 668.


[15]   Evinger contends that, as he was only charged with one count of child

       molesting, it was fundamental error for the trial court to allow T.B. to testify to

       multiple instances of molestation in violation of Rule 404(b). Rule 404(b)

       provides that “[e]vidence of a crime, wrong, or other act is not admissible to

       prove a person’s character in order to show that on a particular occasion the

       person acted in accordance with the character.” Evinger alleges that the State

       introduced evidence of prior bad acts to show that he has a propensity to molest

       and that he acted in accordance with that propensity to commit the charged

       crime.


[16]   To bolster his argument, Evinger attempts to distinguish his case from a line of

       cases including Garner v. State, 754 N.E.2d 984, 993 (Ind. Ct. App. 2001), and

       Marshall v. State, 893 N.E.2d 1170, 1175 (Ind. Ct. App. 2008). In both cases, a

       panel of this Court determined that the trial court did not err in admitting

       evidence of repeated incidents of molestation, as those incidences fell within the

       charged time period and therefore constituted direct evidence of the crime

       charged. Id. Evinger argues that his case is distinguishable because both

       Marshall and Garner were charged with multiple counts of child molesting,

       while he was charged only with one. Evinger seems to be arguing that evidence

       Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015   Page 7 of 9
       of multiple incidents of molestation may only be admitted into evidence against

       a defendant charged with multiple counts of child molesting.


[17]   Evinger has misinterpreted both Garner and Marshall, and the instant case is not

       distinguishable. In both of the above cases, testimony regarding repeated

       molestations that outnumbered the charged counts of child molesting was

       allowed into evidence. Garner, 754 N.E.2d at 992; Marshall, 893 N.E.2d at

       1175-76. In both cases, this Court determined that the evidence was not

       admitted to show that the defendant acted in accordance with character to

       commit the crime, but rather, to show that the defendant committed the

       crime(s) charged. See. id. at 1175. (“[T]he evidence in the present case was not

       presented to establish an exception to 404(b), such as motive or intent or plan;

       rather, it was presented as direct evidence of the charged molestations.”).


[18]   Therefore, the admissibility of such evidence does not turn on the number of

       charged counts of child molesting, as Evinger would have it. Rather,

       admissibility is dependent upon the purpose for which the evidence is being

       offered. Here, the State presented evidence that Evinger touched T.B. on

       multiple occasions within the charging dates, not to prove that he had the

       propensity to molest T.B., but to show that he committed the crime charged.2

       Therefore, the trial court did not err in admitting T.B.’s testimony.




       2
        Furthermore, Evinger has shown that T.B.’s testimony does not amount to fundamental error by using it to
       bolster his defense. During closing argument, defense counsel argued that T.B.’s testimony that Evinger
       molested her numerous times made T.B.’s entire testimony implausible:

       Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015        Page 8 of 9
[19]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Riley, J., concur.




                Next [T.B.] testified that Anthony was sitting on the couch, and she would go sit on the
                couch with him, and she did this not once, not twice, not three (3) times, not four (4)
                times, not five (5) times, not six (6) times, but seven (7) or eight (8) times. . . . A ten (10)
                year old knows enough that if you touch a stove and it’s hot and it burns, you don’t go
                back and touch it again. And if there’s someone who’s sitting on the couch who you
                claim is molesting you, you don’t go back and sit on that couch with him. It does not
                make sense.
       Tr. p. 452-53. In Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014), our Supreme Court stated that, “if the
       judge could recognize a viable reason why an effective attorney might not object, the error is not blatant
       enough to constitute fundamental error.” Here, it is clear that Evinger used T.B.’s testimony of multiple
       incidents of molestation to claim that she was not a credible witness as a part of his defense strategy.
       Therefore, there is a clearly a strategic, viable reason why defense counsel might not have objected, and any
       error would not have risen to the level of fundamental error.



       Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015                     Page 9 of 9
