MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              Dec 10 2015, 9:41 am
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                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Gregory F. Zoeller
Wieneke Law Office, LLC                                 Attorney General of Indiana
Plainfield, Indiana
                                                        Justin F. Roebel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Thomas H. Molina,                                       December 10, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        84A05-1504-CR-164
        v.                                              Appeal from the Vigo Superior
                                                        Court
State of Indiana,                                       The Honorable David R. Bolk,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        84D03-1402-FA-520



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015     Page 1 of 7
[1]   Thomas H. Molina (“Molina”) was convicted after a jury trial of child

      molesting1 as a Class A felony, child molesting2 as a Class C felony, and one

      count of child solicitation3 as a Class D felony and sentenced to an aggregate

      term of thirty years executed. He appeals, raising the following restated issue:

      Whether the trial court’s admission of video evidence pursuant to Indiana

      Evidence Rule 404(b) constituted fundamental error.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In 2010, when C.H. was eleven years old, she lived with her mother and

      stepfather, Molina. At that time, C.H.’s mother was pregnant with Molina’s

      child. In January 2014, C.H. made an allegation of sexual abuse to the

      authorities. C.H. told police that, in 2010, Molina asked her if she wanted to

      have sex with him on several occasions. Additionally, during the same period

      in 2010, Molina instructed C.H. to go into the bedroom with him, and he

      touched her with a vibrator outside her clothing in the vaginal area. Molina

      then put his hand down C.H.’s pants, and she felt him digitally penetrate her.

      When C.H. told Molina to stop, he complied, but became very angry with her




      1
          Ind. Code 35-42-4-3(a)(1).
      2
          Ind. Code 35-42-4-3(b).
      3
          Ind. Code 35-42-4-6(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015   Page 2 of 7
      and told her to leave. No further sexual contact occurred between C.H. and

      Molina after this incident.


[4]   The police also spoke to C.H.’s mother, who later provided them with a video

      camcorder, which she believed had only been used by Molina. The police

      discovered that the camcorder’s memory contained two videos of C.H. that

      appeared to have been filmed through a crack in the bathroom floor of the

      home in which Molina lived with C.H. and C.H.’s mother. The brief videos

      show C.H. toweling-off after a shower and include images of her naked pubic

      area and chest. Additionally, the record shows that Molina purchased the

      camcorder, and no one in the household other than Molina could have filmed

      the videos at issue.


[5]   On February 28, 2014, the State charged Molina with child molesting as a Class

      A felony, child molesting as a Class C felony, and two counts of child

      solicitation, each as a Class D felony. Prior to trial, Molina filed a motion in

      limine under Indiana Evidence Rule 404(b) to prohibit any allegations or

      exclude any evidence that did not involve the victim of the charged offenses,

      C.H. The trial court granted Molina’s request.


[6]   A jury trial was held on February 24 and 25, 2015. During the trial, Molina did

      not object to testimony regarding the two videos. However, Molina objected to

      the admission of the actual videos arguing that they were irrelevant, unduly

      prejudicial, and the chain of custody was insufficient. The trial court admitted

      the videos over Molina’s objections.


      Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015   Page 3 of 7
[7]   At the conclusion of the trial, the jury found Molina guilty of child molesting as

      a Class A felony, child molesting as a Class C felony, and one count of child

      solicitation as a Class D felony. Molina was later sentenced to thirty years for

      child molesting as a Class A felony, four years for child molesting as a Class C

      felony, and eighteen months for child solicitation as a Class D felony. The trial

      court ordered the three sentences to be served concurrently for an aggregate

      sentence of thirty years executed. Molina now appeals.


                                Discussion and Decision
[8]   Molina argues that the trial court erroneously admitted evidence consisting of

      two surreptitiously filmed videos of C.H. bathing. The trial court has broad

      discretion in ruling on the admission or exclusion of evidence. Gutierrez v. State,

      961 N.E.2d 1030, 1034 (Ind. Ct. App. 2012). On review, we will only disturb

      such a ruling upon a showing of an abuse of discretion by the trial court. Id.

      An abuse of discretion occurs when the trial court’s ruling is clearly against the

      facts, logic, and circumstances presented. Oatts v. State, 899 N.E.2d 714, 719

      (Ind. Ct. App. 2009). However, as Molina recognizes, he did not adequately

      preserve the issue for appeal because he failed to object to the initial testimony

      describing the videos. To avoid waiver of review, Molina invokes the

      fundamental error doctrine, which permits appellate review of otherwise

      procedurally deficient claims. Sasser v. State, 945 N.E.2d 201, 203 (Ind. Ct.

      App. 2011), trans. denied. The fundamental error doctrine is extremely narrow

      and requires an error “so prejudicial that a fair trial is impossible.” Southward v.

      State, 957 N.E.2d 975, 977 (Ind. Ct. App. 2011). “Blatant violations of basic

      Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015   Page 4 of 7
       principles, coupled with substantial actual or potential harm and the denial of

       due process constitutes fundamental error.” Id.


[9]    Molina asserts that the videos were inadmissible character evidence pursuant to

       Indiana Evidence Rule 404(b). He argues that the video evidence was

       improperly used to show Molina’s propensity to sexually abuse C.H. and his

       sexual depravity. Indiana Evidence Rule 404(b) provides that “[e]vidence of

       other crimes, wrongs, or acts is not admissible to prove the character of a

       person in order to show action in conformity therewith.” Such evidence,

       however, may be admissible for other purposes including, proof of motive, or to

       help the jury understand the defendant’s relationship with the victim. See

       Southward, 957 N.E.2d at 977. “In assessing the admissibility of Evidence Rule

       404(b) evidence, the trial court must (1) determine whether the evidence of

       other crimes, wrongs, or acts is relevant to a matter at issue other than the

       defendant’s propensity to commit the charged act; and (2) balance the probative

       value of the evidence against its prejudicial effect.” Baker v. State, 997 N.E.2d

       67, 70 (Ind. Ct. App. 2013). The well-established rationale behind the rule is

       “to prevent the jury from assessing a defendant’s present guilt on the basis of his

       propensities -- the so-called forbidden inference.” Ceaser v. State, 964 N.E.2d

       911, 915 (Ind. Ct. App. 2012).


[10]   The State argues that the video evidence illustrated how Molina “sexualized his

       juvenile stepdaughter,” and is direct evidence of Molina’s “motive to commit

       the charged crimes and [his] relationship with C.H.” Appellee’s Br. at 7, 10. We

       agree. Here, the videos show the same victim as the charged offenses in the

       Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015   Page 5 of 7
       same home in which C.H. and Molina were living during the relevant time

       period. Moreover, Molina admits that the “creator of the videos . . . clearly . . .

       intended to use the videos for his own sexual desires.” Id. at 11.


[11]   Additionally, Molina claims that the videos were irrelevant and unrelated to the

       offenses in question because they were created some time after the offenses took

       place. Specifically, Molina contends that the “content of the videos could not

       have been the impulse that induced [him] to commit the offenses because they

       were created after the offenses occurred.” We disagree. “Although cases

       typically involve the issue of whether prior bad acts of the defendant are

       admissible, the wording of Trial Rule 404(b) does not suggest that it only

       applies to prior bad acts and not subsequent ones.” Southern v. State, 878

       N.E.2d 315, 322 (Ind. Ct. App. 2007) (emphasis in original), trans. denied.

       Therefore, when determining the admissibility of evidence of subsequent crimes

       or wrongs, it is appropriate to use the Indiana Evidence Rule 404(b) test. Id.


[12]   While the video evidence that was admitted at trial was undoubtedly

       prejudicial, it was also highly probative of Molina’s perpetration of the charged

       of offenses. The videos of C.H. surreptitiously taken by Molina were relevant

       direct evidence of Molina’s relationship with C.H. and motive. Finding that

       the evidence is admissible under Indiana Evidence Rule 404(b), we conclude

       that Molina failed to establish fundamental error on this point.


[13]   Finally, Molina argues that the trial court erred when it admitted the video

       evidence under Indiana Evidence Rule 404(b) without a limiting instruction.


       Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015   Page 6 of 7
       However, as Molina recognizes, he did not request that a limiting instruction be

       given at the time the evidence was admitted. Consequently, Molina must show

       that the court’s failure to issue a limiting instruction was fundamental error in

       order to avoid waiver of review.


[14]   “Our evidence rules place the onus for securing a limiting admonition on the

       parties.” Humphrey v. State, 680 N.E.2d 836, 839 (Ind. 1997). Indiana Evidence

       Rule 105 provides that “[w]hen evidence [that] is admissible . . . for one

       purpose but not admissible . . . for another purpose is admitted, the court, upon

       request, shall restrict the evidence to its proper scope and admonish the jury

       accordingly.” (Emphasis added). The trial court is not precluded from giving a

       limiting instruction sua sponte, but Indiana Evidence Rule 105 does not impose

       an affirmative duty to do so. Humphrey, 680 N.E.2d at 839. Additionally, there

       are policy reasons for leaving the decision of securing a limiting instruction on

       the parties. Id. There are some cases where trial strategy may dictate not

       requesting a limiting instruction because it may do more harm than good by

       highlighting an undesirable aspect of the evidence for the jury. Id. Imposing a

       sua sponte duty on trial courts to instruct the jury whenever a limited

       admissibility situation arises would effectively take strategic decisions better left

       to the parties out of their hands. Id. Accordingly, the trial court did not err, nor

       did it commit a fundamental error, when it failed to give a limiting instruction

       sua sponte. Affirmed.


       Najam, J., and Barnes, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015   Page 7 of 7
