MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                Apr 04 2019, 8:03 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
James E. Harper                                           Curtis T. Hill, Jr.
HARPER & HARPER                                           Attorney General of Indiana
Valparaiso, Indiana
                                                          J.T. Whitehead
                                                          Supervising Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony A. Mashburn,                                      April 4, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-472
        v.                                                Appeal from the La Porte Superior
                                                          Court
State of Indiana,                                         The Honorable Michael S. Bergerson,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          46D01-1506-FA-11



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019                      Page 1 of 14
                                           Case Summary
[1]   Following a jury trial, Anthony A. Mashburn (“Mashburn”) was convicted of

      four counts of Child Molesting: two Class A felonies1 and two Class C felonies.2

      Mashburn now appeals.


[2]   We affirm.



                                                    Issues
[3]   Mashburn presents the following restated issues:


                 I.        Whether insufficient evidence supports the convictions
                           because the victim’s testimony was incredibly dubious.


                 II.       Whether remarks during closing arguments amounted to
                           prosecutorial misconduct, constituting impermissible
                           commentary on Mashburn’s decision not to testify at trial.


                 III.      Whether the court committed reversible error in giving a
                           jury instruction concerning evidence of penetration.


                                 Facts and Procedural History
[4]   In 2015, the State charged Mashburn with five counts of Child Molesting—

      three Class A felonies and two Class C felonies—alleging Mashburn molested




      1
          Ind. Code § 35-42-4-3(a)(1).
      2
          I.C. § 35-42-4-3(b).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019    Page 2 of 14
      his former step-daughter, K.J., between February 1, 2005, and January 1, 2011,

      when K.J. was under fourteen years old and Mashburn was at least twenty-one

      years old. With respect to the Class A felony counts, the State alleged

      Mashburn “did perform sexual intercourse” (Count I); “did perform deviate

      sexual conduct” (Count II); and “did submit to deviate sexual conduct” (Count

      III). App. Vol. II at 34. As to the Class C felony counts, the State alleged

      Mashburn, “with intent to arouse or to satisfy the sexual desires” of either

      Mashburn or K.J., “did perform fondling and touching” (Count IV) and “did

      submit to fondling and touching” (Count V). Id. at 35.


[5]   A jury trial commenced in November 2017. At trial, K.J. testified Mashburn

      began molesting her when she was six years old, at which point Mashburn was

      her step-father. Mashburn regularly molested K.J. while her mother was at

      work. The molestation spanned about five years until Mashburn moved out in

      early 2011; Mashburn and K.J.’s mother later divorced. K.J. described acts

      Mashburn perpetrated over the years, including sucking her breasts, making her

      rub his penis, and making her perform and submit to oral sex. Among the

      evidence was testimony from K.J.’s mother, who found blood in K.J.’s

      underwear before K.J. began menstruating. The evidence also included two

      recorded calls. In the first, K.J. spoke with Mashburn, telling him she disclosed

      the molestation to others. This call contained periods of silence. The second

      call was between Mashburn and K.J.’s mother, shortly after the first call.


[6]   At trial, the State proposed the following jury instruction, which the trial court

      gave over Mashburn’s objection: “To sustain a conviction for child molesting,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019   Page 3 of 14
      proof of the ‘slightest penetration’ of the female sex organ is sufficient.” App.

      Vol. III at 175. Ultimately, the jury did not reach a verdict on Count I—the

      count pertaining to sexual intercourse—but found Mashburn guilty of the

      remaining counts. A sentencing hearing ensued, with Mashburn receiving an

      aggregate sentence of seventy years in the Indiana Department of Correction.


[7]   Mashburn now appeals.



                                 Discussion and Decision
                                 Sufficiency of the Evidence
[8]   When reviewing a challenge to the sufficiency of the evidence, “we consider

      only the evidence and reasonable inferences most favorable to the convictions,

      neither reweighing evidence nor reassessing witness credibility.” Griffith v.

      State, 59 N.E.3d 947, 958 (Ind. 2016). We will affirm “unless no reasonable

      fact-finder could find the elements of the crime proven beyond a reasonable

      doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017). Moreover, “[t]he

      uncorroborated testimony of the victim in a child molesting case is sufficient to

      sustain the guilty verdict.” Becraft v. State, 491 N.E.2d 535, 536 (Ind. 1986).


[9]   Mashburn challenges the sufficiency of the evidence, but does not dispute that

      the State presented evidence supporting each element of the offenses. Instead,

      Mashburn notes that “the only testimony about the molestation was from K.J.”

      Br. of Appellant at 15. Mashburn focuses on challenging the credibility of K.J.,

      characterizing her testimony as “highly dubious.” Id. He directs us to the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019   Page 4 of 14
       “incredible dubiosity” rule and “requests that this Court reweigh the credibility

       of K.J. in light of the lack of corroboration of her testimony.” Id. at 16.


[10]   Under the “incredible dubiosity” rule, “a court will impinge upon the jury’s

       responsibility to judge the credibility of witnesses only when confronted with

       inherently improbable testimony or coerced, equivocal, wholly uncorroborated

       testimony of incredible dubiosity.” Murray v. State, 761 N.E.2d 406, 408 (Ind.

       2002). This rule applies “only in exceptionally rare circumstances”—that is,

       “[t]he evidence supporting the conviction must have been offered by a sole

       witness; the witness’s testimony must have been coerced, equivocal, and wholly

       uncorroborated; it must have been ‘inherently improbable’ or of dubious

       credibility; and there must have been no circumstantial evidence of the

       defendant’s guilt.” McCallister v. State, 91 N.E.3d 554, 559 (Ind. 2018) (quoting

       Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015)).


[11]   Here, K.J. gave unequivocal trial testimony concerning acts of molestation

       supporting the four convictions. There was also circumstantial evidence of

       Mashburn’s guilt, including testimony from K.J.’s mother, who had found

       blood in K.J.’s underwear before K.J. began menstruating. Thus, this case does

       not present the sort of rare circumstances supporting application of the

       “incredible dubiosity” rule. We therefore decline to reweigh the credibility of

       K.J., and conclude that there is sufficient evidence supporting the convictions.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019   Page 5 of 14
                                    Prosecutorial Misconduct
[12]   Because Mashburn alleges prosecutorial misconduct for the first time on appeal,

       he has waived this claim of trial error. See Ryan v. State, 9 N.E.3d 663, 668 (Ind.

       2014). Under such circumstances, we review only for fundamental error, which

       is “an extremely narrow exception to the waiver rule.” Id. at 668. “For

       prosecutorial misconduct to constitute fundamental error, it must ‘make a fair

       trial impossible or constitute clearly blatant violations of basic and elementary

       principles of due process [and] present an undeniable and substantial potential

       for harm.’” Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002) (alteration in

       original) (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)).


[13]   The Fifth Amendment to the United States Constitution provides that “[n]o

       person . . . shall be compelled in any criminal case to be a witness against

       himself.” In light of this privilege, a prosecutor commits misconduct by

       “mak[ing] a statement that is subject to reasonable interpretation by a jury as an

       invitation to draw an adverse inference from a defendant’s silence.” Boatright v.

       State, 759 N.E.2d 1038, 1043 (Ind. 2001) (quoting Moore v. State, 669 N.E.2d

       733, 739 (Ind. 1996)). “If in its totality . . . the prosecutor’s comment is

       addressed to other evidence rather than the defendant’s failure to testify, it is

       not grounds for reversal.” Id. In other words, the State may “comment on the

       lack of defense evidence . . . so long as the State focuses on the absence of any

       evidence to contradict the State’s evidence and not on the accused’s failure to

       testify.” Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019   Page 6 of 14
[14]   Mashburn directs us to a portion of the State’s rebuttal closing arguments:


                       In reality, Ladies and Gentlemen, unless you were there to
               see it yourself, there’s always going to be something nobody
               knows what happened, except [K.J.] and the defendant. And
               you heard from [K.J.].


                      The defense has made quite a few suggestions as to why
               the defendant did not commit the offenses. [A] [c]ouple [of]
               times throughout this case, in fact [at] the very beginning, [the
               defense] use[d] the word, crazy, in terms of [K.J.]. It’s pretty
               offensive.


                       Called it crazy antics. That when this phone call took
               place, how do we know that it wasn’t just [Mashburn] thinkin’,
               it’s her crazy antics? How do we know? Not so much what
               [Mashburn] said on those phone calls, it’s what [Mashburn]
               didn’t say on those phone calls. You don’t hear actual static to
               suggest that there was any problem with connectivity when she
               explains the purpose for the phone call. . . .


                      She explained, I told [my sister] what’s goin’ on. If people
               start askin’, what do you want me to tell [them]?


                     The oh, crap, going through his mind is almost touchable.
               That dead silence I promise you was like a punch to his gut. Oh,
               crap. It’s been four years since [the] divorce [from K.J.’s
               mother]. I’m sure he thought he was in the clear. . . .


                      What does he do? Tell [them] it’s a lie. Oh you bet he
               heard what she said. And if he thinks it’s just one of [K.J.’s]
               crazy antics, why did he immediately call [K.J.’s mother]? I will
               tell you why he called [K.J.’s mother]. And you can hear it for
               yourself. Again, it’s not what he said. It’s what he didn’t say.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019   Page 7 of 14
                       So where’s the funeral? What’s goin’ on? His reaction to
               [K.J.’s], hey, I told [my sister] about the sex stuff that we used to
               do - - if people start askin’, what do you want me to say? Oh,
               crap. Silence. Tell [them] it’s a lie. More silence. I guarantee
               you those wheels are spinning in his head . . . what’s [going to]
               happen? Who knows? Where’s you[r] mom, he asks. She’s at
               the doctor’s office.


                     So, [Mashburn], since you want me to lie for you, can I get
               an apology for what you did to me all those years?


                        Dead silence. Uh, I can’t hear [you] . . . gotta go.


                       Immediately he calls [K.J.’s mother]. . . . [H]e didn’t say,
               is [K.J.] okay? She’s having one of her crazy spells. Something’s
               going on with [K.J.]. . . . What would a reasonable reaction be
               [for] somebody . . . falsely accused of molesting. [Because] she
               didn’t go into detail, like what are you talkin’ about? . . . He feels
               [K.J.’s mother] out. He doesn’t say, I’m [going to] call the
               police. . . . [W]hat’s going on with [K.J.]? Is she off her
               med[ication]? Is she off her rocker? What the heck’s goin’ on?


                      No. Hey, where’s the funeral? You guys goin’? What
               time is it?


                      Then they go to the funeral. He says nothing more.
               [K.J.’s] even at the funeral. It’s what he doesn’t say that screams
               volumes to you. It should.


       Tr. Vol. III at 207-209.


[15]   According to Mashburn, these arguments amount to improper commentary on

       his exercise of the Fifth Amendment right not to explain the call or contradict

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019    Page 8 of 14
       evidence by testifying.3 Mashburn points out that, shortly before closing

       arguments, the State argued it could “comment that the defendant didn’t take

       the stand.” Tr. Vol. III at 170. That is, the State argued Mashburn “open[ed]

       the door to the idea that [the State] didn’t produce a statement that [Mashburn]

       may or may not have given,” and that the State could comment on his lack of

       trial testimony. Id. The trial court said, “I wouldn’t do that.” Id.


[16]   Mashburn asserts “[t]he prosecutor’s comments to the court just prior to final

       arguments provide insight into the motivation of the . . . [closing] argument.”

       Br. of Appellant at 26. Yet, “[i]t is the effect of a remark, not the intent of its

       speaker, that frustrates a defendant’s exercise of the right to remain silent at

       trial.” Moore, 669 N.E.2d at 738. Mashburn also directs us to a 1981 case in

       which the Indiana Supreme Court held that “where no one but the accused

       could have contradicted the prosecution’s witnesses,” a comment on the

       uncontradicted nature of the case amounts to an improper comment on the

       failure to testify. Williams v. State, 426 N.E.2d 662, 666 (Ind. 1981). Relying on

       the “no comment” approach applied in that case, Mashburn argues that only he

       could have contradicted K.J.’s statements, and so the closing arguments were




       3
         Article 1, Section 14 of the Indiana Constitution “also protects a defendant’s right to remain silent at trial”
       but that protection “is not necessarily coextensive with the federal Fifth Amendment.” Moore, 669 N.E.2d at
       739 n.14. In his Summary of the Argument, Mashburn mentions this state constitutional authority, but does
       not develop a cogent argument. See Ind. App. R. 46(A)(8)(a). We therefore resolve the claim only under the
       federal constitution. See Moore, 669 N.E.2d at 739 n.14.; Myers v. State, 839 N.E.2d 1154, 1158 (Ind. 2005).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019                         Page 9 of 14
       improper. Br. of Appellant at 27. Yet, the Indiana Supreme Court revisited

       that approach when deciding Moore in 1996. See Moore, 669 N.E.2d at 739.


               In light of Moore, it is no longer correct to say that all prosecutor
               comments on the uncontradicted nature of the State’s case are
               improper if the accused is the only person who can rebut that
               case. Instead, before determining whether a prosecutor’s
               comment is improper, it must first be determined whether a
               reasonable jury could have interpreted the comment as a
               suggestion to infer the defendant’s guilt from his failure to testify.


       Davis v. State, 685 N.E.2d 1095, 1098 (Ind. Ct. App. 1997).


[17]   In the challenged rebuttal arguments, the State briefly mentioned that only K.J.

       and Mashburn knew what happened, and the jury had heard from K.J. The

       State immediately began discussing K.J.’s credibility, refuting Mashburn’s

       credibility challenges by commenting on what Mashburn said—and did not

       say—during the recorded calls. A reasonable jury would not interpret these

       arguments as suggestions to infer guilt from Mashburn’s failure to testify.

       Rather, a reasonable jury would interpret the arguments as suggestions to reject

       the impeachment of K.J. and to infer guilt from other evidence. Thus, these

       arguments were “within the permissible range of fair commentary on the

       evidence or lack thereof . . . not a comment on [the] right not to testify.”

       Dumas, 803 N.E.2d at 1118.


[18]   We conclude that Mashburn has not identified prosecutorial misconduct. See

       Boatright, 759 N.E.2d at 1044 (determining there was no misconduct where the

       “comment was in response to [a] closing argument suggesting that the jury

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019   Page 10 of 14
       should not believe the victim” and the “comment did not focus on, or even

       mention, [the] decision not to testify”). Nevertheless, the only remarks

       approaching misconduct were those about Mashburn and K.J. knowing what

       happened, and the jury hearing from K.J. This Court has determined that

       similar remarks did not amount to fundamental error where—as here— “the

       prosecutor’s comment was an isolated statement” and there was vigorous cross-

       examination of the victim and other witnesses. Owens v. State, 937 N.E.2d 880,

       894 (Ind. Ct. App. 2010) (identifying misconduct, but not fundamental error,

       where the prosecutor remarked that, other than the defendant, the victim was

       “the only one who knows what happened to her that night”), trans. denied.

       Thus, even assuming misconduct, there was no fundamental error. See id.


                                             Jury Instruction
[19]   “We generally review a trial court’s jury instruction for an abuse of discretion.”

       Batchelor v. State, No. 18S-CR-436, slip op. at 4 (Ind. Mar. 18, 2019). “The trial

       court abuses its discretion ‘when the instruction is erroneous and the

       instructions taken as a whole misstate the law or otherwise mislead the jury.’”

       Keller v. State, 47 N.E.3d 1205, 1208 (Ind. 2016) (quoting Isom v. State, 31

       N.E.3d 469, 484-85 (Ind. 2015)). Moreover, Article 1, Section 19 of our state

       constitution provides: “In all criminal cases . . . the jury shall have the right to

       determine the law and the facts.” In light of this provision “protect[ing] the

       province of the jury,” our supreme court recently disapproved of instructions

       “inappropriately emphasizing certain facts,” determining that any such jury

       instruction “is erroneous and misleads the jury.” Keller, 47 N.E.3d at 1208.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019   Page 11 of 14
[20]   The State gave the following jury instruction, over Mashburn’s objection: “To

       sustain a conviction for child molesting, proof of the ‘slightest penetration’ of

       the female sex organ is sufficient.” App. Vol. III at 162. In support, the State

       cited a case involving the sufficiency of evidence supporting a conviction. Id.

       Mashburn argues the instruction “unfairly emphasized particular facts, invaded

       the province of the jury and misled the jury.” Br. of Appellant at 21. Mashburn

       correctly observes that the Indiana Supreme Court has disapproved of drawing

       instructions from sufficiency cases: “Appellate review of the sufficiency of the

       evidence . . . will ‘rarely, if ever,’ be an appropriate basis for a jury instruction

       because the determination is fundamentally different.” Keller, 47 N.E.3d at

       1209 (quoting Garfield v. State, 74 Ind. 60, 64 (1881)). Further, it is generally

       inappropriate for jury instructions to expound upon statutory language. See

       Batchelor, No. 18S-CR-436, slip op. at 13-14 (noting an instruction “threatened

       to invade the jury’s province to decide the law and the facts” where the

       instruction provided a non-statutory definition for a particular statutory term).4


[21]   Assuming arguendo the court abused its discretion by giving the instruction, we

       will not reverse upon harmless error. See App. R. 66(A); Batchelor, No. 18S-CR-

       436, slip op. at 17. We presume that error in instruction affected the verdict,




       4
         The State does not directly address Mashburn’s argument that the instruction invaded the province of the
       jury, instead directing us to a single case, Archer v. State, where the defendant challenged a similar instruction,
       but for the first time on appeal. 996 N.E.2d 341, 350-51 (Ind. Ct. App. 2013), trans. denied, abrogated on other
       grounds. In the context of fundamental-error review, this Court determined the instruction accurately stated
       the law and “was not error.” Id. at 351. Here, however, Mashburn objected to the instruction. Moreover,
       since Archer, the Indiana Supreme Court has recently expressed concern about instructions that threaten to
       invade the province of the jury. See Batchelor, 18S-CR-436, slip op. at 13-14; Keller, 47 N.E.3d at 1208.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019                         Page 12 of 14
       Kane v. State, 976 N.E.2d 1228, 1232 (Ind. 2012), but affirm if a “conviction was

       ‘clearly sustained by the evidence and the jury could not properly have found

       otherwise,’” Batchelor, 18S-CR-436, slip op. at 17 (quoting Dill v. State, 741

       N.E.2d 1230, 1233 (Ind. 2001)). “An instruction error will result in reversal

       when the reviewing court cannot say with complete confidence that a

       reasonable jury would have rendered a guilty verdict had the instruction not

       been given.” Dill, 741 N.E.2d at 1233 (internal quotation marks omitted).


[22]   Mashburn argues the jury could have read the instruction “as allowing [it] to

       convict Mashburn of child molesting based on a single fact of ‘slightest

       penetration’ without regard to any other proof,” and that “[w]ithout this

       instruction emphasizing this one fact, the jury may have found Mashburn not

       guilty of all the charges.” Br. of Appellant at 22-23. Yet, the trial court gave

       detailed instructions concerning the elements of the charged offenses. See App.

       Vol. III at 168-74. Moreover, we note that the State requested the challenged

       instruction late in trial. During its case in chief, the State had elicited testimony

       from K.J. that—on just one occasion—Mashburn had “tr[ied] to stick his penis

       inside” her. Tr. Vol. II at 121. When the State asked K.J. whether Mashburn

       actually put his penis inside her, she first gave an equivocal answer—“[m]aybe

       like a little”—and eventually answered affirmatively when asked if she felt his

       penis “go in . . . a little bit.” Id. The State later requested the jury instruction

       concerning proof of the slightest penetration. The State focused on this

       instruction only when arguing the jury should convict Mashburn of Count I—

       the count alleging sexual intercourse. The jury deadlocked on this count.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019   Page 13 of 14
[23]   Ultimately, to find Mashburn guilty of any count, the jury had to believe K.J.

       There was ample evidence supporting the convictions, and—unlike the count of

       sexual intercourse on which the jury deadlocked—the nature of evidence

       supporting the other counts did not turn on the quantum of penetration. We

       conclude the convictions were clearly sustained by the evidence and the jury

       could not properly have found otherwise. Thus, any error was harmless.



                                               Conclusion
[24]   The “incredible dubiosity” rule does not apply and sufficient evidence supports

       the convictions. As to closing arguments, there was no misconduct—and even

       if the prosecutor had crossed the line, there was no fundamental error. Finally,

       if the trial court erred in instructing the jury, any error was harmless.


[25]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019   Page 14 of 14
