MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Nov 26 2018, 8:25 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.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Thomas A. Whitsitt                                      Curtis T. Hill, Jr.
Alexander S. Kruse                                      Attorney General of Indiana
Whitsitt Nooning & Kruse, P.C.
Lebanon, Indiana                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ronald M. Marshall,                                     November 26, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-843
        v.                                              Appeal from the Boone Superior
                                                        Court
State of Indiana,                                       The Honorable Matthew C.
Appellee-Plaintiff.                                     Kincaid, Judge
                                                        Trial Court Cause No.
                                                        06D01-1703-F5-232



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018                 Page 1 of 15
                                       Statement of the Case
[1]   Ronald M. Marshall appeals his convictions for three counts of child

      exploitation, as Level 5 felonies, and two counts of voyeurism, as Level 6

      felonies, following a jury trial. Marshall presents the following consolidated

      and restated issues for our review:


              1.      Whether the trial court abused its discretion when it
                      admitted evidence of his prior bad acts.

              2.      Whether he was denied the effective assistance of trial
                      counsel.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On February 19, 2017, Marshall’s eleven-year-old granddaughter F.M. and her

      friend were visiting at Marshall’s house in Lebanon. At some point in the

      evening, F.M. texted her mother, Heather Marshall, to report that Marshall

      “was being sexually inappropriate in front of her and her friend,” and F.M.

      wanted Heather “to come get her right away.” Tr. Vol. 2 at 242. When

      Heather arrived at Marshall’s house, she checked the footage from a

      surveillance camera Marshall had set up to monitor the backyard, which is

      where F.M. had stated that the inappropriate behavior had occurred. After

      watching the footage, which showed Marshall exposing himself and

      masturbating in front of F.M. and her friend, Heather called the police.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018   Page 2 of 15
[4]   Officers with the Lebanon Police Department arrived at Marshall’s house to

      investigate. Lieutenant Rich Mount called Detective Tony Bayles and

      conveyed the results of his initial investigation, which led Detective Bayles to

      apply for and obtain a search warrant “to search for computer[s], cell phones,

      cameras or other such devices capable of storing photographs, video or other

      digital media.” Appellant’s App. Vol. 2 at 16. During the search of Marshall’s

      house, Detective Bayles found a micro SD card. When he looked at the digital

      files on that SD card a few days later, he found five videos. Two of the videos

      depicted Marshall’s then twelve-year-old granddaughter A.R. naked and

      entering and exiting the shower in Marshall’s bathroom. One video depicted

      A.R. naked in a guest bedroom in Marshall’s house. One video depicted an

      adult female using the toilet in Marshall’s bathroom. And the final video

      depicted Marshall entering his bathroom and holding a remote-control device

      for a hidden camera in the bathroom.


[5]   After seeing the videos, Detective Bayles obtained a second search warrant for

      Marshall’s home “to search for covert devices” such as “cameras that were

      maybe disguised as other items or hidden cameras.” Tr. Vol. 2 at 166. When

      he executed that warrant, Detective Bayles found: two digital clocks with

      pinhole cameras and SD card slots in them; a clock radio with a pinhole camera

      and SD card slot in it; and two remotes for the cameras. A subsequent search

      of Marshall’s cell phone revealed that he had run a search on the internet for

      “nude teens.” Tr. Vol. 5 at 221.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018   Page 3 of 15
[6]   The State charged Marshall with three counts of child exploitation, as Level 5

      felonies; three counts of possession of child pornography, Level 6 felonies; and

      two counts of voyeurism, as Level 6 felonies. Each of the charges related to one

      of the three videos of A.R. in a state of undress.1 Prior to trial, the State filed a

      notice of intent to file evidence of two of Marshall’s prior bad acts under Trial

      Rule 404(b), namely, that Marshall had surreptitiously made a video depicting a

      woman using the toilet in his bathroom and that Marshall had masturbated in

      front of two young girls. Marshall filed a motion in limine to prohibit the State

      from introducing the following evidence: testimony regarding VHS tapes

      depicting child pornography allegedly in Marshall’s possession; the video of the

      woman using his bathroom; and the internet search for “nude teens” found on

      his cell phone. Following a hearing, the State agreed not to present evidence

      regarding Marshall’s masturbating in front of the two young girls unless

      Marshall introduced evidence of contrary intent relevant to the charges filed.

      And the trial court ruled that the State could introduce into evidence the video

      of the woman using the toilet in his bathroom, but the court prohibited the State

      from introducing evidence of the VHS tapes or the internet search for “nude

      teens.”


[7]   During the jury trial, the State introduced into evidence over Marshall’s

      objection the video of the woman using the toilet in his bathroom. And during

      cross-examination of Detective Bayles, Marshall asked him whether, in


      1
        Under a separate cause number, the State charged Marshall with child solicitation and two counts of
      performing sexual conduct in the presence of a minor for masturbating in front of F.M. and her friend.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018                Page 4 of 15
      addition to taking “covert pictures of people,” the covert cameras could also be

      used for security purposes. Tr. Vol. 2 at 184. On the State’s ensuing motion,

      the trial court ruled that, by eliciting testimony supporting a notion of contrary

      intent by Marshall, Marshall had opened the door to the evidence that he had

      masturbated in front of F.M. and her friend, which had led to the first search

      warrant, and that he had searched for “nude teens” on his cell phone.


[8]   The jury found Marshall guilty as charged. But the trial court entered judgment

      of conviction only on three counts of child exploitation, as Level 5 felonies, and

      two counts of voyeurism, as Level 6 felonies, all related to the videos of A.R.

      The court imposed an aggregate sentence of eight years, with five years

      executed and three years suspended. This appeal ensued.


                                     Discussion and Decision
                                   Issue One: Admission of Evidence

[9]   Marshall first contends that the trial court abused its discretion when it

      admitted certain evidence. As the Indiana Supreme Court has stated:


              Generally, a trial court’s ruling on the admission of evidence is
              accorded “a great deal of deference” on appeal. Tynes v. State,
              650 N.E.2d 685, 687 (Ind. 1995). “Because the trial court is best
              able to weigh the evidence and assess witness credibility, we
              review its rulings on admissibility for abuse of discretion” and
              only reverse “if a ruling is ‘clearly against the logic and effect of
              the facts and circumstances and the error affects a party’s
              substantial rights.’” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.
              2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind.2013)).



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018   Page 5 of 15
       Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015).


[10]   Indiana Evidence Rule 404(b) provides in relevant part that evidence of a prior

       crime 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.” But such evidence may be admissible to prove motive, opportunity,

       intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

       accident. Id. The standard for assessing the admissibility of Rule 404(b)

       evidence is: (1) the court must determine that 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) the court must balance the

       probative value of the evidence against its prejudicial effect pursuant to Rule

       403. Bishop v. State, 40 N.E.3d 935, 951 (Ind. Ct. App. 2015), trans. denied.


[11]   Indiana Evidence Rule 403 states that a trial court “may exclude relevant

       evidence if its probative value is substantially outweighed by a danger of . . .

       unfair prejudice . . . .” The Indiana Supreme Court has explained the trial

       court’s broad discretion to apply Rule 403:


               “Trial judges are called trial judges for a reason. The reason is
               that they conduct trials. Admitting or excluding evidence is what
               they do.” United States v. Hall, 858 F.3d 254, 288 (4th Cir. 2017)
               (Wilkinson, J., dissenting). That’s why trial judges have
               discretion in making evidentiary decisions. This discretion
               means that, in many cases, trial judges have options. They can
               admit or exclude evidence, and we won’t meddle with that
               decision on appeal. See Smoote v. State, 708 N.E.2d 1, 3 (Ind.
               1999). There are good reasons for this. “Our instincts are less
               practiced than those of the trial bench and our sense for the
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018   Page 6 of 15
               rhythms of a trial less sure.” Hall, 858 F.3d at 289. And trial
               courts are far better at weighing evidence and assessing witness
               credibility. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
               In sum, our vantage point—in a “far corner of the upper deck”—
               does not provide as clear a view. State v. Keck, 4 N.E.3d 1180,
               1185 (Ind. 2014).

                                                      ***

               The unfair prejudice from [the challenged evidence] . . . was not
               so high that it overrode the trial court’s wide discretion. See
               Dunlap[ v. State], 761 N.E.2d [837, 842 (Ind. 2002)]. We thus
               decline to second-guess the trial court’s determination that the
               [evidence’s] relevance . . . was not substantially outweighed by
               the danger of unfair prejudice. The trial court could have
               admitted or excluded the [evidence]. The trial court chose
               admission. . . .


       Snow v. State, 77 N.E.3d 173, 177, 179 (Ind. 2017).


                                       Video of Woman Using Toilet

[12]   Marshall first contends that the trial court abused its discretion when it

       admitted into evidence over his objection the video of an unidentified woman

       in a state of undress using the toilet in his bathroom. Marshall maintains that

       the video was not relevant to the charged offenses and that, even if it were

       relevant, the prejudice substantially outweighed any relevance. At the hearing

       on the motion in limine, the State argued that the video was admissible under




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018   Page 7 of 15
       Rule 404(B) to prove absence of mistake, lack of accident, plan, and

       knowledge.2


[13]   We agree with the State that the challenged video was admissible to prove

       absence of mistake. Initially, we note that “[u]se of ‘absence of mistake or

       accident’ evidence does not require the defendant to assert a specific contrary

       intent because the evidence often goes to other relevant matters, as well, such as

       motive or relationship between the defendant and the victim.” 12 Robert

       Lowell Miller, Jr., Indiana Practice: Indiana Evidence § 404.229 (4th ed. Supp.

       Aug. 2018).


[14]   Here, the video in question showed a woman in a state of undress using the

       toilet in Marshall’s bathroom, and the video was found on the same SD card as

       the video that depicted A.R. naked in the same bathroom. Both videos used the

       same hidden camera operated by remote control. Because both videos were

       obtained using a hidden camera and depict people in a state of undress, the

       video of the woman using the toilet tends to prove an absence of mistake. That

       is, it tends to prove that Marshall was not accidentally recording people in a

       state of undress in his bathroom, but that he was purposely seeking to obtain

       such videos. See, e.g., Nicholson v. State, 963 N.E.2d 1096, 1100 (Ind. 2012)

       (holding prior instance of stalking against same victims admissible to show

       absence of mistake, specifically, that defendant was not dialing a random phone




       2
         Because the State proffered this evidence before Marshall opened the door to permit evidence relevant to
       his intent, the intent exception to the prohibition against evidence of prior bad acts does not apply here.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018                 Page 8 of 15
       number). And, given that the challenged video featured an adult woman in a

       state of undress rather than a child, we cannot say that the unfair prejudice to

       Marshall was so high that it overrode the trial court’s wide discretion. See

       Snow, 77 N.E.3d at 179. We hold the trial court did not abuse its discretion

       when it admitted the video into evidence.

                     Video of Marshall Masturbating in Front of Two Young Girls
                                and Internet Search for “Nude Teens”


[15]   Marshall next contends that the trial court abused its discretion when it found

       that he had opened the door to permit evidence relevant to the issue of his

       intent. The intent exception to Evidence Rule 404(b) is available only when a

       defendant goes beyond merely denying the charged culpability and alleges a

       particular contrary intent, whether in opening statement, by cross-examination

       of the State’s witnesses, or by presentation in defendant’s own case-in-chief.

       Lafayette v. State, 917 N.E.2d 660, 663 (Ind. 2009); Wickizer v. State, 626 N.E.2d

       795, 799 (Ind. 1993). The State can respond by offering evidence of prior

       crimes, wrongs, or acts to the extent genuinely relevant to prove the defendant’s

       intent at the time of the charged offense. Id. The trial court must then conduct

       an Evidence Rule 403 analysis to determine if the “probative value [of the

       evidence of prior bad acts] is substantially outweighed by the danger of unfair

       prejudice, confusion of the issues, or misleading the jury, or by considerations

       of undue delay, or needless presentation of cumulative evidence.” Id.


[16]   Here, during cross-examination of Detective Bayles, defense counsel asked

       whether the hidden cameras Marshall had around the house had been a part of
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018   Page 9 of 15
       “fun time” with his kids when they were little, where they would try to find the

       hidden cameras in the house. Tr. Vol. II at 184. Defense counsel also asked

       Detective Bayles whether the hidden cameras could be used “for security.” Id.

       Detective Bayles answered in the affirmative to both questions. Because those

       questions elicited testimony from Detective Bayles that suggested the

       surreptitiously placed cameras were actually placed with innocent intent, we

       agree with the State that Marshall asserted a particular contrary intent and

       opened the door to Rule 404(b) evidence relevant to his intent.


[17]   Thus, we turn to whether the trial court abused its discretion when it weighed

       the value of that evidence under Rule 403. Again, we will not second-guess the

       trial court’s determination that the evidence’s relevance was not substantially

       outweighed by the danger of unfair prejudice. Snow, 77 N.E.3d at 179. On that

       question, we cannot say the trial court erred when it concluded that the

       relevance of the challenged evidence was not substantially outweighed by the

       prejudice to Marshall. Contrary to Marshall’s suggestion that he had made

       videos of A.R. in a state of undress without any intent to arouse his sexual

       desires, see Ind. Code § 35-42-4-4(b) (2016), the evidence that he had

       masturbated in front of F.M. and her friend and that he had searched the

       internet for “nude teens” is highly probative of his intent and ultimately his

       guilt. The trial court did not abuse its discretion when it admitted the

       challenged evidence at trial.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018   Page 10 of 15
                             Issue Two: Ineffective Assistance of Counsel

[18]   Marshall also contends that he received ineffective assistance from his trial

       counsel.


               When evaluating an ineffective assistance of counsel claim, we
               apply the two-part test articulated in Strickland v. Washington, 466
               U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
               State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
               prong, “the defendant must show deficient performance:
               representation that fell below an objective standard of
               reasonableness, committing errors so serious that the defendant
               did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
               McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
               Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
               second prong, “the defendant must show prejudice: a reasonable
               probability (i.e. a probability sufficient to undermine confidence
               in the outcome) that, but for counsel’s errors, the result of the
               proceeding would have been different.” Id. (citing Strickland, 466
               U.S. at 694, 104 S. Ct. 2052).


       Id. at 274.


               There is a strong presumption that counsel rendered adequate
               assistance and made all significant decisions in the exercise of
               reasonable professional judgment. Counsel is afforded
               considerable discretion in choosing strategy and tactics, and these
               decisions are entitled to deferential review. Isolated mistakes,
               poor strategy, inexperience, and instances of bad judgment do
               not necessarily render representation ineffective.


       Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002) (citations omitted). The two

       prongs of the Strickland test are separate and independent inquiries. Williams v.

       State, 706 N.E.2d 149, 154 (Ind. 1999). “Thus, ‘[i]f it is easier to dispose of an

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018   Page 11 of 15
       ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

       course should be followed.’” Id. (quoting Strickland, 466 U.S. at 697, 104 S. Ct.

       2052).


[19]   Marshall alleges that his trial counsel’s representation was deficient in several

       respects, namely, when he: did not file a motion in limine with respect to the

       evidence that he masturbated in front of F.M. and her friend; elicited testimony

       from Detective Bayles about other uses for the cameras, thus opening the door

       to the other evidence of prior bad acts; did not “preemptively ask for a limiting

       instruction” with respect to the video of the woman using the toilet when the

       court asked him about it at a pretrial hearing; did not ask for limiting

       instructions with respect to certain evidence introduced at trial; and did not

       make a hearsay objection when Heather testified about F.M.’s text to her the

       night of his arrest. We address each contention in turn.


                                               Motion in Limine

[20]   Marshall contends that his trial counsel should have included in his motion in

       limine the evidence that he had masturbated in front of F.M. and her friend.

       But Marshall cannot show that he was prejudiced by this decision because,

       during the pretrial hearing addressing the State’s notice to introduce Rule

       404(b) evidence, the trial court ruled that that evidence would not be allowed

       unless Marshall opened the door to the issue of intent. Further, his trial counsel

       objected to that evidence at trial. Accordingly, Marshall was not denied the

       effective assistance of trial counsel in this respect.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018   Page 12 of 15
                                  Cross-examination of Detective Bayles

[21]   Marshall contends that his trial counsel should not have elicited testimony from

       Detective Bayles that opened the door to Rule 404(b) evidence relevant to

       Marshall’s intent. And Marshall maintains that the prejudice to him was

       obvious, in that it led to the admission of the evidence of his masturbating in

       front of F.M. and her friend and his internet search for “nude teens.” But the

       State describes trial counsel’s cross-examination of Detective Bayles as “a

       strategic calculation that ultimately failed.” Appellee’s Br. at 25. In particular,

       the State asserts that the suggestion of innocuous uses for the cameras was

       necessary “to provide or suggest an alternative explanation for why covert

       cameras were secretly filming people in Marshall’s home.” Id.


[22]   The choice of defense theory is a matter of trial strategy. Benefield v. State, 945

       N.E.2d 791, 799 (Ind. Ct. App. 2011). Counsel is given “‘significant deference

       in choosing a strategy which, at the time and under the circumstances, he or she

       deems best.’” Id. (quoting Potter v. State, 684 N.E.2d 1127, 1133 (Ind. 1997)).

       “‘A reviewing court will not second-guess the propriety of trial counsel’s

       tactics.’” Id. (quoting Davidson v. State, 763 N.E.2d 441, 446 (Ind. 2002)).

       “‘[T]rial strategy is not subject to attack through an ineffective assistance of

       counsel claim, unless the strategy is so deficient or unreasonable as to fall

       outside of the objective standard of reasonableness.’” Id. (quoting Autrey v.

       State, 700 N.E.2d 1140, 1141 (Ind. 1998)). “‘This is so even when such choices

       may be subject to criticism or the choice ultimately prove[s] detrimental to the

       defendant.’” Id. (quoting Autrey, 700 N.E.2d at 1141).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018   Page 13 of 15
[23]   We agree with the State that trial counsel’s cross-examination of Detective

       Bayles eliciting testimony that the hidden cameras could be used for innocuous

       purposes was a reasonable trial strategy, even though that strategy ultimately

       proved detrimental to Marshall. See id. Marshall could offer no other

       explanation for why he had the videos of A.R. in a state of undress.

       Accordingly, we cannot say Marshall was denied the effective assistance of trial

       counsel in this respect.


                                             Limiting Instructions

[24]   Marshall contends that his trial counsel’s performance was deficient when,

       during a pretrial hearing, he did not “preemptively” ask for a limiting

       instruction on the video of the woman using the toilet and when, during trial,

       he did not ask for limiting instructions on the evidence regarding his

       masturbating in front of F.M. and her friend and regarding his internet search

       for “nude teens.” But, as this court has observed, “admonishments are double-

       edged swords. On the one hand, they can help focus the jury on the proper

       considerations for admitted evidence. However, on the other hand, they can

       draw unnecessary attention to unfavorable aspects of the evidence.” Merritt v.

       State, 99 N.E.3d 706, 710 (Ind. Ct. App. 2018), trans. denied. Accordingly, we

       cannot say that trial counsel’s choice to not seek limiting instructions was an

       unreasonable strategy. And, in any event, the trial court gave a limiting

       instruction for the evidence that Marshall masturbated in front of the girls and

       the internet search. Marshall cannot show that he was denied the effective

       assistance of counsel on this basis.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018   Page 14 of 15
                                                Alleged Hearsay

[25]   Finally, Marshall contends that his trial counsel’s performance was deficient

       when he did not object to Heather’s testimony regarding F.M.’s text message to

       her stating that Marshall “was being sexually inappropriate in front of her and

       her friend” and that F.M. wanted Heather “to come get her right away.” Tr.

       Vol. 2 at 242. Marshall maintains that that testimony was inadmissible

       hearsay. However, as the State correctly points out, that testimony was

       admissible as an exception to the hearsay rule as a “present sense impression.”

       Ind. Evidence Rule 803(1). Thus, Marshall cannot show that his trial counsel’s

       assistance was ineffective on this basis.


[26]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-843 | November 26, 2018   Page 15 of 15
