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.
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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
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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
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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
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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
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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.
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