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
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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).
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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,
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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
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“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.
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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).
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[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.
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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
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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).
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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
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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.
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[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.
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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.
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[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.
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