Duston Nielson v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 27, 2025
• Docket: 24A-CR-02295
• Status: Published

Opinion

IN THE

Court of Appeals of Indiana Duston Nielson, FILED Aug 27 2025, 9:08 am Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court v.

State of Indiana, Appellee-Plaintiff

August 27, 2025 Court of Appeals Case No. 24A-CR-2295 Appeal from the Marion Superior Court The Honorable Marshelle Dawkins Broadwell, Judge Trial Court Cause No. 49D07-2203-F1-7709

Opinion by Judge Vaidik Judges Bailey and DeBoer concur.

Court of Appeals of Indiana | Opinion 24A-CR-2295 | August 27, 2025 Page 1 of 13 Vaidik, Judge.

Case Summary [1] Duston Nielson appeals his convictions for Level 1 felony child molesting and

Level 4 felony child molesting and his designation as a credit-restricted felon,

raising several issues. Finding no reversible error, we affirm. In doing so,

however, we reject the State’s argument that Nielson invited error regarding a

jury instruction. The invited-error doctrine applies only when a party

challenging a trial-court action affirmatively requested the action as part of a

deliberate, well-informed trial strategy. Here, Nielson’s attorney didn’t ask the

trial court to give the challenged jury instruction; he only explained why he

believed he didn’t have a meritorious objection.

Facts and Procedural History [2] Nielson’s daughter, D.N., was born in 2008. After Nielson and D.N.’s mother

separated, D.N.’s mother had primary custody and D.N. spent every other

weekend with Nielson. Nielson lived with his wife and four children. This

arrangement lasted many years, until December 2021, when D.N. told her

mother that Nielson had sexually abused her several years earlier. D.N.’s

mother made a report to police. After an investigation, the State charged

Nielson with Level 1 felony child molesting (“other sexual conduct”), four

counts of Level 4 felony child molesting (“fondling or touching”), and Level 6

felony criminal confinement.

Court of Appeals of Indiana | Opinion 24A-CR-2295 | August 27, 2025 Page 2 of 13 [3] A jury trial was held in July 2024. D.N., then 15, testified that Nielson molested

her “every time” she went to his house between the ages of six and nine. Tr.

Vol. III p. 52. She testified about several incidents in particular. On her sixth

birthday and twice more when she was six, she and Nielson were under a

blanket on a couch in Nielson’s living room, and Nielson touched her breast

and the outside of her vagina with his hand. When she was seven-and-a-half or

eight-and-a-half years old, Nielson lifted her out of her bed, carried her into his

bedroom, locked the door, touched her breast and vagina with his hand, and

put a finger “inside” her “vagina.” Id. at 32-33. When D.N. tried to leave,

Nielson picked her up and brought her back to his room. The next night,

Nielson again touched her breast and the outside of her vagina while the two

were under a blanket on a couch. During the last incident, when D.N. was

nine, Nielson touched D.N.’s breast. When asked why she waited so long to

disclose the abuse, D.N. said Nielson told her that if she did, he would take her

away from her mother. D.N. testified that she did some internet research when

she was 13 and learned that Nielson wouldn’t be able to do that, so she told her

mother about the abuse.

[4] D.N.’s mother testified that D.N. was sick, scared, and nervous when she went

to Nielson’s house. She would vomit, have diarrhea, and pick her nails until

they bled, and she struggled at school. When D.N. disclosed the abuse, she was

crying and shaking and said, “Mom, I don’t want to go back,” “I never had a

dad,” and “The one man that [was] supposed to protect me hurt me my entire

Court of Appeals of Indiana | Opinion 24A-CR-2295 | August 27, 2025 Page 3 of 13 life.” Id. at 13. After D.N. disclosed the abuse and stopped going to Nielson’s

house, her health improved, as did her grades.

[5] Nielson testified in his own defense and denied ever sexually abusing D.N. He

said D.N. was never scared or nervous around him. He knew D.N. had

gastrointestinal issues but wasn’t aware of them being worse when she was with

him.

[6] The trial court instructed the jury that “other sexual conduct”—the basis for the

Level 1 felony charge—is defined as “an act involving: a sex organ of one

person and the mouth or anus of another person or the penetration of the sex

organ or anus of a person by an object.” Appellant’s App. Vol. II p. 96. At the

State’s request, and with no objection from Nielson, the court also gave the jury

the following instruction on penetration: “The ‘slightest penetration’ of the

female sex organ, including penetration of the external genitalia, is sufficient to

sustain a conviction for child molestation.” Id. at 124.

[7] The State also asked the court to have the jury make special findings if it found

Nielson guilty of Level 1 felony child molesting. Specifically, the State wanted

the jury to decide whether the offense involved “other sexual conduct” and

whether, at the time of the offense, Nielson was at least 21 and D.N. was under

12. These facts would make Nielson a “credit restricted felon,” see Ind. Code §

35-31.5-2-72(1), which would reduce the amount of good-time credit Nielson

could earn while serving his sentence, see I.C. § 35-50-6-4. The existence of

“other sexual conduct” and Nielson being at least 21 were included in the Level

Court of Appeals of Indiana | Opinion 24A-CR-2295 | August 27, 2025 Page 4 of 13 1 felony as charged. Appellant’s App. Vol. II p. 82. But D.N. being under 12

was not—consistent with the child-molesting statute, the charge only required

the State to prove that D.N. was under 14. See id.; I.C. § 35-42-4-3.

[8] Nielson didn’t object to the jury being asked to make the special findings, but he

argued that the trial should be bifurcated for this purpose, so as not to confuse

the jury or overemphasize D.N.’s age during the initial deliberations. Tr. Vol. II

p. 213; Tr. Vol. III pp. 4-6, 88-89. He dropped that request, however, after

seeing the “Specific Findings” form the court drafted. Tr. Vol. III pp. 90-93.

The form provided:

Appellant’s App. Vol. II p. 136. The court gave this form to the jury along with

the verdict forms.

Court of Appeals of Indiana | Opinion 24A-CR-2295 | August 27, 2025 Page 5 of 13 [9] The jury found Nielson guilty of Level 1 felony child molesting and one count

of Level 4 felony child molesting but not guilty on the other three counts of

Level 4 felony child molesting and the criminal-confinement count. As to the

Level 1 felony, the jury also used the “Specific Findings” form to find that the

offense involved “other sexual conduct” and that at the time of the offense

Nielson was at least 21 and D.N. was under 12.

[10] The trial court sentenced Nielson to 22 years in the Department of Correction.

It also found him to be a credit-restricted felon, stating, “There was a finding

that was made by the jury concerning the age of the defendant and the age of

the victim in this matter. So it’s my finding that the defendant is a credit

restricted felon.” Tr. Vol. III pp. 160-61. Nielson didn’t object to this

determination or to the procedure the court used to reach it.

[11] Nielson now appeals.

Discussion and Decision I. The trial court didn’t commit fundamental error by giving the “slightest penetration” jury instruction [12] Nielson contends that the trial court shouldn’t have instructed the jury that

“[t]he ‘slightest penetration’ of the female sex organ, including penetration of

the external genitalia, is sufficient to sustain a conviction for child molestation.”

He acknowledges that he didn’t object to this instruction, that he therefore

waived the issue for appeal, and that he must show fundamental error. See C.S.

v. State, 131 N.E.3d 592, 595 (Ind. 2019). An error is fundamental if it “made a

Court of Appeals of Indiana | Opinion 24A-CR-2295 | August 27, 2025 Page 6 of 13 fair trial impossible” or if it “constituted a clearly blatant violation of basic and

elementary principles of due process presenting an undeniable and substantial

potential for harm.” Id. This is a “daunting” standard that applies only when

there is an error so egregious that the trial court should have taken action sua

sponte. Id.

[13] We first address the State’s argument that Nielson invited any error in this

regard and is therefore barred from claiming fundamental error. It is true that

“[t]he invited-error doctrine generally precludes a party from obtaining

appellate relief for his own errors, even if those errors were fundamental.” Miller

v. State, 188 N.E.3d 871, 874-75 (Ind. 2022). But the doctrine is narrow:

A party invites an error if it was part of a deliberate, well- informed trial strategy. This means there must be evidence of counsel’s strategic maneuvering at trial to establish invited error. Mere neglect or the failure to object, standing alone, is simply not enough. And when there is no evidence of counsel’s strategic maneuvering, we are reluctant to find invited error.

Id. at 875 (citation modified). Here, when the State asked for the challenged

instruction and another instruction, Nielson’s attorney said, “I agree that those

are nonpattern instructions that seem to be standard in every sexual assault case

that I have been on. So I think that they’re de facto patterns that the Indiana

Supreme Court has approved of.” Tr. Vol. III p. 62. This wasn’t a strategic

request for the instruction. This was counsel explaining why he believed he

didn’t have a meritorious objection. Because Nielson didn’t invite the alleged

error, we will address his fundamental-error argument.

Court of Appeals of Indiana | Opinion 24A-CR-2295 | August 27, 2025 Page 7 of 13 [14] Nielson notes that the language of the instruction was taken from case law

addressing sufficiency-of-the-evidence claims about penetration, see, e.g., Boggs v.

State, 104 N.E.3d 1287, 1288 (Ind. 2018), and that our Supreme Court has held

that appellate sufficiency review will “rarely, if ever,” be an appropriate basis

for a jury instruction, Keller v. State, 47 N.E.3d 1205, 1209 (Ind. 2016). Nielson

argues that inclusion of the phrase “including penetration of the external

genitalia” restricted the jury’s discretion by emphasizing a specific set of facts.

He also asserts that the phrase “sufficient to sustain” is an appellate concept

that was irrelevant to the jury’s role as the finder of fact and was likely to

confuse or mislead the jury.

[15] But any problems with the instruction weren’t so egregious that they rose to the

level of fundamental error. First, the instruction was a correct statement of

Indiana law. See Boggs, 104 N.E.3d at 1288 (holding that “proof of the ‘slightest

penetration’ of the female sex organ, including penetration of the external

genitalia, is sufficient to sustain a conviction for child molestation”). Second,

“There is no blanket prohibition against the use of appellate decision language

in jury instructions.” Munford v. State, 923 N.E.2d 11, 15 (Ind. Ct. App. 2010).

Third, and most importantly, this wasn’t a case where the jury had to decide

whether there was “slight penetration” or “penetration of the external

genitalia.” Cf. Austin v. State, 201 N.E.3d 1184 (Ind. Ct. App. 2022) (holding

that penetration wasn’t proven where the victim testified only that the

defendant “used his ‘whole hand’ to rub ‘up and down’ on the ‘outside’ of her

‘private part’ and that it made her feel ‘tingly’”). D.N. testified that Nielson put

Court of Appeals of Indiana | Opinion 24A-CR-2295 | August 27, 2025 Page 8 of 13 his finger “inside” her vagina, which would clearly constitute penetration. The

jury only had to decide whether it believed D.N. While giving the instruction

was unnecessary, its inclusion wasn’t fundamental error.

II. Nielson waived his arguments about the “Specific Findings” form and in any event hasn’t shown reversible error [16] Next, Nielson argues that the trial court shouldn’t have given the jury the

“Specific Findings” form, which addressed facts that would make a person a

credit-restricted felon. He cites Indiana Code section 35-38-1-7.8(a), which

provides, “At the time of sentencing, a court shall determine whether a person

is a credit restricted felon (as defined in IC 35-31.5-2-72).” By giving the jury the

“Specific Findings” form, Nielson claims, the court “abdicated” this

responsibility and improperly left the determination to the jury. Appellant’s Br.

pp. 16-17. Nielson didn’t make this argument to the trial court and therefore

waived it for purposes of appeal. See, e.g., Means v. State, 201 N.E.3d 1158, 1168

(Ind. 2023).

[17] Waiver notwithstanding, Nielson hasn’t shown any error. Through the

“Specific Findings” form, the jury only made factual findings that Nielson’s

Level 1 felony offense involved “other sexual conduct” and that, at the time of

the offense, Nielson was at least 21 and D.N. was under 12. At the sentencing

hearing, the trial court determined Nielson is a credit-restricted felon. While the

court based that conclusion on the jury’s findings, the fact remains that the

court made the ultimate determination.

Court of Appeals of Indiana | Opinion 24A-CR-2295 | August 27, 2025 Page 9 of 13 [18] Nielson offers a second reason why the court shouldn’t have given the form to

the jury. He contends that doing so “tainted the jury’s deliberations” on the

underlying charges. Appellant’s Br. p. 19. Nielson also waived this argument.

While he initially asked the trial court to bifurcate the trial and have the jury

consider the special findings in a second phase, he dropped that request when

he saw the form the court had drafted.

[19] Waiver notwithstanding, Nielson hasn’t shown any error. He argues that the

form “unnecessarily emphasized” the Level 1 felony charge over the other

charges, id. at 20, but he doesn’t explain how. He also argues that the form

“unnecessarily emphasized the age of D.N., the age of Nielson, and the

existence of sexual conduct.” Id. But this was a prosecution for child molesting.

As with any such prosecution, the age of the victim, the age of the defendant,

and the existence of sexual conduct were front and center throughout the trial.

Indeed, the Level 1 felony charge required the jury to determine if D.N. was

under 14, if Nielson was at least 21, and if Nielson committed “other sexual

conduct.” The only additional fact included in the “Specific Findings” form

was whether D.N. was under 12, not just under 14. We fail to see how Nielson

was prejudiced by that minor variation, especially given D.N.’s testimony that

the last molestation occurred years before she was 12 or 14.

[20] Giving the jury the “Specific Findings” form was not reversible error.

Court of Appeals of Indiana | Opinion 24A-CR-2295 | August 27, 2025 Page 10 of 13 III. The evidence is sufficient to support the convictions [21] Finally, Nielson contends the evidence is insufficient to support his convictions.

He doesn’t dispute that D.N.’s testimony, if believed, would prove the charges.

Rather, he asks us to disregard D.N.’s testimony under the doctrine of

incredible dubiosity. Under this doctrine, we can impinge upon a fact-finder’s

responsibility to judge the credibility of the witnesses when “the testimony is so

incredibly dubious or inherently improbable that no reasonable person could

believe it.” Hampton v. State, 921 N.E.2d 27, 29 (Ind. Ct. App. 2010), reh’g

denied, trans. denied. The doctrine “requires that there be: 1) a sole testifying

witness; 2) testimony that is inherently contradictory, equivocal, or the result of

coercion; and 3) a complete absence of circumstantial evidence.” Moore v. State,

27 N.E.3d 749, 756 (Ind. 2015). Application of this rule is rare. Leyva v. State,

971 N.E.2d 699, 702 (Ind. Ct. App. 2012), trans. denied.

[22] While D.N. was the sole testifying witness as to the molestation, Nielson hasn’t

shown that her testimony was inherently contradictory, equivocal, or the result

of coercion. He points out possible discrepancies on a few details, e.g., whether

everyone else in the house was asleep when the molestation occurred, whether

she was seven-and-a-half or eight-and-a-half when Nielson penetrated her

vagina with his finger, whether Nielson said anything before, during, or after

each act of molestation, and what Nielson told her about video cameras in the

house. He also challenges as unbelievable other parts of D.N.’s testimony,

namely, that no one in the house witnessed or became aware of the molestation

over the course of three years, that her toddler sister was often awake after

Court of Appeals of Indiana | Opinion 24A-CR-2295 | August 27, 2025 Page 11 of 13 everyone else in the house had gone to bed, and that Nielson didn’t speak

during any of the molestation. But these aspects of D.N.’s testimony didn’t

make it so “inherently improbable that no reasonable person could believe it.”

They were just factors for the jury to consider in evaluating D.N.’s credibility.

And the jury obviously thought hard about D.N.’s credibility, as it found

Nielson not guilty on four of the six counts.

[23] In any event, application of the incredible-dubiosity doctrine also requires “a

complete absence of circumstantial evidence,” which didn’t exist here. D.N.’s

mother testified that D.N. was sick, scared, and nervous when she had to go to

Nielson’s house; that D.N. would vomit, have diarrhea, and pick her nails until

they bled and that she struggled at school; that D.N. was crying and shaking

when she disclosed the abuse; and that after D.N. disclosed the abuse and

stopped going to Nielson’s house, both her health and her grades improved. All

this is circumstantial evidence supporting Nielson’s convictions.

[24] For these reasons, Nielson’s incredible-dubiosity argument fails.

[25] Affirmed.

Bailey, J., and DeBoer, J., concur.

ATTORNEY FOR APPELLANT Joshua Vincent Marion County Public Defender Agency Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 24A-CR-2295 | August 27, 2025 Page 12 of 13 ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 24A-CR-2295 | August 27, 2025 Page 13 of 13