MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 10 2015, 9:41 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Wieneke Law Office, LLC Attorney General of Indiana Plainfield, Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas H. Molina, December 10, 2015 Appellant-Defendant, Court of Appeals Case No. 84A05-1504-CR-164 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable David R. Bolk, Appellee-Plaintiff. Judge Trial Court Cause No. 84D03-1402-FA-520
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015 Page 1 of 7 [1] Thomas H. Molina (“Molina”) was convicted after a jury trial of child
molesting1 as a Class A felony, child molesting2 as a Class C felony, and one
count of child solicitation3 as a Class D felony and sentenced to an aggregate
term of thirty years executed. He appeals, raising the following restated issue:
Whether the trial court’s admission of video evidence pursuant to Indiana
Evidence Rule 404(b) constituted fundamental error.
[2] We affirm.
Facts and Procedural History [3] In 2010, when C.H. was eleven years old, she lived with her mother and
stepfather, Molina. At that time, C.H.’s mother was pregnant with Molina’s
child. In January 2014, C.H. made an allegation of sexual abuse to the
authorities. C.H. told police that, in 2010, Molina asked her if she wanted to
have sex with him on several occasions. Additionally, during the same period
in 2010, Molina instructed C.H. to go into the bedroom with him, and he
touched her with a vibrator outside her clothing in the vaginal area. Molina
then put his hand down C.H.’s pants, and she felt him digitally penetrate her.
When C.H. told Molina to stop, he complied, but became very angry with her
1 Ind. Code 35-42-4-3(a)(1). 2 Ind. Code 35-42-4-3(b). 3 Ind. Code 35-42-4-6(b)(1).
Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015 Page 2 of 7 and told her to leave. No further sexual contact occurred between C.H. and
Molina after this incident.
[4] The police also spoke to C.H.’s mother, who later provided them with a video
camcorder, which she believed had only been used by Molina. The police
discovered that the camcorder’s memory contained two videos of C.H. that
appeared to have been filmed through a crack in the bathroom floor of the
home in which Molina lived with C.H. and C.H.’s mother. The brief videos
show C.H. toweling-off after a shower and include images of her naked pubic
area and chest. Additionally, the record shows that Molina purchased the
camcorder, and no one in the household other than Molina could have filmed
the videos at issue.
[5] On February 28, 2014, the State charged Molina with child molesting as a Class
A felony, child molesting as a Class C felony, and two counts of child
solicitation, each as a Class D felony. Prior to trial, Molina filed a motion in
limine under Indiana Evidence Rule 404(b) to prohibit any allegations or
exclude any evidence that did not involve the victim of the charged offenses,
C.H. The trial court granted Molina’s request.
[6] A jury trial was held on February 24 and 25, 2015. During the trial, Molina did
not object to testimony regarding the two videos. However, Molina objected to
the admission of the actual videos arguing that they were irrelevant, unduly
prejudicial, and the chain of custody was insufficient. The trial court admitted
the videos over Molina’s objections.
Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015 Page 3 of 7 [7] At the conclusion of the trial, the jury found Molina guilty of child molesting as
a Class A felony, child molesting as a Class C felony, and one count of child
solicitation as a Class D felony. Molina was later sentenced to thirty years for
child molesting as a Class A felony, four years for child molesting as a Class C
felony, and eighteen months for child solicitation as a Class D felony. The trial
court ordered the three sentences to be served concurrently for an aggregate
sentence of thirty years executed. Molina now appeals.
Discussion and Decision [8] Molina argues that the trial court erroneously admitted evidence consisting of
two surreptitiously filmed videos of C.H. bathing. The trial court has broad
discretion in ruling on the admission or exclusion of evidence. Gutierrez v. State,
961 N.E.2d 1030, 1034 (Ind. Ct. App. 2012). On review, we will only disturb
such a ruling upon a showing of an abuse of discretion by the trial court. Id.
An abuse of discretion occurs when the trial court’s ruling is clearly against the
facts, logic, and circumstances presented. Oatts v. State, 899 N.E.2d 714, 719
(Ind. Ct. App. 2009). However, as Molina recognizes, he did not adequately
preserve the issue for appeal because he failed to object to the initial testimony
describing the videos. To avoid waiver of review, Molina invokes the
fundamental error doctrine, which permits appellate review of otherwise
procedurally deficient claims. Sasser v. State, 945 N.E.2d 201, 203 (Ind. Ct.
App. 2011), trans. denied. The fundamental error doctrine is extremely narrow
and requires an error “so prejudicial that a fair trial is impossible.” Southward v.
State, 957 N.E.2d 975, 977 (Ind. Ct. App. 2011). “Blatant violations of basic
Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015 Page 4 of 7 principles, coupled with substantial actual or potential harm and the denial of
due process constitutes fundamental error.” Id.
[9] Molina asserts that the videos were inadmissible character evidence pursuant to
Indiana Evidence Rule 404(b). He argues that the video evidence was
improperly used to show Molina’s propensity to sexually abuse C.H. and his
sexual depravity. Indiana Evidence Rule 404(b) provides that “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.” Such evidence,
however, may be admissible for other purposes including, proof of motive, or to
help the jury understand the defendant’s relationship with the victim. See
Southward, 957 N.E.2d at 977. “In assessing the admissibility of Evidence Rule
404(b) evidence, the trial court must (1) determine whether 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) balance the probative
value of the evidence against its prejudicial effect.” Baker v. State, 997 N.E.2d
67, 70 (Ind. Ct. App. 2013). The well-established rationale behind the rule is
“to prevent the jury from assessing a defendant’s present guilt on the basis of his
propensities -- the so-called forbidden inference.” Ceaser v. State, 964 N.E.2d
911, 915 (Ind. Ct. App. 2012).
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 10 2015, 9:41 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Wieneke Law Office, LLC Attorney General of Indiana Plainfield, Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas H. Molina, December 10, 2015 Appellant-Defendant, Court of Appeals Case No. 84A05-1504-CR-164 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable David R. Bolk, Appellee-Plaintiff. Judge Trial Court Cause No. 84D03-1402-FA-520
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015 Page 1 of 7 [1] Thomas H. Molina (“Molina”) was convicted after a jury trial of child
molesting1 as a Class A felony, child molesting2 as a Class C felony, and one
count of child solicitation3 as a Class D felony and sentenced to an aggregate
term of thirty years executed. He appeals, raising the following restated issue:
Whether the trial court’s admission of video evidence pursuant to Indiana
Evidence Rule 404(b) constituted fundamental error.
[2] We affirm.
Facts and Procedural History [3] In 2010, when C.H. was eleven years old, she lived with her mother and
stepfather, Molina. At that time, C.H.’s mother was pregnant with Molina’s
child. In January 2014, C.H. made an allegation of sexual abuse to the
authorities. C.H. told police that, in 2010, Molina asked her if she wanted to
have sex with him on several occasions. Additionally, during the same period
in 2010, Molina instructed C.H. to go into the bedroom with him, and he
touched her with a vibrator outside her clothing in the vaginal area. Molina
then put his hand down C.H.’s pants, and she felt him digitally penetrate her.
When C.H. told Molina to stop, he complied, but became very angry with her
1 Ind. Code 35-42-4-3(a)(1). 2 Ind. Code 35-42-4-3(b). 3 Ind. Code 35-42-4-6(b)(1).
Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015 Page 2 of 7 and told her to leave. No further sexual contact occurred between C.H. and
Molina after this incident.
[4] The police also spoke to C.H.’s mother, who later provided them with a video
camcorder, which she believed had only been used by Molina. The police
discovered that the camcorder’s memory contained two videos of C.H. that
appeared to have been filmed through a crack in the bathroom floor of the
home in which Molina lived with C.H. and C.H.’s mother. The brief videos
show C.H. toweling-off after a shower and include images of her naked pubic
area and chest. Additionally, the record shows that Molina purchased the
camcorder, and no one in the household other than Molina could have filmed
the videos at issue.
[5] On February 28, 2014, the State charged Molina with child molesting as a Class
A felony, child molesting as a Class C felony, and two counts of child
solicitation, each as a Class D felony. Prior to trial, Molina filed a motion in
limine under Indiana Evidence Rule 404(b) to prohibit any allegations or
exclude any evidence that did not involve the victim of the charged offenses,
C.H. The trial court granted Molina’s request.
[6] A jury trial was held on February 24 and 25, 2015. During the trial, Molina did
not object to testimony regarding the two videos. However, Molina objected to
the admission of the actual videos arguing that they were irrelevant, unduly
prejudicial, and the chain of custody was insufficient. The trial court admitted
the videos over Molina’s objections.
Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015 Page 3 of 7 [7] At the conclusion of the trial, the jury found Molina guilty of child molesting as
a Class A felony, child molesting as a Class C felony, and one count of child
solicitation as a Class D felony. Molina was later sentenced to thirty years for
child molesting as a Class A felony, four years for child molesting as a Class C
felony, and eighteen months for child solicitation as a Class D felony. The trial
court ordered the three sentences to be served concurrently for an aggregate
sentence of thirty years executed. Molina now appeals.
Discussion and Decision [8] Molina argues that the trial court erroneously admitted evidence consisting of
two surreptitiously filmed videos of C.H. bathing. The trial court has broad
discretion in ruling on the admission or exclusion of evidence. Gutierrez v. State,
961 N.E.2d 1030, 1034 (Ind. Ct. App. 2012). On review, we will only disturb
such a ruling upon a showing of an abuse of discretion by the trial court. Id.
An abuse of discretion occurs when the trial court’s ruling is clearly against the
facts, logic, and circumstances presented. Oatts v. State, 899 N.E.2d 714, 719
(Ind. Ct. App. 2009). However, as Molina recognizes, he did not adequately
preserve the issue for appeal because he failed to object to the initial testimony
describing the videos. To avoid waiver of review, Molina invokes the
fundamental error doctrine, which permits appellate review of otherwise
procedurally deficient claims. Sasser v. State, 945 N.E.2d 201, 203 (Ind. Ct.
App. 2011), trans. denied. The fundamental error doctrine is extremely narrow
and requires an error “so prejudicial that a fair trial is impossible.” Southward v.
State, 957 N.E.2d 975, 977 (Ind. Ct. App. 2011). “Blatant violations of basic
Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015 Page 4 of 7 principles, coupled with substantial actual or potential harm and the denial of
due process constitutes fundamental error.” Id.
[9] Molina asserts that the videos were inadmissible character evidence pursuant to
Indiana Evidence Rule 404(b). He argues that the video evidence was
improperly used to show Molina’s propensity to sexually abuse C.H. and his
sexual depravity. Indiana Evidence Rule 404(b) provides that “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.” Such evidence,
however, may be admissible for other purposes including, proof of motive, or to
help the jury understand the defendant’s relationship with the victim. See
Southward, 957 N.E.2d at 977. “In assessing the admissibility of Evidence Rule
404(b) evidence, the trial court must (1) determine whether 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) balance the probative
value of the evidence against its prejudicial effect.” Baker v. State, 997 N.E.2d
67, 70 (Ind. Ct. App. 2013). The well-established rationale behind the rule is
“to prevent the jury from assessing a defendant’s present guilt on the basis of his
propensities -- the so-called forbidden inference.” Ceaser v. State, 964 N.E.2d
911, 915 (Ind. Ct. App. 2012).
[10] The State argues that the video evidence illustrated how Molina “sexualized his
juvenile stepdaughter,” and is direct evidence of Molina’s “motive to commit
the charged crimes and [his] relationship with C.H.” Appellee’s Br. at 7, 10. We
agree. Here, the videos show the same victim as the charged offenses in the
Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015 Page 5 of 7 same home in which C.H. and Molina were living during the relevant time
period. Moreover, Molina admits that the “creator of the videos . . . clearly . . .
intended to use the videos for his own sexual desires.” Id. at 11.
[11] Additionally, Molina claims that the videos were irrelevant and unrelated to the
offenses in question because they were created some time after the offenses took
place. Specifically, Molina contends that the “content of the videos could not
have been the impulse that induced [him] to commit the offenses because they
were created after the offenses occurred.” We disagree. “Although cases
typically involve the issue of whether prior bad acts of the defendant are
admissible, the wording of Trial Rule 404(b) does not suggest that it only
applies to prior bad acts and not subsequent ones.” Southern v. State, 878
N.E.2d 315, 322 (Ind. Ct. App. 2007) (emphasis in original), trans. denied.
Therefore, when determining the admissibility of evidence of subsequent crimes
or wrongs, it is appropriate to use the Indiana Evidence Rule 404(b) test. Id.
[12] While the video evidence that was admitted at trial was undoubtedly
prejudicial, it was also highly probative of Molina’s perpetration of the charged
of offenses. The videos of C.H. surreptitiously taken by Molina were relevant
direct evidence of Molina’s relationship with C.H. and motive. Finding that
the evidence is admissible under Indiana Evidence Rule 404(b), we conclude
that Molina failed to establish fundamental error on this point.
[13] Finally, Molina argues that the trial court erred when it admitted the video
evidence under Indiana Evidence Rule 404(b) without a limiting instruction.
Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015 Page 6 of 7 However, as Molina recognizes, he did not request that a limiting instruction be
given at the time the evidence was admitted. Consequently, Molina must show
that the court’s failure to issue a limiting instruction was fundamental error in
order to avoid waiver of review.
[14] “Our evidence rules place the onus for securing a limiting admonition on the
parties.” Humphrey v. State, 680 N.E.2d 836, 839 (Ind. 1997). Indiana Evidence
Rule 105 provides that “[w]hen evidence [that] is admissible . . . for one
purpose but not admissible . . . for another purpose is admitted, the court, upon
request, shall restrict the evidence to its proper scope and admonish the jury
accordingly.” (Emphasis added). The trial court is not precluded from giving a
limiting instruction sua sponte, but Indiana Evidence Rule 105 does not impose
an affirmative duty to do so. Humphrey, 680 N.E.2d at 839. Additionally, there
are policy reasons for leaving the decision of securing a limiting instruction on
the parties. Id. There are some cases where trial strategy may dictate not
requesting a limiting instruction because it may do more harm than good by
highlighting an undesirable aspect of the evidence for the jury. Id. Imposing a
sua sponte duty on trial courts to instruct the jury whenever a limited
admissibility situation arises would effectively take strategic decisions better left
to the parties out of their hands. Id. Accordingly, the trial court did not err, nor
did it commit a fundamental error, when it failed to give a limiting instruction
sua sponte. Affirmed.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015 Page 7 of 7