FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

HILARY BOWE RICKS GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

CYNTHIA L. PLOUGHE

Deputy Attorney General

Indianapolis, Indiana

IN THE 

COURT OF APPEALS OF INDIANA

AUDIE WILSON, )

)

Appellant-Defendant, )

)

 vs. ) No. 49A02-1210-CR-846

)

STATE OF INDIANA, )

)

Appellee-Plaintiff, )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Kurt M. Eisgruber, Judge

Cause No. 49G01-1108-FB-60263

October 18, 2013

OPINION – FOR PUBLICATION

BAILEY, Judge
2

Case Summary

Audie Wilson (“Wilson”) was convicted, following a jury trial, of Sexual 

Misconduct with a Minor, as a Class B felony;1 Attempted Sexual Misconduct with a 

Minor, as a Class B felony;2 and Sexual Misconduct with a Minor, as a Class C felony.3 

He now appeals.

We affirm.4

Issues

Wilson raises two issues for our review, which we restate and revise as:

I. Whether the trial court abused its discretion when it admitted 

evidence of Wilson’s use of aliases; and

II. Whether the trial court committed fundamental error when it gave 

Jury Instruction 23.

Facts and Procedural History

During the week of June 17, 2011, as C.C. was walking home with a friend, J.D., 

from summer class at John Marshall High School, the two were approached by Wilson, 

who was driving a gold-colored van with tinted windows. Wilson asked if the two 

needed a job; he said his name was “Mike” and gave them his cell phone number.

C.C. got permission from his mother to work and called Wilson, who picked up 

C.C. and J.D. at the Family Dollar store on Shadeland Avenue and 38th Street. Wilson 

 

1

Ind. Code § 35-42-4-9(a)(1).

2

I.C. §§ 35-42-4-9(a)(1), 35-41-5-1.

3

I.C. § 35-42-4-9(a).

4 We heard oral argument on this case at The Grand in New Albany, Indiana on September 10, 2013. We 

thank The Grand and their guests from the Sherman Minton American Inn of Court for their hospitality, 

and the parties for their able advocacy.
3

had a power washer in the van, and they drove around looking for cars to wash. At one 

point, C.C. and Wilson had a conversation alone. The topic of C.C.’s age came up, and 

C.C. told Wilson that he was 15 years old and attending John Marshall High School.5 

After they had finished washing cars for the day, Wilson gave C.C. and J.D. $5 or $6 to 

split between themselves.

On June 17, 2011, J.D. could not join C.C., but C.C. called Wilson nonetheless. 

Wilson picked up C.C. in front of C.C.’s house in a different car and drove to the goldcolored van, which was parked at a Safeway parking lot near Shadeland Avenue. After 

they finished washing cars for the day, “[Wilson] discussed about a job [C.C.] could do, a 

little job,” but he would not tell C.C. what the job was. (Tr. at 53.) As compensation, 

Wilson offered C.C. shoes, “grills,” and necklaces. (Tr. at 54.) After C.C. agreed, 

Wilson drove to the interstate, and eventually into a downtown Indianapolis 

neighborhood with which C.C. was unfamiliar.

Once in the neighborhood, Wilson told C.C. “I want to go in this alley and suck 

your dick so you can get them things I said you could get.” (Tr. at 58.) C.C. was 

shocked and terrified; Wilson eventually arrived at a house, and told C.C. to get out of 

the van. C.C. got out of the van, but was scared, and did not know what to do; he did not 

feel like he could run away because he was in an unfamiliar neighborhood, and he was 

afraid Wilson would hurt him.

Wilson and C.C. went inside the house, which had no furnishings, and had 

blankets covering the windows. They went upstairs; Wilson took his clothes off, and told 

 

5 At trial, Wilson testified that C.C. had told him he was sixteen years old. (Tr. at 289.) However, C.C. 

testified that he had told Wilson that he was fifteen years old. (Tr. at 44.)
4

C.C. to take his clothes off, which he did. Wilson told C.C. “to lay down so he could do 

the job that he said he wanted to do.” (Tr. at 62.) Wilson touched C.C.’s penis, and gave 

C.C. oral sex. Wilson had C.C. lay on his stomach and tried to insert his penis into 

C.C.’s anus, but C.C. resisted, so Wilson rubbed his penis between C.C.’s legs until 

Wilson ejaculated.

Wilson then wiped “some clear stuff” from C.C.’s back, and they got dressed, left 

the house, and got back into the van. (Tr. at 65.) After stopping at a gas station to buy 

both of them a drink, Wilson dropped C.C. three blocks from his house.

After walking home, C.C. said “I don’t feel right,” and took a shower. (Tr. at 67.) 

When his mother asked him what was wrong, he told her what had happened, and she 

called the police.

On August 26, 2011, the State charged Wilson with Count I, Sexual Misconduct 

with a Minor, as a Class B felony; Count II, Attempted Sexual Misconduct with a Minor, 

as a Class B felony; and Count III, Sexual Misconduct with a Minor, as a Class C felony.

A jury trial was conducted on September 10 and 11, 2012. During direct 

examination, Wilson testified that he was known by the nickname “Mike.” (Tr. at 285-

86.) During cross-examination, the State asked Wilson about other nicknames he had 

used. Wilson’s attorney lodged an objection, which the trial court overruled, permitting 

the State to continue the line of questioning. Wilson thus testified that, while he did not 

go by the name “Audie Poston,” his mother’s last name was “Poston.” (Tr. at 297-98.) 

He further testified that he went by the name “Mr. CEO” in conjunction with a Facebook 
5

account. (Tr. at 298.) He denied ever using the names Nathan Alexander or James 

Wright. (Tr. at 298.)

Also during the trial, Wilson tendered a proposed jury instruction which stated:

It is a defense to a charge of sexual misconduct with a minor that the 

Defendant reasonably believed that the child was at least sixteen (16) years 

of age at the time of the charged conduct.

The burden is upon the State to prove beyond a reasonable doubt that the 

Defendant did not reasonably believe that [C.C.] was at least sixteen (16) 

years of age.

(App. at 65-66.)

At the close of the State’s case-in-chief, the following colloquy occurred about 

Wilson’s proposed jury instruction:

The Court: Okay. And then the defense proposed final was the reasonable 

belief instruction.

[Wilson]: And I have no objection to the State’s proposed, or I mean, 

excuse me, the Court’s proposed final in regards to the defense.

The Court: Okay. So we will put that in. “It is a defense that the 

Defendant reasonably believed that C.C. was 16 years of age or older. If 

the Defendant proved this by a preponderance of the evidence, you must 

find the Defendant not guilty of sexual misconduct with a minor.”

[Wilson]: No objection.

(Tr. at 278) (emphasis in original).

After the close of Wilson’s case-in-chief, the parties discussed the applicability of 

Moon v. State, 823 N.E.2d 710 (Ind. Ct. App. 2005), trans. denied, out of the hearing of 

the jury. (Tr. at 308-24.) The trial court decided to follow the pattern instruction. (Tr. at 

322-24.) 

Among the Final Instructions given by the trial court to the jury was the following:
6

Instruction Number 23

It is a defense that the Defendant reasonably believed that [C.C.] was 

sixteen years of age or older. If the Defendant proved this by a 

preponderance of the evidence, you must find the [D]efendant not 

guilty of sexual misconduct with a minor.

(App. at 70.) 

At the conclusion of the trial, the jury found Wilson guilty as charged of all three 

counts. On October 5, 2012, the trial court entered judgment of conviction and sentenced 

Wilson to sixteen years imprisonment with six years suspended for Count I, six years 

imprisonment for Count II, and four years imprisonment for Count III, with the sentences 

to be served concurrently. 

Wilson now appeals.

Discussion and Decision

Cross-Examination

Wilson contends that the trial court abused its discretion when it ruled as 

admissible on cross-examination evidence as to his use of nicknames.6 The decision to 

admit or exclude evidence at trial is squarely within a trial court’s discretion, and we 

afford it great deference on appeal. VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013). 

We will not reverse such a decision unless it is clearly contrary to the logic and effect of 

the facts and circumstances of the case or misinterprets the law. Id.

In general, all relevant evidence is admissible. Ind. Evidence Rule 402. 

“‘Relevant evidence’ means evidence having any tendency to make the existence of any 

 

6 Wilson also asserts that the trial court admitted evidence of his use of aliases in contravention of Indiana 

Rule of Evidence 404(b), which prohibits admission of character evidence to prove action in conformity 

therewith. However, his argument is more properly characterized under Indiana Rule of Evidence 403.
7

fact that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence.” Evid. R. 401. Relevant evidence “may 

be excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury[.]” Evid. R. 403. But,

otherwise inadmissible evidence may become admissible where the defendant “opens the 

door” to questioning on that evidence. Jackson v. State, 728 N.E.2d 147, 152 (Ind. 

2000). The trial court has discretion to permit the admission of even marginally relevant 

evidence. Thompson v. State, 671 N.E.2d 1165, 1171 (Ind. 1996). 

Our Supreme Court has stated that the unnecessary, excessive, or unproved use of 

aliases could create a connotation of criminality sufficient to thwart the fairness of a trial. 

Edgecomb v. State, 673 N.E.2d 1185, 1194-95 (Ind. 1996). The use of a nickname is 

questionable where there is no apparent reason not to use a defendant’s proper name, and 

even more so where the nickname itself carries at least the implication of wrongdoing. 

See McAbee v. State, 770 N.E.2d 802, 805 (Ind. 2002).

Here, Wilson testified during direct examination as to his use of the nickname 

“Mike,” thus opening the door to questioning during cross-examination as to his use of 

other nicknames. Further, none of the nicknames explored by the State carry any 

implication of wrongdoing. Therefore, the use of nicknames here does not create a 

connotation of criminality sufficient to thwart the fairness of a trial. The trial court thus 

did not abuse its discretion when it admitted evidence on cross-examination as to

Wilson’s use of nicknames.
8

Jury Instruction 23

Wilson contends that the trial court abused its discretion in giving to the jury Final 

Instruction 23. He argues7that he is entitled to a new trial because the instruction

improperly shifts to him the burden of proof as to whether he reasonably believed C.C.

was at least sixteen years old.

Ordinarily, we review for an abuse of discretion a trial court’s decision to give or 

refuse to give a party’s tendered jury instruction. Kane v. State, 976 N.E.2d 1228, 1231 

(Ind. 2012). An abuse of discretion occurs when the instructions, taken as a whole, 

mislead the jury as to the applicable law. Ham v. State, 826 N.E.2d 640, 641 (Ind. 2005). 

We consider: (1) whether the instruction correctly states the law; (2) whether there is 

evidence in the record to support the giving of the instruction; and (3) whether the 

substance of the tendered instruction is covered by other instructions that are given. 

Kane, 976 N.E.2d at 1230-31.

Here, however, Wilson failed to object at trial to Final Instruction 23, and thus he 

has waived appellate review of that instruction. See Ind. Crim. Rule 8(B); Baker v. State, 

948 N.E.2d 1169, 1178 (Ind. 2011). Wilson seeks to avoid waiver by claiming 

fundamental error. The fundamental error doctrine has extremely narrow applicability. 

Carter v. State, 754 N.E.2d 877, 881 (Ind. 2001). A fundamental error is a substantial, 

blatant violation of basic principles rendering the trial unfair to the defendant, and applies 

 

7 Wilson also makes the bald assertion that the shifting of the burden violates “his rights to due process 

under the United States and Indiana Constitutions[.]” (Appellant’s Br. at 19.) However, because he has 

failed to support this assertion with cogent argument, he has waived this issue. See Ind. Appellate Rule 

46(A)(8)(a).
9

only when the actual or potential harm cannot be denied. Id. The error must be so 

prejudicial to the defendant’s rights as to have made a fair trial impossible. Id.

Final Instruction 23 provides:

It is a defense that the Defendant reasonably believed that [C.C.] was 

sixteen years of age or older. If the Defendant proved this by a 

preponderance of the evidence, you must find the [D]efendant not guilty of 

sexual misconduct with a minor.

(App. at 70.) In a case involving a similar instruction, we concluded that “[t]he 

defendant’s knowledge of the victim’s age is not an element of the crime[.]” Moon, 823 

N.E.2d at 715 (emphasis in original). We thus held that there was no error in assigning to 

the defendant the burden to prove by a preponderance of the evidence that he reasonably 

believed that the victim was at least 16 years old. Id. at 716.

Wilson asserts that the Moon Court erred in holding that it was proper to instruct 

the jury that the burden to prove the “reasonable belief” defense was wholly on the 

defendant. He argues that the “reasonable belief” defense negates a material element of 

the crime—the defendant’s knowledge of the victim’s age—and thus the defendant’s 

knowledge of the victim’s age must be proven beyond a reasonable doubt by the State. 

We disagree.

“[I]n determining whether a statutory exception is a material element or an 

affirmative defense, we assess the location of the exception relative to the location of the 

definition of the principal offense.” Lyles v. State, 970 N.E.2d 140, 143 n.3 (Ind. 2012). 

“If the exception is closely connected with the clause creating the offense, the exception 

is a material element of [the] offense” that the State must prove. Id. (citing Russell v. 
10

State, 50 Ind. 174, 174 (1875)). But if “the exception is contained in a subsequent clause 

or statute, the exception is an affirmative defense that must be raised by the defendant.” 

Id. (citing Russell, 50 Ind. at 174). Furthermore, “[a] defendant bears an initial burden of 

proof by a preponderance of the evidence on any affirmative defense.” Adkins v. State, 

887 N.E.2d 934, 938 (Ind. 2008). However, the prosecution bears the ultimate burden of 

negating beyond a reasonable doubt any defense sufficiently raised by the defendant. 

Bradford v. State, 675 N.E.2d 296, 300 (Ind. 1996); see also Blatchford v. State, 673 

N.E.2d 781, 782-83 (Ind. Ct. App. 1996). 

Here, the statute that creates the offense does not, by its terms, include a 

knowledge requirement as to the victim’s age. See I.C. § 35-42-4-9(a). Further, the 

defense set forth by Section 35-42-4-9(c) is contained in a clause subsequent to that 

which defines the principal offense.8 Therefore, we conclude the defense does not negate 

an element of the crime, but instead is an affirmative defense that must be raised by the 

defendant and for which the defendant must bear the initial burden of proof. We thus 

 

8

I.C. § 35-42-4-9 provides that:

(a) A person at least eighteen (18) years of age who, with a child at least fourteen (14) 

years of age but less than sixteen (16) years of age, performs or submits to sexual 

intercourse or deviate sexual conduct commits sexual misconduct with a minor, a Class C 

felony. However, the offense is:

(1) a Class B felony if it is committed by a person at least twenty-one (21) years 

of age[.]

. . .

(c) It is a defense that the accused person reasonably believed that the child was at least 

sixteen (16) years of age at the time of the conduct. However, this subsection does not 

apply to an offense described in subsection (a)(2) or (b)(2).
11

agree with the result reached in Moon. And having so concluded, we hold that the giving 

of Final Instruction 23 was not fundamental error.9

Conclusion

The trial court did not abuse its discretion when it permitted the State to crossexamine Wilson regarding his use of other nicknames. Additionally, there was no 

fundamental error in giving Final Instruction 23.

Affirmed.

KIRSCH, J., and PYLE, J., concur.

 

9 Our conclusion does not address the propriety of Final Instruction 23 as given. Beyond the issue 

addressed, neither party challenged the language of this instruction. An instruction, when given, must 

correctly state the law. See Ham, 826 N.E.2d at 641; Kane, 976 N.E.2d at 1230-31. We believe the 

instruction as given was erroneous. However, any error in this instance inured to Wilson’s benefit.