Court of Appeals of Indiana | Memorandum Decision 18A-CR-472 | April 4, 2019 Page 1 of 14

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

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

James E. Harper

HARPER & HARPER

Valparaiso, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Supervising Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Anthony A. Mashburn,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 4, 2019

Court of Appeals Case No.

18A-CR-472

Appeal from the La Porte Superior 

Court

The Honorable Michael S. Bergerson, 

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 2 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 crossexamination 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-CR436, 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.