Court of Appeals of Indiana | Memorandum Decision 84A05-1504-CR-164 |December 10, 2015 Page 1 of 7

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

Cara Schaefer Wieneke

Wieneke Law Office, LLC

Plainfield, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana 

Justin F. Roebel

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Thomas H. Molina,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 10, 2015

Court of Appeals Case No.

84A05-1504-CR-164

Appeal from the Vigo Superior 

Court

The Honorable David R. Bolk, 

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 2 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).
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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. 
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[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 
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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 
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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. 
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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.