Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015 Page 1 of 9

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

Patricia Caress McMath

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Anthony D. Evinger,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

February 17, 2015

Court of Appeals Case No.

84A01-1408-CR-327

Appeal from the Vigo Superior 

Court.

The Honorable John T. Roach, 

Judge.

Cause No. 84D01-1208-FC-2875

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015 Page 2 of 9

[1] Anthony Evinger appeals his conviction for Child Molesting,1 a class C felony. 

He argues that it was fundamental error for the trial court to allow the State to 

condition the jury in its favor during voir dire. He also contends that the trial 

court committed fundamental error when it allowed T.B. to testify to multiple 

incidents of molestation. Finding no fundamental error, we affirm. 

Facts

[2] T.B. was eight years old during the summer of 2011. Her mother arranged for 

T.B.’s great aunt, Darla Evinger, to provide after-school care for T.B. Both 

T.B. and her younger brother would go to Darla’s home when they finished 

school, and their mother would pick them up after work. Evinger is T.B.’s 

cousin, and he visited Darla’s home occasionally. Sometimes his then-fiancée,

Samantha, would accompany him. 

[3] Sometime in 2011, T.B.’s mother began to notice a change in her behavior. 

T.B. no longer wanted to go to Darla’s home and asked to stay with her 

grandmother or another relative. While T.B. had previously lingered to speak 

with Darla when her mother arrived after work, she now insisted that they leave 

Darla’s home as soon as her mother came to collect her. 

[4] T.B. attended a YMCA camp sometime in 2012. While she was there, Terre 

Haute Police Department Lieutenant James Brentlinger visited the camp to give 

 

1

Ind. Code § 35-42-4-3(b). 
Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015 Page 3 of 9

a presentation to the children on “good touch, bad touch.” Tr. p. 342. After 

the presentation, a camp counselor told Lieutenant Brentlinger that T.B. had 

reported that she had been touched inappropriately. Lieutenant Brentlinger met 

with T.B. and arranged for her to speak with the Child Advocacy Center. T.B. 

revealed that she had been molested by her cousin, Evinger, while she was at 

Darla’s home. At this point, the investigation was transferred to the Vigo 

County Sheriff’s Department. A deputy took Evinger’s statement, wherein

Evinger denied molesting T.B.

[5] On September 4, 2012, the State charged Evinger with child molesting. His 

two-day jury trial began on June 9, 2014. At trial, T.B. testified regarding 

multiple instances of molestation. T.B. testified that in 2011, Evinger molested 

her at Darla’s home. Evinger would have T.B. sit on his lap on a couch in the 

living room. He would then slide his hands beneath her pants and touch her 

vagina. This occurred on seven or eight different occasions. T.B. testified that 

other children were in the room while this occurred and that, on one occasion, 

Evinger’s fiancée was also in the room. On at least one occasion, Evinger used 

a blanket to cover himself and T.B. while he touched her. 

[6] T.B. testified that the last time Evinger touched her, she refused to get on his 

lap, but Evinger forced her to do so. T.B. stated that she continued to get on 

Evinger’s lap because she trusted him, and she did not believe that he would 

continue to touch her. Evinger did not object to T.B.’s testimony. 
Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015 Page 4 of 9

[7] The jury found Evinger guilty as charged. On July 10, 2014, the trial court 

sentenced Evinger to six years, with three years suspended to probation. 

Evinger now appeals. 

Discussion and Decision

[8] Evinger argues that it was fundamental error for the trial court to allow the 

State to condition the jury during voir dire. He contends that the prosecutor 

introduced substantive facts about the case and conditioned the jury when he 

asked prospective jurors whether they would discount the testimony of a young 

child because of a delay in reporting. The trial court has broad discretionary 

power in regulating the form and substance of voir dire examination. Hopkins v. 

State, 429 N.E.2d 631, 634 (Ind. 1981). In general, the decision of the trial 

court will be reversed only if there is a showing of a manifest abuse of discretion

and a denial of a fair trial. Logan v. State, 729 N.E.2d 125, 133 (Ind. 2000). 

“This will usually require a showing by the defendant that he was in some way 

prejudiced by the voir dire.” Id.

[9] Voir dire examination is not to be used to educate jurors, but to ascertain 

whether jurors can render a fair and impartial verdict in accordance with the 

law and the evidence. Coy v. State, 720 N.E.2d 370, 372 (Ind. 1999). Our 

Supreme Court has stated that it is improper to use voir dire “to implant in 

jurors’ minds ideas about the substantive facts of the case being tried.” Id. 

However, it is acceptable to use voir dire “to inquire into jurors’ biases or 
Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015 Page 5 of 9

tendencies to believe or disbelieve certain things about the nature of the crime 

itself or about the particular line of defense.” Id.

[10] Here, Evinger failed to object to the prosecutor’s voir dire examination. 

Therefore, he must make a showing of fundamental error. Fundamental error 

is an extremely narrow exception to the waiver rule where the defendant faces 

the heavy burden of showing that the alleged errors are so prejudicial to the 

defendant’s rights that a fair trial is rendered impossible. Ryan v. State, 9 N.E.3d 

663, 668 (Ind. 2014). In order to establish fundamental error, the defendant 

must show that, under the circumstances, the trial judge erred in not sua sponte 

raising the issue because the alleged errors “(a) constitute clearly blatant 

violations of basic and elementary principles of due process and (b) present an 

undeniable and substantial potential for harm.” Id. (internal quotations 

omitted). 

[11] During voir dire examination, the prosecutor asked prospective jurors if they 

would “automatically discount the testimony of a young girl just because she 

may have waited to, to tell someone the situation” and inquired as to whether 

they would have any concerns about the delay. Tr. p. 131-33. He also told the 

jurors that “when you’re talking about a child and an older individual, it’s not 

uncommon for someone to delay in reporting.” Tr. p. 130. The prosecutor 

continued on, asking jurors to provide reasons as to why a child might not 

immediately report a molestation. Some of the answers provided included 

“embarrassment,” “because they’re scared,” and “they think they may not be 

believed.” Id. at 131. 
Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015 Page 6 of 9

[12] As noted above, the State was entitled to use voir dire “to inquire into jurors’

biases or tendencies to believe or disbelieve certain things about the nature of 

the crime itself or about the particular line of defense.” Hopkins, 429 N.E.2d at 

635. The State was free to question the prospective jurors concerning their 

biases, just as Evinger was free to question the prospective jurors regarding 

possible prejudices in favor of children who may have been molested. Tr. p. 59-

60. Therefore, the State could properly ask prospective jurors whether they 

would discount the testimony of a young child because of a delay in reporting. 

However, the prosecutor’s statements informing the jury about the tendencies 

of children to delay are concerning, as they are uncomfortably close to the line 

between inquiring and informing. While we would caution counsel to be 

mindful of this distinction, we do not find that it rose to the level of 

fundamental error such that a fair trial was rendered impossible. 

[13] Evinger also argues that fundamental error occurred when the trial court 

allowed T.B. to testify to multiple incidents of molestation. He maintains that 

this evidence was introduced in violation of Indiana Rule of Evidence 404(b). 

The admission of evidence at trial is a matter left to the discretion of the trial 

court. Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). We review these 

determinations for abuse of that discretion, and will reverse only when 

admission is clearly against the logic and effect of the facts and circumstances 

and the error affects a party’s substantial rights. Id. at 260.

[14] Evinger did not object to T.B.’s testimony at the time of trial, but he contends 

that the trial court’s decision to allow T.B. to testify regarding multiple 
Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015 Page 7 of 9

incidents of molestation amounts to fundamental error. As noted above, 

fundamental error is an extremely narrow exception to the waiver rule where 

the defendant faces the heavy burden of showing that the alleged errors are so 

prejudicial to the defendant’s rights that a fair trial is rendered impossible. 

Ryan, 9 N.E.3d at 668. 

[15] Evinger contends that, as he was only charged with one count of child 

molesting, it was fundamental error for the trial court to allow T.B. to testify to 

multiple instances of molestation in violation of Rule 404(b). Rule 404(b) 

provides that “[e]vidence of a crime, wrong, or other act is not admissible to 

prove a person’s character in order to show that on a particular occasion the 

person acted in accordance with the character.” Evinger alleges that the State 

introduced evidence of prior bad acts to show that he has a propensity to molest 

and that he acted in accordance with that propensity to commit the charged 

crime. 

[16] To bolster his argument, Evinger attempts to distinguish his case from a line of 

cases including Garner v. State, 754 N.E.2d 984, 993 (Ind. Ct. App. 2001), and 

Marshall v. State, 893 N.E.2d 1170, 1175 (Ind. Ct. App. 2008). In both cases, a 

panel of this Court determined that the trial court did not err in admitting 

evidence of repeated incidents of molestation, as those incidences fell within the 

charged time period and therefore constituted direct evidence of the crime 

charged. Id. Evinger argues that his case is distinguishable because both 

Marshall and Garner were charged with multiple counts of child molesting, 

while he was charged only with one. Evinger seems to be arguing that evidence 
Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015 Page 8 of 9

of multiple incidents of molestation may only be admitted into evidence against 

a defendant charged with multiple counts of child molesting. 

[17] Evinger has misinterpreted both Garner and Marshall, and the instant case is not 

distinguishable. In both of the above cases, testimony regarding repeated 

molestations that outnumbered the charged counts of child molesting was 

allowed into evidence. Garner, 754 N.E.2d at 992; Marshall, 893 N.E.2d at 

1175-76. In both cases, this Court determined that the evidence was not 

admitted to show that the defendant acted in accordance with character to 

commit the crime, but rather, to show that the defendant committed the 

crime(s) charged. See. id. at 1175. (“[T]he evidence in the present case was not 

presented to establish an exception to 404(b), such as motive or intent or plan; 

rather, it was presented as direct evidence of the charged molestations.”). 

[18] Therefore, the admissibility of such evidence does not turn on the number of 

charged counts of child molesting, as Evinger would have it. Rather, 

admissibility is dependent upon the purpose for which the evidence is being 

offered. Here, the State presented evidence that Evinger touched T.B. on 

multiple occasions within the charging dates, not to prove that he had the 

propensity to molest T.B., but to show that he committed the crime charged.2 

Therefore, the trial court did not err in admitting T.B.’s testimony. 

 

2

Furthermore, Evinger has shown that T.B.’s testimony does not amount to fundamental error by using it to 

bolster his defense. During closing argument, defense counsel argued that T.B.’s testimony that Evinger 

molested her numerous times made T.B.’s entire testimony implausible: 
Court of Appeals of Indiana | Memorandum Decision 84A01-1408-CR-327 | February 17, 2015 Page 9 of 9

[19] The judgment of the trial court is affirmed. 

Vaidik, C.J., and Riley, J., concur.

 

Next [T.B.] testified that Anthony was sitting on the couch, and she would go sit on the 

couch with him, and she did this not once, not twice, not three (3) times, not four (4) 

times, not five (5) times, not six (6) times, but seven (7) or eight (8) times. . . . A ten (10) 

year old knows enough that if you touch a stove and it’s hot and it burns, you don’t go 

back and touch it again. And if there’s someone who’s sitting on the couch who you 

claim is molesting you, you don’t go back and sit on that couch with him. It does not 

make sense. 

Tr. p. 452-53. In Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014), our Supreme Court stated that, “if the 

judge could recognize a viable reason why an effective attorney might not object, the error is not blatant 

enough to constitute fundamental error.” Here, it is clear that Evinger used T.B.’s testimony of multiple 

incidents of molestation to claim that she was not a credible witness as a part of his defense strategy. 

Therefore, there is a clearly a strategic, viable reason why defense counsel might not have objected, and any 

error would not have risen to the level of fundamental error.