Michael F. Hartzburg, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Michael F. Hartzburg appeals following his convictions for Level 4 felony vicarious sexual gratification,¹ Level 5 felony sexual misconduct with a minor,² and Class B misdemeanor voyeurism.³ Hartzburg presents two issues for our review, which we revise and restate as:

1. Whether the trial court committed fundamental error when it instructed the jury regarding the crime of vicarious sexual gratification; and

2. Whether the trial court erred by prohibiting Hartzburg from questioning one of the victims about a time when the victim's grandmother witnessed her engaged in sexual intercourse.

We affirm.

Facts and Procedural History

[2] Hartzburg and Teresa Pierson married in 1997 and lived together in a house in Bicknell, Indiana. Pierson's grandchildren, N.R. and G.R., were fraternal twins. Starting shortly after their birth, N.R. and G.R. split time between living with Pierson and Hartzburg and living with other relatives. Hartzburg did not have a job, and he watched N.R. and G.R. while Pierson was away at work or attending church activities. When G.R. was around eight or nine years old, Hartzburg would call G.R. into Hartzburg's bedroom, and Hartzburg would direct G.R. to disrobe and fondle his own penis while Hartzburg watched. This occurred approximately four times. During one of these incidents, Hartzburg also touched his own penis while watching G.R. At other times, Hartzburg would call N.R. and G.R. into his room and direct G.R. to put his penis into N.R.’s vagina. This occurred approximately seven times. Hartzburg warned N.R. and G.R. that if they said anything about the abuse “something bad will happen.” (Tr. Vol. 4 at 173.)

[3] In 2016, Hartzburg and Pierson moved to a house in Vincennes, Indiana. At the Vincennes house, Hartzburg and Pierson converted the enclosed back porch into a multi-purpose room that also served as N.R.’s bedroom. They kept the original door that led from the main portion of the house to the back porch, so the door into N.R.’s bedroom had a window in the middle of it. Starting around when N.R. was thirteen, Hartzburg would put his hands under her clothes and “grab her boobs. Rub her vagina.” (Id. at 121.) These incidents occurred in Hartzburg's bedroom, N.R.’s bedroom, and the kitchen. At times, N.R. “would try to push him away,” but that “wouldn't really work.” (Id. at 122.) Other times, she “would freeze up” and “wouldn't be able to move.” (Id.) N.R. asked Hartzburg to stop, but the incidents continued.

[4] N.R. and her boyfriend, P.W., were sexually active. On one occasion, N.R. and P.W. caught Hartzburg staring at them through the window while they were engaged in intercourse. Neither P.W. nor N.R. gave Hartzburg permission to watch them, and the two started to put their clothes back on when they noticed Hartzburg watching them. Hartzburg signaled for N.R. to come to him, and Hartzburg took N.R. into his room. N.R. asked Hartzburg not to tell Pierson, and Hartzburg responded, “what are you going to do for me?” (Id. at 126.) N.R. did not answer and walked out of the room.

[5] At some point, N.R. told P.W. about Hartzburg's sexual abuse of her. P.W. told his sister, and his sister reported the abuse to her therapist. Her therapist contacted the Indiana Department of Child Services, and a family case manager investigated the report. The family case manager interviewed N.R. while Hartzburg watched from the porch. In that interview, N.R. denied being abused by Hartzburg, but later that evening, N.R. and G.R.’s mother took N.R. to the police station and N.R. reported the abuse. After N.R. had reported Hartzburg's abuse, G.R.’s aunt and uncle asked G.R. about whether he had been abused, and he told them that Hartzburg had also abused him.

[6] The State initially brought charges against Hartzburg on September 9, 2022, and amended the charging information twice before trial. The State alleged Hartzburg committed Level 4 felony vicarious sexual gratification against G.R. and/or N.R., Level 4 felony child molesting ⁴ against G.R., Level 5 felony sexual misconduct with a minor against N.R., and Class B misdemeanor voyeurism against N.R.

[7] The trial court held Hartzburg's jury trial from May 14 to May 16, 2024. During Hartzburg's cross-examination of N.R., the following exchange occurred:

Q. [Pierson] caught you and P.W. having sex in the house as well, correct?

A. Yes.

Q. You were caught on more than one occasion having sex with P.W. in the home, correct?

A. Yes.

Q. You knew you weren't supposed to be having sex with P.W. in the house, correct?

A. Yes.

(Id. at 135.) The State then objected and asked for a conference outside the presence of the jury. The State argued that questioning N.R. about her sexual activity with P.W. other than the time Hartzburg observed them having sex violated a pretrial motion in limine premised on the Rape Shield Act ⁵ and Indiana Evidence Rule 412. The trial court sustained the State's objection and instructed the jury:

The witness was asked questions about being caught by [Pierson] having sex. There was a court order in place that prohibited that question from being asked and from any disclosure of and your consideration of such information. You as jurors are prohibited from any evidence about the witness having sex or sexual contact with her boyfriend at any time other than when witnessed by the Defendant.

Accordingly, you are strictly admonished not to consider evidence of any sexual conduct between the witness and her boyfriend other than any times witnessed by the Defendant.

(Id. at 147-48.) Hartzburg then testified that he accidently saw P.W. and N.R. having sex through the window in the door to N.R.’s bedroom, and “it took [him] by surprise.” (Tr. Vol. 5 at 14.) He denied all the allegations against him, and he accused G.R. and N.R. of lying to the police and in their testimony against him at trial.

[8] Regarding the charge of vicarious sexual gratification, the trial court instructed the jury:

A person eighteen (18) years of age or older who knowingly or intentionally directs, aids, induces, or causes a child under the age of sixteen (16) to touch or fondle himself or another child under the age of sixteen (16) to touch or fondle himself or another child under the age of sixteen (16) with the intent to arouse or satisfy the sexual desires of a child or of the older person commits vicarious sexual gratification, a Level 5 felony. The offense is a Level 4 felony if a child involved in the offense is under the age of fourteen (14).

Before you may convict the Defendant, the State must have proved the following:

1. The Defendant

2. with the intent to arouse or satisfy the Defendant's, or [N.R.]’s, or [G.R.]’s sexual desires

3. knowingly or intentionally

4. directed, aided, induced, or caused

5. [G.R.] to touch or fondle himself or [N.R.], another child

6. when [G.R.] and/or [N.R.] were under the age of sixteen (16)

7. and when Defendant was eighteen (18) years of age or older

8. and when [G.R.] and/or [N.R.], child[ren] involved in the offense were under the age of fourteen (14).

If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of vicarious sexual gratification, a Level 4 felony, charged in Count I.

(App. Vol. 2 at 141) (pair of brackets around “ren” in original). The jury returned guilty verdicts for Level 4 felony vicarious sexual gratification, Level 5 felony sexual misconduct with a minor, and Class B misdemeanor voyeurism. The jury found Hartzburg not guilty of Level 4 felony child molestation. On June 17, 2024, the trial court sentenced Hartzburg to an aggregate term of thirteen-and-a-half years in the Indiana Department of Correction.

Discussion and Decision

1. Jury Instruction

[9] Hartzburg contends his right to a unanimous jury verdict was violated because the charging information and jury instructions related to the count alleging Level 4 felony vicarious sexual gratification made “it impossible to tell whether the jury voted to convict Hartzburg on count one of having G.R. touch G.R.’s penis, of having G.R. have sex with N.R., or some combination of the two.” (Appellant's Br. at 14.) Hartzburg did not object before the trial court regarding the jury instruction he challenges on appeal. “As a general rule, the failure to object at trial results in a waiver of the issue on appeal.” Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002). However, one exception to this general rule is a claim of fundamental error, Miller v. State, 188 N.E.3d 871, 874 (Ind. 2022), and Hartzburg asserts the trial court's instruction constituted fundamental error. “Error is fundamental error when it is a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Wilkes v. State, 7 N.E.3d 402, 404 (Ind. Ct. App. 2014) (internal quotation marks omitted). “ ‘To prove fundamental error,’ the appellant must show ‘that the trial court should have raised the issue sua sponte[.]’ ” Merritt v. State, 99 N.E.3d 706, 709 (Ind. Ct. App. 2018) (quoting Taylor v. State, 86 N.E.3d 157, 162 (Ind. 2017)), trans. denied.

[10] The Sixth Amendment to the United States Constitution,⁶ as applied to the states through the Fourteenth Amendment,⁷ guarantees a criminal defendant the right to a unanimous verdict before the defendant can be convicted of a serious offense. Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020). Likewise, Indiana “has long required that a verdict of guilty in a criminal case ‘must be unanimous.’ ” Baker v. State, 948 N.E.2d 1169, 1173-74 (Ind. 2011) (quoting Fisher v. State, 291 N.E.2d 76, 82 (1973)). However, “while jury unanimity is required as to the defendant's guilt, it is not required as to the theory of the defendant's culpability.” Taylor v. State, 840 N.E.2d 324, 333 (Ind. 2006).

[11] Hartzburg likens the State's vicarious sexual gratification charge against him to the intimidation charge lodged against the defendant in Lainhart v. State, 916 N.E.2d 924 (Ind. Ct. App. 2009). In Lainhart, the State charged Lainhart with one count of Class A misdemeanor intimidation.⁸ Id. at 930. The charging information alleged that on October 18, 2007, Lainhart “did then and there unlawfully, knowingly or intentionally, communicate a threat to another person, to-wit: Ruth Schreier, Jamie Baker and/or Amy Robertson, with the intent that the other person be placed in fear of retaliation for a prior lawful act.” Id. We reversed Lainhart's conviction based on prosecutorial misconduct, but we also addressed the issue of whether the trial court should have given a jury unanimity instruction because of the likelihood that the issue would arise on remand. Id. at 939-40. We held the trial court should have instructed the jury that it was required to reach a unanimous decision regarding which, if any, victim Lainhart intimidated. Id. at 940-41. We explained “[t]he State was allowed to allege either principality or complicity without a unanimity instruction. But by arguing alternative victims—who were allegedly threatened at distinct periods of time on the night in question—the State actually charged [Lainhart] with several alternative crimes.” Id. at 942 (internal citation omitted).

[12] Hartzburg asserts that “[j]ust like in Lainhart, the State charged Hartzburg with multiple criminal offenses against multiple victims, all within a single criminal count.” (Appellant's Br. at 18.) He argues it is “impossible to determine which offense the jury convicted upon” because “the jury was given the choice to either convict Hartzburg of (a) causing G.R. to touch or fondle himself, or (b) causing G.R. to touch or fondle N.R.” (Id. at 18-19.) However, while “there can be no joinder of separate and distinct offenses in one and the same count,” it is permissible for the State to “allege alternative means or theories of culpability when prosecuting the defendant for a single offense.” Baker, 948 N.E.2d at 1175 (internal quotation marks omitted). In Baker, the State charged Baker with three counts of child molesting. Id. at 1171. The State alleged the acts of molestation occurred between October 2000 and August 2003 and involved three victims, C.B., J.A., and A.H. Id. The jury found Baker guilty, and he argued on appeal that the State presented evidence of multiple acts of molestation with respect to each victim even though he was only charged with one count of child molesting related to each victim. Id. at 1177. He complained “that some jurors may have relied on different evidence than the other jurors to convict on each of the three counts.” Id.

[13] Our Indiana Supreme Court adopted the “ ‘either/or’ rule. That is to say, the defendant is entitled either to an election by the State of the single act upon which it is relying for a conviction or to a specific unanimity instruction.” Id. at 1176 (emphasis in original). The Court held:

that the State may in its discretion designate a specific act (or acts) on which it relies to prove a particular charge. However if the State decides not to so designate, then the jurors should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.

Id. at 1177. However, the Court observed that Baker neither objected to the trial court's instructions nor offered a unanimity instruction of his own, and therefore, the Court reviewed his challenge to the trial court's jury instructions for fundamental error. Id. at 1178. The Court observed “the only issue was the credibility of the alleged victims,” and the jury resolved that credibility question against Baker because Baker testified that he did not abuse any of the children the State had accused him of molesting. Id. at 1179. Therefore, our Indiana Supreme Court held the trial court's failure to give a unanimity instruction did not constitute fundamental error. Id.

[14] Hartzburg would have been entitled to a jury unanimity instruction had he requested one because the State charged him with one count of vicarious sexual gratification and asserted multiple acts of vicarious sexual gratification occurred during the applicable time period. However, Hartzburg did not request such an instruction. Hartzburg also denied all of G.R.’s claims at trial.⁹ Therefore, like in Baker, the jury must have deemed Hartzburg's denials not credible to return a guilty verdict. Thus, we hold the trial court's instructions to the jury regarding the charge of vicarious sexual gratification did not constitute fundamental error. See, e.g., Carter v. State, 31 N.E.3d 17, 28 (Ind. Ct. App. 2015) (incomplete jury unanimity instruction did not constitute fundamental error when case largely turned on credibility of child sex abuse victim), trans. denied.

2. Excluded Testimony

[15] Hartzburg asserts “[t]he trial court also erred in denying Hartzburg his constitutional right to present a defense, cross-examination [sic], and present witnesses, by preventing the jury from hearing from N.R. that [Pierson] also caught [N.R.] and her boyfriend having sex in the home.” (Appellant's Br. at 14.) However, Hartzburg did not raise this constitutional claim before the trial court. “[A]s a general rule, a party may not present an argument or issue on appeal unless the party raised that argument or issue before the trial court,” Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004).

[16] Before the trial court, Hartzburg argued the State's questioning about Hartzburg watching N.R. and P.W. “cracked wide open” the door to questioning about Pierson catching N.R. and P.W. having sex. (Tr. Vol. 4 at 136.) He also asserted the question was relevant to “whether or not [sexual activity between P.W. and N.R.] was going on in the home under [Hartzburg's] nose with [Hartzburg's] blessing, basically.” (Id. at 140.) He never argued the questioning was necessary to protect his constitutional right to present a defense. Therefore, his constitutional argument is waived. See, e.g., Matter of R.L., 237 N.E.3d 652, 665 (Ind. Ct. App. 2024) (holding parents waived constitutional claim by failing to present argument before the trial court), trans. denied.

[17] Waiver notwithstanding, the trial court disallowed Hartzburg's questioning of N.R. about when Pierson caught her and P.W. having sex because the trial court concluded such testimony was prohibited by Indiana Evidence Rule 412. We usually review a trial court's decision on the admission of evidence for an abuse of discretion. Young v. State, 244 N.E.3d 950, 958 (Ind. Ct. App. 2024), trans. denied. “An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.” Id. (internal quotation marks omitted). However, when the exclusion of evidence is alleged to have resulted in a constitutional violation, we apply a de novo standard of review. Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015), reh'g denied.

[18] The “right to present a defense is not absolute. ‘The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.’ ” Schermerhorn v. State, 61 N.E.3d 375, 379 (Ind. Ct. App. 2016) (quoting Crane v. Kentucky, 106 S. Ct. 2142, 2146 (1986)), trans. denied. Both the criminal defendant and the State “must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers v. Mississippi, 93 S. Ct. 1038, 1049 (1973). Evidence Rule 412 states:

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evidence offered to prove that a victim or witness engaged in other sexual behavior; or

(2) evidence offered to prove a victim's or witness's sexual predisposition.

(b) Exceptions.

(1) Criminal Cases. The court may admit the following evidence in a criminal case:

* * * * *

(C) evidence whose exclusion would violate the defendant's constitutional rights.

The Rule “reflects the insight of Indiana's Rape Shield Statute—codified at Indiana Code § 35-37-4-4 - that inquiry into a victim's prior sexual activity is sufficiently problematic that it should not be permitted to become a focus of the defense.” Johnson v. State, 6 N.E.3d 491, 498 (Ind. Ct. App. 2014) (internal quotation marks omitted). The Rule is intended “to prevent the victim of a sexual assault from being placed on trial and to remove impediments to reporting sex crimes.” Smith v. State, 140 N.E.3d 363, 370 (Ind. Ct. App. 2020), trans. denied. Longstanding precedent holds “that Indiana's Rape Shield Statute does not violate a defendant's Sixth Amendment right to confront witnesses absent a showing of actual impingement on cross-examination.” Watson v. State, 134 N.E.3d 1038, 1044 (Ind. Ct. App. 2019), trans. denied. The exclusion of irrelevant evidence does not actually impinge a defendant's cross-examination. Oatts v. State, 899 N.E.2d 714, 723 (Ind. Ct. App. 2009).

[19] Hartzburg contends “[t]he effect of the precluded evidence was to deny the jury the evidence Hartzburg needed to corroborate his testimony about accidently stumbling upon his step-granddaughter having sex.” (Appellant's Br. at 22-23.) However, there is no dispute that there was a window in the door that led to N.R.’s bedroom and one could see in the bedroom through the window. Evidence that Pierson caught N.R. and P.W. having sex was not necessary to prove that one could accidently catch a glimpse of N.R. and P.W. having sex. The State's evidence was that Hartzburg took a prolonged, voyeuristic look. P.W. testified Hartzburg “was just watching us and didn't decide to barge in and tell us to stop.” (Tr. Vol. 4 at 98.) N.R. explained Hartzburg “was just staring through the window at the door watching us.” (Id. at 126.) Evidence that Pierson had caught N.R. and P.W. having intercourse in N.R.’s bedroom was irrelevant, and therefore, the trial court's exclusion of it did not impinge on Hartzburg's right to confront the witnesses against him.¹⁰ See, e.g., Smith, 140 N.E.3d at 372 (holding trial court's exclusion of evidence related to victim's post-assault sexual behavior did not violate defendant's constitutional right to present a defense because the behavior was irrelevant).

Conclusion

[20] The trial court did not commit fundamental error when it instructed the jury regarding the charge of vicarious sexual gratification. In addition, Hartzburg waived his constitutional challenge to the trial court's exclusion of evidence that Pierson had caught N.R. and P.W. having intercourse in N.R.’s bedroom. Waiver notwithstanding, the exclusion did not violate Hartzburg's constitutional right to present a defense and cross-examine the witnesses against him because the evidence was irrelevant. Accordingly, we affirm the trial court.

[21] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-5(b)(1).

2.   Ind. Code § 35-42-4-9(a).

3.   Ind. Code § 35-45-4-5(b).

4.   Ind. Code § 35-42-4-3(b).

5.   Ind. Code § 35-37-4-4.

6.   The Sixth Amendment to the United States Constitution states:In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

7.   The Fourteenth Amendment to the United States Constitution states: “No State shall ․ deprive any person of life, liberty, or property, without due process of law[.]”

8.   Ind. Code § 35-45-2-1(a).

9.   Regarding the charge of vicarious sexual gratification, N.R. testified that she did not remember Hartzburg directing her and G.R. to have sex, but she also stated that memory loss was a side effect of an antidepressant medication she had been prescribed.

10.   Likewise, while Article 1, Section 13 of the Indiana Constitution grants a criminal defendant the right “to be heard by himself and counsel,” the Indiana Constitution does not give a criminal defendant the right to present irrelevant evidence. See Harris v. State, 211 N.E.3d 929, 943 (Ind. 2023) (“Because testimony to the circumstances of a defendant's crimes is irrelevant to the habitual offender status determination, Harris has no constitutional right to present it.”).

May, Judge.

Judges Tavitas and DeBoer concur. Tavitas, J., and DeBoer, J., concur.