Mark A. Marshall Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Mark Marshall was charged with and convicted of child molesting for acts involving a child living in his home (“Child”). Marshall now appeals his conviction and raises one issue for our review: Whether the trial court abused its discretion in instructing the jury.

[2] We affirm.

Facts and Procedural History

[3] In December 2022, Child lived with Marshall in Vincennes, Indiana. Shortly after Child's tenth birthday, Child was lying in a bed with Marshall when Marshall “started touching [Child's] stomach and [her] back and just playing with [her] hair.” Tr. Vol. IV at 211. Marshall's “stomach was touching [Child's] back area.” Id. at 212. Child “left the room” because she “didn't want him touching [her] any more [sic].” Id. at 214.

[4] On another occasion, Child was sitting on a couch in the living room with Marshall when he began “playing with [her] hair,” “rubbing [her] back,” and “rubb[ing her] thigh.” Tr. Vol. IV at 215. As Marshall was “touching [Child's] thigh,” he “went under [her] thigh,” “touched [her] butt,” and began “rubbing” it. Id. at 217. When Child informed Marshall that he had “touched [her] butt,” he apologized and “then continued rubbing it,” id. at 215, which gave Child “chills.” Id. at 217.

[5] On a third occasion, Child was lying in her bed at night when Marshall entered the room and lay “on top of” Child. Tr. Vol. IV at 220. Marshall then “touched [Child's] stomach and ․ back,” “kissed [her] neck,” id., and rubbed “under [her] bra strap,” id. at 221. Marshall was rubbing the “middle” of Child's stomach when he started “going down” and asked if she “want[ed him to] touch [her] vagina.” Id. Child “got up and left” because she felt “uncomfortable.” Id.

[6] In July 2023, Child disclosed to an older cousin and her stepmother that Marshall had touched her in the ways described above. The State charged Marshall with child molesting as a Level 4 felony,¹ and alleged he was a habitual offender ² . A jury found Marshall guilty as charged.³ The trial court sentenced Marshall to a total of 35 years of incarceration. This appeal ensued.

Discussion and Decision

The Trial Court Did Not Abuse Its Discretion in Instructing the Jury

[7] Marshall argues that the trial court erred in instructing the jury by giving Final Instruction 6. That instruction provided, “Touching of the child's breasts or genitals is not required to sustain a child molesting conviction.” Appellant's App. Vol. II at 136. Marshall objected to Final Instruction 6, stating it told the jury “how to find the facts” and argued that Final Instruction 5, which provided the child molesting statute's elements, was sufficient. Tr. Vol. V at 183–84. The trial court overruled Marshall's objection and gave Final Instruction 6 as reproduced above.

[8] We review “a trial court's jury instructions for an abuse of discretion.” Carr v. State, 274 N.E.3d 444, 453 (Ind. 2026) (citing Dunn v. State, 230 N.E.3d 910, 914 (Ind. 2024)). An abuse of discretion occurs “when the instruction is erroneous and the instructions taken as a whole misstate the law or otherwise mislead the jury.” Isom v. State, 31 N.E.3d 469, 484–85 (Ind. 2015) (citing Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001)), cert. denied. In making this determination, 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 which are given.” Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015) (quoting Guyton v. State, 771 N.E.2d 1141, 1144 (Ind. 2002)). “The purpose of a jury instruction ‘is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.’ ” Ramirez v. State, 174 N.E.3d 181, 199 (Ind. 2021) (quoting Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)). We consider jury instructions “as a whole and in reference to each other.” Dunn, 230 N.E.3d at 917 (quoting Knapp v. State, 9 N.E.3d 1274, 1284 (Ind. 2014)).

[9] To convict Marshall of child molesting as a Level 4 felony, the State had to prove beyond a reasonable doubt that Marshall performed or submitted to fondling or “touching” with Child, intending to arouse or satisfy the sexual desires of himself or Child, who was less than 14 years old. Ind. Code § 35-42-4-3(b) (effective July 1, 2022, to June 30, 2025).

[10] Final Instruction 5 tracked almost verbatim the language of Indiana Code section 35-42-4-3(b) and required the State to prove beyond a reasonable doubt that Marshall “touch[ed]” Child with “intent to arouse or satisfy the sexual desires of” Child or Marshall. Appellant's App. Vol. II at 135. Final Instruction 5 further stated, “If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of child molesting, a Level 4 felony.” Id.

[11] Marshall concedes that Final Instruction 6 correctly stated the law and that the State presented evidence to support giving it. Instead, Marshall contends that (a) Final Instruction 6's substance was covered by Final Instruction 5; (b) Final Instruction 6 misled the jury; and (c) Final Instruction 6 improperly emphasized an evidentiary fact. We address each contention in turn.

a. Substance

[12] Marshall asserts that Final Instruction 5 “already supplied the information and law the jury needed concerning the ‘touching’ element,” Appellant's Br. at 14. Final Instruction 5 listed “touching” as an element that the State needed to prove beyond a reasonable doubt but did not define it. Appellant's App. Vol. II at 135. Final Instruction 6 clarified what proof the “touching” element did not require. Therefore, the substance of Final Instruction 6 was not covered by Final Instruction 5.

b. Misled the Jury

[13] Marshall next argues that Final Instruction 6 “could have misled the jury into believing that any touching—particularly a touching that was not accompanied by a specific intent to ‘arouse or satisfy sexual desires’—was sufficient to convict” him because Final Instruction 6 did not include a mens rea element. Appellant's Br. at 15 (emphasis in original). The trial court instructed the jury to consider all of its instructions “together.” Appellant's App. Vol. II at 131. Final Instruction 5 gave the child molesting statute's elements, including the intent to arouse element, and instructed, “If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty.” Id. at 135. Considering the jury instructions as a whole, we are not persuaded that Final Instruction 6 misled the jury as to the elements the State needed to prove.

c. Emphasis of One Evidentiary Fact

[14] Last, Marshall argues that Final Instruction 6 “improperly focused on one evidentiary fact—touching.” Appellant's Br. at 16. “[I]t is the province of the jury to determine the weight to be given each item placed in evidence. Accordingly, Indiana courts have disapproved instructions that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case.” Harroll v. State, 258 N.E.3d 282, 286 (Ind. Ct. App.) (internal quotation marks and citations omitted) (upholding instruction that “[a]ny sexual penetration however slight, is sufficient to complete the crime of child molesting, if the other elements are proved”), trans. denied, 262 N.E.3d 820 (Ind. 2025).

[15] Marshall was charged with child molesting by “touching.” I.C. § 35-42-4-3(b) (effective July 1, 2022, to June 30, 2025). “Touching” is not defined for purposes of the child molesting statute. See id.; id. §§ 35-31.5-2-1 to -358. Final Instruction 6 did not emphasize any particular fact or evidence; rather, it helped the jury understand the law applicable to the facts in the context of the offense he was charged with. Cf. C.O.S. v. State, 129 N.E.3d 209,212 (Ind. Ct. App. 2019), as amended (Aug. 24, 2026) (holding tendered jury instruction improperly “emphasize[d] particular factual scenarios, thereby minimizing other potentially relevant evidence”).

[16] For the foregoing reasons, the trial court did not abuse its discretion by giving Final Instruction 6. We therefore affirm Marshall's convictions.

[17] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(b) (effective July 1, 2022, to June 30, 2025).

2.   I.C. § 35-50-2-8.

3.   Marshall was also charged with and convicted of child solicitation as a Level 5 felony for acts involving another child. Marshall does not challenge that conviction on appeal.

Felix, Judge.

Foley, J., and DeBoer, J., concur.