FILED
Sep 03 2026, 9:13 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
Justin Marquardt,
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
September 3, 2026
Court of Appeals Case No.
25A-CR-3073
Appeal from the
Hendricks Superior Court
The Honorable
Stephenie LeMay-Luken, Judge
Trial Court Cause No.
32D05-2411-F1-12
Opinion by Senior Judge Najam
Judges May and Scheele concur.
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 1 of 27
Najam, Senior Judge.
Statement of the Case
[1] Justin Marquardt appeals his convictions of Level 4 felony child molesting,
Level 4 felony incest, and Level 5 felony attempted obstruction of justice.
Marquardt also appeals the twenty-eight-year sentence the trial court imposed
for those convictions.
[2] On appeal, Marquardt challenges the sufficiency of the evidence for all three
convictions, raises a double jeopardy claim, and asks the Court to revise his
sentence under Indiana Appellate Rule 7(B). Concluding that Marquardt has
failed to demonstrate reversible error and that his sentence does not require
revision, we affirm.
Issues
[3] Marquardt raises three issues, which we restate as:
I. Whether there is sufficient evidence to sustain his convictions.
II. Whether his convictions for child molesting and incest violate
double jeopardy.
III. Whether his sentence is inappropriate and requires revision.
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 2 of 27
Facts and Procedural History
1
[4] Marquardt began a relationship with Adult Witness 1 when he was eighteen
and she was thirteen. They married when Adult Witness 1 turned eighteen,
and they had two daughters, Child Victim and Child Witness 1.
[5] Child Victim and Child Witness 1 lived with Marquardt and Adult Witness 1 in
half of a duplex in Marion County. Adult Witness 2 owned the duplex and
lived in the other half. Marquardt and Adult Witness 1 argued frequently, and
he threatened her with violence. In addition, Marquardt took charge of
discipline, frequently spanking Child Victim and Child Witness 1 with a
wooden paddle. Child Witness 1 later explained, “[t]here was a lot of hitting
used as discipline.” Tr. Vol. 2, p. 174.
[6] On one occasion, Marquardt struck Adult Witness 1 during an argument. She
said she was going to call the police, and he began to strangle her. They
struggled and fell to the floor, where Adult Witness 1 hit her head and began to
black out. Child Victim witnessed Marquardt’s attack on Adult Witness 1 and
1
We identify the names of the victim and the witnesses in compliance with the Indiana General Assembly’s
newly-enacted standards in Indiana Code sections 35-32-4-1 to -4 (2026). In keeping with other authorities
and longstanding practice, Indiana Code section 35-32-4-2 (2026) requires courts to redact the names of child
victims and child witnesses in criminal cases. See, e.g., Indiana Rule on Access to Court Records 5(C)(2)
(requiring parties to exclude from public access the names of child witnesses in cases involving sex offenses).
But subsection (2) of Indiana Code section 35-32-4-2 further requires courts to redact the name of any other
person “if the reference to the name could be used to identify a child whose name is required to be
redacted[.]” I.C. § 35-32-4-2(2). When courts redact names in compliance with Indiana Code section 35-32-4-2, they are required to use “a descriptive anonymous designator” rather than initials or “references to
familial relationships[.]” Ind. Code § 35-32-4-3 (2025).
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 3 of 27
feared for her life. She ran to Adult Witness 2’s side of the duplex and asked
him to help Adult Witness 1.
[7] Adult Witness 2 and Child Victim returned to the other side of the duplex,
where they found Marquardt sitting on Adult Witness 1’s chest, choking her.
Marquardt got up and walked away when Adult Witness 2 entered the room.
No one called 911 or law enforcement, and Adult Witness 1 did not otherwise
seek treatment. Child Victim and Child Witness 1 were “traumatized[]” by the
incident. Id. at 215. Child Victim later stated that she still had nightmares
about the incident over a decade later.
[8] When Child Victim was around eight years old, the family moved into a home
in Hendricks County. At that time, Adult Witness 1 worked in a nursing home
five to six days per week, with long shifts and a one-hour commute. Child
Victim and Child Witness 1 often did not see Adult Witness 1 for several days,
and Marquardt was alone with them in the evenings.
[9] When Child Victim was between the ages of nine and twelve, Marquardt began
brushing up against her body, touching her breasts and her rear. This escalated
to Marquardt asking her to participate in sexual activity when Adult Witness 1
was not home. He asked Child Victim whether she wanted to “engage.” Id. at
141-42. If she said yes, Marquardt sent Child Witness 1 downstairs to watch
cartoons, with instructions not to come upstairs until he allowed it, while he
took Child Victim to his bedroom.
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 4 of 27 [10] Child Victim felt compelled to comply with Marquardt’s requests for sexual
activity because when she declined, Marquardt became “more angry and
physical” with her, Child Witness 1, and Adult Witness 1. Id. at 144. When
she agreed, Marquardt screamed at them less often and was less likely to use
corporal punishment on Child Victim and Child Witness 1.
[11] After Marquardt and Child Victim entered his bedroom, he undressed her and
had her get on the bed. He always inserted his penis in her vagina, using a
Trojan brand condom each time. Child Victim recalled bleeding from her
vagina after the first few incidents of vaginal intercourse. She also recalled
watching Marquardt dispose of the condoms in a trash can in the bathroom.
Marquardt also occasionally touched Child Victim’s breasts or performed oral
sex on her. This pattern of abuse occurred over a period of roughly two to three
months, and Child Victim believed it happened six to ten times in total.
[12] On several occasions, Marquardt told Child Victim, “it’s just two people
enjoying themselves.” Id. at 148. But he also told her not to tell anyone,
especially Adult Witness 1. Child Victim initially did not tell anyone about
Marquardt’s sexual abuse, but she began to have thoughts of suicide. In
subsequent years she made several attempts.
[13] In 2020, Child Victim was in middle school and had a boyfriend, whom we
refer to as “Boyfriend.” On April 2 of that year, she texted him to say that
Marquardt “plays around and touches those areas sometimes,” that it made her
uncomfortable, and that she was “afraid he’ll get mad if I say no to him.” Tr.
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 5 of 27
Vol. 4, p. 3. Boyfriend asked directly whether Marquardt touched her in
inappropriate ways, and Child Victim responded, “Yes[,] I hate it[.]” Id. at 4.
She identified the areas he touched as her “[c]rotch, breasts, butt, basically
everywhere.” Id. at 5. She repeatedly begged Boyfriend not to tell anyone,
explaining that she wanted Marquardt to go, but her “family would never
survive” if she reported it. Id. at 6.
[14] Boyfriend told his mother about Child Victim’s text messages, which led to a
Department of Child Services (“DCS”) investigation and report. A DCS
employee contacted Adult Witness 1, who took Child Victim to a child
advocacy center for an interview. During the interview, Child Victim did not
disclose Marquardt’s molestations. She later explained that she had denied any
sexual abuse out of fear that she would be “punished and/or, like, killed.” Tr.
Vol. 2, p. 156. Child Victim was also afraid that Adult Witness 1 would not be
able to sustain the household without Marquardt’s income. No charges were
filed. But when Adult Witness 1 first told Marquardt about the allegations, he
seemed panicked.
[15] Later, Marquardt, Adult Witness 1, Child Victim, and Child Witness 1 moved
to Ohio for Marquardt’s job. Adult Witness 1, Child Victim, and Child
Witness 1 eventually returned to Indiana.
[16] In 2024, Child Victim and Adult Witness 1 went to a store. Adult Witness 1
recognized the cashier because she had dated Marquardt. The cashier advised
Adult Witness 1 to get tested for HIV, disclosing that she was HIV-positive.
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 6 of 27
Child Victim was visibly frightened by that information. Later that day, Child
Victim told Adult Witness 1 that Marquardt had sexually abused her. Adult
Witness 1 contacted DCS and took Child Victim to the child advocacy center
for a second interview. This time, Child Victim told the interviewer about the
abuse. She no longer feared retribution because Marquardt was living in
another state.
[17] An investigation followed, and Marquardt was arrested. After he bonded out of
jail, he called Adult Witness 2. Marquardt said that the allegations amounted
to “a death sentence.” Id. at 225. Marquardt asked Adult Witness 2 to speak
with Adult Witness 1, but he refused. Next, Marquardt asked Adult Witness 2
to speak with Child Victim to “make her understand how serious this is.” Id.
He replied that Child Victim understood how serious the situation was.
Marquardt asked him to “get her to recant.” Id. Adult Witness 2 refused,
saying that Marquardt’s request “sound[ed] like witness tampering[.]” Id.
Adult Witness 2 told Child Victim about the conversation in Adult Witness 1’s
presence, and Adult Witness 1 told a detective what she had heard.
[18] The State ultimately charged Marquardt with two counts of Level 1 felony child
molesting, one count of Level 4 felony child molesting, one count of Level 4
felony incest, and one count of Level 5 felony attempted obstruction of justice.
The jury could not reach a verdict on the Level 1 felonies but found him guilty
of the other three charges. The State dismissed the Level 1 felony charges, and
the trial court imposed an aggregate sentence of twenty-eight years on the three
convictions. This appeal followed.
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 7 of 27
Discussion and Decision
I. Sufficiency of the Evidence
[19] Marquardt claims that the State did not submit sufficient evidence to sustain
any of his convictions. When reviewing the sufficiency of the evidence, we
apply “a deferential standard, in which we neither reweigh the evidence nor
judge witness credibility.” Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020). We
consider only the evidence supporting the judgment and any reasonable
inferences drawn from that evidence. Id. “We will affirm a conviction if there
is substantial evidence of probative value that would lead a reasonable trier of
fact to conclude that the defendant was guilty beyond a reasonable doubt.” Id.
at 263.
A. Child Molesting
[20] To obtain a conviction of Level 4 felony child molesting as charged, the State
was required to prove beyond a reasonable doubt that Marquardt (1) performed
or submitted to fondling or touching (2) with Child Victim, a child under
fourteen years of age (3) with the intent to arouse or satisfy his or Child
Victim’s sexual desires. Ind. Code § 35-42-4-3(b) (2014); Appellant’s App. Vol.
II, p. 26.
[21] Marquardt claims that Child Victim’s testimony was the key evidence that
supported this conviction. He notes that she denied any abuse during an
interview at the child advocacy center in 2020, but she disclosed abuse by
Marquardt during an interview in 2024. Marquardt asks the Court to disregard
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 8 of 27
her statements under the doctrine of incredible dubiosity. Under this doctrine,
we can impinge upon a fact-finder’s responsibility to judge the credibility of the
witnesses in limited circumstances, when three requirements are met. Nielson v.
State, 267 N.E.3d 1126, 1133 (Ind. Ct. App. 2025) (quoting Hampton v. State,
921 N.E.2d 27, 29 (Ind. Ct. App. 2010), trans. denied). First, there must be “a
single eyewitness” to the criminal act or acts. Moore v. State, 27 N.E.3d 749,
755 (Ind. 2015). Second, that witness’s testimony must be inherently
contradictory, equivocal in nature, or the result of coercion. Tillman v. State,
642 N.E.2d 221, 223 (Ind. 1994). Third, there must also be “‘a complete lack of
circumstantial evidence of the appellant’s guilt.’” Moore, 27 N.E.3d at 755
(quoting Tillman, 642 N.E.2d at 223).
[22] In the current case, there is circumstantial evidence to support Child Victim’s
testimony. The jury saw Child Victim’s 2020 contemporaneous text messages
to Boyfriend, in which she disclosed that Marquardt had touched her “[c]rotch,
breasts, butt, basically everywhere.” Tr. Vol. 4, p. 5. In addition, Child
Witness 1 told the jury that when Adult Witness 1 was not home, Marquardt
would order her to stay downstairs and watch television while he and Child
Victim were upstairs. Child Witness 1 thus corroborated Child Victim’s
testimony.
[23] Even if we were to disregard the text messages and corroborating testimony,
Child Victim’s testimony was not inherently contradictory or equivocal. She
explained that she had denied any sexual abuse during her first visit to the child
advocacy center because she was afraid of Marquardt hurting or killing her, and
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 9 of 27
she was also afraid that she would become destitute. Once Marquardt was
living in another state, away from Adult Witness 1, Child Victim, and Child
Witness 1, Child Victim believed that she could disclose the abuse without fear
of retribution.
[24] Marquardt notes that in 2020, Adult Witness 1 did not believe that Marquardt
had sexually abused Child Victim. He also points to gaps in Child Victim’s
memory about each incident of abuse. These points were for the jury to
consider and weigh when assessing Child Victim’s credibility and did not
render her testimony inherently improbable. We reject Marquardt’s claim of
incredible dubiosity. See Nielson, 267 N.E.3d at 1133 (determining that
Nielson’s claim of incredible dubiosity was without merit in child molesting
prosecution; victim’s testimony was not inherently contradictory, equivocal, or
the result of coercion).
B. Incest
[25] To obtain a conviction of Level 4 felony incest as charged, the State was
required to prove beyond a reasonable doubt that Marquardt (1) being at least
eighteen years of age (2) engaged in sexual intercourse or other sexual conduct
with Child Victim (3) knowing (4) that the Child Victim was his child and less
than sixteen years of age. Ind. Code § 35-46-1-3 (2014); Appellant’s App. Vol.
II, p. 66.
[26] Marquardt argues that the jury’s guilty verdict on incest is “legally insufficient”
because jurors were unable to reach a verdict on the Level 1 felony child
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 10 of 27
molesting counts. Appellant’s Br. p. 18. He argues that the incest charge, like
the Level 1 felony child molestation charges, requires proof of some form of
penetration, and the jury must have concluded that Marquardt never penetrated
Child Victim.
[27] Marquardt failed to cite to any cases to support this argument, so it is waived.
Casady v. State, 934 N.E.2d 1181, 1191 (Ind. Ct. App. 2010) (determining
appellant waived claim by failing to provide citations to case law), trans. denied.
Waiver notwithstanding, it is well established that a jury’s failure to reach a
verdict on a charge amounts to a “nonevent” from which no factual conclusions
may be drawn about the jury’s other verdicts. Yeager v. U.S., 557 U.S. 110, 121
(2009). As the United States Supreme Court has stated, “A host of reasons—
sharp disagreement, confusion about the issues, exhaustion after a long trial, to
name but a few—could work alone or in tandem to cause a jury to hang.” Id.
“[C]onjecture about possible reasons for a jury's failure to reach a decision
should play no part in assessing the legal consequences of a unanimous verdict
that the jurors did return.” Id. at 122; see also Williams v. State, 160 N.E.3d 563,
577 (Ind. Ct. App. 2020) (“Indiana courts do not attempt to ascribe meaning to
verdicts, or the lack thereof, in the manner suggested by Williams.”), trans.
denied. We reject Marquardt’s attempt to interpret the reasons behind the jury’s
failure to return a verdict on the Level 1 felony charges.
C. Attempted Obstruction of Justice
[28] To obtain a conviction of Level 5 felony attempted obstruction of justice as
charged, the State was required to prove beyond a reasonable doubt that
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 11 of 27
Marquardt (1) knowingly or intentionally (2) attempted (3) to unlawfully
influence or persuade Child Victim (4) to give false or misleading testimony
during a hearing or false or misleading statements to a court or police officer.
Ind. Code §§ 35-44.1-2-2 (2023), 35-41-5-1 (2014); Appellant’s App. Vol. II, p.
81. The State further alleged that Marquardt attempted to commit the offense
by knowingly or intentionally requesting that a third party contact Child Victim
to request that she recant her statement, and the request was a substantial step
toward commission of the offense. Appellant’s App. Vol. II, p. 81.
[29] In the charging information, the State cited to two subsections of Indiana Code
section 35-44.1-2-2: subsections (a)(1)(A) and (b)(3). Subsection (a)(1)(A)
provides as follows:
(a) A person who:
(1) knowingly or intentionally induces, by threat, coercion, false
statement, or offer of goods, services, or anything of value, a
witness or informant in a legal proceeding or an administrative or
criminal investigation to:
(A) withhold or unreasonably delay in producing any testimony,
information, document, or thing that the witness or informant is
legally required to produce;
*****
commits obstruction of justice, a Level 6 felony, except as
provided in subsection (b).
[30] Subsection (b) provides as follows:
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 12 of 27
Except as provided in subsection (e), the offense is a Level 5
felony if, during the investigation or pendency of a domestic
violence or child abuse case under subsection (c), a person
knowingly or intentionally:
(1) offers, gives, or promises any benefit to;
(2) communicates a threat as defined by IC 35-45-2-1(c) to; or
(3) intimidates, unlawfully influences, or unlawfully persuades;
any witness to abstain from attending or giving testimony, or to
give a false or materially misleading statement, at any hearing,
trial, deposition, probation, or other criminal proceeding or from
giving testimony or other statements, including giving a false or
materially misleading statement, to a court or law enforcement
officer under IC 35-31.5-2-185.
[31] Marquardt argues that the State had to prove the elements of both subsections
(a)(1)(A) and (b)(3) to obtain a conviction against him. We disagree. “The goal
of statutory construction is to determine, give effect to, and implement the
intent of the legislature.” Sales v. State, 723 N.E.2d 416, 420 (Ind. 2000).
“When the statutory language is clear and unambiguous, we give effect to its
plain and ordinary meaning.” Pierce v. State, 29 N.E.3d 1258, 1265 (Ind. 2015).
We examine the statute as a whole. Sales, 723 N.E.2d at 420. Statutory
construction presents a question of law, which we review de novo. Suggs v.
State, 51 N.E.3d 1190, 1193 (Ind. 2016).
[32] The plain language of Indiana Code section 35-44.1-2-2 demonstrates that
subsections (a) and (b) describe separate levels of the offense of obstruction of
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 13 of 27 justice, each with different elements. In that respect, Indiana Code section 35-44.1-2-2 is similar to the statute that governs the offense of child molesting,
Indiana Code section 35-42-4-3. Subsection (a) of Indiana Code section 35-42-4-3 defines Level 3 felony child molesting as follows: “A person who, with a
child under fourteen (14) years of age, knowingly or intentionally performs or
submits to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) commits child molesting, a Level 3 felony.” I.C. § 35-42-4-3(a) (2025).
Subsection (b) of the same statute defines Level 4 felony child molesting with
different elements of proof, as follows:
A person who, with a child under fourteen (14) years of age,
performs or submits to any fondling or touching, of either the
child or the older person, with intent to arouse or to satisfy the
sexual desires of either the child or the older person, commits
child molesting, a Level 4 felony.
Id. The State does not need to prove all of the elements of subsections (a) and
(b) to obtain a conviction for child molesting because they are separate offenses.
Similarly, we conclude that in this case, the State did not need to prove the
elements of both subsections (a) and (b) to obtain a conviction for attempted
2
obstruction of justice. See, e.g., Fowler v. State, 279 N.E.3d 384, 392-93 (Ind. Ct.
2
We find additional support for our conclusion in the history of Indiana Code section 35-44.1-2-2. In 2017, the General Assembly added subsection (b) to Indiana Code section 35-44.1-2-2. 2017 Ind. Acts 3397. Prior to 2022, subsection (b) of the statute began: “Except as provided in subsection (e), the offense described in subsection (a) is a Level 5 felony if . . . .” I.C. § 35-44.1-2-2(b) (2021) (emphasis added). The italicized language tied together the elements of subsections (a) and (b). But in 2022, the General Assembly amended subsection (b) of Indiana Code section 35-44.1-2-2 to eliminate the phrase “described in subsection (a)[.]”
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 14 of 27
App. 2026) (affirming conviction for Level 5 felony attempted obstruction of
justice; Court considered only elements of subsection (b)).
[33] Returning to Marquardt’s challenge to the sufficiency of the evidence, the
charge arose from Marquardt’s phone call to Adult Witness 2, in which
Marquardt asked him to convince Child Victim to recant. Marquardt argues
that he did not suggest any coercion during the call, and as a result, the
evidence is insufficient. Coercion is not an element of Level 5 felony
obstruction of justice. I.C. § 35-44.1-2-2(b). Instead, the State alleged that
Marquardt, via Adult Witness 2, attempted to “unlawfully influence and/or
unlawfully persuade” Child Victim to recant. Appellant’s App. Vol. II, p. 81.
[34] The General Assembly has not defined the phrases “unlawfully influence” or
“unlawfully persuade.” The parties have not directed us to any cases applying
those phrases in the context of obstruction of justice, and we have not found
any. The phrases “unlawfully influence” and “unlawfully persuade” must
mean something different than merely offering a benefit to a victim, or
threatening or intimidating a victim, because otherwise those phrases would be
merely duplicative of the other portions of subsection (b). “[W]e will avoid an
interpretation that renders any part of the statute meaningless or superfluous.”
Zanders v. State, 800 N.E.2d 942, 945 (Ind. Ct. App. 2003).
2022 Ind. Acts 24. As a result, subsections (a) and (b) are now separate subsections, each with their own
mental culpability requirements and separate definitions of the types of acts that qualify as obstruction.
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 15 of 27 [35] “Influence” is defined in its verb form as “to affect or alter by indirect or
intangible means.” Merriam-Webster Online Dictionary, www.merriamwebster.com/dictionary/influence (last visited Aug. 25, 2026). “Persuade” is
defined as “to move by argument, entreaty, or expostulation to a belief,
position, or course of action.” Merriam-Webster Online Dictionary,
www.merriam-webster.com/dictionary/persuade (last visited Aug. 25, 2026).
[36] Applying these terms to Marquardt’s case, we find persuasive guidance in Scott
v. State, 139 N.E.3d 1148 (Ind. Ct. App. 2020), even though Scott deals with an
obstruction of justice charge under subsection (a) of Indiana Code section 35-44.1-2-2. In Scott, the State charged Scott with several offenses arising out of
battering his domestic partner. Scott repeatedly called the victim from jail, first
asking her to recant her accusation, and then asking her to stop cooperating
with the police and prosecutors. He reminded the victim that she was working
long hours and taking care of two children all by herself, and he could not help
her with the children unless the case was dismissed. The victim stopped talking
with police and prosecutors.
[37] The State charged Scott with Level 5 felony obstruction of justice, and the jury
determined Scott was guilty of that offense. On appeal, Scott argued that the
evidence was insufficient. This Court disagreed, noting that the State had to
prove that Scott imposed “some form of pressure or influence exerted on the
will or choice of another.” Scott, 139 N.E.3d at 1156. We further noted that
the State must prove that a victim’s failure to comply has a consequence,
meaning “a certain result or outcome[,]” not necessarily negative. Id. at 1158.
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 16 of 27
This Court determined that Scott’s statement that he would be in jail and
unable to help the victim with the children unless she got the charges dismissed,
stated a cognizable consequence.
[38] In the current case, Marquardt stressed to Adult Witness 2 that the charges
against him amounted to “a death sentence” and that Child Victim needed to
“understand how serious this is.” Tr. Vol. 2, p. 225. Marquardt then asked
Adult Witness 2 to get Child Victim “to recant.” Id. Marquardt’s statements
are not equivalent to a threat of physical harm or intimidation. Even so,
Marquardt was attempting to unfairly place a burden on Child Victim, namely,
that if Child Victim did not recant her true statements and falsely tell the
officers and the prosecutors that sexual abuse did not occur, she would be
responsible for him dying in prison. This attempt to burden Child Victim’s
conscience is similar to the defendant’s act in Scott: that is, exerting influence
on another’s will or choices, with a consequence for failure to comply. We
conclude the State’s evidence meets the requirements for unlawful influence or
unlawful persuasion. There is sufficient evidence to support Marquardt’s
conviction for Level 5 felony attempted obstruction of justice under Indiana
Code section 35-44.1-2-2(b)(3).
II. Double Jeopardy
[39] Marquardt argues that his convictions for child molestation and incest violate
double jeopardy. He is raising a type of “substantive double jeopardy” claim, in
which a defendant alleges that a single criminal act or transaction has violated
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 17 of 27
3
multiple statutes with common elements. Powell, 151 N.E.3d at 263 (citing
Wadle v. State, 151 N.E.3d 227, 247 (Ind. 2020)). A double jeopardy claim
presents questions of law, which we review de novo. A.W. v. State, 229 N.E.3d
1060, 1064 (Ind. 2024).
[40] We apply a three-step test to resolve Marquardt’s double jeopardy claim. First,
we examine the statutory language of the offenses because, “if the language of
either statute clearly permits multiple punishment, either expressly or by
unmistakable implication, the court’s inquiry comes to an end and there is no
violation of substantive double jeopardy.” Wadle, 151 N.E.3d at 248 (footnote
omitted).
[41] Neither Indiana Code section 35-42-4-3, which governs the offense of child
molesting, nor Indiana Code section 35-46-1-3, which governs the offense of
incest, clearly permits multiple punishments. Consequently, we move to the
next step of the analysis.
[42] “If the statutory language does not clearly permit multiple punishments, ‘a
court must then apply our included offense statutes to determine statutory
intent.’” A.W., 229 N.E.3d at 1066 (quoting Wadle, 151 N.E.3d at 248). “If
3
A second type of substantive double jeopardy claim involves “‘a single criminal act or transaction [that]
violates a single statute and results in multiple injuries.’” Moyers v. State, 277 N.E.3d 33, 38 (Ind. 2026)
(quoting Powell, 151 N.E.3d at 263).
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 18 of 27
neither offense is an included offense of the other (either inherently or as
charged), there is no violation of double jeopardy.” Wadle, 151 N.E.3d at 248.
[43] The General Assembly has defined an included offense as follows:
“Included offense” means an offense that:
(1) is established by proof of the same material elements or less
than all the material elements required to establish the
commission of the offense charged;
(2) consists of an attempt to commit the offense charged or an
offense otherwise included therein; or
(3) differs from the offense charged only in the respect that a less
serious harm or risk of harm to the same person, property, or
public interest, or a lesser kind of culpability, is required to
establish its commission.
Ind. Code § 35-31.5-2-168 (2012). An offense is inherently included in another
offense if the offense fits “within one of those enumerated subsections.” A.W.,
229 N.E.3d at 1067.
[44] In the current case, the offenses of Level 4 felony child molesting and Level 4
felony incest are not established by proof of the same material elements. Level
4 felony child molesting requires proof of an intent to arouse or satisfy sexual
desires, while Level 4 felony incest requires proof that the victim is biologically
related to the defendant. I.C. §§ 35-42-4-3 (child molesting); 35-46-1-3 (incest).
They are not inherently included offenses for purposes of Indiana Code section
35-31.5-2-168(1). See Carranza v. State, 184 N.E.3d 712, 716 (Ind. Ct. App.
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 19 of 27
2022) (concluding that two counts of child molesting were not inherently
included in one another; the counts arose from different subsections of statute,
with different material elements).
[45] In addition, neither of the charges qualifies under Indiana Code section 35-31.5-2-168(2) because neither charge involves an attempt offense. Finally, the
statutes governing the offenses differ greatly, involving more than a less serious
harm or risk of harm, or lesser culpability and, as such, do not qualify as the
same offense under Indiana Code section 35-31.5-2-168(3). As a result, neither
of the offenses is inherently included in the other for purposes of Indiana Code
section 35-31.5-2-168.
[46] Having determined the charges are not inherently included in one another by
statute, we must determine whether they could be included as charged.
“[W]hen assessing whether an offense is factually included, a court may
examine only the facts as presented on the face of the charging instrument.”
A.W., 229 N.E.3d at 1067. Where ambiguities exist in a charging instrument
about whether one offense is factually included in another, courts must construe
those ambiguities in the defendant’s favor, and thus find a presumptive double
jeopardy violation at step two of the Wadle analysis, as modified in A.W. Id. at
1069.
[47] In Marquardt’s case, the State alleged in the charging instrument that he
committed Level 4 child molesting by “perform[ing] or submit[ting] to fondling
with [Child Victim], a child under the age of fourteen years with the intent to
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 20 of 27
arouse or satisfy the sexual desires of [Child Victim] or [Marquardt].”
Appellant’s App. Vol. II, p. 26. And the State alleged that Marquardt
committed incest by “engag[ing] in sexual intercourse and/or other sexual
conduct with another person knowing that said other person is related to
[Marquardt] biologically as a child and the other person was less than 16 years
of age.” Id. at 66.
[48] As we discussed above, “other sexual conduct” is defined as “an act involving .
. . a sex organ of one (1) person and the mouth or anus of another person . . . or
. . . the penetration of the sex organ or anus of a person by an object.” I.C. §
35-31.5-2-221.5 (2014). But the General Assembly has not defined “fondling”
for purposes of the offense of child molestation. In the charging information,
the State did not describe the alleged conduct that constituted “other sexual
conduct” or “fondling.” As a result, there is an ambiguity as to whether one of
the charges could be factually included in the other, and there is a presumptive
double jeopardy violation. See Rafiq v. State, 271 N.E.3d 1178, 1183 (Ind. Ct.
App. 2025) (determining presumptive double jeopardy violation existed for one
count of Level 1 felony child molesting and one count of Level 4 felony child
molesting; use of terms “other sexual conduct” and “fondling or touching” gave
rise to ambiguity), trans. denied.
[49] Having found a presumptive double jeopardy violation, we turn to the third
step of the Wadle analysis. At this step, a court may consider the underlying
facts of the case, “as presented in the charging information and adduced at
trial.” Wadle, 151 N.E.3d at 249. “[I]f the facts show only a single continuous
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 21 of 27
crime, and one statutory offense is included in the other, then the prosecutor
may charge these offenses only as alternative (rather than as cumulative)
sanctions.” Id. However, the State may rebut the presumptive double jeopardy
violation. A.W., 229 N.E.3d at 1069.
[50] Marquardt argues that because the jury failed to reach a verdict on the two
counts of Level 1 felony child molesting, we must infer that jurors used “the
same unit of conduct” to prove both the child molestation and incest Level 4
felony charges. Appellant’s Br. p. 20. As noted above, we may not draw
factual inferences from a non-verdict. Yeager, 557 U.S. at 120-22 (stating that
the jury’s inability to reach a verdict is a nonevent; a jury speaks only through
its verdict, and there is no way to decipher what a hung count represents).
[51] In any event, the evidence introduced at trial demonstrates separate offenses
rather than a single continuous crime. Marquardt brushed up against, or
fondled, Child Victim’s breasts and rear over her clothes on several occasions.
And Child Victim disclosed to Boyfriend that Marquardt touched her “[c]rotch,
breasts, butt, basically everywhere.” Tr. Vol. 4, p. 5. Marquardt also
occasionally touched Child Victim’s bare breasts before requiring her to submit
to vaginal intercourse and, occasionally, oral sex. This is evidence of several
separate offenses.
[52] In addition, during the State’s closing argument, while discussing the child
molestation charge the prosecutor urged the jury to consider the evidence of
Marquardt brushing up against Child Victim’s breasts and rear, and touching
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 22 of 27
her breasts during intercourse, as evidence that supported that offense. But
during the discussion of the Level 4 felony incest charge, the prosecutor pointed
the jury to evidence that Marquardt had vaginal intercourse with Child Victim
and performed oral sex on her. Tr. Vol. 3, p. 21. Thus, each charged offense
was directed at different misconduct and constituted distinct violations of the
governing statutes. The State has rebutted the presumptive double jeopardy
violation, and Marquardt cannot prevail on his double jeopardy claim. See
Rafiq, 271 N.E.3d at 1183-84 (concluding that Rafiq’s double jeopardy claim
failed at step three of Wadle analysis; evidence submitted at trial showed two
child molesting charges were supported by independent evidence and were
separate acts).
[53] We conclude both that: (1) we may not draw factual inferences from a nonverdict; and (2) Marquardt cannot prevail under the Wadle analysis because the
State demonstrated that his convictions for child molestation and incest are
based on separate facts.
III. Appropriateness of Sentence
[54] Marquardt argues that his twenty-eight-year sentence should be reduced
because of his character and because the jury did not return a verdict on the
most severe allegations. Article 7, section 6 of the Indiana Constitution
authorizes the Court to review and revise sentences. Indiana Appellate Rule
7(B) implements this authority, stating that we may revise a sentence “if, after
due consideration of the trial court’s decision, the Court finds that the sentence
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 23 of 27
is inappropriate in light of the nature of the offense and the character of the
offender.”
[55] When a defendant raises a claim under Rule 7(B), “[w]e generally defer to the
trial court’s decision, and our goal is to determine whether the defendant’s
sentence is inappropriate, not whether some other sentence would be more
appropriate.” Tillett v. State, 278 N.E.3d 359, 366 (Ind. 2026). We “attempt to
leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013).
Further, we exercise our authority to revise sentences only in “exceptional
cases.” Mullins v. State, 148 N.E.3d 986, 987 (Ind. 2020).
[56] The burden is on the defendant to persuade the Court that the sentence is
inappropriate. Jordan v. State, 244 N.E.3d 445, 462 (Ind. Ct. App. 2024). When
determining whether a defendant has met the burden of proof, “we may look to
any factors appearing in the record[.]” Reis v. State, 88 N.E.3d 1099, 1102 (Ind.
Ct. App. 2017).
[57] The advisory sentence is the starting point the Legislature selected as
appropriate for the crime committed. Tillett, 278 N.E.3d at 366. At the time
Marquardt committed his offenses, the advisory sentence for a Level 4 felony
was six years, with a maximum sentence of twelve years and a minimum
sentence of two years. Ind. Code § 35-50-2-5.5 (2014). And the advisory
sentence for a Level 5 felony was three years, with a maximum sentence of six
years and a minimum sentence of one year. Ind. Code § 35-50-2-6(b) (2014).
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 24 of 27 [58] The trial court sentenced Marquardt to maximum twelve-year sentences for
each Level 4 felony and a slightly enhanced sentence of four years for the Level
5 felony. The court ordered the sentences served consecutively, for a total
sentence of twenty-eight years.
[59] “Our analysis of the ‘nature of the offense’ requires us to look at the nature,
extent, heinousness, and brutality of the offense.” Dean v. State, 222 N.E.3d
976, 990 (Ind. Ct. App. 2023), trans. denied. Over a span of several months,
Marquardt repeatedly groped Child Victim (child molesting) and repeatedly
required her to submit to oral sex and vaginal intercourse (incest). Child Victim
explained that she did not feel free to decline because of Marquardt’s long
history of domestic violence and the likelihood that he would be more violent
with her, Adult Witness 1, and Child Witness 1 upon being rejected.
[60] Marquardt had ample opportunity to reconsider and end his abusive conduct,
but he chose to continue. He abused his position of trust with respect to Child
Victim. In addition, Child Victim was between nine and twelve years old when
the abuse started, which is younger than the age limit set by statute, and she had
less capacity to defend herself.
[61] The harm to Child Victim was far beyond what is contemplated by the statutes
governing child molesting and incest. Marquardt tried to convince Child
Victim that his sexual abuse of her was normal, but she knew better and became
severely depressed. She made multiple suicide attempts in the years following
the molestations, beginning before the age of ten. She kept silent out of fear of
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 25 of 27
physical violence from Marquardt and the impoverishment of her family. At
the time of the sentencing hearing, Child Victim was on antidepressants and
experienced night terrors. Adult Witness 1 reported to the court that Child
Victim does not trust adults because she tried to seek help before and did not get
it, resulting in her being unable to make emotional connections with others. In
a victim impact statement, Child Victim reported that Marquardt’s abuse has
resulted in her having difficulty: (1) being comfortable around men; and (2)
expressing her negative emotions to others.
[62] Regarding the obstruction of justice offense, it reflects poorly on Marquardt that
he approached and urged Adult Witness 2, with whom Child Victim appears to
have had a positive relationship, to use that relationship to induce Child Victim
to recant her disclosure of sexual abuse. Also, he committed this offense the
same day that he posted bond and was released from jail, demonstrating that
criminal charges did not deter him from committing additional misconduct.
[63] Turning to the character of the offender, our analysis “involves a broad
consideration of a defendant’s qualities, including the defendant’s age, criminal
history, background, past rehabilitative efforts, and remorse.” Dean, 222
N.E.3d at 990-91. Marquardt was forty years old at sentencing. He has no
prior adult criminal history but was adjudicated a delinquent child in five cases,
including for an act of battery (level unspecified). Further, his lack of a formal
adult criminal history is undercut by his multiple instances of abusing Child
Victim, as well as his physical abuse of Adult Witness 1, Child Victim, and
Child Witness 1.
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 26 of 27 [64] Marquardt has a steady employment history, and during sentencing he offered
letters of support from fellow church members. But we cannot conclude that
these positive aspects of his character outweigh the terrible nature of his
offenses. He has failed to demonstrate that his sentence is an outlier in need of
revision.
Conclusion
[65] For the reasons stated above, we affirm the judgment of the trial court.
[66] Affirmed.
May, J., and Scheele, J., concur.
ATTORNEY FOR APPELLANT
Audrey K. Lunsford
Lunsford Legal LLC
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Jodi K. Stein
Deputy Attorney General
Indianapolis, Indiana
Court of Appeals of Indiana Opinion 25A-CR-3073 September 3, 2026 Page 27 of 27