                                                                              FILED
                                                                          Jun 24 2020, 7:04 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Denise L. Turner                                           Curtis T. Hill, Jr.
      Indianapolis, Indiana                                      Attorney General of Indiana
                                                                 Ian McLean
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Montel Giden,                                              June 24, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-2891
              v.                                                 Appeal from the Shelby Superior
                                                                 Court
      State of Indiana,                                          The Honorable R. Kent Apsley,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 73D01-1908-F6-417



      Tavitas, Judge.


                                               Case Summary
[1]   Montel Giden appeals his two convictions for escape, as Level 6 felonies. We

      affirm.




      Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020                           Page 1 of 14
                                                        Issues
[2]   Giden raises three issues, which we revise and restate as:


                 I.       Whether the escape statute violates the Proportionality
                          Clause of Article 1, Section 16 of the Indiana Constitution.

                 II.      Whether fundamental error occurred as a result of the jury
                          instructions.

                 III.     Whether the evidence is sufficient to sustain Giden’s
                          conviction for escape related to the July 24, 2019 incident.


                                                        Facts
[3]   On July 12, 2019, the State charged Giden with criminal recklessness, a Level 5

      felony, and pointing a firearm, a Level 6 felony. 1 Giden posted bond and, on

      July 12, 2019, was placed on home detention as a condition of his pretrial

      release. The home detention order required Giden to “be confined to [his]

      home at all times” except for certain approved reasons. Exhibits p. 3. The

      order also required Giden to “abide by a written schedule prepared by [his]

      community corrections program specifically setting forth the limited times

      when [he] may be absent from [his] home and the specific locations [he is]

      allowed to be during scheduled absences.” Id. The order noted that Giden may

      be subject to prosecution for the crime of escape for any violation of the home

      detention order. Shelby County Community Corrections (“SCCC”) personnel

      explained to Giden the process of completing and returning the weekly



      1
          Giden was later acquitted of these charges.


      Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020              Page 2 of 14
      schedules by 8:00 p.m. on Sunday evenings. Even a trip to SCCC must be

      listed on the weekly schedule. Participants are also given a number to call in

      emergency situations. Giden received his GPS monitoring equipment on July

      15, 2019.


[4]   Giden’s weekly schedule for July 24, 2019, to July 30, 2019, did not list any

      home absences for July 24, 2019. On Wednesday, July 24, 2019, SCCC

      received an alert that Giden left his home. 2 GPS records indicated that Giden

      left his home at 2:30 p.m., traveled to SCCC, and returned home at 2:52 p.m.

      According to Giden’s testimony, he went to SCCC to get permission to see an

      attorney, and he was told at SCCC “that would not be allowed.” Tr. Vol. II p.

      198. SCCC personnel again explained to Giden the need to have all absences

      from his home recorded on his weekly schedule.


[5]   Giden’s weekly schedule for August 21, 2019, to August 27, 2019, did not list

      any home absences for August 25, 2019. On Sunday, August 25, 2019, SCCC

      received another alert that Giden left his home. GPS records show that,

      between 3:56 p.m. and 8:50 p.m., Giden left and returned to his residence four

      times and that he visited several addresses in Shelbyville. When questioned by

      SCCC personnel regarding his whereabouts that day, Giden claimed that he

      had to go to CVS to get an inhaler. The GPS records, however, did not indicate




      2
        At the beginning of his home detention, Giden did not have a telephone. According to SCCC, Giden
      received his telephone back on August 7, 2019, but Giden claims that he received his telephone back on
      August 28, 2019, and that the telephone he received on August 7, 2019, did not work. Giden did not have a
      vehicle or bicycle, and his main mode of transportation was walking.

      Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020                             Page 3 of 14
      that Giden went to CVS. According to Giden’s testimony, he left his residence

      to drop off his weekly schedule at SCCC and to attempt to borrow an inhaler.

      Giden had not previously informed SCCC that he needed an inhaler.


[6]   On August 28, 2019, the State charged Giden with two counts of escape, as

      Level 6 felonies. The jury found Giden guilty as charged. The trial court

      sentenced Giden to an aggregate sentence of 365 days, with 180 days executed

      in the Shelby County Jail and the remainder of the sentence suspended to

      probation. Giden now appeals.


                                                    Analysis
                                          I. Proportionality Clause

[7]   Giden argues that the escape statute violates the Proportionality Clause of the

      Indiana Constitution. As an initial matter, the State argues that Giden waived

      this argument by failing to raise it in a motion to dismiss. The Indiana Supreme

      Court has held that such constitutional claims are waived where they are not

      raised at trial. Layman v. State, 42 N.E.3d 972, 976 (Ind. 2015). The Court also

      noted, however that “appellate courts are not prohibited from considering the

      constitutionality of a statute even though the issue otherwise has been waived.”

      Id. Indeed, we may exercise our discretion to review a constitutional claim on

      our own accord. Id. For example, in Poling v. State, 853 N.E.2d 1270, 1274

      (Ind. Ct. App. 2006), we addressed a defendant’s challenge of a criminal statute

      under the Proportionality Clause after noting that a party may raise the issue of

      a statute’s constitutionality at any stage of a proceeding and that this Court may


      Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020        Page 4 of 14
      also raise the issue sua sponte. Accordingly, we will address Giden’s argument

      despite his waiver.


[8]   The Proportionality Clause mandates that “[a]ll penalties shall be proportioned

      to the nature of the offense.” Ind. Const. Art. 1, § 16. Challenges to the

      constitutionality of a statute begin with a presumption in favor of the statute’s

      constitutionality and will not be overcome absent a clear showing to the

      contrary. White v. State, 971 N.E.2d 203, 207-08 (Ind. Ct. App. 2012), trans.

      denied. “[B]ecause criminal sanctions are a legislative prerogative, separation-

      of-powers principles require a reviewing court to afford substantial deference to

      the sanction the legislature has chosen.” Id. Accordingly, we will not disturb

      the legislative determination of the appropriate penalty for criminal behavior

      except upon a showing of clear constitutional infirmity. Id.


[9]   The protections provided by Article 1, Section 16 are “narrow.” Knapp v. State,

      9 N.E.3d 1274, 1289 (Ind. 2014), cert. denied, 574 U.S. 1091, 135 S. Ct. 978

      (2015). “[A] finding of unconstitutionality should be reserved for ‘penalties so

      disproportionate to the nature of the offense as to amount to clear constitutional

      infirmity sufficient to overcome the presumption of constitutionality afforded to

      [legislative] decisions about penalties.’” Poling, 853 N.E.2d at 1275 (quoting

      State v. Moss-Dwyer, 686 N.E.2d 109, 112 (Ind. 1997)). The constitutional

      provision is violated “only when the criminal penalty is not graduated and

      proportioned to the nature of the offense.” Knapp v. State, 9 N.E.3d 1274, 1289-

      90 (Ind. 2014); see also Shoun v. State, 67 N.E.3d 635, 641 (Ind. 2017). Though

      we “cannot set aside a legislatively sanctioned penalty merely because it seems

      Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020         Page 5 of 14
       too severe,” Article 1, Section 16 requires us to review whether a sentence is not

       only within statutory parameters, but also constitutional as applied to the

       particular defendant. Knapp, 9 N.E.3d at 1290.


[10]   Giden was convicted pursuant to Indiana Code Section 35-44.1-3-4(b), which

       provides: “A person who knowingly or intentionally violates a home detention

       order or intentionally removes an electronic monitoring device or GPS tracking

       device commits escape, a Level 6 felony.” Giden argues that the escape statute,

       which makes the violation of a home detention order a Level 6 felony, violates

       the Proportionality Clause because another statute, Indiana Code Section 35-

       38-2.5-13, makes the unauthorized absence from home detention a Class A

       misdemeanor.


[11]   The unauthorized absence from home detention statute, Indiana Code 35-38-

       2.5-13, provides:


               An offender who:


                        (1) leaves the offender’s home in violation of section 6(1)
                        of this chapter or without documented permission from
                        the supervising entity;


                        (2) remains outside the offender’s home in violation of
                        section 6(1) of this chapter or without documented
                        permission from the supervising entity; or


                        (3) travels to a location not authorized under section 6(1)
                        of this chapter or not authorized in writing by the
                        supervising entity;

       Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020              Page 6 of 14
               commits unauthorized absence from home detention, a Class A
               misdemeanor.


       We have held that this statute “applies only in cases where the offender has

       been placed on home detention as a condition of probation.” Gordon v. State, 981

       N.E.2d 1215, 1220 (Ind. Ct. App. 2013) (emphasis added); see Ind. Code § 35-

       38-2.5-5. Here, however, Giden was subject to home detention as a condition

       of his pretrial release, not as a condition of probation. As such, Indiana Code

       35-38-2.5-13 was not applicable to Giden’s offense.


[12]   According to Giden, “common sense and sound logic dictate that [Indiana

       Code Section 35-38-2.5-13] should apply equally to a person placed on home

       detention as a condition of pre-trial release in order to comport with Indiana’s

       Proportionality Clause.” Appellant’s Br. p. 11. Giden points out that a

       “presumptively innocent defendant” on home detention as a condition of

       pretrial release “can receive a harsher penalty” than an “already-convicted

       offender.” Id.


[13]   The State points out that the escape statute and the unauthorized absence from

       the home detention statute contain different elements. See Matthews v. State, 944

       N.E.2d 29, 33 (Ind. Ct. App. 2011) (“Because the three crimes do not have

       identical elements, the proportionality clause of our Constitution is not

       offended if our legislature assigns different sentences to them.”). The State also

       contends that the different statutes ensure that a lower-level offense option is

       available to defendants on probation where the violation of a probationary term


       Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020           Page 7 of 14
       “likely means additional sanctions for a defendant, including revocation of all

       or part of a suspended sentence.” Appellee’s Br. p. 18.


[14]   We agree with the State that Giden has failed to overcome the strong

       presumption in favor of the statute’s constitutionality and has failed to make a

       clear showing of a constitutional infirmity. The General Assembly’s choice of

       sanctions is entitled to substantial deference, and the State has pointed out a

       reasonable explanation for the differences in sanctions between the two statutes.

       Under these circumstances, Giden has failed to demonstrate that the escape

       statute violates the Proportionality Clause. 3


                                                II. Jury Instruction

[15]   Giden argues that the trial court erred in instructing the jury. The manner of

       instructing a jury is left to the sound discretion of the trial court. Coy v. State,

       999 N.E.2d 937, 942-43 (Ind. Ct. App. 2013). When reviewing a trial court’s

       decision to refuse or give jury instructions, this Court “considers: (1) whether

       the instruction correctly states the law; (2) whether there is evidence in the




       3
         Although Giden’s Proportionality Clause argument fails, we note our concern with the outcome here.
       Giden was found not guilty of the original charges for which he was placed on pretrial home detention, but
       he now has two felony convictions for relatively minor violations of the pretrial home detention order. We
       find it problematic that the escape statute treats relatively minor violations, such as Giden’s violations, the
       same as the violations of a defendant who absconds from pretrial home detention. We cannot find the
       statute unconstitutional merely because it seems too severe, see Knapp, 9 N.E.3d at 1290; we encourage the
       General Assembly, however, to consider amending the escape statute to include staggered penalties based on
       the type of violation.

       Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020                                  Page 8 of 14
       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.” Id.


[16]   Giden argues that the jury could have based his conviction for escape related to

       August 25, 2019, upon any of his four absences from his house and that it is

       possible different jurors based their guilty verdict on different acts. According

       to Giden, the trial court should have instructed the jury that their verdict had to

       be unanimous. Giden contends that we should vacate his conviction for escape

       related to August 25, 2019, due to “the uncertainty regarding the unanimity of

       the verdict and the lack of a proper instruction from the court.” Appellant’s Br.

       p. 18.


[17]   In support of his argument Giden relies on Castillo v. State, 734 N.E.2d 299 (Ind.

       Ct. App. 2000), summarily aff’d, 741 N.E.2d 1196 (Ind. 2001). In Castillo, the

       State charged the defendant with one act of dealing in cocaine even though

       there was evidence presented that the defendant committed two separate acts of

       dealing in cocaine on that same day. Over the defendant’s objection, the State

       was permitted to present evidence of both incidents. In closing argument, the

       State told the jury they had “a choice” in convicting the defendant of dealing in

       cocaine. Castillo, 734 N.E.2d at 304. The State told the jury it had proved both

       incidents but that the jury only had to find either incident occurred.


[18]   This Court held:


                The trial court did not instruct the jurors that they were required
                to render a unanimous verdict regarding which dealing crime
                Castillo committed. . . . It is possible, given these facts, that
       Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020              Page 9 of 14
               some jurors believed that Castillo committed the earlier dealing
               crime at Garcia’s home while other jurors believed that Castillo
               committed the dealing violation at his home later that same day.
               Consequently, it is possible that the jury’s verdict of guilty
               regarding the charge of dealing in cocaine was not unanimous.
               We, therefore, conclude that Castillo’s conviction for dealing in
               cocaine should be vacated and, in this regard, we remand this
               cause to the trial court for further proceedings.


       Id. at 304-05.


[19]   Following Castillo, our Supreme Court decided Baker v. State, 948 N.E.2d 1169

       (Ind. 2011). The Court noted “this jurisdiction has long required that a verdict

       of guilty in a criminal case ‘must be unanimous.’” Baker, 948 N.E.2d at 1173-

       74 (quoting Fisher v. State, 259 Ind. 633, 291 N.E.2d 76, 82 (1973)). Citing

       Castillo, the Court held: “a disjunctive instruction, which allows the jury to find

       a defendant guilty if he commits either of two or more underlying acts, either of

       which is in itself a separate offense, is fatally ambiguous because it is impossible

       to determine whether the jury unanimously found that the defendant

       committed one particular offense.” Id. at 1175. Accordingly,


               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.


       Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020          Page 10 of 14
[20]   In Baker, however, the Court noted that the defendant failed to object to the

       trial court’s instruction and also failed to offer an instruction of his own.

       Accordingly, the Court held that the issue was waived. See id. at 1178 (“[A]

       defendant who fails to object to an instruction at trial waives any challenge to

       that instruction on appeal.”). The Court then considered whether fundamental

       error occurred. Noting that the only issue was the credibility of the alleged

       victims, the Court concluded that the defendant failed to demonstrate that the

       instruction error “so prejudiced him that he was denied a fair trial.” Id. at 1179.


[21]   Here, Giden did not tender a jury instruction based upon Baker and did not

       object to the jury instructions on this basis. Accordingly, Giden’s argument is

       waived. As in Baker, we will address whether the failure to give a Baker

       instruction resulted in fundamental error. “In order to be fundamental, the

       error must represent a blatant violation of basic principles rendering the trial

       unfair to the defendant and thereby depriving the defendant of fundamental due

       process.” Id. at 1178. “The error must be so prejudicial to the defendant’s

       rights as to make a fair trial impossible. Id. “In considering whether a claimed

       error denied the defendant a fair trial, we determine whether the resulting harm

       or potential for harm is substantial. Id. at 1178-79. Harm is not shown by the

       fact that the defendant was ultimately convicted. Id. Rather, harm is

       determined by whether the defendant’s right to a fair trial was detrimentally

       affected by the denial of procedural opportunities for the ascertainment of truth

       to which he would have been entitled. Id.




       Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020          Page 11 of 14
[22]   The jury here was instructed that its verdict must be unanimous. See Tr. Vol.

       III p. 27 (“To return a verdict, each of you must agree to it.”); id. at 28

       (instructing the foreperson, “Do not sign any verdict form for which there is not

       unanimous agreement.”). During closing arguments, Giden argued that he was

       trying to follow the home detention rules “as best he could” and that he left his

       house only to go to SCCC and to obtain an inhaler, which was an emergency

       situation. Tr. Vol. III p. 9. Giden did not dispute that he repeatedly left his

       residence on August 25, 2019. The only issue for the jury was whether Giden’s

       behavior qualified as escape. Under these circumstances, we cannot say that

       the error from the lack of a Baker instruction was so prejudicial to Giden’s rights

       as to make a fair trial impossible. Giden has failed to demonstrate fundamental

       error.


                                                  III. Sufficiency

[23]   Giden challenges the sufficiency of the evidence to sustain his conviction for

       escape, a Level 6 felony, related to the July 24, 2019, incident. When a

       challenge to the sufficiency of the evidence is raised, “[w]e neither reweigh

       evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210

       (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert. denied),

       cert. denied. Instead, “we ‘consider only that evidence most favorable to the

       judgment together with all reasonable inferences drawn therefrom.’” Id.

       (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is

       supported by ‘substantial evidence of probative value even if there is some

       conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also

       Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020             Page 12 of 14
       McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though

       there was conflicting evidence, it was “beside the point” because that argument

       “misapprehend[s] our limited role as a reviewing court”). “We will affirm the

       conviction unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind.

       2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).


[24]   Indiana Code Section 35-44.1-3-4(b) provides: “A person who knowingly or

       intentionally violates a home detention order . . . commits escape, a Level 6

       felony.” Giden argues that the evidence is insufficient to sustain his conviction

       for escape related to the July 24, 2019 incident. The State demonstrated that

       Giden was provided with the home detention rules, including the requirement

       that he provide a weekly schedule listing all times that he would be out of his

       residence. The process for filling out the weekly schedule was explained to

       Giden in detail. On July 24, 2019, Giden left his residence without permission,

       walked to SCCC, asked an SCCC employee for permission to leave his

       residence to see an attorney, and returned home. A SCCC employee explained

       at the trial that even trips to SCCC must be on the weekly schedule. The

       employee testified: “If we have everyone wanting to come to our office

       whenever they want and it’s not on their schedule, we’re gonna have hundreds

       of alarms going off on a daily basis.” Tr. Vol. II p. 100. A reasonable jury

       could have found that the State proved Giden knowingly or intentionally

       violated a home detention order beyond a reasonable doubt. The evidence is

       sufficient to sustain Giden’s conviction. See, e.g., Keith v. State, 91 N.E.3d 1029,


       Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020         Page 13 of 14
       1032 (Ind. Ct. App. 2018) (holding the evidence was sufficient to sustain the

       defendant’s conviction for escape), trans. denied.


                                                   Conclusion
[25]   Giden has failed to demonstrate that his convictions violate the Proportionality

       Clause or that fundamental error occurred as a result of the jury instructions.

       Moreover, the evidence is sufficient to sustain Giden’s conviction for escape

       related to the July 24, 2019 incident. We affirm.


[26]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020       Page 14 of 14
