MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         Oct 29 2019, 10:12 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Jesse R. Drum
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Brenton E. Barnhill,                                     October 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2852
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Sarah K. Mullican,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D03-1804-F3-1061



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019                  Page 1 of 15
                                                                                         1
[1]   Brenton E. Barnhill appeals his convictions of rape, a Level 3 felony; criminal
                                                                              2
      confinement resulting in bodily injury, a Level 5 felony; domestic battery in the
                                                                                     3
      presence of a child under the age of sixteen, a Level 6 felony; and
                                              4
      strangulation, a Level 6 felony. We affirm.


[2]   Barnhill and the victim, H.P., knew each other from childhood. H.P. had

      married another man and had two children, but after her relationship with her

      children’s father ended, H.P. began a romantic relationship with Barnhill. H.P.

      and Barnhill had a child together. At the times relevant to this case, all three

      children were well under the age of sixteen.


[3]   H.P. and her children lived in an apartment. Beginning in December 2017,

      Barnhill stayed at the apartment four to five nights a week, sleeping in H.P.’s

      bed. He watched the children while she was at work. During this period,

      Barnhill choked and struck H.P. on several occasions. After he struck her,

      Barnhill would sometimes force H.P. to engage in sexual behavior.


[4]   On March 14, 2018, H.P. returned home from work between 11:10 and 11:20

      p.m. The children were in their bedrooms, asleep. She ate dinner and went to

      sleep. Barnhill was in bed with H.P., but he stayed awake and watched




      1
          Ind. Code § 35-42-4-1 (2014).
      2
          Ind. Code § 35-42-3-3 (2014).
      3
          Ind. Code § 35-42-2-1.3 (2016).
      4
          Ind. Code § 35-42-2-9 (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019       Page 2 of 15
      television. H.P. woke up around 1 a.m., thinking about whether Barnhill was

      seeing other women. She went to the bathroom, and when she returned, she

      told him “that he had lied to me.” Tr. Vol. III, p. 76.


[5]   In response, Barnhill jumped out of bed, asked H.P. “what the f**k am I lying

      about,” and grabbed her by the hair. Id. at 77. Next, he “slammed” her onto

      the bed and climbed on top of her. Id. Barnhill used his legs to pin down

      H.P.’s arms. He grabbed her throat with his left hand and began “punching

      [her] in the face like [she] was a man.” Id.


[6]   H.P. begged him to stop and repeatedly said she could not breathe. Barnhill

      responded that she “should just go ahead and stop breathing then.” Id. She

      freed her arms and slapped and shoved him, to no effect. Next, H.P. called for

      help, but Barnhill “got even more mad” and put his hand over her mouth. Id.

      at 78. She bit Barnhill’s thumb, but he did not stop hitting her.


[7]   Barnhill became tired after five to ten minutes. He climbed off of her and laid

      down on the bed. H.P. continued to lay on the bed, crying. After another five

      to ten minutes elapsed, Barnhill took off his clothes and forced H.P. to have sex

      as she continued to cry.


[8]   Next, H.P. went to the bathroom. When she looked in the mirror, she saw that

      her eyes were black and blue, her mouth and jaw were swollen, and she had

      bruises on her face, neck, and chest. H.P. showed her injuries to Barnhill, and

      he told her she should call in sick to work “because he didn’t want no one [sic]



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019   Page 3 of 15
       to see my face like that.” Id. at 84. She returned to bed. Barnhill put his arms

       around her, and H.P. cried until she fell asleep.


[9]    Barnhill was gone when H.P. woke up the next morning. H.P.’s aunt and her

       mother arrived at the apartment several hours later. Upon seeing H.P.’s

       injuries, H.P.’s mother called 911, over H.P.’s objection. Two officers were

       dispatched to investigate.


[10]   As the officers talked with H.P., they noted that H.P. had two black eyes, and

       one of her eyes was bloodshot. In addition, her lips and jaw were swollen, and

       she had bruises on her face, neck, chest, and right arm. H.P. stated she had a

       headache and had trouble swallowing. She initially wanted to protect Barnhill

       and told the officers that she had “gotten jumped after work” by two women.

       Id. at 94. H.P. soon admitted to the officers that her boyfriend had beaten her.

       H.P.’s aunt gave the officers Barnhill’s name.


[11]   Next, H.P.’s mother took her to the hospital, where a nurse practitioner (NP)

       interviewed and treated H.P. H.P. initially repeated her story that a woman

       had injured her, but she later admitted to the NP that her boyfriend had

       attacked her. The NP noted H.P. had bruises on her face, neck, and upper

       chest, and H.P. reported having a headache. The NP further concluded H.P.’s

       injuries were consistent with being beaten. Specifically, the bruising around her

       eyes was consistent with being strangled. After hospital staff released H.P., she

       spent the night in a hotel with her children and her mother.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019   Page 4 of 15
[12]   When H.P. and her children returned to her apartment, Barnhill was there.

       H.P. contacted her aunt, who called the police. When the police arrived,

       Barnhill fled out the apartment’s back door. He was later arrested.


[13]   On March 21, 2018, H.P. met with Bryanna Wynn, an investigator for the

       prosecutor’s office. Wynn specializes in cases involving domestic violence.

       During their conversation, H.P. disclosed facts that led Wynn to believe

       Barnhill had sexually assaulted H.P.


[14]   The State charged Barnhill with rape, a Level 3 felony; criminal confinement

       resulting in bodily injury, a Level 5 felony; domestic battery in the presence of a

       child under the age of sixteen, a Level 6 felony; strangulation, a Level 6 felony;

       domestic battery resulting in moderate bodily injury, a Level 6 felony; and

       domestic battery, a Class A misdemeanor. The State further alleged that

       Barnhill was an habitual offender.


[15]   A jury trial was held on June 19 through 21, 2018. The jury determined

       Barnhill was guilty as charged of the felonies and the misdemeanor. Next,

       Barnhill admitted he was an habitual offender, eliminating the need for a

       separate trial on that issue. The court entered a judgment of conviction on the

       jury’s verdict and the habitual offender enhancement.


[16]   On September 4, 2018, the day of the sentencing hearing, Barnhill filed a

       motion to correct error and/or set aside the verdict. He alleged the State had

       withheld exculpatory evidence related to discussions between H.P. and Wynn.

       At the sentencing hearing, the trial court heard evidence related to sentencing

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019   Page 5 of 15
       and to Barnhill’s motion to correct error. The trial court vacated the

       convictions of domestic battery resulting in moderate bodily injury, a Level 6

       felony, and Class A misdemeanor domestic battery. The court then imposed a

       sentence. Next, the parties filed briefs addressing Barnhill’s motion to correct

       error. Ultimately, the trial court denied Barnhill’s motion, and this appeal

       followed.


[17]   Barnhill raises two claims, which we restate as:


               1.       Whether the trial court erred in rejecting Barnhill’s claim
                        that the State had withheld exculpatory evidence, in
                        violation of Brady v. Maryland.


               2.       Whether Barnhill’s convictions violate Indiana’s
                        constitutional protection against double jeopardy.


                                          1. Brady v. Maryland
[18]   Barnhill argues the trial court should have granted his motion to correct error

       and set aside the judgment of conviction because the State withheld exculpatory

       evidence, in violation of his federal and state constitutional right to due process

       of law. Generally, rulings on motions to correct error are reviewed for an abuse

       of discretion. Davis-Martin v. State, 116 N.E.3d 1178 (Ind. Ct. App. 2019), trans.

       denied. Where, as here, an appellant raises a constitutional question, our

       standard of review is de novo. Tiplick v. State, 43 N.E.3d 1259 (Ind. 2015).


[19]   In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215

       (1963), the United States Supreme Court determined: “the suppression by the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019   Page 6 of 15
       prosecution of evidence favorable to an accused upon request violates due

       process where the evidence is material either to guilt or to punishment,

       irrespective of the good faith or bad faith of the prosecution.” The principle

       behind the Court’s ruling is “avoidance of an unfair trial to the accused.” Id. at

       87, 83 S. Ct. at 1197.


[20]   There are three components to a Brady violation: (1) the evidence at issue must

       be favorable to the accused, either because it is exculpatory or impeaching of

       the State’s witnesses; (2) the evidence must have been suppressed by the State,

       either willfully or inadvertently; and (3) the absence of the evidence prejudiced

       the accused (materiality inquiry). Davis-Martin, 116 N.E.3d 1178. Evidence is

       material when there is a reasonable probability that, had the evidence been

       disclosed, the result of the proceeding would have been different. Bates v. State,

       77 N.E.3d 1223 (Ind. Ct. App. 2017). The State will not be found to have

       suppressed material information if that information was available to a

       defendant through the exercise of reasonable diligence. Conner v. State, 711

       N.E.2d 1238 (Ind. 1999).


[21]   In Barnhill’s case, prior to trial H.P. met several times with Wynn. In cases

       involving domestic violence, Wynn routinely refers victims to agencies that

       provide housing, food, utility assistance, and resources for children. Wynn and

       H.P. testified during the sentencing hearing that they had discussed whether she

       could go to a domestic violence shelter. They may have discussed other

       assistance programs as well but did not remember any details.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019   Page 7 of 15
[22]   Barnhill argues that the State should have disclosed to him that Wynn and H.P.

       had discussed a domestic violence shelter and possibly other assistance

       programs prior to trial because: (1) H.P. apparently believed such assistance

       was coming from and/or through the prosecutor’s office; and (2) evidence of

       those discussions were relevant to impeach H.P. because the evidence could

       have established that H.P. had a bias in favor of the State or a motive to lie on

       the witness stand.


[23]   We disagree with Barnhill for two reasons. First, the evidence of Wynn and

       H.P.’s discussions was not material for purposes of the Brady standard. Wynn

       testified without contradiction that neither she nor the prosecutor’s office had

       any control over the shelter or any other agencies, and Wynn and the

       prosecutor did not ask anything from H.P. in exchange for the information

       about the assistance programs. In addition, H.P. testified that she and Wynn

       had discussed only one program that would have required specific conduct on

       her part (a college assistance program, administered by an agency other than

       the prosecutor’s office, that would have required H.P. to stay away from

       Barnhill for one year), but they did not discuss that program until after

       Barnhill’s trial was over. Under these circumstances, the impeachment value of

       these discussions is minimal at best, and we cannot conclude that there is a

       reasonable probability that being presented with evidence about the discussions

       would have changed the jury’s verdict.


[24]   Second, even if Wynn and H.P.’s discussions about assistance programs were

       material evidence, Barnhill could have discovered the evidence himself prior to

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019   Page 8 of 15
       trial through the exercise of reasonable diligence. Barnhill took H.P.’s

       deposition on June 7, 2018, a few weeks prior to trial. During the deposition,

       Barnhill had ample opportunity to ask H.P. whether the prosecutor had

       promised anything in exchange for her testimony or whether H.P. believed she

       was required to testify favorably to the State. See, e.g., Hayden v. State, 830

       N.E.2d 923 (Ind. Ct. App. 2005) (Hayden failed to prove a Brady violation

       involving a witness’s filing of a civil complaint; Hayden could have learned

       about the civil complaint during pretrial depositions), trans. denied.


[25]   Next, Barnhill notes that after the trial was over, Wynn and H.P. discussed the

       college assistance program, which was administered by another agency. H.P.

       mistakenly believed the funds were coming from the prosecutor’s office, posting

       on a social media account that “the Prosecutor’s Office” was going to pay for

       her college. Tr. Vol. IV, p. 132. H.P.’s mistaken belief that the prosecutor had

       offered her money for college had no impact on her testimony or the jury’s

       verdict because the discussion happened post-trial. As a result, the discussion

       was not material evidence, and the State did not violate Brady by failing to

       disclose it. The trial court did not err in denying Barnhill’s motion to correct

       error.


                             2. Indiana Double Jeopardy Clause
[26]   Barnhill argues his convictions of criminal confinement resulting in bodily

       injury, domestic battery in the presence of a child under the age of sixteen, and




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019   Page 9 of 15
                                                                                                      5
       strangulation violate the Indiana Constitution’s prohibition of double jeopardy.

       Specifically, he claims: (1) the confinement and domestic battery convictions

       violate double jeopardy; and/or (2) the confinement and strangulation

       convictions violate double jeopardy. He concedes the battery and strangulation

       convictions do not raise a double jeopardy issue. As noted above, we review

       constitutional claims de novo.


[27]   Article 1, section 14 of the Indiana Constitution provides, in relevant part: “No

       person shall be put in jeopardy twice for the same offense.” Prohibitions

       against double jeopardy protect the integrity of jury acquittals and the finality

       interest of defendants, shield against excessive and oppressive prosecutions, and

       ensure that defendants will not undergo the anxiety and expense of repeated

       prosecution and the increased probability of conviction upon reprosecution.

       Richardson v. State, 717 N.E.2d 32 (Ind. 1999).


[28]   Two or more offenses are the “same offense” in violation of the Indiana double

       jeopardy clause, if, with respect to either the statutory elements of the

       challenged crimes or the actual evidence used to convict, the essential elements

       of one challenged offense also establish the essential elements of another

       challenged offense. Id. Barnhill does not present a claim under the statutory

       elements component of the analysis, directing his arguments exclusively to the

       “actual evidence” component.




       5
           Barnhill does not present a claim under the federal Double Jeopardy Clause.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019   Page 10 of 15
[29]   To show that two challenged offenses constitute the same offense under the

       actual evidence test, “a defendant must demonstrate a reasonable possibility

       that the evidentiary facts used by the fact-finder to establish the essential

       elements of one offense may also have been used to establish the essential

       elements of a second challenged offense.” Id. at 53. “The test is not merely

       whether the evidentiary facts used to establish one of the essential elements of

       one offense may also have been used to establish one of the essential elements

       of a second challenged offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind.

       2002).


[30]   The “reasonable possibility” standard permits convictions for multiple offenses

       committed in a protracted criminal episode when the case is prosecuted in a

       manner that ensures that multiple guilty verdicts are not based on the same

       evidentiary facts. Richardson, 717 N.E.2d at 53 n.46. As a result, application of

       the actual evidence test requires the reviewing court to identify the essential

       elements of each of the challenged crimes and to evaluate the evidence from the

       jury’s perspective, considering where relevant the jury instructions, argument of

       counsel, and other factors that may have guided the jury’s determination.

       Spivey, 761 N.E.2d 831.


[31]   In Barnhill’s case, the trial court instructed the jury about the elements of the

       three offenses at issue as follows:


                Count Two (2). On or about March Fourteenth (14th), Two
                Thousand Eighteen (2018), through and including March
                Fifteenth (15th), Two Thousand Eighteen (2018), in Vigo

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019   Page 11 of 15
               County, State of Indiana, Brenton Barnhill did, then and there,
               knowingly or intentionally confine H.P. without the consent of
               H.P., said act resulting in bodily injury to H.P., to-wit: abrasion,
               confusion (sic.), head injury, sprain and/or strain, in violation of
               Indiana law.


               Count Three (3). On or about March Fourteenth (14th), Two
               Thousand Eighteen (2018), in Vigo County, State of Indiana,
               Brenton Barnhill, being at least eighteen (18) years of age, did,
               then and there, knowingly or intentionally touch H.P., a family
               or household member in a rude, insolent, or angry manner, and
               Brenton Barnhill committed said offense in the presence of a
               child less than sixteen (16) years of age, knowing the child was
               present and might be able to see or hear the offense.


               Count Four (4). On or about March Fourteenth (14th), Two
               Thousand Eighteen (2018), in Vigo County, State of Indiana,
               Brenton Barnhill in a rude, insolent or angry manner, did, then
               and there, knowingly or intentionally apply pressure to the throat
               or neck of H.P. in a manner that impeded normal breathing or
               blood circulation of H.P. in violation of Indiana law.


       Tr. Vol. III, pp. 20-21.


[32]   During opening statements, the prosecutor discussed each charge with the jury.

       He said, “So the Criminal Confinement comes from the fact that he held her

       down. And as part of that, I’ve already told you that he battered her, so there’s

       the Level Six (6) Domestic Battery as a felony.” Id. at 37. As for strangulation,

       the prosecutor stated:


               Um, so how do we prove that? Well we’re gonna prove that by
               H.P., and I think we’re gonna be able - you’re, you’re gonna see
               some photographs to see what she looked like; you’re gonna

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019   Page 12 of 15
               hear, possibly hear some medical testimony about a certain
               condition that she was diagnosed with that might be consistent
               with that, and he tells her, at one point, when she says I can’t
               breathe, she’s gonna tell you that he said, then stop breathing, or
               something along the lines of bitch, do you think if I care if you
               breathe?

       Id. at 38-39. The prosecutor further indicated that photographs that were taken

       of H.P. the day after the attack would convince the jury “that a battery

       occurred.” Id. at 42.


[33]   Next, the prosecutor presented its evidence to the jury. H.P. specifically

       testified that Barnhill held her down with his legs, then choked her with one

       hand while striking her with the other. During final argument, the prosecutor

       argued Barnhill committed criminal confinement resulting in bodily injury

       when he “held her down against her will, wouldn’t let her leave.” Tr. Vol. IV,

       p. 56. In discussing whether Barnhill committed domestic battery in the

       presence of a child under sixteen years of age, the prosecutor explained that he

       had to prove Barnhill touched H.P. in a rude, insolent, or angry manner. The

       prosecutor further stated, “that’s probably the least of which we could describe

       what – how he did it; touched H.P.” Id. at 58. Regarding the charge of

       strangulation, the prosecutor directed the jury’s attention to the marks around

       H.P.’s eyes, as noted at the hospital by the NP, as proof of that offense.


[34]   Finally, the trial court included in its final jury instructions an explanation that

       “bodily injury” is defined as meaning any impairment of physical condition,

       including physical pain.” Appellant’s App. Vol. 2, p. 135.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019   Page 13 of 15
[35]   For the charges of criminal confinement resulting in bodily injury and domestic

       battery in the presence of a child under the age of sixteen, the trial court

       identified for the jury the distinct elements of those offenses. Next, H.P.

       testified that Barnhill pinned her down with his legs, trapping her arms, before

       striking her repeatedly “like [she] was a man.” Tr. Vol. III, p. 77. In addition,

       the jury heard evidence that H.P. had bruises on her chest, which could have

       resulted from Barnhill restraining her. Finally, the prosecutor described for the

       jury which specific acts by Barnhill supported each conviction. We cannot

       conclude there is a reasonable possibility that the jury used the same evidence

       to support these two convictions. See Jones v. State, 976 N.E.2d 1271 (Ind. Ct.

       App. 2012) (convictions of criminal confinement and domestic battery did not

       violate same evidence test; witness’s testimony provided separate evidence as to

       each charge), trans. denied.


[36]   As for the charges of criminal confinement resulting in bodily injury and

       strangulation, H.P.’s testimony and the prosecutor’s arguments also

       distinguished between the offenses, identifying different facts to support each

       charge. The prosecutor urged the jury to consider the NP’s description of the

       bruises around H.P.’s eyes as being consistent with strangulation, which was

       different from her other injuries. We conclude these convictions also pass the

       “same evidence” test set forth in Richardson. See Jones, 976 N.E.2d 1271

       (convictions of criminal confinement and strangulation did not violate same

       evidence test; witness’ testimony provided separate evidence as to each charge).


[37]   For the reasons stated above, we affirm the judgment of the trial court.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019   Page 14 of 15
[38]   Judgment affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019   Page 15 of 15
