MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Aug 12 2016, 9:44 am

regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lizbeth W. Pease                                         Gregory F. Zoeller
Nichols & Wallsmith                                      Attorney General of Indiana
Knox, Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven A. Garland,                                       August 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         75A03-1510-CR-1772
        v.                                               Appeal from the Starke Circuit
                                                         Court
State of Indiana,                                        The Honorable Kim Hall, Judge
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         75C01-1408-F6-110



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 75A03-1510-CR-1772 | August 12, 2016        Page 1 of 11
                                             Case Summary
[1]   A jury found Steven A. Garland guilty of level 6 felony strangulation, and the

      trial court sentenced him to thirty months of imprisonment. On appeal,

      Garland contends that the trial court abused its discretion in denying his motion

      for continuance; the evidence is insufficient to sustain his conviction; and the

      trial court abused its discretion at sentencing. Finding no abuse of discretion

      and the evidence sufficient, we affirm.


                                 Facts and Procedural History
[2]   The facts most favorable to the jury’s verdict are that Garland and M.N. dated

      approximately twenty years ago and broke up after eight months. They crossed

      paths again in 2013 and became intimate in April 2014. Garland spent the

      night at M.N.’s home in Knox ten or twelve times. In August 2014, M.N. went

      to Nashville, Tennessee, with some girlfriends for the weekend. Garland

      repeatedly texted and called M.N. while she was gone. M.N. either ignored or

      gave short responses to Garland’s texts and calls. While M.N. was at a party,

      she “chose not to answer” her “constantly ringing” phone. Tr. at 40. Another

      woman at the party “thought it was funny,” answered M.N.’s phone, and

      talked to Garland for “[a] minute or two.” Id. at 40-41.


[3]   The next day, as M.N. was on her way home, Garland sent her “six or seven”

      text messages asking her “to let him know when [she] got to Indianapolis.” Id.

      M.N. responded to “three or four of them.” Id. Garland texted her that he was

      going to have drinks with a friend and then go to the pub where M.N. worked.


      Court of Appeals of Indiana | Memorandum Decision 75A03-1510-CR-1772 | August 12, 2016   Page 2 of 11
      When M.N. got home, she put on her pajamas, turned on a movie, and texted

      Garland that she was “home in bed, too tired for anything.” Id. at 42-43. She

      texted him to ask where he was and received no response.


[4]   Later that evening, M.N. saw Garland’s truck “come up [her] driveway[,]” and

      he “walk[ed] into [her] house and into [her] room and asked if [she] wanted to

      go for a drink.” Id. at 43. M.N. replied that she was tired and did not want to

      go. Garland started to leave the house, then “came back and stood in the

      doorway and yelled at [her] about the girl answering the phone.” Id. M.N.

      asked him what he was talking about because she “had forgotten the whole

      thing had even happened.” Id. Garland jumped on her bed, pinned her down,

      pulled her head back, and “grabbed [her] lips with his teeth and shook his head

      and bit [her].” Id. M.N. said, “[W]ait, let’s talk about this. I don’t know what

      you’re talking about.” Id. at 44. Garland wrapped his hands around her neck

      and started squeezing. M.N. had trouble breathing and “just saw black and

      stars.” Id. at 45.


[5]   M.N. managed to push Garland off her, “jumped out of [her] bed barefooted in

      [her] pajamas[,]” and “ran out of the house.” Id. She “immediately dialed 911

      because [her] phone was still in [her] hand.” Id. M.N. ran to a nearby house,

      but no one answered the door, so she went to the next house. She looked back

      and saw Garland’s truck “pulling out of [her] driveway[.]” Id. at 46. M.N.

      banged on the door, and her neighbor let her in. According to the neighbor,

      M.N. “was kind of in an excited state and said her ex-boyfriend had tried to

      choke her.” Id. at 64. M.N. stayed there until the police arrived. She had “red

      Court of Appeals of Indiana | Memorandum Decision 75A03-1510-CR-1772 | August 12, 2016   Page 3 of 11
      marks on [her] neck from fingers” and a “swollen and bitten” bottom lip. Id. at

      50, 51. An officer took photos of her injuries.


[6]   A deputy sheriff who talked with M.N. drove off to search for Garland. The

      deputy saw Garland’s truck, pulled him over, and explained why he had been

      stopped. Garland “just blurted out” to the deputy, “I did choke her […], you

      know, she’s into that.” Id. at 85. He denied biting M.N. According to the

      deputy, Garland did not have any injuries and did not claim that M.N. had

      attacked him.


[7]   Garland was arrested and charged with level 6 felony strangulation and class B

      misdemeanor battery. In September 2015, a jury trial was held at which both

      M.N. and Garland testified. The jury found Garland guilty as charged. The

      trial court entered judgment of conviction only on the strangulation conviction

      based on double jeopardy concerns and sentenced Garland to thirty months of

      imprisonment. This appeal followed. Additional facts will be provided as

      necessary.


                                     Discussion and Decision

           Section 1 – The trial court did not abuse its discretion in
                 denying Garland’s motion for continuance.
[8]   On the morning of the scheduled trial date, the prosecutor informed the trial

      court that defense counsel had provided her with the names of two potential

      witnesses, one of whom was Steve Campbell. Defense counsel had told the

      prosecutor that he had not subpoenaed Campbell and had not been able to

      Court of Appeals of Indiana | Memorandum Decision 75A03-1510-CR-1772 | August 12, 2016   Page 4 of 11
       contact him. The prosecutor explained that on the previous afternoon, she had

       left a voicemail message with Campbell stating that she “wanted to talk to him

       about whether he was going to testify and what he was going to testify about.”

       Id. at 8. He did not return her call until approximately 8:45 a.m. on the

       morning of trial. Campbell told the prosecutor that a man named Roger Hayes

       had told him that another man named Fred Podel had a “similar situation[]”

       with M.N. “that was in line with what the defense is saying what happened in

       this case, which is the choking was part of sexual play[.]” Id. at 7, 9. Defense

       counsel moved for a continuance, presumably to contact Campbell, Podel,

       and/or Hayes. 1 The trial court denied the motion.


[9]    Garland now contends that the trial court erred in denying his motion for

       continuance. Rulings on nonstatutory motions for continuance lie within the

       trial court’s discretion and will be reversed only for an abuse of that discretion

       and resultant prejudice. Maxey v. State, 730 N.E.2d 158, 160 (Ind. 2000). “An

       abuse of discretion occurs only where the trial court’s decision is clearly against

       the logic and effect of the fact and circumstances before the court.” Shoultz v.

       State, 995 N.E.2d 647, 657 (Ind. Ct. App. 2013), trans. denied.


[10]   The gist of Garland’s argument is that the trial court should have granted a

       continuance so that he “could contact the new witness [i.e., Podel] which

       would corroborate his contention [that] M.N. liked to be choked during sexual



       1
        The transcription of defense counsel’s request ends midsentence. See Tr. at 7 (“I believe at this time I would
       move to continue the trial, Your Honor, based on the possibility”).

       Court of Appeals of Indiana | Memorandum Decision 75A03-1510-CR-1772 | August 12, 2016            Page 5 of 11
relations[.]” Appellant’s Br. at 6. He claims that the denial of a continuance

“violated his right to present a defense.” Id. The fatal flaw in this argument is

that Garland did not testify that he engaged in sexual relations with M.N. after

she returned from her weekend in Nashville. Rather, he suggested that any

choking would have occurred in self-defense. See Tr. at 105-06 (“I took my

shoes off and laid down beside her.[…] I kissed her and said, who was that

Kim, that gal who had your phone. Then she just went off on me.[…] She

backhanded me and she got on top of me, and all I done was just push in fear,

just pushed her back.”); id. at 106 (“Q. Is it possible that in an attempt to get

her away from you, you grabbed her some place? A. Yes.”). 2 And because

Garland did not testify that he choked M.N. during sexual relations that

evening, any third-party testimony regarding M.N.’s sexual predilections would

have been irrelevant and therefore inadmissible. See Ind. Evidence Rule 402

(“Irrelevant evidence is not admissible.”). In sum, Garland has failed to

establish that he was prejudiced by the trial court’s ruling. Under these




2
 Garland does not assert that he was forced to abandon or alter his defense because of the trial court’s denial
of his motion for continuance. Nor does he assert that M.N.’s injuries were inflicted on another date or by
another person.

Court of Appeals of Indiana | Memorandum Decision 75A03-1510-CR-1772 | August 12, 2016             Page 6 of 11
       circumstances, we cannot conclude that the trial court abused its discretion in

       denying Garland’s motion for continuance. 3


           Section 2 – Sufficient evidence supports Garland’s conviction
                                  for strangulation.
[11]   Garland claims that the State failed to present sufficient evidence to sustain his

       conviction. His argument is twofold: (1) the State failed to establish that he

       committed the crime; and (2) the State failed to disprove his self-defense claim.

       Our supreme court has explained,


                When conducting a sufficiency of the evidence review after a jury
                verdict, the appellate posture is markedly deferential to the
                outcome below: we will neither reweigh the evidence nor re-
                examine witness credibility, and we must consider only the
                probative evidence and reasonable inferences supporting the
                verdict. Indeed, it is our duty to affirm the conviction unless no
                reasonable fact-finder could find the elements of the crime proven
                beyond a reasonable doubt.


       Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (citations and quotation

       marks omitted).




       3
         In his reply brief, Garland argues that securing Campbell’s testimony would have allowed him “to present
       evidence of M.N.’s appearance on the day following this incident as well as a conversation between herself
       and Steve Campbell.” Reply Br. at 3. We note that “[a]ppellants are not permitted to raise new arguments in
       their reply briefs.” Cobbs v. State, 987 N.E.2d 186, 191 n.1 (Ind. Ct. App. 2013). Consequently, this argument
       is waived. Id. In any event, it is unclear whether Campbell’s statements about what M.N. allegedly told him
       would be admissible under Indiana’s hearsay rules. See Ind. Evidence Rules 801 (defining hearsay as a
       statement that is not made by the declarant while testifying at trial and is offered in evidence to prove the
       truth of the matter asserted) and 802 (providing that hearsay is not admissible unless the Evidence Rules or
       other law provides otherwise).

       Court of Appeals of Indiana | Memorandum Decision 75A03-1510-CR-1772 | August 12, 2016           Page 7 of 11
[12]   A person commits strangulation when, in a rude, angry, or insolent manner, he

       knowingly or intentionally applies pressure to the throat or neck of another

       person in a manner that impedes the other person’s normal breathing or blood

       circulation. Ind. Code § 35-42-2-9(b). Garland argues that he “did not choke

       M.N. in a rude, angry or insolent manner. As he testified, any choking was

       done during sexual play, as M.N. liked it rough.” Appellant’s Br. at 7.

       Garland told the deputy who arrested him that M.N. “liked it rough,” but he

       did not tell the jury that he choked M.N. during sexual relations. Regardless,

       this argument is merely a request to reweigh evidence and examine witness

       credibility, which we will not do.


[13]   As for Garland’s self-defense claim, we note that whether the State has

       disproved such a claim is a question of fact for the jury. Miller v. State, 720

       N.E.2d 696, 700 (Ind. 1999).

               Thus, it is reviewed as any other sufficiency question. We will
               neither weigh the evidence nor judge the credibility of the
               witnesses but rather, will look to the evidence most favorable to
               the State together with all reasonable inferences therefrom; if
               there is substantial evidence of probative value from which the
               trier of fact might reasonably infer guilt beyond a reasonable
               doubt, the verdict will not be disturbed.


       Bowling v. State, 493 N.E.2d 783, 785 (Ind. 1986) (citation omitted). The State

       may meet its burden to disprove a self-defense claim beyond a reasonable doubt

       “by rebutting the defense directly, by affirmatively showing the defendant did




       Court of Appeals of Indiana | Memorandum Decision 75A03-1510-CR-1772 | August 12, 2016   Page 8 of 11
       not act in self-defense, or by simply relying upon the sufficiency of its evidence

       in chief.” Miller, 720 N.E.2d at 700.


[14]   Garland claims that “[a]ny injuries or choking sensations were the result of self-

       defense on [his] part.” Appellant’s Br. at 8. The jury heard Garland’s

       testimony and chose to believe M.N.’s testimony that Garland attacked her.

       We may not second-guess that credibility determination on appeal. Self-

       defense is unavailable to a defendant who is the initial aggressor except in

       circumstances not present here. Miller, 720 N.E.2d at 700; Ind. Code § 35-41-3-

       2. Consequently, we affirm Garland’s conviction.


             Section 3 – The trial court did not abuse its discretion at
                                    sentencing.
[15]   In its written sentencing order, the trial court found five aggravating factors: (1)

       Garland’s criminal history, including six prior felony convictions; (2) he was on

       probation for a felony conviction when he strangled M.N.; (3) he failed to take

       responsibility for his actions and blamed M.N. and the jury for his predicament;

       (4) he denied having problems with alcohol despite his prior convictions for

       operating while intoxicated; and (5) he denied any mental health disorder or

       illness despite having been found incompetent and committed to the Indiana

       Department of Mental Health in a previous criminal case. 4 The court found




       4
         According to the presentence investigation report, the case involved charges of class B felony burglary, class
       B felony criminal confinement, and class D felony pointing a firearm. Confidential App. at 49, 54. Pursuant
       to a plea agreement, Garland pled guilty but mentally ill to class B felony burglary, the remaining charges
       were dismissed, and he was sentenced to ten years executed. Id. at 49.

       Court of Appeals of Indiana | Memorandum Decision 75A03-1510-CR-1772 | August 12, 2016             Page 9 of 11
       two mitigating factors: (1) imprisonment will result in hardship to Garland’s

       elderly father; and (2) Garland had no reported violations of his lengthy pretrial

       release. The court found that the aggravating factors outweighed the mitigating

       factors and sentenced Garland to thirty months of imprisonment. 5


[16]   Garland contends that “[t]he trial court abused [its] discretion when it failed to

       give mitigating weight to [his] mental illness. It enhance[d] the abuse when it

       gave aggravating weight to what was perceived as a denial of the mental illness,

       rather than a lack of understanding.” Appellant’s Br. at 9. 6 Generally,

       sentencing decisions are left to the sound discretion of the trial court, and we

       review its decision only for an abuse of that discretion. Singh v. State, 40 N.E.3d

       981, 987 (Ind. Ct. App. 2015), trans. denied (2016). “An abuse of discretion

       occurs if the decision is clearly against the logic and effect of the facts and

       circumstances before the trial court.” Id. A trial court may abuse its discretion

       by entering a sentencing statement that explains reasons for imposing the

       sentence that are not supported by the record or that omits reasons that are

       clearly supported by the record. Id.




       5
        In August 2014, when Garland committed the crime, the sentencing range for a level 6 felony was six
       months to two and one-half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7(b).
       6
         Garland also mentions Indiana Appellate Rule 7(B), which provides that this Court “may revise a sentence
       authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence
       is inappropriate in light of the nature of the offense and the character of the offender.” Inappropriate
       sentence and abuse of discretion claims are to be analyzed separately, King v. State, 894 N.E.2d 265, 267 (Ind.
       Ct. App. 2008), and Garland offers no separate inappropriateness argument.

       Court of Appeals of Indiana | Memorandum Decision 75A03-1510-CR-1772 | August 12, 2016              Page 10 of 11
[17]   As for Garland’s contention that the trial court abused its discretion in failing to

       find his mental illness to be a mitigating circumstance, we note that he did not

       raise this proposed mitigator at the sentencing hearing and therefore is

       precluded from advancing it for the first time on appeal. Pennington v. State, 821

       N.E.2d 899, 906 (Ind. Ct. App. 2005). And as for his claim that his denial of

       mental illness was actually a lack of understanding, the trial court was in the

       best position to judge Garland’s comprehension of and truthfulness regarding

       the issue, and we will not revisit that determination. See Best v. Best, 941 N.E.2d

       499, 502 (Ind. 2011) (acknowledging a trial court’s “superior position” to

       “assess credibility and character through both factual testimony and intuitive

       discernment” via “direct interactions with the parties face-to-face”). We find

       no abuse of discretion here. Therefore, we affirm Garland’s sentence.


[18]   Affirmed.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 75A03-1510-CR-1772 | August 12, 2016   Page 11 of 11
