      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                           FILED
      regarded as precedent or cited before any                                 Apr 01 2020, 10:22 am
      court except for the purpose of establishing                                    CLERK
      the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                                    Court of Appeals
      estoppel, or the law of the case.                                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Carlos I. Carrillo                                        Curtis T. Hill, Jr.
      Greenwood, Indiana                                        Attorney General of Indiana
                                                                Sierra A. Murray
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Alan Karenke,                                             April 1, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-1194
              v.                                                Appeal from the Jackson Circuit
                                                                Court
      State of Indiana,                                         The Honorable Richard W.
      Appellee-Plaintiff.                                       Poynter, Judge
                                                                Trial Court Cause No.
                                                                36C01-1703-F3-3



      Mathias, Judge.


[1]   Following a bench trial in the Jackson Circuit Court, Alan Karenke was

      convicted of Level 3 felony attempted rape, Level 6 felony criminal


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020                      Page 1 of 30
      confinement, and Class A misdemeanor resisting law enforcement. He was

      sentenced to nine years in the Department of Correction (“DOC”), with four

      years suspended to probation. Karenke’s appeal presents a number of issues,

      which we reorder and restate as follows:


      I.      Whether Karenke was denied his constitutional right to a jury trial and to

              confront witnesses;


      II.     Whether the trial court abused its discretion on a number of evidentiary

              issues;


      III.    Whether the evidence was insufficient to support Karenke’s convictions;


      IV.     Whether Karenke’s conviction for confinement violated the

              constitutional prohibition against double jeopardy; and


      V.      Whether Karenke’s sentence was inappropriate in light of the nature of

              his offenses and his character as an offender.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In spring 2017, eighteen-year-old T.P. lived in rural Jackson County with her

      mother, Brenda Karenke; two younger brothers; and stepfather, Karenke. The

      night of March 19, T.P. and her boyfriend, Tyler Hafner, were in contact via

      Facebook Messenger and text messages. Around 9:45 p.m., T.P. told Hafner

      she was going to sleep. Around midnight, Karenke entered T.P.’s room while


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 2 of 30
      she slept. He pulled T.P.’s leggings and underwear off of one of her legs and

      performed oral sex on T.P. The assault was brief, and Karenke stopped when

      T.P. reached for her cellphone and illuminated its screen.


[4]   T.P.’s next messages to Hafner were sent after midnight, in the early hours of

      March 20. T.P. told Hafner that she had woken up to see Karenke in her room

      with his head between her legs. She asked Hafner whether oral sex was

      considered rape. T.P. told Hafner that Karenke was trying to take her phone

      away and turn her phone’s data service off. Hafner urged T.P. to leave the

      house and call the police. She was reluctant to do so, and Hafner went to his

      parents who called 911 on T.P.’s behalf.


[5]   Law enforcement officers with the Jackson County Sheriff’s Department

      responded to the house around 1:00 a.m. on March 20. Karenke answered the

      door when Officer Jesse Hutchinson knocked; Officer Hutchinson informed

      Karenke why he was there, but Karenke refused to come outside. A stand-off

      ensued, lasting over an hour, during which time officers “[took] up positions

      around the house” and urged Karenke to come outside. Bench Trial Tr. p. 52.

      At one point, Brenda came outside and helped officers communicate with

      Karenke via cellphone. Eventually, Karenke was tasered through an open

      window, briefly fell to the ground, and finally came outside onto the front

      porch, where he was arrested.


[6]   While Karenke was refusing to come outside, Officer Hutchinson walked

      around the perimeter of the home and discovered a frightened T.P. “with her


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 3 of 30
      head sticking out the window.” Id. at 49. Officer Hutchinson pulled T.P. out

      through the window and had her wait in his patrol car. He left her alone while

      he rejoined the effort to arrest Karenke. During this time, T.P. continued

      texting with her boyfriend, Hafner. Once Karenke was detained, Officer

      Hutchinson returned to the vehicle and recorded a video interview with T.P. He

      later described T.P.’s demeanor during this time as “reserved” and “in a state of

      shock.” Id. at 59.


[7]   Around 3:00 a.m., T.P.’s mother drove her to the Schneck Medical Center in

      Seymour, Indiana, for a sexual assault exam. T.P. told medical staff that she

      “woke to [Karenke] giving her oral sex[.]” Id. at 100. Medical staff completed a

      vaginal exam and collected vaginal and anal swabs, in addition to collecting

      samples from T.P.’s underwear. The samples obtained from T.P.’s underwear

      contained male DNA consistent with Karenke’s paternal line, but whether the

      DNA belonged to Karenke was not confirmed by testing.


[8]   On March 21, 2017, the State charged Karenke with rape, a Level 3 felony;

      criminal confinement, a Level 6 felony; and resisting law enforcement, a Class

      A misdemeanor. Later the same day, the State amended the information to add

      charges of robbery, a Level 5 felony, and interference with the reporting of a

      crime, a Class A misdemeanor. At some point during the discovery process, the

      State received a signed, handwritten statement from T.P. that read as follows:


              I [T.P.] want to write this statement. Alan Karenke did not rape
              me. I was awake when Alan came into my room. I didn’t say no
              or to stop. I was curious to what he was going to do. When I put

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 4 of 30
               my light on phone [sic] he stopped and said he was in the wrong
               room and left . . . We did not fight over my phone like I told
               everyone. I wanted it to look like I didn’t do anything wrong.
               The police came shortly after that and that’s when everything got
               out of hand. I know that Alan did not rape me and I want all this
               to end and be truthful about what happened that night.


      Ex. Vol., p. 52.


[9]   T.P. was deposed on October 27, 2017, in Jackson County. Present were

      Karenke’s trial counsel and then-prosecutor AmyMarie Travis. T.P. said that

      she had moved in with the Hafner family on April 1 and had had no direct

      contact with Karenke since March 20. Regarding the events of March 19, T.P.

      said that she was “half asleep” when she saw Karenke come into her room and

      was “just kind of curious” what he would do. Ex. Vol., p. 24. She described

      how Karenke pulled down her leggings and underwear and that she “just let it

      happen” and was “pretending [to be] asleep.” Id. at 24, 26 .1 T.P. explained that

      she believed that Karenke thought she was asleep during the assault. Id. at 27.

      T.P. said that when she reached for her phone and made the screen light up,

      Karenke “freaked out and got up and said he was in the wrong room.” Id. at 28.

      She said she did not say “stop” or yell for help, and that she texted her

      boyfriend when Karenke left the room. Id. at 28–29.




      1
       We note that this exhibit in the Exhibit Volume contains several pages out of order. We cite to the page
      numbers inserted into the Exhibit Volume, not to the page numbers of the individual exhibits.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020                    Page 5 of 30
[10]   T.P. went on to describe the arrival of law enforcement, her escape out the

       bedroom window, and Karenke’s standoff with the officers. She went on to

       reply:


                Q: Then what happened when the police got there?


                A: When the police got me out of the window I just told them a
                complete lie.


                Q: What did you —


                A: ‘Cause I was scared. I didn’t want my boyfriend to find out.


                Q : What did you tell them?


                A: I told them that [Karenke] raped me, that he gave me oral sex
                without my permission.


                Q: How is that a lie?


                A: Well, a lie because I said it was without my permission.


       Ex. Vol., pp. 31–32.


[11]   During her deposition, in regard to her written statement she had submitted,

       T.P. denied that anyone, including her mother, asked her or forced her to write

       the statement and that it was factually accurate. Ex. Vol., p. 40. Prosecutor

       Travis subsequently cross-examined T.P. about the written statement:




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 6 of 30
               Q: Do you remember meeting with me back around July 24th of
               2017 at my office?


               A: Yeah, I think so.


                                                        ...


               Q: And do you recall telling me that the things in this letter were
               not accurate?


               A: Yes.


               Q: And that your mother forced you to write them so that
               [Karenke] wouldn’t get in trouble?


               A: Yes.


                                                        ...


               Q: Okay. So it is your testimony here today that Mr. Karenke
               believed that you were asleep when he came [into] the room.
               You were acting asleep and he believed you were asleep is what
               you think. Is that correct?


               A: Yes.


       Ex. Vol., pp. 41, 43, 48.


[12]   On July 24, 2018, Karenke filed a motion to waive his right to trial by jury. The

       trial court granted his motion on July 31. The State filed an amended charging

       information on January 10, 2019, dismissing the robbery charge and adding

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 7 of 30
       Level 3 felony attempted rape. Upon Karenke’s motion, the trial court

       continued the proceedings after the State amended the charges against Karenke.


[13]   A bench trial was held on March 7, 2019. Before argument, the State dismissed

       the Class A misdemeanor interference with the reporting of a crime charge. The

       State’s first witness was Robert Hager, an investigator with the Jackson County

       Prosecutor’s Office. He testified to his attempts in late 2018 and early 2019 to

       locate and serve subpoenas on T.P. and her mother, Brenda. These efforts

       included visiting the Karenke residence in Jackson County; visiting their

       suspected residences in Monroe and Marion Counties; visiting their

       workplaces; contacting Tyler Hafner; and leaving contact information at

       various locations in an effort to induce T.P. or her mother to renew contact

       with the prosecutor’s office. For his efforts, Hager spoke to T.P. just once on the

       phone, and T.P. informed him that she was in Colorado.


[14]   Upon the State’s request based on Hager’s testimony and over Karenke’s

       objection, the trial court found T.P. unavailable for purposes of serving as a

       witness as a result of her avoidance of process. The trial court admitted T.P.’s

       deposition into evidence in her stead. Then Tyler Hafner, T.P.’s boyfriend at

       the time of the incident, testified, and the trial court admitted into evidence the

       messages exchanged between T.P. and Hafner on the night of the attempted

       rape. The trial court also heard testimony from Jackson County law

       enforcement officials who responded to the scene and from crime lab analysts

       who processed samples that were collected from T.P. Finally, the trial court

       permitted, over Karenke’s objection, former prosecutor and current Jackson

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 8 of 30
       Circuit Court Judge AmyMarie Travis to testify; as prosecutor, Judge Travis

       had been assigned to T.P.’s case, had met with T.P. in July 2017, and had

       participated in T.P.’s deposition in October 2017.


[15]   The trial court found Karenke guilty of Level 3 felony attempted rape, Level 6

       felony criminal confinement, and Class A misdemeanor resisting law

       enforcement and entered judgment of conviction on the three counts. On May

       6, 2019, the trial court held a sentencing hearing. For attempted rape, Karenke

       was sentenced to nine years in the DOC, with five years executed and four

       years suspended to probation. Karenke received concurrent one-year sentences

       for the criminal confinement and resisting law enforcement convictions. This

       appeal followed. Additional facts will be provided as necessary.


                                  Sixth Amendment Challenges
[16]   Karenke argues that he was denied his constitutional right to a jury trial because

       the trial court permitted the State to amend its charging information after

       Karenke had waived the right. Karenke also argues that he was denied his

       constitutional right to confront witnesses because he was not present at T.P.’s

       deposition and because T.P. failed to appear at trial. We will address each

       constitutional challenge in turn.


                                              I. Right to Jury Trial

[17]   The Sixth Amendment to the United States Constitution and Article 1, Section

       13 of the Indiana Constitution guarantee the right to trial by jury in all criminal

       prosecutions. See U.S. Const. amend. VI; Ind. Const. art. 1, § 13. When a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 9 of 30
       defendant is charged with a felony, the right to a jury trial is automatic and

       presumed unless the defendant affirmatively acts to waive the right. Poore v.

       State, 681 N.E.2d 204, 207 (Ind. 1997). A defendant may waive his right to a

       jury trial in the form of a written waiver or in a colloquy in open court. Dixie v.

       State, 726 N.E.2d 257, 260 (Ind. 2000); Good v. State, 267 Ind. 29, 32, 366

       N.E.2d 1169, 1171 (Ind. 1977). It is fundamental error to deny a defendant a

       jury trial unless there is evidence of his knowing, voluntary, and intelligent

       waiver of the right. Reynolds v. State, 703 N.E.2d 701, 704 (Ind. Ct. App. 1999).

       Whether a defendant has waived the right to a jury trial is a question of law that

       we review de novo. Horton v. State, 51 N.E.3d 1154, 1157 (Ind. 2016).


[18]   Karenke waived his right to a jury trial on July 27, 2018, by filing a verified

       motion to waive jury trial and accompanying affidavit. See Appellant’s App. pp.

       98–99. On appeal, Karenke does not dispute that this waiver complied with our

       “defendant-centric procedure” that requires waiver of jury trial be made orally

       or in writing by the defendant personally. Horton, 51 N.E.3d at 1158–59; Kellems

       v. State, 849 N.E.2d 1110, 1113–14 (Ind. 2016) (explaining that in felony

       prosecutions, waiver of the right to a jury trial under Indiana law is valid only if

       communicated personally by a defendant). Rather, Karenke argues that because

       he waived the right to a jury trial before the State amended its charging

       information, the trial court erred when it did not reacquire Karenke’s waiver

       with respect to the additional felony charge. The State contends that Karenke’s

       substantial rights suffered no prejudice and that the amended information was a

       change in form, not substance.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 10 of 30
[19]   The purpose of a charging information is to “provide a defendant with notice of

       the crime of which he is charged so that he is able to prepare a defense.” State v.

       Laker, 939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010), trans. denied. At any time

       before, during, or after trial, the court may, upon the State’s motion, permit an

       amendment to the information with respect to “any defect, imperfection, or

       omission in form which does not prejudice the substantial rights of the

       defendant.” Ind. Code § 35-34-1-5(c); see Davis v. State, 714 N.E.2d 717, 721–22

       (Ind. Ct. App. 1999), trans. denied. An amendment is a change in form when (1)

       “a defense under the original information would be equally available after the

       amendment” and (2) “the accused’s evidence would apply equally to the

       information in either form.” Fajardo v. State, 859 N.E.2d 1201, 1207 (Ind. 2007).

       An amendment is a change in substance only if it is “essential to making a valid

       charge of the crime.” Id. (citing McIntyre v. State, 717 N.E.2d 114, 125–26 (Ind.

       1999)); Haak v. State, 695 N.E.2d 944, 951 (Ind. 1998). Whether an amendment

       is a matter of form or substance is a question of law which we review de novo.

       Blythe v. State, 14 N.E.3d 823, 829 (Ind. Ct. App. 2014).


[20]   The State initially charged Karenke with Level 3 felony rape, and Karenke

       waived his right to a jury trial on that offense. Its amended information charged

       Karenke with Level 3 felony attempted rape in addition to Level 3 felony rape.

       Factually, both offenses involve one instance of conduct with the same

       individual, T.P., on the night of March 19, 2017. Statutorily, both offenses

       require the same level of “knowing or intentional” culpability. I.C. § 35-42-4-

       1(a). The difference between the two offenses is that attempted rape requires

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 11 of 30
       only that Karenke “engage[d] in conduct that constitutes a substantial step

       toward commission of the crime,” in this case, toward the commission of rape.

       I.C. § 35-41-5-1. Thus, as it was charged against Karenke, attempted rape is an

       inherently lesser-included offense of rape, and the evidence underlying the

       offenses applies equally to the initial and amended charging information. Cf.

       Young v. State, 30 N.E.3d 719, 720 (Ind. 2015) (reversing conviction where

       defendant did not have fair notice of the lesser offense based on different

       “means used” than what was alleged in the charging information). The

       amended information did not preclude or negate defenses to rape that were

       available under the initial charging information; that is to say, any defense

       under the initial information was equally available to Karenke after the

       amendment. Therefore, the amendment was a change in form, not in substance.


[21]   The question that follows is whether—by permitting the State to amend the

       charging information in form—the trial court caused prejudice to Karenke’s

       substantial rights. These substantial rights include the right to notice and an

       opportunity to be heard and to contest the amendment. Davis, 714 N.E.2d at

       721–22. In this case, after the State amended the information, the trial court

       granted Karenke’s motion to continue the proceedings to give Karenke

       adequate time to prepare his defense to the amended charges. See Appellant’s

       App. p. 115. Karenke indubitably had fair notice of the charges he needed to

       defend against. See Young, 30 N.E.3d at 723. Karenke’s motion to continue also

       specifically referred to continuing a bench trial and did not include a request for

       hearing to challenge the amended charges. The bench trial was reset for March


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 12 of 30
       7, 2019, and Karenke raised no objection to the State’s amended information

       and proceeded to a bench trial. See Bench Trial Tr. p. 3. Given the opportunity

       to challenge the amendment, Karenke did not do so. Thus, Karenke’s

       substantial rights were not prejudiced by the amendment, the trial court did not

       err by proceeding with a bench trial on the amended charges, and Karenke was

       not denied his Sixth Amendment right to a jury trial. Cf. Tripp v. State, 729

       N.E.2d 1061, 1065–66 (Ind. Ct. App. 2000) (requiring trial court to afford

       defendant opportunity to “reevaluate his jury trial waiver” where amended

       information was a change in substance), abrogated on other grounds by Fajardo v.

       State, 859 N.E.2d 1201 (Ind. 2007).


                                           II. Right to Confront Witness

[22]   Karenke also claims that his confrontation right under the Sixth Amendment to

       the United States Constitution and under Article 1, Section 13 of the Indiana

       Constitution was violated because he was not present during T.P.’s deposition

       and because T.P. did not testify at his trial.2 The State counters that Karenke

       exercised his right to confront the witness by taking T.P.’s deposition and

       actively participating in it, and thus there was no denial of Karenke’s

       constitutional right to confront witnesses.




       2
         Karenke also argues that T.P. did not identify him as the perpetrator of the offenses for which he was
       convicted at either the deposition or at trial. This point is more closely associated to Karenke’s sufficiency of
       the evidence argument, which we address infra.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020                       Page 13 of 30
[23]   The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused

       shall enjoy the right . . . to be confronted with the witnesses against him[.]”

       This right of confrontation is made obligatory on the states by the Fourteenth

       Amendment. Pointer v. Texas, 380 U.S. 400, 406 (1965); Brady v. State, 575

       N.E.2d 981, 985 (Ind. 1991). Similarly, Article 1, Section 13 of the Indiana

       Constitution provides a criminal defendant the right of confrontation: “[i]n all

       criminal prosecutions the accused shall have the right. . . to meet the witnesses

       face to face.” Although the federal right of confrontation and the state right to a

       face-to-face meeting are co-extensive to a “considerable degree,” the rights

       guaranteed by Article 1, Section 13 are not necessarily identical to those given

       by the Sixth Amendment. Brady v. State, 575 N.E.2d at 987. They have been

       interpreted to encompass two distinct components: meeting witnesses face-to-

       face and cross-examination. Id.


[24]   First, we address Karenke’s confrontation claim under the Sixth Amendment.

       The essential purpose of the Sixth Amendment right of confrontation is to

       ensure that the defendant has the opportunity to cross-examine the witnesses

       against him. State v. Owings, 622 N.E.2d 948, 950 (Ind. 1993). Our supreme

       court has recognized that the right to adequate and effective cross-examination

       is fundamental and essential to a fair trial. Id.


[25]   Karenke does not dispute that his attorney was present at T.P.’s deposition—it

       was on his motion that T.P. was deposed—and questioned T.P. According to

       the transcript of the deposition, Karenke’s counsel thoroughly walked through

       the events of March 19 and March 20, 2017, as well as relevant events before

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 14 of 30
       and after that night, in anticipation of the charge of Level 3 felony rape that

       Karenke faced. These facts demonstrate that there was sufficient opportunity

       for examination and cross-examination and thus no deprivation of Karenke’s

       Sixth Amendment right to cross-examine T.P. See Berkman v. State, 976 N.E.2d

       68, 77–78 (Ind. Ct. App. 2012) (observing that, to the extent the defendant did

       not exercise his right to attempt to undermine adverse witness testimony, it was

       not because the defendant was denied the opportunity to do so), trans. denied.


[26]   Next, we address Karenke’s confrontation claim under Article 1, Section 13 of

       the Indiana Constitution. The right of a criminal defendant to confront the

       witnesses against him is “an individual privilege relating to the procedure at

       trial and, therefore, may be waived.” Owings, 622 N.E.2d at 952. For a waiver

       to be effective, there must be “an intentional relinquishment or abandonment of

       a known right or privilege.” Phillips v. State, 543 N.E.2d 646, 648 (Ind. 1989).

       The determination of whether a defendant has waived a constitutional right

       depends on the circumstances of the particular case, including the conduct of

       the defendant. Id.


[27]   A defendant may waive his right to confrontation by intentionally relinquishing

       or abandoning it “by word or deed.” Owings, 622 N.E.2d at 952. Where there is

       no showing in the record that a defendant is unable to attend a deposition and

       he makes no objection to it proceeding, the defendant waives his right to

       confrontation even if the witness is unable to testify at trial. Coleman v. State, 546

       N.E.2d 827, 830 (Ind. 1989). Further, where counsel for the defendant takes the

       deposition of a witness and actively participates in that deposition, the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 15 of 30
       defendant is “deemed to have waived his right of confrontation at trial.”

       Owings, 622 N.E.2d at 952.


[28]   Here, it was on Karenke’s petition that defense counsel deposed T.P. in October

       2017 at the Jackson County courthouse; counsel participated by questioning

       T.P. on the events of March 19 and 20 of that year. See Ex. Vol., pp. 5–51.

       There is no showing in the record that Karenke did not have the ability to

       attend the deposition in Jackson County if he wished to, nor did Karenke’s

       counsel object to proceeding with the deposition in Karenke’s absence. Because

       the deposition was taken on Karenke’s behalf and because defense counsel

       actively participated, Karenke has exercised his confrontation right under

       Article 1, Section 13 of the Indiana Constitution and therefore waived claim of

       error for our review.


[29]   In regard to the admission of T.P.’s deposition into evidence at trial, the rule is

       that admission of prior testimony at a subsequent proceeding violates the

       constitutional right of confrontation if a defendant has never had the

       opportunity to cross-examine a witness and meet her face to face. Brady, 575

       N.E.2d at 989. Having determined that Karenke was not denied the

       opportunity to cross-examine T.P., we now consider whether the trial court

       erred in admitting her deposition testimony in her absence at Karenke’s bench

       trial. The decision whether to admit former testimony of an unavailable witness

       is within the sound discretion of the trial court. Rhea v. State, 814 N.E.2d 1031,

       1033 (Ind. Ct. App. 2004), trans. denied. Its decision will not be reversed absent



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 16 of 30
       a showing of manifest abuse of discretion resulting in the denial of a fair trial.

       Guy v. State, 755 N.E.2d 248, 252 (Ind. Ct. App. 2001), trans. denied.


[30]   The standard for determining whether the admission of a hearsay statement

       against a criminal defendant violates the right of confrontation was modified in

       Crawford v. Washington, 541 U.S. 36, 59 –60 (2004). In Crawford, the Supreme

       Court clarified that “[t]estimonial statements of witnesses absent from trial

       [may be] admitted only where the declarant is unavailable, and only where the

       defendant has had a prior opportunity to cross-examine.” Id. Indiana courts

       recognize the rule that prior testimony from a subsequently unavailable witness

       is admissible provided that the defendant had the opportunity to confront the

       witness when the testimony was originally given. Ingram v. State, 547 N.E.2d

       823, 826 (Ind. 1989) (deposition testimony); Coleman, 546 N.E.2d at 829–30

       (deposition testimony).


[31]   The remaining question is whether T.P. was indeed unavailable as a witness at

       the March 7, 2019, bench trial. A witness is unavailable for purposes of the

       confrontation clause requirement only if the prosecution has made a good faith

       effort to obtain the witness’s attendance at trial. Garner v. State, 777 N.E.2d 721,

       724 (Ind. 2002). Here, the State demonstrated a good faith effort to produce

       T.P. as a witness at trial. The prosecution’s efforts pre-dated Karenke’s trial and

       lasted months: Investigator Robert Hager testified that he searched for T.P.

       online; contacted her extended family members; traveled outside Jackson

       County; and traveled to her biological father’s last-known address, all in an

       effort to locate T.P. See Bench Trial Tr. pp. 16–22. Hager spoke to T.P. on the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 17 of 30
       telephone one time; T.P. indicated that she was out of state, and Hager

       apparently concluded from this that T.P. did not intend to make herself

       available as a witness in Karenke’s trial. Being mindful of the trial court’s

       discretion in this area, we find no abuse in the trial court’s finding that T.P. was

       unavailable as a witness for purposes of determining whether her prior

       testimonial statements could be admitted at trial without violating the

       confrontation clause.


                                       Evidentiary Challenges
[32]   Karenke argues that the trial court fundamentally erred in allowing into

       evidence the Facebook Messenger and text messages between T.P. and her

       boyfriend. He also argues it was fundamental error to allow Judge Travis to

       testify as to her role prosecuting the case because she has since been elevated to

       the bench in Jackson County. And, Karenke argues that it was fundamental

       error to admit jail telephone call recordings. Karenke asserts that, as a whole,

       the evidence presented was insufficient to prove beyond a reasonable doubt that

       he was guilty of attempted rape, resisting law enforcement, and criminal

       confinement. We now address Karenke’s evidentiary challenges in turn.


                                            I. Admission of Evidence

[33]   A trial court’s decision regarding the admission of evidence is squarely within

       that court’s discretion, and we afford it great deference on appeal. VanPatten v.

       State, 986 N.E.2d 255, 260 (Ind. 2013). We will not reverse such a decision

       unless it is clearly contrary to the logic and effect of the facts and circumstances


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 18 of 30
       of the case or misinterprets the law. Id. Even where a trial court abused its

       discretion by admitting or excluding inadmissible evidence, we will not

       overturn a conviction if the evidentiary error is harmless. Griffith v. State, 31

       N.E.3d 965, 969 (Ind. 2015). An error is harmless if “the probable impact of the

       evidence upon the [factfinder] is sufficiently minor so as not to affect a party’s

       substantial rights.” Id. And, in criminal bench trials, “we presume that the court

       disregarded inadmissible testimony and rendered its decision solely on the basis

       of relevant and probative evidence.” Helton v. State, 624 N.E.2d 499, 513 (Ind.

       Ct. App. 1993), trans. denied.


[34]   The trial court admitted into evidence screenshots of Facebook Messenger and

       text message conversations between T.P. and Tyler Hafner from the night of

       March 19 and early March 20, 2017. The basis for their admission was that the

       messages were present sense impressions and/or excited utterances, and thus

       exceptions to the evidentiary prohibition against hearsay. See Ind. Evidence

       Rule 803(1) and (2). On appeal, Karenke argues that their admission

       constituted an abuse of discretion for a variety of reasons, but primarily because

       T.P., as the declarant, was not available as a witness at trial. The present sense

       impression and excited utterance exceptions to hearsay, however, are available

       “regardless of whether the declarant is available as a witness.” Evid. R. 803.

       Thus, the trial court did not abuse its discretion in admitting the messages in

       accordance with the Indiana Rules of Evidence, and we decline to address

       Karenke’s further arguments alleging error in their admission.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 19 of 30
[35]   Karenke also argues that by permitting the State to call Jackson Circuit Court

       Judge Travis—formerly the prosecutor assigned to Karenke’s case—as a

       witness, the trial court abused its discretion. He contends that Judge Travis

       violated the Indiana Code of Judicial Conduct by failing to act in a manner that

       “promotes public confidence in the independence, integrity, and impartiality of

       the judiciary[.]” Ind. Judicial Conduct Rule 1.2. Because Karenke did not base

       his objection to Judge Travis’s testimony on this rationale at the time, he has

       waived the argument for our review on appeal. See Brown v. State, 929 N.E.2d

       204, 207 (Ind. 2010). Waiver notwithstanding, Judge Travis did not violate her

       ethical duty to “avoid impropriety or the appearance of impropriety.” Jud.

       Cond. R. 1.2. To the contrary: that a small county’s prosecutor would be

       elevated to the bench, necessarily terminating her involvement in ongoing

       criminal prosecutions, is a reasonably foreseeable possibility. Judge Travis

       limited her testimony to her professional assessment of T.P.’s demeanor during

       a pre-trial interview. Bench Trial Tr. pp. 118–131. Absent persuasive evidence

       that admission of this testimony was against the logic and effect of the facts and

       circumstances of this case, we decline to find an abuse of discretion on the trial

       court’s part in admitting Judge Travis’s testimony.


[36]   Finally, Karenke challenges the admission of four recorded jail calls between

       himself and T.P.’s mother, Brenda, that occurred between March 20 and March

       22, 2017, because the witness through whom the records were offered “did not

       have personal knowledge as a custodian.” Appellant’s Amended Br. at 32. The

       State maintains that the trial court properly admitted the calls as records of


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 20 of 30
       regularly conducted activity, which constitute an exception to hearsay under

       Evidence Rule 803(6). We agree. The records of the calls were made at or near

       the time from information transmitted by someone with knowledge of an act:

       here, by Karenke, within two days of his arrest. At trial, Deputy Benjamin

       Rudolph testified that the telephone calls are recorded and maintained in the

       regular course of the jail’s business. Bench Trial Tr. pp. 87–89. He testified to

       the procedure used to identify and record the caller and verified that the

       telephone calls were “true and accurate copies of the recordings under Alan

       Karenke’s name[.]” Id. Furthermore, Deputy Rudolph testified intelligently

       about and with personal knowledge of the procedures used to record the

       telephone calls, making him a “qualified witness” as to the records of regularly

       conducted activities under Evidence Rule 803(6)(D). The telephone calls were

       properly admitted as an exception to the prohibition against hearsay and did

       not constitute an abuse of discretion by the trial court.


                                          II. Sufficiency of Evidence

[37]   Karenke’s second evidentiary challenge is that the totality of the evidence is

       insufficient to support his convictions for attempted rape, criminal confinement,

       and resisting law enforcement. When reviewing a claim of sufficiency of the

       evidence, we do not reweigh the evidence or judge the credibility of witnesses.

       Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative

       evidence supporting the judgment and the reasonable inferences that may be

       drawn from that evidence to determine whether a reasonable trier of fact could

       conclude the defendant was guilty beyond a reasonable doubt. Id. Reversal is

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 21 of 30
       only appropriate when no reasonable trier of fact could find the elements of the

       crime proven beyond a reasonable doubt. Drane v. State, 867 N.E.2d 144, 146

       (Ind. 2007).


[38]   Here, Karenke was convicted of attempted rape, which required the State to

       prove Karenke knowingly or intentionally engaged in conduct that constituted a

       substantial step toward the commission of the offense of rape. See I.C. § 35-41-5-

       1; Tatum v. State, 485 N.E.2d 138, 139 (Ind. Ct. App. 1985), trans. denied. “A

       substantial step is any overt act beyond mere preparation and in furtherance of

       the intent to commit the offense.” Newville v. State, 983 N.E.2d 602, 605 (Ind.

       Ct. App. 2013). Rape is committed when a person “knowingly or intentionally

       causes another person to submit to other sexual conduct when the other person

       is unaware that the other sexual conduct is occurring.” I.C. § 35-42-4-1(a)(2).

       “Other sexual conduct” encompasses oral sex. I.C. § 35-31.5-2-221.5(1).


[39]   Karenke does not dispute that near midnight on March 19, 2017, he entered

       T.P.’s room, partly removed her leggings and underwear, and briefly acted to

       cause T.P. to submit to oral sex while she was either asleep or pretending to be

       asleep. From this evidence, the trial court reasonably concluded that Karenke

       took these actions in the belief that T.P. was asleep, that is to say, believing she

       was unaware that the sexual conduct was occurring. Thus, the State proved that

       Karenke committed attempted rape by acting with the required culpability and

       taking a substantial step toward completing rape; the evidence sufficiently

       supports Karenke’s conviction for attempted rape. Additionally, Karenke

       disputes that T.P. ever identified him as the perpetrator of the offense. We

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 22 of 30
       disagree. During her deposition, T.P. described living with her mother, siblings,

       and Karenke, and then T.P. identified Karenke as the person who entered her

       bedroom while she slept on the night of March 19. Ex. Vol., p. 24.


[40]   Karenke’s conviction for criminal confinement required the State to prove that

       he “knowingly or intentionally confine[d] another person without the other

       person’s consent.” I.C. § 35-42-3-3(a). The evidence presented, especially by

       Officer Hutchinson, established that Karenke prevented T.P. from leaving the

       house shortly after midnight on March 20, 2017. Officer Hutchinson described

       circling T.P.’s house after determining that Karenke was refusing to exit and

       that the reported victim, T.P., and her minor siblings might be at risk inside. He

       quickly discovered T.P. leaning out of her bedroom window, looking “scared”

       that “somebody was going to be entering the room.” Bench Trial Tr. p. 49. His

       account corroborates T.P.’s deposition testimony, in which she described being

       ready to jump out of the window at the moment Officer Hutchinson arrived to

       pull her to safety. And, T.P.’s contemporaneous messages to her boyfriend

       described Karenke not “let[ting] [her] go” and threatening to “chase after” her if

       she did. Ex. Vol., pp. 64–66. This evidence sufficiently supports Karenke’s

       conviction for criminal confinement; his argument otherwise is simply a request

       to reweigh evidence, which we decline to do.


[41]   Similarly, the evidence presented was sufficient to support Karenke’s conviction

       for resisting law enforcement. This offense required the State to prove that

       Karenke “knowingly or intentionally forcibly resist[ed], obstruct[ed], or

       interfere[d] with a law enforcement officer . . . while the officer is lawfully

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 23 of 30
       engaged in the execution of the officer’s duties.” I.C. § 35-44.1-3-1(a)(1). The

       testimony of Jackson County law enforcement was that Karenke’s evasive

       actions required them to engage in a “stand-off” for over an hour in the early

       hours of March 20, 2017. Karenke in fact resisted arrest and obstructed officer

       attempts to do so to the extent that he required tasering through an open

       window of the house. Only then did Karenke emerge from the house; then,

       officer testimony was that “[i]t took strength to put [Karenke’s] hands behind

       his back,” and Karenke forcibly resisted allowing himself to be handcuffed.

       Bench Trial Tr. pp. 57–58. The force needed to sustain a conviction for resisting

       law enforcement “need not rise to the level of mayhem,” and thus we find the

       evidence of Karenke’s evasive actions sufficient to support his conviction for the

       offense. See Stansberry v. State, 954 N.E.2d 507, 510 (Ind. Ct. App. 2011).


                                             Double Jeopardy
[42]   Karenke argues that his convictions for criminal confinement and attempted

       rape violate the constitutional prohibitions against double jeopardy and thus his

       conviction for criminal confinement must be vacated. The Fifth Amendment of

       the United States Constitution provides that no person will “be subject for the

       same offence to be twice put in jeopardy of life or limb.” Article 1, Section 14 of

       the Indiana Constitution provides that “[n]o person shall be put in jeopardy

       twice for the same offense.” The effect of both constitutional provisions is the

       prohibition of multiple convictions where there is “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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 24 of 30
       second challenged offense.” Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999).

       Our review of claims of double jeopardy is de novo. Spears v. State, 735 N.E.2d

       1161, 1166 (Ind. 2000).


[43]   Karenke’s convictions required actual evidence of the following: for attempted

       rape, proof of a substantial step toward causing another person to perform or

       submit to other sexual conduct when the other person is unaware that the

       sexual intercourse or other sexual conduct is occurring. See I.C. §§ 35-41-5-1;

       35-42-4-1(a)(2). For criminal confinement, proof of nonconsensual, substantial

       interferences with a person’s liberty is required. See I.C. §§ 35-42-3-1; 35-42-3-3.

       Karenke does not claim that his convictions violate the statutory elements test;

       rather, he claims that his convictions run afoul of the actual evidence test

       requiring that we examine the actual evidence presented at trial “to determine

       whether each challenged offense was established by separate and distinct facts.”

       Richardson, 717 N.E.2d at 53. That is to say, Karenke 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. If the

       evidentiary facts underpinning the elements of one offense do not establish all

       of the elements of the second offense, the convictions are not violative of the

       double jeopardy clause. Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008).


[44]   The evidence relied upon to prove attempted rape consists of Karenke entering

       T.P.’s room while he believed she was asleep, partly disrobing T.P., and

       causing T.P. to submit to sexual conduct, specifically to oral sex. The State also

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 25 of 30
       relied on T.P.’s medical records, the DNA collected during her sexual assault

       exam, and T.P.’s messages to her boyfriend in the immediate aftermath of the

       attempted rape to establish that she “awoke to her stepfather giving her oral

       sex.” Ex. Vol., p. 90. The evidence relied upon to prove criminal confinement

       consists of T.P.’s messages to her boyfriend in the immediate aftermath of the

       attempted rape that Karenke would not “let [her] go”; that she feared Karenke

       would impede her ability to communicate by shutting off her cell phone’s data

       service; and that he would “chase after” T.P. if she left, as her boyfriend urged

       her to do. Ex. Vol, pp. 64–66. The State also relied on Officer Hutchinson’s

       testimony that he encountered T.P. in her bedroom window and helped her exit

       the house that way, because Karenke made her unable to leave through the

       bedroom door.


[45]   The State relied upon independent evidentiary facts to prove Karenke’s was

       guilty of attempted rape and criminal confinement. Karenke’s case is

       distinguishable from Griffin v. State, where the trial court unconstitutionally

       relied upon the same evidentiary fact—the defendant pinning his victim

       down—to prove both forcible attempted rape and confinement. 583 N.E.2d

       191, 195 (Ind. Ct. App. 1991). Here, the evidence was that Karenke interfered

       with T.P.’s liberty by confining her to her room without T.P.’s consent in the

       aftermath of the attempted rape, not during the course of the attempted rape.

       Accordingly, the Griffin court’s application of the actual evidence test does not

       afford relief as applied to the evidentiary facts of this case. Karenke’s




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 26 of 30
       convictions for attempted rape and criminal confinement do not violate the

       actual evidence test and Karenke was not subject to double jeopardy.


                                        Inappropriate Sentence
[46]   Finally, Karenke contends that his nine-year sentence in the DOC is

       inappropriate in light of the nature of his offenses and his character as an

       offender. Karenke was sentenced to an aggregate sentence of nine years for his

       crimes: Level 3 felony attempted rape, Level 6 felony criminal confinement,

       and Class A misdemeanor resisting law enforcement. The sentencing range for

       his most serious offense, attempted rape, is three to sixteen years of

       imprisonment, with the advisory sentence being nine years. See I.C. § 35-50-2-

       5(b).


[47]   Article 7, Sections 4 and 6 of the Indiana Constitution authorize “independent

       appellate review and revision of a sentence imposed by the trial court.” Roush v.

       State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007). This appellate authority is

       exercised through Appellate Rule 7(B). Revision of a sentence under the rule

       requires the defendant to demonstrate that his sentence is inappropriate in light

       of the nature of his offenses and his character. See App. R. 7(B); Norris v. State,

       113 N.E.3d 1245, 1255 (Ind. Ct. App. 2018). Indiana’s flexible sentencing

       scheme allows trial courts to tailor appropriate sentences based on the

       circumstances presented; accordingly, the trial court’s judgment should receive

       “considerable deference,” and our role upon appellate review is to attempt to

       “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1224–25 (Ind. 2008).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 27 of 30
[48]   Karenke bears the burden of persuading us that his sentence is inappropriate

       and requires revision as an outlier. Reid v. State, 876 N.E.2d 1114, 1116 (Ind.

       2007). And because Karenke received the advisory sentence for his most serious

       offense, the burden is “particularly heavy.” Frenbach v. State, 954 N.E.2d 1080,

       1089 (Ind. Ct. App. 2011), trans. denied. While the advisory sentence is the

       starting point for our review, we also assess the trial court’s recognition or non-

       recognition of aggravators and mitigators as an initial guide to determining

       whether the sentence imposed was inappropriate. Johnson v. State, 986 N.E.2d

       852, 856 (Ind. Ct. App. 2013); Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.

       App. 2006).


[49]   Karenke contends that the nature of his offense warrants a sentencing revision.

       When considering the nature of the offenses, we consider “the details and

       circumstances” of the crimes. Washington v. State, 940 N.E.2d 1220, 1222 (Ind.

       Ct. App. 2011), trans. denied. By committing attempted rape and criminal

       confinement of T.P., his stepdaughter, Karenke violated a position of trust and

       authority; this circumstance alone is a valid aggravating factor that would have

       justified the trial court’s imposition of a maximum sentence. See Morris v. State,

       114 N.E.3d 531, 539 (Ind. Ct. App. 2018) (maximum sentence upheld where

       defendant violated position of trust), trans. denied; Baumholser v. State, 62 N.E.3d

       411, 417 (Ind. Ct. App. 2016) (explaining that abusing a position of trust is a

       valid aggravator which, alone, may support a maximum sentence), trans. denied.


[50]   Karenke committed attempted rape of 18-year-old T.P. late at night, when he

       believed T.P. was asleep, and when the rest of the family was in other rooms of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 28 of 30
       the home. When Karenke realized T.P. was not asleep, he prevented her from

       leaving her room to seek help, forcing T.P. to escape through a window.

       Karenke then engaged in a prolonged stand-off with law enforcement which

       required the deployment of a taser to apprehend him. “The fact of multiple

       victims or crimes . . . constitutes a valid aggravating factor.” O’Connell v. State,

       742 N.E.2d 943, 952 (Ind. 2001). This sequence of events contains no

       compelling evidence of restraint in the commission of the crimes of attempted

       rape, criminal confinement, and resisting law enforcement, nor evidence that

       otherwise casts the offenses in a better light. We do not assess that Karenke’s

       sentence—which is within the statutory boundaries—is too harsh based on the

       nature of the crimes he committed.


[51]   Karenke also contends that the trial court abused its discretion in finding no

       mitigating factors in his character. He cites his employability; the support of

       family members; the hardship of incarceration on his family members; and his

       compliance during the instant proceedings as warranting revision of his

       sentence. The State points out that Karenke’s criminal history demonstrates

       continued disregard for police authority and a failure to remediate his behavior

       given opportunities to do so. Criminal history is one factor in considering the

       character of an offender. Pelissier v. State, 122 N.E.3d 983, 990 (Ind Ct. App.

       2019), trans. denied. The trial court imposed the advisory sentence for Level 3

       felony attempted rape, nine years, and ordered the sentences for Level 6 felony

       criminal confinement and Class A misdemeanor resisting law enforcement to

       run concurrently. We are cognizant, too, that the trial court suspended four


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 29 of 30
       years of Karenke’s nine-year sentence despite not finding any mitigating factors.

       The resulting five-year executed sentence is at the lower end of the statutory

       boundaries for a Level 3 felony; thus, we conclude that Karenke has not met his

       burden of convincing this court that the trial court abused its discretion in its

       sentencing of Kerenke.


                                                 Conclusion
[52]   For all of these reasons, we hold that Karenke was not denied any of his

       constitutional rights. Also, the trial court did not abuse its discretion in any of

       its rulings on the admission of evidence. Sufficient evidence supported his

       convictions, and his sentence was not inappropriate. Accordingly, his

       convictions for attempted rape, criminal confinement, and resisting law

       enforcement are affirmed, as is his nine-year sentence for those offenses.


[53]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1194 | April 1, 2020   Page 30 of 30
