FILED
Jun 24 2020, 7:04 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Denise L. Turner Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Montel Giden, June 24, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2891
v. Appeal from the Shelby Superior
Court
State of Indiana, The Honorable R. Kent Apsley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
73D01-1908-F6-417
Tavitas, Judge.
Case Summary
[1] Montel Giden appeals his two convictions for escape, as Level 6 felonies. We
affirm.
Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020 Page 1 of 14
Issues
[2] Giden raises three issues, which we revise and restate as:
I. Whether the escape statute violates the Proportionality
Clause of Article 1, Section 16 of the Indiana Constitution.
II. Whether fundamental error occurred as a result of the jury
instructions.
III. Whether the evidence is sufficient to sustain Giden’s
conviction for escape related to the July 24, 2019 incident.
Facts
[3] On July 12, 2019, the State charged Giden with criminal recklessness, a Level 5
felony, and pointing a firearm, a Level 6 felony. 1 Giden posted bond and, on
July 12, 2019, was placed on home detention as a condition of his pretrial
release. The home detention order required Giden to “be confined to [his]
home at all times” except for certain approved reasons. Exhibits p. 3. The
order also required Giden to “abide by a written schedule prepared by [his]
community corrections program specifically setting forth the limited times
when [he] may be absent from [his] home and the specific locations [he is]
allowed to be during scheduled absences.” Id. The order noted that Giden may
be subject to prosecution for the crime of escape for any violation of the home
detention order. Shelby County Community Corrections (“SCCC”) personnel
explained to Giden the process of completing and returning the weekly
1
Giden was later acquitted of these charges.
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schedules by 8:00 p.m. on Sunday evenings. Even a trip to SCCC must be
listed on the weekly schedule. Participants are also given a number to call in
emergency situations. Giden received his GPS monitoring equipment on July
15, 2019.
[4] Giden’s weekly schedule for July 24, 2019, to July 30, 2019, did not list any
home absences for July 24, 2019. On Wednesday, July 24, 2019, SCCC
received an alert that Giden left his home. 2 GPS records indicated that Giden
left his home at 2:30 p.m., traveled to SCCC, and returned home at 2:52 p.m.
According to Giden’s testimony, he went to SCCC to get permission to see an
attorney, and he was told at SCCC “that would not be allowed.” Tr. Vol. II p.
198. SCCC personnel again explained to Giden the need to have all absences
from his home recorded on his weekly schedule.
[5] Giden’s weekly schedule for August 21, 2019, to August 27, 2019, did not list
any home absences for August 25, 2019. On Sunday, August 25, 2019, SCCC
received another alert that Giden left his home. GPS records show that,
between 3:56 p.m. and 8:50 p.m., Giden left and returned to his residence four
times and that he visited several addresses in Shelbyville. When questioned by
SCCC personnel regarding his whereabouts that day, Giden claimed that he
had to go to CVS to get an inhaler. The GPS records, however, did not indicate
2
At the beginning of his home detention, Giden did not have a telephone. According to SCCC, Giden
received his telephone back on August 7, 2019, but Giden claims that he received his telephone back on
August 28, 2019, and that the telephone he received on August 7, 2019, did not work. Giden did not have a
vehicle or bicycle, and his main mode of transportation was walking.
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that Giden went to CVS. According to Giden’s testimony, he left his residence
to drop off his weekly schedule at SCCC and to attempt to borrow an inhaler.
Giden had not previously informed SCCC that he needed an inhaler.
[6] On August 28, 2019, the State charged Giden with two counts of escape, as
Level 6 felonies. The jury found Giden guilty as charged. The trial court
sentenced Giden to an aggregate sentence of 365 days, with 180 days executed
in the Shelby County Jail and the remainder of the sentence suspended to
probation. Giden now appeals.
Analysis
I. Proportionality Clause
[7] Giden argues that the escape statute violates the Proportionality Clause of the
Indiana Constitution. As an initial matter, the State argues that Giden waived
this argument by failing to raise it in a motion to dismiss. The Indiana Supreme
Court has held that such constitutional claims are waived where they are not
raised at trial. Layman v. State, 42 N.E.3d 972, 976 (Ind. 2015). The Court also
noted, however that “appellate courts are not prohibited from considering the
constitutionality of a statute even though the issue otherwise has been waived.”
Id. Indeed, we may exercise our discretion to review a constitutional claim on
our own accord. Id. For example, in Poling v. State, 853 N.E.2d 1270, 1274
(Ind. Ct. App. 2006), we addressed a defendant’s challenge of a criminal statute
under the Proportionality Clause after noting that a party may raise the issue of
a statute’s constitutionality at any stage of a proceeding and that this Court may
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also raise the issue sua sponte. Accordingly, we will address Giden’s argument
despite his waiver.
[8] The Proportionality Clause mandates that “[a]ll penalties shall be proportioned
to the nature of the offense.” Ind. Const. Art. 1, § 16. Challenges to the
constitutionality of a statute begin with a presumption in favor of the statute’s
constitutionality and will not be overcome absent a clear showing to the
contrary. White v. State, 971 N.E.2d 203, 207-08 (Ind. Ct. App. 2012), trans.
denied. “[B]ecause criminal sanctions are a legislative prerogative, separation-
of-powers principles require a reviewing court to afford substantial deference to
the sanction the legislature has chosen.” Id. Accordingly, we will not disturb
the legislative determination of the appropriate penalty for criminal behavior
except upon a showing of clear constitutional infirmity. Id.
[9] The protections provided by Article 1, Section 16 are “narrow.” Knapp v. State,
9 N.E.3d 1274, 1289 (Ind. 2014), cert. denied, 574 U.S. 1091, 135 S. Ct. 978
(2015). “[A] finding of unconstitutionality should be reserved for ‘penalties so
disproportionate to the nature of the offense as to amount to clear constitutional
infirmity sufficient to overcome the presumption of constitutionality afforded to
[legislative] decisions about penalties.’” Poling, 853 N.E.2d at 1275 (quoting
State v. Moss-Dwyer, 686 N.E.2d 109, 112 (Ind. 1997)). The constitutional
provision is violated “only when the criminal penalty is not graduated and
proportioned to the nature of the offense.” Knapp v. State, 9 N.E.3d 1274, 1289-
90 (Ind. 2014); see also Shoun v. State, 67 N.E.3d 635, 641 (Ind. 2017). Though
we “cannot set aside a legislatively sanctioned penalty merely because it seems
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too severe,” Article 1, Section 16 requires us to review whether a sentence is not
only within statutory parameters, but also constitutional as applied to the
particular defendant. Knapp, 9 N.E.3d at 1290.
[10] Giden was convicted pursuant to Indiana Code Section 35-44.1-3-4(b), which
provides: “A person who knowingly or intentionally violates a home detention
order or intentionally removes an electronic monitoring device or GPS tracking
device commits escape, a Level 6 felony.” Giden argues that the escape statute,
which makes the violation of a home detention order a Level 6 felony, violates
the Proportionality Clause because another statute, Indiana Code Section 35-
38-2.5-13, makes the unauthorized absence from home detention a Class A
misdemeanor.
[11] The unauthorized absence from home detention statute, Indiana Code 35-38-
2.5-13, provides:
An offender who:
(1) leaves the offender’s home in violation of section 6(1)
of this chapter or without documented permission from
the supervising entity;
(2) remains outside the offender’s home in violation of
section 6(1) of this chapter or without documented
permission from the supervising entity; or
(3) travels to a location not authorized under section 6(1)
of this chapter or not authorized in writing by the
supervising entity;
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commits unauthorized absence from home detention, a Class A
misdemeanor.
We have held that this statute “applies only in cases where the offender has
been placed on home detention as a condition of probation.” Gordon v. State, 981
N.E.2d 1215, 1220 (Ind. Ct. App. 2013) (emphasis added); see Ind. Code § 35-
38-2.5-5. Here, however, Giden was subject to home detention as a condition
of his pretrial release, not as a condition of probation. As such, Indiana Code
35-38-2.5-13 was not applicable to Giden’s offense.
[12] According to Giden, “common sense and sound logic dictate that [Indiana
Code Section 35-38-2.5-13] should apply equally to a person placed on home
detention as a condition of pre-trial release in order to comport with Indiana’s
Proportionality Clause.” Appellant’s Br. p. 11. Giden points out that a
“presumptively innocent defendant” on home detention as a condition of
pretrial release “can receive a harsher penalty” than an “already-convicted
offender.” Id.
[13] The State points out that the escape statute and the unauthorized absence from
the home detention statute contain different elements. See Matthews v. State, 944
N.E.2d 29, 33 (Ind. Ct. App. 2011) (“Because the three crimes do not have
identical elements, the proportionality clause of our Constitution is not
offended if our legislature assigns different sentences to them.”). The State also
contends that the different statutes ensure that a lower-level offense option is
available to defendants on probation where the violation of a probationary term
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“likely means additional sanctions for a defendant, including revocation of all
or part of a suspended sentence.” Appellee’s Br. p. 18.
[14] We agree with the State that Giden has failed to overcome the strong
presumption in favor of the statute’s constitutionality and has failed to make a
clear showing of a constitutional infirmity. The General Assembly’s choice of
sanctions is entitled to substantial deference, and the State has pointed out a
reasonable explanation for the differences in sanctions between the two statutes.
Under these circumstances, Giden has failed to demonstrate that the escape
statute violates the Proportionality Clause. 3
II. Jury Instruction
[15] Giden argues that the trial court erred in instructing the jury. The manner of
instructing a jury is left to the sound discretion of the trial court. Coy v. State,
999 N.E.2d 937, 942-43 (Ind. Ct. App. 2013). When reviewing a trial court’s
decision to refuse or give jury instructions, this Court “considers: (1) whether
the instruction correctly states the law; (2) whether there is evidence in the
3
Although Giden’s Proportionality Clause argument fails, we note our concern with the outcome here.
Giden was found not guilty of the original charges for which he was placed on pretrial home detention, but
he now has two felony convictions for relatively minor violations of the pretrial home detention order. We
find it problematic that the escape statute treats relatively minor violations, such as Giden’s violations, the
same as the violations of a defendant who absconds from pretrial home detention. We cannot find the
statute unconstitutional merely because it seems too severe, see Knapp, 9 N.E.3d at 1290; we encourage the
General Assembly, however, to consider amending the escape statute to include staggered penalties based on
the type of violation.
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record to support the giving of the instruction; and (3) whether the substance of
the tendered instruction is covered by other instructions which are given.” Id.
[16] Giden argues that the jury could have based his conviction for escape related to
August 25, 2019, upon any of his four absences from his house and that it is
possible different jurors based their guilty verdict on different acts. According
to Giden, the trial court should have instructed the jury that their verdict had to
be unanimous. Giden contends that we should vacate his conviction for escape
related to August 25, 2019, due to “the uncertainty regarding the unanimity of
the verdict and the lack of a proper instruction from the court.” Appellant’s Br.
p. 18.
[17] In support of his argument Giden relies on Castillo v. State, 734 N.E.2d 299 (Ind.
Ct. App. 2000), summarily aff’d, 741 N.E.2d 1196 (Ind. 2001). In Castillo, the
State charged the defendant with one act of dealing in cocaine even though
there was evidence presented that the defendant committed two separate acts of
dealing in cocaine on that same day. Over the defendant’s objection, the State
was permitted to present evidence of both incidents. In closing argument, the
State told the jury they had “a choice” in convicting the defendant of dealing in
cocaine. Castillo, 734 N.E.2d at 304. The State told the jury it had proved both
incidents but that the jury only had to find either incident occurred.
[18] This Court held:
The trial court did not instruct the jurors that they were required
to render a unanimous verdict regarding which dealing crime
Castillo committed. . . . It is possible, given these facts, that
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some jurors believed that Castillo committed the earlier dealing
crime at Garcia’s home while other jurors believed that Castillo
committed the dealing violation at his home later that same day.
Consequently, it is possible that the jury’s verdict of guilty
regarding the charge of dealing in cocaine was not unanimous.
We, therefore, conclude that Castillo’s conviction for dealing in
cocaine should be vacated and, in this regard, we remand this
cause to the trial court for further proceedings.
Id. at 304-05.
[19] Following Castillo, our Supreme Court decided Baker v. State, 948 N.E.2d 1169
(Ind. 2011). The Court noted “this jurisdiction has long required that a verdict
of guilty in a criminal case ‘must be unanimous.’” Baker, 948 N.E.2d at 1173-
74 (quoting Fisher v. State, 259 Ind. 633, 291 N.E.2d 76, 82 (1973)). Citing
Castillo, the Court held: “a disjunctive instruction, which allows the jury to find
a defendant guilty if he commits either of two or more underlying acts, either of
which is in itself a separate offense, is fatally ambiguous because it is impossible
to determine whether the jury unanimously found that the defendant
committed one particular offense.” Id. at 1175. Accordingly,
the State may in its discretion designate a specific act (or acts) on
which it relies to prove a particular charge. However if the State
decides not to so designate, then the jurors should be instructed
that in order to convict the defendant they must either
unanimously agree that the defendant committed the same act or
acts or that the defendant committed all of the acts described by
the victim and included within the time period charged.
Id. at 1177.
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[20] In Baker, however, the Court noted that the defendant failed to object to the
trial court’s instruction and also failed to offer an instruction of his own.
Accordingly, the Court held that the issue was waived. See id. at 1178 (“[A]
defendant who fails to object to an instruction at trial waives any challenge to
that instruction on appeal.”). The Court then considered whether fundamental
error occurred. Noting that the only issue was the credibility of the alleged
victims, the Court concluded that the defendant failed to demonstrate that the
instruction error “so prejudiced him that he was denied a fair trial.” Id. at 1179.
[21] Here, Giden did not tender a jury instruction based upon Baker and did not
object to the jury instructions on this basis. Accordingly, Giden’s argument is
waived. As in Baker, we will address whether the failure to give a Baker
instruction resulted in fundamental error. “In order to be fundamental, the
error must represent a blatant violation of basic principles rendering the trial
unfair to the defendant and thereby depriving the defendant of fundamental due
process.” Id. at 1178. “The error must be so prejudicial to the defendant’s
rights as to make a fair trial impossible. Id. “In considering whether a claimed
error denied the defendant a fair trial, we determine whether the resulting harm
or potential for harm is substantial. Id. at 1178-79. Harm is not shown by the
fact that the defendant was ultimately convicted. Id. Rather, harm is
determined by whether the defendant’s right to a fair trial was detrimentally
affected by the denial of procedural opportunities for the ascertainment of truth
to which he would have been entitled. Id.
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[22] The jury here was instructed that its verdict must be unanimous. See Tr. Vol.
III p. 27 (“To return a verdict, each of you must agree to it.”); id. at 28
(instructing the foreperson, “Do not sign any verdict form for which there is not
unanimous agreement.”). During closing arguments, Giden argued that he was
trying to follow the home detention rules “as best he could” and that he left his
house only to go to SCCC and to obtain an inhaler, which was an emergency
situation. Tr. Vol. III p. 9. Giden did not dispute that he repeatedly left his
residence on August 25, 2019. The only issue for the jury was whether Giden’s
behavior qualified as escape. Under these circumstances, we cannot say that
the error from the lack of a Baker instruction was so prejudicial to Giden’s rights
as to make a fair trial impossible. Giden has failed to demonstrate fundamental
error.
III. Sufficiency
[23] Giden challenges the sufficiency of the evidence to sustain his conviction for
escape, a Level 6 felony, related to the July 24, 2019, incident. When a
challenge to the sufficiency of the evidence is raised, “[w]e neither reweigh
evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210
(Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert. denied),
cert. denied. Instead, “we ‘consider only that evidence most favorable to the
judgment together with all reasonable inferences drawn therefrom.’” Id.
(quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is
supported by ‘substantial evidence of probative value even if there is some
conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also
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McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though
there was conflicting evidence, it was “beside the point” because that argument
“misapprehend[s] our limited role as a reviewing court”). “We will affirm the
conviction unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind.
2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).
[24] Indiana Code Section 35-44.1-3-4(b) provides: “A person who knowingly or
intentionally violates a home detention order . . . commits escape, a Level 6
felony.” Giden argues that the evidence is insufficient to sustain his conviction
for escape related to the July 24, 2019 incident. The State demonstrated that
Giden was provided with the home detention rules, including the requirement
that he provide a weekly schedule listing all times that he would be out of his
residence. The process for filling out the weekly schedule was explained to
Giden in detail. On July 24, 2019, Giden left his residence without permission,
walked to SCCC, asked an SCCC employee for permission to leave his
residence to see an attorney, and returned home. A SCCC employee explained
at the trial that even trips to SCCC must be on the weekly schedule. The
employee testified: “If we have everyone wanting to come to our office
whenever they want and it’s not on their schedule, we’re gonna have hundreds
of alarms going off on a daily basis.” Tr. Vol. II p. 100. A reasonable jury
could have found that the State proved Giden knowingly or intentionally
violated a home detention order beyond a reasonable doubt. The evidence is
sufficient to sustain Giden’s conviction. See, e.g., Keith v. State, 91 N.E.3d 1029,
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1032 (Ind. Ct. App. 2018) (holding the evidence was sufficient to sustain the
defendant’s conviction for escape), trans. denied.
Conclusion
[25] Giden has failed to demonstrate that his convictions violate the Proportionality
Clause or that fundamental error occurred as a result of the jury instructions.
Moreover, the evidence is sufficient to sustain Giden’s conviction for escape
related to the July 24, 2019 incident. We affirm.
[26] Affirmed.
Riley, J., and Mathias, J., concur.
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