Manford F. Girten Jr. v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 16 2019, 7:58 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
Bruce W. Graham Curtis T. Hill, Jr.
Graham Law Firm P.C. Attorney General of Indiana
Lafayette, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Manford F. Girten Jr., August 16, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2252
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D02-1802-F3-4
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 1 of 19
[1] Manford F. Girten Jr. appeals his convictions of Level 3 felony rape, 1 Level 6
felony criminal confinement, 2 Level 6 felony strangulation, 3 and three counts of
Class A misdemeanor invasion of privacy. 4 Girten argues the trial court abused
its discretion when it did not grant a mistrial after violation of the court’s in
limine order, and his convictions of rape, criminal confinement, and
strangulation violate his constitutional right to be free of double jeopardy.
Girten also argues his sentence was inappropriate. We affirm in part and
reverse in part.
Facts and Procedural History
[2] E.A. began dating Girten on August 14, 2017. E.A. was a member of the Blue
Jacket Club (“Club”). The Club is comprised of Purdue University students
who are Catholic or High Church Anglican. E.A. was close friends with Colten
Austermann, another member of the Club. Girten believed E.A. and
Austermann were romantically involved, despite E.A. telling Girten there was
no romantic relationship between herself and Austermann.
[3] On September 28, 2017, E.A. was out with Girten when she received a text
from Austermann asking if E.A. would be at a Club event. E.A. replied to tell
1
Ind. Code § 35-42-4-1(a)(1) (2014).
2
Ind. Code § 35-42-3-3(a) (2014).
3
Ind. Code § 35-42-2-9(c) (2014).
4
Ind. Code § 35-46-1-15.1(a)(2) (2017).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 2 of 19
Austermann she would not be attending. Girten began to yell at E.A. for
responding to Austermann’s text. Girten continued to yell at E.A. when they
returned to E.A.’s apartment. E.A. became upset. Girten pulled E.A. onto the
floor and demanded a kiss in order to show they had “made up.” (Tr. Vol. II at
156.) When E.A. refused to kiss, Girten dragged E.A. across the floor, running
her into furniture, and then pinned her down by her wrists. E.A., who had
trained in judo, tried to use self-defense moves to remove Girten. However,
Girten, a “champion level martial artist” himself, was able to restrain E.A. (Id.
at 159.) At some point, Girten released E.A. and allowed her to stand up. E.A.
asked Girten to leave, but he refused and insisted E.A. give him a kiss. E.A.,
still scared and upset, refused and instead offered a hug. Girten grabbed E.A.
by the hair and pinned her against the wall. E.A. still refused to kiss Girten,
and he again released her.
[4] Girten stayed the night and slept in E.A.’s bed while E.A. slept on the couch.
E.A. left her apartment after midnight to meet Austermann and another
member of the Club. E.A. left a note for Girten to let him know where she had
gone. Austermann drove E.A. home between four and six in the morning.
Girten was still in E.A.’s apartment and told E.A. he was watching her and
Austermann. Girten yelled at E.A. for being alone with Austermann, and he
continued to yell at E.A. until he left for work.
[5] The next day, Girten texted E.A. and threatened to hurt her or Austermann if
she was alone with him again. Later in the day, Girten picked up E.A. to go
buy furniture, and then they returned to E.A.’s apartment. E.A. tried to take a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 3 of 19
nap, but Girten lectured her about Austermann. Later that night E.A. and
Girten met two friends at a bar. They went to a few bars that night before E.A.
and Girten returned to E.A.’s apartment around 11 p.m. E.A. and Girten were
watching a show when Girten tried to place E.A.’s hand on his genitals. When
she pulled back, Girten pinched her arm, leaving it feeling weak and tingly.
Girten told E.A. he could paralyze her arm.
[6] E.A. went to the bedroom and stood at the foot of her bed. Girten came up
behind her and pushed her onto the bed. Girten pulled off E.A.’s pants and
underwear as she was trying to escape. As E.A. tried to crawl away, Girten
flipped E.A. over onto her back. E.A. begged for Girten to stop and give back
her underwear. Girten told her to “shut up.” (Id. at 181.) Girten told E.A. he
would return her underwear if she stopped begging him to stop. E.A. became
silent, but instead of returning her underwear, Girten moved his face toward
her genitals. Girten put his hand around E.A.’s throat and used his thumb to
make it hard for her to breathe. When Girten let go of E.A.’s throat, he used
his hand to keep E.A. from talking.
[7] During all of this, Girten managed to undress. Girten took his penis and put
the tip in her vagina and anus, alternating between them. Girten told E.A. he
could use either his penis or his tongue. Girten forced E.A.’s legs apart. E.A.
told Girten to stop and continued to resist. Girten put his face towards E.A.’s
genitals and inserted his tongue into her vagina. E.A. continued to struggle and
to beg Girten to stop. Girten then stuck his fingers in her vagina. When Girten
stopped, E.A. curled into the fetal position. Girten amusingly told E.A.: “You
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 4 of 19
say you don’t want it, but I can tell that you’re wet.” (Id. at 186.) E.A. told
Girten she did not want it.
[8] Girten’s demeanor became angry, and he pulled E.A. across the bed, forced
himself between E.A.’s legs, and inserted his penis into her vagina. At the same
time, he began to interrogate E.A. about Austermann. E.A. told Girten if he
did not stop she would scream. Girten stopped, and E.A. ran out of the room
wrapped in a blanket. She could not find her phone and did not think she could
escape Girten, so she locked herself in the bathroom. Girten paced outside the
bathroom, banging on the door and telling E.A. he would kick the door down if
she did not unlock it.
[9] E.A. grabbed a flat iron to use as a weapon. Afraid something worse might
happen, E.A. exited the bathroom. Girten was holding E.A.’s phone when she
got out of the bathroom. E.A. sat on the couch, and Girten asked her about a
message she received from a male friend. E.A. told Girten it was nothing to
worry about. E.A. went to the bedroom to get dressed. Girten pulled the
blanket off of E.A. and said, “I guess I’ll let you get dressed.” (Id. at 191.) E.A.
got dressed and Girten again pinned her to the bed and tried to kiss her. Girten
used his thumb to pry E.A.’s mouth open and stuck his tongue in it. Girten
asked E.A. if she wanted Girten to leave, to which she replied, “Yes.” (Id. at
192.) Girten said he was not going to leave.
[10] E.A. suggested they go to bed, hoping Girten would leave for work in the
morning. Throughout the night, Girten put E.A.’s hand on his genitals or
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 5 of 19
placed his hand on her genitals. In the morning, E.A. told Girten to go to
work. Girten told her he was not going to work. E.A. kept telling Girten to
leave, and he finally left around 10 a.m. Once Girten left, E.A. drove herself to
the hospital to be examined. E.A. was at the hospital for six or seven hours.
While she was there, Girten called and texted her a total of thirty-six times.
[11] E.A. was examined by Sexual Assault Nurse Examiner Aislynn Greiner. E.A.
was suffering from soreness and tenderness. Nurse Greiner noted discoloration
around E.A.’s chin, neck, and right, inner thigh. While at the hospital, E.A.
met with Detective Heath Provo. Detective Provo took statements from both
E.A. and Nurse Greiner. Detective Provo observed bruises, marks, and
scratches on multiple parts of E.A.’s body.
[12] On October 5, 2017, E.A. obtained a protective order against Girten. Girten
nevertheless continued to reach out to E.A. Because E.A. felt afraid to leave
her apartment, she moved to a new location.
[13] On February 26, 2018, Girten was charged with Level 3 felony rape, Level 5
felony criminal confinement, 5 Level 5 felony stalking, 6 Level 6 felony criminal
confinement, Level 6 felony intimidation, 7 Level 6 felony strangulation, two
5
Ind. Code § 35-42-3-3(a) (2014).
6
Ind. Code § 35-45-10-5(a) (2014).
7
Ind. Code § 35-45-2-1(a)(1) (2017).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 6 of 19
counts of Class A misdemeanor domestic battery, 8 and three counts of Class A
misdemeanor invasion of privacy. After three days, a jury found Girten not
guilty of Level 5 felony stalking and one count of Class A misdemeanor
domestic battery, but guilty of the other nine counts. At sentencing, the trial
court merged the guilty findings of Level 5 felony criminal confinement, Level 6
felony intimidation, and Class A misdemeanor domestic battery into the
conviction of Level 3 felony rape. The trial court imposed an aggregate twenty-
three-year sentence, with three years suspended to probation.
Discussion and Decision
Motion for Mistrial
[14] Girten argues the trial court abused its discretion by failing to grant his request
for a mistrial. A mistrial is an “extreme remedy warranted only when no other
curative measure will rectify the situation.” Kirby v. State, 774 N.E.2d 523, 533
(Ind. Ct. App. 2002), reh’g denied, trans. denied.
Because the trial court evaluates first-hand the relevant facts and
circumstances at issue and their impact on the jury, it is in the
best position to evaluate whether a mistrial is warranted. We
accordingly review the trial court’s denial of a motion for mistrial
for an abuse of discretion.
8
Ind. Code § 35-42-2-1.3(a)(1) (2016).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 7 of 19
Weisheit v. State, 26 N.E.3d 3, 15 (Ind. 2015) (internal citations omitted), reh’g
denied, cert. denied 136 S. Ct. 901 (2016). To preserve this issue for appeal, a
party must timely object and request an admonition or mistrial. Brown v. State,
799 N.E.2d 1064, 1066 (Ind. 2003).
[15] Girten argues he should have been granted a mistrial because the court’s in
limine order was violated in two different ways. Paragraph eight of the Motion
in Limine states:
Defendant, by counsel, respectfully requests an Order prohibiting
the State of Indiana from offering into evidence, discussing
during jury selection, mentioning during argument, or otherwise
bringing before the jury the following evidence, to-wit:
*****
(8) Any reference to E.A. being the “victim” or reference to the
“rape”. Whether E.A. is a victim and whether a rape occurred is
the ultimate issue for the jury to decide. (Evidence Rule 704
(b)).”
(App. Vol. II at 73-74.) In regard to Paragraph 8, the trial court’s order stated,
“Paragraph number 8 is GRANTED under the condition the terms may be
used at the appropriate time.” 9 (Id. at 76.)
9
Counsel and the trial court agreed the appropriate time would be during the opening statement and closing
argument. (See Tr. Vol. II at 66.)
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 8 of 19
References to E.A. as “victim”
[16] While testifying, an investigating officer twice referred to E.A. as the “victim.”
(Tr. Vol. II at 105, 107.) After the second use of the term, Girten objected for
violation of the in limine order. The trial court and the attorneys stepped
outside the presence of the jury to discuss the matter and determined the court
would admonish the officer to refrain from using the term “victim.” (Tr. Vol. II
at 108.) After the trial court admonished the officer, the court asked if this
cured the defense concern, and Girten’s attorney replied, “Best we can do,
Judge.” (Tr. Vol. II at 110.)
[17] Girten’s response suggested he was satisfied with the trial court’s
admonishment of the witness and did not wish the court to take any other
corrective measures. Under the doctrine of invited error, “a party may not take
advantage of an error that she commits, invites, or which is the natural
consequence of her own neglect or misconduct.” Wright v. State, 828 N.E.2d
904, 907 (Ind. 2005) (internal quotation and citation omitted). Because Girten
did not ask for an additional remedy when the court inquired whether the court
had cured the issue, Girten cannot now assert the trial court abused its
discretion by failing to grant a mistrial. See id. (party that invited error at trial
cannot take advantage of it on appeal).
E.A.’s use of the word “rape”
[18] The other violation of the in limine order occurred when E.A. was testifying.
While testifying about the timeline of her relationship with Girten, E.A. used
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 9 of 19
the word “rape.” (Tr. Vol. II at 149.) Girten moved for a mistrial, but the trial
court denied his request. The trial court admonished E.A. and told her to not
use the term “rape” as it was prohibited by the pre-trial order. (Id. at 152.)
Now, on appeal, Girten asserts the trial court should have struck E.A.’s answer
from the record.
[19] Girten’s attorney did not move for the trial court to strike the testimony from
evidence. (See Tr. Vol. II at 149-153.) “A party who fails to make a timely
objection, or, for that matter, to file a timely motion to strike, normally waives
the right to have the evidence excluded at trial and the right on appeal to assert
the admission of evidence as erroneous.” Stroud v. State, 587 N.E.2d 1335, 1340
(Ind. Ct. App. 1992). Because Girten did not move to strike E.A.’s testimony
from the record at trial, he cannot allege on appeal that the trial court erred by
failing to strike that evidence from the record.
Cumulative Error
[20] Despite the facts that Girten suggested the court’s admonition of the officer was
sufficient and that Girten did not ask the trial court to strike E.A.’s mention of
rape from the record, we consider whether Girten was prejudiced by the
cumulative impact of these three violations of the in limine order. The
erroneous admission of evidence may be harmless if that evidence is cumulative
of other evidence admitted. Zanders v. State, 118 N.E.3d 736, 752 (Ind. 2019).
“An error is harmless when it results in no prejudice to the substantial rights of
a party. While there are important contextual variations to this rule, the basic
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 10 of 19
premise holds that a conviction may stand when the error had no bearing on the
outcome of the case.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018).
[21] At trial, the jury heard testimony from E.A. regarding the sexual assault on
September 29, 2017, and other incidents of violence by Girten around that same
time, testimony from Nurse Greiner as to the injuries E.A. suffered as a result
of the sexual assault, and testimony from Detective Provo as to the injuries he
observed on E.A. The jury also saw pictures of those injuries and text messages
between E.A. and Girten discussing the assault. Thus, the jury had an
abundance of evidence supporting its decision. Under these circumstances, we
cannot say the trial court committed reversible error when it denied Girten’s
motion for mistrial. See Finney v. State, 786 N.E.2d 764, 768 (Ind. Ct. App.
2003) (improper admission of a witness’ testimony was harmless where other
evidence conclusively demonstrated guilt).
Double Jeopardy
[22] Girten next argues three of his nine convictions violate his constitutional right
to be free from double jeopardy. See Ind. Const. Art. 1, § 14 (“No person shall
be put in jeopardy twice for the same offense.”). Two offenses are the “same
offense” in violation of Indiana’s Double Jeopardy Clause if, with respect to
either the statutory elements of the challenged crimes or the actual evidence
used to convict, the essential elements of one challenged offense also establish
the essential elements of another challenged offense. Spivey v. State, 761 N.E.2d
831, 832 (Ind. 2002). To determine whether the statutory elements test is
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 11 of 19
violated, we apply the federal test: “whether each provision requires proof of an
additional fact which the other does not.” Blockburger v. United States, 284 U.S.
299, 304, 52 S. Ct. 180, 182 (1932).
[23] We review de novo whether a defendant’s convictions violate this provision.
Spears v. State, 735 N.E.2d 1161, 1166 (Ind. 2000), reh’g denied. “When two
convictions are found to contravene double jeopardy principles, a reviewing
court may remedy the violation by reducing either conviction to a less serious
form of the same offense if doing so will eliminate the violation. If it will not,
one of the convictions must be vacated.” Richardson v. State, 717 N.E.2d 32, 54
(Ind. 1999), holding modified by Garrett v. State, 992 N.E.2d 710 (Ind. 2013)
(modification as to cases involving hung jury or acquittal).
Rape and Criminal Confinement
[24] Girten argues his conviction of both rape and criminal confinement violates the
“actual evidence” test. The actual evidence test requires us to “determine
whether each challenged offense was established by separate and distinct facts.”
Richardson, 717 N.E.2d at 53. To determine what facts were used to convict, we
consider the charging information, the final jury instructions, the evidence, and
the arguments of counsel. Davis v. State, 770 N.E.2d 319, 324 (Ind. 2002), reh’g
denied. The elements of Level 3 felony rape as charged against Girten are: (1)
Girten; (2) knowingly or intentionally; (3) had sexual intercourse; (4) with E.A.;
(5) while E.A. was compelled by force or imminent threat of force. See Ind.
Code § 35-42-4-1(a)(1). The elements of Level 6 felony criminal confinement
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 12 of 19
are: (1) Girten; (2) knowingly or intentionally; (3) confined E.A.; (4) without
E.A.’s consent. See Ind. Code § 35-42-3-3(a).
[25] In its closing argument, the State argued the evidence satisfied the fifth element
of Level 3 felony rape because Girten held E.A. down on the bed. (See Tr. Vol.
III at 189.) When explaining the evidence supporting a conviction of Level 6
felony criminal confinement, the prosecutor said:
He confined her in the bedroom, but he confined her after that.
Remember she wanted him to leave and he wouldn’t leave, and
she wanted to get up and he wouldn’t let her? When she ran out
of the bathroom after the assault in the bedroom was over, she
ran out of the bathroom, and when she did, the Defendant was
standing in front of the door so she couldn’t leave the apartment.
This was after he had threatened to bang down the - to beat down
the door, where she had frantically looked for a weapon only to
find a hair straightener. If you look through those photographs,
it’s sitting at the very top on a pile of clothes, within easy reach.
(Id. at 190.)
[26] While the prosecutor’s argument as to Level 6 felony criminal confinement first
mentioned the confinement that occurred in the bedroom, our reading of the
record leaves us without doubt that this reference was made to distinguish the
two counts of criminal confinement: this Level 6 felony, which was the fourth
count discussed during closing argument, and the Level 5 felony that was the
second count discussed in closing argument. (See id. at 191-92.) The Level 5
felony criminal confinement was supported by facts that occurred in the
bedroom, (see id.), and the trial court merged the jury’s guilty finding of that
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 13 of 19
confinement into Girten’s conviction of rape. (See id. at 238.) After mentioning
that Girten had confined E.A. in the bedroom, the prosecutor then argued the
facts that applied strictly to Level 6 felony criminal confinement. Because the
jury was urged to rely on evidence of confinement that occurred outside the
bedroom while convicting Girten of Level 6 felony criminal confinement,
Girten was not subjected to double jeopardy when simultaneously convicted of
rape and Level 6 felony criminal confinement. See Ho v. State, 725 N.E.2d 988,
992 (Ind. Ct. App. 2000) (independent evidence used to establish separate
elements allowed for convictions of multiple crimes).
Rape and Strangulation
[27] Girten next argues the acts he committed when E.A. was on the bed were one
continuous act, such that his act of strangulation occurred during the rape, and
he should not be convicted of both rape and strangulation. In support he cites
the continuing crime doctrine, which “essentially provides that actions that are
sufficient in themselves to constitute separate criminal offenses may be so
compressed in terms of time, place, singleness of purpose, and continuity of
action as to constitute a single transaction.” Boyd v. State, 766 N.E.2d 396, 400
(Ind. Ct. App. 2005), trans. denied. In effect, the doctrine “defines those
instances where a defendant’s conduct amounts only to a single chargeable
crime.” Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015).
[28] We addressed a similar issue in Gomez v. State, 56 N.E.3d 697 (Ind. Ct. App.
2016). In Gomez, the defendant was convicted of three counts of domestic
battery all stemming from one single altercation. Gomez grabbed a woman,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 14 of 19
slammed her into a wall, and pulled her hair. We held all of Gomez’s actions
were “so compressed in time, place, and singleness of purpose, that the action
constituted as a single transaction.” Id. at 704. Accordingly, we reversed two
of Gomez’s convictions. Id. at 705.
[29] Here, E.A. testified to the events that occurred on September 29, 2019. E.A.
explained that, as Girten attempted to rape her, he placed his hand around her
throat and made it difficult to breathe. (Tr. Vol. II at 182-183.) Although the
prosecutor attempted to separate out elements and facts to support separate
crimes, it is apparent from the transcript that the strangulation occurred during
the act of rape and thus was not a separate offense. Girten choked E.A. while
he had her pinned on the bed and was undressing himself to penetrate her.
Because the strangulation and rape were “compressed in terms of time, place,
singleness of purpose, and continuity of action[,]” Boyd, 766 N.E.2d at 400, we
must vacate Girten’s conviction of Level 6 felony strangulation. See Gomez, 56
N.E.3d at 705 (because defendant’s alleged acts were sufficiently compressed in
time, place, and singleness of purpose, the convictions violated the continuous
crime doctrine).
Appropriate Sentence
[30] Girten also argues his sentence is inappropriate in light of his character and the
nature of his offense.
We “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
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 15 of 19
the character of the offender.” Ind. Appellate Rule 7(B).
“Although appellate review of sentences must give due
consideration to the trial court’s sentence because of the special
expertise of the trial bench in making sentencing decisions,
Appellate Rule 7(B) is an authorization to revise sentences when
certain broad conditions are satisfied.” Shouse v. State, 849
N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
quotation marks omitted). “[W]hether we regard a sentence as
appropriate at the end of the day turns on our sense of the
culpability of the defendant, the severity of the crime, the damage
done to others, and myriad other factors that come to light in a
given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
In addition to the “due consideration” we are required to give to
the trial court’s sentencing decision, “we understand and
recognize the unique perspective a trial court brings to its
sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007).
Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.
denied. The appellant bears the burden of demonstrating his sentence is
inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),
trans. denied.
[31] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). The
sentence for a Level 3 felony is between six and sixteen years with the advisory
sentence being nine years. Ind. Code § 35-50-2-5(b) (2014). Girten was
sentenced to fifteen years, thus receiving below the maximum but above the
advisory sentence for his rape conviction. The sentence for a Level 6 felony is
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 16 of 19
between six months and two-and-one-half years, with the advisory sentence
being one year. Ind. Code § 35-50-2-7 (2016). Girten was sentenced to two-
and-one-half years for each of his Level 6 felonies, thus receiving the maximum
sentence for both criminal confinement and strangulation. The sentence for a
Class A misdemeanor is a fixed term of not more than one year. Ind. Code §
35-50-3-2 (1976). Girten was sentenced to one year in prison for each of his
invasion of privacy convictions, thus receiving the maximum sentence for each.
The court ordered Girten to serve his sentences consecutively, for an aggregate
sentence of twenty-three years in prison, with three years suspended to
probation. 10 Because we vacated Girten’s conviction of strangulation on double
jeopardy grounds, Girten’s sentence is reduced by two-and-one-half years, such
that it now is twenty-and-one-half years, with six months suspended to
probation. We review the appropriateness of his modified sentence.
[32] Regarding the nature of Girten’s offense, the trial court noted the seriousness of
Girten’s crimes. Girten raped and confined E.A. within her own apartment.
The trial court also acknowledged the impact the attack had on E.A. E.A. told
the court that, since the attack, she has had night terrors, she fears Girten will
seek revenge when he is released, and she still struggles to leave her house to do
10
Girten asserts the trial court erred when it ordered Girten to serve his sentences for the convictions of rape,
criminal confinement, and strangulation consecutively, because they all stem from one criminal act. As we
addressed in the double jeopardy analysis, the act of criminal confinement occurred after the rape, when E.A.
was not allowed to leave her apartment. Additionally, we vacated the conviction of strangulation.
Therefore, Girten argument as to consecutive sentences has no merit.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 17 of 19
simple tasks. (App. Vol. II at 173.) The severity and brutality of Girten’s
actions have greatly impacted E.A. and the way she goes about her life.
[33] As to Girten’s character, the trial court noted Girten was in school, employed,
and previously had served in the military. However, the court also pointed out
Girten has a lengthy criminal history including convictions for assault, child
abuse, twice violating protective orders, and menacing, among numerous other
crimes. The trial court also found Girten’s lack of remorse to be an aggravating
factor, along with Girten being involved in two fights in jail while waiting for
his sentencing. See Deane v. State, 759 N.E.2d 201, 205 (Ind. 2001) (defendant’s
lack of remorse allows for an enhanced sentence).
[34] Given the nature of the offenses (i.e., the seriousness of the offenses and the
long-term impact it has had on the victim) and the character of the offender (i.e.,
Girten’s lengthy criminal record and lack of remorse), we cannot say Girten’s
twenty-and-one-half year sentence is inappropriate. See Clark v. State, 26 N.E.3d
615, 619 (Ind. Ct. App. 2014) (defendant’s extensive criminal history showed
bad character and allowed for aggravated sentence), trans. denied.
Conclusion
[35] The three minor violations of the order in limine were harmless in light of the
substantial evidence in the record. Girten’s claim of a double jeopardy
violation regarding his conviction for Level 6 felony criminal confinement fails
because the jury was told to rely on evidence of confinement that was separate
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 18 of 19
from the confinement that occurred during the rape. However, because the
strangulation occurred during the act of rape, we must vacate Girten’s
conviction of Level 6 felony strangulation. Additionally, in light of Girten’s
character and the nature of his offense, his now twenty-and-one-half year
sentence is not inappropriate. Accordingly, we affirm in part and reverse in
part.
[36] Affirmed in part and reversed in part.
Mathias, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2252 | August 16, 2019 Page 19 of 19