Court of Appeals of Indiana | Opinion 19A-CR-2891 | June 24, 2020 Page 1 of 14

ATTORNEY FOR APPELLANT

Denise L. Turner

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Montel Giden,

Appellant-Defendant,

v. 

State of Indiana, 

Appellee-Plaintiff. 

June 24, 2020 

Court of Appeals Case No.

19A-CR-2891 

Appeal from the Shelby Superior

Court 

The Honorable R. Kent Apsley, 

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.
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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, separationof-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.