Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

DAVID W. LAMONT GREGORY F. ZOELLER

Evansville, Indiana Attorney General of Indiana

GEORGE P. SHERMAN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JOHN F. GIRVIN, )

)

Appellant-Defendant, )

)

vs. ) No. 87A01-1208-CR-381

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE WARRICK SUPERIOR COURT

The Honorable Keith A. Meier, Judge

Cause No. 87D01-1010-FA-173

April 30, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
2

STATEMENT OF THE CASE

John Girvin appeals his convictions for child molesting, as a Class A felony, and 

vicarious sexual gratification, as a Class B felony, following a jury trial. Girvin presents 

the following restated, consolidated, and reordered issues for our review:

1. Whether the trial court abused its discretion when it denied his 

motion to dismiss.

2. Whether his convictions violate the prohibition against double 

jeopardy.

3. Whether the State presented sufficient evidence to support his 

convictions.

4. Whether he was denied the effective assistance of trial counsel.

5. Whether the trial court abused its discretion when it instructed the 

jury.

6. Whether the trial court erred when it did not advise him of his right 

to testify.

7. Whether the trial court erred when it determined that he is a credit 

restricted felon.

We affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

In approximately 2000 or 2001, C.F., who was born in 1990, was friends with 

eight-year-old A.G., Girvin’s son. C.F. occasionally stayed overnight with Girvin, his 

wife, Kelly, and A.G. One night, after A.G. had gone to sleep, C.F. stayed up and 

watched a movie with Girvin and Kelly. C.F., Girvin, and Kelly were lying on the living 

room floor when Girvin asked C.F. whether he wanted to see Kelly’s breasts. C.F. 

responded affirmatively, and Girvin pulled up Kelly’s shirt to expose her breasts. Girvin 
3

then began fondling Kelly’s breasts and asked C.F. whether he wanted to fondle her 

breasts, too, which C.F. proceeded to do.

One week later, C.F. again spent the night at Girvin’s home. Girvin fondled 

Kelly’s breasts in front of C.F. and invited C.F. to join him in the fondling, which he did. 

Then Girvin asked C.F. whether he would like to see Kelly’s vagina, and he responded 

affirmatively. Girvin then pulled down Kelly’s pants and exposed her vagina. Girvin 

then inserted his finger inside Kelly’s vagina and asked C.F. whether he wanted to do the 

same, but C.F. declined.

One week later, Girvin asked C.F. whether he wanted to see Kelly’s breasts. C.F. 

replied affirmatively, and Girvin pulled up Kelly’s shirt to expose her breasts. Girvin 

fondled Kelly’s breasts and asked C.F. whether he wanted to fondle them, which C.F. 

proceeded to do. Girvin then pulled down Kelly’s pants and began “playing with her 

vagina.” Transcript at 244. C.F. again declined Girvin’s invitation to touch Kelly’s 

vagina. But Girvin then told C.F. that he could put Kelly’s hand on C.F.’s penis while 

C.F. fondled Kelly’s breasts, and C.F. proceeded to do that. At the same time, Kelly was 

“playing with” Girvin’s penis with her other hand. Id. at 245. Both C.F. and Girvin had 

erections.

One week later, C.F. and Girvin were fondling Kelly’s breasts and she was 

touching their penises when Girvin suggested that C.F. “scoot up a little bit if [he] wanted 

to and [Kelly] would put her mouth on [C.F.’s] penis.” Id. at 246. C.F. proceeded to do 

that, and Kelly performed oral sex on C.F. while she had her hand on Gervin’s penis and 
4

while Girvin watched. On occasion after these events, Girvin told C.F., “Don’t tell 

anybody about it. We could get in trouble.” Id. at 248.

A few months later, C.F. told his best friend about these events. But he did not tell 

anyone else until several years later when Warrick County Sheriff’s Detective Paul 

Kruse, who had already talked to Girvin, asked C.F. to describe the molestations. On 

October 20, 2010, the State charged Girvin with child molesting, as a Class A felony. On 

November 1, the State moved to amend the information to add a second charge of 

vicarious sexual gratification, as a Class B felony. And on November 10, Girvin moved 

to dismiss the child molesting charge for lack of probable cause. The trial court granted 

the State’s motion to amend information and denied Girvin’s motion to dismiss. A jury 

found Girvin guilty as charged, and the trial court entered judgment and sentence 

accordingly. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Motion to Dismiss

Girvin first contends that the trial court abused its discretion when it denied his 

motion to dismiss the charging information “for lack of probable cause.” Appellant’s 

App. at 26. We review the trial court’s denial of Girvin’s motion to dismiss for an abuse 

of discretion. See Thompson v. State, 966 N.E.2d 112, 117 (Ind. Ct. App. 2012). An 

abuse of discretion occurs when the trial court’s decision is clearly against the logic and 

effect of the facts and circumstances before it, or when the court misinterprets the law. 

Id.
5

Our supreme court has held that lack of probable cause is not grounds for 

dismissing a charging information. Flowers v. State, 738 N.E.2d 1051, 1055 (Ind. 2000). 

Regardless, here, our review of the charging information shows that it is supported by 

sufficient probable cause. The “Reporting Officer Narrative” indicates that Girvin 

admitted to having participated in various sexual acts with Kelly and C.F. It is well 

settled that one may be charged as a principal yet convicted on proof that he aided 

another in the commission of a crime. Laney v. State, 868 N.E.2d 561, 565-66 (Ind. Ct. 

App. 2007), trans. denied. Thus, here, the trial court did not abuse its discretion when it 

denied Girvin’s motion to dismiss. Further, to the extent Girvin asserts other arguments 

in support of his motion to dismiss on appeal, he did not raise those issues to the trial 

court.1 It is well settled that a party may not present an argument or issue to an appellate 

court unless the party raised that argument or issue to the trial court. GKC Indiana 

Theatres, Inc. v. Elk Retail Investors, LLC, 764 N.E.2d 647, 651 (Ind. Ct. App. 2002). 

Girvin cannot prevail on this issue.

Issue Two: Double Jeopardy

Girvin next contends that his convictions violate Article I, Section 14 of the 

Indiana Constitution, and the State agrees. In Richardson v. State, 717 N.E.2d 32, 49 

(Ind. 1999), our supreme court set out a two-pronged “same offense” test for determining 

double jeopardy violations under the Indiana Constitution. The court held that

two or more offenses are the “same offense” in violation of Article I, 

Section 14 of the Indiana Constitution, 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 

 

1

 We also note that Girvin asserted additional arguments in support of his motion to dismiss to 

the trial court which he does not reassert on appeal.
6

essential elements of another challenged offense. Both of these 

considerations, the statutory elements test and the actual evidence test, are 

components of the double jeopardy “same offense” analysis under the 

Indiana Constitution.

Id. at 49-50 (emphases in original).

Under the actual evidence test, we examine the actual evidence presented at trial to 

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

Moore v. State, 882 N.E.2d 788, 794 (Ind. Ct. App. 2008). To prove a violation, a 

defendant must show “a reasonable possibility that the evidentiary facts used by the factfinder to establish the essential elements of one offense may also have been used to 

establish the essential elements of a second challenged offense.” Id. (quoting Smith v. 

State, 872 N.E.2d 169, 176 (Ind. Ct. App. 2007), trans. denied). Double jeopardy is not 

violated when the evidentiary facts establishing the essential elements of one offense also 

establish only one or even several, but not all, of the essential elements of a second 

offense. Id.

Here, to prove that Girvin was Kelly’s accomplice in molesting C.F., the State had 

to show that Girvin aided Kelly in performing deviate sexual conduct with C.F., who was 

under the age of fourteen, with the intent to arouse or satisfy the sexual desires of either 

himself or C.F. See Ind. Code § 35-42-4-3. And to prove vicarious sexual gratification, 

the State had to show that Girvin knowingly directed, aided, induced, or caused C.F., a 

child under the age of fourteen, to engage in deviate sexual conduct with another person. 

See Ind. Code § 35-42-4-5. Girvin maintains that the State used the same evidence, 

namely, his aiding Kelly in a single instance of criminal deviate conduct, to support the 

essential elements of both convictions. The State concedes that “both charges were based 
7

on Girvin aiding or inducing Kelly to commit criminal deviate sexual conduct with C.F.” 

Brief of Appellee at 20. And the State points out that “[t]here was no allegation in the 

charging information or closing argument that there was more than one act of deviate 

sexual conduct.” Id. Indeed, our review of the evidence shows that the same evidentiary 

facts had to have been used by the jury to establish the essential elements of both crimes. 

Accordingly, we vacate Girvin’s conviction for vicarious sexual gratification. See

Richardson, 717 N.E.2d at 55 (vacating conviction with less severe penal consequences 

where double jeopardy violation found).

Issue Three: Sufficiency of the Evidence

Girvin contends that the State presented insufficient evidence to support his 

convictions. Because we vacate his vicarious sexual gratification conviction, we need 

only address his contention with respect to his child molesting conviction. When the 

sufficiency of the evidence to support a conviction is challenged, we neither reweigh the 

evidence nor judge the credibility of the witnesses, and we affirm if there is substantial 

evidence of probative value supporting each element of the crime from which a 

reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. 

Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005). It is the job of the fact-finder to 

determine whether the evidence in a particular case sufficiently proves each element of 

an offense, and we consider conflicting evidence most favorably to the trial court’s 

ruling. Id. at 906.

Again, to prove Girvin’s accomplice liability for child molesting, the State was 

required to show that Girvin was at least twenty-one years old and knowingly or 
8

intentionally aided, induced, or caused Kelly to perform deviate sexual conduct with

C.F., who was less than fourteen years old, with the intent to arouse or satisfy the sexual 

desires of either himself or C.F. See Ind. Code §§ 35-42-4-3, 35-41-2-4. Girvin contends 

that the evidence is insufficient to prove that he and Kelly were at least twenty-one years 

old at the time of the alleged offense. And he also contends that the evidence is 

insufficient to prove that he knowingly or intentionally aided, induced, or caused Kelly to 

perform deviate sexual conduct with C.F. We address each contention in turn.

Girvin is correct that the State did not present any evidence showing Kelly’s age. 

But that evidence was not required to convict Girvin as her accomplice. Girvin’s 

conviction is independent of Kelly’s prosecution or conviction for child molesting. See

Ind. Code § 35-41-2-4. And the State presented circumstantial evidence sufficient to 

prove that Girvin was at least twenty-one years old at the time of the offense. First, the 

jury observed Girvin during trial and could reasonably infer that he was over the age of 

twenty-one. Second, Girvin testified that he was twenty years older than Kelly, who is 

his wife. Finally, Girvin and Kelly have a child together who was eight years old at the 

time of the offenses. We hold that the evidence is sufficient to prove that Girvin was at 

least twenty-one years old at the time of the offense. See, e.g., Rowe v. State, 867 N.E.2d 

262, 266-67 (Ind. Ct. App. 2007).

Next, Girvin maintains that the evidence is insufficient to prove that he aided, 

induced, or caused Kelly to perform deviate sexual conduct with C.F. In determining 

whether a person aided another in the commission of a crime, our supreme court has long 

considered the following four factors: (1) presence at the scene of the crime; (2) 
9

companionship with another engaged in criminal activity; (3) failure to oppose the crime; 

and (4) a defendant’s conduct before, during, and after the occurrence of the crime. 

Vandivier v. State, 822 N.E.2d 1047, 1054 (Ind. Ct. App. 2005) (citing Garland v. State, 

788 N.E.2d 425, 431 (Ind. 2003)), trans. denied. While the defendant’s presence during 

the commission of the crime or his failure to oppose the crime are, by themselves, 

insufficient to establish accomplice liability, the jury may consider them along with other 

facts and circumstances tending to show participation. Id. (citing Hodge v. State, 688 

N.E.2d 1246, 1248 (Ind. 1997)). In order to sustain a conviction as an accomplice, there 

must be evidence of the defendant’s affirmative conduct, either in the form of acts or 

words, from which an inference of common design or purpose to effect the commission 

of a crime may reasonably be drawn. Id. (citing Peterson v. State, 699 N.E.2d 701, 706 

(Ind. Ct. App. 1998)).

The State presented evidence that Girvin orchestrated almost every aspect of 

Kelly’s conduct leading up to, and including, the deviate sexual conduct with C.F. It was 

Girvin who asked C.F. whether he wanted to see Kelly’s breasts and lifted her shirt to 

expose them when C.F. responded affirmatively. And Girvin told C.F. that he could 

“scoot up a little bit” if C.F. wanted Kelly to put her mouth on C.F.’s penis. Transcript at 

246. And Girvin watched while Kelly performed oral sex on C.F., and Kelly had her 

hand on Gervin’s erect penis simultaneously. On occasion after these events, Girvin told 

C.F., “Don’t tell anybody about it. We could get in trouble.” Id. at 248. Girvin’s 

contention on this issue amounts to a request that we reweigh the evidence, which we will 
10

not do. We hold that the evidence is sufficient to support Girvin’s conviction for child 

molesting, as a Class A felony.

Issue Four: Effective Assistance of Trial Counsel

Girvin contends that he was denied the effective assistance of trial counsel. In 

particular, he maintains that his trial counsel was ineffective in the following ways: he 

opened the door to prejudicial evidence; he stipulated to the admission of the video 

statement he made to Detective Kruse; he did not proffer final jury instructions; and he 

did not object to several of the final instructions tendered to the jury. We address each 

contention in turn.

A claim of ineffective assistance of counsel must satisfy two components. 

Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show deficient 

performance: representation that fell below an objective standard of reasonableness, 

committing errors so serious that the defendant did not have the “counsel” guaranteed by 

the Sixth Amendment. Id. at 687-88. Second, the defendant must show prejudice: a 

reasonable probability (i.e., a probability sufficient to undermine confidence in the 

outcome) that, but for counsel’s errors, the result of the proceeding would have been 

different. Id. at 694.

Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do 

not necessarily render representation ineffective. Reed v. State, 866 N.E.2d 767, 769 

(Ind. 2007). Moreover, because counsel is afforded considerable discretion in choosing 

strategy and tactics, a strong presumption arises that counsel rendered adequate 
11

assistance. Id. The selection of a defense theory is a matter of trial strategy. Benefield v. 

State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011).

Prejudicial Evidence

In addition to the incident of deviate sexual conduct that occurred at the Girvins’ 

house in Warrick County, Kelly and C.F. had sexual intercourse on one occasion at a 

hotel in Vanderburgh County. But defense counsel and the State agreed that C.F. would 

only testify to events that occurred in Warrick County. Despite that agreement, on crossexamination of C.F., defense counsel asked C.F. whether he had had sexual intercourse 

with Kelly, and he responded affirmatively. Then, on redirect examination of C.F., the 

following colloquy occurred:

STATE: Where did you have sex the one time when [Girvin] wasn’t 

present?

C.F.: It was at the Studio’s Inn in Vanderburgh County.

* * *

[Girvin] dropped us [C.F. and Kelly] off there. He had 

come—they had—[Girvin] and Kelly had came and picked 

me up from my house in Warrick County, and he had dropped 

me and Kelly off there at the Studio’s Inn.

* * *

STATE: Did anyone tell you that it was, that suggested to you to have 

sex with Kelly?

C.F.: Yes.

STATE: Who?

C.F.: John Girvin.

STATE: What did he say?

C.F.: That he was going to be taking us to a hotel and that I could 

have sex with her if I wanted to.

Transcript at 256-57. At that point, defense counsel objected to the line of questioning, 

and the trial court sustained the objection.
12

On appeal, Girvin maintains that it “was not reasonable trial strategy or an 

inadvertent error for trial counsel to open the door to substantial inadmissible evidence 

against Girvin. Girvin was prejudiced by this error, and this error undermines the 

confidence of a reasonable person in the jury’s verdicts.” Brief of Appellant at 15. But 

we agree with the State that defense counsel’s question was “consistent with trial 

counsel’s presumed strategy, [namely], that Kelly was involved in the criminal activity 

with C.F. on her own, and not with Girvin’s assistance.” Brief of Appellee at 14. Indeed, 

the context of defense counsel’s question to C.F. on cross-examination supports that

determination. The full colloquy is here:

DEFENSE COUNSEL: Now, at no time during any of these events that 

you’ve described to this jury did John Girvin 

touch you, did he?

C.F.: No.

DEFENSE COUNSEL: And if the Prosecuting Attorney’s office of this 

county stated that John Girvin had sexual 

intercourse with you, that wouldn’t be true, 

would it?

C.F.: No.

DEFENSE COUNSEL: You had sexual intercourse with Kelly Girvin, 

didn’t you?

C.F.: Yes.

DEFENSE COUNSEL: Now, you’ve described these events. Was 

Kelly participating in these things with the two 

of you?

C.F.: Yes.

DEFENSE COUNSEL: Did she engage in contact and touching you?

C.F.: Yes.

DEFENSE COUNSEL: This was not all [Girvin’s] idea, was it?

C.F.: I don’t believe so.

DEFENSE COUNSEL: And I think there was a time that you did have 

sex with Kelly when [Girvin] wasn’t present, 

isn’t that correct?

C.F.: Yes.
13

DEFENSE COUNSEL: So there would be times that you’d have this 

contact with Kelly and [Girvin] wasn’t always 

there, was he?

C.F.: One time.

Transcript at 254-55. Our supreme court has held that the method of impeaching 

witnesses is a tactical decision and a matter of trial strategy that does not amount to 

ineffective assistance. Kubsch v. State, 934 N.E.2d 1138, 1151 (Ind. 2010). We hold 

that Girvin has not demonstrated that his counsel’s performance was deficient on the 

basis of questioning C.F. about the sexual intercourse with Kelly.

Stipulated Evidence

Girvin next contends that his trial counsel should not have stipulated to the 

admission of a portion of his videotaped statement to police. But Girvin does not make 

any cogent argument suggesting that that evidence was inadmissible. Accordingly, 

Girvin cannot demonstrate that he was denied the effective assistance of trial counsel on 

this basis.

Final Jury Instructions

Girvin makes several contentions regarding defense counsel’s alleged errors with 

respect to the final jury instructions. First, Girvin challenges defense counsel’s failure to 

proffer final instructions on accomplice liability and the presumption of innocence. But 

Girvin cannot demonstrate any prejudice as a result of those alleged errors. The purpose 

of a jury instruction is to inform the jury of the law applicable to the facts without 

misleading the jury and to enable it to comprehend the case clearly and arrive at a just, 

fair, and correct verdict. Lee v. Hamilton, 841 N.E.2d 223, 230 (Ind. Ct. App. 2006). 

Here, the trial court properly instructed the jury on accomplice liability and the 
14

presumption of innocence. Girvin has not made cogent argument demonstrating that the 

given instructions were deficient or that had his counsel proffered different instructions 

the outcome of the trial would have been different. We hold that Girvin’s counsel was 

not ineffective in not proffering instructions on accomplice liability and the presumption 

of innocence.

Girvin next contends that his counsel was deficient for failing to object to several 

of the final instructions tendered to the jury. In order to establish that counsel’s failure to 

object to a jury instruction was ineffective assistance of counsel, a defendant must first 

prove that a proper objection would have been sustained. Potter v. State, 684 N.E.2d 

1127, 1132 (Ind. 1997). Furthermore, defendant must prove that the failure to object was 

unreasonable and resulted in sufficient prejudice such that there exists a reasonable 

probability the outcome would have been different. Id.

When reviewing a challenge to a jury instruction, we will consider whether the 

instruction is a correct statement of law, whether there was evidence in the record to 

support giving the instruction, and whether the substance of the instruction is covered by 

other instructions given by the court. Hubbard v. State, 742 N.E.2d 919, 921 (Ind. 2001). 

“The purpose of an instruction is to inform the jury of the law applicable to the facts 

without misleading the jury and to enable it to comprehend the case clearly and arrive at a 

just, fair, and correct verdict.” Snell v. State, 866 N.E.2d 392, 396 (Ind. Ct. App. 2007). 

However, “an error in the giving or refusing of an instruction is harmless where a 

conviction is clearly sustained by the evidence and the jury could not properly have found 

otherwise.” Id. at 399.
15

Here, Girvin first challenges the propriety of the final instructions numbered 4, 5, 

6, and 11, which, he contends, each refer to “sexual intercourse.” Girvin maintains that,

because neither of the charges against him was based on an allegation of sexual 

intercourse, the giving of these instructions was “a blatant violation of basic due process 

that created evidence not in the record, incorrectly informed the jury as to the facts and 

the law, enhanced the charges against Girvin and prejudiced Girvin to the extent that his 

trial was unfair.” Brief of Appellant at 24. But Instruction No. 4 explicitly states: “You 

heard evidence from [C.F.] that an incident of sexual intercourse occurred at a motel. 

You should not find the defendant guilty based on evidence related to that incident.” 

Appellant’s App. at 123. Girvin cannot show that he was prejudiced by that instruction. 

Instruction No. 5 refers to sexual intercourse in setting out the elements of child 

molesting. In particular, the instruction states in relevant part that to convict Girvin of 

that offense, the State had to prove that he knowingly performed or submitted to sexual 

intercourse or deviate sexual conduct with C.F. Girvin cannot show prejudice as a result 

of that instruction.

Instruction No. 6 states:

The Defendant is accused in Count 1 of having committed Child Molesting 

against [C.F.] between 2000 and 2001.

The State has presented evidence that the Defendant may have committed 

more than one act of Child Molesting against [C.F.] between 2000 and 

2001. Before you may find the Defendant guilty, you must all unanimously 

find and agree that the State proved beyond a reasonable doubt the 

Defendant committed the same specific, single act of Child Molesting 

against [C.F.] between 2000 and 2001.

If you find the Defendant guilty, your verdict does not have to specify the 

particular act of Child Molesting Defendant committed.
16

Id. at 125. And Instruction No. 9 is identical to Instruction No. 6, but No. 9 addresses the 

vicarious sexual gratification charge. These instructions appear to have been designed to 

preempt any confusion regarding the import of C.F.’s testimony that Girvin told him that 

he could have sex with Kelly when he dropped C.F. off at the hotel in Vanderburgh 

County. But reading these two instructions along with Instruction No. 4, which prohibits 

a finding of guilt based upon that testimony, we cannot say that Girvin was prejudiced by 

these instructions.

Instruction No. 11 merely defines sexual intercourse, which was relevant to the 

jury’s consideration of the evidence supporting the evidence of child molesting. While 

the State concedes that evidence of sexual intercourse was not presented in support of 

either charge against Girvin at trial, the definition was useful to the jury in distinguishing 

sexual intercourse from deviate sexual conduct. Girvin cannot show any prejudice as a 

result of this instruction having been tendered.

Girvin also challenges the propriety of Instruction No. 22, which states: “No 

Defendant may be compelled to testify. A defendant has no obligation to testify. The 

Defendant did not testify. You must not consider this in any way.” Appellant’s App. at 

142. Girvin maintains that this instruction drew “unwarranted attention to [his] right not 

to testify.” Brief of Appellant at 25. But the instruction is a correct statement of the law 

and would not have been misleading in any way to the jury. Girvin cannot show 

prejudice as a result of this instruction.

Finally, Instruction No. 23 states: “Some evidence was presented through a video 

tape. It is your duty to decide the value you give to this evidence. The significance of 
17

this evidence should be determined in the same manner other evidence is evaluated.” 

Appellant’s App. at 143. Girvin contends that the instruction “places specific emphasis 

on evidence presented to the jury” in his videotaped statement to police. Brief of 

Appellant at 25. But, again, the instruction is a correct statement of the law and would 

not have misled the jury. Girvin cannot show prejudice as a result of this instruction.

In sum, Girvin has not demonstrated that his trial counsel’s performance was 

deficient or that he was prejudiced to the extent that the outcome of his trial would have 

been different had his counsel not committed the alleged errors. We hold that Girvin was 

not denied the effective assistance of trial counsel.

Issue Five: Jury Instructions

Girvin contends that the trial court abused its discretion when it tendered final 

instructions to the jury. We review a trial court’s decision on how to instruct a jury for 

abuse of discretion. Treadway v. State, 924 N.E.2d 621, 636 (Ind. 2010). And, again, 

when reviewing a challenge to a jury instruction, we will consider whether the instruction 

is a correct statement of law, whether there was evidence in the record to support giving 

the instruction, and whether the substance of the instruction is covered by other 

instructions given by the court. Hubbard, 742 N.E.2d at 921.

Girvin first asserts that the trial court abused its discretion when it gave Instruction 

No. 7 over his objection. That instruction reads as follows:

Mere presence at the scene of the crime, coupled with knowledge that a 

crime is being committed is insufficient to establish guilt. Further 

acquiescence in the criminal conduct of others, even with guilty knowledge, 

is not sufficient to establish aiding, inducing, or causing a crime.
18

To convict a Defendant because he aided, induced or caused a crime, 

you must find, beyond a reasonable doubt, that he knowingly or 

intentionally participated in some conduct of an affirmative nature.

A person who knowingly or intentionally aids, induces, or causes 

another person to commit an offense, commits that offense, even if the 

other person:

1. Has not been prosecuted for the offense;

2. Has not been convicted of the offense; or

3. Has been acquitted of the offense.

There is no distinction between the criminal responsibility of a 

principal and that of an accomplice.

To convict a defendant of any crime on an accomplice theory, that is 

aiding, inducing, or causing a crime, the State must prove beyond a 

reasonable doubt that the defendant intended by his own voluntary conduct 

to cause or facilitate commission of the particular crime committed by the 

principal offender.

A person is responsible for the actions of another person when, 

either before or during the commission of a crime, he knowingly aids, 

induces, or causes the other person to commit a crime. To aid is to 

knowingly support, help, or assist in the commission of a crime.

In order to be held responsible for the actions of another, he need 

only have knowledge that he is helping in the commission of a crime. He 

does not have to personally participate in the crime nor does he have to be 

present when the crime is committed.

Proof of a defendant’s failure to oppose the commission of a crime, 

companionship with the person committing the offense, and conduct 

before, during and after the offense may be considered in determining 

whether aiding may be inferred.

Appellant’s App. at 126-27.

At trial, Girvin objected to this instruction on the basis of an alleged lack of 

evidence to support giving the instruction. But because we hold that the evidence is 

sufficient to support Girvin’s conviction as an accomplice to child molesting, Girvin 

cannot prevail on this issue. Girvin makes no contention that the instruction is an 

incorrect statement of the law or is adequately covered by other instructions. The trial 

court did not abuse its discretion when it tendered Instruction No. 7.
19

Girvin also contends that the trial court committed fundamental error when it gave 

Instructions 4, 5, 6, 9, 11, 22, and 23. But, as we explained in Issue Four, Girvin cannot

show that he was prejudiced by any of those instructions. Girvin cannot demonstrate 

fundamental error on this issue.

Issue Six: Right to Testify

Girvin contends that the trial court erred when it did not advise him that he had a 

right to testify under both the federal and state constitutions. But the State correctly 

points out that “a trial court judge has no affirmative duty to insure that a defendant 

represented by counsel knowingly and intelligently waived his right to testify at trial.” 

Vanzandt v. State, 730 N.E.2d 721, 723 (Ind. Ct. App. 2000). A trial court is entitled to 

presume that a lawyer and his client have discussed the possibility of testifying. Id. 

Thus, Girvin’s contention on this issue is without merit.

Issue Seven: Credit Restricted Felon

Finally, Girvin contends, and the State agrees, that the trial court erred when it 

found that Girvin is a “Credit Restricted Felon and therefore not entitled to class one 

credit time.” Appellant’s App. at 152. Indiana Code Section 35-41-1-5.5 defines a 

“credit restricted felon” as a person who has been convicted of child molesting involving 

sexual intercourse or deviate sexual conduct if the offender is at least twenty-one years 

old and the victim is less than twelve years old. And Indiana Code Section 35-50-6-4(b) 

provides that a credit restricted felon “may not be assigned to Class I or Class II” credit 

time. The credit restricted felon statute took effect on July 1, 2008 and applies “‘only to 

persons convicted after June 30, 2008.’” See Gaby v. State, 949 N.E.2d 870, 882 (Ind. 
20

Ct. App. 2011) (quoting Upton v. State, 904 N.E.2d 700, 704 (Ind. Ct. App. 2009), trans. 

denied). But in Upton, we concluded that retroactive application of the credit restricted 

felon statute to a defendant who committed an offense before the effective date of the 

statute was an ex post facto violation even though he was convicted after the effective 

date of the statute. Gaby, 949 N.E.2d at 883. Accordingly, the credit restricted felon 

statute does not apply to Girvin, who committed the instant offense in 2000 or 2001. We 

remand with instructions to the trial court to revise Girvin’s sentence accordingly.

Conclusion

In sum, the trial court did not abuse its discretion when it denied Girvin’s motion 

to dismiss. We hold that Girvin’s convictions violate the prohibition against double 

jeopardy. On remand, the trial court shall vacate his conviction for vicarious sexual 

gratification. The State presented sufficient evidence to support Girvin’s child molesting 

conviction. Girvin was not denied the effective assistance of trial counsel. The trial 

court did not abuse its discretion when it tendered Instruction No. 7 over Girvin’s 

objection, and the court did not commit fundamental error in instructing the jury, overall. 

The trial court did not have an obligation to advise Girvin of his right to testify at trial. 

And the trial court erred when it found that Girvin was a credit restricted felon. The trial 

court shall revise Girvin’s sentence with respect to credit time accordingly.

Affirmed in part, reversed in part, and remanded with instructions.

BAILEY, J., and BARNES, J., concur.