Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019 Page 1 of 15

MEMORANDUM DECISION

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

Cara Schaefer Wieneke

Wieneke Law Office, LLC

Brooklyn, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brenton E. Barnhill,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 29, 2019

Court of Appeals Case No.

18A-CR-2852

Appeal from the Vigo Superior 

Court

The Honorable Sarah K. Mullican, 

Judge

Trial Court Cause No.

84D03-1804-F3-1061

Friedlander, Senior Judge. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2852 | October 29, 2019 Page 2 of 15

[1] Brenton E. Barnhill appeals his convictions of rape, a Level 3 felony;1criminal 

confinement resulting in bodily injury, a Level 5 felony;2domestic battery in the 

presence of a child under the age of sixteen, a Level 6 felony;3and 

strangulation, a Level 6 felony.

4 We affirm.

[2] Barnhill and the victim, H.P., knew each other from childhood. H.P. had 

married another man and had two children, but after her relationship with her 

children’s father ended, H.P. began a romantic relationship with Barnhill. H.P. 

and Barnhill had a child together. At the times relevant to this case, all three 

children were well under the age of sixteen.

[3] H.P. and her children lived in an apartment. Beginning in December 2017, 

Barnhill stayed at the apartment four to five nights a week, sleeping in H.P.’s 

bed. He watched the children while she was at work. During this period, 

Barnhill choked and struck H.P. on several occasions. After he struck her, 

Barnhill would sometimes force H.P. to engage in sexual behavior.

[4] On March 14, 2018, H.P. returned home from work between 11:10 and 11:20

p.m. The children were in their bedrooms, asleep. She ate dinner and went to 

sleep. Barnhill was in bed with H.P., but he stayed awake and watched

 

1

Ind. Code § 35-42-4-1 (2014).

2

Ind. Code § 35-42-3-3 (2014).

3

Ind. Code § 35-42-2-1.3 (2016).

4

Ind. Code § 35-42-2-9 (2014).
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television. H.P. woke up around 1 a.m., thinking about whether Barnhill was 

seeing other women. She went to the bathroom, and when she returned, she 

told him “that he had lied to me.” Tr. Vol. III, p. 76.

[5] In response, Barnhill jumped out of bed, asked H.P. “what the f**k am I lying 

about,” and grabbed her by the hair. Id. at 77. Next, he “slammed” her onto 

the bed and climbed on top of her. Id. Barnhill used his legs to pin down 

H.P.’s arms. He grabbed her throat with his left hand and began “punching 

[her] in the face like [she] was a man.” Id.

[6] H.P. begged him to stop and repeatedly said she could not breathe. Barnhill 

responded that she “should just go ahead and stop breathing then.” Id. She 

freed her arms and slapped and shoved him, to no effect. Next, H.P. called for 

help, but Barnhill “got even more mad” and put his hand over her mouth. Id.

at 78. She bit Barnhill’s thumb, but he did not stop hitting her.

[7] Barnhill became tired after five to ten minutes. He climbed off of her and laid 

down on the bed. H.P. continued to lay on the bed, crying. After another five 

to ten minutes elapsed, Barnhill took off his clothes and forced H.P. to have sex

as she continued to cry.

[8] Next, H.P. went to the bathroom. When she looked in the mirror, she saw that 

her eyes were black and blue, her mouth and jaw were swollen, and she had 

bruises on her face, neck, and chest. H.P. showed her injuries to Barnhill, and 

he told her she should call in sick to work “because he didn’t want no one [sic] 
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to see my face like that.” Id. at 84. She returned to bed. Barnhill put his arms 

around her, and H.P. cried until she fell asleep.

[9] Barnhill was gone when H.P. woke up the next morning. H.P.’s aunt and her 

mother arrived at the apartment several hours later. Upon seeing H.P.’s 

injuries, H.P.’s mother called 911, over H.P.’s objection. Two officers were 

dispatched to investigate.

[10] As the officers talked with H.P., they noted that H.P. had two black eyes, and 

one of her eyes was bloodshot. In addition, her lips and jaw were swollen, and 

she had bruises on her face, neck, chest, and right arm. H.P. stated she had a 

headache and had trouble swallowing. She initially wanted to protect Barnhill 

and told the officers that she had “gotten jumped after work” by two women. 

Id. at 94. H.P. soon admitted to the officers that her boyfriend had beaten her. 

H.P.’s aunt gave the officers Barnhill’s name.

[11] Next, H.P.’s mother took her to the hospital, where a nurse practitioner (NP) 

interviewed and treated H.P. H.P. initially repeated her story that a woman 

had injured her, but she later admitted to the NP that her boyfriend had 

attacked her. The NP noted H.P. had bruises on her face, neck, and upper 

chest, and H.P. reported having a headache. The NP further concluded H.P.’s 

injuries were consistent with being beaten. Specifically, the bruising around her 

eyes was consistent with being strangled. After hospital staff released H.P., she 

spent the night in a hotel with her children and her mother.
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[12] When H.P. and her children returned to her apartment, Barnhill was there. 

H.P. contacted her aunt, who called the police. When the police arrived, 

Barnhill fled out the apartment’s back door. He was later arrested.

[13] On March 21, 2018, H.P. met with Bryanna Wynn, an investigator for the 

prosecutor’s office. Wynn specializes in cases involving domestic violence. 

During their conversation, H.P. disclosed facts that led Wynn to believe 

Barnhill had sexually assaulted H.P.

[14] The State charged Barnhill with rape, a Level 3 felony; criminal confinement

resulting in bodily injury, a Level 5 felony; domestic battery in the presence of a 

child under the age of sixteen, a Level 6 felony; strangulation, a Level 6 felony; 

domestic battery resulting in moderate bodily injury, a Level 6 felony; and 

domestic battery, a Class A misdemeanor. The State further alleged that 

Barnhill was an habitual offender.

[15] A jury trial was held on June 19 through 21, 2018. The jury determined 

Barnhill was guilty as charged of the felonies and the misdemeanor. Next, 

Barnhill admitted he was an habitual offender, eliminating the need for a 

separate trial on that issue. The court entered a judgment of conviction on the 

jury’s verdict and the habitual offender enhancement.

[16] On September 4, 2018, the day of the sentencing hearing, Barnhill filed a 

motion to correct error and/or set aside the verdict. He alleged the State had 

withheld exculpatory evidence related to discussions between H.P. and Wynn. 

At the sentencing hearing, the trial court heard evidence related to sentencing 
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and to Barnhill’s motion to correct error. The trial court vacated the 

convictions of domestic battery resulting in moderate bodily injury, a Level 6 

felony, and Class A misdemeanor domestic battery. The court then imposed a 

sentence. Next, the parties filed briefs addressing Barnhill’s motion to correct 

error. Ultimately, the trial court denied Barnhill’s motion, and this appeal 

followed.

[17] Barnhill raises two claims, which we restate as:

1. Whether the trial court erred in rejecting Barnhill’s claim 

that the State had withheld exculpatory evidence, in 

violation of Brady v. Maryland.

2. Whether Barnhill’s convictions violate Indiana’s 

constitutional protection against double jeopardy.

1. Brady v. Maryland

[18] Barnhill argues the trial court should have granted his motion to correct error 

and set aside the judgment of conviction because the State withheld exculpatory 

evidence, in violation of his federal and state constitutional right to due process

of law. Generally, rulings on motions to correct error are reviewed for an abuse 

of discretion. Davis-Martin v. State, 116 N.E.3d 1178 (Ind. Ct. App. 2019), trans. 

denied. Where, as here, an appellant raises a constitutional question, our 

standard of review is de novo. Tiplick v. State, 43 N.E.3d 1259 (Ind. 2015).

[19] In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 

(1963), the United States Supreme Court determined: “the suppression by the 
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prosecution of evidence favorable to an accused upon request violates due 

process where the evidence is material either to guilt or to punishment, 

irrespective of the good faith or bad faith of the prosecution.” The principle 

behind the Court’s ruling is “avoidance of an unfair trial to the accused.” Id. at 

87, 83 S. Ct. at 1197.

[20] There are three components to a Brady violation: (1) the evidence at issue must 

be favorable to the accused, either because it is exculpatory or impeaching of 

the State’s witnesses; (2) the evidence must have been suppressed by the State, 

either willfully or inadvertently; and (3) the absence of the evidence prejudiced 

the accused (materiality inquiry). Davis-Martin, 116 N.E.3d 1178. Evidence is 

material when there is a reasonable probability that, had the evidence been 

disclosed, the result of the proceeding would have been different. Bates v. State, 

77 N.E.3d 1223 (Ind. Ct. App. 2017). The State will not be found to have 

suppressed material information if that information was available to a 

defendant through the exercise of reasonable diligence. Conner v. State, 711 

N.E.2d 1238 (Ind. 1999).

[21] In Barnhill’s case, prior to trial H.P. met several times with Wynn. In cases

involving domestic violence, Wynn routinely refers victims to agencies that 

provide housing, food, utility assistance, and resources for children. Wynn and 

H.P. testified during the sentencing hearing that they had discussed whether she 

could go to a domestic violence shelter. They may have discussed other 

assistance programs as well but did not remember any details.
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[22] Barnhill argues that the State should have disclosed to him that Wynn and H.P. 

had discussed a domestic violence shelter and possibly other assistance 

programs prior to trial because: (1) H.P. apparently believed such assistance 

was coming from and/or through the prosecutor’s office; and (2) evidence of 

those discussions were relevant to impeach H.P. because the evidence could 

have established that H.P. had a bias in favor of the State or a motive to lie on 

the witness stand.

[23] We disagree with Barnhill for two reasons. First, the evidence of Wynn and 

H.P.’s discussions was not material for purposes of the Brady standard. Wynn 

testified without contradiction that neither she nor the prosecutor’s office had 

any control over the shelter or any other agencies, and Wynn and the 

prosecutor did not ask anything from H.P. in exchange for the information 

about the assistance programs. In addition, H.P. testified that she and Wynn 

had discussed only one program that would have required specific conduct on 

her part (a college assistance program, administered by an agency other than 

the prosecutor’s office, that would have required H.P. to stay away from 

Barnhill for one year), but they did not discuss that program until after 

Barnhill’s trial was over. Under these circumstances, the impeachment value of 

these discussions is minimal at best, and we cannot conclude that there is a 

reasonable probability that being presented with evidence about the discussions

would have changed the jury’s verdict.

[24] Second, even if Wynn and H.P.’s discussions about assistance programs were

material evidence, Barnhill could have discovered the evidence himself prior to 
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trial through the exercise of reasonable diligence. Barnhill took H.P.’s 

deposition on June 7, 2018, a few weeks prior to trial. During the deposition, 

Barnhill had ample opportunity to ask H.P. whether the prosecutor had 

promised anything in exchange for her testimony or whether H.P. believed she 

was required to testify favorably to the State. See, e.g., Hayden v. State, 830 

N.E.2d 923 (Ind. Ct. App. 2005) (Hayden failed to prove a Brady violation 

involving a witness’s filing of a civil complaint; Hayden could have learned 

about the civil complaint during pretrial depositions), trans. denied.

[25] Next, Barnhill notes that after the trial was over, Wynn and H.P. discussed the

college assistance program, which was administered by another agency. H.P. 

mistakenly believed the funds were coming from the prosecutor’s office, posting

on a social media account that “the Prosecutor’s Office” was going to pay for 

her college. Tr. Vol. IV, p. 132. H.P.’s mistaken belief that the prosecutor had 

offered her money for college had no impact on her testimony or the jury’s 

verdict because the discussion happened post-trial. As a result, the discussion 

was not material evidence, and the State did not violate Brady by failing to

disclose it. The trial court did not err in denying Barnhill’s motion to correct 

error.

2. Indiana Double Jeopardy Clause

[26] Barnhill argues his convictions of criminal confinement resulting in bodily 

injury, domestic battery in the presence of a child under the age of sixteen, and 
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strangulation violate the Indiana Constitution’s prohibition of double jeopardy.5 

Specifically, he claims: (1) the confinement and domestic battery convictions 

violate double jeopardy; and/or (2) the confinement and strangulation 

convictions violate double jeopardy. He concedes the battery and strangulation 

convictions do not raise a double jeopardy issue. As noted above, we review 

constitutional claims de novo.

[27] Article 1, section 14 of the Indiana Constitution provides, in relevant part: “No 

person shall be put in jeopardy twice for the same offense.” Prohibitions 

against double jeopardy protect the integrity of jury acquittals and the finality 

interest of defendants, shield against excessive and oppressive prosecutions, and 

ensure that defendants will not undergo the anxiety and expense of repeated 

prosecution and the increased probability of conviction upon reprosecution. 

Richardson v. State, 717 N.E.2d 32 (Ind. 1999).

[28] Two or more offenses are the “same offense” in violation of the Indiana 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. Id. Barnhill does not present a claim under the statutory 

elements component of the analysis, directing his arguments exclusively to the 

“actual evidence” component.

 

5 Barnhill does not present a claim under the federal Double Jeopardy Clause.
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[29] To show that two challenged offenses constitute the same offense under the 

actual evidence test, “a defendant must demonstrate a reasonable possibility 

that the evidentiary facts used by the fact-finder to establish the essential 

elements of one offense may also have been used to establish the essential 

elements of a second challenged offense.” Id. at 53. “The test is not merely 

whether the evidentiary facts used to establish one of the essential elements of 

one offense may also have been used to establish one of the essential elements 

of a second challenged offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind. 

2002).

[30] The “reasonable possibility” standard permits convictions for multiple offenses 

committed in a protracted criminal episode when the case is prosecuted in a 

manner that ensures that multiple guilty verdicts are not based on the same 

evidentiary facts. Richardson, 717 N.E.2d at 53 n.46. As a result, application of 

the actual evidence test requires the reviewing court to identify the essential 

elements of each of the challenged crimes and to evaluate the evidence from the 

jury’s perspective, considering where relevant the jury instructions, argument of 

counsel, and other factors that may have guided the jury’s determination. 

Spivey, 761 N.E.2d 831.

[31] In Barnhill’s case, the trial court instructed the jury about the elements of the 

three offenses at issue as follows:

Count Two (2). On or about March Fourteenth (14th), Two 

Thousand Eighteen (2018), through and including March 

Fifteenth (15th), Two Thousand Eighteen (2018), in Vigo 
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County, State of Indiana, Brenton Barnhill did, then and there, 

knowingly or intentionally confine H.P. without the consent of 

H.P., said act resulting in bodily injury to H.P., to-wit: abrasion, 

confusion (sic.), head injury, sprain and/or strain, in violation of 

Indiana law.

Count Three (3). On or about March Fourteenth (14th), Two 

Thousand Eighteen (2018), in Vigo County, State of Indiana, 

Brenton Barnhill, being at least eighteen (18) years of age, did, 

then and there, knowingly or intentionally touch H.P., a family 

or household member in a rude, insolent, or angry manner, and 

Brenton Barnhill committed said offense in the presence of a 

child less than sixteen (16) years of age, knowing the child was 

present and might be able to see or hear the offense.

Count Four (4). On or about March Fourteenth (14th), Two 

Thousand Eighteen (2018), in Vigo County, State of Indiana, 

Brenton Barnhill in a rude, insolent or angry manner, did, then 

and there, knowingly or intentionally apply pressure to the throat 

or neck of H.P. in a manner that impeded normal breathing or 

blood circulation of H.P. in violation of Indiana law.

Tr. Vol. III, pp. 20-21.

[32] During opening statements, the prosecutor discussed each charge with the jury. 

He said, “So the Criminal Confinement comes from the fact that he held her 

down. And as part of that, I’ve already told you that he battered her, so there’s 

the Level Six (6) Domestic Battery as a felony.” Id. at 37. As for strangulation, 

the prosecutor stated:

Um, so how do we prove that? Well we’re gonna prove that by

H.P., and I think we’re gonna be able - you’re, you’re gonna see 

some photographs to see what she looked like; you’re gonna 
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hear, possibly hear some medical testimony about a certain 

condition that she was diagnosed with that might be consistent 

with that, and he tells her, at one point, when she says I can’t 

breathe, she’s gonna tell you that he said, then stop breathing, or 

something along the lines of bitch, do you think if I care if you 

breathe?

Id. at 38-39. The prosecutor further indicated that photographs that were taken 

of H.P. the day after the attack would convince the jury “that a battery 

occurred.” Id. at 42.

[33] Next, the prosecutor presented its evidence to the jury. H.P. specifically 

testified that Barnhill held her down with his legs, then choked her with one 

hand while striking her with the other. During final argument, the prosecutor 

argued Barnhill committed criminal confinement resulting in bodily injury

when he “held her down against her will, wouldn’t let her leave.” Tr. Vol. IV, 

p. 56. In discussing whether Barnhill committed domestic battery in the 

presence of a child under sixteen years of age, the prosecutor explained that he 

had to prove Barnhill touched H.P. in a rude, insolent, or angry manner. The 

prosecutor further stated, “that’s probably the least of which we could describe 

what – how he did it; touched H.P.” Id. at 58. Regarding the charge of 

strangulation, the prosecutor directed the jury’s attention to the marks around 

H.P.’s eyes, as noted at the hospital by the NP, as proof of that offense.

[34] Finally, the trial court included in its final jury instructions an explanation that 

“bodily injury” is defined as meaning any impairment of physical condition, 

including physical pain.” Appellant’s App. Vol. 2, p. 135.
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[35] For the charges of criminal confinement resulting in bodily injury and domestic 

battery in the presence of a child under the age of sixteen, the trial court 

identified for the jury the distinct elements of those offenses. Next, H.P. 

testified that Barnhill pinned her down with his legs, trapping her arms, before 

striking her repeatedly “like [she] was a man.” Tr. Vol. III, p. 77. In addition, 

the jury heard evidence that H.P. had bruises on her chest, which could have 

resulted from Barnhill restraining her. Finally, the prosecutor described for the 

jury which specific acts by Barnhill supported each conviction. We cannot 

conclude there is a reasonable possibility that the jury used the same evidence 

to support these two convictions. See Jones v. State, 976 N.E.2d 1271 (Ind. Ct. 

App. 2012) (convictions of criminal confinement and domestic battery did not 

violate same evidence test; witness’s testimony provided separate evidence as to

each charge), trans. denied.

[36] As for the charges of criminal confinement resulting in bodily injury and 

strangulation, H.P.’s testimony and the prosecutor’s arguments also 

distinguished between the offenses, identifying different facts to support each 

charge. The prosecutor urged the jury to consider the NP’s description of the

bruises around H.P.’s eyes as being consistent with strangulation, which was 

different from her other injuries. We conclude these convictions also pass the 

“same evidence” test set forth in Richardson. See Jones, 976 N.E.2d 1271

(convictions of criminal confinement and strangulation did not violate same 

evidence test; witness’ testimony provided separate evidence as to each charge).

[37] For the reasons stated above, we affirm the judgment of the trial court.
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[38] Judgment affirmed.

Vaidik, C.J., and Bailey, J., concur.