COA affirms sentence for man’s rape, battery convictions

The Indiana Court of Appeals has affirmed a man’s decades-long sentence for his rape and battery convictions, finding nothing wrong with his sentence or the decision to admit certain statements from the victim.

Following his conviction of Level 3 felony rape and two counts of Level 6 felony battery, Terry Garber Jr. appealed, arguing that the Elkhart Superior Court abused its discretion and that his aggregate 20-year sentence with two years suspended to probation was inappropriately harsh.

However, the Indiana Court of Appeals affirmed in Terry E. Garber, Jr. v. State of Indiana, 20A-CR-309, first finding that the admission of testimony regarding out-of-court statements made by the victim and alleged vouching testimony, taken as a whole, did not constitute fundamental error.

In its decision, the appellate court found that because the victim’s statements were admitted as excited utterances – rulings that Garber did not challenge – the case of Modesitt v. State, 578 N.E.2d 649 (Ind. 1991) does not apply in the case at hand.

But while testimony from an emergency room physician came “close to crossing the line,” the appellate court ultimately concluded that her cited testimony about patients providing accurate information does not quite rise to the level of impermissible vouching.

“In the cited passage, Dr. (Katherine) Hughes did not opine that K.M. was telling the truth, offering only a general observation on how emergency room patients behave based on her experience. This does not quite qualify as impermissible vouching. While we do not wish to encourage the elicitation of testimony similar to Dr. Hughes’s in the future, we nonetheless conclude that Garber has failed to establish error in this regard, much less fundamental error,” Chief Judge Cale Bradford wrote for the appellate court.

Finally, the appellate court found Garber’s offenses to be egregious and in light of the nature of his offenses and his character, concluded that Garber failed to establish that a reduction in his sentence is warranted.

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