Eric Manual Montgomery v. State of Indiana

FILED

Dec 31 2024, 8:49 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Court of Appeals of Indiana

Eric Manual Montgomery,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 31, 2024

Court of Appeals Case No.

23A-CR-2052

Appeal from the

Monroe Circuit Court

The Honorable

Valeri Haughton, Judge

Trial Court Cause No.

53C02-2208-F3-746

Court of Appeals of Indiana | Opinion 23A-CR-2052 | December 31, 2024 Page 1 of 22

Opinion by Senior Judge Baker

Judges Tavitas and DeBoer concur.

Baker, Senior Judge.

Statement of the Case

[1] Eric Montgomery was convicted of raping a college student when she was so

mentally deficient due to intoxication that she was incapable of giving consent

to the sexual conduct. The jury also convicted Montgomery of furnishing

alcohol to a minor and attempting to obstruct justice, and he admitted that he is

an habitual offender. Montgomery appeals, alleging insufficient evidence,

evidentiary error, instructional error, and charging error. Finding the evidence

sufficient and no error, we affirm.

Issues

[2] Montgomery presents four issues for our review, which we restate as:

I. Whether the evidence was sufficient to sustain

Montgomery’s conviction of rape.

II. Whether the trial court erred in certain evidentiary rulings.

III. Whether the trial court erred in instructing the jury.

IV. Whether the State’s failure to file a copy of the amended

charging information violated Montgomery’s

constitutional rights.

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Facts and Procedural History

[3] In August 2022, A.M., a twenty-year-old college student, returned to campus

for the start of a new school year. After spending the day setting up her

apartment with her roommate, A.M. went to a party that night. Riding home

later with friends, A.M. insisted on being dropped off at a gas station near the

home of another friend, whom she wanted to visit. A.M. never made it to her

friend’s home. Instead, at some point in the wee hours of the morning, A.M.

encountered thirty-three-year-old Montgomery.

[4] According to Montgomery, he and A.M. drank, smoked a joint, and had sex in

his vehicle. Montgomery then took A.M. to his bedroom in the basement of his

mother’s home. There, the two had sex again, and Montgomery fell asleep.

When Montgomery awoke later, A.M.’s lips were blue and her eyes were rolled

back in her head. Montgomery’s mother called 911. Although emergency

personnel administered life-saving techniques, ultimately A.M. was pronounced

dead. Her death was ruled an accident after an autopsy revealed that she died

from a toxic mix of alcohol and two different opioids—fluorofentanyl and

fentanyl—causing the depression of her central nervous system and eventual

loss of respiratory function.

[5] The State charged Montgomery with rape, a Level 3 felony, and furnishing

alcohol to a minor, a Level 6 felony, and alleged him to be an habitual offender.

The State later added the charge of attempted obstruction of justice, a Level 6

felony. A jury found Montgomery guilty of rape, the lesser-included B

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Misdemeanor furnishing alcohol to a minor, and attempted obstruction of

justice, and he admitted to being an habitual offender. The court imposed an

aggregate sentence of thirty-six years. Montgomery now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

A. Intoxication constituting “mentally disabled or deficient”

[6] Montgomery contends the evidence was insufficient to sustain his conviction of

rape. The relevant portion of the rape statute provides: “[A] person who

knowingly or intentionally has sexual intercourse with another person or

knowingly or intentionally causes another person to perform or submit to other

sexual conduct . . . when . . . the other person is so mentally disabled or

deficient that consent to sexual intercourse or other sexual conduct . . . cannot

be given . . . commits rape, a Level 3 felony.” Ind. Code § 35-42-4-1(a)(3)

(2022). Montgomery argues the State failed to prove that A.M., by virtue of

being voluntarily intoxicated, was so mentally disabled or deficient that she was

unable to give her consent to the sexual conduct. Specifically, he asserts that

voluntary intoxication is not equivalent to being “mentally disabled or

deficient.”

[7] While our legislature has not defined this phrase as it is used in the rape statute

or anywhere in Title 35, this Court previously recognized in a reported case that

the voluntary intoxication of the victim constitutes mental disability or

deficiency for purposes of the rape statute. In Gale v. State, 882 N.E.2d 808

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(Ind. Ct. App. 2008), we held the evidence was sufficient to support a

conviction for rape when the victim was so mentally disabled or deficient by

virtue of her intoxication that she was not able to consent to sexual intercourse.

The evidence in Gale showed that the victim was highly intoxicated when she

left a bar, had to be assisted to a vehicle, was drifting in and out of

consciousness, and had a 0.309 blood alcohol level.

[8] Prior to our decision in Gale, we decided Hancock v. State, which was later

affirmed in relevant part by our Supreme Court. 758 N.E.2d 995 (Ind. Ct. App.

2001), aff’d in relevant part, 768 N.E.2d 880 (Ind. 2002). There, we held the

evidence was sufficient to sustain convictions for rape and criminal deviate

conduct where the State had charged that the victim was so mentally disabled

or deficient by reason of ingesting Xanax that consent could not be given.

Acknowledging our decisions in both Gale and Hancock, Montgomery asserts

that our interpretation of the phrase “mentally disabled or deficient” to include

a state caused by intoxication is erroneous and asks that we reconsider and

overrule these decisions.

[9] Here, we take counsel from two well-established principles: stare decisis and

legislative acquiescence. The doctrine of stare decisis provides that we must

follow the previous decisions of this Court construing a statute unless provided

with a strong reason justifying departure. Halteman Swim Club v. Duguid, 757

N.E.2d 1017, 1021 (Ind. Ct. App. 2001). As we have previously explained,

“‘[t]he decisions of the appellate districts are law governing all of Indiana and

cannot be disregarded.’” Id. at 1020 (quoting Lincoln Utils., Inc. v. Office of Util.

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Consumer Couns., 661 N.E.2d 562, 565 (Ind. Ct. App. 1996), trans. denied).

Additionally, judicial interpretation of a statute, accompanied by substantial

legislative inaction for a considerable time, may be understood to signify the

Legislature’s acquiescence in and agreement with the judicial interpretation.

Beer v. State, 885 N.E.2d 33, 42 (Ind. Ct. App. 2008); see also Fraley v. Minger,

829 N.E.2d 476, 492 (Ind. 2005) (noting that usual reasons supporting

adherence to precedent are reinforced by strong probability that courts have

correctly interpreted will of legislature where judicial interpretation of statute is

accompanied by legislative inaction for substantial time).

[10] Following Gale, a panel of this Court interpreted “mentally disabled or

deficient” under the sexual battery statute in Ball v. State, 945 N.E.2d 252 (Ind.

Ct. App. 2011), trans. denied. There we noted:

In a criminal deviate conduct case alleging mental disability or

deficiency, this court held that “[t]he plain and ordinary meaning

of the words ‘mentally disabled or deficient’ is subnormal

intelligence or mental disease or defect.” Douglas v. State, 484

N.E.2d 610, 613 (Ind. Ct. App. 1985). Noting the phrase

“mental disability or deficiency” is qualified by the resultant

inability to give consent, the meaning has been expanded for

purposes of [the rape and criminal deviate conduct] statutes to

include not only a victim with lower-than-normal intelligence,

see, e.g., Bozarth v. State, 520 N.E.2d 460, 463 (Ind. Ct. App. 1988)

(twenty-one year old victim was deaf, legally blind, and had a

mental age of approximately ten years old and an I.Q. between

fifty and seventy), trans. denied, but also a victim who was highly

intoxicated, Gale v. State, 882 N.E.2d 808, 818 (Ind. Ct. App.

2008), and a victim who had unknowingly ingested eight

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Xanax, Hancock v. State, 758 N.E.2d 995, 1004 (Ind. Ct. App.

2001), aff’d in relevant part, 768 N.E.2d 880 (Ind. 2002).

Id. at 257 (emphasis added). Further, a recent memorandum decision by this

Court, while not binding precedent, is nonetheless noteworthy here. In M.W. v.

State, No. 22A-JV-2952 (Ind. Ct. App. Aug. 31, 2023) (mem.), we determined

the evidence was sufficient to support a true finding against M.W. on the

allegation of rape when the victim was so mentally disabled or deficient due to

intoxication that she was not able to consent to sexual intercourse.

[11] In sum, in the sixteen years since our decision in Gale, the General Assembly

has not acted to alter our interpretation of the phrase “mentally disabled or

deficient” to encompass more than victims with lower-than-normal intelligence.

Certainly, had the General Assembly disapproved of our approach, it could

have done so. Therefore, inasmuch as the Legislature’s inaction amounts to

acquiescence, our interpretation and construction should not be minimized or

disregarded. Bender Enters., LLC v. Duke Energy, LLC, 201 N.E.3d 206, 211 (Ind.

Ct. App. 2022) (quoting Perkinson v. Perkinson, 989 N.E.2d 758, 763 (Ind.

2013)).

[12] Montgomery additionally suggests that interpretation of the phrase “mentally

disabled or deficient” in the rape statute to include consideration of the victim’s

voluntary intoxication cannot be harmonized with our voluntary intoxication

statute. That statute provides that voluntary intoxication is not a defense and

may not be taken into consideration in determining the existence of a mental

state that is an element of the offense. See Ind. Code § 35-41-2-5 (1997). He

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reasons that such an interpretation of the rape statute results in discrimination

when both the defendant and the victim are intoxicated and engage in sex

because “the criminal code treats their intoxication differently.” Appellant’s Br.

p. 26. Montgomery also claims that such circumstances encourage arbitrary

enforcement of the rape statute.

[13] We do not find these arguments persuasive. Criminal defendants and victims

of crimes are two separate categories of people with different status under the

law. Our state’s proscription of voluntary intoxication as a defense to any

criminal offense is well-settled. In adopting Section 35-41-2-5, the General

Assembly decreed that intoxication, if voluntary, supplies the general

requirement of a voluntary act sufficient to place the voluntarily intoxicated

offender at risk for the consequences of his actions, “‘even if it is claimed that

the capacity has been obliterated to achieve the otherwise requisite mental state

for a specific crime.’” Orta v. State, 940 N.E.2d 370, 376 (Ind. Ct. App. 2011)

(quoting Sanchez v. State, 749 N.E.2d 509, 517 (Ind. 2001) (upholding

constitutionality of intoxication statute)), trans. denied.

[14] Moreover, our rape statute does not criminalize consensual sexual conduct

between two people, regardless of their intoxication. Rather, the statute

criminalizes an offender’s sexual conduct with a person when that person is

unaware of the conduct or is incapable of giving or unwilling to give consent to

the conduct. See I.C. § 35-42-4-1. And, while the decisions whether to

prosecute and what charges to bring generally rest in the discretion of the

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prosecutor, J.G. v. State, 30 N.E.3d 777, 780 (Ind. Ct. App. 2015), such

statutory guidelines regulate those decisions.

[15] Thus, Montgomery has not presented a strong reason to justify a departure

from our holdings in Hancock and Gale. See Halteman Swim Club, 757 N.E.2d at

1021 (stating that appellate court must follow its previous decisions construing

statute unless provided strong reason warranting deviation). Furthermore,

given our Legislature’s declaration twenty-seven years ago that voluntary

intoxication may not be taken into consideration in determining the existence of

a mental state that is an element of a criminal offense and its sixteen-year

acquiescence in our interpretation of the rape statute, we decline to find that

these cases were incorrectly decided.

B. Lack of capacity to consent

[16] Montgomery next asserts that, even if we uphold our interpretation of the

phrase “mentally disabled or deficient” to encompass voluntary intoxication,

the evidence was still insufficient to show A.M. was so mentally disabled or

deficient that she was not able to give consent to the sexual conduct.

[17] In reviewing a challenge to the sufficiency of the evidence, we neither reweigh

the evidence nor judge the credibility of witnesses. Sandleben v. State, 29 N.E.3d

126, 131 (Ind. Ct. App. 2015), trans. denied. Instead, we consider only the

evidence most favorable to the verdict and any reasonable inferences drawn

therefrom. Id. If there is substantial evidence of probative value from which a

reasonable factfinder could have found the defendant guilty beyond a

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reasonable doubt, the verdict will not be disturbed. Labarr v. State, 36 N.E.3d

501, 502 (Ind. Ct. App. 2015). Further, when an appellant challenges the

sufficiency of the evidence of his convictions after a jury verdict, “the appellate

posture is markedly deferential to the outcome below . . . .” Bowman v. State, 51

N.E.3d 1174, 1181 (Ind. 2016).

[18] At trial, the State’s evidence included the testimony of A.M.’s friends that she

had wine before going out that night and then drank alcohol at a party. Tr. Vol.

3, p. 58; Tr. Vol. 4, p. 60. One friend testified that A.M. was drunk that night,

and another estimated that “she was intoxicated.” Tr. Vol. 4, pp. 64, 74. One

of those friends also acknowledged that A.M. slurred her words, argued

with/yelled at her friend, behaved erratically, and opened the door of the car

while it was moving. Id. at 74. A stranger whose door A.M. mistakenly

knocked on testified he “could tell she was intoxicated.” Tr. Vol. 3, p. 117.

A.M. asked the man for her friend, Loren, and, although he told A.M. Loren

was not there, A.M. asked three or four more times during their brief exchange.

Id. In addition, the State introduced surveillance video from several businesses

that captured A.M.’s wanderings around town prior to her meeting up with

Montgomery.

[19] The mother of Montgomery’s child testified that Montgomery called her that

night asking for advice because A.M. “was too drunk to leave downtown.” Id.

at 140. And she acknowledged telling the police that neither she nor

Montgomery could understand A.M., that A.M. “didn’t really make sense,”

and that A.M. had “sounded like she was drunk.” Id. at 151.

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[20] The State also introduced Montgomery’s videotaped statement to police. In it,

Montgomery explained that when he picked up A.M. they were going to “sober

up a little bit.” Ex. 19 at 8:42. Instead, he drove to a parking lot where he

allowed A.M. to drink some tequila from a bottle he had in his car. Id. at 9:57.

He also provided A.M. with marijuana, which they smoked before they had

sex. Id. at 8:50-9:03. Montgomery stated that A.M.’s “breathing was like real

bad.” Id. at 9:47. He further explained that A.M. was “breathing hard” and

“breathing weird” and that he was “thinking like, man, she’s got alcohol

poisoning.” Id. at 10:19-21, 10:56. Montgomery called his “baby mama” for

advice because he did not know what to do. Id. at 10:23. Despite A.M.’s

condition, Montgomery was not eager “to just rush to the hospital.” Id. at

10:33. He stated that although he was using the air conditioning in his car,

A.M. was sweating a lot. He then took A.M. to his “mom’s crib,” where they

went to the basement, and he rolled another joint. Id. at 12:15-17, 12:32-33.

Montgomery explained that he and A.M. were “kicking it.” Id. at 12:35.

Montgomery then had sex with A.M. a second time. Id. at 12:59.

[21] Montgomery concedes that A.M. showed signs of intoxication in the

surveillance videos where she “staggered here and there and swayed back and

forth” and that she “repeatedly tried the same thing to get the elevator [in her

apartment building] to work.” Appellant’s Br. p. 31. Yet, he points to a

portion of video showing that A.M. “jogged down the street” as well as

evidence that she sent two Snapchat messages on his phone to support his

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argument that A.M. was not so intoxicated at the time she was with him that

she was unable to give consent to sexual intercourse.

[22] “Our supreme court has recognized that proof beyond a reasonable doubt is a

quantum of evidence that leaves the jury ‘firmly convinced’ and not one that

overcomes every possible doubt or one that reaches a level of absolute

certainty.” Veach v. State, 204 N.E.3d 331, 337 (Ind. Ct. App. 2023), trans.

denied. Moreover, when evaluating a sufficiency claim, we respect the exclusive

province of the jury to weigh any conflicting evidence. Mickens v. State, 115

N.E.3d 520, 523 (Ind. Ct. App. 2018) (quoting Harrison v. State, 32 N.E.3d 240,

247 (Ind. Ct. App. 2015), trans. denied), trans. denied.

[23] Montgomery’s argument overlooks the fact that it is not necessary for the

State’s evidence to overcome every possible doubt and amounts to a request for

us to reweigh the evidence, which we cannot do. Probative evidence in the

record shows that A.M. was impaired throughout the evening and into the early

morning hours. Although Montgomery believed A.M. needed to “sober up,”

he provided her with more alcohol, as well as marijuana, before he engaged in

sex with her. The evidence further shows that A.M. was having serious

difficulty breathing and that Montgomery was aware of her condition—so

much so that it occurred to him she may need emergency medical attention.

Yet, Montgomery took A.M. to his home, provided her with more marijuana,

and had sex with her a second time. Thus, we conclude sufficient evidence

exists from which a reasonable jury could find beyond a reasonable doubt that

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A.M. was so mentally disabled or deficient due to her intoxication that she was

unable to consent to sexual intercourse with Montgomery.

II. Evidentiary Rulings

[24] “‘The admission or exclusion of evidence lies within the sound discretion of the

trial court and is afforded great deference on appeal.’” Singh v. State, 203

N.E.3d 1116, 1121 (Ind. Ct. App. 2023) (quoting Housand v. State, 162 N.E.3d

508, 513 (Ind. Ct. App. 2020), trans. denied). Accordingly, we review challenges

to the trial court’s admission or exclusion of evidence for an abuse of discretion.

Sloan v. State, 224 N.E.3d 362, 367 (Ind. Ct. App. 2023), trans. denied. An abuse

of discretion results from a decision that is clearly against the logic and effect of

the facts and circumstances before the court. Id. “‘Errors in the admission or

exclusion of evidence are considered harmless unless they affect the substantial

rights of a party[,]’” and “‘[t]o determine whether an error in the admission of

evidence affected a party’s substantial rights, we assess the probable impact of

the evidence on the jury.’” Singh, 203 N.E.3d at 1121 (quoting Housand, 162

N.E.3d at 513).

A. Exclusion of Evidence

[25] Montgomery asserts the trial court abused its discretion by excluding testimony

that, on the night in question, A.M. had sought cocaine. He alleges this

evidence is relevant to show that A.M. obtained the fentanyl from someone

other than him and that she used it voluntarily.

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[26] Indiana Evidence Rule 401 provides that evidence is relevant if it has any

tendency to make a fact more or less probable than it would be without the

evidence and the fact is of consequence in determining the action. The

proffered evidence is not relevant to Montgomery’s charge of rape, which stated

that he knowingly or intentionally had sexual intercourse or other sexual

conduct with A.M. when she was so mentally disabled or deficient that consent

to the sexual intercourse or other sexual conduct could not be given.

[27] The testimony that A.M. had sought cocaine that night is not relevant to

Montgomery’s charge of rape because it does not concern a fact that is of

consequence to his charge. Moreover, the evidence showed that A.M. had no

cocaine in her system but that both fentanyl and fluorofentanyl were present.

The evidence also showed that the police searched Montgomery’s bedroom and

car and found no evidence of fentanyl. And Montgomery was not charged with

any offense related to A.M. obtaining or ingesting fentanyl. Accordingly, the

trial court did not abuse its discretion by excluding the testimony.

B. Admission of Evidence

[28] We next address Montgomery’s contention that the trial court abused its

discretion when it admitted, over his objection, the testimony of A.M.’s friend

that A.M. was in a monogamous relationship and was not promiscuous. As

with the exclusion of evidence, we review the admission of evidence for an

abuse of discretion and will disturb the ruling only if the court’s decision is

clearly against the logic and effect of the facts and circumstances. Sloan, 224

N.E.3d at 367.

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[29] Even assuming the trial court erred in admitting this testimony, we note that

“‘[t]he erroneous admission of evidence does not require reversal when

evidence of the same probative value is admitted without objection.’” Trammell

v. State, 751 N.E.2d 283, 288 (Ind. Ct. App. 2001) (quoting Sisk v. State, 736

N.E.2d 250, 251 (Ind. 2000)). Here, another friend of A.M. testified without

objection that A.M. and her boyfriend were “very much together” and

“committed.” Tr. Vol. 3, pp. 100-01.

[30] Moreover, “[e]rrors in the admission of evidence are ordinarily disregarded as

harmless error unless they affect the substantial rights of a party.” Remy v. State,

17 N.E.3d 396, 401 (Ind. Ct. App. 2014), trans. denied. “The effect of an error

on a party’s substantial rights turns on the probable impact of the impermissible

evidence upon the jury in light of all the other evidence at trial.” Gonzalez v.

State, 929 N.E.2d 699, 702 (Ind. 2010). “Put differently, the error is harmless

when the conviction is supported by such substantial independent evidence of

guilt that there is no substantial likelihood that the impermissible evidence

contributed to the conviction.” Id.

[31] There was substantial independent evidence presented at trial of Montgomery’s

guilt concerning his charge of knowingly or intentionally having sexual

intercourse or other sexual conduct with A.M. when she was so mentally

disabled or deficient that she could not consent to the conduct. Montgomery

admitted to having sex with A.M., and the probative evidence shows that she

was impaired. See Issue I., B., supra. Therefore, the error, if any, did not affect

Montgomery’s substantial rights and was harmless.

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III. Instructional Error

[32] We turn next to Montgomery’s claim of instructional error. He concedes he did

not object to the disputed instruction or offer instructions of his own, thus he

alleges the instructional defects rise to the level of fundamental error. See Covey

v. State, 929 N.E.2d 813, 819 (Ind. Ct. App. 2010) (stating that where defendant

failed to object to jury instruction or failed to tender his own instruction, claim

of error on appeal is waived unless he can show fundamental error).

[33] Fundamental error is an extremely narrow exception to waiver, providing relief

only in egregious circumstances. Barthalow v. State, 119 N.E.3d 204, 211 (Ind.

Ct. App. 2019) (quoting Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016)). An

error is fundamental if it made a fair trial impossible or was a “‘clearly blatant

violation’” of basic principles of due process that presented “‘an undeniable and

substantial potential for harm.’” Johnson v. State, 218 N.E.3d 585, 587 (Ind. Ct.

App. 2023) (quoting Miller v. State, 188 N.E.3d 871, 874 (Ind. 2022)).

A. Elements of Offense

[34] Montgomery asserts the instruction setting forth the elements of rape failed to

instruct the jury that the mens rea also should have been applied to the element

of A.M.’s mental disability or deficiency. In other words, Montgomery had to

know that A.M. was so mentally disabled or deficient that she could not

consent to the conduct. He also argues the instruction failed to provide the

legal definition of capacity to consent, and he reasons that without these

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supplemental instructions, the elements instruction was incomplete, imprecise,

and unreliable.

[35] Final instruction number 6 set forth the crime of rape as follows:

A person who knowingly or intentionally has sexual intercourse

with another person or knowingly or intentionally causes another

person to perform or submit to other sexual conduct when the

other person is so mentally disabled or deficient that consent to

sexual intercourse or other sexual conduct cannot be given,

commits rape, a level 3 felony.

Before you may convict the Defendant of Rape, a level 3 felony,

as charged in Count I, the State must have proved each of the

following beyond a reasonable doubt:

l. On or about August l7, 2022

2. in Monroe County, State of Indiana

3. the Defendant, Eric M. Montgomery,

4. did knowingly or intentionally

5. have sexual intercourse with [A.M.], or cause [A.M.] to

perform or submit to other sexual conduct

6. when [A.M.] was so mentally disabled or deficient

7. that consent to sexual intercourse or other sexual conduct

could not be given.

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If the State failed to prove each of these elements beyond a

reasonable doubt, you must find the Defendant not guilty of

Rape, a level 3 felony, as charged in Count I.

Appellant’s App. Vol. 3, p. 88. As this instruction not only tracks the language

of the rape statute, see Section 35-42-4-1(a)(3), but also follows the language of

Indiana Pattern Jury Instruction No. 3.2900 concerning the offense of rape, we

presume it is satisfactory. See Ramirez v. State, 174 N.E.3d 181, 199 (Ind. 2021)

(stating that jury instruction is presumptively correct if it tracks verbatim

language of statute and use of pattern jury instructions is preferred practice).

[36] Moreover, the precise issue raised by Montgomery here was addressed by this

Court in Gale. There, Gale contended the rape instruction was erroneous

because it did not instruct the jury that he had to have sexual intercourse

knowing that his victim was unaware that he was doing so. In Gale, we relied

on another decision of this Court, where we held that, because the rape statute

includes a “knowing” element and a person engages in conduct knowingly

when he is aware of a high probability that he is doing so, an offender must be

aware of a high probability that the victim is mentally disabled and unable to

consent to sexual intercourse. See Gale, 882 N.E.2d at 816 (quoting Bozarth v.

State, 520 N.E.2d 460, 464 (Ind. Ct. App. 1988), trans. denied). Accordingly, we

determined that Gale had to be aware of a high probability that his victim was

unaware that sexual intercourse was occurring. Gale, 882 N.E.2d at 816.

However, we concluded the claimed instructional error did not result in

fundamental error because there was substantial evidence presented at trial that

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the victim was unaware that sexual intercourse was occurring and that Gale

was aware of her condition. See id.

[37] Similarly here, even though the instruction did not explicitly instruct the jury

that Montgomery had to be aware of a high probability that A.M. was unable to

consent, the challenged instruction did not result in fundamental error. There

was substantial probative evidence that A.M. was unable to consent to sex and

that Montgomery was aware of her condition. See Issue I., B., supra; see also

Buckner v. State, 857 N.E.2d 1011, 1015 (Ind. Ct. App. 2006) (noting that

instructional error is harmless where conviction is clearly sustained by evidence

and jury could not properly have found otherwise).

B. Definition of Capacity to Consent

[38] Montgomery also argues the trial court committed fundamental error by failing

to instruct the jury as to the definition of “capacity to consent.” Specifically,

Montgomery asserts that this term has a legal definition and that, without it, the

jury “did not have all matters of law that were necessary for their information in

giving their verdict.” Appellant’s Br. p. 41.

[39] “When determining whether an element of an offense has been proven, the jury

may rely on its collective common sense and knowledge acquired through

everyday experiences—indeed, that is precisely what is expected of a jury.”

Clemons v. State, 83 N.E.3d 104, 108 (Ind. Ct. App. 2017), trans. denied. We

have recognized a duty of the trial court to give instructions defining words

used in other instructions only if “‘the words are of a technical or legal meaning

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normally not understood by jurors unversed in the law.’” Id. (quoting Martin v.

State, 314 N.E.2d 60, 70 (Ind. 1974)).

[40] To support this claim of error, Montgomery points to statements of potential

jurors during voir dire. See Appellant’s Br. p. 43. Given that it was voir dire,

the jury had not yet been advised of the law governing the case by way of the

court’s preliminary and final instructions nor had it heard any evidence.

Moreover, Montgomery does not indicate whether the jurors he refers to were

included on the actual jury panel for trial. Furthermore, he cites to no

precedent supporting his claim that it was error, much less fundamental error,

for the trial court not to give an instruction defining the term “capacity to

consent.”

[41] We conclude the term is not so technical in nature that a reasonable jury would

not be able to use its collective common sense and everyday experiences to

understand its meaning. Accordingly, we cannot conclude that the trial court's

failure to provide the definition of the term “capacity to consent” was a

substantial blatant violation of basic principles. See Keister v. State, 203 N.E.3d

548, 552 (Ind. Ct. App. 2023) (stating that instructional errors are harmless

where conviction is clearly sustained by evidence and instruction would not

likely have impacted jury’s verdict).

IV. Amended Charging Information

[42] For his final claim of error, Montgomery contends the State’s failure to file a

copy of the amended charging information containing the offense of attempted

Court of Appeals of Indiana | Opinion 23A-CR-2052 | December 31, 2024 Page 20 of 22

obstruction of justice violated his constitutional rights. Montgomery

acknowledges that he failed to object on this basis and must now show

fundamental error.

[43] The State’s brief discloses that it is unnecessary for us to address this final

allegation of error. The State filed its motion to amend the charges on May 24,

2023 and included a copy of the amended information. See Appellant’s App.

Vol. 2, p. 21 (CCS); Appellee’s App. Vol. 2, p. 2 (file-stamped copy of amended

information). However, the CCS inadvertently failed to reflect the filing of a

copy of the amended information. In May 2024, the State moved to correct the

clerk’s record to rectify this error, and the court granted the motion. See

Appellee’s App. Vol. 2, pp. 3-7.

Conclusion

[44] Based on the foregoing, we decline to overrule our decisions in Hancock and

Gale and conclude there was sufficient evidence to sustain Montgomery’s

conviction of rape. We further determine that the trial court’s evidentiary

rulings were not an abuse of its discretion and that neither its instructions to the

jury nor the State’s filing of the amended charging information amounted to

error, much less fundamental error.

[45] Affirmed.

Tavitas, J., and DeBoer, J., concur.

Court of Appeals of Indiana | Opinion 23A-CR-2052 | December 31, 2024 Page 21 of 22

ATTORNEY FOR APPELLANT

Stacy R. Uliana

Bargersville, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

George P. Sherman

Deputy Attorney General

Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 23A-CR-2052 | December 31, 2024 Page 22 of 22