MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 16 2020, 8:34 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE J. Michael Woods Curtis T. Hill, Jr. Stracci Law Group, P.C. Attorney General of Indiana Crown Point, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Luciano Galvan, December 16, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-520 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff. Judge Trial Court Cause No. 45G01-1809-F3-99
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 1 of 15 Statement of the Case [1] Luciano Galvan (“Galvan”) appeals his conviction by jury of Level 3 felony
rape.1 He argues that: (1) the trial court abused its discretion in admitting
evidence; (2) the trial court abused its discretion in instructing the jury; and (3)
there is insufficient evidence to support his conviction. Finding no abuse of the
trial court’s discretion and sufficient evidence to support the conviction, we
affirm Galvan’s conviction for Level 3 felony rape.
[2] We affirm.
Issues 1. Whether the trial court abused its discretion in admitting evidence.
2. Whether the trial court abused its discretion in instructing the jury.
3. Whether there is sufficient evidence to support Galvan’s conviction for Level 3 felony rape.
Facts [1] The facts most favorable to the verdict reveal that on September 8, 2018,
twenty-three-year-old C.M. (“C.M.”) and several friends, including C.M.’s
roommate, Chandler Saints (“Saints”); Saint’s boyfriend, Nicholas Obregon
(“Obregon”); Brad Kieltyka (“Kieltyka”); and Galvan, attended another
1 IND. CODE § 35-42-4-1.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 2 of 15 friend’s birthday party. While at the party, the group drank alcohol. After the
birthday party ended at approximately 1:00 a.m., the group went to Obregon’s
house, where they continued to drink alcohol.
[2] By the early morning hours of September 9, 2018, C.M. was so intoxicated that
she could not stand up. Galvan and Kieltyka took C.M. outside to get some
fresh air and eventually decided to take C.M. home and put her to bed. The
two men drove C.M. to the apartment that she shared with Saints.
[3] When Galvan and Kieltyka arrived at C.M.’s apartment, the two men placed
C.M. on her bed. They did not remove her clothes or cover her with a blanket.
As Kieltyka started to leave, Galvan told him that he was going to stay with
C.M. and “take care of her.” (Tr. Vol. 4 at 25). Kieltyka left Galvan at C.M.’s
apartment and returned to the party at Obregon’s house.
[4] Forty-five minutes later, concerned that Galvan had not returned to the party,
Kieltyka drove back to C.M.’s apartment. As Kieltyka approached the
building’s front door, Galvan exited the building. Kieltyka asked Galvan what
he had been doing at C.M.’s apartment, and Galvan responded that “he had
[had] sex with [C.M.]” (Tr. Vol. 4 at 31).
[5] Saints, who returned to the apartment that she shared with C.M. shortly after
5:00 a.m., discovered C.M. “laying on her back on her bed with her shirt up
above her bra and a blanket over her, and she didn’t have any pants on, and
there was – and her tampon was on the bed across from her like it had been
taken out.” (Tr. Vol. 4 at 58). Saints attempted to wake C.M., who was
Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 3 of 15 unresponsive. Saints then texted Galvan and asked, “Why did you do this[?]”
(Ex. Vol. at 115). Galvan responded, “[d]o what[?]” (Ex. Vol. at 115). Saints
replied, “[s]omebody definitely had sex with her. They said you stayed
behind.” (Ex. Vol. at 115). Galvan responded that he had “stayed behind . . .
to get everything situated.” (Ex. Vol. at 115).
[6] When C.M. woke up at noon, she was unable to remember what had happened
the previous night. Saints telephoned Galvan, who told her that he and
Kieltyka had taken C.M. back to her apartment, placed her on her bed, and left
the apartment. When C.M. got on the telephone, Galvan told her the same
thing that he had told Saints. After hanging up the phone, C.M. told Saints,
“you know when someone sounds like they’re full of shit? This is one of those
moments.” (Tr. Vol. 5 at 221). C.M. then left the room and vomited.
[7] About ten minutes later, Galvan called C.M. and told her that “he didn’t know
how to handle the situation because he’d never been in a situation before and
that he didn’t want . . . any of it to get out to his girlfriend [but] that he had
[had] sex with [C.M.] for just three minutes [and] that was it.” (Tr. Vol. 5 at
223). C.M. asked Galvan if he had been coherent and had known what he was
doing, and Galvan responded that he had. C.M. began crying and then went
back to sleep because she “didn’t want it to be true.” (Tr. Vol. 5 at 224).
[8] Saints and Galvan subsequently spoke on the telephone again. Galvan told
Saints that he “was crying and shaking” and that “he was sorry.” (Tr. Vol. 4 at
Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 4 of 15 71). At some point that day, Galvan sent the following text to a group chat that
included Obregon and three other friends:
I had sex with [C.M.] last night and she was blacked out and I was starting to lose my coherence and I just feel like dying honestly. [Saints] called asking what happened and I didn’t tell her everything because I was scared to. [C.M.] asked me what happened and I didn’t tell her either because I was so scared. I couldn’t keep it a secret and knew it was horrible to keep it from her so I told her and she literally hates me now and I don’t blame her…. I’m so sorry guys I’m like crying right now and my hands are shaking[.] [I] feel worthless[.]
(“the Group Text”) (Ex. Vol. at 51) .
[9] When C.M. woke up later that evening, she contacted the Whiting Police
Department to report that she had been raped. Saints and Obregon were with
C.M. when police officers arrived at the apartment, and Obregon showed the
officers the Group Text.
[10] Responding police officers collected the jeans that C.M. had been wearing
when Galvan and Kieltyka had brought her home. One of the officers noticed
that the jeans were tangled with C.M.’s underwear “like . . . when somebody
had taken them off, it appeared that like the underwear came off with the
jeans.” (Tr. Vol. 4 at 115). The officers also collected the underwear and a
shirt.
[11] A police officer escorted C.M. to the hospital, where C.M. was examined by a
nurse. The nurse used a sexual assault evidence kit to collect swabs from
Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 5 of 15 C.M.’s internal and external genitalia. The nurse also took a swab of a dried
secretion between C.M.’s breasts. When the nurse asked C.M. if she had
engaged in any consensual sexual activity within the preceding five days, C.M.
responded that she had not.
[12] A forensic DNA analyst at the Indiana State Police Lab examined C.M.’s jeans,
underwear, shirt, and bra. The analyst determined that Galvan’s DNA was
present on “the inside nipple areas of [C.M.’s] bra.” (Tr. Vol. 5 at 118). In
addition, the analyst determined that there was male DNA on the crotch of
C.M.’s underwear and jeans. However, there was not enough DNA present for
further analysis as to the identity of the male.
[13] The analyst also examined the swabs taken from C.M. at the hospital. The
analyst determined that male DNA was present on the swab of C.M.’s external
genitalia. Again, there was not enough DNA present for further analysis as to
the identity of the male. C.M.’s internal genital swab was presumptively
positive for blood but there was no male DNA detected. The analyst explained
that C.M.’s menstrual cycle, which had begun two days before the swabs were
taken, would have “help[ed] remove a lot of – any foreign DNA that might
[have] be[en] present in that area.” (Tr. Vol. 5 at 108). The dried secretion
swab taken from between C.M.’s breasts contained C.M.’s DNA and the DNA
of an unknown person.
[14] The State charged Galvan with rape on September 21, 2018, and Galvan’s jury
trial began in January 2020. The jury heard testimony about the facts as set
Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 6 of 15 forth above. When the State asked Kieltyka what Galvan had told him when
Kieltyka had asked Galvan what he had been “doing in [C.M.’s apartment] for
so long,” Galvan objected on the basis of corpus delicti.2 (Tr. Vol. 4 at 30). The
trial court overruled the objection, and Kieltyka testified that Galvan had “told
[him] that he had had sex with [C.M.]” (Tr. Vol. 4 at 31). In addition, when
the State asked a police officer about the Group Text that Obregon had shown
him when the officer had been at C.M.’s apartment, Galvan again objected on
the basis of corpus delicti. The trial court again overruled the objection and
admitted the Group Text into evidence. Galvan did not object to C.M.’s
testimony that Galvan told her that he had had sex with her.
[15] Following the presentation of evidence, Galvan tendered to the trial court a
lesser-included offense instruction for Class B misdemeanor battery. The State
objected to the instruction, and the trial court declined to give it. The jury
convicted Galvan of Level 3 felony rape, and the trial court sentenced him to
nine (9) years in the Department of Correction.
[16] Galvan now appeals his conviction.
Decision [17] Galvan argues that: (1) the trial court abused its discretion in admitting
evidence; (2) the trial court abused its discretion in instructing the jury;
2 The corpus delicti rule provides that a crime cannot be proven only on the basis of a confession. Shinnock v. State, 76 N.E.3d 841 (Ind. 2017).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 7 of 15 and (3) there is insufficient evidence to support his conviction. We
address each of his contentions in turn.
1. Admission of Evidence
[18] Galvan first argues that the trial court abused its discretion in admitting
evidence. The admission of evidence is within the sound discretion of the
trial court, and we will reverse only for an abuse of that discretion. Rogers
v. State, 897 N.E.2d 955, 959 (Ind. Ct. App. 2008), trans. denied. A trial
court abuses its discretion if its decision is clearly against the logic and the
effect of the facts and circumstances before the court or if the court has
misinterpreted the law. Id.
[19] Galvan specifically argues that the trial court abused its discretion in
admitting into evidence: (1) his statement to Kieltyka that he had had sex
with C.M.; and (2) the Group Text. According to Galvan, “the balance of
the evidence in the record was insufficient to establish the corpus delicti of
the crime charged – specifically rape . . . [because] there is no independent
evidence from which the crime of rape c[ould] be inferred.” (Galvan’s Br.
5, 12). The State responds that “eyewitness and physical evidence in this
case amply support such an inference.” (State’s Br. 15). We agree with
the State.
In Indiana, a person may not be convicted of a crime based solely on a nonjudicial confession of guilt. Rather, independent proof Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 8 of 15 of the corpus delicti is required before the defendant may be convicted upon a nonjudicial confession. Proof of the corpus delicti means proof that the specific crime charged has actually been committed by someone. Thus, admission of the confession requires some independent evidence of commission of the crime charged. The independent evidence need not prove that a crime was committed beyond a reasonable doubt, but merely provide an inference that the crime charged was committed. The inference may be created by circumstantial evidence.
Shinnock, 76 N.E.3d at 843 (quotations and citations omitted).
[20] Here, Galvan was charged with Level 3 felony rape. Thus, the State had to
prove that he knowingly or intentionally had sexual intercourse with C.M. or
intentionally caused C.M. to perform or submit to other sexual conduct when
C.M. was unaware that the sexual intercourse or other sexual conduct was
occurring. See IND. CODE § 35-42-4-1. Sexual intercourse is an act that
includes any penetration of the female sex organ by the male sex organ. IND.
CODE § 35-31.5-2-302. The statute does not require that the vagina
be penetrated, only that the female sex organ, including the external genitalia,
be penetrated. Smith v. State, 779 N.E.2d 111, 115 (Ind. Ct. App. 2002), trans.
denied.
[21] Galvan “concedes that a review of the caselaw demonstrates that Indiana courts
have rarely found lack of corpus delicti for purposes of admitting a confession[,]”
and we find no such lack in this case. (Galvan’s Br. 11). Specifically, our
review of the evidence reveals that Galvan and Kieltyka took an extremely
intoxicated C.M. to her apartment and placed her in bed. They did not remove
Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 9 of 15 her clothes or place a blanket over her. After Kieltyka had left, Galvan stayed
at the apartment with C.M. for an additional forty-five minutes. Thereafter,
Saints discovered C.M. lying in bed with her shirt up above her bra. C.M. was
not wearing any pants, and she had a blanket on her. There was also a tampon
on her bed “like it had been taken out.” (Tr. Vol. 4 at 58). Based on what she
saw, Saints believed that “[s]omebody definitely had [had] sex with [C.M.]”
(Ex. Vol. at 115). C.M. and Saints both spoke with Galvan on the telephone,
and Galvan eventually told C.M. that he did not want his girlfriend to find out
but that he “had [had] sex with [C.M.]” (Tr. Vol. 5 at 223). Galvan also told
C.M. that he had known what he was doing.
[22] When police officers arrived at C.M.’s apartment, the officers noticed that
C.M.’s jeans were tangled with C.M.’s underwear “like . . . when somebody
had taken them off, it appeared that like the underwear came off with the
jeans.” (Tr. Vol. 4 at 115). In addition, a forensic analyst found Galvan’s
DNA on “the inside nipple areas of [C.M.]’s bra.” (Tr. Vol. 5 at 118). The
analyst also found male DNA on C.M.’s external genitalia and on the crotch of
her jeans and underwear. C.M. had not had consensual sexual relations in the
preceding five days. This evidence provides an inference that the crime of rape
had been committed, and the trial court did not abuse its discretion in admitting
Galvan’s statement to Kieltyka and the Group Text into evidence.
2. Jury Instructions
Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 10 of 15 [23] Galvan next argues that the trial court abused its discretion in instructing
the jury. Galvan specifically contends that the trial court abused its
discretion when it declined to give his tendered lesser-included offense
instruction for battery as a Class B misdemeanor.
[24] In Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995), the Indiana Supreme
Court set forth a three-part test that trial courts should perform when
called upon by a party to instruct the jury on a lesser-included offense to
the crime charged. First, the trial court must compare the statute defining
the crime charged with the statute defining the alleged lesser-included
offense to determine if the alleged lesser-included offense is inherently
included in the crime charged. Id. Second, if the trial court determines
that an alleged lesser-included offense is not inherently included in the
crime charged under step one, then it must determine if the alleged lesser-
included offense is factually included in the crime charged. Id. at 567. If
the alleged lesser-included offense is neither inherently nor factually
included in the crime charged, the trial court should not give an
instruction on the alleged lesser-included offense. Id. Third, if a trial
court has determined an alleged lesser-included offense is either inherently
or factually included in the crime charged, “it must look at the evidence
presented in the case by both parties” to determine if there is a serious
evidentiary dispute about the element or elements distinguishing the
greater from the lesser offense and if, in view of this dispute, a jury could Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 11 of 15 conclude that the lesser offense was committed but not the greater. Id. It
is reversible error for a trial court not to give a requested instruction on
inherently or factually included lesser offenses if there is such an
evidentiary dispute. Id. We now apply this framework to the tendered
lesser-included offense instruction in this case.
[25] Battery is an inherently included lesser offense of rape. Angle v. State, 698
N.E.2d 356, 359 (Ind. Ct. App. 1998). The only element distinguishing
the two offenses is sexual intercourse. Id. Specifically, Class B
misdemeanor battery occurs when a person knowingly or intentionally
touches another person in a rude, insolent, or angry manner. IND. CODE §
35-42-2-1. Rape, on the other hand, occurs when a person knowingly or
intentionally has sexual intercourse with another person or intentionally
causes another person to perform or submit to other sexual conduct. I.C.
§ 35-42-4-1. Where there is no serious evidentiary dispute about whether
Galvan had sexual intercourse with C.M., Galvan is not entitled to the
lesser-included battery instruction. See Gale v. State, 882 N.E.2d 808, 815
(Ind. Ct. App. 2008) (affirming the trial court’s denial of defendant’s
request for a lesser-included battery instruction where there was no
serious evidentiary dispute about whether defendant had sexual
intercourse with the victim).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 12 of 15 [26] Here, we find no such serious evidentiary dispute. Specifically, our review of
the evidence reveals that, as previously discussed, Galvan and Kieltyka took an
extremely intoxicated C.M. to her apartment and placed her in bed. They did
not remove her clothes or place a blanket over her. After Kieltyka had left,
Galvan stayed at the apartment with C.M. for an additional forty-five minutes.
When Kieltyka went back to C.M.’s apartment and asked Galvan what he had
been doing at C.M.’s apartment, Galvan responded that he had “had sex with
C.M.” (Tr. Vol. 4 at 31).
[27] Thereafter, Saints discovered C.M. lying in bed with her shirt up above her bra.
C.M. was not wearing any pants and she had a blanket over her. There was
also a tampon on her bed “like it had been taken out.” (Tr. Vol. 4 at 60). Based
on what she saw, Saints believed that “[s]omebody definitely had [had] sex with
[C.M.]” (Ex. Vol. at 115). C.M. and Saints both spoke with Galvan on the
telephone, and Galvan eventually told C.M. that he did not want his girlfriend
to find out but that he had “had sex with [C.M.]” (Tr. Vol. 5 at 223). In
addition, Galvan told C.M. that he had known what he was doing. Galvan
then sent the Group Text to four friends telling them that he had “had sex with
[C.M.] [when] she was blacked out.” (Ex. Vol. at 51).
[28] When police officers arrived at C.M.’s apartment, the officers noticed that
C.M.’s jeans were tangled with C.M.’s underwear “like . . . when
somebody had taken them off, it appeared that like the underwear came
off with the jeans.” (Tr. Vol. 4 at 115). In addition, a forensic analyst
Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 13 of 15 found Galvan’s DNA on “the inside nipple areas of [C.M.]’s bra.” (Tr.
Vol. 5 at 118). The analyst also found male DNA on C.M.’s external
genitalia and on the crotch of her jeans and underwear. C.M. had not had
consensual sexual relations in the preceding five days. Because there is no
serious evidentiary dispute about whether Galvan had sexual intercourse
with C.M., the trial court did not abuse its discretion when it refused
Galvan’s tendered instruction on the lesser-included offense of Class B
misdemeanor battery. See Gale, 882 N.E.2d at 815.
3. Sufficiency of the Evidence
[29] Galvan also argues that there is insufficient evidence to support his
conviction for Level 3 felony rape. Our standard of review for sufficiency
of the evidence claims is well-settled. We consider only the probative
evidence and reasonable inferences supporting the verdict. Drane v. State,
867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh the evidence or
judge witness credibility. Id. We will affirm the conviction unless no
reasonable fact finder could find the elements of the crime proven beyond
a reasonable doubt. Id. The evidence is sufficient if an inference may be
reasonably drawn from it to support the verdict. Id. at 147.
[30] As previously discussed, in order to convict Galvan of Level 3 felony rape, the
State had the burden to prove beyond a reasonable doubt that Galvan
knowingly or intentionally had sexual intercourse with C.M. or intentionally
Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 14 of 15 caused C.M. to perform or submit to other sexual conduct when C.M. was
unaware that the sexual intercourse or other sexual conduct was occurring. See
I.C. § 35-42-4-1. Sexual intercourse is an act that includes any penetration of
the female sex organ by the male sex organ. I.C. § 35-31.5-2-302. The statute
does not require that the vagina be penetrated, only that the female sex
organ, including the external genitalia, be penetrated. Smith, 779 N.E.2d at
115.
[31] Here, our review of the evidence, as set forth in the issues above, is sufficient to
support Galvan’s conviction for Level 3 felony rape. Accordingly, we affirm
Galvan’s rape conviction.
[32] Affirmed.
Kirsch, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-520| December 16, 2020 Page 15 of 15