Garrett Whittenburg, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Following a bench trial, Garrett Edward Whittenburg was convicted and sentenced for Level 1 felony rape, Level 3 felony criminal confinement, Level 3 felony armed robbery, Level 4 felony burglary, and Level 4 felony sexual battery. Whittenburg presents two issues on appeal, which we restate as follows:

1) Do his convictions for both rape and criminal confinement violate substantive double jeopardy?

2) Did the State present sufficient evidence to establish that he was armed with a deadly weapon when committing the crimes?

[2] We affirm.

Facts & Procedural History

[3] M.C. (Mother) and her twelve-year-old daughter (Daughter) lived alone in a small home in Hammond. On the evening of November 13, 2021, Mother's stepfather, Valentine Torrez, came to the home and asked for a key to the detached garage so he could retrieve one of his tools. Shortly thereafter, he returned the key and left.

[4] Several hours later, around 10:30 p.m., Torrez returned and banged loudly on the front door. Daughter was asleep on a couch in the living room, and Mother was resting on the other couch. Mother was reluctant to answer the door, but after seeing it was Torrez, she opened the door and then returned to the couch. In the meantime, Torrez helped himself to a drink in the nearby kitchen.

[5] Minutes later, while Torrez was still in the kitchen, Mother noticed that the front door began to slowly open. She believed it might be one of Torrez's friends, so she stood up to try to close the door before they could enter. Before reaching the door, she saw a tall man wearing a black ski mask and a hooded sweatshirt already inside the home. The man might also have been wearing black gloves. Mother could not identify this masked man at the time, but he was later identified as Whittenburg, one of Torrez's friends.

[6] Whittenburg pushed Mother down and began making threats. As Torrez came out of the kitchen, Whittenburg told him to tie up Mother and Daughter. Torrez refused to do so but then proceeded to have a calm discussion with Whittenburg. Mother also heard Whittenburg say something about Torrez tying himself up. Thereafter, Mother heard noise and fumbling in the kitchen, which she believed to be Torrez.

[7] Meanwhile, Whittenburg “dragged and pulled” Mother throughout the house while holding her hands behind her back. Transcript Vol. 2 at 183. While doing so, he held something to her back, which Mother believed to be a handgun with a silencer. She never saw the object but described it as “a cold circle thing on my back.” Id. at 189. Mother was “terrified” by this object and felt like she “couldn't scream or, you know, do anything” while being taken from room to room. Id. at 239.

[8] The first place Whittenburg took Mother was the bathroom, where he placed a towel over her head. Then he forced her up the stairs to the attic, where he made her get down on her stomach. Whittenburg demanded to know “where the cash was.” Id. at 185. When Mother said she did not have any cash, he placed a “black like nylon thing” over her head and then covered it with the towel. Id. at 186.

[9] Whittenburg took Mother back downstairs to one of the couches in the living room, where he forced her to perform oral sex on him. During this time, another man, later determined to be Torrez, digitally penetrated her vagina and anus. At some point, she was “thrown over” the arm of the other couch, where she was again forced to perform oral sex while being touched by both men. Id. at 189. She also felt a penis going up and down her back at times during the sexual assault.

[10] When the men were finished, Whittenburg had Mother rest on his lap, seemingly to console her. At that point she said, “I don't want anyone to hurt my daughter.” Id. at 194. He responded, “No one's gonna hurt her.” Id. Unbeknownst to Mother, however, Daughter had already been taken to her bedroom and molested by Torrez. Eventually, Mother could tell the two men were communicating with each other with gestures rather than words. She then heard the back door close before Whittenburg stood up and went out the front door. Mother removed her face coverings after they left, locked the doors, and then found Daughter in the bedroom picking up her shorts and underwear.

[11] Mother's cell phone and wallet had been taken during the incident, so she used Daughter's cell phone to call 911. Mother reported to police that she believed a gun with a silencer had been used during the attack. Though she did not know for sure, she suspected that the masked man was one of Torrez's friends and that Torrez might have been in on it. Daughter reported that she had been tied up and touched all over including in her genital area.

[12] Mother and Daughter were taken to the hospital for sexual assault exams. Testing later revealed that Whittenburg's DNA was on Mother's internal and external genitalia, on her back, on her menstrual pad, and on a towel found at the scene. Torrez's DNA was also found on Mother's genitalia and back, as well as the towel.¹

[13] On November 19, Mother called the police after discovering an L-shaped lug wrench on the floor just under one of her living room couches. It did not belong to her, and at that point, she realized that the lug wrench was consistent with what Whittenburg had held against her back, which she had previously assumed was a gun. The lug wrench was taken into evidence by Hammond Police Sergeant Brett Bach. Mother's DNA was found on the lug wrench but not Whittenburg's.

[14] Whittenburg was initially charged in November 2021, and after amendments, he went to trial on the following charges: Count I, Level 1 felony rape; Count II, Level 1 felony rape; Count III, Level 3 felony rape; Count IV, Level 3 felony rape; Count V, Level 3 felony criminal confinement; Count VI, Level 3 felony armed robbery; Count VII, Level 4 felony burglary; Count VIII, Level 4 felony sexual battery; and Count IX, Level 5 felony robbery. Following a bench trial on November 24, 2025, the court entered judgments of conviction on Counts II, V, VI, VII, and VIII.²

[15] The sentencing hearing was held on December 17, 2025. Whittenburg asked the trial court to merge the criminal confinement count with the rape and robbery counts, arguing that movement of Mother to the attic area and back down was brief and that the acts were so compressed in time, place, and manner that they were part of the same criminal act. The trial court expressly disagreed and explained why judgments on the five counts were appropriate: “I believe that the State presented evidence that showed that each of these events were separate and distinct from each other in time, in place and experienced [sic] by the victim.” Transcript Vol. III at 191. The trial court imposed an aggregate sentence of sixty-eight years in prison.

[16] Whittenburg now appeals each of his convictions except on the burglary count. Additional information will be provided below as needed.

Discussion & Decision

1. Double Jeopardy

[17] Whittenburg initially argues that his convictions for both rape and criminal confinement violate Indiana's protection against substantive double jeopardy. We review such questions de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024).

[18] The three-part Waddle test, as clarified by the Supreme Court in A.W., applies to our determination of whether both convictions can stand. First, we look to the statutory language of the offenses at issue; if there is language that “clearly permits” multiple punishments, then “there is no violation of substantive double jeopardy” and we end our analysis. A.W., 229 N.E.3d at 1066 (quoting Waddle v. State, 151 N.E.3d 227, 248 (Ind. 2020)). The State concedes, and we agree, that the rape and criminal confinement statutes do not clearly permit multiple punishments. See Zamilpa v. State, 229 N.E.3d 1079, 1084 (Ind. Ct. App. 2024) (holding that neither Ind. Code § 35-42-4-1 (rape statute) nor I.C. § 35-42-3-3 (criminal confinement statute) clearly permits multiple punishments).

[19] Second, applying the included offense statute, Ind. Code § 35-31.5-2-168,³ and looking only to the facts on the face of the charging instrument, we assess whether the charges are inherently included or factually included as charged. A.W., 229 N.E.3d at 1067. If ambiguities exist in the charging instrument regarding whether one offense is factually included in another, we must find a presumptive double jeopardy violation and proceed to the third step. Again, the State rightly concedes this step. “While the rape statute does not explicitly recite confinement as an element of the offense, the act of forcible rape necessarily entails some degree of confinement.” Zamilpa, 229 N.E.3d at 1084.

[20] Moving to the third step, we “probe the underlying facts – as presented in the charging instrument and adduced at trial – to determine whether [the] defendant's actions were ‘so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.’ ” See A.W., 229 N.E.3d at 1071 (quoting Wadle, 151 N.E.3d at 249). It is at this step that the State argues Whittenburg's double jeopardy claim fails. We agree.

[21] The facts underlying the rape and criminal confinement offenses clearly show that they were separate and distinct offenses. The criminal confinement was complete before there was any indication of a sexual assault.⁴ That is, Whittenburg dragged Mother into the bathroom where he covered her eyes with a towel and then he forced her up the stairs to the attic. Once in the attic, he made her get down on her stomach while demanding to know where he could find cash. She did not have any cash, so he covered her face with a black head covering and then the towel before forcing her back down the stairs. As the State put it in closing, this “dragging [Mother] around her house” with a “cold round object on her back” established the Level 3 felony criminal confinement. Transcript Vol. III at 128.

[22] It was not until Whittenburg returned Mother to the living room that his attention turned from money to sexual assault. He and Torrez then proceeded to rape Mother, moving her from one couch to another. The confinement utilized during this episode of rape was separate and distinct from the confinement that had occurred earlier in the criminal encounter. The acts had different purposes, took place in different floors of the house, and were not continuous actions. Further, the trial court, as trier of fact, was asked to consider this issue at sentencing, and the court expressly rejected Whittenburg's position. Based on the evidence presented at trial, the court determined that the criminal actions were separate and distinct from each other in time, in place, and in the experience of the victim. We agree that the rape and criminal confinement convictions did not constitute a single transaction, and thus there is no substantive double jeopardy violation here.

2. Sufficiency of the Evidence

[23] Whittenburg also argues that the State presented insufficient evidence that he was armed with a deadly weapon while committing his crimes, a fact that served to elevate four of his convictions – Counts II, V, VI, and VIII – to a higher level offense. He asserts that there was “no evidence beyond [Mother's] imagination that Whittenburg used a pistol, a pistol with a silencer, or a lug wrench in the commission of the offenses[.]” Appellant's Brief at 25. He notes that Mother never saw a weapon and that the lug wrench was not found until six days later and was never tied to him.

[24] When reviewing the sufficiency of evidence supporting a conviction, we neither reweigh the evidence nor assess the credibility of witnesses, instead leaving those matters to the province of the trier of fact. See Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024); see also Young v. State, 198 N.E.3d 1172, 1176 (Ind. 2022) (“When there are conflicts in the evidence, the [trier of fact] must resolve them.”). With this deferential review in mind, we will consider only the probative evidence and reasonable inferences supporting the conviction. Sorgdrager v. State, 208 N.E.3d 646, 650 (Ind. Ct. App. 2023), trans. denied. And we will affirm “unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Fix v. State, 186 N.E.3d 1134, 1138 (Ind. 2022) (Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016)). In sum, the evidence does not need to overcome every reasonable hypothesis of innocence; it is sufficient if an inference may be reasonably drawn from the evidence to support the conviction. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).

[25] On appeal, Whittenburg does not argue that a lug wrench is not a deadly weapon. He simply contends that the State failed to establish that he used the lug wrench during his offenses, as his DNA was not found on the lug wrench and it was not recovered by any of the many officers on the scene in the immediate aftermath.

[26] Whittenburg's arguments are improper requests to reweigh the evidence. Mother was consistent in her account of feeling a cold round object being held to her back, which she originally believed to be a gun. Six days later, she found a lug wrench on the floor under one of the couches where she was raped, and she realized that the round end of the metal lug wrench was consistent with what she felt on her back. She immediately contacted the police upon the discovery of the lug wrench, which was not hers. Further, Sergeant Bach, who collected the lug wrench, testified at trial that the object was visible in State's Exhibits 76 and 76A, which were photographs of the living room on different dates – the first closer to the offenses when the room was still in disarray and the second six days later after the room had been tidied up and Mother discovered the lug wrench. We also note that the lug wrench is faintly visible around the eight-minute mark on police body cam footage from the night of the offenses, which was admitted into evidence as State's Exhibit 40.

[27] Mother did not need to see the weapon for it to be established that Whittenburg used one; she felt the weapon and found it six days later in the place where the rape began. The trial court, as trier of fact, rejected Whittenburg's arguments regarding whether the evidence established that he used the lug wrench on the night in question. Sufficient evidence supported the trial court's determination in this regard, and we will not reweigh the evidence.

[28] Judgment affirmed.

FOOTNOTES

1.   Though not admitted into evidence at Whittenburg's trial, we note that at Torrez's criminal trial, the evidence established that Torrez's DNA was found on Daughter's underwear, neck and external genitalia. See Torrez v. State, 262 N.E.3d 852, *2 (Ind. Ct. App. 2025) (mem) (affirming Torrez's conviction for Level 5 felony criminal confinement of Daughter and detailing his other crimes – Level 3 felony rape of Mother and Level 4 felony child molesting – which convictions he did not appeal).

2.   The trial court found Whittenburg not guilty of Counts I and III, which were based on sexual intercourse rather than other sexual conduct. The court also refused to enter judgments on Counts IV and IX, finding that they were lesser included offenses of Counts II and VI, respectively.

3.   I.C. § 35-31.5-2-168 defines “included offense” as an offense that:(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.

4.   Mother expressly testified that there was “no sexual contact” in the attic. Transcript Vol. II at 223.

Altice, Judge.

Vaidik, J. and Foley, J., concur.