Duane Gauger, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Duane Gauger appeals his convictions for three counts of rape as level 3 felonies. He contends the trial court committed fundamental error in instructing the jury. We affirm.

Facts and Procedural History

[2] In July 2024, Gauger lived in a house with his wife, C.G. The couple had been having marriage difficulties and, on July 13, 2024, C.G. “brought up” the possibility of divorce. Transcript Volume II at 182. The couple spent the day working together on a privacy fence at their home, and the day was “pretty calm.” Id. However, when C.G. went to bed, Gauger “came in and got into bed.” Id. at 184. This immediately gave C.G. pause because the couple “hadn't been sleeping together” during the past week and Gauger had been “sleeping in another room.” Id. C.G. “was turned away from him” but Gauger “scooted over,” “put his arm around” C.G. and said, “I told you I was going to rape you one of these days.” Id. C.G. said, “This is not going to happen. No, we are not going there,” and tried to “fight [Gauger] off,” but “[h]e was too strong” and “kept pushing [C.G.] back in the bed.” Id. Gauger “climbed on top” of C.G. and pinned her down so that she was unable to move. Id. at 185. C.G. continued to fight Gauger until she “couldn't do it anymore.” Id. C.G. was petrified and had “never been so scared in [her] life” that Gauger was going to hurt her. Id. at 186. Gauger was on top of C.G., but “turned around” so that his legs were on both sides of her head. Id. Gauger “took his penis and put it up against [C.G.’s] mouth” and said, “Put this in your mouth.” Id. He then made C.G. open her mouth and he “forced” his penis “in [her] mouth.” Id. at 187. His naked body then came “down on [C.G.]” and “hurt” her breast, and he proceeded to “put his mouth on [her] vagina area.” Id. Gauger's fingers and his tongue also made “contact with” C.G.’s anus. Id. at 188. Gauger then “turned around and got on top of [C.G.] face-to face” and he “put his penis” inside her vagina and ejaculated inside her. Id. at 189.

[3] The next morning, C.G. left the house to go to her mother's home in Kentucky. On her way, C.G. texted and spoke with her daughter on the phone and told her what Gauger had done. C.G.’s daughter advised her to call the police. C.G. was still in “shock” and too “afraid” to do so. Id. at 199. Upon arriving in Kentucky, C.G. also told her brother about the rapes. C.G. returned to Indiana on Monday and told her friend Susan Hook about the incident. C.G. finally called 911 because she felt “it was the right thing to do.” Id. at 202. At the direction of law enforcement, C.G. underwent a sexual-assault examination.

[4] Forensic Nurse Examiner Adriana Zimmer examined C.G. when she arrived in the emergency room and reported she had been the victim of a sexual assault. C.G. reported the details of the assault, including Gauger saying to her, “I told you I was going to rape you one of these days,” and Zimmer documented the same. Id. at 128. Zimmer collected multiple swabs but observed no physical injuries to C.G. At the time of the examination, C.G. had eaten, drank, showered, used the restroom, and changed clothing since the assault. Subsequent forensic testing detected an insufficient amount of male DNA for further analysis.

[5] On July 24, 2024, the State charged Gauger with three counts of rape as level 3 felonies, criminal confinement as a level 6 felony, sexual battery as a level 6 felony, and invasion of privacy as a class A misdemeanor. As for the rape counts, Counts I and III alleged that Gauger “did knowingly or intentionally cause another person to perform or submit to sexual conduct ․ when such person was compelled by force.” Appellant's Appendix Volume II at 27. Count II alleged that Gauger “did knowingly or intentionally have sexual intercourse with [C.G.]: when such person was compelled by force.” Id. The State subsequently moved to dismiss the criminal confinement, sexual battery, and invasion of privacy charges. The court granted the State's motion.

[6] On December 2, 2025, the court held a jury trial on the three rape counts. At the conclusion of trial, the court read final instructions to the jury, including Final Instruction No. 6 which provided:

The crime of Rape is defined by law as follows:

A person who knowingly or intentionally causes another person to perform or submit to other sexual conduct when the other person is compelled by force commits Rape, a felony.

Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt:

1. The Defendant, Duane Gauger

2. Knowingly or intentionally

3. Had Sexual intercourse with [C.G.]

4. When [C.G.] was compelled by force

If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of Rape, a Felony, Charged in Count II.

Appellant's Appendix Volume II at 192 (emphases added).

[7] The jury found Gauger guilty of the three rape charges. On February 18, 2026, the court sentenced Gauger to an aggregate sentence of eleven years.

Discussion

[8] Gauger asserts that the trial court abused its discretion in instructing the jury on Count II, rape by sexual intercourse. We review a trial court's decision to give or refuse a jury instruction for an abuse of discretion. Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). We review jury instructions as a whole and in reference to each other. Dunn v. State, 230 N.E.3d 910, 917 (Ind. 2024) (citations and quotation marks omitted). An error is reversible only if the entire jury charge misleads the jury as to the law in the case. Id.

[9] Gauger contends that “Final Instruction No. 6 simultaneously defined Count II as rape by ‘other sexual conduct’ and rape by sexual intercourse. Because those are distinct statutory offenses, the instruction failed to provide the jury with a coherent statement of the law governing Count II.” Appellant's Brief at 12. He concedes that he did not object to the instruction and asserts that “[t]he giving of the erroneous instruction was fundamental error.” Id. (emphasis omitted).

[10] The fundamental error exception to the contemporaneous objection requirement is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)), reh'g denied. To be considered fundamental, the claimed error must make a fair trial impossible. Id. (citing Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009), reh'g denied). Thus, this exception is available only in “egregious circumstances.” Id. (citing Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)). Under fundamental error review of jury instructions, a defendant must show the entire jury charge was so misleading as to make a fair trial impossible or blatantly violate basic due process. Knapp v. State, 9 N.E.3d 1274, 1285 (Ind. 2014).

[11] Gauger correctly points out that, when referring to Count II, Final Instruction No. 6 erroneously referred to other sexual conduct in its introductory paragraph before listing the proper elements of rape by sexual intercourse. However, in addition to that partially erroneous instruction, Final Instruction No. 4 provided the charges to the jury with Count II reading, “On or About July 13, 2024, Duane Gauger did knowingly or intentionally have sexual intercourse with [C.G.]; when such person was compelled by force.” Appellant's Appendix Volume II at 189. The jury was further instructed that “[t]he term ‘sexual intercourse’ is defined by law as meaning an act that includes any penetration of the female sex organ by the male sex organ.” Id. at 192. In the State's closing argument, the prosecutor explained to the jury that Counts I and III involved “other sexual conduct,” while Count II involved “sexual intercourse.” Transcript Volume II at 230, 236. The prosecutor specifically explained that Count II was based on Gauger's penetration of C.G.’s vagina with his penis. Id. at 236. Under the circumstances, we conclude that the jury was sufficiently informed that Count II required proof of sexual intercourse and Gauger has not shown that the entire jury charge was so misleading as to make a fair trial impossible. See Dunn, 230 N.E.3d at 917 (noting that on fundamental-error review, we consider whether the statements of counsel might have clarified and corrected the jury's understanding).

[12] For the foregoing reasons, we affirm Gauger's convictions.

[13] Affirmed.

Brown, Judge.

Bailey, J., and Weissmann, J., concur.