Opinion
24A-CR-757
10-23-2024
Jason Keith Brown, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Dubois Circuit Court The Honorable Daniel S. Murrie, Special Judge Trial Court Cause No. 19C01-2211-F5-1099
ATTORNEY FOR APPELLANT
Cara Schaefer Wieneke
Wieneke Law Office, LLC
Brooklyn, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Indianapolis, Indiana
Jennifer Anwarzai
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
May, Judge.
[¶1] Jason Keith Brown appeals the sentence imposed after he was convicted of twelve counts of Class A misdemeanor invasion of privacy. Brown argues his sentence is inappropriate in light of the nature of his offenses and his character. We affirm.
Facts and Procedural History
[¶2] Brown and D.S. met in September 2021 and began dating. In April 2022, the relationship ended, and D.S. asked Brown to stop contacting her for at least two weeks. Brown did not honor her request and contacted D.S. through email and text messages, sending as many as thirty messages in one day. Over the next two months, D.S. estimated that she asked Brown to stop contacting her up to a hundred times. (Tr. Vol. II at 48). However, Brown continued to contact D.S. and try to reconcile the relationship. Brown's messages indicated he believed that he and D.S. were "twin flames, we needed to be together - that we were soul mates - he knows God, God was working in him, we would be together some day." (Id. at 49.) These messages "were disturbing to" D.S. (Id.) She attempted to prohibit Brown's communication by blocking his email, phone number, and social media accounts, but Brown changed his email address and continued to email and call D.S.
[¶3] Around July 5, 2022, Brown messaged D.S. from his vacation destination to say: "let's give it one more try, here is the gate code, here is the code to the door - don't have to message me back, just go ahead and show up[.]" (Id. at 50.) He also called D.S. from a phone number she did not recognize, and she immediately blocked the number. Soon thereafter, D.S. filed for a protective order against Brown. A trial court held a hearing on August 8, 2022, at which D.S. read to the court much of the correspondence that she had received from Brown. The trial court issued a protective order for two years. Both D.S. and Brown were present at the hearing when the judge read aloud the provisions of the protective order, which prohibited Brown from contacting D.S. in any way, including direct or indirect communication.
[¶4] On August 12, 2022, Brown emailed D.S. twice, first stating the "restraining order" was "bs," and five minutes later suggesting she had lied under oath during the protective order hearing. (Exhibit Vol. I at 9-10.) D.S. did not respond to Brown's emails, but she forwarded them to the police. The State charged Brown with invasion of privacy for emails sent on August 12, 2022.
[¶5] Brown then sent another slew of emails to D.S. on September 30 and October 1, 2022. The first email from Brown, which was sent at 9:57 p.m. stated:
I can't keep doing this keep banging the world kill me but if you report me again you will face federal charges you shouldn't ruin your life to protect punk ass spoiled kids that have no have no docking clue what life is really about God brought us together for us read but I'm completely done with this bullshit do your job as a mom or move on and let me as well I'm kinda hating you at
this point i absolutely will se d you to prison at this point play me I Dickinson g dare you(Id. at 11) (errors in original). Seven minutes later, Brown sent another email with an attached video that Brown claimed had played "immediately" after he had sent her the other email. (Id. at 12.) Thirty minutes later, Brown sent a third message that asked D.S. if they could "start firm a first date perspective?'let's go again and be the best we can be[.]" (Id. at 13) (errors in original). Eight minutes later, Brown sent a fourth message in which Brown indicated he was drunk and said "please don't send me to jail[.]" (Id. at 14.) Thirteen minutes later, Brown sent a fifth message that had a subject line of "Love of my life" and said:
Look I'm seriously sorry this entire journey is my fault but we both had lessons to learn if you sent me back to four I get it but by I've been dreaming of you as a child please give me a Chance[.](Id. at 15) (errors in original). A sixth message, sent by Brown at five hours later at 3:46 a.m. on October 1 had a subject line of "So so sorry" and said:
I was very drunk and got a low moment I said I'd never reach out again I really am better I really wish you the best I know you hate me probably worse now I'll delete this email and be gone forever[.](Id. at 16) (errors in original). D.S. again did not respond to Brown's emails, but she forwarded them to the police. The State filed additional misdemeanor invasion of privacy charges against Brown for these emails.
[¶6] Then, between November 12 and 13, Brown sent another five messages to D.S. The first had a subject line of "breaking free of the chains" and said:
Hey I love you more than anything in the world I'm fighting for us. Period do not let them bully you or scare you I'm pressing charges against all of them and I've told them multiple time I'm signing a do not prosecute for for you I will not allow thme to prosecute you Gods got this he brought us together you know this by now I know all the names and have all the evidence and proof I need period they can't stop me they just won't stop spinning their wheels if I catches charges over this I'll beat them also. But if they're monitoring your emails that's true invasion of privacy and illegal. I love you with all my heart and truly forgive you and all involved I hope to hear from you soon I wanna spend thanksgiving with y'all and I wanna marry you one day I truly believe you feel the same way I hope all is well. DYI tuck them all lol(Id. at 17) (errors in original). The second email, which was sent four minutes later, said: "They even told me they can not tell you not reach out to me or ask about you're allowed to it's completely legal and they'd be dumb as fuck. To fuck with me at this point straight facts all[.]" (Id. at 18) (errors in original).
The next morning, Brown forwarded to D.S. a message he had allegedly sent to someone in the legal system about his upcoming hearing, in which he had requested court minutes, jail footage, and body camera footage and asserted:
I highly advise not denying me my rights again because I will be hiring multiple lawyers this time for the trail. I'll have plenty of money I after yesterday I've signed 3 deals so far working many others literally worth millions.(Id. at 19) (errors in original). Brown then added a personal note to D.S. that said:
I literally just sent them this I love you so much Gods got this I know I won't hear from you until this is over just understand as long as you haven't been with anyone during our separation. And you promise to never cheat on me or lie again I'll be right here waiting for you. Fyi I miss you so much(Id.) (errors in original). Just over two minutes later, Brown emailed: "So something God just showed me I don't believe they're watching this email [wink emoji] [smile emoji] I love you [kiss emoji][.]" (Id. at 20). Fifteen minutes later, Brown again emailed D.S.: "After I sent them that email they tried changing my time [three laugh emojis] so I'm ducking getting there at 9 to see Danielle my pretrial lasy ducking cock suckers [three laugh emojis][.]" (Id. at 21) (errors in original).
[¶7] On November 14, 2022, the State dismissed Brown's two pending cases of misdemeanor invasion of privacy, condensing all the charges into the case at issue. The State charged Brown with Level 5 felony stalking, Level 6 felony stalking, and twelve counts of Class A misdemeanor invasion of privacy. The trial court held a jury trial beginning March 20, 2024. On direct examination, D.S. testified as follows:
Ind. Code § 34-45-10-5(a).
Q. Why were these emails -- of concern to you?
A. -- Any time that I received any communication from [Brown], it really just made me uneasy -- fearful, terrified, because he would not listen to me when I told him to leave me alone. I did not want any communication with him. I stated that. I was very clear about that, and he would not stop. I didn't know to what extent he would go to to try to communicate with me because I was not responding to the forms of communication that he was sending. So -- it affected me that way because I was scared not knowing what he would do next.
* * * * *
Q. ... can you elaborate a little bit more on -- on how -- how these communications were impacting and affecting you?
A. -- I -- I just wanted to be able to move forward. I didn't want to have communication with him anymore, so any time that I received anything, it just brought me back to having to deal with it again. I -- I did a lot since the protection order and had to change like my day to day of how I had to live because I was literally frightened that he was just gonna show up. So, I mean, I would do things by take a different route to work all the time, try not to be at the same places at the same time, I got a security camera, I -- bought personal protection, I -- I would just do things to try to protect myself in case I had run into him cause I didn't know to what extent he would go to.
Q. Did you -- did you have concerns about being in your own home?
A. Yes, absolutely, because, I mean, he knew where I lived. He stayed there on occasion. -- I'm a single mom and sometimes I was home by myself, and my kids weren't there.
Q. The content of -- of the emails that the defendant sent to you, some of them make direct statements about getting back together, getting married, what about those statements -concerned you or impacted you -- made you -- contribute to some of these other feelings?
A. I mean, I broke up with him. I no longer wanted to continue to have a relationship with him. I never, after we broke up, told him that I wanted to get back together. I wasn't respond -- responding to him whatsoever -- since even right before the PO was initiated. I don't understand why he had in his mind that we would get back together and have a relationship. I never alluded to that. And to me, that scared me.
Q. Why did that in particular scare you?
A. -- Because I was not giving him anything that we would ever reconcile and have a relationship withat that together. -And I don't know how he could feel that way when I made it clear that I did not want that.
Q. Did this have any impact on your -- your mental health?
A. Yes. I -- have a lot of anxiety since this -- that I did not have before.(Tr. Vol. 2 at 71-73.) D.S. explained the anxiety left her "[n]ot feeling safe in my home, not being able to sleep, jumping at every sound when my security cameras went off . . . consistently checking, locking doors, checking behind me, looking over my shoulder every where I went ...." (Id. at 73) (error in original). The jury found Brown guilty of twelve counts of misdemeanor invasion of privacy. The jury did not reach a verdict on the Level 5 felony stalking or Level 6 felony stalking charges, which the State dismissed prior to sentencing.
[¶8] On March 22, 2024, the trial court held a sentencing hearing, during which D.S. testified:
Your Honor, my name is [D.S.]. I am here before you today to share the profound impact that Jason Brown's action has had in my life and the lives of my children, family and friends. For the past almost two years, despite a protection order, he has persistently contacted me with unwanted messages through various channels, emails, texts and social media. His relentless pursuit of contact has taken a significant toll on my health and my well-being, both physically, emotionally and financially. Every message, every attempt of his to reach out serves as a reminder of the fear and anxiety that have dominated many days and sleepless nights. The protection order was not a suggestion, but a legal mandate intended to safeguard my well-being. Yet Jason chose to disregard it, demonstrating a blatant disregard for the law. Even with this verdict, I have immense concerns for my safety, my family's safety, and further violations as he's proven time and time again that he has no self-control when it comes to contacting me. The only way he doesn't contact me is when he is behind bars. Jason must understand that his actions have in -inflicted irreparable harm upon me. A constant state of apprehension has replaced the safety and peace of mind that I once took for granted. His repeated violations of the protection order have forced me to live in a perpetual state of fear. The actions outlined in this trial are not the end of my story. They are just a sampling of what Jason has put me through and has
continued to do through all of 2023. But those were not part of these proceedings. Despite his assertions to the contrary, there is no conspiracy against Jason. No one in the Dubois County Sheriff's Department, the courthouse, the prosecutor's office, anywhere in Dubois County is out to get him as he constantly blasts all over social media.... the truth is that the consequences he faces today are a direct result of his own choices and actions. He had one simple task from the protection order, to have no contact with me. Instead, he chose to test those boundaries of the law. He (Inaudible) at the consequences. To make it unmistakenly clear -- I want to make it unmistakenly clear to Jason that I have moved on from our past relationship. There will never be a place for him in my life, now or in the future.... So, Your Honor, I implore you to consider the full extent of Jason's actions, their profound impact in my life. Justice demands accountability ....(Id. at 141-42.) The trial court found six aggravating factors: (1) The harm, injury, loss, or damage suffered by the victim was significant and greater than the elements necessary to prove the conviction; (2) Brown had a history of delinquent or criminal behavior due to "the existence of a pending charge at least twice" (Tr. Vol. II at 153); (3) Brown violated the conditions of bond; (4) Brown violated the conditions of pretrial release; (5) Brown would not benefit from probation or short-term imprisonment; and (6) The crimes were the result of circumstances that are likely to recur. The court found no mitigating circumstances. The trial court imposed a 360-day sentence for each count of Class A misdemeanor invasion of privacy. The court ordered counts 1 through 10 served consecutive to one another, and it ordered counts 11 and 12 served concurrent to one another but consecutive to counts 1 through 10. Thus, the court imposed a cumulative sentence of 3,960 days. The court suspended 1,800 days of the sentence to probation. Brown must also pay a fine of $5,000 by the end of his probation.
Discussion and Decision
[¶9] Brown argues his sentence is inappropriate. Under Indiana Appellate Rule 7(B), a sentence may be revised if, "after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Ind.App. Rule 7(B). Sentencing is a function of the trial court, whose judgment "should receive considerable deference." Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023). This deference can only be overcome by "compelling evidence portraying in a positive light the nature of the offense and the defendant's character." Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024). Appellate review of a sentence is "to leaven outliers, . . . but not to achieve the perceived 'correct' result in each case." Nicholson v. State, 221 N.E.3d 680, 684 (Ind.Ct.App. 2023), trans. denied. The burden of proving a sentence is inappropriate falls to the defendant. Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind.Ct.App. 2023), trans. denied.
[¶10] The "'advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed.'" Denham v. State, 142 N.E.3d 514, 516 (Ind.Ct.App. 2020) (quoting Connor v. State, 58 N.E.3d 215, 220 (Ind.Ct.App. 2016)), trans. denied. The maximum sentence for a Class A misdemeanor is one year. Ind. Code § 35-50-3-2. The court imposed a 360-day sentence for each count. Counts 1 through 10 are all to be served consecutively, while counts 11 and 12 are to be served concurrent to one another but consecutive to counts 1 through 10. This results in a cumulative sentence of 3,960 days, which is 420 days less than the maximum possible sentence that could have been imposed.
[¶11] Evaluating the nature of an offense involves considering "the details and circumstances of the crime and the defendant's participation therein." Littlefield, 215 N.E.3d at 1089. This analysis "compares the defendant's actions with the required showing to sustain a conviction under the charged offense." Webb v. State, 149 N.E.3d 1234, 1241 (Ind.Ct.App. 2020). "We assess a sentence in light of the whole picture before us." Lane, 232 N.E.3d at 127.
[¶12] Brown argues the nature of his offenses did not demonstrate that he was a danger to D.S. or to the public. He claims the lack of physical threats or violence in his communications should support a reduced sentence. However, D.S. testified at trial and at sentencing about the psychological harm she had endured, and continues to experience, because of his actions. While Brown's message on October 1, in which he apologized for contacting D.S., seemed grounded in reality, the remainder of the messages suggest Brown was becoming more and more detached from reality and could potentially be dangerous. Brown violated the protective order on multiple occasions, including two occasions resulting in the filing of additional charges during the adjudication of this case. While "a letter is not the most intrusive way of violating a no-contact order," Lane, 232 N.E.3d at 127-28, "the lack of physical harm . . . does not minimize the horrendous nature of his crimes." Eisert v. State, 102 N.E.3d 330, 224 (Ind.Ct.App. 2018), trans. denied. Moreover, danger to the victim or to the public is not a required element for the crime, see Ind. Code § 35-46-1-15.1(a)(1) (elements of Class A misdemeanor invasion of privacy), and we thus reject it as a reason to adjust Brown's sentence. See Phipps v. State, 90 N.E.3d 1190, 1198-99 (Ind. 2018) (imposition of the maximum sentence following conviction of felony invasion of privacy was not inappropriate even though the communication did not include threats of physical violence). We therefore hold Brown's sentence is not inappropriate in light of the nature of his offense. See, e.g., Carroll v. State, 922 N.E.2d 755, 758 (Ind.Ct.App. 2010) (the conviction of multiple misdemeanors implies the infliction of multiple injuries, which may justify the imposition of consecutive sentences), trans. denied.
In January 2023, the State charged Brown with misdemeanor harassment under cause number 19C01-2301-CM-000027, and again in January 2024, the State charged Brown with Class A misdemeanor invasion of privacy in cause number 19C01-2312-CM-001470. (Appellant's App. Vol. II at 78, 145.)
Brown attempts to distinguish his case from Lane, 232 N.E.3d 119, wherein our Indiana Supreme Court affirmed the eight-year sentence of an abusive ex-husband who committed ten counts of misdemeanor invasion of privacy by sending letters in violation of a no-contact order. (See Appellant's Br. at 8-9.) Brown suggests his crimes are not as bad as Lane's crimes because Lane had a lengthy and violent criminal history and had physically abused his wife, while Brown is not a "continuing danger to his ex-girlfriend or to society at large." (Id. at 9.) However, like Lane, Brown shows little respect for the justice system by repeatedly violating orders to cease communication and little respect for the wishes of D.S., who repeatedly asked him to stop contacting her. Any other factual distinctions between Brown and Lane are inadequate to convince us that Brown's sentence is inappropriate.
[¶13] Evaluating the character of the offender allows for a broader consideration of a defendant's qualities. McFarland v. State, 153 N.E.3d 369, 374 (Ind.Ct.App. 2020), trans. denied. This can include a person's age, family, relationships, work history, and positive influence on the community. Hall v. State, 231 N.E.3d 868, 877 (Ind.Ct.App. 2024), trans. denied. The court may also consider personal traits, examples of good character, and the defendant's criminal history. Prince v. State, 148 N.E.3d 1171, 1174 (Ind.Ct.App. 2020).
[¶14] Brown contends his remorse during the sentencing hearing and his lack of criminal history demonstrate his lengthy sentence is inappropriate. During the sentencing hearing, Brown apologized for his actions and claimed to have learned from his experience. However, the State presented evidence to the contrary - a recording of a jail call Brown had made the previous evening saying D.S. was dishonest while on the stand and claiming her testimony was "bullshit." (Electronic Exhibit Index (Sentencing Exhibit - Jail Calls), 091221 at 1:52.) This evidence does not support Brown's contention that his remorse merits a lesser sentence. Instead, it demonstrates his continued disrespect for the judicial process and for the impact his actions have had on the victim. Therefore, the remorse demonstrated during the sentencing hearing does not warrant sentence revision. See, e.g., Mitchell v. State, 184 N.E.3d 705, 709 (Ind.Ct.App. 2022) (determining defendant's alleged remorse was not "sufficient justification to impose a lesser sentence").
[¶15] Brown also argues his lack of criminal history warrants a downward sentence revision. However, as the trial court also noted, Brown violated his conditions of pretrial release and bond by continuing to contact D.S. Brown's continuing behavior in violation of the court's order suggests he is likely to commit another crime. We agree with the trial court's assessment that Brown's behavior is "a stunning deviation from what society expects of its citizens." (Tr. Vol. II at 154.)
[¶16] We are not persuaded that Brown's remorse or criminal history makes his sentence inappropriate. Brown has not provided "compelling evidence" to support sentence revision. Lane, 232 N.E.3d at 122. Therefore, Brown has not demonstrated his sentence was inappropriate based on his character. See Eisert, 102 N.E.3d at 335 (affirming sentence in part because repeated violations of pre-trial release and court orders "does not suggest [defendant] is a person who respects the law or the court's authority" despite lack of criminal convictions).
Conclusion
[¶17] Brown's sentence is not inappropriate in light of the nature of his offenses or his character. Accordingly, we affirm the judgment of the trial court.
[¶18] Affirmed.
Brown, J., and Pyle, J., concur.