Opinion
24A-CR-363
08-26-2024
Timothy A. Snell, III, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Riley L. Parr Lebanon, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Jodi Kathryn Stein Deputy Attorney General Savannah L. Mundy Certified Legal Intern 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Boone Circuit Court The Honorable Lori N. Schein, Judge Trial Court Cause Nos. 06C01-2311-F6-2163 06C01-2307-F6-1405
ATTORNEY FOR APPELLANT Riley L. Parr Lebanon, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Jodi Kathryn Stein Deputy Attorney General Savannah L. Mundy Certified Legal Intern Indianapolis, Indiana
MEMORANDUM DECISION
Brown, Judge
[¶1] Timothy A. Snell, III, appeals his sentence for one count of intimidation and six counts of invasion of privacy as level 6 felonies. We affirm.
Facts and Procedural History
[¶2] On July 3, 2023, Snell communicated a threat to commit a forcible felony to Kylee Thurston with the intent that she be placed in fear that the threat would be carried out. On July 20, 2023, the State charged Snell with intimidation as a level 6 felony under cause number 06C01-2307-F6-1405 ("Cause No. 1405"). On September 15, 2023, the trial court issued a no contact order providing that Snell have no contact with Thurston in person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly. In November 2023, the State charged Snell with six counts of invasion of privacy as level 6 felonies under cause number 06C01-2311-F6-2163 ("Cause No. 2163") for knowingly violating the no contact order.
The charging information alleged that Snell violated the no contact order on September 22, 23, 24, 25, and 29 and October 2, 2023. The probable cause affidavit filed in Cause No. 2163 states that Snell made 701 phone calls from jail to Thurston between September 16 and October 18, 2023.
[¶3] In December 2023, the court held a hearing at which Snell pled guilty to all counts under Cause Nos. 1405 and 2163. Thurston testified that, as a result of phone calls from Snell, she lost her job. She testified that she made it clear to Snell, especially after losing her job, that she did not want to have contact. She indicated that she changed her phone number and had her number blocked from the jail. She testified "[i]t's really scary because when he is angry, or he's drunk, or he's high he makes threats . . . and call you and tell you that you are an awful person, such a whore, and the awful things that he would love to do to you" and it "hurts . . . [t]o know the person that you love more than anything could possibly take your life because of a thing he convinced himself of." Supplemental Transcript Volume II at 14. She testified: "I am terrified of him. I am scared for my kids when he's in the room. Terrified for my kids when he's drunk." Id. at 15. She indicated that she and both of her children were in therapy. She stated "you think my kids don't hear the response to 'you're a f---ing whore, you're a f---ing b, you're nothing, you're an awful mom,'" and "[d]o you think they don't get to hear mom crying in the bathroom about it," and Snell stated "[y]ou know I don't mean it." Id. at 16. Snell admitted "I broke the law and knew I was breaking the law." Id. at 18.
[¶4] At sentencing, Snell's counsel referred to Ind. Code § 35-50-1-2 and argued, with respect to the invasion of privacy convictions, "I certainly believe this behavior qualifies, given he was at the jail, numerous phone calls, days in a row, so I believe that this is an episode of criminal conduct under this statute." Transcript Volume II at 13. The prosecutor argued "[e]very single one of these was on a separate day." Id. at 15. The court found that Snell's six convictions under Cause No. 2163 did not constitute a single episode of criminal conduct. The court did not find any mitigating circumstances and found the aggravating circumstances included his criminal record, the fact he was on probation at the time of the offenses, and the harm suffered by the victim as she lost her job and she and her children are in therapy. The court sentenced Snell to two years for his conviction in Cause No. 1405 and ordered that he serve the sentence consecutive to the sentence in Cause No. 2163. It sentenced him to two years for each of his six convictions under Cause No. 2163 and ordered that he serve the sentences consecutive to each other. The court stated that, after he served four actual years under Cause No. 2163, he may request a modification of his sentence or placement.
Discussion
[¶5] Snell asserts that his invasion of privacy offenses constituted a single episode of criminal conduct and that his sentence is inappropriate. As for the trial court's authority to impose consecutive sentences, Ind. Code § 35-50-1-2 provides:
(c) Except as provided in subsection (e) or (f) the court shall determine whether terms of imprisonment shall be served concurrently or consecutively. The court may consider the:
(1) aggravating circumstances in IC 35-38-1-7.1(a); and
(2) mitigating circumstances in IC 35-38-1-7.1(b);
in making a determination under this subsection. The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10 (before its repeal) to which the defendant is sentenced for felony
convictions arising out of an episode of criminal conduct shall not exceed the period described in subsection (d).
(d) Except as provided in subsection (c), the total of the consecutive terms of imprisonment to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct may not exceed the following:
(1) If the most serious crime for which the defendant is sentenced is a Level 6 felony, the total of the consecutive terms of imprisonment may not exceed four (4) years.
Ind. Code § 35-50-1-2(a) includes a list of offenses which constitute a "crime of violence," and the offense of invasion of privacy is not included in the list.
[¶6] Whether certain offenses constitute a single episode of criminal conduct is a fact-intensive inquiry to be determined by the trial court. Grimes v. State, 84 N.E.3d 635, 643 (Ind.Ct.App. 2017), trans. denied. An "episode of criminal conduct" means "offenses or a connected series of offenses that are closely related in time, place, and circumstance." Ind. Code § 35-50-1-2(b).
In determining whether multiple offenses constitute an episode of criminal conduct, the focus is on the timing of the offenses and the simultaneous and contemporaneous nature, if any, of the crimes. Additional guidance on the question can be obtained by considering whether the alleged conduct was so closely related in time, place, and circumstance that a complete account of one charge cannot be related without referring to the details of the other charge.Grimes, 84 N.E.3d at 643 (citation and brackets omitted).
[¶7] The invasion of privacy offenses for which Snell was convicted did not take place on the same day. Snell contacted Thurston on six different days in September and October 2023. We cannot say that Snell's invasion of privacy offenses constituted a single episode of criminal conduct.
[¶8] Ind. Appellate Rule 7(B) provides that we "may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender." The burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall be imprisoned for a fixed term of between six months and two and one-half years with the advisory sentence being one year.
[¶9] Our review of the nature of the offenses reveals that Snell communicated a threat to commit a forcible felony to Thurston with the intent that she be placed in fear that the threat would be carried out. He later knowingly violated the court's no contact order on six different days. Thurston lost her job as a result of Snell's calls. She changed her phone number and had her number blocked from the jail. She is terrified of him, and she and her children are in therapy.
[¶10] Our review of Snell's character reveals that he pled guilty to intimidation as a level 6 felony in Cause No. 1405 and six counts of invasion of privacy as level 6 felonies in Cause No. 2163. The presentence investigation report ("PSI") states that Snell was born in March 1994 and had juvenile adjudications for criminal mischief, two counts of illegal possession of an alcoholic beverage, and theft. The PSI indicates Snell has prior felony convictions for resisting law enforcement as a class A misdemeanor in 2012; battery by bodily waste as a class D felony in 2013; two counts of illegal consumption of an alcoholic beverage as class C misdemeanors in 2014; possession of a synthetic drug or synthetic drug look alike and two counts of theft as class A misdemeanors, public intoxication as a class B misdemeanor, and armed robbery as a level 5 felony in 2015; intimidation as a level 6 felony and two counts of battery resulting in bodily injury as class A misdemeanors in 2016; theft as a level 6 felony in 2017; intimidation and escape as level 6 felonies and two counts of resisting law enforcement as class A misdemeanors in 2020; and battery by bodily waste, battery resulting in moderate bodily injury, and battery against a public safety official as level 6 felonies in 2022. The PSI indicates that Snell violated the terms of his probation on several occasions. It also states he has a pending case in Marion County for invasion of privacy and harassment.
[¶11] Snell reported that he had been expelled twice from school for "drinking, drugs, skipping, and trouble with the law." Appellant's Appendix Volume II at 72. He reported being diagnosed with PTSD, Bipolar Disorder, and Borderline Personality Disorder. He became a regular user of alcohol at age fourteen and a regular user of marijuana at age thirteen and was often a daily user. He reported trying amphetamines and benzodiazepines at age fourteen and opiates at age fifteen and that, "once he tried those substances, he became an everyday user and would use multiple times a day." Id. at 73. He stated that his longest period of sobriety was eighteen months and that he resided at sober living facilities in 2021 and 2022. The PSI also indicates that Snell's overall risk assessment score using the Indiana risk assessment tool places him in the very high risk to reoffend category. After due consideration, we conclude that Snell has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offenses and his character.
[¶12] For the foregoing reasons, we affirm Snell's sentence.
[¶13] Affirmed.
May, J., and Pyle, J., concur.