Keith Jacob Branam v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 16 2018, 8:43 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Keith Jacob Branam, January 16, 2018
Appellant-Defendant, Court of Appeals Case No.
40A01-1703-CR-472
v. Appeal from the Jennings Circuit
Court
State of Indiana, The Honorable Jonathan W.
Appellee-Plaintiff Webster, Judge
Trial Court Cause No.
40C01-1602-F6-56, 40C01-1602-
F6-67
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 40A01-1703-CR-472 | January 16, 2018 Page 1 of 7
[1] Keith J. Branam appeals the sentences imposed in two separate causes, both
involving a level 6 felony invasion of privacy conviction. The trial court
imposed two and one-half year sentences and ordered them to be served
concurrently. On appeal, Branam contends that his sentences are inappropriate
in light of his character and the nature of the offenses.
[2] We affirm.
Facts & Procedural History
[3] Branam and his wife Kimber were both regular drug users and had a
tumultuous relationship. On July 24, 2014, the police were called to their home
due to a domestic violence report. Officers found Kimber battered and injured
and the home in disarray. Branam had thrown objects against the walls and
appliances, smashed windows, knocked a door off its hinges, and caused
substantial damage to the home during his angry tirade. Officers also found
drug paraphernalia and syringes in the bathroom of the residence. Branam was
arrested that day, and a protective order was issued to protect Kimber from
Branam.
[4] Upon his release from jail several days later, Branam violated the protective
order by moving back in with Kimber. This resulted in his eventual conviction,
on January 15, 2015, for Class A misdemeanor invasion of privacy and the
issuance of another protective order. On that date, he received a suspended
Court of Appeals of Indiana | Memorandum Decision 40A01-1703-CR-472 | January 16, 2018 Page 2 of 7
sentence and was placed on probation for eleven months. Kimber and Branam
were separated by this time, and their divorce was pending.1
[5] On January 26, 2015, the State filed charges against Branam for the July 24,
2014 incident under cause number 40C01-1501-F6-9 (Cause F6-9). The
information set out four counts: Level 6 felony unlawful possession of syringe
(Count I), Level 6 felony maintaining a common nuisance (Count II), Level 6
felony possession of paraphernalia (Count III), and Class A misdemeanor
domestic battery (Count IV).
[6] In July 2015, Branam returned to jail apparently following the revocation of his
probation in the initial invasion of privacy case. The details of his violations are
not included in the record. It is clear, however, that he was released on October
29, 2015.
[7] The following day, October 30, Branam sent a message through Facebook to
Kimber, who was now his ex-wife. Branam asked if they could talk and
indicated that he loved and missed her and was sorry. Kimber did not respond
and, instead, reported the message to the police. On November 10, he
messaged her again and inquired as to why she was not responding to his
messages or calling him. Branam asked her to call or text back soon. On
1
Branam also committed invasion of privacy on January 3, 2015, shortly after Kimber moved out, but the
State did not file charges until April 2015 and a conviction did not result until March 2016.
Court of Appeals of Indiana | Memorandum Decision 40A01-1703-CR-472 | January 16, 2018 Page 3 of 7
November 12, Branam reached out to Kimber once more via Facebook.
Kimber again went to the police to report Branam’s attempts to contact her.
[8] In February 2016, the State filed two separate criminal informations against
Branam for Level 6 felony invasion of privacy, elevated to felony charges due to
the prior conviction in January 2015. Under cause number 40C01-1602-F6-67
(Cause F6-67), the State alleged that Branam committed the offense when he
sent the October 30 message in violation of the protective order. The
allegations under cause number 40C01-1602-F6-56 (Cause F6-56) were based
on the messages sent in November.
[9] Branam entered into a plea agreement with the State to resolve the charges
pending under Causes F6-9, F6-67, and F6-56. Pursuant to the agreement,
accepted by the trial court on December 6, 2016, he pled guilty to the invasion
of privacy counts under Causes F6-67 and F6-56. With respect to Cause F6-9,
Branam pled guilty to Counts II and IV, Level 6 felony maintaining a common
nuisance and Class A misdemeanor domestic battery. The State agreed to
dismiss the remaining two counts under Cause F6-9. The agreement left
sentencing to the trial court’s discretion but mandated that the sentences for
invasion of privacy be served concurrently with each other, and the sentences
for Counts II and IV under Cause F6-9 be served concurrently with each other
but consecutive to the others.
[10] On December 22, 2016, the trial court sentenced Branam to executed terms of
two and one-half years for the invasion of privacy counts and ordered them to
Court of Appeals of Indiana | Memorandum Decision 40A01-1703-CR-472 | January 16, 2018 Page 4 of 7
be served concurrently. Under Cause F6-9, the trial court imposed concurrent
sentences of two and one-half years for maintaining a common nuisance and
one year for domestic battery, which were ordered to be served consecutive to
the sentences for invasion of privacy. On appeal, Branam challenges only the
concurrent sentences imposed in the invasion of privacy cases, Causes F6-67
and F6-56.
Discussion & Decision
[11] Branam observes that he received the maximum sentence for each of his
convictions for Level 6 felony invasion of privacy, but acknowledges that the
sentences were ordered to be served concurrently. See Ind. Code § 35-50-2-7(b)
(sentencing range for a Level 6 felony is six months to two and one-half years).
He argues that his sentences are inappropriate in light of his character and the
nature of his offenses.
[12] Although a trial court may have acted within its lawful discretion in imposing a
sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize
independent appellate review and revision of a sentence imposed by the trial
court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009) (citing Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218). This
appellate authority is implemented through Ind. Appellate Rule 7(B), which
provides that a court “may revise a sentence authorized by statute 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
Court of Appeals of Indiana | Memorandum Decision 40A01-1703-CR-472 | January 16, 2018 Page 5 of 7
offender.” Anglemyer, 868 N.E.2d at 491. Nevertheless, “we must and should
exercise deference to a trial court’s sentencing decision, both because Rule 7(B)
requires us to give ‘due consideration’ to that decision and because we
understand and recognize the unique perspective a trial court brings to its
sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App.
2007). The appellant bears the burden of persuading us that his sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[13] We agree with Branam that the nature of his multiple violations of the
protective order were not particularly aggravating. He reached out to Kimber a
few times after his release from jail and then apparently stopped contacting her.
His messages were short and rather unassuming. They were, however,
unlawful and unwelcome by his victim of domestic violence.
[14] Branam’s character, on the other hand, is particularly troubling. He has an
extensive criminal history spanning nearly twenty years, which includes
convictions for theft, burglary, operating while intoxicated, sexual misconduct
with a minor, conversion, possession of paraphernalia, and invasion of privacy.
Additionally, he has violated probation on a number of occasions. Branam’s
violent nature is reflected in the record through the photographs of the damage
done to the home and Kimber’s testimony regarding the beatings she endured.
As the trial court observed, Kimber was left with significant “emotional
wreckage” as the result of Branam’s actions. Transcript at 85. The record also
reflects a lengthy history of drug abuse. While Branam claimed at sentencing to
be drug free, employed, and in a healthy relationship, his history suggests this
Court of Appeals of Indiana | Memorandum Decision 40A01-1703-CR-472 | January 16, 2018 Page 6 of 7
status might be fleeting. Indeed, the trial court noted that Branam had a high
risk to reoffend.
[15] After considering Branam’s character and the nature of his offenses, we cannot
agree that his concurrent, two and one-half year sentences are inappropriate.
[16] Judgment affirmed.
Baker, J. and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 40A01-1703-CR-472 | January 16, 2018 Page 7 of 7