Darrell Warren v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 14 2012, 8:50 am
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
court of appeals and
collateral estoppel, or the law of the case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL FRISCHKORN GREGORY F. ZOELLER
Fortville, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DARRELL WARREN, )
)
Appellant-Defendant, )
)
vs. ) No. 29A02-1112-CR-1198
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable William J. Hughes, Judge
Cause No. 29D03-1106-FD-9832
June 14, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Darrell Warren (Warren), appeals his sentence for invasion
of privacy, a Class D felony, Ind. Code § 35-46-1-15.1.
We affirm.
ISSUE
Warren raises one issue on appeal which we restate as: Whether Warren’s
sentence is inappropriate in light of the nature of the offense and his character.
FACTS AND PROCEDURAL HISTORY
On June 23, 2011, Warren went to the home of Erin Giacoma (Giacoma), the
daughter of Cathleen Johnson (Johnson). Johnson was living at Giacoma’s home along
with Giacoma’s children and boyfriend. At that time Johnson had a no-contact order in
effect against Warren. Warren recently had an operation on his shoulder and Giacoma, a
nurse, offered to look at the wound and change his bandages. When Warren arrived at
Giacoma’s home, Giacoma was not there and Johnson was sitting on the front porch
cooking on the grill. Warren was scheduled to be sentenced the next day on an unrelated
invasion of privacy conviction involving Johnson as the victim and was concerned about
his upcoming sentence. Warren began talking to Johnson and attempted to persuade her
to go to court and testify on his behalf and try and get him out of the charges. Johnson
refused and stated that, “if [she] went to court that [she] would be telling the truth and
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would not lie.” (Transcript p. 107). Warren became angry and struck Johnson in the
nose and threatened her.
On June 24, 2011, the State filed an Information charging Warren with Count I,
battery, a class A misdemeanor, I.C. § 35-42-2-1(A)(1)(a); Count II, intimidation, a class
D felony, I.C. § 35-45-2-1; Count III, invasion of privacy, a class A misdemeanor, I.C. §
35-46-1-15.1; Count IV, criminal trespass, a class A misdemeanor, I.C. § 35-43-2-2;
Count V, invasion of privacy with prior conviction, a class D felony, I.C. § 35-46-1-15.1,
and Count VI, battery resulting in bodily injury with prior conviction, a class D felony,
I.C. § 35-42-2-1(a). On November 22, 2011, a bifurcated jury trial was held. The trial
court granted Warren’s motion for judgment on the evidence as to Count IV. The jury
found Warren not guilty of Counts I and II, but guilty of Count III. Warren stipulated to
the allegations of Count V and the trial court dismissed Count VI. During the sentencing
hearing on December 16, 2011, the trial court merged Count III into Count V and gave
Warren an executed sentence of seven hundred thirty days at the Department of
Correction.
Warren now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Warren contends that his sentence of seven hundred thirty days incarceration for
invasion of privacy, a class D felony, against Johnson is not appropriate in light of the
nature of the offense and the character of the offender. A person who commits a class D
felony shall be imprisoned for a fixed term of between six months and three years, with
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the advisory sentence being one and one-half years. I.C. § 35-50-2-7(a). Here the trial
court imposed six months greater than the advisory sentence.
Sentences within the statutory range are subject to review only for an abuse of
discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), aff’d on reh’g, 875
N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if the decision is clearly against
the logic and effect of the facts and circumstances before the court, or the reasonable,
probable, and actual deductions to be drawn therefrom. Id. However, this 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 offender. Ind. Appellate Rule 7(B). The defendant bears
the burden of persuading this court that his sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
With respect to the nature of his crime, Warren argues his sentence of seven
hundred thirty days is excessive because his reason for contacting Johnson was innocent
and without intent to terrorize or frighten her. Rather, Warren claims he only intended to
get his shoulder looked at by Giacoma. We disagree. While arriving at Giacoma’s home
might have been innocent, his approach of Johnson clearly was not. He attempted to
persuade Johnson to change her testimony in an upcoming court proceeding and became
angry and physically violent when she refused. The current invasion of privacy charge
was committed when Warren was out on bond awaiting sentencing for having violated
the same no-contact order previously.
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We reach a similar conclusion when reviewing his character. Warren argues his
sentence is excessive because Johnson played a large part in facilitating the contact in
violation of a court order. However, Warren has a substantial history of various criminal
convictions including seven for invasion of privacy. Many of these invasion of privacy
convictions involved Johnson as the victim. Warren ignored a no-contact order by
making contact with Johnson on this occasion and his repeated offenses demonstrate his
conscious disregard for the legal restrictions imposed upon him. Furthermore, Johnson
testified Warren physically struck her in the nose and threatened to find her at work if she
did not cooperate. Based on the evidence before us, we conclude that Warren’s sentence
is appropriate and affirm the trial court’s imposition of a seven hundred thirty day
sentence.
CONCLUSION
Based on the foregoing, we conclude Warren’s sentence of seven hundred thirty
days was not inappropriate in light of his character and the nature of the crime.
Affirmed.
NAJAM, J. and DARDEN, J. concur
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