Daniel M. Krum v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 23 2020, 9:48 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kyle E. Cray Curtis T. Hill, Jr.
Bennett Boehning & Clary LLP Attorney General of Indiana
Lafayette, Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel M. Krum, September 23, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-115
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Kristen E. McVey,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D05-1901-F6-22
Pyle, Judge.
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Statement of the Case
[1] Daniel Krum (“Krum”) appeals the sentence imposed after he was convicted in
a bench trial of: (1) Class B misdemeanor harassment;1 (2) three counts of Class
A misdemeanor invasion of privacy;2 and (3) Level 6 felony invasion of
privacy.3 He specifically argues that the trial court abused its discretion in
sentencing him because it declined to consider his mental health to be a
mitigating factor. Finding no abuse of the trial court’s discretion, we affirm
Krum’s sentence.
[2] We affirm.
Issue
Whether the trial court abused its discretion in sentencing Krum.
Facts
[3] In January 2017, the trial court issued a protective order (“the Protective
Order”) that “prohibited [Krum] from harassing, annoying, telephoning,
contacting, or directly or indirectly communicating with [the victim, (“the
1
IND. CODE § 35-45-2-2(a)(2).
2
I.C. § 35-46-1-15.1.
3
I.C. § 35-46-1-15.1.
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Victim”) who is the mother of his two children].”4 (Ex. Vol. 2 at 60). The day
that Krum was served with the Protective Order, Krum telephoned the Victim
and left three voicemails that were unrelated to parenting time with their
daughter. In one of the voicemails, Krum stated, in relevant part, as follows:
Hey, it’s me Dan Krum, and I have to say are you fucking
serious. Really? This is not a game, everyone loses. You need
to get some fucking help now, I care about you so much that I
want to help you, but you need to go get some help. Convincing
[our son] to sign this restraining order against me, fuck you. You
are fucked up and you need help. I’ve helped you more than
anyone else in your life and you do not give a fuck about me[.]
You have no clue that you need to change and when you get old
you will be miserable by your fucking self and dying lonely. I
will not so I tried as hard as I could. Un-fucking believable
restraining order with like special shit, wow. Un-fucking
believable.
(Tr. Vol. 2 at 35-36).
[4] Krum continued to violate the Protective Order in February, March, and May
2017 by texting the Victim, telephoning her, and leaving her similar voicemails.
The texts and voicemails were unrelated to parenting time with their daughter.
For example, in February 2017, Krum left another voicemail that provides, in
relevant part, as follows:
4
Krum was allowed to text the victim regarding parenting time with their daughter. Krum and the victim
also have an adult son.
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Yes – no contact by phone, cannot talk to any of your family
members, I’m trespassed from your residence and your complex.
And (inaudible) and the school. Really? You record everything I
say, but again its’s not a game at all. All I want is to take care of
this in a peaceful manner but you don’t even want to talk to me
and you coerced [our son] into whatever he did. So are you
really happy in your life? Do you really imagine that jail is going
to bother me? It won’t. So, when [our children] figure out what
the fucking problem is, I’m sorry for you[.] Everything I did for
you is because I care about you and you treated me like shit. All
you wanted was a daughter, you don’t give one fuck about [our
son]. I was helping him and you didn’t like it. You could not
even fucking communicate so you are the one that has the
problem. My location is on if you want . . the cops to come and
arrest me now.
(Tr. Vol. 2 at 42-43).
[5] In January 2019, the State charged Krum with the following nine counts: (1)
Class B misdemeanor harassment for communicating with the victim with the
intent to harass, annoy, or alarm her in January 2017 before the Protective
Order was issued; (2) Class A misdemeanor invasion of privacy for violating the
Protective Order in January 2017; (3) Class A misdemeanor invasion of privacy
for violating the Protective Order in February 2017; (4) Class A misdemeanor
invasion of privacy for violating the Protective Order in March 2017; (5) Class
A misdemeanor invasion of privacy for violating the Protective Order in May
2017; (6) Level 6 felony invasion of privacy for violating the Protective Order in
January 2017 while having a prior unrelated conviction for invasion of privacy;
(7) Level 6 felony invasion of privacy for violating the Protective Order in
February 2017 while having a prior unrelated conviction for invasion of
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privacy; (8) Level 6 felony invasion of privacy for violating the Protective Order
in March 2017 while having a prior unrelated conviction for invasion of
privacy; and (9) Level 6 felony invasion of privacy for violating the Protective
Order in May 2017 while having a prior unrelated conviction for invasion of
privacy.
[6] In April 2019, Krum filed a motion requesting that the trial court appoint two
psychiatrists or psychologists to examine him and evaluate his competency to
stand trial. The trial court granted the motion in May 2019 and appointed Dr.
Sean Samuels (“Dr. Samuels”) and Dr. Aaron Kivisto (“Dr. Kivisto”), both
psychologists, to examine Krum.
[7] In November 2019, after both psychologists had examined Krum, the trial court
held a competency hearing. Dr. Samuels, who used a standardized semi-
structured interview approach to assess Krum’s competency, concluded that
Krum was competent to stand trial. Dr. Samuels specifically found that Krum
was able to factually and rationally understand the legal proceedings and was
capable of assisting his defense counsel. Dr. Samuels further explained as
follows during direct examination:
[Krum] initially presented . . . being verbally aggressive, irritated
and continued to maintain that tone when he discussed the
charges against him[.] Having said that, after probably forty-five
minutes of cathartic expression, he was able to calm down, stay
focused, and answer questions. By the end of our time
together[,] he was showing me pictures of several of the cars that
he’s restored and he’s very proud of that.
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(Supp. Tr. 26).
[8] In his written report, Dr. Samuels further explained as follows:
Historical information indicates Mr. Krum demonstrates a
pattern of aggressive communication when he does not feel his
needs are being met or if he believes he is not being treated with
the respect he deserves. It is hypothesized his demonstration of
loud, pressured speech marked by a swearing and an aggressive
tone is a tool Mr. Krum purposefully implements to obtain his
goals.
(App. Vol. 2 at 67). Dr. Samuels did not diagnose Krum with a mental illness.
[9] On the other hand, Dr. Kivisto, who did not use a standardized tool to evaluate
Krum’s competency, concluded that Krum was not competent to stand trial.
Dr. Kivisto specifically explained that as a result of Krum’s “intense irritability
that was tangential really distractible thinking, an inflated sense of self, pressure
speech on the interview,” it was Dr. Kivisto’s “opinion that while [Krum] had a
roughly accurate factual understanding of the proceedings against him in terms
of his ability to rationally approach the material of his case[,]” Krum had “some
substantial impairments.” (Supp. Tr. 17). Based on these impairments, Dr.
Kivisto “had some concerns regarding his capacity to work with defense
counsel in a rationale way.” (Supp. Tr. 18). Dr. Kivisto also diagnosed Krum
with “bipolar two disorder.” (Supp. Tr. 19).
[10] Also at the hearing, the parties stipulated that Krum had represented himself in
a child visitation hearing the previous month. The purpose of the hearing was
to discuss visitation and child support. Krum had been able to follow the
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proceedings and respond appropriately to questions that were asked of him. He
had also cross-examined the Victim. After hearing the evidence, the trial court
concluded that Krum was competent to stand trial.
[11] At Krum’s December 2019 bench trial, the State presented evidence that Krum
had violated the Protective Order in January, February, March, and May 2017
by texting the Victim and leaving her voicemails that did not relate to parenting
time with his daughter. Krum frequently disrupted the trial by making loud
comments. At one point, he called a detective a “douche bag” as he was
leaving the courtroom after testifying. (Tr. Vol. 2 at 127).
[12] Krum testified at trial and admitted that many of his texts and voicemails
violated the Protective Order. At one point, Krum testified as follows: “I’m
not going to say I apologize. I’m going to apologize but I’m not sorry for
anything.” (Tr. Vol. 2 at 109). There was no testimony at trial that Krum had
a history of mental illness or hospitalizations. There was also no testimony that
Krum had mental health issues that rendered him unable to control his behavior
or that limited his functioning. In addition, there was no testimony that there
was a nexus between his alleged mental health issues and the crimes that he had
committed. After hearing the evidence, the trial court convicted Krum of all
nine counts.
[13] Testimony at the sentencing hearing revealed that Krum has six prior
misdemeanor convictions. Again, there was no testimony at the sentencing
hearing that Krum had a history of mental illness or hospitalizations. There
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was also no testimony that Krum had mental health issues that rendered him
unable to control his behavior or that limited his functioning. In addition, there
was no testimony concerning a nexus between Krum’s alleged mental health
issues and the crimes that he had committed. However, defense counsel asked
the trial court to consider Krum’s “mental health issues” as a mitigating factor.
(Tr. Vol. 2 at 129). After hearing testimony, the trial court gave the following
sentencing statement:
I’m entering judgment on counts one, three, four, five, and six[.]
I find as aggravating factors the defendant[’]s history of
delinquent behavior, however not a strong, not a lot of weight on
that aggravating circumstance. The repeated nature of the
contact that was impermissible in the sense that it goes well
beyond what was necessary to constitute the elements of the
crime[s]. Most significantly, however, is the lack of remorse, the
attitude that it’s everyone else’s fault. That he’s – that Mr. Krum,
that you[’re] smarter, that you know everything more than
anyone else, that you’re not wrong. The insincerity of the
attempts to apologize[.] Your attitude about it is most
significantly a concern to me. I don’t find mitigating factors. I . .
. impose sentences of 180 days for count [one], 365 days on each
of counts three, four, and five. 730 days for count six, however
I’m going to . . . order that counts three, four, and five run
concurrently to one another but consecutively to counts one and
six.
(Tr. Vol. 2 at 130-31). The total aggregate sentence was 1275 days in the
county jail.
[14] Krum now appeals his sentence.
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Decision
[15] Krum argues that the trial court abused its discretion in sentencing him.
Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is
in the statutory range, it is subject to review only for an abuse of discretion. Id.
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. at 491. A trial
court may abuse its discretion in a number of ways, including: (1) failing to
enter a sentencing statement at all; (2) entering a sentencing statement that
includes aggravating and mitigating factors that are unsupported by the record;
(3) entering a sentencing statement that omits reasons that are clearly supported
by the record; or (4) entering a sentencing statement that includes reasons that
are improper as a matter of law. Id. at 490-91.
[16] Here, Krum’s sole argument is that the trial court abused its discretion when it
failed to consider his mental health to be a mitigating factor. A finding of a
mitigating factor is not mandatory but is within the discretion of the trial court.
Page v. State, 878 N.E.2d 404, 408 (Ind. Ct. App. 2007), trans. denied. In order to
show that the trial court abused its discretion in failing to find a mitigating
factor, the defendant must establish that the mitigating evidence is both
significant and clearly supported by the record. Rogers v. State, 958 N.E.2d 4, 9
(Ind. Ct. App. 2011). “Mental illness is not necessarily a significant mitigating
factor, ‘rather [it] is a mitigating factor to be used in certain circumstances, such
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as when the evidence demonstrates longstanding mental health issues or when
the jury finds that a defendant is mentally ill.’” Townsend v. State, 45 N.E.3d
821, 831 (Ind. Ct. App. 2015) (quoting, Ousley v. State, 807 N.E.2d 758, 762
(Ind. Ct. App. 2004)), trans. denied.
[17] The Indiana Supreme Court has held that there is “the need for a high level of
discernment when assessing a claim that mental illness warrants mitigating
weight.” Covington v. State, 842 N.E.2d 345, 349 (Ind. 2006). In Archer v. State,
689 N.E.2d 678, 683 (Ind. 1997), the Indiana Supreme Court identified several
factors that bear on the weight, if any, that should be given to mental illness in
sentencing. These factors include: (1) the extent of the defendant’s inability to
control his behavior due to the disorder or impairment; (2) the overall
limitations on functioning; (3) the duration of the illness; and (4) the extent of
any nexus between the disorder or impairment and the crime. Id. at 685.
[18] For example, in Weeks v. State, 697 N.E.2d 28 (Ind. 1998), Weeks was charged
with murder, and a jury found him to be guilty but mentally ill. The trial court
found no mitigating factors and sentenced Weeks to the maximum sentence of
sixty (60) years. On appeal, Weeks argued that the trial court had erred in
declining to consider his mental illness to be a mitigating factor. The Indiana
Supreme Court applied the Archer factors and concluded that the trial court had
erred in declining to consider Weeks’ history of mental illness to be a mitigating
factor. Id. at 30-31. Specifically, our supreme court first noted that the jury’s
verdict had been guilty but mentally ill. Id. at 31. The Supreme Court also
noted that that the uncontradicted evidence showed that Weeks had a six-year
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history of mental illness and had been diagnosed with a range of disorders,
including schizophrenia, schizo-affective disorder, and bipolar disorder. Id.
Weeks had also been “in and out of hospitals” and had previously
demonstrated an “inability to control his impulses.” Id. For example, eight
months before the crime, Weeks ran out of gas on Interstate 65 near
Indianapolis. Police found him standing near his car on the side of the freeway,
mumbling about “black gashes of cancer” in the vehicle. Id. In addition, two
years before the crime, he was involuntarily hospitalized after he threatened to
“blow away” his parents with a shotgun. Id.
[19] However, the facts before us are distinguishable from those in Weeks. Here, the
trial court found that Krum was guilty, not guilty but mentally ill. In addition,
there was no evidence presented either at trial or at the sentencing hearing that
Krum had a history of mental illness or had ever been hospitalized. There was
also no evidence that Krum had been unable to control his behavior due to
having mental health issues or that mental health issues had limited his
functioning. Rather, Dr. Samuels’ competency evaluation of Krum stated that
Krum’s “demonstration of loud, pressured speech marked by a swearing and an
aggressive tone [was] a tool Mr. Krum purposefully implement[ed] to obtain his
goals.” (App. Vol. 2 at 67). Dr. Samuels did not diagnose Krum with a mental
illness. The trial court did not abuse its discretion in declining to consider
Krum’s mental health issues as a mitigating factor.
[20] We further note that even if the trial court had abused its discretion by declining
to find Krum’s mental health to be a mitigating factor, any error was harmless.
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When the trial court abuses its discretion in sentencing, we will remand if we
cannot say with confidence that the trial court would have imposed the same
sentence. Webb v. State, 941 N.E.2d 1082, 1090 (Ind. Ct. App. 2011), trans.
denied. Here, the trial court found the following aggravating factors: (1)
Krum’s prior criminal history, which included six misdemeanor convictions; (2)
the repeated nature of Krum’s contact, which went well beyond what was
necessary to constitute the elements of the offenses; and (3) Krum’s lack of
remorse and attitude. Because of the presence of these significant aggravating
factors, we conclude that the trial court would have imposed the same sentence
even if it would have found Krum’s mental health to be a mitigating factor. See
Scott v. State, 840 N.E.2d 376, 384 (Ind. Ct. App. 2006) (holding that although
the trial court erred in failing to find the defendant’s mental illness to be a
mitigating factor, the error was harmless in light of multiple valid aggravating
factors), trans. denied.
[21] Affirmed.
Kirsch, J., and Tavitas, J., concur.
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