Kent R. Blair, Sr. v. State of Indiana

FILED
Oct 14 2016, 10:10 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr. Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kent R. Blair, Sr., October 14, 2016
Appellant-Defendant, Court of Appeals Case No.
02A05-1604-CR-832
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D04-1511-F6-1094
Robb, Judge.
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Case Summary and Issues
[1] Following a bench trial, Kent Blair was convicted of invasion of privacy, a
Level 6 felony, and criminal trespass, a Class A misdemeanor. The trial court
sentenced Blair to one and one-half years executed in the Indiana Department
of Correction. Blair appeals his convictions and sentence, raising three issues
for our review: (1) whether the evidence is sufficient to sustain his convictions,
(2) whether the trial court abused its discretion in sentencing him, and (3)
whether his sentence is inappropriate in light of the nature of the offenses and
his character. Concluding the evidence is sufficient, the trial court did not
abuse its discretion in sentencing Blair, and his sentence is not inappropriate,
we affirm.
Facts and Procedural History
[2] Blair and his wife, R.B., lived together in a home in Fort Wayne, Indiana. The
home had been deeded to each of them by Blair’s father. In July 2014, an
incident of domestic violence occurred between the couple. Thereafter, R.B.
sought a protective order against Blair and also initiated divorce proceedings.
On November 26, 2014, the trial court issued an ex parte order of protection
against Blair, which prohibited Blair for the next two years from harassing,
annoying, telephoning, contacting, or directly or indirectly communicating with
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R.B., and further ordered him to stay away from R.B.’s residence, school, and
place of employment. Blair received notice of the order.
[3] In July 2015, the dissolution court held a final hearing and later dissolved the
couple’s marriage; Blair did not appear at the hearing despite receiving notice.
The dissolution decree awarded R.B. the home. On September 16, 2015, a
court-appointed commissioner executed a quit claim deed thereby deeding the
real estate to R.B.
[4] At some point, R.B. moved out of her home, claiming, “I left for the safety of
my life.” Transcript at 12. R.B. left certain pieces of personal property in the
home, including furniture, a wine collection, and jewelry. R.B. often returned
to the property to check on the home and to collect her mail. In so doing, she
observed several of her personal items, including those noted above, were
missing.
[5] On October 31, 2015, R.B. went to the home to retrieve some clothes and could
not gain entry because the locks had been changed. Her son, A.B., and Blair
were both inside the home, and when R.B. knocked on the door, they told her
to leave and slammed the door in her face. R.B. demanded they leave her
home, telling them it was her property and they were not allowed to be there;
neither A.B. nor Blair obliged. R.B. then called law enforcement, and before
law enforcement could arrive, Blair “took off running.” Id. at 32.
[6] A week later, R.B. returned to the property to collect her mail. Again, R.B. was
unable to enter her home. In fact, some of the doors had been padlocked. R.B.
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called law enforcement. Upon arrival, law enforcement determined R.B.
owned the home, and with R.B.’s permission, kicked in the front door to the
home. Law enforcement discovered multiple sets of locks inside the home.
Blair, who was inside the home, was arrested. In an interview following his
arrest, Blair told law enforcement “the house was his, it was given back to him in
his divorce papers, [and] that it had been in his family for generations . . . .” Id. at
47 (emphasis added). When asked to produce the divorce papers, Blair claimed
R.B. had stolen them.
[7] On November 13, 2015, the State charged Blair with two counts of invasion of
privacy as Level 6 felonies (“Counts I and II”), and one count of criminal
trespass as a Class A misdemeanor (“Count III”). At trial, R.B., three members
of law enforcement, and Blair all testified. Specifically, Blair testified he
believed the home was his and he had a right to be there. He further testified he
never received any divorce papers. The trial court found Blair guilty as
charged, merged Counts I and II, and entered judgment of conviction on
Counts I and III. The trial court sentenced Blair to one and one-half years on
Count I and one year on Count III, to be served concurrently. Blair now
appeals his convictions and sentence.
Discussion and Decision
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I. Sufficiency of the Evidence
A. Standard of Review
[8] In reviewing the sufficiency of the evidence to support a conviction, we neither
reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27
N.E.3d 1065, 1066 (Ind. 2015). We consider only the evidence supporting the
judgment and any reasonable inferences drawn therefrom. Id. We will affirm
the conviction “if there is substantial evidence of probative value supporting
each element of the crime from which a reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt.” Walker v. State, 998
N.E.2d 724, 726 (Ind. 2013) (citation omitted).
B. Invasion of Privacy
[9] “A person who knowingly or intentionally violates . . . an ex parte protective
order . . . commits invasion of privacy, a Class A misdemeanor. However, the
offense is a Level 6 felony if the person has a prior unrelated conviction for an
offense under this section.” Ind. Code § 35-46-1-15.1(2). The State alleged
Blair knowingly or intentionally violated the ex parte protective order.1 “A
person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is
aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b). Blair
argues the evidence is insufficient to establish he knowingly violated the
1
The State further alleged Blair had a prior conviction for invasion of privacy, for which he was serving
probation at the time he committed the present offenses. The parties stipulated to the admission of his prior
conviction at trial and Blair does not challenge this fact on appeal.
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protective order because he believed he owned the home and had a right to be
there. In support, Blair cites to portions of the record where he claimed he
never received notice of the dissolution decree or the quit-claim deed.
[10] The evidence most favorable to the judgment and the reasonable inferences
arising therefrom establish R.B. and Blair were both named on the deed to the
home prior to the couple’s divorce in 2015. Nonetheless, Blair received notice
of the 2014 order of protection, which prohibited him from harassing,
annoying, telephoning, or directly or indirectly communicating with R.B., and
further ordered him to stay away from R.B.’s residence for a period of two
years. Blair also received notice of the dissolution decree, which gave R.B. the
home. R.B. feared for her safety and opted to move out, but left some of her
belongings in the home and periodically returned to exchange clothes, collect
her mail, and check on her personal belongings. She later discovered some of
her belongings were missing and the locks had been changed. Blair had been
staying at the home and knew R.B. periodically visited.
[11] On October 31, 2015, R.B. went to the home and could not gain entry because
the locks had been changed. When R.B. knocked on the door, Blair answered
and told her to leave. R.B. told Blair he was not allowed to be there. When
Blair did not leave, R.B. called law enforcement and Blair immediately left the
home. Despite this, Blair returned and continued to stay in the home, again
changed the locks, and padlocked some of the doors. When R.B. arrived at the
home on November 7, 2015, she could not gain entry and called law
enforcement, who were forced to break down a door to the home.
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[12] Given the above evidence, a reasonable fact-finder could conclude Blair
knowingly violated the protective order by harassing, annoying, and/or
communicating with R.B., and by failing to stay away from R.B.’s residence.
When Blair argues he did not receive the divorce decree and he therefore
believed he was the sole owner of the home, he invites us to reassess witness
credibility, which we will not do. Although we acknowledge Blair testified he
never received the divorce decree and that he said he believed he owned the
home, the fact-finder was not required to believe this testimony, especially in
light of the fact the State presented evidence that Blair did receive the divorce
decree. We conclude the evidence is sufficient to sustain Blair’s conviction for
invasion of privacy.
C. Criminal Trespass
[13] “A person who . . . not having a contractual interest in the property, knowingly
or intentionally enters the real property of another person after having been
denied entry by the other person . . . commits criminal trespass, a Class A
misdemeanor.” Ind. Code § 35-43-2-2(b)(2). If a person has a fair and
reasonable foundation for believing he has a right to be present on the property,
there is no criminal trespass. See Olsen v. State, 663 N.E.2d 1194, 1196 (Ind. Ct.
App. 1996). The State alleged Blair, not having a contractual interest in the
property, knowingly entered R.B.’s property after being previously denied
entry. On appeal, Blair argues the evidence is insufficient to sustain his
conviction, contending he had a good faith claim of right to enter the property
because he said he believed he owned the property.
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[14] As noted above, Blair testified he never received the divorce decree and he
believed he owned the property, but the trial court did not find his testimony to
be credible in light of the contradictory statements he made following his arrest,
namely that he had received the divorce decree. The record establishes Blair
did not have a contractual interest in the home. On October 31, 2015, R.B.
arrived at the home, discovered Blair was in the house, and told him to leave
because it was her home and he was not allowed to be there. A week later,
Blair was still in the home when R.B. arrived. We conclude the evidence is
sufficient to sustain his conviction for criminal trespass.
II. Sentencing Discretion
[15] We review a sentencing decision for an abuse of discretion. Anglemyer v.
State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An
abuse of discretion occurs when the trial court’s 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. (citation omitted). A trial court may abuse its discretion by
failing to enter a sentencing statement, finding aggravating or mitigating
circumstances unsupported by the record, omitting aggravating or mitigating
circumstances clearly supported by the record, or noting reasons for imposing a
given sentence that are improper considerations as a matter of law. Id. at 490-
91. “Under those circumstances, remand for resentencing may be the
appropriate remedy if we cannot say with confidence that the trial court would
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have imposed the same sentence had it properly considered reasons that enjoy
support in the record.” Id. at 491.
[16] Blair contends the trial court abused its discretion in finding an aggravating
circumstance unsupported by the record. Specifically, he contends “the vast
majority of the trial court’s sentencing statement was devoted to its mistaken
belief that [Blair] had perjured himself during the trial by denying knowledge of
the protective order.” Appellant’s Brief at 19. In sentencing Blair to one and
one-half years in prison, the trial court stated,
[C]andidly I find it aggravating that he would testify in a
courtroom, basically I judged the credibility of the witnesses in
this case and it shows complete disdain to the Court when he
says I didn’t know there was a no contact order in place, I didn’t
know there was a divorce, I didn’t know who’s [sic] house it was
and I just feel like that was very disingenuous and candidly just
dishonest.
Sentencing Transcript at 13. However, Blair did testify he had knowledge of
the protective order, and prior to the conclusion of the sentencing hearing,
Blair’s counsel notified the trial court of this fact. In response, the trial court
acknowledged it misspoke and clarified its point was that Blair’s testimony,
when taken together, was not credible. In light of this, the trial court did not
alter Blair’s sentence.
[17] Even assuming this misstatement amounted to error, we can say with
confidence the trial court would have imposed the same sentence. As to the
aggravating circumstances, the trial court identified Blair’s criminal history,
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which includes convictions for battery, domestic battery, possession of
marijuana, and invasion of privacy. Further, at the time Blair committed these
offenses, he was on probation. The trial court did not find any mitigating
circumstances. Blair does not challenge whether the record supports the
remaining aggravating circumstances nor does he challenge the trial court’s
decision not to identify any mitigating circumstances. The remaining
aggravating circumstances identified by the trial court are supported by the
record. We therefore conclude the trial court did not abuse its discretion in
sentencing Blair.
III. Inappropriate Sentence
[18] Indiana Appellate Rule 7(B) provides, “The 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.” The defendant bears the burden of
persuading this court his or her sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate
turns on “the culpability of the defendant, the severity of the crime, the damage
done to others, and myriad other factors that come to light in a given
case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role
of appellate review is to “leaven the outliers,” not achieve the perceived
“correct” result in each case. Id. at 1225.
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[19] The advisory sentence is the starting point the legislature selected as an
appropriate sentence for the crime committed. Anglemyer, 868 N.E.2d at 494.
Blair was convicted of invasion of privacy as a Level 6 felony. A person
convicted of 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.
Ind. Code § 35-50-2-7(b). The trial court sentenced Blair to one and one-half
years in the Department of Correction. As to the nature of the offenses, we
note nothing exceptional about the facts or circumstances apart from the fact
the trial court did not believe Blair was truly ignorant of the fact R.B. owned the
home. In light of this, Blair’s violation of the protective order by continuing to
stay in R.B.’s home and repeatedly changing the locks to deny R.B. access to
her home was more serious than simply contacting or communicating with her.
[20] Blair’s criminal history is noted above. See supra Part II. We find it particularly
telling that Blair was serving probation following a conviction for invasion of
privacy against R.B. when he committed the present crimes. This we cannot
ignore. We conclude Blair’s sentence of one and one-half years in the
Department of Correction is not inappropriate.
Conclusion
[21] We conclude the evidence is sufficient to sustain Blair’s convictions for invasion
of privacy and criminal trespass. We further conclude the trial court did not
abuse its discretion in sentencing Blair and his sentence is not inappropriate in
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light of the nature of the offenses and his character. Accordingly, we affirm his
convictions and sentence.
[22] Affirmed.
Mathias, J., and Brown, J., concur.
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