Lavelle Lamar Borom v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Mar 28 2019, 8:59 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Curtis T. Hill, Jr.
Office of the Public Defender Attorney General of Indiana
Crown Point, Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lavelle Lamar Borom, March 28, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1309
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff Judge
Trial Court Cause No.
45G04-1612-F4-47
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1309 | March 28, 2019 Page 1 of 13
[1] Lavelle Lamar Borom appeals following his conviction of Class C felony
stalking 1 and his admission of being a habitual offender. 2 Borom argues the
evidence was insufficient to prove he committed stalking and the trial court
abused its discretion in finding three of the ten aggravators it used to justify his
sixteen-year sentence. We affirm Borom’s conviction and the length of his
sentence, but we remand for correction of the sentencing order.
Facts and Procedural History
[2] M.M. lived with her mother Ruth Martinez. In October 2013, Martinez sought
a protective order for M.M. and herself against Borom, who was M.M.’s off
and on boyfriend. At the time the order was sought, M.M. and Borom were
broken up. Martinez requested the order because Borom was going past their
house, breaking windows, “texting [M.M.], and writing messages.” (Tr. Vol. II
at 36.) The trial court granted the request for a protective order, but Borom’s
activity continued. On December 11, 2013, police arrested Borom for violating
the protective order.
[3] On February 25, 2014, Borom texted to M.M.: “You know you going [sic] to
get whacked this week[.]” (Id. at 113.) The same day, Borom sent another text
saying: “. . . Man, if I want you dead today, it can be done . . . .”(Id.) On
1
Ind. Code § 35-45-10-5(a) & (b)(1) (2002) (for acts between December 11, 2013, and June 30, 2014).
2
Ind. Code § 35-50-2-8 (2005).
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March 19, 2014, someone broke the windshield of Martinez’s car. On March
29, 2014, police responded to Martinez’s house because of threatening text and
voice messages M.M. received from Borom. On March 31, 2014, the police
were called because Borom told M.M. he was going to break her car window
and kill her. While M.M. was arguing on the phone with Borom, Martinez
observed Borom walking in front of their house.
[4] On October 19, 2014, Martinez called police because a window of her house
had been damaged and she believed Borom to be responsible. On November
13, 2014, police were called to Martinez’s house twice: first because Borom
threw a brick through the house’s front window, and second because a rock was
thrown through another house window. When responding to the second call, a
police officer saw Borom in the area and approached him. Borom ran from
police but was apprehended. On December 10, 2014, the police were called
because M.M. received threatening text messages from Borom.
[5] On April 26, 2015, Borom came out of a building next to Martinez’s home and
pointed a gun at her. Borom left when the police were called. On June 10,
2015, police responded to a report of more threatening text and voice messages
from Borom to M.M.. Borom told M.M. he had a gun and was going to get
her. On June 15,2015, Martinez heard gunshots and found her van had bullet
holes in it. On June 29, 2015, police responded to a call from Martinez’s home
regarding gunshots. Police found a bullet hole through one of the windows.
M.M. told police Borom sent her multiple intimidating messages, including one
advising her to not sleep in her room.
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[6] On December 9, 2016, the State charged Borom for his actions towards M.M.
with Class C felony stalking, two counts of Level 4 felony stalking, 3 and two
counts of Level 5 felony stalking. 4 After the case was filed, a protective order
was issued against Borom directing him to not have contact with M.M. or
Martinez. Borom ignored this order and made over seven-hundred calls to
M.M. from jail. The jail then blocked its phones from calling M.M.’s number.
Despite the block, Borom tried calling M.M. approximately thirty more times.
[7] The State later filed an information alleging Borom was a habitual offender.
After a three-day trial, a jury found Borom guilty of Class C felony stalking for
acts that occurred between December 11, 2013, and June 30, 2014. The trial
court held a sentencing hearing and then entered a sentencing order containing
the following findings and conclusions:
FINDINGS:
Aggravating Circumstances:
1. The defendant has a history of criminal activity beginning
as a juvenile including twenty-nine (29) contacts with law
enforcement including four (4) felony convictions and two
(2) misdemeanor convictions.
2. The harm, loss, or injury suffered by the victim is
significant. The State needed only to prove two (2)
3
Ind. Code § 35-45-10-5(a), (b)(1), & (c)(1) (2014) (for acts between July 1, 2014, and December 4, 2016).
4
Ind. Code § 35-45-10-5(a) & (b)(1) (2014) (for acts between July 1, 2014, and December 4, 2016).
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instances of harassment to constitute the elements of the
offense; however, the evidence at trial showed hundreds of
previous instances of damage to victim’s property
including broken windows, gunshots fired, and pointing of
a firearm.
3. The victim was particularly susceptible to being
manipulated, as she has previous traumatic brain injury in
her medical history;
4. The defendant’s behavior toward the victim is an example
of a predator preying on the weak;
5. The Court finds that even though the defendant did not
inflict bodily injury on the victim, in the context of the
stalking charge the Court considers the defendant to be the
worst of the worst;
6. The Court finds the defendant’s behavior, as demonstrated
by the evidence presented at trial, reached the point of
being obsessive and relentless in that the defendant
terrorized the victim for approximately three (3) years;
7. The defendant has had benefit of plea agreements for past
charges including charges being reduced and/or dismissed;
and [sic]
8. The defendant has previously received the benefit of
probation which he has violated;
9. The defendant has previously been sentenced to periods of
incarceration which failed to act as a deterrent to future
criminal behavior. Further, the defendant has not taken
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advantage of the opportunity to live a crime-free life after
sentences were served; and
10. The defendant is [in] need of correctional rehabilitative
treatment that can only be provided by a penal facility, as
evidenced by the factors enumerated above.
Mitigating Circumstances:
1. The defendant expresses remorse, which the Court
acknowledges as a mitigating circumstance; however,
based on his pattern of behavior as brought forth in trial
where there were numerous, perhaps hundreds of
instances of his pattern of stalking, the Court does not give
this mitigating circumstance great weight.
2. The defendant advises the Court that he began having
alcohol dependency issues in 2009; however, the Court
notes the defendant’s criminal history is replete with
criminal activity prior to 2009 and the Court does not
consider defendant’s alcohol dependency a mitigating
circumstance.
The Court finds that the aggravating circumstances substantially
outweigh the mitigating circumstances.
SENTENCE:
The Court now sentences the defendant as follows:
The defendant is now sentenced on Count III, Stalking, a Class C
Felony, to the maximum sentence of eight (8) years to be served
in the Department of Correction. On the Habitual Offender
Enhancement, the defendant is now sentenced to eight (8) years.
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Seven (7) years of said sentence are to be served in the
Department of Correction and one (1) year to be served in Lake
County Community Corrections, with initial placement in
Kimbrough Work Program. Although the Court feels the
defendant is deserving of the twelve (12) year maximum sentence
on the Habitual Offender Enhancement due to the aggravating
circumstances, the defendant did admit to allegations of the
Habitual Offender Enhancement. The Court gives the defendant
due consideration for that admission. Said sentences are to be
served consecutively. 5
(Appealed Order at 1-3 (footnote added).)
Discussion and Decision
Sufficiency of Evidence
[8] Borom first alleges the evidence was insufficient to support his conviction.
Sufficiency-of-the-evidence claims face a steep standard of
review: we consider only the evidence and reasonable inferences
most favorable to the convictions, neither reweighing evidence
nor reassessing witness credibility. We affirm the judgment
unless no reasonable factfinder could find the defendant guilty.
5
The trial court sentenced Borom to eight years for being a habitual offender and ordered the sentence
served consecutively with his sentence for Class C felony stalking. A habitual offender determination is not a
separate crime and should not result in a separate sentence. J.L.H. v. State, 642 N.E.2d 1368, 1371 (Ind.
1994), as corrected (Oct. 12, 2018). Instead the finding allows the court to impose an enhanced sentence for
the underlying felony. See id. The trial court should have sentenced Borom to a sixteen-year sentence for
Class C felony stalking, rather than two consecutive eight-year sentences. See Roark v. State, 829 N.E.2d
1078, 1080 n.5 (Ind. Ct. App. 2005) (trial court improperly sentenced the habitual offender status as a
separate crime), trans. denied. We remand for the court to correct the sentence. See J.L.H., 642 N.E.2d at
1371 (remanding for correction).
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Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016) (internal citations omitted). “It
is therefore not necessary that the evidence overcome every reasonable
hypothesis of innocence; rather, the evidence is sufficient if an inference
reasonably may be drawn from it to support the verdict.” Steele v. State, 42
N.E.3d 138, 144 (Ind. Ct. App. 2015).
[9] Indiana Code section 35-45-10-5(a) (2002) provides: “A person who stalks
another person commits stalking[.]” Indiana Code section 35-45-10-1 (1993)
defines stalk as, “knowing or an intentional course of conduct involving
repeated or continuing harassment of another person that would cause a
reasonable person to feel terrorized, frightened, intimidated, or threatened and
that actually causes the victim to feel terrorized, frightened, intimidated, or
threatened.” The State charged Borom with Class C felony stalking alleging:
. . . Between December 11, 2013 and June 30, 2014 . . . Borom
did stalk another person, to-wit: [M.M.], and did make an
implicit or explicit threat with the intent to place [M.M.] in
reasonable fear of serious bodily injury or death, contrary to
[Indiana Code section] 35-45-10-5(a) (2002) and [Indiana Code
section] 35-45-10-5(b)(1) (2002) . . . .
(App. Vol. 2 at 15.)
[10] Borom first argues the evidence is insufficient to prove he engaged in “repeated
or continuing harassment during the time of conviction.” (Br. of Appellant at
12.) Borom says the three contacts he made with M.M. between December 11,
2013, and June 30, 2014, were not enough to prove he continually or repeatedly
harassed M.M.. However, repeated in this context means more than once. See
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Nicholson v. State, 963 N.E.2d 1096, 1101 (Ind. 2012) (holding repeated meant
more than once). Therefore, the three contacts made by Borom are sufficient to
show he repeatedly harassed M.M..
[11] Second, Borom argues the evidence is insufficient to prove “M.M. actually felt
terrorized, frightened, intimidated or threatened.” (Br. of Appellant at 12.)
Stalking becomes a Class C felony when a person “makes an explicit or an
implicit threat with the intent to place the victim in reasonable fear of: sexual
battery (as defined in Ind. Code § 35-42-4-8); serious bodily injury; or death . . .
. ” Ind. Code § 35-45-10-5(b)(1)(B) (2002). M.M. testified to feeling threatened
by Borom. M.M. said the reason she would begin dating Borom again was
“only [be]cause [she] was threatened.” (Tr. Vol. II at 99.) M.M. testified she
was “afraid” Borom was going to hurt her. (Id. at 139.) On February 25, 2014,
Borom texted M.M. “U kno u gunna get wack 6 this week.” (State Ex. 6 (errors
in original).) That same day Borom texted M.M. saying “. . . man if I want u
dead today it can b done. . . .” (Id. (errors in original).) Borom also told M.M.
she would have a closed casket funeral. (Id.) Based on these facts, the State
presented sufficient evidence to prove M.M. felt threatened and feared serious
bodily injury or death.
6
“Whack” is a slang term that means “murder” or “kill.” See http://www.merriam-
webster.com/dictionary/whack (last visited March 18, 2019).
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Finding of Aggravators
[12] “We initially observe that sentencing decisions rest within the sound discretion
of the trial court and are reviewed on appeal only for an abuse of discretion.”
Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012). 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.” Anglemyer v. State, 868 N.E.2d 482, 490
(Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007).
The trial court can abuse its discretion by: (1) issuing an
inadequate sentencing statement, (2) finding aggravating or
mitigating factors that are not supported by the record, (3)
omitting factors that are clearly supported by the record and
advanced for consideration, or (4) finding factors that are
improper as a matter of law.
Gleason, 965 N.E.2d at 710.
[13] Borom argues the trial court abused its discretion by considering aggravators it
was not allowed to consider. Specifically, Borom argues three aggravators were
erroneous:
2. The harm, loss, or injury suffered by the victim is
significant. The State needed only to prove two (2)
instances of harassment to constitute the elements of the
offense; however, the evidence at trial showed hundreds of
previous instances of damage to victim’s property
including broken windows, gunshots fired, and pointing of
a firearm.
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*****
5. The Court finds that even though the defendant did not
inflict bodily injury on the victim, in the context of the
stalking charge the Court considers the defendant to be the
worst of the worst;
6. The Court finds the defendant’s behavior, as demonstrated
by the evidence presented at trial, reached the point of
being obsessive and relentless in that the defendant
terrorized the victim for approximately three (3) years.
(Appealed Order at 1-2.) Borom argues these aggravators are improper because
they are based on evidence supporting charges of which he was acquitted.
Forty years ago, the Indiana Supreme Court held it is improper to consider
crimes for which a person is acquitted as aggravators. McNew v. State, 391
N.E.2d 607, 612 (Ind. 1979).
[14] Borom is correct in asserting that aggravator number two is inappropriate
because it considers evidence from crimes for which Borom was acquitted. For
example, there simply were not “hundreds of previous instances of damage to
victim’s property” between December 2013 and July 2014. (Appealed Order at
1.) In addition, although the windshield of Martinez’s car was broken during
this timeframe, there was no evidence to demonstrate Borom was responsible
for that damage.
[15] However, aggravators five and six can be affirmed without considering the
evidence from the charges for which Borom was acquitted. For example, while
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Borom was in jail he attempted over seven hundred phone calls to M.M.. The
jail blocked M.M.’s number to prevent Borom from being able to call her, but
he attempted to call M.M. an additional thirty times. Calling someone nearly
eight-hundred times demonstrates Borom “reached the point of being obsessive
and relentless.” (Id. at 2.) Furthermore, Martinez requested the protective
order in October 2013, and Borom made those calls to M.M. from jail after he
was charged in December 2016, so that he had been harassing M.M. “for
approximately three (3) years.” (Id.) As such, there is proper evidence that
supports aggravator six and, in light of that same evidence of long-term
relentless obsessive behavior, we cannot say the trial court abused its discretion
when it called Borom “the worst of the worst.” (Id.)
[16] While the trial court entered one inappropriate aggravator, we cannot say that
requires reversal. When a trial court considers an improper aggravator, we may
nevertheless affirm the sentence if we can “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) (affirming despite trial court’s failure to consider
guilty plea a mitigator), trans. denied. Despite one aggravator being
inappropriate, the court properly considered nine other aggravators. Those
aggravators included Borom’s extensive criminal history, the victim’s
susceptibility to being manipulated, Borom’s predatory behavior, Borom being
the worst of the worst, Borom’s obsessive behavior, Borom’s past benefit of plea
agreements, Borom’s past violation of probation, Borom’s failure to respond to
past incarceration, and Borom’s need for correctional rehabilitative treatment.
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In addition, the trial court rejected one of Borom’s two mitigators and refused
to give the other one significant weight. As such, we are confident the trial
court would have reached the same sentence regardless whether it considered
the improper aggravator. See, e.g., id. at 1090 (affirming sentence despite abuse
of discretion regarding one aggravator when other aggravators existed).
Conclusion
[17] The evidence demonstrates Borom engaged in repeated harassment of M.M.
and M.M. felt threatened by Borom’s actions, and thus the State presented
sufficient evidence Borom committed Class C felony stalking. Additionally,
while the trial court abused its discretion when it found one improper
aggravator, there were nine other aggravators to support Borom’s sentence.
Accordingly, we affirm Borom’s conviction and sentence length, but we
remand for correction of the sentencing order for the reasons set forth in
footnote five.
[18] Affirmed and remanded.
Baker, J., and Robb, J., concur.
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