Brandon Stevenson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Apr 17 2018, 9:23 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Scott L. Barnhart Curtis T. Hill, Jr. Brooke Smith Attorney General of Indiana Keffer Barnhart LLP Indianapolis, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brandon Stevenson, April 17, 2018 Appellant-Defendant, Court of Appeals Case No. 82A04-1712-CR-2867 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Michael J. Cox, Appellee-Plaintiff. Magistrate Trial Court Cause No. 82C01-1611-F5-6764

Bradford, Judge. Court of Appeals of Indiana | Memorandum Decision 82A04-1712-CR-2867 | April 17, 2018 Page 1 of 8

Case Summary [1] Appellant-Defendant Brandon Stevenson is required to register as a sex

offender. He appeals following his conviction for Level 5 felony failure to do

so. Stevenson raises two contentions on appeal. First, he contends that the trial

court erred in denying his request for a mistrial. Second, he contends that his

four-year sentence is inappropriate. Concluding otherwise, we affirm.

Facts and Procedural History A. Stevenson Must Register as a Sex Offender [2] In 1997, Stevenson was adjudicated to have committed what would be 1st

Degree criminal sexual conduct if committed by an adult in Kent County,

Michigan. As a result, Stevenson is required to register as a sex offender. In

2007, Stevenson was convicted of Class D felony failure to register as a sex

offender.

B. The Instant Offense [3] Stevenson checked into the Rescue Mission homeless shelter in Evansville on

August 11, 2016. On or about August 17, 2016, Stevenson met with Detective

Mike Robinson of the Vanderburgh County Sheriff’s Department (“the

Department”). Detective Robinson is the coordinator for the sex or violent

offender registry in Vanderburgh County. At this time, Detective Robinson

went over the rules, duties, and obligations associated with registration as a sex

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or violent offender; Stevenson indicated that he understood these rules, duties,

and obligations and registered as a sex offender. [4] On October 5, 2016, Stevenson was dismissed from the Rescue Mission because

the shelter is “not allowed to have people on the registry there.” Tr. Vol. II, p.

25. Rescue Mission staff member Amanda Crowe made an effort to remind

Stevenson that he would need to contact the Sheriff’s Department and update

his address on the registry. After being led to believe that Stevenson was

residing at a different homeless shelter, Crowe also attempted to contact the

other shelter to “let them know that [Stevenson] was there and that he needed

to change his address” with the registry. Tr. Vol. II, p. 26. [5] Crowe met with Detective Robinson on October 12, 2016, and discussed

Stevenson. At this time, despite the fact that Stevenson was in violation for

failing to inform Detective Robinson that he was no longer residing at the

Rescue Mission, Detective Robinson chose to “give [Stevenson] a little bit of a

grace period” and asked Crowe to attempt to contact Stevenson and remind

him that he was required to visit the Department and to comply with the

registry requirements. Tr. Vol. II, p. 34. However, when Stevenson failed to

report to the Department and comply with the registry’s requirements by

November 11, 2016, Detective Robinson “had to draw a line in the sand and

after receiving no contact, declared him AWO[L] from the registry” and

referred the matter to the prosecuting attorney. Tr. Vol. II, p. 34. At some

point a warrant was issued for Stevenson’s arrest. Detective Robinson had no

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contact with Stevenson until he was apprehended in Clark County on August

12, 2017.

C. Procedural History [6] On November 18, 2016, Appellee-Plaintiff the State of Indiana charged

Stevenson with failure to register as a sex or violent offender. The charge was

elevated to a Level 5 felony because of Stevenson’s prior failure to register

conviction. The trial court conducted a jury trial on October 11, 2017.

Stevenson requested a mistrial during the State’s closing rebuttal argument,

alleging that the deputy prosecutor committed prosecutorial misconduct. The

trial court denied Stevenson’s request for a mistrial. After the jury returned a

guilty verdict, Stevenson pled guilty to the Level 5 felony enhancement. The

trial court subsequently sentenced Stevenson to a four-year term of

imprisonment.

Discussion and Decision I. Denial of Request for Mistrial [7] Stevenson contends that the trial court erred in denying his request for a

mistrial. “Whether to grant or deny a motion for a mistrial lies within the

sound discretion of the trial court.” Isom v. State, 31 N.E.3d 469, 480 (Ind.

2015). “We afford great deference to the trial court’s decision and review the

decision solely for abuse of that discretion.” Id. “A mistrial is an extreme

remedy that is warranted only when less severe remedies will not satisfactorily

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correct the error.” Banks v. State, 761 N.E.2d 403, 405 (Ind. 2002). “A timely

and accurate admonition is presumed to cure any error in the admission of

evidence.” Id. (internal quotation omitted). [8] Stevenson argues that a mistrial was necessary following two alleged instances

of prosecutorial misconduct during the State’s closing rebuttal argument. As

for the first instance, the deputy prosecutor stated “I cannot stress this enough,

the government [bears] the burden of proof, that’s been explained to you over

and over, I think you understand that, we also bear the burden of keeping this

community safe because when something bad happens-[.]” Tr. Vol. II, p. 65.

At this point, defense counsel objected. Following a discussion held outside of

the presence of the jury, the trial court admonished the jury as follows: “Ladies

and gentlemen, please disregard the last five or six words the deputy prosecutor

spoke.” Tr. Vol. II, p. 67. [9] As for the second instance, the deputy prosecutor stated “These rules protect

him as well. Something bad happens at 123 Line Street, we’re going to look at

suspects.” Tr. Vol. II, pp. 68–69. At this point, defense counsel objected and

moved for a mistrial. Following another discussion held outside the presence of

the jury, the trial court denied the request for a mistrial and admonished the

jury as follows: “Ladies and gentlemen, please disregard the last sentence

spoken by the deputy prosecutor.” Tr. Vol. II, pp. 69–70. [10] Although Stevenson claims on appeal that the trial court’s admonishments were

insufficient, he fails to convince us of such. He fails to demonstrate that the

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comments at issue were so inflammatory as to place him in a position of great

peril. See Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006) (providing that in

determining whether an individual committed prosecutorial misconduct, we

consider whether the alleged misconduct placed the defendant in a position of

grave peril to which he would not have otherwise been subjected). More

importantly, Stevenson does not even suggest that anything in the record

indicates that the jury did not follow the trial court’s instructions to disregard

the deputy prosecutor’s comments. Thus, we presume that the trial court’s

admonishment cured any potential harm. See Green v. State, 587 N.E.2d 1314,

1317 (Ind. 1992) (providing that appellate courts may presume that a timely and

accurate admonishment by the trial court will cure any defect); see also Webster v.

State, 413 N.E.2d 898, 901, 274 Ind. 668, 673 (1980) (providing that “[o]n

appeal, [appellate courts] must presume that the jury obeyed the trial court’s

instructions in reaching its verdict” and when the jury has been instructed not to

consider specific evidence or argument, “we will assume that the jury followed

the instructions.”).1

II. Appropriateness of Sentence [11] Stevenson also contends that his four-year sentence is inappropriate in light of

the nature of his offense and his character. Indiana Appellate Rule 7(B)

provides that “The Court may revise a sentence authorized by statute if, after

1 Because we conclude that the admonishments given by the trial court cured any potential harm, we need not consider the State’s argument that deputy prosecutor did not commit prosecutorial misconduct.

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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.” In analyzing such claims, we “‘concentrate less on comparing the

facts of [the case at issue] to others, whether real or hypothetical, and more on

focusing on the nature, extent, and depravity of the offense for which the

defendant is being sentenced, and what it reveals about the defendant’s

character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting

Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied). The

defendant bears the burden of persuading us that his sentence is inappropriate.

Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008). [12] Not only did Stevenson fail to register with the Registry as required, his offense

was elevated to a Level 5 felony because he had a previous failure to register

conviction. On August 17, 2016, Stevenson signed paperwork indicating that

he understood that he was required to register and to update his registration any

time his residence changed. Stevenson argues that he should have been given a

lesser sentence because he was homeless at the time he failed to register and,

thus, did not have an address to provide. However, the rules for registration,

which again Stevenson indicated in writing that he understood, provided

explicit instructions for how to register if one resides in temporary housing or is

homeless. Specifically, the rules stated that “If you live at a temporary

residence such as a homeless shelter, a group home, or a halfway house, or if

you are homeless you must register IN-PERSON to the [Department] at least

once every 7 days until you find a permanent residence.” State’s Ex. 1, p. 5

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(emphasis in original). Despite having been told that he was required to update

authorities of his whereabouts once every seven days, Stevenson did not register

with the Department after being asked to leave the Rescue Mission. [13] As for his character, Stevenson points to a favorable report from one of his

parole officers. While Stevenson’s apparent willingness to cooperate with this

parole officer might reflect somewhat positively on his character, it does not

negate the numerous negative character traits argued before the trial court.

Stevenson was required to register because he had committed a prior qualifying

conviction. His criminal history was lengthy. It included sixteen felony

convictions, one of which was a prior failure to register conviction. It also

included nine misdemeanor convictions, one juvenile adjudication, and a

habitual offender finding. The fact that Stevenson was convicted of this offense

for a second time suggests that he has failed to reform his behavior. Stevenson

has failed to convince us that his four-year sentence is inappropriate. [14] The judgment of the trial court is affirmed.

Baker, J., and Kirsch, J., concur.

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