Chris A. Brodien v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 22, 2020
• Docket: 20A-CR-110
• Status: Published

Opinion

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 Jul 22 2020, 11:04 am

the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer L. Koethe Curtis T. Hill, Jr. Navarre, Florida Attorney General of Indiana

Megan M. Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Chris A. Brodien, July 22, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-110 v. Appeal from the LaPorte Superior Court State of Indiana, The Honorable Michael S. Appellee-Plaintiff. Bergerson, Judge Trial Court Cause No. 46D01-1901-F5-30

Bradford, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020 Page 1 of 12 Case Summary [1] Chris Brodien was convicted of Level 5 felony battery and Class A

misdemeanor battery following an altercation with his then-girlfriend and his

then-girlfriend’s daughter. Brodien challenges his aggregate seven-year

sentence on appeal, arguing both that the trial court abused its discretion in

sentencing him and that his sentence is inappropriate. We affirm.

Facts and Procedural History [2] In December of 2018, Brodien was living with his then-girlfriend, Theresa

Bowen, and her adult daughter, Tiffany. On December 13, 2018, Brodien and

Bowen went to dinner where Brodien drank several beers. While on their way

home, Bowen noticed her purse was not on the floorboard where she usually

kept it and questioned Brodien about its whereabouts. Brodien denied knowing

the whereabouts of Bowen’s purse. Bowen continued to press the issue for the

few minutes it took to drive back to her house.

[3] After arriving at her home, Bowen located her purse in the backseat.

Immediately thereafter, Brodien grabbed her by the shoulders and started

slamming her head into the car. Brodien yelled that Bowen was being too loud

when she asked about her purse. After he stopped slamming Bowen’s head into

the car, Brodien screamed at Bowen, called her names, slapped her, and

slammed her to the ground. While Bowen was on the ground, Brodien grabbed

a board and smashed the windshield of Tiffany’s car.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020 Page 2 of 12 [4] Tiffany called 911 after she heard the commotion and looked outside to see

Brodien standing over Bowen. When Brodien realized that Tiffany had called

911, he attacked her by grabbing her throat and pulling her out of the house by

her hair. Brodien again knocked Bowen to the ground when she attempted to

assist Tiffany. Brodien grabbed Tiffany’s arm, pulled it backwards, and hit her

in the face. Brodien eventually fled on foot into a nearby cornfield.

[5] When officers arrived, Bowen was walking around outside, dazed, covered in

dirt, and her clothes were disheveled. Bowen had marks on her arms and her

face was red. Tiffany was very upset and crying. She was also covered in dirt

and had marks on her face and hands. As a result of the altercation, Bowen

and Tiffany both suffered pain, swelling, bruising, and abrasions. After the

altercation, Brodien threatened to kill Bowen and burn down her house.

[6] On January 7, 2019, the State charged Brodien with Level 5 felony battery with

a prior conviction against the same victim. On January 18, 2019, the trial court

issued a no-contact order. Despite this order, Brodien repeatedly contacted

Bowen from jail, sending her between thirty and forty letters and calling her.

The State subsequently amended the charging information to add a charge of

Class A misdemeanor battery. Following trial, the jury found Brodien guilty of

the underlying Class B misdemeanor battery charge in Count I and the Class A

misdemeanor battery charge in Count II. Brodien then admitted that he had a

prior battery conviction against the same victim, elevating the Class B

misdemeanor conviction to a Level 5 felony conviction. On December 12,

2019, the trial court sentenced Brodien to six years for the Level 5 felony battery

Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020 Page 3 of 12 conviction and one year for the Class A misdemeanor battery conviction, and

ordered that the sentences be served consecutively.

Discussion and Decision [7] Brodien challenges his aggregate seven-year sentence on appeal, arguing both

that the trial court abused its discretion in sentencing him and that his sentence

is inappropriate.

I. Abuse of Discretion [8] Sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), modified on other grounds 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.

(quotation omitted).

We review for an abuse of discretion the court’s finding of aggravators and mitigators to justify a sentence, but we cannot review the relative weight assigned to those factors. Anglemyer, 868 N.E.2d at 490–91. When reviewing the aggravating and mitigating circumstances identified by the trial court in its sentencing statement, we will remand only if “the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record, and advanced for consideration, or the reasons given are improper as a matter of law.” Id.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020 Page 4 of 12 Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct. App. 2016). A single

aggravating circumstance may be sufficient to enhance a sentence. Id. at 417.

[9] In sentencing Brodien, the trial court found Brodien’s prior criminal history to

be an aggravating factor. In challenging his sentence, Brodien claims that the

trial court abused its discretion by failing to find the following to be mitigating

factors: (1) he stipulated to the prior conviction at issue in the charging

enhancement, saving the State the time and effort to prove it; (2) his remorse;

and (3) his history of alcohol abuse.

A. Mitigating Factors [10] Although a sentencing court must consider all evidence of mitigating factors

offered by a defendant, the finding of mitigating factors rests within the court’s

discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). A trial court is

neither required to find the presence of mitigating factors, Fugate v. State, 608

N.E.2d 1370, 1374 (Ind. 1993), nor obligated to explain why it did not find a

factor to be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind.

2001). “A court does not err in failing to find mitigation when a mitigation

claim is highly disputable in nature, weight, or significance.” Henderson, 769

N.E.2d at 179 (internal quotations omitted).

[11] While Indiana law “mandates that the trial judge not ignore facts in the record

that would mitigate an offense, and a failure to find mitigating circumstances

that are clearly supported by the record may imply that the trial court failed to

properly consider them,” Sherwood, 749 N.E.2d at 38, an allegation that the trial

Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020 Page 5 of 12 court failed to find a mitigating factor requires the defendant to establish that

the mitigating evidence is both significant and clearly supported by the record.

Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999). Furthermore, “the trial court is

not required to weigh or credit the mitigating evidence the way appellant

suggests it should be credited or weighed.” Fugate, 608 N.E.2d at 1374.

1. Stipulation to Prior Conviction

[12] Brodien asserts that the trial court abused its discretion by failing to find his

stipulation to the prior conviction at issue in the charging enhancement, which

he argues should be treated the same as a guilty plea, to be a significant

mitigating factor. “[T]he significance of a guilty plea as a mitigating factor

varies from case to case.” Anglemyer, 875 N.E.2d at 221. For example, “[a]

guilty plea saves significant court resources, and where the State reaps such

substantial benefits from the defendant’s act of pleading guilty, the defendant

deserves to have a substantial benefit returned.” Patterson v. State, 846 N.E.2d

723, 729 (Ind. Ct. App. 2006).

[13] Brodien argues that the trial court should have found his stipulation to be a

mitigating factor because he “save[d] the State additional time at trial.”

Appellant’s Br. p. 12. The trial court acknowledged Brodien’s stipulation,

stating, “That was about a 15 or 20 minute exercise that the State would of had

to accomplish. I do appreciate that and it uh, to a certain degree a minimum

mitigator.” Tr. Vol. III pp. 80–81. In stipulating to his prior conviction,

Brodien neither saved the State significant resources nor his victims the stress of

testifying at trial. Brodien merely saved the State a few minutes during which it Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020 Page 6 of 12 would have provided documentary proof of Brodien’s prior conviction to the

trial court. The trial court did not abuse its discretion in failing to find

Brodien’s stipulation to be a significant mitigating factor.

2. Remorse

[14] Brodien also asserts that the trial court abused its discretion in failing to find his

remorse to be a mitigating factor. “Remorse may properly be considered as a

mitigating factor.” Singer v. State, 674 N.E.2d 11, 17 (Ind. Ct. App. 1996).

“However, the Indiana Supreme Court has held that a trial court’s

determination of a defendant’s remorse is similar to a determination of

credibility.” Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App. 2005) (citing

Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002)). “As such, without evidence

of some impermissible consideration by the trial court, a reviewing court will

accept its determination as to remorse.” Id. “The trial court, which has the

ability to directly observe the defendant and listen to the tenor of his or her

voice, is in the best position to determine whether the remorse is genuine.”

Corralez v. State, 815 N.E.2d 1023, 1025 (Ind. Ct. App. 2004).

[15] In claiming that the trial court abused its discretion by failing to consider his

remorse for his actions, Brodien pointed to pre-trial attempts to communicate

with Bowen from jail and his statement to the trial court during the sentencing

hearing. As for the pre-trial alleged expression of remorse, Brodien testified

that he wrote letters to and called Bowen from the jail “apologizing and trying

to get back together.” Tr. Vol. II p. 219. However, despite allegedly

apologizing to Bowen, Brodien blamed Tiffany for the incident in a statement Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020 Page 7 of 12 made prior to sentencing: “I tried to calm [Bowen] but Tiffany cause the

problem [illegible word] to get more that what it should have been. Tiffany

cause the problem.” Appellant’s App. Vol. III p. 43. In his statement to the

trial court during the sentencing hearing, Brodien stated

I just know one thing that the way things, everything happened when Tiffany came up, you know, what I mean. I, I, you know, that we was all drinkin’. Tiffany was between drinking and pills I don’t know what was going on, you know, when this happened. I, I know one thing, I sure didn’t want it to turn out like this, because I loved the woman and I wanted to be with the woman for the rest of my life. I love her. I wanted to take care of her. As I’ve been around here, and I, and I still pray for her everyday. Since I’ve been locked up I’ve been thinkin’ everyday about this, I really have. And I care about her and I still love her so much. I’m, you know, I’m sorry that, you know, it come down to, you know, this happening at all period. I would of, if I could -- I loved the woman. I wanted to spend the rest of my life with her. And I thought she wanted to too. I really did. I thought, I don’t know.

Tr. Vol. III p. 83. While Brodien’s statement could potentially be considered as

an expression of remorse, it also suggests that Brodien has yet to accept

responsibility for his actions as he continued to blame Tiffany for the

altercation.

[16] The trial court, being in the best position to judge Brodien’s credibility as to his

stated remorse, Corralez, 815 N.E.2d at 1025, was not required to assign the

same weight and significance to Brodien’s claimed remorse as Brodien. See

Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020 Page 8 of 12 Fugate, 608 N.E.2d at 1374. The trial court did not abuse its discretion in

failing to find Brodien’s claimed remorse to be a significant mitigating factor.

3. History of Alcohol Abuse

[17] Brodien asserts that the trial court also abused its discretion by failing to find his

history of alcohol abuse to be a mitigating factor.

While we have recognized that a history of substance abuse may be a mitigating circumstance, Field v. State, 843 N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied, we have held that when a defendant is aware of a substance abuse problem but has not taken appropriate steps to treat it, the trial court does not abuse its discretion by rejecting the addiction as a mitigating circumstance. Bryant v. State, 802 N.E.2d 486, 501 (Ind. Ct. App. 2004), trans. denied.

Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App. 2009).

[18] The record reveals that Brodien was aware of his alcohol-related issues but had

failed to take the steps necessary to address his issues. Brodien suggests that his

consumption of alcohol contributed to his criminal behavior, admitting that the

very day that he was released from alcohol monitoring, he consumed alcohol,

drove while he was admittedly “probably over the limit,” and battered his then-

girlfriend and his then-girlfriend’s daughter. Tr. Vol. II p. 203. Based on these

facts, we conclude that the trial court did not abuse its discretion by failing to

find Brodien’s history of alcohol abuse to be a significant mitigating factor.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020 Page 9 of 12 II. Appropriateness of Sentence [19] Indiana Appellate Rule 7(B) provides that “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.” 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) (internal quotation omitted). 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).

[20] The trial court sentenced Brodien to a term of six years for his Level 5 felony

battery conviction and one year for his Class A misdemeanor conviction, for an

aggregate seven-year sentence. A person who commits a Level 5 felony “shall

be imprisoned for a fixed term of between one (1) and six (6) years, with the

advisory sentence being three (3) years.” Ind. Code § 35-50-2-6(b). “A person

who commits a Class A misdemeanor shall be imprisoned for a fixed term of

not more than one (1) year.” Ind. Code § 35-50-3-2. Thus, in sentencing

Brodien to an aggregate seven-year sentence, the trial court sentenced Brodien

to the maximum sentence permitted by the statutes.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020 Page 10 of 12 [21] In arguing that his aggregate seven-year sentence is inappropriate, Brodien

asserts that “although [he] has a lengthy prior criminal history, he is not the

worst of the worst.” Appellant’s Br. p. 14. Brodien points to the fact that

Bowen was not injured during the altercation in an attempt to downplay the

seriousness of his actions. However, we find the nature of Brodien’s actions to

be quite serious. During the altercation, Brodien grabbed Bowen and started

slamming her head into the car. Brodien then yelled at Bowen “because [she]

asked him too loudly, where [her] purse was.” Tr. Vol. II pp. 110–11. Brodien

continued screaming and calling Bowen names while slamming her head on the

ground “really hard.” Tr. Vol. II p. 111. When Tiffany, who is disabled, came

to see if Bowen needed assistance, Brodien attempted to strangle Tiffany,

grabbing her throat with one hand. With his other hand, Brodien grabbed

Tiffany’s hair and pulled her from the house.

[22] As for Brodien’s character, “[w]hen considering the character of the offender,

one relevant fact is the defendant’s criminal history.” Johnson v. State, 986

N.E.2d 852, 857 (Ind. Ct. App. 2013). “The significance of criminal history

varies based on the gravity, nature, and number of prior offenses in relation to

the current offense.” Id. Further, allegations of prior criminal activity need not

be reduced to conviction before they may be properly considered by a

sentencing court. Harlan v. State, 971 N.E.2d 163, 170 (Ind. Ct. App. 2012).

[23] Brodien’s criminal history spans thirty-two years and includes twenty-nine

misdemeanor convictions and fourteen felony convictions. He has been

arrested seventy-four times and has committed numerous probation violations.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020 Page 11 of 12 Brodien acknowledges that at least five of his prior misdemeanor convictions

involve batteries or violence, “including the prior Domestic Battery where

[Bowen] was the victim.” Appellant’s Br. p. 14. In addition, Brodien’s “overall

risk assessment score puts [him] in the HIGH risk category to reoffend.”

Appellant’s App. Vol. III p. 40. Given the serious nature of his offenses and

evidence of poor character, Brodien has failed to convince us that his aggregate

seven-year sentence is inappropriate. See Sanchez, 891 N.E.2d at 176 (“The

defendant bears the burden of persuading us that his sentence is

inappropriate.”).

[24] The judgment of the trial court is affirmed.

Najam, J., and Mathias, J. concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020 Page 12 of 12