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

• Court: Indiana Court of Appeals
• Decided: September 23, 2020
• Docket: 20A-CR-115
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-115 | September 23, 2020 Page 1 of 12 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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-115 | September 23, 2020 Page 2 of 12 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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-115 | September 23, 2020 Page 3 of 12 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

Court of Appeals of Indiana | Memorandum Decision 20A-CR-115 | September 23, 2020 Page 4 of 12 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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-115 | September 23, 2020 Page 5 of 12 (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

Court of Appeals of Indiana | Memorandum Decision 20A-CR-115 | September 23, 2020 Page 6 of 12 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

Court of Appeals of Indiana | Memorandum Decision 20A-CR-115 | September 23, 2020 Page 7 of 12 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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-115 | September 23, 2020 Page 8 of 12 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

Court of Appeals of Indiana | Memorandum Decision 20A-CR-115 | September 23, 2020 Page 9 of 12 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

Court of Appeals of Indiana | Memorandum Decision 20A-CR-115 | September 23, 2020 Page 10 of 12 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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-115 | September 23, 2020 Page 11 of 12 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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-115 | September 23, 2020 Page 12 of 12