John Browning, Jr. v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 28 2017, 9:27 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John Browning, Jr., March 28, 2017 Appellant-Defendant, Court of Appeals Case No. 15A04-1605-CR-1063 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Jonathan Cleary, Appellee-Plaintiff. Judge Trial Court Cause No. 15D01-1410-F4-051

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017 Page 1 of 10 [1] John Browning, Jr. appeals his conviction for patronizing a prostitute as a class

A misdemeanor. Browning raises one issue which we revise and restate as

whether the evidence is sufficient to sustain his conviction. We affirm.

Facts and Procedural History

[2] The facts most favorable to the conviction reveal that in early July of 2014,

seventeen-year-old S.M., her baby, and some of her friends were sitting outside

the post office in Moores Hill, Dearborn County, when Browning left the gun

shop he owned, crossed the street, and approached them. S.M. knew

Browning, and they attended the same church. Browning told S.M. her baby

was cute and asked if he could take a picture of her. Afterwards, he told S.M.

to have a nice day and returned to the gun shop.

[3] About one week later, S.M. walked near the gun shop, Browning yelled at her,

and she went into the shop and spoke with him. Browning asked S.M. if she

was still looking for a job, and he told her she could break down the unpacked

boxes in the shop and also mentioned that she could help him with “personal

business.” Transcript at 28. S.M. did not understand what Browning meant by

the reference to “personal business,” and she “just told him [she] would think

about it.” Id. at 29. Browning told her to come back in a couple of days.

[4] Approximately three days later, on July 16, 2014, S.M. returned to the gun

shop, and Browning asked her if she had thought about the “personal offer,

options [he] gave [her],” S.M. asked him what he meant, and Browning

responded “you know what I mean.” Id. at 32. When S.M. told him that she

Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017 Page 2 of 10 did not understand, Browning “offered [her] to have oral sex with him for

twenty dollars an hour or half hour or something” and to “have sex with him

for a half hour for thirty dollars.” Id. S.M. felt strange, awkward, and upset,

and she left the shop and walked to her mother’s residence. S.M. told her

mother what had occurred and subsequently called the police and asked for

Moores Hill Town Marshall Brent Casebolt.

[5] Marshall Casebolt was dispatched and arrived at S.M.’s mother’s residence and

spoke to S.M. At first, Marshall Casebolt did not “believe her totally.” Id. at

67. Marshall Casebolt told S.M. that he would talk with her at a later date and

would have her return to the shop wearing a recording device.

[6] On August 12th, 2014, Marshall Casebolt returned to S.M.’s mother’s residence

with a digital recorder and obtained her mother’s permission for its use, and

S.M. agreed to wear the digital recorder and return to Browning’s shop and

record their conversation. Marshall Casebolt demonstrated how to operate the

digital recorder. At around 4:30 p.m., she donned the digital recorder and

walked to the gun shop, activating the recorder before she entered. Right after

she walked in, Browning locked the store’s door and lowered the blinds, which

made S.M. scared. Marshall Casebolt positioned himself across the street from

the shop. After speaking about guns, Browning asked S.M. what she thought

about the “personal business.” Id. at 39. She asked him “one more time what

that is,” and “that’s when he repeated himself about oral sex, paying her for

oral sex and to have sex with him” and specifically stated that he was willing to

pay “[a]round twenty to thirty dollars for a half hour to an hour.” Id. at 39, 41.

Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017 Page 3 of 10 They also discussed S.M.’s previous sexual experience and various sexual

positions and activities. After approximately thirty minutes, S.M. left the shop,

stopped the digital recorder, and returned to her mother’s residence. Marshall

Casebolt met her there, retrieved the digital recorder, and subsequently listened

to the recording.

[7] On August 19, 2014, Marshall Casebolt spoke with Browning and told him that

he was investigating a complaint made by a seventeen-year old whom he had

propositioned for sex, and Browning immediately said that the complainant

would be S.M. Browning told Marshall Casebolt that “she was just there and

his mind had went to mush and the devil won on this one.” Id. at 76. Also, on

August 21, 2014, Browning told Marshall Casebolt that “the sexual part” was

“a personal thing between him and [S.M.]” and that “he had nothing further in

mind for her than that.” Id. at 82. Browning also stated that “this would never

happen again and if you took away the variable there was no problem he was

fixed,” in which the “variable” was S.M. Id. at 83.

[8] On October 10, 2014, the State charged Browning with Count I, promoting

prostitution of a person under eighteen years of age, a level 4 felony. Also, on

January 20, 2016, the State amended the charging information to add Count II,

patronizing a prostitute as a class A misdemeanor.

[9] The court held a bench trial on April 14, 2016. At the trial, the State introduced

and the court admitted as State’s Exhibit 1 the digital recording of the

conversation between S.M. and Browning made on August 12, 2014. In the

Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017 Page 4 of 10 recording, Browning can be heard saying “[w]ell what we talk about before,

twenty dollars for a half hour, something like that?” State’s Exhibit 1 at 11:16-

11:18. S.M. responded: “Yea.” Id. at 11:19. S.M. then stated that she was

confused by what Browning “meant by that,” id. at 11:36-11:37, Browning

asked whether S.M. was wondering if the work was something of a “sexual

nature,” id. at 12:07-12:10, S.M. replied affirmatively, and Browning asked

“well what do you think about that?” Id. at 12:14-12:16. S.M. responded that

she would have to think about it. Browning told her he was asking for help

with whatever S.M. was comfortable with and that he could use help “after

hours” on Tuesdays and Thursdays. Id. at 13:01-13:02. Browning also told

S.M. that he “might be able to afford thirty dollars” for a half hour. Id. at

13:30-13:40. Later in the conversation, Browning asked S.M. if she “like[d]

porn or not,” and she responded that she had never watched it. Id. at 19:16-

19:20. He further instructed that what they had talked about “stays between me

and you.” Id. at 20:40-20:43. He also asked S.M. what she had done before

and if she had any “favorite things” or if there was anything she did not like.

Id. at 23:31-23:32. Browning then asked if she had ever “masturbated in front

of her partner,” id. at 23:49-23:53, or if she had done “sixty-nine.” Id. at 24:55-

24:57. Browning told S.M. that he could give her “instructions” or “lessons”

and that she could “learn from” him. Id. at 25:25-25:30. He asked her if her

partner had showed her how to “really suck cock,” id. at 25:45-25:48, and that

if she wanted to “get into a guy’s pocketbook you learn how to do that.” Id. at

26:05-26:08.

Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017 Page 5 of 10 [10] After the State rested, defense counsel moved for a directed verdict on the

evidence on both counts. During the discussion of Browning’s motion, the

State moved to amend both counts to include August 12th in the range of dates

noted in the charging information. The parties agreed with the court that there

was a “typographical error” in the charging information in that the date range

ended at August 11th. Transcript at 102. The State asserted that the charging

information “does say on about or between,” that “there is other testimony that

the same type of conduct happened prior to that” and that “[t]he recorded

conversations just bolster[] her testimony about the prior contact . . . .” Id. at

103-104. The State argued that Browning’s fundamental rights would not be

impacted by the amendment “when there’s no allegations or alibi defense or

some other prohibition of that date.” Id. at 104. The parties also discussed how

Marshall Casebolt testified during a deposition that the recording occurred on

August 11, 2014. The court denied the motion for directed verdict on Count II

“because there’s been testimony that he did the exact same thing days before . .

. .” Id. at 107. The court noted that it still could consider the recorded evidence

“because it’s been admitted without objection.” Id. The court also granted

Browning’s motion for directed verdict regarding Count I and denied the State’s

motion to amend. After the court made its rulings, Browning rested.

[11] The trial court found Browning guilty as charged on Count II and sentenced

him to 365 days with sixty days executed and 305 days suspended to supervised

probation.

Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017 Page 6 of 10 Discussion

[12] The issue is whether the evidence is sufficient to sustain Browning’s conviction.

When reviewing the sufficiency of the evidence to support a conviction, we

must consider only the probative evidence and reasonable inferences supporting

the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

witness credibility or reweigh the evidence. Id. We consider conflicting

evidence most favorably to the trial court’s ruling. Id. We affirm the conviction

unless “no reasonable fact-finder could find the elements of the crime proven

beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270

(Ind. 2000)). It is not necessary that the evidence overcome every reasonable

hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference

may reasonably be drawn from it to support the verdict. Id.

[13] The offense of patronizing a prostitute as a class A misdemeanor is governed by

Ind. Code § 35-45-4-3, which provides in relevant part:

A person who knowingly or intentionally pays, or offers or agrees to pay, money or other property to another person:

(1) for having engaged in, or on the understanding that the other person will engage in, sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) with the person or with any other person; . . .

commits patronizing a prostitute, a Class A misdemeanor.

Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017 Page 7 of 10 The charging information alleged that “[o]n, about or between July 10, 2014,

and August 11, 2014, in Dearborn County, State of Indiana, [Browning] did

knowingly offer to pay money to another person, to-wit: S.M., on the

understanding that S.M. would engage in sexual intercourse or other sexual

conduct with” him. Appellant’s Appendix Volume 2 at 48.

[14] Browning argues that “[t]he most damning evidence from trial came through a

taped conversation from August 12, 2014,” which is “one day after the charged

crime.” Appellant’s Brief at 9-10. He asserts that “[a] conviction cannot rest on

weak facts and conjecture.” Id. at 10. Browning maintains that S.M. admitted

at trial to having a proclivity for lying and that accordingly it is “necessary to

carefully examine the taped conversation to ensure her testimony was reliable.”

Id. at 11. He argues that the recording demonstrates that S.M. lied or

exaggerated her prior conversations with Browning concerning payment for

sex.

[15] The State argues that it presented evidence that, on July 16, 2014, Browning

offered S.M. twenty dollars per half hour for oral sex and thirty dollars per half

hour for sexual intercourse with him and that his arguments amount to a

request that we reweigh the evidence and judge S.M.’s credibility. It also

argues regarding the digital recording that “[w]hen an information alleges that

an offense occurred ‘on or about’ a certain date, the State is not limited to

presenting evidence of events that occurred on that particular date when time is

not an element of the offense.” Appellee’s Brief at 12. The State argues that it

was not limited to events that occurred only before August 11, 2014.

Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017 Page 8 of 10 [16] The evidence most favorable to the conviction demonstrates that Browning on

or about July 13, 2014, mentioned to S.M. that she could earn money by

helping him with his “personal business,” and on July 16, 2014, she returned to

Browning’s gun shop to ask him what he meant by personal business.

Transcript at 28. Browning responded that “you know what I mean.” Id. at 32.

When S.M. told him that she did not understand, Browning “offered [her] to

have oral sex with him for twenty dollars an hour or half hour or something”

and to “have sex with him for a half hour for thirty dollars.” Id. Based on this

conversation, she phoned the police, and Marshall Casebolt on that date spoke

with S.M. at her mother’s residence about the incident. Also, in the digital

recording, Browning can be heard saying “[w]ell what we talk about before,

twenty dollars for a half hour, something like that?” State’s Exhibit 1 at 11:16-

11:18. This statement and others on the recording, as well as Browning’s

statements to Marshall Casebolt, corroborate S.M.’s testimony regarding the

conversation occurring on July 16th.

[17] Browning does not assert that the evidence presented at his bench trial

regarding the events of July 16, 2014 are insufficient on their face to prove the

elements of patronizing a prostitute. Rather, he argues that S.M.’s credibility is

questionable and that she is lying or exaggerating regarding those events.

Browning’s arguments are merely a request that we reweigh the evidence and

judge the credibility of the witnesses, which we cannot do. See Drane, 867

N.E.2d at 146.

Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017 Page 9 of 10 [18] Based upon our review of the testimony most favorable to the conviction, we

conclude that a reasonable trier of fact could have found that Browning

knowingly offered to pay money to S.M. with the understanding that she would

engage in sexual intercourse or other sexual conduct with him, and that

sufficient evidence exists from which the trier of fact could find him guilty

beyond a reasonable doubt of patronizing a prostitute as a class A

misdemeanor.

Conclusion

[19] For the foregoing reasons, we affirm Browning’s conviction for patronizing a

prostitute as a class A misdemeanor.

[20] Affirmed.

Vaidik, C.J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017 Page 10 of 10