Joshua Wyatt v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 12, 2018
• Docket: 18A-CR-1089
• 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 Dec 12 2018, 10:37 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 Jane Ann Noblitt Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana

Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joshua Wyatt, December 12, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1089 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause Nos. 03D01-1709-F6-4876 03D01-1308-FD-4692

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1089 | December 12, 2018 Page 1 of 10 [1] Joshua Wyatt appeals his conviction and sentence for invasion of privacy as a

level 6 felony. Wyatt raises two issues which we revise and restate as follows:

I. Whether the evidence is sufficient to sustain his conviction; and

II. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

Facts and Procedural History

[2] On May 18, 2017, the trial court entered an ex parte order for protection, in

favor of Natasha Wyatt and against her husband Joshua Wyatt, and the order

prohibited Wyatt from harassing, annoying, telephoning, contacting, or directly

or indirectly communicating with Natasha. A sheriff’s deputy served the

protective order on Wyatt on August 11, 2017, read the order to him, and left

him a copy.

[3] On August 27, 2017, Natasha drove her silver GMC Envoy to her cousin

Jennifer’s house and parked the vehicle on the street directly in front of the

house. Wyatt knew that Natasha drove the GMC Envoy. While Natasha and

Jennifer were on the couch in the living room, they heard a motorcycle and

then Jennifer saw Wyatt come up to her porch. Wyatt yelled in a very loud and

angry tone of voice for Natasha to exit the house. Wyatt walked away from the

window, struck Natasha’s vehicle leaving a dent, and then drove away on his Court of Appeals of Indiana | Memorandum Decision 18A-CR-1089 | December 12, 2018 Page 2 of 10 motorcycle. Natasha and Jennifer walked outside to the porch, and Natasha

called the police. While Natasha and Jennifer were still on the porch, Wyatt

drove back to the house and stopped his motorcycle on the street near

Natasha’s vehicle. His demeanor was “[p]retty angry,” he screamed and called

Natasha “whore” and “bitch,” and asked “who are you sleeping with.” Id. at

40. After one or two minutes, he began to drive away and nearly collided with

a vehicle approaching from the other direction.

[4] On September 5, 2017, the State charged Wyatt with invasion of privacy as a

level 6 felony under cause number 13D01-1709-F6-4876 (“Cause No. 4876”).

The State subsequently filed petitions to revoke probation under cause number

03D01-1308-FD-4692 (“Cause No. 4692”) alleging that Wyatt had been placed

on probation for two years following his conviction for perjury and that he

violated his probation by having charges filed against him for invasion of

privacy under Cause No. 4876, by testing positive for methamphetamine and

marijuana on May 18, 2017, and by being arrested for possession of

methamphetamine on September 11, 2017. At Wyatt’s jury trial, the prosecutor

asked Natasha if she saw her husband Wyatt on August 27, 2017, and Natasha

testified “I don’t quite remember” and that she was in the laundry room. Id. at

50. When asked if there was a time she was in the living room with her cousin

and someone came onto the porch, Natasha replied: “I was not in the living

room, I was doing laundry, if that was what I was doing. I don’t quite

remember so I can’t tell you, yes or no. It was eight months ago and a

thousand other things have occurred.” Id. Natasha agreed that she had called

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1089 | December 12, 2018 Page 3 of 10 the police and that, when the police responded, the police obtained a recorded

statement from her. When asked about the recorded statement, Natasha stated

“I mean, I may have over exaggerated a lot, I was just really upset at him, and

being childish, which I have done a lot during our relationships.” Id. at 53. A

portion of Natasha’s August 27, 2017 recorded statement to police was played

for the jury, and in her statement she indicated that she had a protective order

against him, it had been served on Wyatt two weeks earlier, he had violated the

order twice, and that day he had visited her cousin’s house, yelled at her to exit

the house, punched her vehicle, “screaming, why are you doing this to me,”

and accused her of sleeping with another person. Id. at 57. Natasha

acknowledged that the recording was of her voice and was the statement she

gave to police after calling 911. She indicated that she had the protective order

dismissed in January 2018 and that she had reconciled with Wyatt. When

asked if she had told the truth to the police in August, Natasha replied “I mean

not the whole truth, because I . . . most definitely was being childish and

wanted him to be in trouble.” Id. at 62. She indicated she had wanted Wyatt to

go to jail, and when asked why she answered “[b]ecause he chose drugs and not

being a good person over our family.” Id. Natasha indicated that she pled

guilty to false informing in 2008 or 2009. Portions of recorded phone calls

between Wyatt and Natasha while Wyatt was in jail were played for the jury

during which Wyatt encouraged Natasha not to testify against him. The

recordings played for the jury included Wyatt stating “[y]ou ought to just not

go. That would be the best thing,” Natasha stating “[b]ut if I go in there . . .

and be like I don’t know what the f--k you are talking about. I don’t remember Court of Appeals of Indiana | Memorandum Decision 18A-CR-1089 | December 12, 2018 Page 4 of 10 s--t,” and Wyatt stating “tell them you f---ing lied man” and “[s]omone heard

the motorcycle go by, but you didn’t f---ing see nobody, f--k it. I don’t know,

figure it out. I love you.” Id. at 104-106. The jury found Wyatt guilty of

invasion of privacy as a class A misdemeanor, and he subsequently pled guilty

to the enhancement of the offense as a level 6 felony.

[5] On April 3, 2018, the court held a hearing at which Wyatt’s probation officer

testified that Wyatt was on probation under Cause No. 4692 at the time he

committed the August 27, 2017 offense. The probation officer also testified that

Wyatt tested positive for methamphetamine on March 18, 2017, and November

30, 2017. The court found that Wyatt violated the terms of his probation under

Cause No. 4692 and indicated it would move on to sentencing and disposition.

Wyatt stated:

I just want to say uh that, I know it’s . . . all this stuff, that I am in trouble for, is due to drug problems and I just now at thirty- seven years old, but uh I’m realizing that now. And uh, if I would get another chance I know, I know what I need to do. And get treatment at I.O.P. I know that and uh I want to be there for my family. Be, be the best ever. That’s all I’ve got.

Id. at 147. The court found the aggravating circumstances included Wyatt’s

history of criminal behavior; the fact he had been placed on probation in the

past and had his probation revoked; that he was on probation at the time of the

offense; and the fact he had the opportunity for treatment in the past and was

unsuccessful. The court found no mitigating circumstances. It sentenced

Wyatt to two and one-half years for invasion of privacy as a level 6 felony

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1089 | December 12, 2018 Page 5 of 10 under Cause No. 4876 to be served consecutive to his sentence under Cause

No. 4692, and ordered that he serve the balance of his previously-suspended

sentence of two years in the Department of Correction under Cause No. 4692.

Discussion

I.

[6] The first issue is whether the evidence is insufficient to sustain Wyatt’s

conviction for invasion of privacy as a level 6 felony. When reviewing claims

of insufficiency of the evidence, we do not reweigh the evidence or judge the

credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g

denied. We look to the evidence and the reasonable inferences therefrom that

support the verdict. Id. The conviction will be affirmed if there exists evidence

of probative value from which a reasonable jury could find the defendant guilty

beyond a reasonable doubt. Id. A conviction may be sustained on the

uncorroborated testimony of a single witness or victim. Lay v. State, 933 N.E.2d

38, 42 (Ind. Ct. App. 2010), trans. denied.

[7] Ind. Code § 35-46-1-15.1 provided in part at the time of the offense that a

person who knowingly or intentionally violates a protective order to prevent

domestic or family violence or an ex parte protective order commits invasion of

privacy as a class A misdemeanor and that the offense is a level 6 felony if the

person has a prior unrelated conviction for an offense under the section.

(Subsequently amended by Pub. L. No. 87-2018, § 3 (eff. July 1, 2018)).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1089 | December 12, 2018 Page 6 of 10 [8] Wyatt argues the evidence is insufficient to support his conviction for invasion

of privacy “given Natasha Wyatt’s unequivocal testimony that she made a false

report.” Appellant’s Brief at 11. He argues that Natasha indicated that she did

not recall the events in question, exaggerated because she was upset with him,

and admitted that she had a conviction for false informing in 2009, which

together shed considerable doubt on the events of August 27, 2017. The State

argues that Jennifer testified as to Wyatt’s actions, Wyatt’s argument is nothing

more than a request to reweigh the evidence, and the jury was not obligated to

believe Natasha’s attempt to recant her report to police.

[9] The jury heard the testimony of Natasha’s cousin Jennifer who observed

Wyatt’s actions on August 27, 2017. Jennifer testified that Wyatt arrived at her

house, yelled in a very loud and angry tone, walked away from the window,

struck Natasha’s vehicle, and drove away. Jennifer further testified that, while

she and Natasha were still on the porch, Wyatt returned, stopped his

motorcycle on the street, screamed, and called Natasha “whore” and “bitch.”

Transcript Volume II at 40. In her August 27, 2017 statement to police,

Natasha described Wyatt violating the protective order on that day. The State

also played portions of recorded phone calls between Wyatt and Natasha

during which Wyatt encouraged Natasha not to testify against him.

[10] Wyatt’s argument constitutes a request for this Court to reweigh the evidence,

which we will not do. See Jordan, 656 N.E.2d at 817. Based upon the record,

including Jennifer’s testimony and the recordings, we conclude the State

presented evidence of a probative nature from which the jury could find beyond

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1089 | December 12, 2018 Page 7 of 10 a reasonable doubt that Wyatt committed the offense of invasion of privacy as a

level 6 felony.

II.

[11] The next issue is whether Wyatt’s sentence is inappropriate in light of the

nature of his offense and character. Ind. Appellate Rule 7(B) provides that we

“may revise a sentence authorized by statute if, after due consideration of the

trial court’s decision, [we find] that the sentence is inappropriate in light of the

nature of the offense and the character of the offender.” The burden is on the

defendant to persuade the appellate court that his or her sentence is

inappropriate. See Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[12] Wyatt maintains the court should have considered Natasha’s testimony that she

made a false report, dismissed the protective order, and reconciled with him,

and his statement at sentencing, and he argues that, “[b]ecause these factors

were not considered by the trial court, . . . his sentence is inappropriate.”

Appellant’s Brief at 17. The State argues that Wyatt tracked Natasha down two

weeks after being served with the protective order, yelled at her, and returned a

second time and called her names. It also argues that Wyatt has a lengthy

criminal history which includes fourteen prior misdemeanors, four prior

felonies, and twenty probation violations and that “[h]is attempt to absent the

victim from his trial only further highlights his poor character.” Appellee’s

Brief at 18.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1089 | December 12, 2018 Page 8 of 10 [13] Our review of the nature of the offense reveals that, sixteen days after he was

served with a protective order prohibiting him from contacting Natasha, Wyatt

drove to the house where Natasha was located and yelled for her to exit the

house. Wyatt punched Natasha’s vehicle, drove away on his motorcycle, and

then returned to the house, screamed, and called Natasha names.

[14] Our review of the character of the offender reveals that, while in jail, Wyatt

spoke with Natasha and encouraged her not to testify against him. The

presentence investigation report (“PSI”) reveals Wyatt has a lengthy criminal

history beginning in 1999 which includes speed contest, battery, driving while

suspended, illegal consumption, public intoxication, OMVUI, resisting law

enforcement, and false informing as misdemeanors as well as OMVUI as a

class D felony in 2003, intimidation as a class D felony and invasion of privacy

as a class A misdemeanor in 2007, false informing as a class B misdemeanor in

2009, disorderly conduct as a class B misdemeanor and intimidation as a class

A misdemeanor in 2011, invasion of privacy as a class D felony in 2013, and

perjury as a class D felony in 2013 under Cause No. 4692. The PSI also reveals

that Wyatt has violated his probation numerous times. The court at sentencing

stated that Wyatt’s criminal history is “horrible.” Transcript Volume II at 157.

The court also stated that it found this case very disturbing because there were

questions regarding truthfulness with the court and the process.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1089 | December 12, 2018 Page 9 of 10 [15] After due consideration, we conclude that Wyatt has not sustained his burden

of establishing that his sentence is inappropriate in light of the nature of the

offense and his character.1

Conclusion

[16] For the foregoing reasons, we affirm Wyatt’s conviction and sentence.

[17] Affirmed.

Bailey, J., and Bradford, J., concur.

1 To the extent Wyatt argues the court abused its discretion in sentencing him by failing to consider Natasha’s testimony that she made a false report, the dismissal of the protective order and Natasha and Wyatt’s reconciliation, and Wyatt’s statement at sentencing, we need not address this issue because we find that his sentence is not inappropriate. See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any error in failing to consider the defendant’s guilty plea as a mitigating factor is harmless if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand for resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial court is found to have abused its discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed was not inappropriate”), trans. denied), trans. denied.

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