Mark H. Soto v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 1, 2018
• Docket: 43A04-1710-CR-2388
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Oct 01 2018, 10:15 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joseph A. Sobek Curtis T. Hill, Jr. Reed, Earhart & Lennox, LLC Indiana Attorney General Warsaw, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mark H. Soto, October 1, 2018

Appellant-Defendant, Court of Appeals Case No. 43A04-1710-CR-2388 v. Appeal from the Kosciusko Circuit Court

State of Indiana, The Honorable Stephen R. Bowers, Appellee-Plaintiff. Special Judge

Trial Court Cause No. 43C01-1602-F5-146

Shepard, Senior Judge.

[1] Mark H. Soto joined with Kevin Bronson, a self-proclaimed gang member, in

an ongoing enterprise to coerce money from others through threats of gang

violence. Among these, Soto told James McLaurin that if he did not comply

Court of Appeals of Indiana | Memorandum Decision 43A04-1710-CR-2388 | October 1, 2018 Page 1 of 11 with their demands, McLaurin and his wife and children would be tortured and

murdered by a biker gang. Soto appeals his convictions of two counts of 1 corrupt business influence, both Level 5 felonies, and one count of 2 intimidation, a Class D felony. We affirm.

[2] Soto was a pastor and a professor at a private Christian university. Bronson

was a career criminal and a self-proclaimed member of the Aryan Brotherhood,

a prison-based gang. The two met in 1998, and Soto became Bronson’s mentor.

Soto and Bronson continued their relationship during Bronson’s periodic

incarcerations, including a stint in the Kosciusko County Jail from 2010 to

2012. Bronson claimed to have become a devout Christian, and Soto

convinced the jailers to give Bronson special treatment, including a phone in his

cell. Soto provided credibility in Bronson’s dealings with others due to his

“impeccable” reputation as a pastor and educator. Tr. Vol. 4, pp. 89, 153.

[3] Bronson had planned to make a movie about his life since at least 2008, and he

claimed that the Brotherhood would release him from membership if the movie

depicted that group in a terrifying light. Bronson also needed assistance with

living expenses when he was not incarcerated. He told Soto that he would give

Soto part of the proceeds from the film in exchange for helping him. Further,

Bronson would establish a nonprofit organization for ministry purposes, which

1 Ind. Code § 35-45-6-2 (2014). 2 Ind. Code § 35-45-2-1 (2013).

Court of Appeals of Indiana | Memorandum Decision 43A04-1710-CR-2388 | October 1, 2018 Page 2 of 11 Soto would run. Finally, Bronson had introduced Soto to his wealthy father,

from whom he expected to receive a large inheritance. Bronson named Soto as

a beneficiary in his will.

[4] Acting on Bronson’s behalf, Soto reached out to several individuals for help

with the movie and funding Bronson’s living expenses. Among others, he

contacted attorney David Baker and pastor James McLaurin. Bronson met

separately with both men, in Soto’s presence. During initial meetings, Bronson

told Baker and McLaurin that he was a member of the Brotherhood and would

be free only if he made a movie demonstrating how “bad the brotherhood was.”

Tr. Vol. 3, p. 122. The movie would also depict Bronson’s purported attempts

to redeem himself. In later, separate meetings with Baker and McLaurin,

Bronson told each of them in Soto’s presence that the Brotherhood was a

violent gang, wanted the movie completed, and would torture and murder

Baker, McLaurin, and their wives and children if they did not cooperate.

[5] Soto separately made threats to Baker and McLaurin. After the initial meeting

involving Bronson, Baker, and Soto, Soto told Baker that the Brotherhood

supported “this story being told” and that they would “have to see it through

[to] fruition.” Id. at 118-19. Soto told McLaurin that, because he knew about

Bronson’s situation, he was “in threat” as well. Id. Soto made it clear

McLaurin was now on the “radar of the Aryan Brotherhood.” Id. at 44. Both

men believed the threats and were fearful. Soto and Bronson eventually

introduced Baker to McLaurin.

Court of Appeals of Indiana | Memorandum Decision 43A04-1710-CR-2388 | October 1, 2018 Page 3 of 11 [6] Baker incorporated a business entity, Young Dragon Enterprises, LLC, to

manage negotiations with film companies. Bronson had a fifty percent interest

in the LLC, while Soto owned thirty percent and McLaurin owned twenty

percent. Bronson and Soto opened two bank accounts for Young Dragon, a

capital account and a corporate account. Soto had access to both accounts, and

Bronson had access to the corporate account. McLaurin made deposits in the

capital account and tracked the movement of funds to the corporate account.

[7] McLaurin asked his friend Tyler Silveus to help pay for the project and

Bronson’s living expenses. McLaurin also provided his own personal funds

under threat. From September through December 2012, McLaurin wrote

personal checks totaling over six thousand dollars to Soto, allegedly for

Bronson’s benefit. Soto personally picked up each check from McLaurin.

[8] McLaurin was unhappy at the rate money was being withdrawn from Young

Dragon’s accounts, and at one point he refused to locate additional money until

he, Bronson, Soto, and Baker met to discuss “accountability and rules of

engagement.” Tr. Vol. 2, p. 220. Soto arranged such a meeting on December

17, 2012, at a church in Van Wert, Ohio. Soto told McLaurin and Baker that

fourteen bikers were in the area and were ready to act against McLaurin and

Baker if they were not “in full compliance with where they wanted to go.” Id.

at 221. Baker understood Soto to mean that he “wouldn’t make it home” if he

and McLaurin did not comply. Tr. Vol. 3, p. 149. After the meeting,

McLaurin and Baker were afraid and talked on their phones as they drove

home to ensure each arrived safely.

Court of Appeals of Indiana | Memorandum Decision 43A04-1710-CR-2388 | October 1, 2018 Page 4 of 11 [9] Bronson continued to threaten Baker and McLaurin’s families with torture and

murder by the Brotherhood if progress was not made. Soto and Bronson

separately told Baker and McLaurin that “Sky Blue” was the leader of the

Brotherhood. Tr. Vol. 2, p. 227; Tr. Vol. 3, p. 125. They also told Baker and

McLaurin that their communications were being monitored by the

Brotherhood. Bronson further told McLaurin the Brotherhood was watching

his house “at all times.” Tr. Vol. 2, p. 232.

[10] Soto also continued to threaten Baker in a series of emails. For example, in a

February 4, 2013 email, Soto told Baker it was “imperative that we show some

progress” because “demands are now being made on us to get them finished . . .

PLEASE do this so we all do not have to deal with the consequences . . .” Tr.

Vol. 8, State’s Ex. 28.

[11] Baker understood that Soto’s reference to “consequences” was related to

Bronson’s repeated claims that the Brotherhood would kill Baker’s family.

Throughout his years-long association with Bronson and Soto, Baker perceived

the threats as directed at himself and McLaurin, never Soto. In addition, Soto

told Baker about his communications with Brotherhood leadership, leaving an

impression that he had a good relationship with them.

[12] Eventually, McLaurin was so exasperated that he texted Bronson, demanding

to speak with Sky Blue. In response, Soto and Bronson called McLaurin on the

night of January 2, 2013. Soto told McLaurin he “had crossed a line and that I

had messed up and that bikers were coming from Fort Wayne to take action on

Court of Appeals of Indiana | Memorandum Decision 43A04-1710-CR-2388 | October 1, 2018 Page 5 of 11 my family.” Tr. Vol. 2, p. 229. Bronson was shouting in the background that

the bikers were going to kill them all. McLaurin understood Soto and Bronson

as indicating “that my family would die in my presence as I watched, and they

would end with me.” Id. at 230. Soto said the bikers would arrive at

McLaurin’s house at 3 a.m.

[13] McLaurin called Tyler Silveus, who came over and picked up McLaurin’s wife

and children. McLaurin stayed at his house to confront the bikers, but no one

arrived. Bronson told McLaurin the bikers had seen McLaurin’s family leave

the house and were “impressed” that he did not call the police. Id. at 234.

[14] Eventually, McLaurin and Baker both ended their involvement with Soto and

Bronson despite their fears of retribution, forcing Soto and Bronson to turn to

other individuals for financial support. Bronson spoke with Silveus and told

him the Brotherhood was monitoring his cell phone. Silveus was afraid for

himself and his family because Bronson had told him that he would be killed if

the movie project failed, and “if anything happened to [Bronson] it would [also]

happen to me and my family.” Tr. Vol. 5, p. 114. Silveus believed that even if

the Brotherhood was not involved, he’d “been around [Bronson] enough to be

concerned about him, in particular, and if pushed to a corner what could he be

capable of.” Id. at 113. From September 2012 through February 2013 Silveus

wrote several checks to Mark Soto totaling $15,010. One of the checks stated

the money was for Soto to purchase cabinets to renovate his kitchen. In all,

Silveus paid out over $140,000 to Young Dragon and Soto. Others paid lesser

amounts to Young Dragon.

Court of Appeals of Indiana | Memorandum Decision 43A04-1710-CR-2388 | October 1, 2018 Page 6 of 11 [15] Bronson was arrested on unrelated charges in December 2014, and the police

were eventually informed of Soto and Bronson’s scheme. The State charged

Soto with three counts of corrupt business influence, all Class C felonies/Level

5 felonies, and three counts of intimidation, one as a Class D felony/Level 6

felony, and the other two as Class D felonies. A jury determined Soto was

guilty of two of the counts of corrupt business influence and one count of

intimidation but found him not guilty of the remaining charges. The trial court

imposed a sentence, including ordering Soto to pay restitution as follows:

Christian McCray $9,119.57

Derek Hobbs $5,000

Tyler Silveus $143,578.32

Cory Greene $3,150

I. Inconsistent Verdicts [16] Soto first argues his three convictions should be reversed because they are

factually inconsistent with his not guilty verdicts on other counts. The Indiana

Supreme Court has stated, “Jury verdicts in criminal cases are not subject to

appellate review on grounds that they are inconsistent, contradictory, or

irreconcilable.” Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010). Soto claims

the facts of this case are distinguishable from the facts in Beattie, but we are not

free to disregard the Supreme Court’s directive.

Court of Appeals of Indiana | Memorandum Decision 43A04-1710-CR-2388 | October 1, 2018 Page 7 of 11 II. Sufficiency of the Evidence [17] When reviewing the sufficiency of the evidence, we consider only probative

evidence in the light most favorable to the trial court’s judgment. Burns v. State,

91 N.E.3d 635 (Ind. 2018). We do not assess the credibility of the witnesses or

reweigh the evidence. Id. Reversal is appropriate only when no reasonable

fact-finder could find the elements of the crime proven beyond a reasonable

doubt. Id.

[18] To obtain a conviction against Soto for Count I, corrupt business influence as a

Level 5 felony, the State was required to prove beyond a reasonable doubt that

Soto and Bronson knowingly or intentionally received money from individuals,

which was derived from their pattern of acts of intimidation against those

individuals, and that Soto and Bronson invested the proceeds in Young Dragon

Enterprises, LLC. See Ind. Code § 35-45-6-2. Further, to obtain a conviction

against Soto for Count III, a second charge of corrupt business influence as a

Level 5 felony, the State was required to prove beyond a reasonable doubt that

Soto and Bronson knowingly or intentionally conducted the business of Young

Dragon Enterprises, LLC, through a pattern of racketeering activity, specifically

acts of intimidation. Id.

[19] The evidence at trial did establish that Soto and Bronson collaborated to coerce

their victims to provide services and money. Soto and Bronson’s goals were

twofold: to make a movie about Bronson’s life, and to provide money for

themselves. The two repeatedly made direct and indirect threats to their

Court of Appeals of Indiana | Memorandum Decision 43A04-1710-CR-2388 | October 1, 2018 Page 8 of 11 victims that the Brotherhood would torture and murder their families. They

forced Baker to incorporate Young Dragon, which was the entity that received

most of the money they coerced from Silveus and others. Soto had the

authority to withdraw money from Young Dragon’s accounts. Further, Soto

also received funds directly from McLaurin, Silveus, and others. He used some

of the money to renovate his kitchen.

[20] This is sufficient evidence to prove the two separate counts of corrupt business

influence. Soto argues there was no “pattern” of intimidation against the

victims, and that all acts of intimidation were committed by Bronson. These

arguments are a request to reweigh the evidence.

[21] To obtain a conviction against Soto for Count V, intimidation as a Class D

felony, the State was required to prove beyond a reasonable doubt that Soto

communicated a threat to McLaurin with the intent that he be placed in fear of

retaliation for asking to contact Bronson’s alleged superior in the Brotherhood,

causing McLaurin to engage in conduct against his will, specifically, sending

his family from their home in the middle of the night and remaining awake to

await possible attack on him and his family. See Ind. Code § 35-45-2-1.

[22] The facts set forth above establish that after McLaurin demanded to talk with

“Sky Blue,” Soto and Bronson called him on the night of January 2, 2013.

While Bronson screamed in the background, Soto told McLaurin he “had

crossed a line and that I had messed up and that bikers were coming from Fort

Wayne to take action on my family.” Tr. Vol. 2, p. 229. Soto’s threat caused

Court of Appeals of Indiana | Memorandum Decision 43A04-1710-CR-2388 | October 1, 2018 Page 9 of 11 McLaurin to send his wife and children away while he stayed behind to

confront any assailants. This is sufficient evidence to establish the elements of

intimidation beyond a reasonable doubt. Soto argues there is insufficient

evidence that he was one of the persons who called McLaurin, and he further

claims he was also being threatened by Bronson. These arguments are requests

to reweigh the evidence.

III. Restitution [23] For his final claim, Soto argues the trial court deprived him of due process in

awarding restitution. An order of restitution is a matter within the court’s

sound discretion and will be reversed only on a showing of abuse of discretion.

Archer v. State, 81 N.E.3d 212 (Ind. 2017). Due process requires reasonable

notice, an opportunity for a fair hearing, and a right to have a court of

competent jurisdiction decide the case. McCallip v. State, 580 N.E.2d 278 (Ind.

Ct. App. 1991).

[24] Soto claims the restitution order was unfair because the State did not present

any evidence at sentencing to support its request for restitution. At trial, the

State submitted ample, specific evidence of the amounts paid by the victims,

including copies of checks. These documents were apparently provided to Soto

in discovery prior to trial. We cannot conclude Soto was deprived of

reasonable notice of the amount of damages.

[25] Soto next argues the trial court deprived him of due process by ordering him to

pay restitution to Silveus because the jury determined he was not guilty of

Court of Appeals of Indiana | Memorandum Decision 43A04-1710-CR-2388 | October 1, 2018 Page 10 of 11 intimidating Silveus. In addition, he claims Silveus conceded at trial that not

all of his payments to Young Dragon and Soto were driven by fear. In effect,

Soto wishes to contest what parts of the restitution to Silveus rest on his

conviction under Count I as opposed to Counts III or V. This seems likely to

be a repackaging of his argument about inconsistent verdicts, but if not, Soto

has not supplied argument about the distribution of restitution between counts.

[26] Finally, Soto claims the court failed to consider whether he could afford

restitution. An inquiry into ability to pay is required by due process if

restitution is a condition of probation. M.L. v. State, 838 N.E.2d 525 (Ind. Ct.

App. 2005), trans. denied. The court explained to Soto his ability to pay would

“be determined in conjunction with [the] probation department” and would be

addressed in a “further hearing at a later date.” Tr. Vol. 6, p. 210. The court

did not abuse its discretion by deferring inquiry into Soto’s ability to pay.

[27] For the reasons stated above, we affirm the judgment of the trial court.

[28] Affirmed.

Riley, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 43A04-1710-CR-2388 | October 1, 2018 Page 11 of 11