Matthew Bryant v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of Oct 11 2012, 8:32 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
of the supreme court,
case. court of appeals and
tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

KIMBERLY A. JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana

KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

MATTHEW BRYANT, )
)
Appellant-Defendant, )
)
vs. ) No. 03A01-1110-CR-496
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE BARTHOLOMEW SUPERIOR COURT
The Honorable Chris D. Monroe, Judge
Cause No. 03D01-1012-FA-1625

October 11, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge
 Matthew Bryant appeals his convictions and sentences for burglary as a class A

felony, two counts of criminal confinement as class B felonies, two counts of

intimidation as class C felonies, and battery resulting in serious bodily injury as a class C

felony. Bryant raises five issues which we revise and restate as:

I. Whether the trial court abused its discretion by admitting certain
evidence;

II. Whether the evidence is sufficient to sustain Bryant’s conviction for
burglary as a class A felony;

III. Whether Bryant’s convictions for burglary as a class A felony and
battery as a class C felony violate double jeopardy;

IV. Whether the prosecutor committed prosecutorial misconduct that
resulted in fundamental error;

V. Whether the court abused its discretion in sentencing Bryant; and

VI. Whether Bryant’s sentence is inappropriate in light of the nature of
the offenses and the character of the offender.

We affirm in part and remand.

The relevant facts follow. In May 2010, E.B. began a relationship with Bryant.

By September 2010, they were arguing a lot. During the two weeks prior to December 4,

2010, Bryant and E.B. were “arguing all of the time,” and Bryant was “very possessive

and controlling.” Transcript at 286. On December 1, 2010, Bryant had a spare key to

E.B.’s apartment.

On December 3, 2010, E.B. worked, and Bryant spent the night with her. The

next morning, E.B. went to work and had to work later than her regular shift. Bryant sent

E.B. text messages throughout the day because he was angry that E.B. was working late

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and accused her of being somewhere other than work. Bryant told E.B. that he was

leaving and would not be at her apartment when she arrived home.

Around 7:00 p.m., E.B. returned home and thought that Bryant was gone as all of

the lights were off in the apartment. E.B. went upstairs to change her clothes and then

saw a flashlight on her and felt Bryant grab her. Bryant threw E.B. into the bedroom,

threw her on the floor, held her down, attempted to remove her phone from her

possession, and yelled at her. E.B. attempted to escape, but Bryant was straddled over

her. E.B. “ended up off . . . the floor” and attempted to run for the stairs to run

downstairs, but Bryant grabbed her, picked her up, and took her down the hallway to her

bedroom. Id. at 290. E.B. flailed, kicked, and tried to “squirm away.” Id. at 291.

E.B. “ended up like flying backwards and slammed the back of [her] head against

the wall and it knocked [her] down.” Id. Bryant picked her up and yelled: “[L]ook what

[you’re] doing to [yourself] and look what [you] made happen.” Id. Bryant picked up

E.B., put her on her bed, straddled her again, pulled out a knife, and flipped open the

blade. Bryant then called Billy Boker and told him that E.B. was “freaking out and going

crazy,” that he did not know what was wrong with E.B., that he was going to “put a stop

to it,” and that he needed two “guys to come down and be the clean-up crew.” Id. at 292.

E.B. thought that Bryant was going to kill her. Bryant told E.B. to talk to Boker, and

E.B. told Boker to tell Bryant to stop.

At some point, Bryant and E.B. ended up downstairs, E.B. attempted to run out the

front door, but Bryant grabbed her from behind and hit her with his arm around her

throat. Bryant then dragged E.B. into the living room and struck her in the jaw which

3
hurt “really bad” and knocked one of her teeth loose. Id. at 294. E.B. then sat down on

the floor, became overwhelmingly fatigued, curled up with her knees pulled to her chest,

and fell asleep.

On the morning of December 5, 2010, E.B. woke up in bed next to Bryant. At

some point that day, E.B. took the spare key back from Bryant. E.B. went to work and

did not call the police because she was afraid of the consequences and that Bryant would

physically harm her if he discovered that she had called the police. That day, Bryant sent

E.B. text messages and “[i]t was like nothing ever happened.” Id. at 298. Bryant told

E.B. that he loved her and that he was going to cook her dinner that night.

On the morning of December 6, 2010, E.B. drove Bryant to his friend’s house.

E.B. drove into the driveway of the friend’s house, and Bryant exited the car and said, “I

love you, I’ll see you later.” Id. at 299. Before driving away, E.B. said, “I’m not doing

this anymore and I [don’t] want to be with [you].” Id. As soon as E.B. drove away,

Bryant called her, and E.B. did not answer. Bryant called again, and they had a short

conversation while E.B. drove to work in which E.B. told Bryant that she did not want to

be with him anymore. After work, E.B. went to her apartment to grab some clothes and

spent the night at her coworker’s house. Bryant called E.B.’s phone “non-stop,” and E.B.

could not “really use [her] phone because it was just call after call after call and [Bryant]

would text.” Id. at 302. Bryant told E.B. that life without him was going to be torture.

Bryant left a voicemail message for E.B. in which he stated that he was at her apartment

and that the doors were weak and that he would make the cops shoot him.

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 That same day, Bryant sent E.B. multiple text messages. Specifically, Bryant sent

E.B. a text message that read:

Maybe we can pass love letters thru the doors to each other when were in
there together. Oh my bad you will be by yourself with a case & ill be dead
cuz [I] made them shoot me. Hope you like ten to twenty babe.

State’s Exhibit 24. E.B. thought that Bryant was threatening to “get her in trouble” and

that she would go to jail. Transcript at 306. Bryant sent E.B. a text message that stated:

“Very strong odor coming from ur place,” and “There sayn something bout a meth lab at

your place babe. What the f---?” State’s Exhibits 20, 49. Bryant sent E.B. a text

message that read: “Call my bluff then is what you do babe.” State’s Exhibit 21. E.B.

took this message to mean that if she did not talk to him that he was going to set her up

and that she was going to be in trouble. Bryant also sent E.B. a text message that read:

[E.B.] if your gonna keep doin this shit then dont trip when [I] hook you up
with something special. Yea im tired of all this bullshit so since you want
to play your games then ill play mine & you will lose. Absolutely lose
everything. I mean everything too [E.B.]. Call me or answer your phone
when [I] call or be ready for whatever.

State’s Exhibits 22, 23.

On December 7, 2010, the calls and texts from Bryant to E.B. “wouldn’t stop.”

Transcript at 308. E.B. worked that day and then went home to obtain clean clothes for

the next day. While E.B. was talking on the phone to her sister, she saw a bag on her

patio. E.B. nudged the bag with her toe and two glass jars full of liquid fell over. E.B.

told her sister that it looked like a meth lab and told her sister to call the police because

she was not going to touch the bag. After seeing the bag, Bryant’s text messages made

5
more sense to E.B. Specifically, E.B. thought that the text from Bryant that mentioned a

foul odor referred to the smell of anhydrous ammonia.

E.B. waited at her apartment until police arrived, told the police what Bryant had

done that day, showed the police the text messages from the prior night, and told the

police what had occurred on December 4th. Columbus Police Detective Tom Foust gave

E.B. his cell phone number and told her to contact him immediately if she knew Bryant’s

location and to call 911 in the event of an emergency. The police escorted E.B. to her

workplace, and a police detective escorted E.B. to her friend’s house after E.B. finished

her shift. On December 8, 2010, E.B.’s friend drove her to work, and Bryant never

stopped calling E.B. E.B. again stayed at her friend’s house that night.

On December 9, 2010, E.B. worked until 4:30 p.m. and then went to her house.

Bryant knocked on E.B.’s door, and E.B. sent Detective Foust a text message indicating

that Bryant was at her residence. Detective Foust called E.B. and heard a female and

male screaming. Based upon the tone of the voices, Detective Foust asked for all

available units to respond in emergency mode to E.B.’s residence because he believed

that Bryant was harming E.B.

E.B. called 911 and while she was talking to the 911 operator, Bryant kicked in

her patio door. E.B. locked herself in an upstairs bathroom, but Bryant kicked in the

bathroom door. Bryant then closed the bathroom door behind him, grabbed E.B., and

struck her. E.B. told Bryant that she had called 911 and that he should leave, but Bryant

kept hitting E.B.’s face with a closed fist and yelling at her. Bryant said: “Why are you

making me do this? You’re making me do this to you. I don’t understand why you’re

6
doing this.” Id. at 326. Bryant then paused for a moment, pulled a knife out of his

pocket, looked at E.B. “like [she] was really, really pathetic,” put the knife back in his

pocket, and started hitting E.B. again. Id. at 327.

Columbus Police Sergeant Jennifer VanVactor was the first officer on the scene

and observed that the patio door had been kicked in and there was debris from the

doorway on the ground. Other officers arrived and entered E.B.’s residence. Bryant

stated that E.B. was going to “get what [she] want[ed] because [he was] going to make

them shoot [him] in front of” her. Id. at 328. Bryant sat on the toilet and put his feet on

the door, and E.B. crawled across the floor and curled up under the sink. The police

ordered Bryant to open the door, and Bryant yelled that they would have to shoot him

through the door. Bryant then retrieved his phone and said that he was going to call his

mother before the police killed him. The police started kicking the bathroom door in, and

at some point the toilet shattered out from under Bryant. The door would open a little,

but then close because Bryant had his feet on the door. After seven or eight kicks, the

police opened the door.

The police escorted E.B. out of the bathroom and then turned their attention to

Bryant who was still sitting on the toilet. Columbus Police Officer James Quesenbery

could not see Bryant’s right hand, and he and Sergeant Ziegler ordered Bryant to show

them his hands. Bryant showed the officers his left hand but would not show his right

hand. Sergeant Ziegler then used his taser on Bryant. Bryant fell off the toilet and

landed on the bathroom floor and still refused to show his right hand. Sergeant Ziegler

7
used his taser again, and Bryant brought forth his right hand and was handcuffed and

removed from the bathroom.

E.B. suffered swollen and cut lips, deep tissue damage in her jaw, and bruises

down the center of her back, the side of her jaw, her leg, and above her left eye. E.B. and

Bryant were treated in the same emergency room.

On December 15, 2010, the State charged Bryant with Count I, burglary as a class

A felony; Count II, criminal confinement as a class B felony; Count III, criminal

confinement as a class B felony; Count IV, intimidation as a class C felony; Count V,

battery as a class C felony; Count VI, intimidation as a class C felony; and Count VII,

strangulation as a class D felony.1

E.B. changed her phone number and stayed with her sister for a month. Bryant

sent E.B. multiple letters from jail. One of the letters stated: “I’m not expecting you to be

with me but, babe, I still need you to prove my innocence in some matters.” Id. at 353.

At some point, E.B. resumed talking to Bryant and talked to him several times a day.

Bryant sent E.B. a letter indicating that he had made a draft of a letter for E.B. to copy in

her own handwriting and Bryant told E.B. “what to say to lie to get him out of his

charges.” Id. at 358. E.B. wrote a letter to Bryant’s attorney that stated that she had

never had a physical fight with Bryant on December 4, 2010, that she could have left, and

that she was not in fear of Bryant. E.B.’s letter also stated that she had had a couple of

drinks on December 9, 2010, allowed Bryant to enter her apartment, became enraged and

upset, and decided to call 911 to have the police arrest Bryant.

1
Counts I, II, IV, V related to the events of December 9, 2010, and Counts III, VI, and VII,
related to the events of December 4, 2010.
8
 At some point, Bryant sent E.B. a letter which stated in part:

911 call? Reason for? Call lasted exactly 4 min. 58 secs. Was mad at me
could be the reason for 911 call. You called but thought you hung up &
could of put phone in pocket while still on or accidently hit “talk” button
when phone was in your pocket??

I told them that when I was going to leave apartment you was upset & mad
so you slammed patio door & while doing so it hit my shoulder and then
you opened it cause you knew it made contact with me & felt bad & I came
back into apartment & you slammed/closed door shut but dead-bolt hit
door-frame & broke?? No forced entry by me but when I first got there we
did hug & kiss and then the arguing started.

We both ended up in the bathroom because we were both afraid of what
was gonna happen to me seeing as how the police said I was “armed &
dangerous” & you knew better than that. Let it be known that I moved you
from out in front of the bathroom door right before they kicked it in &
when the police kicked it in the door hit me & closed shut again so they did
it again & it hit me a second time & made me fall against the toilet so hard
that I shattered the toilet with my back.

Baby these are some of the major points of the matter that we need to focus
on. You did good with the wording in your letter.

State’s Exhibit 39.

For several months, E.B. intended to “tell lies” to help Bryant avoid the

consequences of the charges. Transcript at 395. As more time went by, E.B. and Bryant

began arguing, and E.B.’s perception of the situation changed. In a letter dated June 12,

2011, Bryant wrote the following to E.B.:

Babe we got a very important matter coming up on Friday and yeah I’ll
admit that I’m a lil nervous cause whatever is said then can either make me
or break me but I’ve got trust & faith in good ol’ Baby Booski and you’ll
stay loyal to me and baby. I’m gonna ask if we can give each other a hug
& kiss and that way it pretty much seals that up that still in good standings
with one another plus I just wanna touch you and feel your soft sexy lips
against mine. Ya dig what I’m sayin babe?

*****
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 Please be at my visit Tuesday at 6:30p & stop being scared cause it’s a lil to
late for all that now so stand by me and let’s ride or die (LOL) to the end
TOGETHER, FOREVER!!

State’s Exhibit 50. In a letter dated June 14, 2011, Bryant wrote E.B.: “Trust me love I’m

no dummy when it comes to the law so take my word that I’ll be out this year so keep

those legs crossed & my p---y warm cause Matty is coming home to his baby . . . .”

State’s Exhibit at 51.

On June 17, 2011, E.B. attended a deposition and by that time had decided that she

was not going to lie for Bryant. In July 2011, Bryant sent E.B. a letter that stated:

“Whenever your [sic] done being shady & disloyal then you know where to find me until

then (if EVER) be safe & know I miss you & love you.” State’s Exhibit 53. At some

point after the deposition, E.B. received visits from someone that she knew to belong to

the Aryan Brotherhood.

On September 12, 2011, Bryant filed a motion in limine with respect to an alleged

shooting charged in cause number 03D01-1011-FC-1486 and an alleged battery charged

in cause number 03D01-1108-FB-4453. On September 20, 2011, the court held a

suppression hearing but did not appear to rule specifically on Bryant’s motion in limine.

On September 26, 2011, the State filed a motion to dismiss Count VII, strangulation as a

class D felony, which the court granted.

At the four-day jury trial, the State presented evidence, including E.B.’s

testimony, consistent with the foregoing facts. When the prosecutor introduced the

medical record for E.B.’s emergency room visit, Bryant’s counsel objected on hearsay

10
grounds to the portion of the record indicating that E.B. was assaulted.2 The prosecutor

argued that the report was admissible under Ind. Evidence Rule 803, and the court

overruled Bryant’s objection and admitted the medical records as State’s Exhibit 55.3 Dr.

Jason Dugger, the emergency room physician, testified, without objection, that according

to the medical report, E.B. stated that she was pushed and trapped in a bathroom,

punched several times in the head, face, and jaw, and hit in the back by the bathroom

door. Michelle Cline, the nurse that treated E.B., testified, without objection, that E.B.’s

chief complaint was that “she was assaulted by her boyfriend, ex-boyfriend.” Transcript

at 496. On redirect, Cline testified that E.B. told her that she had been beaten up by her

ex-boyfriend and that E.B. did not want Cline to document that statement because “she

was assaulted by her boyfriend because she was afraid of him.” Id. at 500. When the

prosecutor asked Cline whether E.B. told her why she was afraid of him, Bryant’s

counsel objected on hearsay grounds. After further questioning by the prosecutor, Cline

indicated that it was important for her to know if there were any safety concerns of the

2
The following exchange occurred:

[Defense Counsel]: Objection to the, objection to the portions where it says
(inaudible) and . . .

THE COURT: (Inaudible).

[Defense Counsel]: And assaulted by, the names are scratched out. I object to that
because this is a, this is a report (inaudible) it’s a hearsay
statement (inaudible) conclusion as to an ultimate fact.

Transcript at 477-478.
3
The medical record included a form titled “Emergency Physician Record Alleged Assault,” and
under “context” the following words were circled: “fists,” “pushed/thrown,” “pushed/thrown against
wall,” “reported spousal abuse.” State’s Exhibit 55. A handwritten notation states: “Pushed/trapped in
bathroom punched several times in head, face, and jaw. Hit back on BR door.” Id.
11
patient and it was important to know why E.B. was scared to make an effort to address

those concerns before E.B. was released. The court overruled Bryant’s objection, and

Cline testified that E.B. said she was afraid for herself and her children and that her

boyfriend was a part of the Aryan Brotherhood and that “if he did not hurt her, he would

send people to hurt her and her children.” Id. at 501-502.

At one point, Detective Foust testified that he investigated a person who went to

E.B.’s residence on July 18, 2011. Detective Foust testified that he spoke to Chucky

Hardman, a member of the Aryan Brotherhood, during the course of his investigation and

that as a result of his investigation he called for an extra patrol and asked all officers to

give heavy attention to E.B.’s residence.

E.B. described an interaction following her son’s birthday party that occurred in

September 2010 in which she told Bryant that she did not want to be with him anymore

and that she did not love him. When asked what happened next, Bryant’s counsel

objected upon Evidence Rule 404, and the court overruled the objection. E.B. then

testified that Bryant pulled a gun on her and said that if she was going to leave him, then

he was going to shoot her in the middle of the street. E.B. told Bryant “never mind,” that

she just wanted to have some time, and that she would call him later. Id. at 280.

During E.B.’s direct examination, E.B. testified that she had concerns regarding

retaliation from Bryant’s friends, and when asked what relationship Bryant had with his

friends, Bryant’s counsel objected.4 The court overruled the objection, and E.B. testified

that Bryant was a vice president in the Aryan Brotherhood and that she was scared that if

4
Specifically, Bryant’s counsel stated: “Objection. Improper (inaudible) for evidence.”
Transcript at 285.
12
Bryant “got mad that they, you know, that if he told them to do something, they would do

it.” Id. at 285.

Later during the direct examination of E.B., she testified that she received text

messages from Bryant, that she saved some of the text messages, and that State’s Exhibits

20, 21, 22, 23, 24, and 25, which were photographs of the text messages, accurately

showed the content of the text messages. When the prosecutor moved to admit

photographs of these text messages, Bryant’s counsel objected on the basis of

authentification. The court overruled the objection and admitted the exhibits. The court

then held a sidebar conference in which the court stated that Bryant’s counsel was “sort

of kind of right” and that the court was “kind of letting it slide because I know it’s going

to happen anyway, but you didn’t authenticate it.” Id. at 304. The court also told the

prosecutor: “I’m telling you the next time you’re going to have to do that question before

or the objection’s going to be sustained.” Id. E.B. then testified that she knew that

Bryant was the sender of the text message in State’s Exhibit 24 because the phone

number was the number that he was using and described the messages.

Bryant testified he went to E.B.’s apartment and that E.B. opened the door for him

and eventually started yelling. According to Bryant’s testimony, he told E.B. that her

walls were too thin and that he did not want her neighbors to call the police and that he

was going to leave and that she should call him when she calmed down. Bryant walked

toward the patio door, and E.B. slammed the door which bounced back and hit E.B.’s

eye. Bryant then kissed E.B. on her forehead, nose, and lips. E.B. became angry and told

Bryant that she had already called the police. Bryant also testified that he went upstairs

13
to the bathroom, at some point E.B. hit herself in the face three or four times, the police

never screamed at him to open the bathroom door, and he did not refuse to show the

police his hands.

During cross-examination of Bryant, the prosecutor replayed voicemails left by

Bryant on E.B.’s phone on December 6 and 7, 2010. The prosecutor asked Bryant why

he thought the cops were going to shoot him down because he was outside E.B.’s door,

and Bryant stated: “Well, what was going on with my life, it’s hard telling.” Id. at 673.

Bryant’s counsel asked to approach and stated: “I believe the State’s getting ready to

introduce that incidental shooting and I would object to that based on relevancy and on

other, other grounds as well.” Id. The prosecutor stated that she was going to ask a

question regarding the existence of an arrest warrant but make no reference to the

shooting or the facts. The court stated: “Well, I think [Bryant] kind of opened the door

by saying stuff going on in his life, so. I mean, you know, State’s choice, push it too far,

we’ll have to do the whole thing over,” and overruled the objection. Id. at 674. Bryant

then testified that he had a warrant and knew that the police were looking for him. The

court asked Bryant one of the juror’s questions which was whether he was on home

detention on December 4 or 9, 2010, and Bryant stated that he left home detention.

The jury found Bryant guilty as charged. The court sentenced Bryant to forty-five

years for Count I, eighteen years for Count II, eighteen years for Count III, six years for

Count IV, six years for Count V, and six years for Count VI. The court ordered that

Counts I and V be served concurrent with each other and that all other sentences be

14
served consecutive to each other for an aggregate sentence of ninety-three years.

Additional facts will be provided as necessary.

I.

The first issue is whether the trial court abused its discretion by admitting certain

evidence. Specifically, Bryant challenges the admission of E.B.’s statements made at the

hospital, Bryant’s prior misconduct, and text messages. Generally, we review the trial

court’s ruling on the admission of evidence for an abuse of discretion. Noojin v. State,

730 N.E.2d 672, 676 (Ind. 2000). We reverse only where the decision is clearly against

the logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390

(Ind. 1997), reh’g denied. Even if the trial court’s decision was an abuse of discretion,

we will not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d

957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied.

A. E.B.’s Statements

Bryant argues that the trial court abused its discretion when it admitted evidence

of E.B.’s statements at the hospital via E.B.’s medical records and the testimony of Dr.

Dugger and Nurse Cline. Initially, we observe that Bryant concedes that he objected to

Cline’s testimony regarding the basis for E.B.’s fears of her ex-boyfriend but otherwise

did not object to the challenged testimony from Dr. Dugger or Cline. Thus, at least a

portion of Bryant’s argument is waived. See Johnson v. State, 734 N.E.2d 530, 532 (Ind.

2000) (holding that the failure to object at trial waives any claim of error and allows

otherwise inadmissible hearsay evidence to be considered for substantive purposes and to

establish a material fact at issue). Moreover, errors in the admission of evidence are to be

15
disregarded as harmless error unless they affect the substantial rights of a party. McClain

v. State, 675 N.E.2d 329, 331 (Ind. 1996); Ind. Trial Rule 61. In determining whether

error in the introduction of evidence affected the defendant’s substantial rights, this court

must assess the probable impact of the evidence upon the jury. McClain, 675 N.E.2d at

331. Here, the testimony of the treating physician and nurse and the medical records are

merely cumulative of E.B.’s testimony. Admission of hearsay evidence is not grounds

for reversal where it is merely cumulative of other evidence admitted. Id. at 331-332. As

a result, any error in the admission of E.B.’s statements via the medical records and

relevant testimony was harmless and reversal is not required. See id. (holding that any

error in the admission of the therapist’s testimony was harmless and reversal was not

required where hearsay evidence was merely cumulative of other evidence admitted).

B. Bryant’s Prior Misconduct

Bryant points to the admission of E.B.’s testimony that Bryant drew a gun and

threatened to kill her in September 2010 when she indicated that she wanted to end their

relationship, evidence of Bryant’s membership and office in the Aryan Brotherhood,

evidence of Bryant’s convictions for burglary in 1999, criminal recklessness in 2007, and

invasion of privacy in 2009, and evidence indicating that Bryant escaped from home

detention and had an outstanding warrant at the time of the December incidents. Bryant

argues that this evidence should have been excluded under Ind. Evidence Rules 404(b)

and 403.

The standard for assessing the admissibility of Rule 404(b) evidence is: (1) the

court must determine that the evidence of other crimes, wrongs, or acts is relevant to a

16
matter at issue other than the defendant’s propensity to commit the charged act; and (2)

the court must balance the probative value of the evidence against its prejudicial effect

pursuant to Rule 403. Boone v. State, 728 N.E.2d 135, 137-138 (Ind. 2000), reh’g

denied; Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997). The evidence is inadmissible

when the State offers it only to produce the “forbidden inference” that the defendant has

engaged in other, uncharged misconduct and the charged conduct was in conformity with

the uncharged misconduct. Crain v. State, 736 N.E.2d 1223, 1235 (Ind. 2000). The trial

court has wide latitude, however, in weighing the probative value of the evidence against

the possible prejudice of its admission. Id. If evidence has some purpose besides

behavior in conformity with a character trait and the balancing test is favorable, the trial

court can elect to admit the evidence. Boone, 728 N.E.2d at 138. For instance, evidence

which is necessary for the jury to understand the relationships between the victim,

various witnesses, and the defendant may be admissible. See Wilson v. State, 765 N.E.2d

1265, 1270-1271 (Ind. 2002).

With respect to E.B.’s testimony that Bryant pulled a gun on her and that Bryant

was a member of the Aryan Brotherhood, this evidence showed the nature of the

relationship between Bryant and E.B., explained her actions and fear of Bryant, and also

partially showed the motive behind Bryant’s actions. Similarly, we cannot say that the

probative value of the evidence was substantially outweighed by the danger of unfair

prejudice. See, e.g., id. (evidence of defendant’s drug dealing and prostitution-related

activities was admissible in murder prosecution and did not violate Rule 404(b) or Rule

403 where the evidence was “necessary for the jury to understand the relationships

17
between the victim, various witnesses, and the defendant”); Ross v. State, 676 N.E.2d

339, 346 (Ind. 1996) (prior misconduct was “admissible because it demonstrated the

defendant’s motive and intent to commit the murder and illuminated the relationship

between the defendant and victim”); Iqbal v. State, 805 N.E.2d 401, 408-409 (Ind. Ct.

App. 2004) (holding that the evidence relating to a prior incident in which the defendant

put a gun to the victim’s head and threatened to kill her was indicative of the defendant’s

relationship with the victim and highly relevant for his motive to shoot victim and that

the trial court did not abuse its discretion by admitting the defendant’s bad acts under

Rule 404(b)).

To the extent that Bryant challenges the admission of evidence of his convictions,

we observe that Bryant cites to a portion of the transcript which occurred after the State

rested and does not point to the record to support the idea that the prosecutor introduced

evidence of Bryant’s criminal history prior to resting initially. Further, prior to Bryant’s

testimony his counsel asked Bryant outside the presence of the jury whether he

understood that some or all of his criminal history could come in if he testified, and

Bryant indicated that he understood. During direct examination, Bryant testified that he

had a criminal history, was convicted of burglary, spent time in prison, became associated

with the Aryan Brotherhood while in prison, and became a vice president in the Aryan

Brotherhood. We cannot say that the admission of Bryant’s criminal history and

participation in the Aryan Brotherhood requires reversal.

To the extent that Bryant challenges evidence that he escaped from home

detention and had an outstanding warrant at the time of the December incidents, we

18
observe that Bryant objected to evidence of the shooting and did not specifically object to

evidence of a warrant or object to the court’s asking a juror’s question regarding home

detention. Again, we cannot say that this evidence requires reversal.

C. Text Messages

When the substance of a text message is offered for an evidentiary purpose, the

text message must be separately authenticated pursuant to Ind. Evidence Rule 901(a).

Hape v. State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009), trans. denied. Rule 901

provides that “[t]he requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims.” Absolute proof of authenticity is not

required. Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. When

evidence establishes a reasonable probability that an item is what it is claimed to be, the

item is admissible. Thomas v. State, 734 N.E.2d 572, 573 (Ind. 2000). When a trial

court has made a ruling concerning the sufficiency of the foundation laid to justify the

admission of evidence, we review that decision for an abuse of discretion. Id. (citing

State v. Walton, 715 N.E.2d 824, 828 (Ind. 1999)). Ind. Evidence Rule 901(b) provides

“[b]y way of illustration only, and not by way of limitation, the following are examples

of authentication or identification conforming with the requirements of this rule” and

includes:

Telephone conversations. Telephone conversations, by evidence that a call
was made to the number assigned at the time by the telephone company to a
particular person or business, if (i) in the case of a person, circumstances,
including self-identification, show the person answering to be the one
called, or (ii) in the case of a business, the call was made to a place of

19
 business and the conversation related to business reasonably transacted
over the telephone.

Ind. Evidence Rule 901(b)(6).

The text messages here indicated that they were from phone number 317-447-

5310, and E.B. testified that Bryant used this number. E.B. also testified that she

received text messages from Bryant, that she saved some of the text messages, and that

State’s Exhibits 20, 21, 22, 23, 24, and 25, which were photographs of the text messages,

accurately showed the content of the text messages that Bryant sent her. Based upon the

record, we conclude that the State established a foundation for admission of the text

messages pursuant to Ind. Evidence Rule 901, and the court did not abuse its discretion in

admitting the text messages.

Bryant also argues that to the extent his objections were insufficient to preserve

the error in the admission of all of the evidence of E.B.’s statements at the hospital, his

uncharged misconduct, and the text messages, fundamental error applies and requires

reversal. To rise to the level of fundamental error, an error “must constitute a blatant

violation of basic principles, the harm or potential for harm must be substantial, and the

resulting error must deny the defendant fundamental due process.” Maul v. State, 731

N.E.2d 438, 440 (Ind. 2000). “The standard for fundamental error is whether the error

was so prejudicial to the rights of the defendant that a fair trial was impossible.”

Boatright v. State, 759 N.E.2d 1038, 1042 (Ind. 2001). In light of the foregoing

discussion, we cannot say that the admission of the evidence constituted fundamental

error.

II.
20
 The next issue is whether the evidence is sufficient to sustain Bryant’s conviction

for burglary as a class A 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. Rather, we look to the evidence and the

reasonable inferences therefrom that support the verdict. Id. We will affirm the

conviction if there exists evidence of probative value from which a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt. Id. The uncorroborated

testimony of one witness, even if it is the victim, is sufficient to sustain a conviction.

Ferrell v. State, 565 N.E.2d 1070, 1072-1073 (Ind. 1991).

The offense of burglary as a class A felony is governed by Ind. Code § 35-43-2-1,

which provides that “[a] person who breaks and enters the building or structure of another

person, with intent to commit a felony in it, commits burglary, a Class C felony.

However, the offense is . . . a Class A felony if it results in: (A) bodily injury; or (B)

serious bodily injury; to any person other than a defendant.” Thus, to convict Bryant of

burglary as a class A felony, the State needed to prove that Bryant broke and entered

E.B.’s building or structure with the intent to commit a felony in it and that E.B suffered

bodily or serious bodily injury.

Bryant argues that the State failed to prove his unauthorized entry into the

apartment on December 9, 2010. Bryant argues that the record established that he either

possessed a key or did not know he lacked a key to the apartment until his arrest and that

the record does not reveal any statement by E.B. to Bryant after he was given the key that

he was no longer allowed in the apartment. The State argues that an authorized entrant

21
does not have to kick down a patio door to gain entry when the other person is home.

The State also argues that “it is a fair inference that no person would authorize another to

kick down their door and pursue them to the bathroom where they could be confined and

beaten.” Appellee’s Brief at 24.

Bryant’s argument is essentially a request that we reweigh the evidence or judge

the credibility of witnesses, which we cannot do. Jordan, 656 N.E.2d at 817. Based upon

the record, including the testimony regarding the kicked in door and E.B.’s testimony that

she had taken back her spare key from Bryant and had told him that she did not want to

be with him, we conclude that the State presented evidence of a probative nature from

which a reasonable trier of fact could have found that Bryant’s entry of E.B.’s apartment

was unauthorized and that he was guilty of burglary as a class A felony.

III.

The next issue is whether Bryant’s convictions for burglary as a class A felony and

battery as a class C felony violate double jeopardy. The Indiana Constitution provides

that “[n]o person shall be put in jeopardy twice for the same offense.” IND. CONST. art. 1,

§ 14. The Indiana Supreme Court has held that “two or more offenses are the ‘same

offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with respect

to either the statutory elements of the challenged crimes or the actual evidence used to

convict, the essential elements of one challenged offense also establish the essential

elements of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.

1999).

22
 Under the actual evidence test, the evidence presented at trial is examined to

determine whether each challenged offense was established by separate and distinct facts.

Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008). To show that two challenged offenses

constitute the “same offense” in a claim of double jeopardy, a defendant must

demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to

establish the essential elements of one offense may also have been used to establish the

essential elements of a second challenged offense. Id. The Indiana Supreme Court has

determined the possibility to be remote and speculative and therefore not reasonable

when finding no sufficiently substantial likelihood that the jury used the same evidentiary

facts to establish the essential elements of two offenses. Hopkins v. State, 759 N.E.2d

633, 640 (Ind. 2001) (citing Long v. State, 743 N.E.2d 253, 261 (Ind. 2001), reh’g

denied; Redman v. State, 743 N.E.2d 263, 268 (Ind. 2001)); see also Griffin v. State, 717

N.E.2d 73, 89 (Ind. 1999), cert. denied, 530 U.S. 1247, 120 S. Ct. 2697 (2000).

Bryant argues that both counts were enhanced to a higher level felony based on the

same evidence of serious bodily injury to E.B. and requests that this court reverse his

conviction for burglary as a class A felony and reduce it to a class B felony. The State

points out that the charging information and final instructions do not specify particular

injuries for particular counts and that it never differentiated one injury from another in

either the evidence or its closing arguments in assigning injuries to the counts. The State

concedes that “[i]n light of the fact that there is no way to determine that any particular

injury went with any particular count, the State agrees that it would be impossible to

determine that the jury relied upon different injuries for the burglary and battery counts.”

23
Appellee’s Brief at 26. The State submits that this court reduce Bryant’s battery

conviction to a class B misdemeanor.

Based upon the State’s concession and our review of the record, we conclude that

there was a reasonable possibility that the jury relied upon the same evidence of bodily

injury when it found Bryant guilty of enhanced versions of burglary and battery. “When

two convictions are found to contravene double jeopardy principles, a reviewing court

may remedy the violation by reducing either conviction to a less serious form of the same

offense if doing so will eliminate the violation.” Richardson, 717 N.E.2d at 54.

Accordingly, we reduce Bryant’s conviction for battery from a class C felony to a class B

misdemeanor. See, e.g., Smith v. State, 872 N.E.2d 169, 177 (Ind. Ct. App. 2007)

(holding that although “sufficient evidence might exist to support a finding that [the

defendant] caused two separate bodily injuries, we conclude that [the defendant] has

demonstrated a reasonable possibility that the same bodily injury was used to enhance

both his burglary and robbery convictions”), trans. denied.

IV.

The next issue is whether the prosecutor committed prosecutorial misconduct that

resulted in fundamental error. In reviewing a properly preserved claim of prosecutorial

misconduct, we determine: (1) whether the prosecutor engaged in misconduct, and if so,

(2) whether the misconduct, under all of the circumstances, placed the defendant in a

position of grave peril to which he or she should not have been subjected. Cooper v.

State, 854 N.E.2d 831, 835 (Ind. 2006). Whether a prosecutor’s argument constitutes

misconduct is measured by reference to case law and the Rules of Professional Conduct.

24
Id. The gravity of peril is measured by the probable persuasive effect of the misconduct

on the jury’s decision rather than the degree of impropriety of the conduct. Id.

When an improper argument is alleged to have been made, the correct procedure is

to request the trial court to admonish the jury. Id. If the party is not satisfied with the

admonishment, then he or she should move for mistrial. Id. Failure to request an

admonishment or to move for mistrial results in waiver. Id. Bryant concedes that while

he objected to part of the conduct of the prosecutor, he failed to seek an admonishment or

mistrial.

Where, as here, a claim of prosecutorial misconduct has not been properly

preserved, our standard for review is different from that of a properly preserved claim.

Id. More specifically, the defendant must establish not only the grounds for the

misconduct but also the additional grounds for fundamental error. Id. Fundamental error

is an extremely narrow exception that allows a defendant to avoid waiver of an issue. Id.

It is error that makes “a fair trial impossible or constitute[s] clearly blatant violations of

basic and elementary principles of due process . . . present[ing] an undeniable and

substantial potential for harm.” Id.

A. Evidentiary Harpoon

Bryant argues that the prosecutor launched an evidentiary harpoon when the

prosecutor attempted to establish that Bryant sent Chucky Hardman to E.B.’s home to

threaten or kill her. “An evidentiary harpoon involves the deliberate use of improper

evidence to prejudice the defendant in the eyes of the jury.” Williams v. State, 512

N.E.2d 1087, 1090 (Ind. 1987). “To prevail on such a claim, the defendant must show

25
that (1) the prosecution acted deliberately to prejudice the jury, and (2) the evidence was

inadmissible.” Alvies v. State, 795 N.E.2d 493, 504 (Ind. Ct. App. 2003) (citing Evans v.

State, 643 N.E.2d 877, 879 (Ind. 1994), reh’g denied), trans. denied.

The following exchange occurred during the direct examination of Detective

Foust:

Q Based on your information and investigation, did you
identify the person who came to [E.B.’s] home?

[Defense Counsel]: Objection. No, there’s no personal knowledge of that.

THE COURT: Approach, please.

SIDEBAR:

THE COURT: Okay. It sounds like the question calls for hearsay
when you say based on your investigation, did you
obtain information.

[Prosecutor]: Uh-huh.

THE COURT: So, that’s not precise enough or even proper to advise
defense counsel how to make a proper objection. It
could be hearsay, it may not be. I mean, you could
have a photograph (inaudible) so it’s too vague. So,
the objection’s going to be sustained to that question.
But where are you going to go next? Is it going to be
somebody else told him so?

[Prosecutor]: Yes, but . . .

THE COURT: Who?

[Prosecutor]: Detective Ward, I believe. A police officer said . . .

THE COURT: (Inaudible).

[Prosecutor]: I don’t know. I’ll have to . . .

THE COURT: Okay, well, okay. Well, objection’s sustained then.
26
 SIDEBAR ENDS

THE COURT: Objection’s sustained.

Q In the course of your investigation, did you have reason to go speak
with a person by the name of Chucky Hardman?

A Yes.

Q And is a Chucky Hardman a member of the Aryan Brotherhood?

A Yes.

Q What, if anything, did you tell Chucky Hardman?

A I told Mr. Hardman that I was investigating a complaint by [E.B.]
and her roommate about someone showing up at her home.

Q And as a result of your investigation, did you send out any
communications to the other persons, well, law enforcement officers
at the Columbus Police Department?

A Yes. I issued what we call an extra patrol and asked all officers to
give heavy attention to the residence of [E.B.] because of Mr.
Hardman’s actions and fearing that her life may be in danger.

Transcript at 542-544.

During the direct examination of Bryant, he testified that he never had anyone

from the Aryan Brotherhood go to E.B.’s house or new apartment. During rebuttal, the

following exchange occurred during the direct examination of Detective Foust:

Q And Detective Foust, in the course of your investigation, did
you cause have cause to go speak with Chuck Hardman?

A Yes.

Q And for what purpose did you go speak with Chuck
Hardman?

A To inquire about his activities while he was on work release.
27
 Q Okay. And what specific activities were those?

A That he had gone to [E.B.’s] home.

Q Did Chuck Hardman identify to you the person that sent him
to [E.B.’s] home?

[Defense Counsel]: Objection. It’s calling for hearsay.

THE COURT: Sustained.

Q Did Chuck Hardman identify the person who sent him to
[E.B.’s] home?

[Defense Counsel]: Same objection.

THE COURT: Sustained. Approach.

SIDEBAR:

[Prosecutor]: Eight oh one D.

THE COURT: State never (inaudible) a witness. Mr. Hardman has
never testified. [E.B.] did. Mr. Hardman has not been
a witness and therefore doesn’t fall under this rule.

[Prosecutor]: Okay.

SIDEBAR ENDS

[Prosecutor]: No further questions.

Id. at 759-760.

Bryant argues that the prosecutor’s “clear intent was to establish Bryant sent

Hardman to E.B.’s home to threaten or kill her.” Appellant’s Brief at 37. Bryant also

argues that the “evidence regarding Hardman’s alleged visit to E.B.’s home was hearsay,

as the trial court repeatedly found, because Hardman did not testify and no one who

allegedly saw Hardman at E.B.’s home testified.” Id. at 37-38. The State argues that it
28
was unsuccessful in placing the fact that Bryant sent Hardman to E.B.’s house before the

jury because it called the wrong witness to sponsor such a statement. The State also

argues: “In order for an evidentiary harpoon to constitute error, the harpoon must hit the

whale. The State, in this instance, fired the harpoon straight into the gunwale and thus

the harpoon never left the boat.” Appellee’s Brief at 29. Under the circumstances, we

cannot say that Bryant has demonstrated fundamental error.

B. Bryant’s Criminal History & Membership in the Aryan Brotherhood

Bryant points to the admission of his criminal history and gang activities as

evidence of prosecutorial misconduct. Due to our resolution of Issue I regarding the

admission of Bryant’s criminal history and membership in the Aryan Brotherhood, we

cannot say that the prosecutor committed misconduct or that Bryant has demonstrated

fundamental error.

C. Closing Argument

Bryant points to the prosecutor’s comments during closing argument and argues

that the prosecutor improperly referred to evidence outside the record including the

nature of domestic violence relationships. During closing argument, the prosecutor

stated: “Through the testimony that you’ve received, you now understand that the

relationship between [E.B.] and [Bryant] is a typical picture of a domestic violence

relationship. Domestic violence relationships are about power and control, not love.”

Transcript at 776. The State argues that the court system depends on jurors applying their

own common sense and life experiences. The State argues that “[m]any people have

encountered domestic violence and for the State to ask jurors to examine whether the

29
relationship portrayed in the evidence comports with their understanding of violent

relationships, the State is merely requesting the jury to use the tools at its disposal in

arriving at a just verdict.” Appellee’s Brief at 30. We cannot say that Bryant has

demonstrated prosecutorial misconduct and fundamental error on this basis.

Bryant appears to argue that the prosecutor misrepresented the evidence when she

stated that she did not remember any of the defense witnesses saying that E.B. told them

she lied. Bryant contends that the prosecutor argued that E.B. lied to other members of

the Aryan Brotherhood but that the record contains no evidence that E.B. spoke to or had

any direct contact with any member of the Aryan Brotherhood from December 4, 2010,

through the date of the trial. Bryant points to the prosecutor’s following statement:

[T]he defense argument is that [Bryant] couldn’t have hit [E.B.] because
he’s a one-hitter. If he had hit her, she would have been killed. Well, his
mother, everyone knows [Bryant’s] a one-hitter. . . N[o] one’s denying that
[Bryant] punched [E.B.]. They’re saying if he had, she’d be dead. That
was the (inaudible).

Transcript at 816. Bryant points out that no witness testified to the effect that Bryant

would have killed E.B. if he had punched her.5 Also, among other statements, Bryant

challenges the prosecutor’s use of the word predator to describe him and the description

of E.B. as prey. We cannot say that these comments amounted to fundamental error.

Bryant also points to the following statements by the prosecutor:

The fact that [Bryant] is a member of the Aryan Brotherhood and the fact
that he’s a vice president is not relevant. You know, it doesn’t really matter
whether it’s (inaudible) or not. But what is relevant is how you get in and
how you get out of the Aryan Brotherhood. And [Bryant] told you you get

5
The State points out that Bryant’s mother testified that she made the following comment on
Facebook: “Everyone knows [Bryant] as a one-hitter. You lying and said he hit you thirteen times. B----,
you’d been dead and I wish you were.” Transcript at 581.
30
 in by killing or beating someone up severely. The only way you get out is
by getting killed or severely injured. And that is relevant because [Bryant]
possessed [E.B.], she was his Aryan angel. And the only way [E.B.] was
going to get out of their relationship was to be killed or beaten severely.
And that was the intent when he broke into her home on December ninth.

Id. at 815-816. Bryant argues that the record contains no evidence that E.B. was a

member of the Aryan Brotherhood or that E.B. had to follow the same exit strategy with

regard to her relationship with Bryant as members of the Aryan Brotherhood had to

follow to leave that organization. The prosecutor stated that “the only way [E.B.] was

going to get out of their relationship was to be killed or beaten severely,” and while the

record indicates that Bryant called E.B. his Aryan angel, we cannot say that the

prosecutor stated that E.B. was a member of the Aryan Brotherhood. Id. at 427.

Bryant also points to the following exchange which occurred during the

prosecutor’s closing argument:

[Prosecutor]: . . . . This Defendant is a coward. He beats up women
....

THE COURT: [Prosecutor], your audience is the jury.

[Prosecutor]: One third his size. [E.B.] is strong. She is so strong to
have survived this. And she may be (inaudible) but
inside she’s strong. (Inaudible) have moments of
strength. In the beginning and in the end. And in the
middle, [E.B.] found her inner weakness, but does it
(inaudible) or was it because [Bryant] violated the no-
contact order and called her three hundred and fifty
times and sent her over forty letters. Who could
withstand that kind of pressure? Evaluate the
evidence. Who do you believe? And when you
evaluate and when you determine who to believe, I am
confident that you will in fact return a verdict of guilty
to each and every crime. Thank you.

31
 THE COURT: If counsel would approach and Officer Whipker, if
you’ll come up here, please.

SIDEBAR:

THE COURT: Okay, don’t ever do that again. Are you kidding me?
I mean, we’ve got a security issue here and you’re
trying to antagonize him. If you ever do that again,
you’re going to be in such serious trouble.

Id. at 818-819. Bryant argues that the prosecutor “crossed the line of propriety by

essentially taunting” him and argues that the record contains no evidence or even

allegation outside the prosecutor’s closing arguments that Bryant ever beat up any other

woman. Appellant’s Brief at 43. The State “acknowledges that this statement was

borderline and possibly even crossed the line,” but argues that “[n]onetheless, if so, it

represented the only bona fide instance of prosecutorial misconduct and was fleeting.”

Appellee’s Brief at 33. Even assuming that the prosecutor’s comments were improper,

we cannot say that such conduct resulted in fundamental error. The jury was instructed

as follows: “When the evidence is completed, the attorneys may make final arguments.

These final arguments are not evidence. The attorneys are permitted to characterize the

evidence, discuss the law and attempt to persuade you to a particular verdict. You may

accept or reject those arguments as you see fit.” Appellant’s Appendix at 217. The jury

was also instructed as follows: “You are the exclusive judges of the evidence, which may

be either witness testimony or exhibits.” Id. at 234. Lastly, the jury was instructed:

“Statements made by the attorneys are not evidence.” Id. at 235. Under the

circumstances, we cannot say that the prosecutor’s comments resulted in fundamental

error.

32
 V.

The next issue is whether the court abused its discretion in sentencing Bryant.

Bryant argues that the trial court abused its discretion and violated Ind. Code § 35-50-1-2

when it imposed consecutive sentences as to most of the offenses for which Bryant was

convicted.

Ind. Code § 35-50-1-2(c) provides:

[E]xcept for crimes of violence, the total of the consecutive terms of
imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and
IC 35-50-2-10, to which the defendant is sentenced for felony convictions
arising out of an episode of criminal conduct shall not exceed the advisory
sentence for a felony which is one (1) class of felony higher than the most
serious of the felonies for which the person has been convicted.

Bryant argues that the only crime of violence among his convictions is the

burglary conviction. Bryant argues that the five remaining convictions constituted a

single episode of criminal conduct. Bryant contends that “[w]hile the offenses occurred

several days apart, they involved the same alleged perpetrator, the same victim, the same

location, and largely the same alleged criminal acts.” Appellant’s Brief at 48. The State

argues that Bryant was sentenced for two episodes of criminal conduct, one on December

4, 2010, and another on December 9, 2010.

An “episode of criminal conduct” “means offenses or a connected series of

offenses that are closely related in time, place, and circumstance.” Ind. Code § 35-50-1-

2(b). “In making this determination, emphasis has been placed on the timing of the

offenses and the simultaneous and contemporaneous nature, if any, of the crimes.”

Gootee v. State, 942 N.E.2d 111, 114 (Ind. Ct. App. 2011) (citing Reed v. State, 856

N.E.2d 1189, 1200 (Ind. 2006)), trans. denied. “Additional guidance on whether multiple
33
offenses constitute an episode of criminal conduct can be obtained by considering

whether the conduct is so closely related in time, place, and circumstance that a complete

account of one charge cannot be related without referring to details of the other charge.”

Id.

Bryant’s crime of burglary as a class A felony is a crime of violence and would be

exempted from the limitations in Ind. Code § 35-50-1-2(c). Of the five remaining

convictions, Counts III and VI related to Bryant’s actions which occurred on December

4, 2010, while Counts II, IV, and V related to December 9, 2010. The offenses occurring

on December 4th and the offenses occurring on December 9th were separate incidents

and the offenses occurring on the separate days can be recounted without referring to the

other date. Based upon the record, we cannot say that all of the offenses constituted an

episode of criminal conduct. See Beer v. State, 885 N.E.2d 33, 50-51 (Ind. Ct. App.

2008) (holding that Counts I, II, and III were not within the same criminal episode as

Counts IV, V, and VI because the controlled buys resulting in Counts I, II, and III

occurred days before the search and involved different circumstances).

With respect to Counts II, IV, and V, which related to December 9, 2010, even

assuming that all of the offenses which occurred on that date constituted an episode of

criminal conduct, the advisory sentence for a felony which is one class of felony higher

than the most serious of these felonies would be thirty years which is the advisory

sentence for a class A felony. The court ordered that Bryant serve eighteen years for

Count II and six years each for Count IV and Count V, and ordered the sentences to be

served consecutive to each other for an aggregate sentence on these offenses of thirty

34
years, which is not greater than the advisory sentence for a class A felony and is not in

violation of Ind. Code § 35-50-1-2(c).

With respect to the convictions related to December 4, 2010, again even assuming

that the offenses that occurred on December 4, 2010, constituted an episode of criminal

conduct, the advisory sentence for a felony which is one class of felony higher than the

most serious of the felonies occurring on December 4, 2010, would be thirty years which

is the advisory sentence for a class A felony. The court sentenced Bryant to eighteen

years for Count III, criminal confinement as a class B felony, and six years for Count VI,

intimidation as a class C felony, and ordered the sentences to be served consecutive to

each other for an aggregate sentence of twenty-four years, which is not greater than the

advisory sentence for a class A felony or in violation of Ind. Code § 35-50-1-2(c).

Accordingly, we cannot say that the trial court abused its discretion.

VI.

The next issue is whether Bryant’s sentence is inappropriate in light of the nature

of the offense and the character of the offender. 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.” Under this rule, the burden is on the defendant

to persuade the appellate court that his or her sentence is inappropriate. Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006).

Our review of the nature of the offense reveals that Bryant committed criminal

confinement and intimidation on December 4, 2010, and burglary, criminal confinement,

35
battery, and intimidation on December 9, 2010, consistent with the foregoing facts. Our

review of the character of the offender reveals that Bryant was adjudicated delinquent for

the following offenses if committed by an adult: disorderly conduct and battery. The

presentence investigation report (“PSI”) indicates that Bryant was charged as a juvenile

with being a runaway and multiple counts of battery. As a juvenile, Bryant failed to

successfully complete probation on two occasions. In 1999, Bryant was charged with

burglary as class B felony and theft as a class D felony, waived into adult court, and pled

guilty to burglary as a class B felony. Bryant also has convictions for battery as a class A

misdemeanor in 2000, battery and resisting law enforcement as class A misdemeanors in

2003, invasion of privacy as a class A misdemeanor and criminal recklessness as a class

D felony in 2007, invasion of privacy as a class D felony in 2009, and possession of

methamphetamine as a class D felony in 2010. At the time of the PSI, Bryant had

pending charges for intimidation and criminal recklessness as class C felonies and

attempted murder as a class A felony. Bryant also had a pending charge for aggravated

battery for allegedly stabbing another inmate in the ear while he was incarcerated in the

Bartholomew County Jail in June 2011. Since 2000, Bryant has had multiple protective

orders issued against him involving six individuals. Bryant has violated conditions of

probation numerous times and committed the current offenses while on probation for a

previous felony conviction.

Bryant had been a member of the Aryan Brotherhood. Bryant has two children

but reported that his visitation rights have been terminated. According to the PSI, Bryant

had extensive counseling as a juvenile and was diagnosed with “Conduct Disorder with

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‘narcissistic and antisocial character traits.’” Appellant’s Appendix at 291. Bryant has

“a long history of substance abuse and treatment.” Id. Bryant completed the “IOP

program at Quinco/Centerstone in 2003 and 2010” and was referred to a residential

treatment program at Liberty Hall, but was terminated from that program as a result of

assaulting another client. Id.

After due consideration, we conclude that Bryant’s aggregate sentence of ninety-

three years is not inappropriate.

For the foregoing reasons, we reduce Bryant’s conviction for Count V, battery as a

class C felony, to a class B misdemeanor and remand for resentencing on the class B

misdemeanor, which will have no effect on the aggregate sentence, affirm Bryant’s

remaining convictions, and affirm his aggregate sentence.

Affirmed and remanded.

BAKER, J., and KIRSCH, J., concur.

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