MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Apr 17 2018, 9:23 am
the defense of res judicata, collateral
CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Curtis T. Hill, Jr.
Brooke Smith Attorney General of Indiana
Keffer Barnhart LLP
Indianapolis, Indiana Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandon Stevenson, April 17, 2018
Appellant-Defendant, Court of Appeals Case No.
82A04-1712-CR-2867
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Michael J. Cox,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
82C01-1611-F5-6764
Bradford, Judge.
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Case Summary
[1] Appellant-Defendant Brandon Stevenson is required to register as a sex
offender. He appeals following his conviction for Level 5 felony failure to do
so. Stevenson raises two contentions on appeal. First, he contends that the trial
court erred in denying his request for a mistrial. Second, he contends that his
four-year sentence is inappropriate. Concluding otherwise, we affirm.
Facts and Procedural History
A. Stevenson Must Register as a Sex Offender
[2] In 1997, Stevenson was adjudicated to have committed what would be 1st
Degree criminal sexual conduct if committed by an adult in Kent County,
Michigan. As a result, Stevenson is required to register as a sex offender. In
2007, Stevenson was convicted of Class D felony failure to register as a sex
offender.
B. The Instant Offense
[3] Stevenson checked into the Rescue Mission homeless shelter in Evansville on
August 11, 2016. On or about August 17, 2016, Stevenson met with Detective
Mike Robinson of the Vanderburgh County Sheriff’s Department (“the
Department”). Detective Robinson is the coordinator for the sex or violent
offender registry in Vanderburgh County. At this time, Detective Robinson
went over the rules, duties, and obligations associated with registration as a sex
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or violent offender; Stevenson indicated that he understood these rules, duties,
and obligations and registered as a sex offender.
[4] On October 5, 2016, Stevenson was dismissed from the Rescue Mission because
the shelter is “not allowed to have people on the registry there.” Tr. Vol. II, p.
25. Rescue Mission staff member Amanda Crowe made an effort to remind
Stevenson that he would need to contact the Sheriff’s Department and update
his address on the registry. After being led to believe that Stevenson was
residing at a different homeless shelter, Crowe also attempted to contact the
other shelter to “let them know that [Stevenson] was there and that he needed
to change his address” with the registry. Tr. Vol. II, p. 26.
[5] Crowe met with Detective Robinson on October 12, 2016, and discussed
Stevenson. At this time, despite the fact that Stevenson was in violation for
failing to inform Detective Robinson that he was no longer residing at the
Rescue Mission, Detective Robinson chose to “give [Stevenson] a little bit of a
grace period” and asked Crowe to attempt to contact Stevenson and remind
him that he was required to visit the Department and to comply with the
registry requirements. Tr. Vol. II, p. 34. However, when Stevenson failed to
report to the Department and comply with the registry’s requirements by
November 11, 2016, Detective Robinson “had to draw a line in the sand and
after receiving no contact, declared him AWO[L] from the registry” and
referred the matter to the prosecuting attorney. Tr. Vol. II, p. 34. At some
point a warrant was issued for Stevenson’s arrest. Detective Robinson had no
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contact with Stevenson until he was apprehended in Clark County on August
12, 2017.
C. Procedural History
[6] On November 18, 2016, Appellee-Plaintiff the State of Indiana charged
Stevenson with failure to register as a sex or violent offender. The charge was
elevated to a Level 5 felony because of Stevenson’s prior failure to register
conviction. The trial court conducted a jury trial on October 11, 2017.
Stevenson requested a mistrial during the State’s closing rebuttal argument,
alleging that the deputy prosecutor committed prosecutorial misconduct. The
trial court denied Stevenson’s request for a mistrial. After the jury returned a
guilty verdict, Stevenson pled guilty to the Level 5 felony enhancement. The
trial court subsequently sentenced Stevenson to a four-year term of
imprisonment.
Discussion and Decision
I. Denial of Request for Mistrial
[7] Stevenson contends that the trial court erred in denying his request for a
mistrial. “Whether to grant or deny a motion for a mistrial lies within the
sound discretion of the trial court.” Isom v. State, 31 N.E.3d 469, 480 (Ind.
2015). “We afford great deference to the trial court’s decision and review the
decision solely for abuse of that discretion.” Id. “A mistrial is an extreme
remedy that is warranted only when less severe remedies will not satisfactorily
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correct the error.” Banks v. State, 761 N.E.2d 403, 405 (Ind. 2002). “A timely
and accurate admonition is presumed to cure any error in the admission of
evidence.” Id. (internal quotation omitted).
[8] Stevenson argues that a mistrial was necessary following two alleged instances
of prosecutorial misconduct during the State’s closing rebuttal argument. As
for the first instance, the deputy prosecutor stated “I cannot stress this enough,
the government [bears] the burden of proof, that’s been explained to you over
and over, I think you understand that, we also bear the burden of keeping this
community safe because when something bad happens-[.]” Tr. Vol. II, p. 65.
At this point, defense counsel objected. Following a discussion held outside of
the presence of the jury, the trial court admonished the jury as follows: “Ladies
and gentlemen, please disregard the last five or six words the deputy prosecutor
spoke.” Tr. Vol. II, p. 67.
[9] As for the second instance, the deputy prosecutor stated “These rules protect
him as well. Something bad happens at 123 Line Street, we’re going to look at
suspects.” Tr. Vol. II, pp. 68–69. At this point, defense counsel objected and
moved for a mistrial. Following another discussion held outside the presence of
the jury, the trial court denied the request for a mistrial and admonished the
jury as follows: “Ladies and gentlemen, please disregard the last sentence
spoken by the deputy prosecutor.” Tr. Vol. II, pp. 69–70.
[10] Although Stevenson claims on appeal that the trial court’s admonishments were
insufficient, he fails to convince us of such. He fails to demonstrate that the
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comments at issue were so inflammatory as to place him in a position of great
peril. See Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006) (providing that in
determining whether an individual committed prosecutorial misconduct, we
consider whether the alleged misconduct placed the defendant in a position of
grave peril to which he would not have otherwise been subjected). More
importantly, Stevenson does not even suggest that anything in the record
indicates that the jury did not follow the trial court’s instructions to disregard
the deputy prosecutor’s comments. Thus, we presume that the trial court’s
admonishment cured any potential harm. See Green v. State, 587 N.E.2d 1314,
1317 (Ind. 1992) (providing that appellate courts may presume that a timely and
accurate admonishment by the trial court will cure any defect); see also Webster v.
State, 413 N.E.2d 898, 901, 274 Ind. 668, 673 (1980) (providing that “[o]n
appeal, [appellate courts] must presume that the jury obeyed the trial court’s
instructions in reaching its verdict” and when the jury has been instructed not to
consider specific evidence or argument, “we will assume that the jury followed
the instructions.”).1
II. Appropriateness of Sentence
[11] Stevenson also contends that his four-year sentence is inappropriate in light of
the nature of his offense and his character. Indiana Appellate Rule 7(B)
provides that “The Court may revise a sentence authorized by statute if, after
1
Because we conclude that the admonishments given by the trial court cured any potential harm, we need
not consider the State’s argument that deputy prosecutor did not commit prosecutorial misconduct.
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due consideration of the trial court’s decision, the Court finds that the sentence
is inappropriate in light of the nature of the offense and the character of the
offender.” In analyzing such claims, we “‘concentrate less on comparing the
facts of [the case at issue] to others, whether real or hypothetical, and more on
focusing on the nature, extent, and depravity of the offense for which the
defendant is being sentenced, and what it reveals about the defendant’s
character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting
Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied). The
defendant bears the burden of persuading us that his sentence is inappropriate.
Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
[12] Not only did Stevenson fail to register with the Registry as required, his offense
was elevated to a Level 5 felony because he had a previous failure to register
conviction. On August 17, 2016, Stevenson signed paperwork indicating that
he understood that he was required to register and to update his registration any
time his residence changed. Stevenson argues that he should have been given a
lesser sentence because he was homeless at the time he failed to register and,
thus, did not have an address to provide. However, the rules for registration,
which again Stevenson indicated in writing that he understood, provided
explicit instructions for how to register if one resides in temporary housing or is
homeless. Specifically, the rules stated that “If you live at a temporary
residence such as a homeless shelter, a group home, or a halfway house, or if
you are homeless you must register IN-PERSON to the [Department] at least
once every 7 days until you find a permanent residence.” State’s Ex. 1, p. 5
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(emphasis in original). Despite having been told that he was required to update
authorities of his whereabouts once every seven days, Stevenson did not register
with the Department after being asked to leave the Rescue Mission.
[13] As for his character, Stevenson points to a favorable report from one of his
parole officers. While Stevenson’s apparent willingness to cooperate with this
parole officer might reflect somewhat positively on his character, it does not
negate the numerous negative character traits argued before the trial court.
Stevenson was required to register because he had committed a prior qualifying
conviction. His criminal history was lengthy. It included sixteen felony
convictions, one of which was a prior failure to register conviction. It also
included nine misdemeanor convictions, one juvenile adjudication, and a
habitual offender finding. The fact that Stevenson was convicted of this offense
for a second time suggests that he has failed to reform his behavior. Stevenson
has failed to convince us that his four-year sentence is inappropriate.
[14] The judgment of the trial court is affirmed.
Baker, J., and Kirsch, J., concur.
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