Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                    Jun 14 2012, 8:50 am
court except for the purpose of
establishing the defense of res judicata,                           CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
collateral estoppel, or the law of the case.                             tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MICHAEL FRISCHKORN                               GREGORY F. ZOELLER
Fortville, Indiana                               Attorney General of Indiana

                                                 RICHARD C. WEBSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DARRELL WARREN,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 29A02-1112-CR-1198
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE HAMILTON SUPERIOR COURT
                         The Honorable William J. Hughes, Judge
                             Cause No. 29D03-1106-FD-9832


                                       June 14, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Darrell Warren (Warren), appeals his sentence for invasion

of privacy, a Class D felony, Ind. Code § 35-46-1-15.1.


       We affirm.


                                           ISSUE

       Warren raises one issue on appeal which we restate as:            Whether Warren’s

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

                        FACTS AND PROCEDURAL HISTORY

       On June 23, 2011, Warren went to the home of Erin Giacoma (Giacoma), the

daughter of Cathleen Johnson (Johnson). Johnson was living at Giacoma’s home along

with Giacoma’s children and boyfriend. At that time Johnson had a no-contact order in

effect against Warren. Warren recently had an operation on his shoulder and Giacoma, a

nurse, offered to look at the wound and change his bandages. When Warren arrived at

Giacoma’s home, Giacoma was not there and Johnson was sitting on the front porch

cooking on the grill. Warren was scheduled to be sentenced the next day on an unrelated

invasion of privacy conviction involving Johnson as the victim and was concerned about

his upcoming sentence. Warren began talking to Johnson and attempted to persuade her

to go to court and testify on his behalf and try and get him out of the charges. Johnson

refused and stated that, “if [she] went to court that [she] would be telling the truth and



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would not lie.” (Transcript p. 107). Warren became angry and struck Johnson in the

nose and threatened her.

      On June 24, 2011, the State filed an Information charging Warren with Count I,

battery, a class A misdemeanor, I.C. § 35-42-2-1(A)(1)(a); Count II, intimidation, a class

D felony, I.C. § 35-45-2-1; Count III, invasion of privacy, a class A misdemeanor, I.C. §

35-46-1-15.1; Count IV, criminal trespass, a class A misdemeanor, I.C. § 35-43-2-2;

Count V, invasion of privacy with prior conviction, a class D felony, I.C. § 35-46-1-15.1,

and Count VI, battery resulting in bodily injury with prior conviction, a class D felony,

I.C. § 35-42-2-1(a). On November 22, 2011, a bifurcated jury trial was held. The trial

court granted Warren’s motion for judgment on the evidence as to Count IV. The jury

found Warren not guilty of Counts I and II, but guilty of Count III. Warren stipulated to

the allegations of Count V and the trial court dismissed Count VI. During the sentencing

hearing on December 16, 2011, the trial court merged Count III into Count V and gave

Warren an executed sentence of seven hundred thirty days at the Department of

Correction.

      Warren now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

      Warren contends that his sentence of seven hundred thirty days incarceration for

invasion of privacy, a class D felony, against Johnson is not appropriate in light of the

nature of the offense and the character of the offender. A person who commits a class D

felony shall be imprisoned for a fixed term of between six months and three years, with

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the advisory sentence being one and one-half years. I.C. § 35-50-2-7(a). Here the trial

court imposed six months greater than the advisory sentence.

      Sentences within the statutory range are subject to review only for an abuse of

discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), aff’d on reh’g, 875

N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if the decision is clearly against

the logic and effect of the facts and circumstances before the court, or the reasonable,

probable, and actual deductions to be drawn therefrom. Id. However, this court may

revise a sentence authorized by statute if, after 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. Ind. Appellate Rule 7(B). The defendant bears

the burden of persuading this court that his sentence is inappropriate. Childress v. State,

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

      With respect to the nature of his crime, Warren argues his sentence of seven

hundred thirty days is excessive because his reason for contacting Johnson was innocent

and without intent to terrorize or frighten her. Rather, Warren claims he only intended to

get his shoulder looked at by Giacoma. We disagree. While arriving at Giacoma’s home

might have been innocent, his approach of Johnson clearly was not. He attempted to

persuade Johnson to change her testimony in an upcoming court proceeding and became

angry and physically violent when she refused. The current invasion of privacy charge

was committed when Warren was out on bond awaiting sentencing for having violated

the same no-contact order previously.

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       We reach a similar conclusion when reviewing his character. Warren argues his

sentence is excessive because Johnson played a large part in facilitating the contact in

violation of a court order. However, Warren has a substantial history of various criminal

convictions including seven for invasion of privacy. Many of these invasion of privacy

convictions involved Johnson as the victim.       Warren ignored a no-contact order by

making contact with Johnson on this occasion and his repeated offenses demonstrate his

conscious disregard for the legal restrictions imposed upon him. Furthermore, Johnson

testified Warren physically struck her in the nose and threatened to find her at work if she

did not cooperate. Based on the evidence before us, we conclude that Warren’s sentence

is appropriate and affirm the trial court’s imposition of a seven hundred thirty day

sentence.

                                         CONCLUSION

       Based on the foregoing, we conclude Warren’s sentence of seven hundred thirty

days was not inappropriate in light of his character and the nature of the crime.

       Affirmed.

NAJAM, J. and DARDEN, J. concur




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