MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                     Jan 16 2018, 8:43 am
regarded as precedent or cited before any                                     CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Keith Jacob Branam,                                      January 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         40A01-1703-CR-472
        v.                                               Appeal from the Jennings Circuit
                                                         Court
State of Indiana,                                        The Honorable Jonathan W.
Appellee-Plaintiff                                       Webster, Judge
                                                         Trial Court Cause No.
                                                         40C01-1602-F6-56, 40C01-1602-
                                                         F6-67



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 40A01-1703-CR-472 | January 16, 2018            Page 1 of 7
[1]   Keith J. Branam appeals the sentences imposed in two separate causes, both

      involving a level 6 felony invasion of privacy conviction. The trial court

      imposed two and one-half year sentences and ordered them to be served

      concurrently. On appeal, Branam contends that his sentences are inappropriate

      in light of his character and the nature of the offenses.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Branam and his wife Kimber were both regular drug users and had a

      tumultuous relationship. On July 24, 2014, the police were called to their home

      due to a domestic violence report. Officers found Kimber battered and injured

      and the home in disarray. Branam had thrown objects against the walls and

      appliances, smashed windows, knocked a door off its hinges, and caused

      substantial damage to the home during his angry tirade. Officers also found

      drug paraphernalia and syringes in the bathroom of the residence. Branam was

      arrested that day, and a protective order was issued to protect Kimber from

      Branam.


[4]   Upon his release from jail several days later, Branam violated the protective

      order by moving back in with Kimber. This resulted in his eventual conviction,

      on January 15, 2015, for Class A misdemeanor invasion of privacy and the

      issuance of another protective order. On that date, he received a suspended




      Court of Appeals of Indiana | Memorandum Decision 40A01-1703-CR-472 | January 16, 2018   Page 2 of 7
      sentence and was placed on probation for eleven months. Kimber and Branam

      were separated by this time, and their divorce was pending.1


[5]   On January 26, 2015, the State filed charges against Branam for the July 24,

      2014 incident under cause number 40C01-1501-F6-9 (Cause F6-9). The

      information set out four counts: Level 6 felony unlawful possession of syringe

      (Count I), Level 6 felony maintaining a common nuisance (Count II), Level 6

      felony possession of paraphernalia (Count III), and Class A misdemeanor

      domestic battery (Count IV).


[6]   In July 2015, Branam returned to jail apparently following the revocation of his

      probation in the initial invasion of privacy case. The details of his violations are

      not included in the record. It is clear, however, that he was released on October

      29, 2015.


[7]   The following day, October 30, Branam sent a message through Facebook to

      Kimber, who was now his ex-wife. Branam asked if they could talk and

      indicated that he loved and missed her and was sorry. Kimber did not respond

      and, instead, reported the message to the police. On November 10, he

      messaged her again and inquired as to why she was not responding to his

      messages or calling him. Branam asked her to call or text back soon. On




      1
       Branam also committed invasion of privacy on January 3, 2015, shortly after Kimber moved out, but the
      State did not file charges until April 2015 and a conviction did not result until March 2016.

      Court of Appeals of Indiana | Memorandum Decision 40A01-1703-CR-472 | January 16, 2018        Page 3 of 7
       November 12, Branam reached out to Kimber once more via Facebook.

       Kimber again went to the police to report Branam’s attempts to contact her.


[8]    In February 2016, the State filed two separate criminal informations against

       Branam for Level 6 felony invasion of privacy, elevated to felony charges due to

       the prior conviction in January 2015. Under cause number 40C01-1602-F6-67

       (Cause F6-67), the State alleged that Branam committed the offense when he

       sent the October 30 message in violation of the protective order. The

       allegations under cause number 40C01-1602-F6-56 (Cause F6-56) were based

       on the messages sent in November.


[9]    Branam entered into a plea agreement with the State to resolve the charges

       pending under Causes F6-9, F6-67, and F6-56. Pursuant to the agreement,

       accepted by the trial court on December 6, 2016, he pled guilty to the invasion

       of privacy counts under Causes F6-67 and F6-56. With respect to Cause F6-9,

       Branam pled guilty to Counts II and IV, Level 6 felony maintaining a common

       nuisance and Class A misdemeanor domestic battery. The State agreed to

       dismiss the remaining two counts under Cause F6-9. The agreement left

       sentencing to the trial court’s discretion but mandated that the sentences for

       invasion of privacy be served concurrently with each other, and the sentences

       for Counts II and IV under Cause F6-9 be served concurrently with each other

       but consecutive to the others.


[10]   On December 22, 2016, the trial court sentenced Branam to executed terms of

       two and one-half years for the invasion of privacy counts and ordered them to


       Court of Appeals of Indiana | Memorandum Decision 40A01-1703-CR-472 | January 16, 2018   Page 4 of 7
       be served concurrently. Under Cause F6-9, the trial court imposed concurrent

       sentences of two and one-half years for maintaining a common nuisance and

       one year for domestic battery, which were ordered to be served consecutive to

       the sentences for invasion of privacy. On appeal, Branam challenges only the

       concurrent sentences imposed in the invasion of privacy cases, Causes F6-67

       and F6-56.


                                           Discussion & Decision


[11]   Branam observes that he received the maximum sentence for each of his

       convictions for Level 6 felony invasion of privacy, but acknowledges that the

       sentences were ordered to be served concurrently. See Ind. Code § 35-50-2-7(b)

       (sentencing range for a Level 6 felony is six months to two and one-half years).

       He argues that his sentences are inappropriate in light of his character and the

       nature of his offenses.


[12]   Although a trial court may have acted within its lawful discretion in imposing a

       sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize

       independent appellate review and revision of a sentence imposed by the trial

       court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009) (citing Anglemyer v.

       State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218). This

       appellate authority is implemented through Ind. Appellate Rule 7(B), which

       provides that a 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


       Court of Appeals of Indiana | Memorandum Decision 40A01-1703-CR-472 | January 16, 2018   Page 5 of 7
       offender.” Anglemyer, 868 N.E.2d at 491. Nevertheless, “we must and should

       exercise deference to a trial court’s sentencing decision, both because Rule 7(B)

       requires us to give ‘due consideration’ to that decision and because we

       understand and recognize the unique perspective a trial court brings to its

       sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App.

       2007). The appellant bears the burden of persuading us that his sentence is

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


[13]   We agree with Branam that the nature of his multiple violations of the

       protective order were not particularly aggravating. He reached out to Kimber a

       few times after his release from jail and then apparently stopped contacting her.

       His messages were short and rather unassuming. They were, however,

       unlawful and unwelcome by his victim of domestic violence.


[14]   Branam’s character, on the other hand, is particularly troubling. He has an

       extensive criminal history spanning nearly twenty years, which includes

       convictions for theft, burglary, operating while intoxicated, sexual misconduct

       with a minor, conversion, possession of paraphernalia, and invasion of privacy.

       Additionally, he has violated probation on a number of occasions. Branam’s

       violent nature is reflected in the record through the photographs of the damage

       done to the home and Kimber’s testimony regarding the beatings she endured.

       As the trial court observed, Kimber was left with significant “emotional

       wreckage” as the result of Branam’s actions. Transcript at 85. The record also

       reflects a lengthy history of drug abuse. While Branam claimed at sentencing to

       be drug free, employed, and in a healthy relationship, his history suggests this

       Court of Appeals of Indiana | Memorandum Decision 40A01-1703-CR-472 | January 16, 2018   Page 6 of 7
       status might be fleeting. Indeed, the trial court noted that Branam had a high

       risk to reoffend.


[15]   After considering Branam’s character and the nature of his offenses, we cannot

       agree that his concurrent, two and one-half year sentences are inappropriate.


[16]   Judgment affirmed.


       Baker, J. and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 40A01-1703-CR-472 | January 16, 2018   Page 7 of 7
