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                           Jul 22 2020, 11:04 am

the defense of res judicata, collateral                                     CLERK
estoppel, or the law of the case.                                       Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jennifer L. Koethe                                        Curtis T. Hill, Jr.
Navarre, Florida                                          Attorney General of Indiana

                                                          Megan M. Smith
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Chris A. Brodien,                                         July 22, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-110
        v.                                                Appeal from the LaPorte Superior
                                                          Court
State of Indiana,                                         The Honorable Michael S.
Appellee-Plaintiff.                                       Bergerson, Judge
                                                          Trial Court Cause No.
                                                          46D01-1901-F5-30



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020                    Page 1 of 12
                                           Case Summary
[1]   Chris Brodien was convicted of Level 5 felony battery and Class A

      misdemeanor battery following an altercation with his then-girlfriend and his

      then-girlfriend’s daughter. Brodien challenges his aggregate seven-year

      sentence on appeal, arguing both that the trial court abused its discretion in

      sentencing him and that his sentence is inappropriate. We affirm.



                            Facts and Procedural History
[2]   In December of 2018, Brodien was living with his then-girlfriend, Theresa

      Bowen, and her adult daughter, Tiffany. On December 13, 2018, Brodien and

      Bowen went to dinner where Brodien drank several beers. While on their way

      home, Bowen noticed her purse was not on the floorboard where she usually

      kept it and questioned Brodien about its whereabouts. Brodien denied knowing

      the whereabouts of Bowen’s purse. Bowen continued to press the issue for the

      few minutes it took to drive back to her house.


[3]   After arriving at her home, Bowen located her purse in the backseat.

      Immediately thereafter, Brodien grabbed her by the shoulders and started

      slamming her head into the car. Brodien yelled that Bowen was being too loud

      when she asked about her purse. After he stopped slamming Bowen’s head into

      the car, Brodien screamed at Bowen, called her names, slapped her, and

      slammed her to the ground. While Bowen was on the ground, Brodien grabbed

      a board and smashed the windshield of Tiffany’s car.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020   Page 2 of 12
[4]   Tiffany called 911 after she heard the commotion and looked outside to see

      Brodien standing over Bowen. When Brodien realized that Tiffany had called

      911, he attacked her by grabbing her throat and pulling her out of the house by

      her hair. Brodien again knocked Bowen to the ground when she attempted to

      assist Tiffany. Brodien grabbed Tiffany’s arm, pulled it backwards, and hit her

      in the face. Brodien eventually fled on foot into a nearby cornfield.


[5]   When officers arrived, Bowen was walking around outside, dazed, covered in

      dirt, and her clothes were disheveled. Bowen had marks on her arms and her

      face was red. Tiffany was very upset and crying. She was also covered in dirt

      and had marks on her face and hands. As a result of the altercation, Bowen

      and Tiffany both suffered pain, swelling, bruising, and abrasions. After the

      altercation, Brodien threatened to kill Bowen and burn down her house.


[6]   On January 7, 2019, the State charged Brodien with Level 5 felony battery with

      a prior conviction against the same victim. On January 18, 2019, the trial court

      issued a no-contact order. Despite this order, Brodien repeatedly contacted

      Bowen from jail, sending her between thirty and forty letters and calling her.

      The State subsequently amended the charging information to add a charge of

      Class A misdemeanor battery. Following trial, the jury found Brodien guilty of

      the underlying Class B misdemeanor battery charge in Count I and the Class A

      misdemeanor battery charge in Count II. Brodien then admitted that he had a

      prior battery conviction against the same victim, elevating the Class B

      misdemeanor conviction to a Level 5 felony conviction. On December 12,

      2019, the trial court sentenced Brodien to six years for the Level 5 felony battery

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020   Page 3 of 12
      conviction and one year for the Class A misdemeanor battery conviction, and

      ordered that the sentences be served consecutively.



                                 Discussion and Decision
[7]   Brodien challenges his aggregate seven-year sentence on appeal, arguing both

      that the trial court abused its discretion in sentencing him and that his sentence

      is inappropriate.


                                     I. Abuse of Discretion
[8]   Sentencing decisions rest within the sound discretion of the trial court and are

      reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), modified on other grounds 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.

      (quotation omitted).


              We review for an abuse of discretion the court’s finding of
              aggravators and mitigators to justify a sentence, but we cannot
              review the relative weight assigned to those factors. Anglemyer,
              868 N.E.2d at 490–91. When reviewing the aggravating and
              mitigating circumstances identified by the trial court in its
              sentencing statement, we will remand only if “the record does
              not support the reasons, or the sentencing statement omits
              reasons that are clearly supported by the record, and advanced
              for consideration, or the reasons given are improper as a matter
              of law.” Id.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020   Page 4 of 12
       Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct. App. 2016). A single

       aggravating circumstance may be sufficient to enhance a sentence. Id. at 417.


[9]    In sentencing Brodien, the trial court found Brodien’s prior criminal history to

       be an aggravating factor. In challenging his sentence, Brodien claims that the

       trial court abused its discretion by failing to find the following to be mitigating

       factors: (1) he stipulated to the prior conviction at issue in the charging

       enhancement, saving the State the time and effort to prove it; (2) his remorse;

       and (3) his history of alcohol abuse.


                                        A. Mitigating Factors
[10]   Although a sentencing court must consider all evidence of mitigating factors

       offered by a defendant, the finding of mitigating factors rests within the court’s

       discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). A trial court is

       neither required to find the presence of mitigating factors, Fugate v. State, 608

       N.E.2d 1370, 1374 (Ind. 1993), nor obligated to explain why it did not find a

       factor to be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind.

       2001). “A court does not err in failing to find mitigation when a mitigation

       claim is highly disputable in nature, weight, or significance.” Henderson, 769

       N.E.2d at 179 (internal quotations omitted).


[11]   While Indiana law “mandates that the trial judge not ignore facts in the record

       that would mitigate an offense, and a failure to find mitigating circumstances

       that are clearly supported by the record may imply that the trial court failed to

       properly consider them,” Sherwood, 749 N.E.2d at 38, an allegation that the trial

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020   Page 5 of 12
       court failed to find a mitigating factor requires the defendant to establish that

       the mitigating evidence is both significant and clearly supported by the record.

       Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999). Furthermore, “the trial court is

       not required to weigh or credit the mitigating evidence the way appellant

       suggests it should be credited or weighed.” Fugate, 608 N.E.2d at 1374.


                                    1. Stipulation to Prior Conviction

[12]   Brodien asserts that the trial court abused its discretion by failing to find his

       stipulation to the prior conviction at issue in the charging enhancement, which

       he argues should be treated the same as a guilty plea, to be a significant

       mitigating factor. “[T]he significance of a guilty plea as a mitigating factor

       varies from case to case.” Anglemyer, 875 N.E.2d at 221. For example, “[a]

       guilty plea saves significant court resources, and where the State reaps such

       substantial benefits from the defendant’s act of pleading guilty, the defendant

       deserves to have a substantial benefit returned.” Patterson v. State, 846 N.E.2d

       723, 729 (Ind. Ct. App. 2006).


[13]   Brodien argues that the trial court should have found his stipulation to be a

       mitigating factor because he “save[d] the State additional time at trial.”

       Appellant’s Br. p. 12. The trial court acknowledged Brodien’s stipulation,

       stating, “That was about a 15 or 20 minute exercise that the State would of had

       to accomplish. I do appreciate that and it uh, to a certain degree a minimum

       mitigator.” Tr. Vol. III pp. 80–81. In stipulating to his prior conviction,

       Brodien neither saved the State significant resources nor his victims the stress of

       testifying at trial. Brodien merely saved the State a few minutes during which it
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020   Page 6 of 12
       would have provided documentary proof of Brodien’s prior conviction to the

       trial court. The trial court did not abuse its discretion in failing to find

       Brodien’s stipulation to be a significant mitigating factor.


                                                   2. Remorse

[14]   Brodien also asserts that the trial court abused its discretion in failing to find his

       remorse to be a mitigating factor. “Remorse may properly be considered as a

       mitigating factor.” Singer v. State, 674 N.E.2d 11, 17 (Ind. Ct. App. 1996).

       “However, the Indiana Supreme Court has held that a trial court’s

       determination of a defendant’s remorse is similar to a determination of

       credibility.” Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App. 2005) (citing

       Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002)). “As such, without evidence

       of some impermissible consideration by the trial court, a reviewing court will

       accept its determination as to remorse.” Id. “The trial court, which has the

       ability to directly observe the defendant and listen to the tenor of his or her

       voice, is in the best position to determine whether the remorse is genuine.”

       Corralez v. State, 815 N.E.2d 1023, 1025 (Ind. Ct. App. 2004).


[15]   In claiming that the trial court abused its discretion by failing to consider his

       remorse for his actions, Brodien pointed to pre-trial attempts to communicate

       with Bowen from jail and his statement to the trial court during the sentencing

       hearing. As for the pre-trial alleged expression of remorse, Brodien testified

       that he wrote letters to and called Bowen from the jail “apologizing and trying

       to get back together.” Tr. Vol. II p. 219. However, despite allegedly

       apologizing to Bowen, Brodien blamed Tiffany for the incident in a statement
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020   Page 7 of 12
       made prior to sentencing: “I tried to calm [Bowen] but Tiffany cause the

       problem [illegible word] to get more that what it should have been. Tiffany

       cause the problem.” Appellant’s App. Vol. III p. 43. In his statement to the

       trial court during the sentencing hearing, Brodien stated


               I just know one thing that the way things, everything happened
               when Tiffany came up, you know, what I mean. I, I, you know,
               that we was all drinkin’. Tiffany was between drinking and pills
               I don’t know what was going on, you know, when this
               happened. I, I know one thing, I sure didn’t want it to turn out
               like this, because I loved the woman and I wanted to be with the
               woman for the rest of my life. I love her. I wanted to take care
               of her. As I’ve been around here, and I, and I still pray for her
               everyday. Since I’ve been locked up I’ve been thinkin’ everyday
               about this, I really have. And I care about her and I still love her
               so much. I’m, you know, I’m sorry that, you know, it come
               down to, you know, this happening at all period. I would of, if I
               could -- I loved the woman. I wanted to spend the rest of my life
               with her. And I thought she wanted to too. I really did. I
               thought, I don’t know.


       Tr. Vol. III p. 83. While Brodien’s statement could potentially be considered as

       an expression of remorse, it also suggests that Brodien has yet to accept

       responsibility for his actions as he continued to blame Tiffany for the

       altercation.


[16]   The trial court, being in the best position to judge Brodien’s credibility as to his

       stated remorse, Corralez, 815 N.E.2d at 1025, was not required to assign the

       same weight and significance to Brodien’s claimed remorse as Brodien. See




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020   Page 8 of 12
       Fugate, 608 N.E.2d at 1374. The trial court did not abuse its discretion in

       failing to find Brodien’s claimed remorse to be a significant mitigating factor.


                                        3. History of Alcohol Abuse

[17]   Brodien asserts that the trial court also abused its discretion by failing to find his

       history of alcohol abuse to be a mitigating factor.


               While we have recognized that a history of substance abuse may
               be a mitigating circumstance, Field v. State, 843 N.E.2d 1008,
               1012 (Ind. Ct. App. 2006), trans. denied, we have held that when a
               defendant is aware of a substance abuse problem but has not
               taken appropriate steps to treat it, the trial court does not abuse
               its discretion by rejecting the addiction as a mitigating
               circumstance. Bryant v. State, 802 N.E.2d 486, 501 (Ind. Ct. App.
               2004), trans. denied.


       Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App. 2009).


[18]   The record reveals that Brodien was aware of his alcohol-related issues but had

       failed to take the steps necessary to address his issues. Brodien suggests that his

       consumption of alcohol contributed to his criminal behavior, admitting that the

       very day that he was released from alcohol monitoring, he consumed alcohol,

       drove while he was admittedly “probably over the limit,” and battered his then-

       girlfriend and his then-girlfriend’s daughter. Tr. Vol. II p. 203. Based on these

       facts, we conclude that the trial court did not abuse its discretion by failing to

       find Brodien’s history of alcohol abuse to be a significant mitigating factor.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020   Page 9 of 12
                              II. Appropriateness of Sentence
[19]   Indiana Appellate Rule 7(B) provides that “The 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.” 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) (internal quotation omitted). 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).


[20]   The trial court sentenced Brodien to a term of six years for his Level 5 felony

       battery conviction and one year for his Class A misdemeanor conviction, for an

       aggregate seven-year sentence. A person who commits a Level 5 felony “shall

       be imprisoned for a fixed term of between one (1) and six (6) years, with the

       advisory sentence being three (3) years.” Ind. Code § 35-50-2-6(b). “A person

       who commits a Class A misdemeanor shall be imprisoned for a fixed term of

       not more than one (1) year.” Ind. Code § 35-50-3-2. Thus, in sentencing

       Brodien to an aggregate seven-year sentence, the trial court sentenced Brodien

       to the maximum sentence permitted by the statutes.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020   Page 10 of 12
[21]   In arguing that his aggregate seven-year sentence is inappropriate, Brodien

       asserts that “although [he] has a lengthy prior criminal history, he is not the

       worst of the worst.” Appellant’s Br. p. 14. Brodien points to the fact that

       Bowen was not injured during the altercation in an attempt to downplay the

       seriousness of his actions. However, we find the nature of Brodien’s actions to

       be quite serious. During the altercation, Brodien grabbed Bowen and started

       slamming her head into the car. Brodien then yelled at Bowen “because [she]

       asked him too loudly, where [her] purse was.” Tr. Vol. II pp. 110–11. Brodien

       continued screaming and calling Bowen names while slamming her head on the

       ground “really hard.” Tr. Vol. II p. 111. When Tiffany, who is disabled, came

       to see if Bowen needed assistance, Brodien attempted to strangle Tiffany,

       grabbing her throat with one hand. With his other hand, Brodien grabbed

       Tiffany’s hair and pulled her from the house.


[22]   As for Brodien’s character, “[w]hen considering the character of the offender,

       one relevant fact is the defendant’s criminal history.” Johnson v. State, 986

       N.E.2d 852, 857 (Ind. Ct. App. 2013). “The significance of criminal history

       varies based on the gravity, nature, and number of prior offenses in relation to

       the current offense.” Id. Further, allegations of prior criminal activity need not

       be reduced to conviction before they may be properly considered by a

       sentencing court. Harlan v. State, 971 N.E.2d 163, 170 (Ind. Ct. App. 2012).


[23]   Brodien’s criminal history spans thirty-two years and includes twenty-nine

       misdemeanor convictions and fourteen felony convictions. He has been

       arrested seventy-four times and has committed numerous probation violations.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020   Page 11 of 12
       Brodien acknowledges that at least five of his prior misdemeanor convictions

       involve batteries or violence, “including the prior Domestic Battery where

       [Bowen] was the victim.” Appellant’s Br. p. 14. In addition, Brodien’s “overall

       risk assessment score puts [him] in the HIGH risk category to reoffend.”

       Appellant’s App. Vol. III p. 40. Given the serious nature of his offenses and

       evidence of poor character, Brodien has failed to convince us that his aggregate

       seven-year sentence is inappropriate. See Sanchez, 891 N.E.2d at 176 (“The

       defendant bears the burden of persuading us that his sentence is

       inappropriate.”).


[24]   The judgment of the trial court is affirmed.


       Najam, J., and Mathias, J. concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-110 | July 22, 2020   Page 12 of 12
