                                                                               FILED
                                                                          May 25 2018, 10:17 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Leanna Weissmann                                          Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                     Attorney General of Indiana

                                                          Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James R. Eisert,                                          May 25, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          69A01-1708-CR-1938
        v.                                                Appeal from the Ripley Circuit
                                                          Court
State of Indiana,                                         The Honorable Ryan King, Judge
Appellee-Plaintiff                                        Trial Court Cause No.
                                                          69C01-1603-F5-11



May, Judge.




Court of Appeals of Indiana | Opinion 69A01-1708-CR-1938 | May 25, 2018                            Page 1 of 10
[1]   James R. Eisert appeals his six-year sentence for Level 5 felony stalking 1 and

      Class A misdemeanor invasion of privacy. 2 He argues that sentence is

      inappropriate in light of his character and offenses. We affirm.



                                Facts and Procedural History
[2]   Eisert was married to G.E., and together they had two children, L.E. and M.E.

      By December 2015, Eisert and G.E. were estranged, L.E. was at college, and

      M.E. lived with G.E. On December 26, 2015, Eisert battered G.E. and M.E.,

      and he threatened to hurt G.E. and to kill G.E., M.E., and L.E. Eisert was

      arrested, and the State charged him with multiple counts of battery on

      December 30, 2015. The trial court released Eisert on bond pending trial and

      ordered him to have no-contact with his ex-wife or children, but on January 1,

      2016, Eisert was arrested for violating that no contact order. The court once

      again released Eisert from custody and entered another no contact order as to

      G.E. and M.E.


[3]   Following the violence in December 2015, G.E. consulted with workers at a

      domestic violence shelter to develop a safety plan for herself and her children.

      G.E. changed the locks on all the doors to her home and added two additional

      locks to each door. She installed security cameras that recorded what was




      1
          Ind. Code § 35-45-10-5 (2014).
      2
          Ind. Code § 35-46-1-15.1(1) (2014).


      Court of Appeals of Indiana | Opinion 69A01-1708-CR-1938 | May 25, 2018   Page 2 of 10
      happening at her house’s back door and basement door. She and M.E. changed

      their routines to ensure their arrival and exit at work and school, respectively,

      were monitored by others.


[4]   On February 5, 2016, after 10:30 p.m., Eisert climbed onto the roof of G.E.’s

      house, entered the attic through a window, and then used razor blades to cut his

      way through the dry wall between the attic and the living space. G.E. was

      home alone, and when she heard someone trying to break into the house, she

      called M.E. and then called 911. G.E. was on the line with the 911 operator

      when she saw Eisert emerge. G.E. screamed repeatedly and told the operator

      she was running outside her house, but then the phone went dead. G.E. tried to

      run out the front door, but Eisert grabbed her by the hair, pulled her to the

      garage, and tried to force her into a car. Eisert told G.E. that they needed to

      “go talk to Jesus,” (Tr. Vol. II at 36), which G.E. believed was a threat to kill

      her, and she was “scared to death.” (Id.) Before Eisert could get G.E. into a

      car, M.E. returned home. Eisert fled the house and hid near the woods until

      police used heat sensors to locate him. G.E. was so terrified that she needed

      medical attention at the scene.


[5]   On February 9, 2016, under Case Number 69C01-1603-F5-11, the State charged

      Eisert with Level 5 felony stalking, Level 6 felony residential entry, 3 and Class

      A misdemeanor invasion of privacy. In May 2017, Eisert and the State entered




      3
          Ind. Code § 35-43-2-1.5 (2014).


      Court of Appeals of Indiana | Opinion 69A01-1708-CR-1938 | May 25, 2018   Page 3 of 10
      an agreement whereby Eisert would plead guilty to stalking and invasion of

      privacy, while the State would dismiss the residential-entry charge. 4 The trial

      court accepted Eisert’s plea.


[6]   The trial court held a sentencing hearing at which the State and Eisert presented

      evidence. The court then entered a very detailed sentencing order to explain its

      sentencing:


              The Aggravating Factors are as follows:


              1)       The trauma suffered by the victim was significant and
                       continues to impact her, as well as continues to impact her
                       children. First, immediately after the crime the victim
                       suffered an anxiety related episode that resulted in law
                       enforcement calling an ambulance – she broke-down
                       because only moments before she believed that she was
                       going to be killed by her estranged husband. Second, Kim
                       Bowman, Safe Passage Director of Shelter, testified that
                       the safety plan implemented to protect the victim was the
                       most extensive Safe Passage has ever implemented: the
                       victim had a security system installed (which is why the
                       Defendant accessed the home through the attic), the locks
                       on the marital home were changed, guns were removed,
                       and the son they share was escorted to and from the school
                       house doors. Bowman stated that the Lethality
                       Assessment indicated that the victim and her family were
                       in danger. Third, during the sentencing hearing, the fear
                       the victim had, and continues to have, is readily apparent



      4
        The agreement simultaneously disposed of three other criminal actions against Eisert. In Case Number
      69D01-1512-F6-181, Eisert would plead guilty to three counts of battery, two as misdemeanors and one as a
      felony, and the State would dismiss other pending charges. The State also agreed to dismiss all charges under
      Case Number 69D01-1601-CM-4 and Case Number 69D01-1608-CM-240.

      Court of Appeals of Indiana | Opinion 69A01-1708-CR-1938 | May 25, 2018                         Page 4 of 10
                 due to her demeanor of fear. Fourth, the statements of the
                 children concerning the events herein show that they too
                 fear the Defendant. The significant impact on the victim
                 and her children is a substantial aggravating factor.


        2)       The nature and circumstances of the crime are particularly
                 egregious. The events of February 5, 2016, are
                 substantially aggravating: Defendant broke into the
                 victim’s attic by prying open a window, then cut a hole in
                 the drywall between the attic and the residential portion of
                 the home using a razor blade to gain access to the living
                 quarters, attempted to pull the victim into a car while
                 telling her they were going to go “talk to Jesus,” and when
                 law enforcement responded to the home Defendant fled
                 and hid until he was discovered via the use of thermal
                 imaging. Clearly stated, the events of that evening were
                 terrifying and went far beyond the “course of conduct”
                 necessary to prove Stalking.


        3)       Defendant’s criminal history and history of controlled
                 substance related criminal behavior. First, Defendant’s
                 felony conviction in 60D01-1512-F6-181 involved the
                 same victims. Second, the Defendant’s substance abuse
                 history has resulted in two (2) 30-day inpatient treatment
                 stays. Third, the Court is further concerned by the
                 Defendant’s employment motto of “If you can pass a drug
                 test, we don’t want you.” These matters reflect poorly on
                 the Defendant’s character and are an aggravating factor.
                 This aggravating factor is of significant weight, however
                 not as heavy as the first two aggravators.


        4)       Defendant, twice, recently violated conditions of bond.
                 This aggravating factor is also of significant weight. The
                 Court gives this factor the appropriate weight due.



Court of Appeals of Indiana | Opinion 69A01-1708-CR-1938 | May 25, 2018       Page 5 of 10
              The Mitigating Factors are as follows:


              1)       The Defendant appears remorseful and has, while
                       incarcerated, regularly attended AA/NA and religious
                       counseling. This mitigating factor is of some weight,
                       however the Court places these actions in their proper
                       light: attending programs while the Defendant had little to
                       nothing else to do compares unfavorably to Defendant’s
                       repeated refusal to follow the law and court orders when
                       he was previously released.


              The Court does not find the guilty plea and acceptance of
                   responsibility to be a mitigating factor because the
                   Defendant has already been rewarded for his guilty plea
                   via the agreed dismissal of Cause Numbers 69D01-1601-
                   CM-004 and 69D01-1608-CM-0240.


              The Court weighs the Aggravating and Mitigating Factor[s] and
                   finds that the Aggravating Factors grossly and
                   substantially outweigh the Mitigating factors.


      (Appellant’s App. Conf. Vol. 2 at 83-4) (formatting in original). The court

      imposed a six-year sentence for stalking and a one-year sentence for invasion of

      privacy. The court ordered the sentences served concurrently, as required by

      the plea agreement, and then suspended one year to GPS-monitored probation.



                                 Discussion and Decision
[7]   Eisert asserts his sentence is inappropriate. We may revise a sentence if it is

      inappropriate in light of the nature of the offense and the character of the

      offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing

      Court of Appeals of Indiana | Opinion 69A01-1708-CR-1938 | May 25, 2018    Page 6 of 10
       Ind. Appellate Rule 7(B)). We consider the aggravators and mitigators found

       by the trial court and also any other factors appearing in the record. Baumholser

       v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), trans. denied. The appellant

       must demonstrate his sentence is inappropriate. Id. at 418.


[8]    When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

       sentencing range for a Level 5 felony is “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 (2014). A person convicted of a Class A misdemeanor may be imprisoned

       for “a fixed term of not more than one (1) year.” Ind. Code § 35-50-3-2 (1977).


[9]    The court imposed six years for stalking and one year for invasion of privacy

       and, as required by the plea agreement, ordered the sentences served

       concurrently. Thus, the court imposed the maximum possible sentence for the

       crimes to which Eisert pled guilty. Eisert claims this is inappropriate for his

       crimes because he “did not physically harm G.E., other than the fright he

       caused which required medical treatment.” (Br. of Appellant at 11.)


[10]   Contrary to Eisert’s assertion, the lack of physical harm to G.E. does not

       minimize the horrendous nature of his crimes. Invasion of privacy 5 and




       5
        Invasion of privacy occurs when a person knowingly or intentionally violates one of various forms of
       protective or no contact orders. Ind. Code § 35-46-1-15.1 (2014).

       Court of Appeals of Indiana | Opinion 69A01-1708-CR-1938 | May 25, 2018                         Page 7 of 10
stalking 6 are crimes that can be accomplished by telephone calls, emails, letters,

or rung doorbells. See, e.g., Ind. Code § 35-45-10-3 (1993) (for purposes of

stalking, “‘impermissible contact’ includes but is not limited to knowingly or

intentionally following or pursuing the victim”); Pittman v. State, 45 N.E.3d 805,

817 (Ind. Ct. App. 2015) (stalking statute not void for vagueness when

defendant made repeated phone calls threatening victim’s death and showed up

with a gun at a doctor office where victim was); McElfresh v. State, 40 N.E.3d

1259, 1263-64 (Ind. Ct. App. 2015) (sending letter to third party, asking third

party to deliver message to protected person, when third party fails to deliver

the message, is attempted invasion of privacy), summarily aff’d by McElfresh v.

State, 51 N.E.3d 103, 107 (Ind. 2016) (citing App. R. 58(A)(2)); Hatchett v. State,

33 N.E.3d 1125, 1130 (Ind. Ct. App. 2015) (affirming invasion of privacy based

on telephone call). Instead of contacting G.E. by one of those comparatively

less-invasive forms, Eisert, who had repeatedly threatened to batter and kill

G.E., climbed onto the roof of her house, broke through a window into the

attic, and cut his way from the attic into the living quarters of the house. He

then grabbed G.E. and attempted to place her in a car so that he could take her

to “talk to Jesus.” (Tr. Vol. II at 36.) That Eisert’s attempt to take G.E. from




6
  “‘[S]talk’ means a knowing or an intentional course of conduct involving repeated or continuing
harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated,
or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened.”
Ind. Code § 35-45-10-1 (1993). “‘[H]arassment’ means conduct directed toward a victim that includes but is
not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer
emotional distress and that actually causes the victim to suffer emotional distress.” Ind. Code § 35-45-10-2
(1993).

Court of Appeals of Indiana | Opinion 69A01-1708-CR-1938 | May 25, 2018                          Page 8 of 10
       the home was foiled by the arrival of other people does not persuade us to

       ignore that his statement suggests he intended to hurt G.E. Nor do we need to

       overlook the increased terror that would be caused by his method of entry.

       Nothing about Eisert’s crimes suggests a six-year sentence is inappropriate.


[11]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The significance of a criminal history in assessing a defendant’s

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

       relation to the current offense. Id. Eisert asserts his criminal history does not

       justify an enhanced sentence because, prior to these recent domestic incidents,

       he had only “a substance-related driving offense.” (Br. of Appellant at 11.)

       While Eisert did not have a long history of convictions, the fact that he

       repeatedly violated pre-trial release and court orders when committing multiple

       invasions of privacy in a two-month period does not suggest Eisert is a person

       who respects the law or the court’s authority.


[12]   Eisert also argues the recent domestic incidents occurred because he “briefly fell

       off the rails due to his drug addiction.” (Br. of Appellant at 11.) However,

       G.E. testified Eisert had battered her and the children in prior years but she had

       not reported those incidents to authorities. This led the court to note that Eisert

       looked more like “a domestic abuser than a drug abuser.” (Tr. Vol. II at 83.)

       While Eisert’s poor behavior choices may have been exacerbated by drug use




       Court of Appeals of Indiana | Opinion 69A01-1708-CR-1938 | May 25, 2018     Page 9 of 10
       during this two-month period, we reject his suggestion that his drug use was the

       root of his problem. 7


[13]   Finally, Eisert claims that, because of his attendance at Bible study, AA, and

       NA, he is “not the same man who terrified his wife and son in early 2016.” (Br.

       of Appellant at 13.) While we hope spirituality and sobriety have transformed

       Eisert into a man who would not commit the same mistakes he made in his

       past, only time will tell whether Eisert truly has changed. (See Tr. Vol. II at 85

       (court notes Eisert is a model inmate, but he violates bond when released).)

       Eisert’s consistent attendance at those meetings while incarcerated does not so

       rehabilitate his character that we can say a six-year sentence is inappropriate.

       See, e.g., Smith v. State, 839 N.E.2d 780, 788 (Ind. Ct. App. 2005) (eight-year

       sentence for stalking not inappropriate when defendant contacted victim dozens

       of times).


[14]   Because a six-year sentence is not inappropriate for Eisert’s character and

       offenses, we affirm the trial court’s judgment.


[15]   Affirmed.


       Riley, J., and Mathias, J., concur.




       7
         Nor is his character bolstered by his failure to access help for his drug abuse problem prior to committing
       the heinous acts at issue herein.

       Court of Appeals of Indiana | Opinion 69A01-1708-CR-1938 | May 25, 2018                           Page 10 of 10
