Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                 Aug 21 2014, 10:00 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

BRANDON E. MURPHY                                GREGORY F. ZOELLER
Public Defender’s Office                         Attorney General of Indiana
Muncie, Indiana
                                                 LARRY D. ALLEN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA


DARRYL J. GOODWIN,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 18A05-1309-CR-468
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )



                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                        The Honorable Marianne L. Vorhees, Judge
                             Cause No. 18C01-1302-FC-16




                                      August 21, 2014

               MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Judge
                                Case Summary and Issues


        A jury found Darryl Goodwin guilty of two counts stalking, Class C felonies, and

residential entry, a Class D felony, and he received an aggregate sentence of twelve years

in the Indiana Department of Correction. Goodwin appeals, raising the following issues

for our review: (1) whether there was sufficient evidence presented to support one of

Goodwin’s stalking convictions, which was based upon a charge that he stalked his victim

while having actual knowledge of a protective order issued against him; (2) whether

Goodwin was improperly sentenced for two counts of stalking that constituted a single

episode of criminal conduct; and (3) whether Goodwin’s sentence is inappropriate in light

of the nature of his offenses and his character. Concluding there was sufficient evidence

to support Goodwin’s convictions and that there was no material variance between proof

and pleading, that Goodwin’s offenses of stalking were not a single episode of criminal

conduct, and that his sentence was not inappropriate, we affirm.

                              Facts and Procedural History

        Goodwin and Heather Utsler dated for approximately seven years until their

relationship ended in June of 2012. That month, Utsler obtained a protective order against

Goodwin. That protective order remained enforceable against Goodwin until June 15,

2014.

        On January 17, 2013, and in the early hours of January 18, Goodwin began sending

angry text messages to Utsler. She returned home from a friend’s house at approximately

9:45 p.m. on January 18. When she entered her home, she heard knocking at the back door


                                            2
and discovered Goodwin standing outside. Utsler refused to open the door and reminded

Goodwin of the restraining order against him. Utsler became scared that Goodwin would

force his way inside, so she ran out the front door and across the street to a neighbor’s

house. As Utsler ran to the front door, Goodwin kicked in the back door and entered

Utsler’s home.

      Utsler contacted the police, and an officer arrived shortly after her call. Once a

second officer arrived, Utsler was escorted back to her home. Goodwin was no longer

inside, but the inside of the home was in disarray and Utsler’s television was broken.

Utsler’s phone showed a number of text messages from Goodwin and several missed calls

from a blocked number.

      The following day, Goodwin continued sending threatening text messages to Utsler,

and he also attempted to call her cell phone numerous times. Over the course of the next

several days, Goodwin continued to bombard Utsler with threatening text messages and

voicemail messages. Finally, Utsler could take no more, and on January 23, 2013, she met

with Detective Jami Brown of the Muncie City Police Department. Detective Brown took

a statement from Utsler and took pictures of 597 text messages sent from Goodwin between

January 17 and January 23. That night, Utsler went to work and received a text message

from Goodwin stating that he had watched her walk into her workplace.

      Over the next week, Goodwin persisted in sending threatening text messages and

leaving voicemail messages to Utsler. In several of those messages, Goodwin threatened

to kill Utsler and threatened to kill other men Goodwin believed Utsler may have been

dating. In one particularly loathsome message, Goodwin threatened Utsler:

                                           3
         You gonna keep ignoring me like that, for real Heather? Now I really don’t
         give a fuck about you, and I promise you that. I don’t give a fuck about you,
         and when I see you out in the streets, I’m gutting yo motha fucking ass like
         a fish and watching you swim in your own motha fucking blood and watch
         your motha fucking eyes get dead . . . I’m just gonna walk away and let you
         fucking die. I swear to God. Watch what I say. I’m gutting you like a fish
         ho.

Transcript at 126-27.1 On January 30, Utsler again went to the police, and Detective Brown

recorded a phone conversation between Goodwin and Utsler in which Utsler told Goodwin

she had a protective order against him and begged him to leave her alone.

         On February 1, 2013, the State charged Goodwin with Count 1: stalking, a Class C

felony, between January 18 and February 1, 2013; Count 2: residential entry, a Class D

felony; and Count 3: intimidation, a Class D felony. Goodwin was arrested on February

4, 2013, having last contacted Utsler on February 2.

         One month after his arrest, Goodwin began contacting Utsler from the Jay County

Jail. Utsler answered a phone call from Goodwin, not knowing who may be calling her

from the Jay County Jail, and Goodwin informed her that he would be sending her letters

from jail. Goodwin sent Utsler four letters from jail. Goodwin referenced a trip to King’s

Island that Utsler had recently taken with a male friend, and he threatened to fight her friend

when he got out of jail. He also expressed anger about Utsler potentially testifying against

him. Utsler was scared by these letters and did not respond to any of Goodwin’s attempts

to contact her.




         1
           Goodwin sent Utsler literally hundreds of text messages and voicemails in the two-week period relevant to
Count 1, many of which were threatening and violent in substance. We avoid quoting these numerous messages at
length and have, instead, chosen this particular message, which we believe adequately demonstrates the heinous nature
of Goodwin’s communications to Utsler.
                                                         4
       On June 11, 2013, the State amended the charging information to include Count 4:

stalking, a Class C felony, between March 2013 and May 2013. On July 29, 2013, the trial

court granted the State’s motion to dismiss Count 3 from the charging information. A jury

trial commenced on July 31, 2013. At trial, the State presented evidence that Goodwin

sent Utsler over eight hundred text messages between January 18 and February 2, 2013,

and Utsler estimated that Goodwin had attempted to call her nearly a thousand times during

that period. Goodwin was found guilty of all three counts in the amended charged

information.

       The trial court sentenced Goodwin to six years for each count of stalking (Counts 1

and 4), to be served consecutively, and sentenced him to two years for residential entry, to

be served concurrently with the sentences for Counts 1 and 4. Thus, Goodwin received an

aggregate twelve years executed in the Department of Correction. Goodwin now brings

this appeal. Additional facts will be provided as needed.

                                 Discussion and Decision

                               I. Sufficiency and Variance

       First, Goodwin argues the State failed to present sufficient evidence to support his

conviction for stalking, a Class C felony, under Count 4. Count 4 provides:

       The undersigned says at diverse times between March 2013 and May 2013
       in Delaware County, State of Indiana, [Goodwin] did then and there stalk
       [Utsler] while a protective or judicial order under IC 34-26-2, or IC 34-4-5.1
       had been issued to protect [Utsler] from [Goodwin] and [Goodwin] had
       actual notice of said order contrary to the form of the statutes in such cases
       made and provided by I.C. 35-45-10-5(a) and I.C. 35-45-10-5(b)(2) . . . .




                                             5
Appellant’s Appendix at 39. Goodwin points out that the protective order against him was

actually issued under Indiana Code chapter 34-26-5, not under Indiana Code chapter 34-

26-2 or 34-4-5.1 as is indicated in the charging information. Notably, Goodwin does not

dispute that he stalked Utsler, that there was a protective order issued against him, and that

he had actual knowledge of the protective order’s existence. Thus, as the State points out,

Goodwin’s argument is less an argument of insufficient evidence to prove the crime alleged

under Indiana Code section 35-45-10-5(b)(2) and more a claim of a material variance

between the charging information and evidence at trial.

       A charging information must allege the elements of a crime such that the accused is

sufficiently on notice as to the nature of the charge against him and so that he may

anticipate the proof and prepare a proper defense in advance of trial. Winn v. State, 748

N.E.2d 352, 356 (Ind. 2001); Ind. Const. art. 1, § 13. A “variance” is a difference between

the pleading and proof at trial. Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999). However,

not all variances are material—or “fatal”—and thus not all variances require reversal. Id.

For a defendant to be entitled to relief based on a variance between the charge and evidence

at trial, “the variance must be such as to either have misled the defendant in the preparation

and maintenance of his defense with resulting harm or prejudice or leave the defendant

vulnerable to double jeopardy in a future criminal proceeding covering the same event,

facts, and evidence.” Winn, 748 N.E.2d at 356.

       The statute under which Goodwin was charged in Count 4 reads:

       “(b) [Stalking] is a Class C felony if at least one (1) of the following applies:
                                           ***


                                              6
              (2) A protective order to prevent domestic or family violence, a no
              contact order, or other judicial order under any of the following
              statutes has been issued by the court to protect the same victim or
              victims from the person and the person has been given actual notice
              of the order:
                                          ***
                     (D) IC 34-26-5 or IC 34-26-2 and IC 34-4-5.1 before their
                     repeal (protective order to prevent abuse).

Ind. Code § 35-45-10-5(b)(2)(D) (2013). Count 4 notes this statute as the basis for the

charge and references only “IC 34-26-2 and IC 34-4-5.1”—the repealed statutes—without

referencing “IC 34-26-5.”       It is true that the State failed to submit evidence that a

protective order was issued under either Indiana Code chapter 34-26-2 or 34-4-5.1, and the

protective order at issue in this case was actually issued under the current statute: Indiana

Code chapter 34-26-5. However, all three of these chapters of the code were (or are) in

force for the same reason: to facilitate the issuance of protective orders for the prevention

of domestic or family violence.

       Despite the State’s inattention to detail, Count 4 did correctly cite the overarching

code section, and the State’s probable cause affidavit identified the relevant protective

order (and the cause number under which it was issued) and specifically stated that the

letters sent from Goodwin were in violation of that protective order. It is relatively clear

from the charging information that Goodwin was being charged with stalking Utsler in

contravention of a protective order issued to prevent domestic or family violence. To

demonstrate the existence of a material variance, Goodwin must show that the charging

information misled him in his preparation for trial. He has failed to meet that burden.

                             II. Episode of Criminal Conduct


                                             7
       Next, Goodwin claims his crimes of stalking constitute a single episode of criminal

conduct.   Therefore, according to Goodwin, the trial court abused its discretion by

imposing consecutive sentences that resulted in an aggregate sentence greater than the

advisory sentence for a Class B felony.

       “[E]xcept for crimes of violence, the total of the consecutive terms of imprisonment

. . . to which the defendant is sentenced for felony convictions arising out of an episode of

criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class

of felony higher than the most serious of the felonies for which the person has been

convicted.” Ind. Code 35-50-1-2(c). “‘[E]pisode of criminal conduct’ means offenses or

a connected series of offenses that are closely related in time, place, and circumstance.”

Ind. Code § 35-50-1-2(b). This court has held that “[s]eparate offenses are not part of a

single episode of criminal conduct when a full account of each crime can be given without

referring to the other offenses.” Reeves v. State, 953 N.E.2d 665, 671 (Ind. Ct. App. 2011)

(quotation marks omitted), trans. denied.

       Count 1 alleged that Goodwin stalked Utsler between January 18 and February 1,

2013, and Count 4 alleged that Goodwin stalked Utsler between March 2013 and May

2013. Goodwin asserts his two counts of stalking are actually a single episode of criminal

conduct. He bases this argument chiefly on the premise that the crime of stalking

necessarily occurs over a period of time and is the culmination of a series of acts performed

by the stalker. In Goodwin’s view, his two stalking counts actually describe one continuing

episode of stalking. He argues he should have been charged with one count of stalking

between January and May 2013 and that the State’s decision to charge Goodwin with two

                                             8
counts for distinct periods of time is merely a clever attempt to convict him of multiple

felonies.

       As a general matter, we agree that continuous stalking over a period of time could

properly be considered a single episode of criminal conduct. That said, we are not

convinced that Goodwin’s stalking convictions arise out of a single episode of criminal

conduct. Most important to our conclusion is that an entire month passed between

Goodwin’s last contact with Utsler prior to his arrest until he contacted Utsler from jail.

Goodwin’s acts of stalking were disjointed, and we believe a full account of each instance

of stalking can be given without reference to the other. Therefore, the trial court’s

consecutive sentencing, resulting in an aggregate sentence of twelve years, was not an

abuse of discretion.

                              III. Appropriateness of Sentence

       Last, Goodwin contends his twelve year sentence is inappropriate in light of the

nature of his offenses and his character. Indiana Appellate Rule 7(B) gives appellate courts

the authority to revise a defendant’s sentence 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.” Our inquiry focuses on the defendant’s

aggregate sentence, rather than the number of counts, length of the sentence on any

individual count, or whether any sentences are concurrent or consecutive. Brown v. State,

10 N.E.3d 1, 8 (Ind. 2014). It is the defendant’s burden to persuade the reviewing court

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



                                               9
       As to the nature of Goodwin’s offenses, we find his acts of stalking and residential

entry to be worse than the typical offenses of their kind. See Johnson v. State, 986 N.E.2d

852, 856 (Ind. Ct. App. 2013) (stating a factor in determining if a sentence is inappropriate

is whether the offense in question is more or less egregious than the “typical” offense

envisioned by the legislature when it set the advisory sentence). Goodwin’s entry of

Utsler’s residence occurred while she was home and after he had begun sending her

threatening text messages. He kicked in Utsler’s door and proceeded to trash her home

and destroy her television, scaring the wits out of Utsler in the process. As to Goodwin’s

acts of stalking, Goodwin sent Utsler over eight hundred text messages and Utsler

estimated that Goodwin attempted to call her nearly one thousand times; these contacts

occurred over a mere two-week period. In addition to the sheer volume of attempted

contacts, the substance of many of Goodwin’s messages was exceedingly threatening.

What is more, Goodwin was not deterred even by his arrest for these acts. Goodwin sent

several letters to Utsler from jail, causing Utsler to fear giving testimony against Goodwin

at trial. In sum, the nature of Goodwin’s offenses do not warrant a reduction in his

sentence.

       Furthermore, we do not believe Goodwin’s character renders his sentence

inappropriate. As the State points out, Goodwin has a criminal history both as a juvenile

and an adult. See id. at 857 (stating criminal history is a relevant factor in evaluating a

defendant’s character). Goodwin’s juvenile history includes adjudications for burglary,

visiting a common nuisance, and resisting law enforcement. As an adult, Goodwin has

been convicted of battery resulting in bodily injury, a Class A misdemeanor, and

                                             10
harassment, a Class B misdemeanor, and Utsler was the victim in Goodwin’s harassment

case. In addition, Goodwin has a number of other pending cases, which include two

separate misdemeanor charges for domestic battery. Goodwin’s criminal history does not

reflect well upon his character, and his more recent issues, involving harassment of Utsler

and alleged instances of domestic violence, are similar in nature to the crimes at issue in

this case. See Bryant v. State, 841 N.E.2d 1154, 1156 (Ind. 2006)) (stating the weight of

an individual’s criminal history is “measured by the number of prior convictions and their

gravity, by their proximity or distance from the present offense, and by any similarity or

dissimilarity to the present offense that might reflect on a defendant’s culpability.”).

       Goodwin’s argument for a reduced sentence relies primarily on the fact that he is

relatively young (25 years old) and has not been convicted of a felony in his adult life. We

do not believe that these facts overcome the egregiousness of Goodwin’s offenses or his

criminal history. In sum, Goodwin has not met his burden of demonstrating that his

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

                                         Conclusion

       Concluding there was sufficient evidence to support Goodwin’s convictions and no

material variance existed between proof and pleading, that Goodwin’s offenses of stalking

were not a single episode of criminal conduct and the trial court did not abuse its discretion

in order consecutive sentences totaling twelve years, and that his sentence was not

inappropriate, we affirm.

       Affirmed.

RILEY, J., and BRADFORD, J., concur.

                                             11
