                                                                       Mar 17 2015, 8:46 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Karen M. Heard                                            Gregory F. Zoeller
      Vanderburgh County Public Defender’s Office               Attorney General of Indiana
      Evansville, Indiana
                                                                Graham T. Youngs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Steven M. Sandleben,                                      March 17, 2015

      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                82A01-1407-CR-284
              v.                                                Appeal from the Vanderburgh Circuit
                                                                Court.
                                                                The Honorable Kelli E. Fink,
      State of Indiana,                                         Magistrate.
      Appellee-Plaintiff.                                       Cause No. 82C01-1305-FD-553




      Sharpnack, Senior Judge


                                      Statement of the Case
[1]   Steven M. Sandleben appeals his conviction and sentence for stalking, a Class

      D felony. Ind. Code § 35-45-10-5 (2002). We affirm.




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                                                     Issues
[2]   Sandleben presents three issues for our review, which we restate as:

              I. Whether there was sufficient evidence to support his conviction of
              stalking.


              II. Whether the trial court abused its discretion by admitting certain
              evidence at trial.


              III. Whether his sentence was inappropriate.


                                Facts and Procedural History
[3]   In August 2012, thirteen-year-old A.S. and her family entered a Target store to

      do some shopping. Sandleben began following A.S. when she entered the store,

      and he continued to follow her throughout the store. At some point, A.S.’s

      father noticed that Sandleben was taking video of A.S. with a small camera.

      A.S.’s father then contacted the store manager who asked Sandleben to leave

      the store.


[4]   In May 2013, A.S. and her family were again out shopping and entered a

      Michaels store. After entering the store, A.S.’s father saw Sandleben and

      recognized him as the man who had followed A.S. in Target the previous

      August. Sandleben again followed A.S. through the store taking video of her

      with a small camera. A.S.’s father called 911, and the police arrived at the

      store. Upon interviewing those involved, the police arrested Sandleben.




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[5]   Based upon these two incidents, the State charged Sandleben with stalking, as a

      Class D felony. Following a jury trial, Sandleben was found guilty of the

      charge and was sentenced to thirty months. It is from this conviction and

      sentence that he now appeals.


                                    Discussion and Decision
                                  I. Sufficiency of the Evidence
[6]   When reviewing claims of insufficiency of the evidence, this Court neither

      reweighs the evidence nor assesses the credibility of the witnesses. Brasher v.

      State, 746 N.E.2d 71, 72 (Ind. 2001). Rather, we look to the evidence most

      favorable to the verdict and any reasonable inferences drawn therefrom. Id.

      We will affirm the conviction if there is probative evidence from which a

      reasonable jury could have found the defendant guilty beyond a reasonable

      doubt. Dillard v. State, 755 N.E.2d 1085, 1089 (Ind. 2001).


[7]   Sandleben contends that the State failed to present sufficient evidence that he

      committed the crime of stalking. The State charged Sandleben with stalking by

      alleging that he knowingly engaged in a course of conduct involving repeated

      harassment of A.S. by following her closely and taking pictures of her, which

      caused A.S. to feel terrorized, frightened, intimidated, or threatened.

      Appellant’s App. p. 96.


[8]   To establish that Sandleben committed stalking, the State had to prove beyond

      a reasonable doubt that he (1) knowingly or intentionally (2) engaged in a

      course of conduct involving repeated or continuing harassment of the victim (3)

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       that would cause a reasonable person to feel terrorized, frightened, intimidated,

       or threatened and (4) that actually caused the victim to feel terrorized,

       frightened, intimidated, or threatened. See Ind. Code § 35-45-10-1 (1993).

       Stalking does not include statutorily or constitutionally protected activity. Id.


[9]    For purposes of the offense of stalking, “harassment” is defined as “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). Harassment does not include

       statutorily or constitutionally protected activity. Id. “‘Impermissible contact’

       includes but is not limited to knowingly or intentionally following or pursuing

       the victim.” Ind. Code § 35-45-10-3 (1993).


[10]   The evidence in this case shows that within minutes of A.S. entering a Target

       store in August 2012, Sandleben began following her. At times, he got close

       enough to touch A.S. and followed her from aisle to aisle and from section to

       section. A.S. testified at trial that Sandleben did not appear to be shopping

       because he would “pick up something but [ ] when I would move he would

       quickly set it down and follow.” Trial Tr., Vol. III, p. 121. A.S.’s father

       noticed that Sandleben began following A.S. as soon as they entered the store.

       A.S.’s father did his own shopping and then rejoined his wife and daughters

       approximately fifteen minutes later. At that time he noticed that Sandleben was

       still following A.S. A.S.’s father testified that Sandleben did not have a

       shopping cart or basket and was walking past A.S. within arm’s length. A.S.’s

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       father watched Sandleben take out a small camera and take video as he went

       past A.S. A.S. testified that Sandleben is a complete stranger and that his

       actions made her scared and nervous. Id. at 117, 122. A.S.’s father contacted

       the store manager who asked Sandleben to leave the store.


[11]   The evidence also shows that the following May A.S. and her family entered a

       Michaels store. Sandleben was there and began following A.S. throughout the

       store. A.S. testified that her father pointed out Sandleben, and she recognized

       him as the same man from Target the previous August. Again, Sandleben

       followed A.S. from section to section in the store. A.S.’s father testified that

       Sandleben again had a small camera in his hand as he followed her. A.S.’s

       father called 911, and officers arrived to investigate. A.S. testified that

       Sandleben’s actions made her “nervous and scared again.” Id. at 127. Thus,

       the evidence shows that Sandleben intentionally engaged in a course of conduct

       that involved repeated and continual harassment of A.S. in both Target and

       Michaels by intentionally following her and taking video of her throughout

       both stores, causing A.S. to feel terrorized, frightened, intimidated, or

       threatened.


[12]   Sandleben cites VanHorn v. State, 889 N.E.2d 908 (Ind. Ct. App. 2008), trans.

       denied, in support of his sufficiency argument; however, his reliance on this case

       is misplaced. VanHorn’s conduct consisted of parking on a public street near

       the victim’s house and looking at the victim’s house through binoculars on

       several occasions. On appeal, VanHorn argued that the State failed to establish

       that his conduct constituted “harassment” or “impermissible contact.” While

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       not determining whether VanHorn’s conduct was “contact,” this Court held

       that his conduct was not impermissible and was therefore insufficient to support

       his conviction of stalking. Similarly, Sandleben asserts that the State failed to

       prove that his conduct constituted “impermissible contact.” Yet Sandleben’s

       argument ignores Indiana Code section 35-45-10-3, which states that

       impermissible contact includes knowingly or intentionally following or

       pursuing the victim. As we stated above, the evidence here was sufficient to

       support Sandleben’s conviction of stalking based upon his intentional following

       of A.S.


[13]   Sandleben also claims that his conduct is constitutionally protected and, thus,

       may not constitute stalking. Specifically, he maintains that taking video of an

       individual in a public place is a constitutionally protected activity.


[14]   As a preliminary matter, the State contends that Sandleben has waived any

       federal claim by failing to provide an independent analysis under the federal

       constitution. We agree. “An appellant’s failure to provide us with a separate

       analysis for each constitutional claim constitutes waiver.” Russell v. State, 993

       N.E.2d 1176, 1179 (Ind. Ct. App. 2013) (citing Francis v. State, 764 N.E.2d 641,

       647 (Ind. Ct. App. 2002)).


[15]   Turning to the state constitutional claim, article I, section 9 of the Indiana

       Constitution provides that “[n]o law shall be passed, restraining the free

       interchange of thought and opinion, or restricting the right to speak, write, or

       print, freely, on any subject whatever: but for the abuse of that right, every


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       person shall be responsible.” Indiana courts have employed a two-step analysis

       when addressing article I, section 9 claims. Ogden v. Robertson, 962 N.E.2d 134,

       141 (Ind. Ct. App. 2012), trans. denied. In the first step of the analysis, we must

       decide whether the state action has restricted a claimant’s expressive activity.

       Id. Second, if it has, we must determine whether the restricted activity

       constitutes an “abuse” of the right to speak. Id.


[16]   First, it was not Sandleben’s act of videotaping that formed the basis for the

       stalking charge that he claims unconstitutionally restricted his right to speak.

       Rather, his intentional, repeated acts of harassing A.S. by following her were

       the basis for the stalking charge. His repeated acts of following A.S. in no way

       implicated his right to speak. Thus, on this basis alone, we determine that

       Sandleben’s right to speak was not restricted. Nonetheless, we review his claim

       that his acts were expressive activity that is constitutionally protected.


[17]   In determining, under the first step of the analysis, whether the state action has

       restricted a claimant’s expressive activity, we look to whether the state has

       imposed a direct and significant burden on a person’s opportunity to speak his

       mind, in whatever manner he deems most appropriate. Whittington v. State, 669

       N.E.2d 1363, 1368 (Ind. 1996). As we noted above, the evidence shows that

       Sandleben was charged with stalking after closely following a teenage girl

       section by section and aisle by aisle through two different stores on two

       different occasions and videotaping her as he followed her. First, we note that

       the acts of videotaping and following someone are nonexpressive. Moreover,

       Sandleben cites to no legal authority in support of his contention that his

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       constitutionally protected right to expressive activity encompasses following

       and surreptitiously videotaping a teenage girl in close proximity as she

       attempted to shop with her family on two different occasions. Thus, there is no

       evidence to establish that Sandleben was engaging in an expressive activity,

       and, therefore, we need not address the second step of the analysis. There was

       sufficient evidence to support his conviction.


                                     II. Admission of Evidence
[18]   Sandleben maintains that the trial court abused its discretion by admitting

       evidence obtained as a direct result of his alleged unlawful arrest. Specifically,

       Sandleben argues that his camera and cell phone, and any videos or photos

       contained therein, should not have been admitted into evidence at trial because

       there was no probable cause for his arrest.


[19]   The trial court is afforded wide discretion in ruling on the admissibility and

       relevancy of evidence. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012).

       On appeal, evidentiary decisions are reviewed for abuse of discretion and are

       reversed only when the decision is clearly against the logic and effect of the

       facts and circumstances. Id.


[20]   The Fourth Amendment to the United States Constitution protects against

       unreasonable searches and seizures. Likewise, article I, section 11 of the

       Indiana Constitution protects citizens from unreasonable searches and seizures.

       Despite the similarity of the two provisions, Indiana courts interpret and apply



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       article I, section 11 independently from the Fourth Amendment. Mitchell v.

       State, 745 N.E.2d 775, 786 (Ind. 2001).


                                              Fourth Amendment

[21]   Generally, a judicially issued search warrant is a condition precedent to a

       lawful search. Jackson v. State, 669 N.E.2d 744, 747 (Ind. Ct. App. 1996).

       When a search is conducted without a warrant, the State must prove that an

       exception to the warrant requirement existed at the time of the search. White v.

       State, 772 N.E.2d 408, 411 (Ind. 2002).


[22]   One such exception to the warrant requirement is a search incident to a lawful

       arrest. Id. Under this exception, the initial arrest must be lawful. Culpepper v.

       State, 662 N.E.2d 670, 675 (Ind. Ct. App. 1996), trans. denied. It follows, then,

       that evidence which is the product of an unlawful arrest is inadmissible.

       Jackson, 669 N.E.2d at 750. Probable cause to arrest is still required even

       though the circumstances fall within a warrant exception. Id. A law

       enforcement officer may arrest a person when the officer has “probable cause to

       believe the person has committed or attempted to commit, or is committing or

       attempting to commit, a felony.” Ind. Code § 35-33-1-1(a)(2) (2011). Probable

       cause for arrest exists where, at the time of the arrest, the officer has knowledge

       of facts and circumstances that would justify a person of reasonable caution to

       believe a suspect has committed the criminal act in question. Jackson, 669

       N.E.2d at 750. The amount of evidence necessary to meet the probable cause

       requirement is determined on a case-by-case basis. Ortiz v. State, 716 N.E.2d

       345, 348 (Ind. 1999). As stated above, the offense of stalking requires a (1)
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       knowing or intentional (2) course of conduct involving repeated or continuing

       harassment of the victim (3) that would cause a reasonable person to feel

       terrorized, frightened, intimidated, or threatened and (4) that actually caused

       the victim to feel terrorized, frightened, intimidated, or threatened. See Ind.

       Code § 35-45-10-1.


[23]   Here, the officers responded to a call of a male following a juvenile female. The

       evidence reveals that at the time of Sandleben’s arrest, the officers knew that

       Sandleben had followed A.S. around the Michaels store taking pictures or video

       of her on a small device he was attempting to conceal. Sandleben stayed close

       to A.S. throughout the store, never getting more than approximately five feet

       from her. Mot. Supp. Hrg. Tr., Vol. II, pp. 93-94; Aff. Prob. Cause, Appellant’s

       App. p. 98. Further, the officers knew that the situation had caused A.S. to feel

       “creeped out and scared.” Appellant’s App. p. 99; Mot. Supp. Hrg. Tr., Vol. II,

       p. 94, 95. After giving Sandleben his Miranda rights, one of the officers asked

       Sandleben if he had been taking pictures of A.S., and he responded in the

       affirmative. Appellant’s App. pp. 98-99; Trial Tr., Vol. III, p. 174. Also at this

       time, one of the officers knew of the existence of another incident, but he did

       not review the other incident before making the probable cause determination

       in this case. Mot. Supp. Hrg. Tr., Vol. II, p. 94. In addition, the officers had

       contacted a detective to be sure probable cause existed, and the detective had

       agreed that probable cause existed for the charge of stalking. Id. at 86. Based

       on our review of the facts known to the officers at the time of Sandleben’s




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       arrest, probable cause existed to support his arrest for stalking, and, therefore,

       the search incident to his arrest did not violate his Fourth Amendment rights.


                                              Article I, Section 11

[24]   Concluding that the search incident to Sandleben’s arrest did not violate his

       Fourth Amendment rights, we now turn to the separate argument under the

       Indiana Constitution.


[25]   Under Indiana constitutional analysis, we examine whether the State has

       demonstrated that, under the totality of the circumstances, the search or seizure

       was reasonable. Holder v. State, 847 N.E.2d 930, 940 (Ind. 2006). We construe

       our constitution liberally to ensure individuals’ protection from unreasonable

       intrusions on privacy. Id. However, we also recognize that the citizens of our

       state are concerned with safety, security, and protection from crime. Id. “Thus,

       we have observed that the totality of the circumstances requires consideration of

       both the degree of intrusion into the subject’s ordinary activities and the basis

       upon which the officer selected the subject of the search or seizure.” Id.

       Accordingly, our determination of whether a search or seizure was reasonable

       turns on a balance of three factors: (1) the degree of concern, suspicion, or

       knowledge that a violation of law has occurred, (2) the degree of intrusion the

       method of the search or seizure imposes on the citizen’s ordinary activities, and

       (3) the extent of law enforcement needs. Id. Evidence which is the product of

       an unlawful arrest is inadmissible. Hammond v. State, 675 N.E.2d 353, 355 (Ind.

       Ct. App. 1996).


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[26]   We incorporate our discussion of the evidence from the previous section where

       we determine there was probable cause for Sandleben’s arrest for the charge of

       stalking. This evidence demonstrates two of the three balancing factors —

       suspicion that a violation of law has occurred and the extent of law

       enforcement’s need to preserve evidence. The officers had probable cause to

       arrest Sandleben for committing the offense of stalking, and the photos and/or

       videos contained on Sandleben’s phone and/or camera were probative evidence

       of Sandleben’s conduct toward A.S. In contrast, the degree of intrusion

       imposed upon Sandleben was slight and is outweighed by the other two factors.

       Therefore, the search incident to Sandleben’s arrest did not violate his state

       constitutional rights. Accordingly, the trial court did not abuse its discretion in

       admitting the evidence at trial.


                                     III. Inappropriate Sentence

[27]   As his final allegation of error, Sandleben asserts that his sentence of thirty

       months is inappropriate. However, Sandleben fails to present any cogent

       argument on the inappropriateness of his sentence. Instead, his argument is

       based upon the trial court’s discretion in sentencing him.


[28]   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), clarified on reh’g, 875 N.E.2d 218 (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

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       deductions to be drawn therefrom. Id. When imposing a sentence for a felony,

       a trial court must enter a sentencing statement including reasonably detailed

       reasons for imposing a particular sentence. Id. at 491. A trial court abuses its

       discretion when it fails to issue a sentencing statement, gives reasons for

       imposing a sentence that are not supported by the record, omits reasons clearly

       supported by the record and advanced for consideration, or considers reasons

       that are improper as a matter of law. Id. at 490-91.


[29]   Sandleben claims the court gave too little weight to the mitigating factors it

       found and gave too much aggravating weight to his recent voyeurism

       conviction. The relative weight given to aggravating and mitigating factors is

       not subject to review. Id. at 491. We find no abuse of discretion as to this issue.


[30]   In addition, Sandleben contends that the trial court gave no weight to his

       remorse and to the nonviolent nature of the crime. The finding of mitigating

       circumstances is not mandatory but is within the discretion of the trial court.

       Page v. State, 878 N.E.2d 404, 408 (Ind. Ct. App. 2007), trans. denied. Further,

       the court is neither obligated to accept the defendant’s arguments as to what

       constitutes a mitigating factor nor required to give the same weight to a

       proffered mitigating factor as does the defendant. Id. An allegation that the

       trial court failed to identify or find a mitigating factor requires the defendant on

       appeal to establish that the mitigating evidence is both significant and clearly

       supported by the record. Id.




       Court of Appeals of Indiana | Opinion 82A01-1407-CR-284 | March 17, 2015   Page 13 of 17
[31]   Sandleben’s argument on the subject of his remorse is contained in a single

       sentence: “Likewise, Mr. Sandleben[’s] remorse which the counselor testified

       to was never mentioned or appeared to be given any value by the court.”

       Appellant’s Br. p. 25. Thus, he has failed to make the required showing.

       Moreover, a trial court’s determination of a defendant’s remorse is similar to its

       determination of credibility: without evidence of some impermissible

       consideration by the trial court, we accept its decision. Pickens v. State, 767

       N.E.2d 530, 535 (Ind. 2002). Here, it was the counselor’s testimony, not

       Sandleben’s, that Sandleben had “admitted morally that what he was doing was

       wrong.” Sent. Hrg. Tr. p. 289. This statement amounts to an admission of

       guilt by Sandleben to his counselor more than an expression of remorse for his

       actions or their effect on A.S. We find no impermissible considerations by the

       trial court and no abuse of discretion in not finding Sandleben’s alleged remorse

       as a mitigating circumstance.


[32]   By definition, stalking is not a crime of violence, see Indiana Code section 35-

       45-10-5, and the fact that this crime was nonviolent was apparent from the

       evidence before the trial court. Conviction of a crime that does not contain

       violence as an element is not a circumstance requiring mitigating weight. See

       Banks v. State, 841 N.E.2d 654, 659 (Ind. Ct. App. 2006) (finding no abuse of

       discretion where trial court did not consider non-violent crime as mitigator),

       trans. denied. Therefore, the trial court did not abuse its discretion when it did

       not consider Sandleben’s conviction of a nonviolent crime as a mitigating

       factor.


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[33]   Lastly, Sandleben claims that the trial court improperly used A.S.’s age as an

       aggravator. At sentencing, the trial court noted that A.S. was “well below the

       age of 18” when these incidents occurred and determined that was an

       aggravating circumstance. Sent. Hrg. Tr. p. 303. Sandleben argues that

       because A.S. was thirteen when these incidents occurred, her age is an

       improper aggravator pursuant to Indiana Code section 35-38-1-7.1(a)(3) (2012).

       Indiana Code section 35-38-1-7.1(a)(3) states that the court may consider as an

       aggravating circumstance the fact that the victim is less than twelve years of

       age. In addition, however, the same statute provides that the criteria in

       subsection (a) does not limit the matter the court may consider in determining

       the sentence. See Ind. Code § 35-38-1-7.1(c). We find no abuse of discretion on

       the part of the trial court.


[34]   Although failure to present cogent argument on an issue waives that issue for

       appellate review, see Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005),

       trans. denied, we will proceed to address the merits of Sandleben’s claim of

       inappropriate sentence. We may revise a sentence authorized by statute if, after

       due consideration of the trial court’s decision, we determine that the sentence is

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

       offender. Ind. Appellate Rule 7(B). A defendant bears the burden of

       persuading the appellate court that his or her sentence has met the

       inappropriateness standard of review. Anglemyer, 868 N.E.2d at 494.


[35]   To assess whether the sentence is inappropriate, we look first to the statutory

       range established for the class of the offense. Here, the offense is a Class D

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       felony, for which the advisory sentence was one and one-half years, with a

       minimum sentence of six months and a maximum sentence of three years. Ind.

       Code § 35-50-2-7 (2012). Sandleben was sentenced to thirty months.


[36]   Next, we look to the nature of the offense and the character of the offender. As

       to the nature of the current offense, Sandleben, on two different occasions,

       closely followed a teenage girl section by section and aisle by aisle through a

       store, surreptitiously videotaping her as he followed her and causing her to feel

       scared and nervous.


[37]   With regard to the character of the offender, we note, as did the trial court, that

       Sandleben was convicted of two counts of Class D felony voyeurism just prior

       to the instant conviction. In addition, he has misdemeanor convictions for

       public voyeurism and possession of paraphernalia. The significance of a

       criminal history in assessing a defendant’s character and an appropriate

       sentence varies based on the gravity, nature, proximity, and number of prior

       offenses in relation to the current offense. Bryant v. State, 841 N.E.2d 1154,

       1156 (Ind. 2006). The nature of Sandleben’s recent offenses and their temporal

       proximity to the current offense weigh heavily against his claim of an

       inappropriate sentence.


[38]   Sandleben has not carried his burden of persuading this Court that his sentence

       has met the inappropriateness standard of review. See Anglemyer, 868 N.E.2d at

       494. Accordingly, we do not find his sentence to be inappropriate in light of the

       nature of the offense and his character.


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                                                 Conclusion
[39]   For the reasons stated, we conclude that there was sufficient evidence to

       support his conviction of stalking, that his arrest was lawful and therefore the

       trial court properly admitted evidence seized pursuant to his arrest, and that the

       trial court did not abuse its discretion in sentencing him and his sentence is not

       inappropriate given the nature of the offense and his character.


[40]   Affirmed.


[41]   May, J., and Mathias, J., concur.




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