MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                  Dec 09 2015, 5:58 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                      Gregory F. Zoeller
Laura Raiman                                            Attorney General of Indiana
Alcorn Sage Schwartz & Magrath,
LLP                                                     Tyler G. Banks
Madison, Indiana                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brian N. McClain,                                       December 9, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        03A01-1503-CR-95
        v.                                              Appeal from the Bartholomew
                                                        Superior Court
State of Indiana,                                       The Honorable James D. Worton,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        03D01-1407-FB-2968
                                                        03D01-1408-CM-3520




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1503-CR-95| December 9, 2015        Page 1 of 10
[1]   Brian N. McClain appeals his sentence for criminal confinement as a class B

      felony and invasion of privacy as a class A misdemeanor. McClain raises one

      issue which we revise and restate as whether his sentence is inappropriate in

      light of the nature of the offenses and the character of the offender. We affirm.


                                      Facts and Procedural History

[2]   On June 27, 2014, McClain and his wife, Y.M., argued about their separation.

      At some point during a series of text message exchanges while Y.M. was at

      work, McClain stated that he was going to kill himself or overdose. Y.M. was

      afraid, traveled home, and hid McClain’s Xanax and his firearms. At some

      point while in the bedroom, McClain became upset, grabbed a goblet, and

      threw it at Y.M., and it struck her on the back. Y.M. ran downstairs where

      Edward Elliott, who was temporarily renting the basement of the home, and his

      three children were located and told him what had happened, and Elliott told

      her to leave the house and call the police. Y.M. did so and when the police

      arrived, she told them about McClain’s history of abuse, that it was becoming

      increasingly worse, and that she was fearful of him, and the police arrested

      McClain and took him to jail.


[3]   The following morning, McClain was released, and the court issued a no

      contact order that he have no contact in any way with Y.M. Upon learning

      that McClain had been released, Y.M. became scared, and she left a note for

      him stating where to find his suitcase, cell phone, charger, and medications in

      an area outside so he would not need to enter the house, and then left the house

      and went to a nearby restaurant with Elliott and his children. While at the
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      restaurant, Y.M. and Elliott observed McClain walking toward their house and

      that he appeared angry, and Y.M. was terrified. She waited at the restaurant,

      hoping that McClain would take his belongings and leave. She later returned

      home and found that McClain had left but had not taken his belongings.


[4]   Later that afternoon, McClain returned to the house. Y.M. saw his shadow at

      the door reading her note. He then started to repeatedly kick the door to break

      inside and Y.M. opened the door. McClain rushed over to a table in the den

      area where there was a glass-piece chess set displayed and pushed it towards

      Y.M, and it struck her. She tried to run away, but McClain grabbed her and

      placed her on the floor, pinned her by sitting on her stomach, and punched her

      face and head while she tried to block his punches. He was hitting her so hard

      that he grunted each time he punched her, striking her twenty or more times or

      more, causing excruciating pain. McClain stated “This is what you get, this is

      what you get.” Transcript at 66. Y.M. was eventually able to escape, ran into

      the bathroom hallway, and locked herself inside. McClain chased after her and

      started kicking the bathroom door until he broke the door in half. Y.M. felt like

      she was going to die, picked up the half-broken door to push him away, and

      was able to exit the bathroom. She ran through the living room and kitchen

      and ultimately hid in a spare bedroom.


[5]   Meanwhile, Elliott had called 911. When the police arrived, they found Y.M.

      crying on the floor in a fetal position and McClain in a t-shirt and underwear.

      Y.M. told the police that, if they had not been called, McClain could have



      Court of Appeals of Indiana | Memorandum Decision 03A01-1503-CR-95| December 9, 2015   Page 3 of 10
      killed her. She suffered extensive bruising to her arms and head and after the

      attack, Y.M. suffered dizziness and flashbacks.


[6]   In an information filed on July 1, 2014 and an amended information filed

      August 5, 2014, under cause number 03D01-1407-FB-2968 (“Cause No.

      2968”), the State charged McClain with battery resulting in serious bodily

      injury as a class C felony; two counts of domestic battery as class D felonies;

      criminal confinement as a class B felony; and two counts of stalking as class C

      felonies. In an information filed on August 7, 2014, under cause number

      03D01-1408-CM-3520 (“Cause No. 3520”), the State charged McClain with

      invasion of privacy as a class A misdemeanor. He ultimately pled guilty to

      criminal confinement as a class B felony under Cause No. 2968 and invasion of

      privacy as a class A misdemeanor under Cause No. 3520.


[7]   At the sentencing hearing, Y.M. testified that she was born in Japan, has lived

      in the United States since 1988, and that she worked for an automobile supplier

      company. She stated that she began dating McClain in 2006 or 2007, they

      married in 2010, and that, during their dating relationship and marriage, she

      worked full time and he worked part-time jobs here and there and took care of

      the house. She testified that McClain abused her emotionally, verbally, and

      physically both before and after they married, called her names, and made

      disparaging comments about her appearance and race. The court admitted

      several emails from McClain to Y.M. sent in May 2014, including one that said

      in part “I really hate you. No talent. No drive for success. No guts. No

      brains. . . .” State’s Exhibit 6. In another, he said in part “In all honesty, you

      Court of Appeals of Indiana | Memorandum Decision 03A01-1503-CR-95| December 9, 2015   Page 4 of 10
      are not aging well. I look great. I sure get attention. Time for me to date girls

      while you sit at home. . . .” State’s Exhibit 4.


[8]   Y.M. testified that during her marriage McClain pushed and kicked her,

      knocked down furniture, broke things in anger, and had previously threatened

      to kill her. The court admitted photographs taken in November 2013 showing a

      puncture wound that McClain inflicted on Y.M. with a knife, and a bruise on

      her hand which was the result of her blocking her head when McClain was

      punching her. She testified that, several years earlier, she and McClain had a

      fight and thus did not spend his birthday together, that he came home drunk

      late at night, and that he grabbed a gun, clicked it “and put the gun [] against

      [her].” Transcript at 39. She stated that McClain threatened that, if she left or

      divorced him, he would disclose her marijuana use to her employer and family,

      and that thus she wanted to be clean before leaving him.


[9]   Y.M. additionally testified that McClain invited a photographer to their home,

      that the photographer took pictures of her in lingerie, in various states of nudity

      and engaged in intimate acts, and that McClain threatened her with the

      photographs and told her that he could send a gift package to her parents. The

      court also admitted several text messages McClain sent to Y.M. from June

      22nd through 27th, 2014, including statements that “If you’re not careful I’m

      going to cancel your ticket to Hawaii because that’s on my card[.] I don’t want

      to travel with a c---. Best find you a new plane ticket. Ill be at the Ohana with

      hookers.” State’s Exhibit 10. In other messages, McClain stated “I honestly

      think your [sic] not a real bright person,” “I mow and airate [sic] the lawn in

      Court of Appeals of Indiana | Memorandum Decision 03A01-1503-CR-95| December 9, 2015   Page 5 of 10
       the sun. I paint. I clean. For what,” “You suffer from non stop b------- because

       your a mserable [sic] piece of s---,” “Your job sucks,” “Nobody likes you,” “No

       man wants you,” “Your [sic] weak, stupid, and unmotivated,” and “Take you

       sagging ass on down the road.” Id. In addition, the court admitted text

       messages which Y.M. stated were sent to her phone by McClain regarding a

       crime of passion defense, including “Well, its called a crime of passion. By law,

       if you catch your partner in bed with another, theres [sic] a 1 hour window to

       shoot him. Murder-no. Crime of pass[]ion-somewhat free pass.” State’s

       Exhibit 14. Y.M. also testified that McClain’s version of events that he found

       her with another man is not true, that she is five foot three and weighs 115

       pounds, and that McClain is six foot and three and weighs as much as 210

       pounds and is a black belt in martial arts. Elliott testified that his three children,

       between the ages of ten and thirteen at the time, were home during the June 28,

       2014 attack. He also testified that he was not involved in any relationship or

       sexual relationship with Y.M.


[10]   McClain testified that he did not send the messages regarding a crime of

       passion, that someone texted those messages to Y.M. in an effort to frame a

       story around why he walked into his home to find Y.M. engaged with another

       man sexually, and that, when he went home to retrieve his belongings, he

       walked in on Elliott engaged in a sex act with Y.M. He testified that he had

       been drinking and eating at a pub before he went to his home on June 28th, that

       there was an altercation with Y.M., that in the course of that altercation he

       soiled his pants, and that after ceasing his attack he went to the bathroom to


       Court of Appeals of Indiana | Memorandum Decision 03A01-1503-CR-95| December 9, 2015   Page 6 of 10
       change clothes and was arrested in the bathroom on the toilet. When asked

       about his pending divorce, McClain testified that Y.M. had been very difficult,

       that she was trying to use this incident to receive more than fifty percent of the

       assets, and that there were substantial assets at risk, “which is why [he] think[s]

       that this has been so bitter.” Transcript at 149.


[11]   The trial court noted that “this case is one of the most disturbing domestic

       violence cases that it’s seen” and there “has been a consistent and repeated

       pattern of violence in this relationship,” that it specifically believed Y.M. and

       found her testimony to be credible, and that “but for the grace of god are we

       just here on a . . . confinement case.” Id. at 175. The court stated that the

       aggravating circumstances include McClain’s history of criminal or delinquent

       behavior and history of abuse of Y.M., that three children were present in the

       residence downstairs, and that he violated the no contact order. The court said

       that it completely disagreed with the statement in the presentence investigation

       report (“PSI”) that McClain was likely to respond affirmatively to probation or

       short term imprisonment, and that, while Y.M. was testifying and before

       McClain realized the court was looking at him, it “noted a smirk on [his] face

       almost a smile . . . which the Court found very disturbing.” Id. at 178. The

       court also noted that McClain was released from jail and immediately violated

       Y.M. again. In its written sentencing order, the court found no mitigating

       circumstances and found the following aggravating circumstances: McClain has

       a history of criminal or delinquent behavior; he knowingly committed the

       offense in the presence or within hearing of an individual who was less than


       Court of Appeals of Indiana | Memorandum Decision 03A01-1503-CR-95| December 9, 2015   Page 7 of 10
       eighteen years of age at the time of the offense; that he violated a no contact

       order against him; and his lack of remorse. The court sentenced McClain to

       eighteen years with two years suspended to probation as a community

       corrections placement for his conviction for criminal confinement as a class B

       felony and to time served for his conviction for invasion of privacy as a class A

       misdemeanor.


                                                   Discussion

[12]   The issue is whether McClain’s sentence is inappropriate in light of the nature

       of the offenses and the character of the offender. Indiana Appellate Rule 7(B)

       provides that this court “may revise a sentence authorized by statute if, after

       due consideration of the trial court’s decision, [we find] that the sentence is

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

       offender.” Under this rule, the burden is on the defendant to persuade the

       appellate court that his or her sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[13]   Our review of the nature of the offenses reveals that McClain threw a goblet at

       Y.M. and was arrested, the next day he was released from jail and the court

       issued a no contact order, and he nevertheless went to the house, while Elliott’s

       three children were there, and attacked Y.M. He pinned her to the floor,

       punched her face and head at least twenty times, causing significant injuries,

       chased her to the bathroom, and kicked and broke the bathroom door in half.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1503-CR-95| December 9, 2015   Page 8 of 10
[14]   Our review of the character of the offender reveals that McClain pled guilty to

       criminal confinement as a class B felony and invasion of privacy as a class A

       misdemeanor, and the charges for battery resulting in serious bodily injury as a

       class C felony, two counts of domestic battery as class D felonies, and two

       counts of stalking as class C felonies were dismissed. According to the PSI,

       McClain pled guilty to resisting law enforcement as a class A misdemeanor and

       public intoxication as a class B misdemeanor in 2001, he was charged with

       leaving the scene of an accident and operating while intoxicated in 2002 but the

       State later dismissed the charges, and that he pled guilty to criminal mischief as

       a class B misdemeanor in 2012. The criminal mischief offense related to

       McClain cutting down his neighbor’s weeds or grass with an ax and damaging

       a fence board. The PSI also states there was a battery in 2008 but that no

       charges were filed. McClain reported he has been treated for PTSD and anxiety

       since he was eighteen years old, that he has taken Xanax for thirty years, and

       that he is currently taking anti-depressants. The PSI also indicated that the risk

       assessment system tool placed McClain in the low risk to reoffend category. At

       sentencing, the trial court stated that probation or short term imprisonment

       would undermine the seriousness of the offenses, and noted a smirk on

       McClain’s face while Y.M. was testifying and found it very disturbing. The

       evidence and testimony presented at the sentencing hearing reveals a consistent

       and repeated pattern of abuse and violence by McClain towards Y.M.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1503-CR-95| December 9, 2015   Page 9 of 10
[15]   After due consideration, we conclude that McClain has not sustained his

       burden of establishing that his aggregate sentence is inappropriate in light of the

       nature of the offenses and his character.


                                                   Conclusion

[16]   For the foregoing reasons, we affirm McClain’s aggregate sentence for criminal

       confinement as a class B felony and invasion of privacy as a class A

       misdemeanor.


[17]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




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