MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                            Mar 28 2019, 8:59 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Office of the Public Defender                            Attorney General of Indiana
Crown Point, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Lavelle Lamar Borom,                                     March 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1309
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G04-1612-F4-47



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1309 | March 28, 2019                Page 1 of 13
[1]   Lavelle Lamar Borom appeals following his conviction of Class C felony

      stalking 1 and his admission of being a habitual offender. 2 Borom argues the

      evidence was insufficient to prove he committed stalking and the trial court

      abused its discretion in finding three of the ten aggravators it used to justify his

      sixteen-year sentence. We affirm Borom’s conviction and the length of his

      sentence, but we remand for correction of the sentencing order.



                                Facts and Procedural History
[2]   M.M. lived with her mother Ruth Martinez. In October 2013, Martinez sought

      a protective order for M.M. and herself against Borom, who was M.M.’s off

      and on boyfriend. At the time the order was sought, M.M. and Borom were

      broken up. Martinez requested the order because Borom was going past their

      house, breaking windows, “texting [M.M.], and writing messages.” (Tr. Vol. II

      at 36.) The trial court granted the request for a protective order, but Borom’s

      activity continued. On December 11, 2013, police arrested Borom for violating

      the protective order.


[3]   On February 25, 2014, Borom texted to M.M.: “You know you going [sic] to

      get whacked this week[.]” (Id. at 113.) The same day, Borom sent another text

      saying: “. . . Man, if I want you dead today, it can be done . . . .”(Id.) On




      1
          Ind. Code § 35-45-10-5(a) & (b)(1) (2002) (for acts between December 11, 2013, and June 30, 2014).
      2
          Ind. Code § 35-50-2-8 (2005).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1309 | March 28, 2019                    Page 2 of 13
      March 19, 2014, someone broke the windshield of Martinez’s car. On March

      29, 2014, police responded to Martinez’s house because of threatening text and

      voice messages M.M. received from Borom. On March 31, 2014, the police

      were called because Borom told M.M. he was going to break her car window

      and kill her. While M.M. was arguing on the phone with Borom, Martinez

      observed Borom walking in front of their house.


[4]   On October 19, 2014, Martinez called police because a window of her house

      had been damaged and she believed Borom to be responsible. On November

      13, 2014, police were called to Martinez’s house twice: first because Borom

      threw a brick through the house’s front window, and second because a rock was

      thrown through another house window. When responding to the second call, a

      police officer saw Borom in the area and approached him. Borom ran from

      police but was apprehended. On December 10, 2014, the police were called

      because M.M. received threatening text messages from Borom.


[5]   On April 26, 2015, Borom came out of a building next to Martinez’s home and

      pointed a gun at her. Borom left when the police were called. On June 10,

      2015, police responded to a report of more threatening text and voice messages

      from Borom to M.M.. Borom told M.M. he had a gun and was going to get

      her. On June 15,2015, Martinez heard gunshots and found her van had bullet

      holes in it. On June 29, 2015, police responded to a call from Martinez’s home

      regarding gunshots. Police found a bullet hole through one of the windows.

      M.M. told police Borom sent her multiple intimidating messages, including one

      advising her to not sleep in her room.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1309 | March 28, 2019   Page 3 of 13
[6]   On December 9, 2016, the State charged Borom for his actions towards M.M.

      with Class C felony stalking, two counts of Level 4 felony stalking, 3 and two

      counts of Level 5 felony stalking. 4 After the case was filed, a protective order

      was issued against Borom directing him to not have contact with M.M. or

      Martinez. Borom ignored this order and made over seven-hundred calls to

      M.M. from jail. The jail then blocked its phones from calling M.M.’s number.

      Despite the block, Borom tried calling M.M. approximately thirty more times.


[7]   The State later filed an information alleging Borom was a habitual offender.

      After a three-day trial, a jury found Borom guilty of Class C felony stalking for

      acts that occurred between December 11, 2013, and June 30, 2014. The trial

      court held a sentencing hearing and then entered a sentencing order containing

      the following findings and conclusions:


                 FINDINGS:


                 Aggravating Circumstances:


                 1.       The defendant has a history of criminal activity beginning
                          as a juvenile including twenty-nine (29) contacts with law
                          enforcement including four (4) felony convictions and two
                          (2) misdemeanor convictions.


                 2.       The harm, loss, or injury suffered by the victim is
                          significant. The State needed only to prove two (2)


      3
          Ind. Code § 35-45-10-5(a), (b)(1), & (c)(1) (2014) (for acts between July 1, 2014, and December 4, 2016).
      4
          Ind. Code § 35-45-10-5(a) & (b)(1) (2014) (for acts between July 1, 2014, and December 4, 2016).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1309 | March 28, 2019                      Page 4 of 13
                instances of harassment to constitute the elements of the
                offense; however, the evidence at trial showed hundreds of
                previous instances of damage to victim’s property
                including broken windows, gunshots fired, and pointing of
                a firearm.


        3.      The victim was particularly susceptible to being
                manipulated, as she has previous traumatic brain injury in
                her medical history;


        4.      The defendant’s behavior toward the victim is an example
                of a predator preying on the weak;


        5.      The Court finds that even though the defendant did not
                inflict bodily injury on the victim, in the context of the
                stalking charge the Court considers the defendant to be the
                worst of the worst;


        6.      The Court finds the defendant’s behavior, as demonstrated
                by the evidence presented at trial, reached the point of
                being obsessive and relentless in that the defendant
                terrorized the victim for approximately three (3) years;


        7.      The defendant has had benefit of plea agreements for past
                charges including charges being reduced and/or dismissed;
                and [sic]


        8.      The defendant has previously received the benefit of
                probation which he has violated;


        9.      The defendant has previously been sentenced to periods of
                incarceration which failed to act as a deterrent to future
                criminal behavior. Further, the defendant has not taken


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1309 | March 28, 2019   Page 5 of 13
                advantage of the opportunity to live a crime-free life after
                sentences were served; and


        10.     The defendant is [in] need of correctional rehabilitative
                treatment that can only be provided by a penal facility, as
                evidenced by the factors enumerated above.


        Mitigating Circumstances:


        1.      The defendant expresses remorse, which the Court
                acknowledges as a mitigating circumstance; however,
                based on his pattern of behavior as brought forth in trial
                where there were numerous, perhaps hundreds of
                instances of his pattern of stalking, the Court does not give
                this mitigating circumstance great weight.


        2.      The defendant advises the Court that he began having
                alcohol dependency issues in 2009; however, the Court
                notes the defendant’s criminal history is replete with
                criminal activity prior to 2009 and the Court does not
                consider defendant’s alcohol dependency a mitigating
                circumstance.


        The Court finds that the aggravating circumstances substantially
        outweigh the mitigating circumstances.


        SENTENCE:


        The Court now sentences the defendant as follows:


        The defendant is now sentenced on Count III, Stalking, a Class C
        Felony, to the maximum sentence of eight (8) years to be served
        in the Department of Correction. On the Habitual Offender
        Enhancement, the defendant is now sentenced to eight (8) years.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1309 | March 28, 2019   Page 6 of 13
               Seven (7) years of said sentence are to be served in the
               Department of Correction and one (1) year to be served in Lake
               County Community Corrections, with initial placement in
               Kimbrough Work Program. Although the Court feels the
               defendant is deserving of the twelve (12) year maximum sentence
               on the Habitual Offender Enhancement due to the aggravating
               circumstances, the defendant did admit to allegations of the
               Habitual Offender Enhancement. The Court gives the defendant
               due consideration for that admission. Said sentences are to be
               served consecutively. 5


      (Appealed Order at 1-3 (footnote added).)



                                  Discussion and Decision
                                             Sufficiency of Evidence

[8]   Borom first alleges the evidence was insufficient to support his conviction.


               Sufficiency-of-the-evidence claims face a steep standard of
               review: we consider only the evidence and reasonable inferences
               most favorable to the convictions, neither reweighing evidence
               nor reassessing witness credibility. We affirm the judgment
               unless no reasonable factfinder could find the defendant guilty.




      5
        The trial court sentenced Borom to eight years for being a habitual offender and ordered the sentence
      served consecutively with his sentence for Class C felony stalking. A habitual offender determination is not a
      separate crime and should not result in a separate sentence. J.L.H. v. State, 642 N.E.2d 1368, 1371 (Ind.
      1994), as corrected (Oct. 12, 2018). Instead the finding allows the court to impose an enhanced sentence for
      the underlying felony. See id. The trial court should have sentenced Borom to a sixteen-year sentence for
      Class C felony stalking, rather than two consecutive eight-year sentences. See Roark v. State, 829 N.E.2d
      1078, 1080 n.5 (Ind. Ct. App. 2005) (trial court improperly sentenced the habitual offender status as a
      separate crime), trans. denied. We remand for the court to correct the sentence. See J.L.H., 642 N.E.2d at
      1371 (remanding for correction).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1309 | March 28, 2019                    Page 7 of 13
       Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016) (internal citations omitted). “It

       is therefore not necessary that the evidence overcome every reasonable

       hypothesis of innocence; rather, the evidence is sufficient if an inference

       reasonably may be drawn from it to support the verdict.” Steele v. State, 42

       N.E.3d 138, 144 (Ind. Ct. App. 2015).


[9]    Indiana Code section 35-45-10-5(a) (2002) provides: “A person who stalks

       another person commits stalking[.]” Indiana Code section 35-45-10-1 (1993)

       defines stalk as, “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.” The State charged Borom with Class C felony stalking alleging:


               . . . Between December 11, 2013 and June 30, 2014 . . . Borom
               did stalk another person, to-wit: [M.M.], and did make an
               implicit or explicit threat with the intent to place [M.M.] in
               reasonable fear of serious bodily injury or death, contrary to
               [Indiana Code section] 35-45-10-5(a) (2002) and [Indiana Code
               section] 35-45-10-5(b)(1) (2002) . . . .


       (App. Vol. 2 at 15.)


[10]   Borom first argues the evidence is insufficient to prove he engaged in “repeated

       or continuing harassment during the time of conviction.” (Br. of Appellant at

       12.) Borom says the three contacts he made with M.M. between December 11,

       2013, and June 30, 2014, were not enough to prove he continually or repeatedly

       harassed M.M.. However, repeated in this context means more than once. See
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1309 | March 28, 2019   Page 8 of 13
       Nicholson v. State, 963 N.E.2d 1096, 1101 (Ind. 2012) (holding repeated meant

       more than once). Therefore, the three contacts made by Borom are sufficient to

       show he repeatedly harassed M.M..


[11]   Second, Borom argues the evidence is insufficient to prove “M.M. actually felt

       terrorized, frightened, intimidated or threatened.” (Br. of Appellant at 12.)

       Stalking becomes a Class C felony when a person “makes an explicit or an

       implicit threat with the intent to place the victim in reasonable fear of: sexual

       battery (as defined in Ind. Code § 35-42-4-8); serious bodily injury; or death . . .

       . ” Ind. Code § 35-45-10-5(b)(1)(B) (2002). M.M. testified to feeling threatened

       by Borom. M.M. said the reason she would begin dating Borom again was

       “only [be]cause [she] was threatened.” (Tr. Vol. II at 99.) M.M. testified she

       was “afraid” Borom was going to hurt her. (Id. at 139.) On February 25, 2014,

       Borom texted M.M. “U kno u gunna get wack 6 this week.” (State Ex. 6 (errors

       in original).) That same day Borom texted M.M. saying “. . . man if I want u

       dead today it can b done. . . .” (Id. (errors in original).) Borom also told M.M.

       she would have a closed casket funeral. (Id.) Based on these facts, the State

       presented sufficient evidence to prove M.M. felt threatened and feared serious

       bodily injury or death.




       6
        “Whack” is a slang term that means “murder” or “kill.” See http://www.merriam-
       webster.com/dictionary/whack (last visited March 18, 2019).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1309 | March 28, 2019    Page 9 of 13
                                           Finding of Aggravators

[12]   “We initially observe that sentencing decisions rest within the sound discretion

       of the trial court and are reviewed on appeal only for an abuse of discretion.”

       Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012). 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.” Anglemyer v. State, 868 N.E.2d 482, 490

       (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007).


               The trial court can abuse its discretion by: (1) issuing an
               inadequate sentencing statement, (2) finding aggravating or
               mitigating factors that are not supported by the record, (3)
               omitting factors that are clearly supported by the record and
               advanced for consideration, or (4) finding factors that are
               improper as a matter of law.


       Gleason, 965 N.E.2d at 710.


[13]   Borom argues the trial court abused its discretion by considering aggravators it

       was not allowed to consider. Specifically, Borom argues three aggravators were

       erroneous:


                   2. The harm, loss, or injury suffered by the victim is
                      significant. The State needed only to prove two (2)
                      instances of harassment to constitute the elements of the
                      offense; however, the evidence at trial showed hundreds of
                      previous instances of damage to victim’s property
                      including broken windows, gunshots fired, and pointing of
                      a firearm.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1309 | March 28, 2019   Page 10 of 13
                                                          *****


                   5. The Court finds that even though the defendant did not
                      inflict bodily injury on the victim, in the context of the
                      stalking charge the Court considers the defendant to be the
                      worst of the worst;


                   6. The Court finds the defendant’s behavior, as demonstrated
                      by the evidence presented at trial, reached the point of
                      being obsessive and relentless in that the defendant
                      terrorized the victim for approximately three (3) years.


       (Appealed Order at 1-2.) Borom argues these aggravators are improper because

       they are based on evidence supporting charges of which he was acquitted.

       Forty years ago, the Indiana Supreme Court held it is improper to consider

       crimes for which a person is acquitted as aggravators. McNew v. State, 391

       N.E.2d 607, 612 (Ind. 1979).


[14]   Borom is correct in asserting that aggravator number two is inappropriate

       because it considers evidence from crimes for which Borom was acquitted. For

       example, there simply were not “hundreds of previous instances of damage to

       victim’s property” between December 2013 and July 2014. (Appealed Order at

       1.) In addition, although the windshield of Martinez’s car was broken during

       this timeframe, there was no evidence to demonstrate Borom was responsible

       for that damage.


[15]   However, aggravators five and six can be affirmed without considering the

       evidence from the charges for which Borom was acquitted. For example, while


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1309 | March 28, 2019   Page 11 of 13
       Borom was in jail he attempted over seven hundred phone calls to M.M.. The

       jail blocked M.M.’s number to prevent Borom from being able to call her, but

       he attempted to call M.M. an additional thirty times. Calling someone nearly

       eight-hundred times demonstrates Borom “reached the point of being obsessive

       and relentless.” (Id. at 2.) Furthermore, Martinez requested the protective

       order in October 2013, and Borom made those calls to M.M. from jail after he

       was charged in December 2016, so that he had been harassing M.M. “for

       approximately three (3) years.” (Id.) As such, there is proper evidence that

       supports aggravator six and, in light of that same evidence of long-term

       relentless obsessive behavior, we cannot say the trial court abused its discretion

       when it called Borom “the worst of the worst.” (Id.)


[16]   While the trial court entered one inappropriate aggravator, we cannot say that

       requires reversal. When a trial court considers an improper aggravator, we may

       nevertheless affirm the sentence if we can “say with confidence that the trial

       court would have imposed the same sentence.” Webb v. State, 941 N.E.2d 1082,

       1090 (Ind. Ct. App. 2011) (affirming despite trial court’s failure to consider

       guilty plea a mitigator), trans. denied. Despite one aggravator being

       inappropriate, the court properly considered nine other aggravators. Those

       aggravators included Borom’s extensive criminal history, the victim’s

       susceptibility to being manipulated, Borom’s predatory behavior, Borom being

       the worst of the worst, Borom’s obsessive behavior, Borom’s past benefit of plea

       agreements, Borom’s past violation of probation, Borom’s failure to respond to

       past incarceration, and Borom’s need for correctional rehabilitative treatment.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1309 | March 28, 2019   Page 12 of 13
       In addition, the trial court rejected one of Borom’s two mitigators and refused

       to give the other one significant weight. As such, we are confident the trial

       court would have reached the same sentence regardless whether it considered

       the improper aggravator. See, e.g., id. at 1090 (affirming sentence despite abuse

       of discretion regarding one aggravator when other aggravators existed).



                                               Conclusion
[17]   The evidence demonstrates Borom engaged in repeated harassment of M.M.

       and M.M. felt threatened by Borom’s actions, and thus the State presented

       sufficient evidence Borom committed Class C felony stalking. Additionally,

       while the trial court abused its discretion when it found one improper

       aggravator, there were nine other aggravators to support Borom’s sentence.

       Accordingly, we affirm Borom’s conviction and sentence length, but we

       remand for correction of the sentencing order for the reasons set forth in

       footnote five.


[18]   Affirmed and remanded.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1309 | March 28, 2019   Page 13 of 13
