                                                                       FILED
                                                                  Oct 14 2016, 10:10 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                    Gregory F. Zoeller
Deputy Public Defender                                    Attorney General of Indiana
Fort Wayne, Indiana                                       Katherine Modesitt Cooper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kent R. Blair, Sr.,                                       October 14, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          02A05-1604-CR-832
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          02D04-1511-F6-1094



Robb, Judge.




Court of Appeals of Indiana | Opinion 02A05-1604-CR-832 | October 14, 2016                 Page 1 of 12
                                Case Summary and Issues
[1]   Following a bench trial, Kent Blair was convicted of invasion of privacy, a

      Level 6 felony, and criminal trespass, a Class A misdemeanor. The trial court

      sentenced Blair to one and one-half years executed in the Indiana Department

      of Correction. Blair appeals his convictions and sentence, raising three issues

      for our review: (1) whether the evidence is sufficient to sustain his convictions,

      (2) whether the trial court abused its discretion in sentencing him, and (3)

      whether his sentence is inappropriate in light of the nature of the offenses and

      his character. Concluding the evidence is sufficient, the trial court did not

      abuse its discretion in sentencing Blair, and his sentence is not inappropriate,

      we affirm.



                            Facts and Procedural History
[2]   Blair and his wife, R.B., lived together in a home in Fort Wayne, Indiana. The

      home had been deeded to each of them by Blair’s father. In July 2014, an

      incident of domestic violence occurred between the couple. Thereafter, R.B.

      sought a protective order against Blair and also initiated divorce proceedings.

      On November 26, 2014, the trial court issued an ex parte order of protection

      against Blair, which prohibited Blair for the next two years from harassing,

      annoying, telephoning, contacting, or directly or indirectly communicating with



      Court of Appeals of Indiana | Opinion 02A05-1604-CR-832 | October 14, 2016   Page 2 of 12
      R.B., and further ordered him to stay away from R.B.’s residence, school, and

      place of employment. Blair received notice of the order.


[3]   In July 2015, the dissolution court held a final hearing and later dissolved the

      couple’s marriage; Blair did not appear at the hearing despite receiving notice.

      The dissolution decree awarded R.B. the home. On September 16, 2015, a

      court-appointed commissioner executed a quit claim deed thereby deeding the

      real estate to R.B.


[4]   At some point, R.B. moved out of her home, claiming, “I left for the safety of

      my life.” Transcript at 12. R.B. left certain pieces of personal property in the

      home, including furniture, a wine collection, and jewelry. R.B. often returned

      to the property to check on the home and to collect her mail. In so doing, she

      observed several of her personal items, including those noted above, were

      missing.


[5]   On October 31, 2015, R.B. went to the home to retrieve some clothes and could

      not gain entry because the locks had been changed. Her son, A.B., and Blair

      were both inside the home, and when R.B. knocked on the door, they told her

      to leave and slammed the door in her face. R.B. demanded they leave her

      home, telling them it was her property and they were not allowed to be there;

      neither A.B. nor Blair obliged. R.B. then called law enforcement, and before

      law enforcement could arrive, Blair “took off running.” Id. at 32.


[6]   A week later, R.B. returned to the property to collect her mail. Again, R.B. was

      unable to enter her home. In fact, some of the doors had been padlocked. R.B.

      Court of Appeals of Indiana | Opinion 02A05-1604-CR-832 | October 14, 2016   Page 3 of 12
      called law enforcement. Upon arrival, law enforcement determined R.B.

      owned the home, and with R.B.’s permission, kicked in the front door to the

      home. Law enforcement discovered multiple sets of locks inside the home.

      Blair, who was inside the home, was arrested. In an interview following his

      arrest, Blair told law enforcement “the house was his, it was given back to him in

      his divorce papers, [and] that it had been in his family for generations . . . .” Id. at

      47 (emphasis added). When asked to produce the divorce papers, Blair claimed

      R.B. had stolen them.


[7]   On November 13, 2015, the State charged Blair with two counts of invasion of

      privacy as Level 6 felonies (“Counts I and II”), and one count of criminal

      trespass as a Class A misdemeanor (“Count III”). At trial, R.B., three members

      of law enforcement, and Blair all testified. Specifically, Blair testified he

      believed the home was his and he had a right to be there. He further testified he

      never received any divorce papers. The trial court found Blair guilty as

      charged, merged Counts I and II, and entered judgment of conviction on

      Counts I and III. The trial court sentenced Blair to one and one-half years on

      Count I and one year on Count III, to be served concurrently. Blair now

      appeals his convictions and sentence.



                                 Discussion and Decision




      Court of Appeals of Indiana | Opinion 02A05-1604-CR-832 | October 14, 2016    Page 4 of 12
                                I. Sufficiency of the Evidence
                                        A. Standard of Review
[8]   In reviewing the sufficiency of the evidence to support a conviction, we neither

      reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27

      N.E.3d 1065, 1066 (Ind. 2015). We consider only the evidence supporting the

      judgment and any reasonable inferences drawn therefrom. Id. We will affirm

      the conviction “if there is substantial evidence of probative value supporting

      each element of the crime from which a reasonable trier of fact could have

      found the defendant guilty beyond a reasonable doubt.” Walker v. State, 998

      N.E.2d 724, 726 (Ind. 2013) (citation omitted).


                                         B. Invasion of Privacy
[9]   “A person who knowingly or intentionally violates . . . an ex parte protective

      order . . . commits invasion of privacy, a Class A misdemeanor. However, the

      offense is a Level 6 felony if the person has a prior unrelated conviction for an

      offense under this section.” Ind. Code § 35-46-1-15.1(2). The State alleged

      Blair knowingly or intentionally violated the ex parte protective order.1 “A

      person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is

      aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b). Blair

      argues the evidence is insufficient to establish he knowingly violated the




      1
       The State further alleged Blair had a prior conviction for invasion of privacy, for which he was serving
      probation at the time he committed the present offenses. The parties stipulated to the admission of his prior
      conviction at trial and Blair does not challenge this fact on appeal.

      Court of Appeals of Indiana | Opinion 02A05-1604-CR-832 | October 14, 2016                        Page 5 of 12
       protective order because he believed he owned the home and had a right to be

       there. In support, Blair cites to portions of the record where he claimed he

       never received notice of the dissolution decree or the quit-claim deed.


[10]   The evidence most favorable to the judgment and the reasonable inferences

       arising therefrom establish R.B. and Blair were both named on the deed to the

       home prior to the couple’s divorce in 2015. Nonetheless, Blair received notice

       of the 2014 order of protection, which prohibited him from harassing,

       annoying, telephoning, or directly or indirectly communicating with R.B., and

       further ordered him to stay away from R.B.’s residence for a period of two

       years. Blair also received notice of the dissolution decree, which gave R.B. the

       home. R.B. feared for her safety and opted to move out, but left some of her

       belongings in the home and periodically returned to exchange clothes, collect

       her mail, and check on her personal belongings. She later discovered some of

       her belongings were missing and the locks had been changed. Blair had been

       staying at the home and knew R.B. periodically visited.


[11]   On October 31, 2015, R.B. went to the home and could not gain entry because

       the locks had been changed. When R.B. knocked on the door, Blair answered

       and told her to leave. R.B. told Blair he was not allowed to be there. When

       Blair did not leave, R.B. called law enforcement and Blair immediately left the

       home. Despite this, Blair returned and continued to stay in the home, again

       changed the locks, and padlocked some of the doors. When R.B. arrived at the

       home on November 7, 2015, she could not gain entry and called law

       enforcement, who were forced to break down a door to the home.

       Court of Appeals of Indiana | Opinion 02A05-1604-CR-832 | October 14, 2016   Page 6 of 12
[12]   Given the above evidence, a reasonable fact-finder could conclude Blair

       knowingly violated the protective order by harassing, annoying, and/or

       communicating with R.B., and by failing to stay away from R.B.’s residence.

       When Blair argues he did not receive the divorce decree and he therefore

       believed he was the sole owner of the home, he invites us to reassess witness

       credibility, which we will not do. Although we acknowledge Blair testified he

       never received the divorce decree and that he said he believed he owned the

       home, the fact-finder was not required to believe this testimony, especially in

       light of the fact the State presented evidence that Blair did receive the divorce

       decree. We conclude the evidence is sufficient to sustain Blair’s conviction for

       invasion of privacy.


                                         C. Criminal Trespass
[13]   “A person who . . . not having a contractual interest in the property, knowingly

       or intentionally enters the real property of another person after having been

       denied entry by the other person . . . commits criminal trespass, a Class A

       misdemeanor.” Ind. Code § 35-43-2-2(b)(2). If a person has a fair and

       reasonable foundation for believing he has a right to be present on the property,

       there is no criminal trespass. See Olsen v. State, 663 N.E.2d 1194, 1196 (Ind. Ct.

       App. 1996). The State alleged Blair, not having a contractual interest in the

       property, knowingly entered R.B.’s property after being previously denied

       entry. On appeal, Blair argues the evidence is insufficient to sustain his

       conviction, contending he had a good faith claim of right to enter the property

       because he said he believed he owned the property.

       Court of Appeals of Indiana | Opinion 02A05-1604-CR-832 | October 14, 2016   Page 7 of 12
[14]   As noted above, Blair testified he never received the divorce decree and he

       believed he owned the property, but the trial court did not find his testimony to

       be credible in light of the contradictory statements he made following his arrest,

       namely that he had received the divorce decree. The record establishes Blair

       did not have a contractual interest in the home. On October 31, 2015, R.B.

       arrived at the home, discovered Blair was in the house, and told him to leave

       because it was her home and he was not allowed to be there. A week later,

       Blair was still in the home when R.B. arrived. We conclude the evidence is

       sufficient to sustain his conviction for criminal trespass.


                                    II. Sentencing Discretion
[15]   We review a sentencing decision 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. An

       abuse of discretion occurs when the trial court’s 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.” Id. (citation omitted). A trial court may abuse its discretion by

       failing to enter a sentencing statement, finding aggravating or mitigating

       circumstances unsupported by the record, omitting aggravating or mitigating

       circumstances clearly supported by the record, or noting reasons for imposing a

       given sentence that are improper considerations as a matter of law. Id. at 490-

       91. “Under those circumstances, remand for resentencing may be the

       appropriate remedy if we cannot say with confidence that the trial court would



       Court of Appeals of Indiana | Opinion 02A05-1604-CR-832 | October 14, 2016   Page 8 of 12
       have imposed the same sentence had it properly considered reasons that enjoy

       support in the record.” Id. at 491.


[16]   Blair contends the trial court abused its discretion in finding an aggravating

       circumstance unsupported by the record. Specifically, he contends “the vast

       majority of the trial court’s sentencing statement was devoted to its mistaken

       belief that [Blair] had perjured himself during the trial by denying knowledge of

       the protective order.” Appellant’s Brief at 19. In sentencing Blair to one and

       one-half years in prison, the trial court stated,


               [C]andidly I find it aggravating that he would testify in a
               courtroom, basically I judged the credibility of the witnesses in
               this case and it shows complete disdain to the Court when he
               says I didn’t know there was a no contact order in place, I didn’t
               know there was a divorce, I didn’t know who’s [sic] house it was
               and I just feel like that was very disingenuous and candidly just
               dishonest.


       Sentencing Transcript at 13. However, Blair did testify he had knowledge of

       the protective order, and prior to the conclusion of the sentencing hearing,

       Blair’s counsel notified the trial court of this fact. In response, the trial court

       acknowledged it misspoke and clarified its point was that Blair’s testimony,

       when taken together, was not credible. In light of this, the trial court did not

       alter Blair’s sentence.


[17]   Even assuming this misstatement amounted to error, we can say with

       confidence the trial court would have imposed the same sentence. As to the

       aggravating circumstances, the trial court identified Blair’s criminal history,

       Court of Appeals of Indiana | Opinion 02A05-1604-CR-832 | October 14, 2016   Page 9 of 12
       which includes convictions for battery, domestic battery, possession of

       marijuana, and invasion of privacy. Further, at the time Blair committed these

       offenses, he was on probation. The trial court did not find any mitigating

       circumstances. Blair does not challenge whether the record supports the

       remaining aggravating circumstances nor does he challenge the trial court’s

       decision not to identify any mitigating circumstances. The remaining

       aggravating circumstances identified by the trial court are supported by the

       record. We therefore conclude the trial court did not abuse its discretion in

       sentencing Blair.


                                  III. Inappropriate Sentence
[18]   Indiana Appellate Rule 7(B) provides, “The Court may revise a sentence

       authorized by statute 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.” The defendant bears the burden of

       persuading this court his or her sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate

       turns on “the culpability of the defendant, the severity of the crime, the damage

       done to others, and myriad other factors that come to light in a given

       case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role

       of appellate review is to “leaven the outliers,” not achieve the perceived

       “correct” result in each case. Id. at 1225.




       Court of Appeals of Indiana | Opinion 02A05-1604-CR-832 | October 14, 2016   Page 10 of 12
[19]   The advisory sentence is the starting point the legislature selected as an

       appropriate sentence for the crime committed. Anglemyer, 868 N.E.2d at 494.

       Blair was convicted of invasion of privacy as a Level 6 felony. A person

       convicted of a Level 6 felony shall be imprisoned for a fixed term of between six

       months and two and one-half years, with the advisory sentence being one year.

       Ind. Code § 35-50-2-7(b). The trial court sentenced Blair to one and one-half

       years in the Department of Correction. As to the nature of the offenses, we

       note nothing exceptional about the facts or circumstances apart from the fact

       the trial court did not believe Blair was truly ignorant of the fact R.B. owned the

       home. In light of this, Blair’s violation of the protective order by continuing to

       stay in R.B.’s home and repeatedly changing the locks to deny R.B. access to

       her home was more serious than simply contacting or communicating with her.


[20]   Blair’s criminal history is noted above. See supra Part II. We find it particularly

       telling that Blair was serving probation following a conviction for invasion of

       privacy against R.B. when he committed the present crimes. This we cannot

       ignore. We conclude Blair’s sentence of one and one-half years in the

       Department of Correction is not inappropriate.



                                                Conclusion
[21]   We conclude the evidence is sufficient to sustain Blair’s convictions for invasion

       of privacy and criminal trespass. We further conclude the trial court did not

       abuse its discretion in sentencing Blair and his sentence is not inappropriate in



       Court of Appeals of Indiana | Opinion 02A05-1604-CR-832 | October 14, 2016   Page 11 of 12
       light of the nature of the offenses and his character. Accordingly, we affirm his

       convictions and sentence.


[22]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 02A05-1604-CR-832 | October 14, 2016   Page 12 of 12
