MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Jan 16 2018, 10:44 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Paul J. Podlejski                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrius Lynte Brooks,                                    January 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1707-CR-1527
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C04-1510-F2-1712



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1527 | January 16, 2018          Page 1 of 10
                                       Statement of the Case
[1]   Andrius Lynte Brooks appeals his sentence for kidnapping, as a Level 2 felony.

      He raises two issues for our review, which we restate as follows:


              1.       Whether the trial court committed fundamental error
                       when it took judicial notice of prior trial proceedings when
                       it sentenced Brooks.

              2.       Whether his sentence is inappropriate in light of the nature
                       of the offense and his character.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On October 12, 2015, at around 2:30 a.m., Thirea Brown woke up to a loud

      banging on her door. She called and sent a text message to her boyfriend,

      Dayquan Swain, and asked him to come to her apartment because she believed

      someone was trying to kick down the front door. Brooks and his brother,

      Brycin, entered Brown’s apartment. The men were dressed in all black and

      they wore masks. The men ransacked her apartment, and they yelled at her and

      asked her where the drugs and money were. They repeatedly told her they were

      going to kill her.


[4]   The men forced Brown out of her apartment and into their car at gunpoint.

      They covered Brown’s face with a towel and put her on the floorboards in the

      backseat of the vehicle. Approximately fifteen minutes later, they stopped the

      vehicle. The men covered Brown’s head with a pillowcase and moved her to

      Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1527 | January 16, 2018   Page 2 of 10
      the trunk of the vehicle and then continued to drive around town. While she

      was in the trunk, Brown could hear the men call Swain. She heard the men

      demand twenty thousand dollars from Swain for her release. She was also able

      to hear them repeatedly threaten to kill her if Swain did not bring the money.

      At one point during the morning, Brooks and Brycin drove to the residence of

      Karlie Walters. At some point later, the two men left the residence with Brown

      still in the trunk of the vehicle.


[5]   After he had received the call and text message from Brown, Swain called the

      police. Officers with the Anderson Police Department responded to the call

      and arrived at Brown’s apartment. Swain told the police officers that he had

      received phone calls from an individual using Brown’s phone. The individual

      demanded both money and drugs. During the course of the investigation,

      police officers obtained information that there was a suspect vehicle parked at

      Walters’ residence.


[6]   After they had arrived, officers found Howard Jones, Walters’ boyfriend, at

      Walters’ residence. Jones admitted to the officers that he had played a role in

      the offense. He told the officers that Brooks and Brycin had met Jones at

      Walters’ residence earlier that morning. Jones further informed the officers that

      he could hear an individual in the trunk of the car that Brooks and Brycin had

      driven.


[7]   When Brooks and Brycin later returned to Walters’ residence, Jones told them

      that he had been identified by police officers and that they needed to drop


      Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1527 | January 16, 2018   Page 3 of 10
      Brown off. Brooks and Brycin drove the vehicle with Brown in the trunk, and

      Jones followed in another car. When they reached a rural area, the men

      released Brown. The men had kept Brown in the trunk of the vehicle for

      approximately twelve hours.


[8]   Detective Clifford Cole with the Anderson Police Department had been driving

      that afternoon when he passed a car that he believed contained Brooks and

      Brycin. Detective Cole turned his vehicle around and followed the vehicle.

      Detective Cole radioed Detective Chris Frazier, who told him to stay on the

      vehicle because they had information that Brown had just been released. At

      approximately 2:35 p.m., shortly after the men had released Brown, Detective

      Cole initiated a felony stop of the vehicle and arrested Brooks and Brycin.


[9]   On October 15, 2015, the State charged Brooks with kidnapping, as a Level 2

      felony; burglary with deadly weapon, as a Level 2 felony; criminal confinement

      with intent to obtain ransom, as a Level 2 felony; robbery, as a Level 3 felony;

      criminal confinement, as a Level 3 felony; unlawful possession of a firearm by a

      serious violent felon, a Level 4 felony; and a sentencing enhancement for the

      use of a firearm in the commission of an offense. The trial court held a jury

      trial on January 11-17, 2017, but it ended in a mistrial. The trial court

      scheduled a second jury trial to begin on April 24, but Brooks pleaded guilty to

      one count of kidnapping, as a Level 2 felony, on the morning prior to the start

      of the trial. On the same day, the trial court accepted Brooks’ guilty plea and

      entered judgment of conviction accordingly.



      Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1527 | January 16, 2018   Page 4 of 10
[10]   The trial court held a sentencing hearing on June 5. During the sentencing

       hearing, the State moved to admit exhibits from the jury trial as evidence. After

       the State moved to admit several exhibits, it stated that its “intent is to also ask

       that the court take judicial notice of the trial in this case that previously ended

       in a mistrial.” Tr. Vol. IV at 242. In response, the trial court asked if there was

       any reason not to do so. Brooks responded: “No objection, Judge.” Id. The

       trial court then stated: “All right. The court will take judicial notice of the

       prior testimony then.” Id. Later, the court clarified its prior statement and said:

       “I earlier said that I was gonna [sic] take judicial notice of the earlier testimony

       in the case. I should properly say I’m taking judicial [notice] of the entire

       evidentiary record that’s been developed in the case, including the exhibits[.]

       Id. at 244. Brooks did not object.


[11]   During the sentencing hearing, the trial court identified as mitigating factors the

       fact that Brooks pleaded guilty, that he expressed remorse, and that, at twenty-

       four years of age, Brooks is relatively young. The trial court found as

       aggravating circumstances the fact that Brooks had previously been convicted of

       robbery and battery, that the victim was held for an extended period of time

       beyond that which was necessary to constitute the elements of the offense, and

       that it was a multi-person conspiracy.1 The court sentenced Brooks to twenty-

       four years in the Department of Correction, with twenty years executed and

       four years suspended to probation. This appeal ensued.


       1
         The trial court found that the offense was “fairly complicated and involved an arrangement involving at
       least three (3) persons actively participating as co-conspirators[.]” Tr. Vol. V at 11.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1527 | January 16, 2018         Page 5 of 10
                                      Discussion and Decision
                           Issue One: Judicial Notice of Prior Proceedings

[12]   Brooks contends that the trial court erred when it took judicial notice of his

       prior trial proceedings that ultimately ended in a mistrial during the sentencing

       hearing. Specifically, Brooks asserts that “[i]t was fundamental error for the

       Court to take judicial notice of all prior proceedings related to the charged acts

       and consider those things when imposing a sentence for [Brooks].” Appellant’s

       Br. at 11. Brooks acknowledges that he did not make a timely objection when

       the trial court took judicial notice of the proceedings. However, he asserts that

       the error rose to the level of fundamental error because the trial court “assuredly

       relied on [the record] in fashioning a sentencing for [Brooks] and in doing so

       Brooks was deprived due process.” Id. at 13.


[13]   “The fundamental error doctrine is an exception to the general rule that the

       failure to object at trial constitutes procedural default precluding consideration

       of the issue on appeal.” Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013).

       That doctrine allows consideration of issues waived on appeal “only when the

       error constitutes a blatant violation of basic principles, the harm or potential for

       harm is substantial, and the resulting error denies the defendant fundamental

       due process.” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)).

       However, the fundamental error doctrine is not available to appellants who

       stated at trial that they have no objection. “‘The appellant cannot on the one

       hand state at trial that he has no objection to the admission of evidence and



       Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1527 | January 16, 2018   Page 6 of 10
       thereafter in this Court claim such admission to be erroneous.’” Id. at 679

       (quoting Harrison v. State, 281 N.E.2d 98, 100 (Ind. 1972)).


[14]   During the sentencing hearing, the State moved to admit exhibits from the jury

       trial as evidence. The State informed the court that its “intent is to also ask that

       the court take judicial notice of the trial in this case that previously ended in a

       mistrial.” Tr. Vol. IV at 242. In response, the trial court asked if there was any

       reason not to do so. Brooks responded: “No objection, Judge.” Id. The trial

       court then took judicial notice of the exhibits. Later, the trial court clarified its

       statement and took judicial notice of the entire evidentiary record.


[15]   On appeal, Brooks contends that “the State only entered as evidence certain

       transcripts of evidence presented at trial and witness testimony, not the entire

       record.” Appellant’s Br. at 13. However, it is clear from the record that the

       State asked the court to take judicial notice of the entire trial record, not just

       certain exhibits. And, in response, Brooks expressly declared that he had no

       objection to the State’s request. Because Brooks specifically stated that he did

       not object, the doctrine of fundamental error is not available to him on appeal.

       Halliburton, 1 N.E.3d at 679 (Ind. 2013).


                               Issue Two: Inappropriateness of Sentence

[16]   Brooks also contends that his sentence is inappropriate in light of the nature of

       the offenses and his character. Indiana Appellate Rule 7(B) provides that “[t]he

       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


       Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1527 | January 16, 2018   Page 7 of 10
       light of the nature of the offense and the character of the offender.” This court

       has recently held that “[t]he advisory sentence is the starting point the

       legislature has selected as an appropriate sentence for the crime committed.”

       Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana

       Supreme Court has recently explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. Anglemyer v.
               State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
               decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[17]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

       regard a sentence as inappropriate at the end of the day turns on “our sense of

       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.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the


       Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1527 | January 16, 2018   Page 8 of 10
       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[18]   Here, the trial court identified the following mitigating factors when it imposed

       Brooks’ sentence: Brooks pleaded guilty, he expressed remorse, and he is

       relatively young. The trial court identified the following aggravating

       circumstances: Brooks’ criminal history, which includes a felony conviction for

       robbery and a felony conviction for battery; the victim was held for an extended

       period of time, and that the offense was a multi-person conspiracy. The

       sentencing range for a Level 2 felony is ten years to thirty years, with an

       advisory sentence of seventeen and one-half years. Ind. Code § 35-50-2-4.5.

       Accordingly, the trial court sentenced Brooks to twenty-four years, with four

       years suspended to probation.


[19]   Brooks asserts that his sentence is inappropriate in light of the nature of offense

       because it is “well beyond the advisory sentence[.]” Appellant’s Br. at 10.

       However, we agree with the trial court that the offense was “brutal” and the

       actions Brooks took were “far beyond that which is necessary to constitute the

       element of the offense.” Tr. Vol. V at 9, 11. Brooks, along with his brother,

       broke into Brown’s home in the early hours of the morning, ransacked her

       apartment to look for drugs and money, forced her out of her home at gunpoint,

       held her in the trunk of a car for twelve hours, and threatened to kill her

       repeatedly. Even though Brown was not physically harmed during the offense,

       her psychological harm is such that she now fears being alone, she has a fear of



       Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1527 | January 16, 2018   Page 9 of 10
       strangers, and she no longer trusts people. We cannot say that Brooks’ sentence

       is inappropriate in light of the nature of the offense.


[20]   Brooks further asserts that his sentence is inappropriate in light of his character.

       He contends that he only had one prior felony conviction at the time of

       sentencing, that he had recently obtained his GED while incarcerated, that he

       had been a regular drug user for many years, that he accepted responsibility and

       showed remorse, and that he apologized to those around him. But the

       presentence investigation shows that Brooks has two prior felony convictions

       for violent offenses. Those include one conviction for robbery, as a Class B

       felony, and one conviction for battery, as a Class C felony. Despite the fact that

       Brooks was only twenty-two years of age when he committed the instant

       offense, he had already been convicted of two prior, violent felonies. Moreover,

       Brooks was on probation for his prior convictions when he committed the

       current offense. In sum, Brooks’ criminal history reflects his poor character.

       We hold that Brooks’ sentence is not inappropriate. Accordingly, we affirm his

       sentence.


[21]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1527 | January 16, 2018   Page 10 of 10
