MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                         FILED
court except for the purpose of establishing                                 Apr 17 2018, 9:23 am
the defense of res judicata, collateral
                                                                                  CLERK
estoppel, or the law of the case.                                             Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                        Curtis T. Hill, Jr.
Brooke Smith                                             Attorney General of Indiana
Keffer Barnhart LLP
Indianapolis, Indiana                                    Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brandon Stevenson,                                       April 17, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A04-1712-CR-2867
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Michael J. Cox,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1611-F5-6764



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 82A04-1712-CR-2867 | April 17, 2018                 Page 1 of 8
                                          Case Summary
[1]   Appellant-Defendant Brandon Stevenson is required to register as a sex

      offender. He appeals following his conviction for Level 5 felony failure to do

      so. Stevenson raises two contentions on appeal. First, he contends that the trial

      court erred in denying his request for a mistrial. Second, he contends that his

      four-year sentence is inappropriate. Concluding otherwise, we affirm.



                            Facts and Procedural History
                   A. Stevenson Must Register as a Sex Offender
[2]   In 1997, Stevenson was adjudicated to have committed what would be 1st

      Degree criminal sexual conduct if committed by an adult in Kent County,

      Michigan. As a result, Stevenson is required to register as a sex offender. In

      2007, Stevenson was convicted of Class D felony failure to register as a sex

      offender.


                                      B. The Instant Offense
[3]   Stevenson checked into the Rescue Mission homeless shelter in Evansville on

      August 11, 2016. On or about August 17, 2016, Stevenson met with Detective

      Mike Robinson of the Vanderburgh County Sheriff’s Department (“the

      Department”). Detective Robinson is the coordinator for the sex or violent

      offender registry in Vanderburgh County. At this time, Detective Robinson

      went over the rules, duties, and obligations associated with registration as a sex



      Court of Appeals of Indiana | Memorandum Decision 82A04-1712-CR-2867 | April 17, 2018   Page 2 of 8
      or violent offender; Stevenson indicated that he understood these rules, duties,

      and obligations and registered as a sex offender.


[4]   On October 5, 2016, Stevenson was dismissed from the Rescue Mission because

      the shelter is “not allowed to have people on the registry there.” Tr. Vol. II, p.

      25. Rescue Mission staff member Amanda Crowe made an effort to remind

      Stevenson that he would need to contact the Sheriff’s Department and update

      his address on the registry. After being led to believe that Stevenson was

      residing at a different homeless shelter, Crowe also attempted to contact the

      other shelter to “let them know that [Stevenson] was there and that he needed

      to change his address” with the registry. Tr. Vol. II, p. 26.


[5]   Crowe met with Detective Robinson on October 12, 2016, and discussed

      Stevenson. At this time, despite the fact that Stevenson was in violation for

      failing to inform Detective Robinson that he was no longer residing at the

      Rescue Mission, Detective Robinson chose to “give [Stevenson] a little bit of a

      grace period” and asked Crowe to attempt to contact Stevenson and remind

      him that he was required to visit the Department and to comply with the

      registry requirements. Tr. Vol. II, p. 34. However, when Stevenson failed to

      report to the Department and comply with the registry’s requirements by

      November 11, 2016, Detective Robinson “had to draw a line in the sand and

      after receiving no contact, declared him AWO[L] from the registry” and

      referred the matter to the prosecuting attorney. Tr. Vol. II, p. 34. At some

      point a warrant was issued for Stevenson’s arrest. Detective Robinson had no



      Court of Appeals of Indiana | Memorandum Decision 82A04-1712-CR-2867 | April 17, 2018   Page 3 of 8
      contact with Stevenson until he was apprehended in Clark County on August

      12, 2017.


                                       C. Procedural History
[6]   On November 18, 2016, Appellee-Plaintiff the State of Indiana charged

      Stevenson with failure to register as a sex or violent offender. The charge was

      elevated to a Level 5 felony because of Stevenson’s prior failure to register

      conviction. The trial court conducted a jury trial on October 11, 2017.

      Stevenson requested a mistrial during the State’s closing rebuttal argument,

      alleging that the deputy prosecutor committed prosecutorial misconduct. The

      trial court denied Stevenson’s request for a mistrial. After the jury returned a

      guilty verdict, Stevenson pled guilty to the Level 5 felony enhancement. The

      trial court subsequently sentenced Stevenson to a four-year term of

      imprisonment.



                                 Discussion and Decision
                            I. Denial of Request for Mistrial
[7]   Stevenson contends that the trial court erred in denying his request for a

      mistrial. “Whether to grant or deny a motion for a mistrial lies within the

      sound discretion of the trial court.” Isom v. State, 31 N.E.3d 469, 480 (Ind.

      2015). “We afford great deference to the trial court’s decision and review the

      decision solely for abuse of that discretion.” Id. “A mistrial is an extreme

      remedy that is warranted only when less severe remedies will not satisfactorily


      Court of Appeals of Indiana | Memorandum Decision 82A04-1712-CR-2867 | April 17, 2018   Page 4 of 8
       correct the error.” Banks v. State, 761 N.E.2d 403, 405 (Ind. 2002). “A timely

       and accurate admonition is presumed to cure any error in the admission of

       evidence.” Id. (internal quotation omitted).


[8]    Stevenson argues that a mistrial was necessary following two alleged instances

       of prosecutorial misconduct during the State’s closing rebuttal argument. As

       for the first instance, the deputy prosecutor stated “I cannot stress this enough,

       the government [bears] the burden of proof, that’s been explained to you over

       and over, I think you understand that, we also bear the burden of keeping this

       community safe because when something bad happens-[.]” Tr. Vol. II, p. 65.

       At this point, defense counsel objected. Following a discussion held outside of

       the presence of the jury, the trial court admonished the jury as follows: “Ladies

       and gentlemen, please disregard the last five or six words the deputy prosecutor

       spoke.” Tr. Vol. II, p. 67.


[9]    As for the second instance, the deputy prosecutor stated “These rules protect

       him as well. Something bad happens at 123 Line Street, we’re going to look at

       suspects.” Tr. Vol. II, pp. 68–69. At this point, defense counsel objected and

       moved for a mistrial. Following another discussion held outside the presence of

       the jury, the trial court denied the request for a mistrial and admonished the

       jury as follows: “Ladies and gentlemen, please disregard the last sentence

       spoken by the deputy prosecutor.” Tr. Vol. II, pp. 69–70.


[10]   Although Stevenson claims on appeal that the trial court’s admonishments were

       insufficient, he fails to convince us of such. He fails to demonstrate that the


       Court of Appeals of Indiana | Memorandum Decision 82A04-1712-CR-2867 | April 17, 2018   Page 5 of 8
       comments at issue were so inflammatory as to place him in a position of great

       peril. See Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006) (providing that in

       determining whether an individual committed prosecutorial misconduct, we

       consider whether the alleged misconduct placed the defendant in a position of

       grave peril to which he would not have otherwise been subjected). More

       importantly, Stevenson does not even suggest that anything in the record

       indicates that the jury did not follow the trial court’s instructions to disregard

       the deputy prosecutor’s comments. Thus, we presume that the trial court’s

       admonishment cured any potential harm. See Green v. State, 587 N.E.2d 1314,

       1317 (Ind. 1992) (providing that appellate courts may presume that a timely and

       accurate admonishment by the trial court will cure any defect); see also Webster v.

       State, 413 N.E.2d 898, 901, 274 Ind. 668, 673 (1980) (providing that “[o]n

       appeal, [appellate courts] must presume that the jury obeyed the trial court’s

       instructions in reaching its verdict” and when the jury has been instructed not to

       consider specific evidence or argument, “we will assume that the jury followed

       the instructions.”).1


                              II. Appropriateness of Sentence
[11]   Stevenson also contends that his four-year sentence is inappropriate in light of

       the nature of his offense and his character. Indiana Appellate Rule 7(B)

       provides that “The Court may revise a sentence authorized by statute if, after




       1
         Because we conclude that the admonishments given by the trial court cured any potential harm, we need
       not consider the State’s argument that deputy prosecutor did not commit prosecutorial misconduct.

       Court of Appeals of Indiana | Memorandum Decision 82A04-1712-CR-2867 | April 17, 2018          Page 6 of 8
       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.” In analyzing such claims, we “‘concentrate less on comparing the

       facts of [the case at issue] to others, whether real or hypothetical, and more on

       focusing on the nature, extent, and depravity of the offense for which the

       defendant is being sentenced, and what it reveals about the defendant’s

       character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting

       Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied). The

       defendant bears the burden of persuading us that his sentence is inappropriate.

       Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[12]   Not only did Stevenson fail to register with the Registry as required, his offense

       was elevated to a Level 5 felony because he had a previous failure to register

       conviction. On August 17, 2016, Stevenson signed paperwork indicating that

       he understood that he was required to register and to update his registration any

       time his residence changed. Stevenson argues that he should have been given a

       lesser sentence because he was homeless at the time he failed to register and,

       thus, did not have an address to provide. However, the rules for registration,

       which again Stevenson indicated in writing that he understood, provided

       explicit instructions for how to register if one resides in temporary housing or is

       homeless. Specifically, the rules stated that “If you live at a temporary

       residence such as a homeless shelter, a group home, or a halfway house, or if

       you are homeless you must register IN-PERSON to the [Department] at least

       once every 7 days until you find a permanent residence.” State’s Ex. 1, p. 5


       Court of Appeals of Indiana | Memorandum Decision 82A04-1712-CR-2867 | April 17, 2018   Page 7 of 8
       (emphasis in original). Despite having been told that he was required to update

       authorities of his whereabouts once every seven days, Stevenson did not register

       with the Department after being asked to leave the Rescue Mission.


[13]   As for his character, Stevenson points to a favorable report from one of his

       parole officers. While Stevenson’s apparent willingness to cooperate with this

       parole officer might reflect somewhat positively on his character, it does not

       negate the numerous negative character traits argued before the trial court.

       Stevenson was required to register because he had committed a prior qualifying

       conviction. His criminal history was lengthy. It included sixteen felony

       convictions, one of which was a prior failure to register conviction. It also

       included nine misdemeanor convictions, one juvenile adjudication, and a

       habitual offender finding. The fact that Stevenson was convicted of this offense

       for a second time suggests that he has failed to reform his behavior. Stevenson

       has failed to convince us that his four-year sentence is inappropriate.


[14]   The judgment of the trial court is affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A04-1712-CR-2867 | April 17, 2018   Page 8 of 8
