Pursuant to Ind.Appellate Rule 65(D),

                                                                 FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                           Feb 19 2013, 9:24 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                          CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MICHAEL RILEY                                    GREGORY F. ZOELLER
Rensselaer, Indiana                              Attorney General of Indiana

                                                 JODI KATHRYN STEIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

BRANDON E. KLEIN,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )        No. 79A02-1201-CR-38
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                            The Honorable Les E. Meade, Judge
                              Cause No. 79D05-1104-FD-165



                                      February 19, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Brandon E. Klein appeals his convictions and the sentences imposed for

intimidation, as a Class D felony, and invasion of privacy, as a Class A misdemeanor,

following a jury trial. Klein presents the following issues for review:

       1.     Whether the trial court erred when it denied Klein’s motion for
              change of venue.

       2.     Whether the evidence is sufficient to support his convictions for
              intimidation, as a Class D felony, and invasion of privacy, as a Class
              A misdemeanor.

       3.     Whether his sentence is inappropriate in light of the nature of the
              offenses and his character.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       Katie Jacobs obtained an ex parte protective order against Klein on September 21,

2010 (“Protective Order”). The Protective Order was personally served on Klein on

October 19, 2010, and it required him to stay away from Jacobs, her residence and her

school, which was defined as Purdue University, West Lafayette, Indiana. Klein was

familiar with Purdue because it had “served as the educational and inspirational backbone

for the Klein family for three generations.” Appellant’s App. at 17. He had also visited

his brother many times on that campus, but Klein had graduated from Purdue’s

Indianapolis campus.

       Klein opposed the Protective Order. In the course of the proceedings, he spoke

with Dawn Gross, the chief investigator for Tippecanoe County Prosecutor’s Office, both

in person and on the phone. Klein spoke with Gross “at length” and confided to her


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about his relationship with Jacobs. Transcript at 190. Gross also spoke with Klein’s

mother and with Jacobs and her family.

       Klein filed several motions for discovery in the Protective Order proceeding. The

trial court set those motions for hearing on April 14, 2011. On April 13, Klein checked

into the Union Club Hotel at the Purdue Student Union, which is on Purdue’s West

Lafayette campus. He left the hotel in his car for dinner and then returned afterward. At

one point he asked the desk clerk whether there might be a computer available for use.

She directed him to one of the campus student libraries.

       At the hearing the following day, the trial court denied Klein’s discovery requests.

Gross passed Klein in the hallway after the hearing and greeted him, but Klein appeared

upset. He said that the “justice system is all F’d up.” Id. at 99. A short time later, Klein

appeared in the reception area outside Gross’ office and asked to speak with her. Klein

was angry and crying. Gross attempted to calm Klein in her office, but he remained

agitated and said repeatedly that he wanted to go to jail. Klein then said that he had

violated the protected order. When Gross asked if he had seen Jacobs, Klein answered

negatively but said that he had stayed overnight in the Union Club Hotel and that he

knew that that was a violation of the Protective Order. At that point in time, Gross was

unaware that the Protective Order included the West Lafayette Purdue campus.

       Gross asked Klein to leave Jacobs alone. Klein answered that he had “researched”

her and knew where she lived and “all about her[.]” Id. at 102. Klein continued to repeat

that he wanted to go to jail, and Gross again told him to leave Jacobs alone. Klein then

said, “I’m going to hurt her[. I]s that enough?” Id. at 103. Gross then tried to call


                                             3
Klein’s mother, hoping that she could calm him. Klein became upset and stormed out of

the office. Gross summoned bailiffs to find Klein and detain him because she was afraid

he was going to hurt Jacobs. Klein was found and detained a short time later in the

courthouse. His mood moved rapidly between laughing and yelling and being very upset

and angry. He asked Gross if she had the threat on tape.

      The State charged Klein with intimidation, as a Class D felony, and invasion of

privacy, as a Class A misdemeanor.       The State later filed a motion to amend the

information, which the trial court granted. As a result, the State charged Klein with

invasion of privacy, as a Class A misdemeanor; intimidation, as a Class A misdemeanor;

and intimidation, as a Class D felony.

      On the day before trial, Klein filed a motion for change of judge. The trial court

denied that motion after a hearing. A trial was held on November 29, and the jury found

Klein guilty on all counts. The trial court merged the Class A misdemeanor intimidation

count into the Class D felony intimidation count and entered judgment of conviction on

invasion of privacy, as a Class A misdemeanor, and intimidation, as a Class D felony.

On December 28, the court identified Klein’s young age and minimal criminal history as

mitigators. The court refused to accept as a mitigator Klein’s argument that he was

emotionally upset at the time of the offenses. The court then identified as aggravators

Klein’s lack of remorse, repeated disdain for authority, and “unwillingness to simply

accept facts.” Id. at 312. The court found that the aggravators outweighed the mitigators

and sentenced Klein to consecutive terms of two years executed for intimidation, as a




                                            4
Class A felony, and one year for invasion of privacy, as a Class A misdemeanor,

suspended to probation. Klein now appeals.

                            DISCUSSION AND DECISION

                              Issue One: Change of Venue

       A motion for change of judge is generally required to be filed within ten days after

a plea of not guilty is entered. Ind. Crim. Rule 12(D)(1). If the applicant first obtains

knowledge of a reason to move for a change of judge after that time, however, the

applicant may file the motion “which shall be verified by the party specifically alleging

when the cause was first discovered, how it was discovered, the facts showing the cause

for a change, and why such cause could not have been discovered before by the exercise

of due diligence.” Crim. R. 12(D)(2). “The request shall be granted if the historical facts

recited in the affidavit support a rational inference of bias or prejudice.” Crim. R. 12(B).

       A change of judge is neither automatic nor discretionary, but rather requires the

trial judge to make a legal determination, not a self-analysis, of actual bias or prejudice.

Voss v. State, 856 N.E.2d 1211, 1216 (Ind. 2006) (citations omitted). Adjudicating a

request for change of judge based on Rule 12(B) requires an objective, not subjective,

legal determination by the judge, who is “to examine the affidavit, treat the facts recited

in the affidavit as true, and determine whether these facts support a rational inference of

bias or prejudice.” Id. (internal quotation marks and citation omitted). The law presumes

a judge is unbiased and unprejudiced. Patterson v. State, 926 N.E.2d 90, 93 (Ind. Ct.

App. 2010). The appropriate standard of review of a trial judge’s decision to grant or

deny a motion for change of judge under Indiana Criminal Rule 12 is whether the judge’s


                                             5
decision was clearly erroneous. Sturgeon v. State, 719 N.E.2d 1173, 1182 (Ind. 1999).

Reversal will require a showing that leaves us with a definite and firm conviction that a

mistake has been made. Id.

       Klein contends that the trial court erred when it denied his motion for change of

judge. Specifically, Klein alleges that he proved the trial court’s bias or prejudice based

on the trial judge’s prior statements. In his affidavit supporting the motion to change

judge, Klein alleged as follows:

              That on November 22, 2011 the applicant first discovered that the
       current judge in the above matter, while sitting as judge in Cause Number
       79D05-1009-PO-402, did make statements which cast doubt on the
       Defendant as a witness including:

       “[I] don’t think the jury will believe it [Defendant’s testimony].”

              Further, on [sic] the August 12, 2011 hearing on Cause Number
       79D05-1009-PO-402, the court alleged that Mr. Klein’s actions in
       Hamilton County were frivolous and just another way for Mr. Klein to
       continue to abuse and harass Ms. Jacobs.

Appellant’s App. at 15 (alterations in original). We address each statement in turn.

       At the time of the ruling, Klein was or had been a party in three separate cases

involving Jacobs: the Protective Order matter filed by Jacobs, a civil suit filed by Klein

against Jacobs and her family in Hamilton County, and the underlying criminal matter.

At a pre-trial conference in the Protective Order case, the trial court stated that it did not

believe the jury would believe Klein as the reason “why the ruling was being made” at

that conference and why the protective order would remain in effect. Transcript at 14.

And with regard to the second statement, the trial court’s statement about the Hamilton

County civil case was merely a restatement of what that trial court had said about that


                                              6
civil case. In other words, the trial court was “trying to understand what happened in the

Hamilton County case.” Id.

       We conclude that the statements on which Klein based his motion to change judge

do not support a rational inference of bias or prejudice. The trial court explained the

bases for the statements, and neither implicated the court’s objectivity with regard to

Klein. Therefore, Klein has not met his burden to show that the trial court’s denial of the

motion to change judge is clearly erroneous.

                          Issue Two: Sufficiency of Evidence

       When reviewing the claim of sufficiency of the evidence, we do not reweigh the

evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139

(Ind. 2003). We look only to the probative evidence supporting the verdict and the

reasonable inferences therein to determine whether a reasonable trier of fact could

conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial

evidence of probative value to support the conviction, it will not be set aside. Id. Klein

contends that the evidence is insufficient to support his convictions for intimidation, as a

Class D felony, and invasion of privacy, as a Class A misdemeanor. We address each

conviction in turn.

                                       Intimidation

       To prove the offense of intimidation, as a Class D felony, the State was required to

show beyond a reasonable doubt that Klein communicated a threat to another person,

namely Jacobs, with the intent to place her in fear of retaliation for a prior lawful act,

obtaining a protective order against him, and that the threat was to commit a forcible


                                               7
felony. See Ind. Code § 35-45-2-1(a), (b)(1)(A). Whether intimidation has occurred is a

question of fact. Ajabu v. State, 677 N.E.2d 1035, 1041 (Ind. Ct. App. 1997) (citation

omitted), trans. denied. Whether a communication is a threat is an objective question for

the trier of fact. Id. at 1041-42. “Communicate” as used in the intimidation statute

“encompasses those threats made known or transmitted to another person, and the statute

does not limit the means utilized to convey the threat.” Id. at 1042. Such threats include

those a person makes known to the victim through the print, radio, or television media

with the requisite intent. Id.

        Klein argues that the State did not prove that he communicated the threat to the

subject of the threat.1 This court’s decision in Ajabu is instructive regarding the element

of communication. In that case, Ajabu, the father of a murder defendant, told media in

several interviews that if his son were to suffer the death penalty in the case, then other

people, namely the prosecutor and the mother of two murder victims, would also die.

Ajabu was subsequently charged with and convicted of two counts of intimidation. On

appeal, Ajabu argued that the intimidation statute required the threat to be communicated

directly to the victims. While we based our affirmance of the conviction in part on the

fact that the threat was communicated to the general public, including the purported

victims, through the media, we also noted that the “intimidation statute applies whether

the threat is made to unlawfully injure the person threatened or another person.” Id.

(citing Ind. Code § 35-45-2-1(c)(1)).


        1
           Klein also contends that the State did not prove that he intended to place Jacobs in fear or that
the threat was “intended to get revenge because Jacobs[] had filed a protective order.” Appellant’s Brief
at 13. But Klein does not support these contentions with cogent reasoning. Therefore, they are waived.
See Ind. Appellate Rule 46(A)(8)(a).
                                                     8
       Still, Klein asserts that the threat must be communicated in some fashion to the

intended victim, and in support he cites Bolen v. State, 430 N.E.2d 398 (Ind. Ct. App.

1982). There, the defendant spoke disparagingly to a police officer about the intended

victim, said that he “intended to get” the intended victim, and then showed the officer a

clip from an automatic weapon and said, “I’m going to kill him.” Id. at 401. Klein

misinterprets Bolen, which was a case about the admissibility of the officer’s testimony.

The court stated in dictum that “the statements may not have necessarily constituted a

crime inasmuch as [the intended victim] was not present at the time[.]” Id. But the case

does not stand for the proposition that a threat must be communicated directly to or in the

presence of the intended victim.

       In any event, we have subsequently interpreted the intimidation statute to the

contrary. In S.D. v. State, 847 N.E.2d 255 (Ind. Ct. App. 2006), trans. denied, a student

told a teacher that she was going to kill another named teacher, that she planned to use

hand grenades, and that she would harm the school. We held that those threats, although

not communicated directly to or in the presence of the intended victim, were intended to

“serve notice” on the target of the threat. Id. at 259 (citation omitted). “It was reasonably

probable that S.D.’s threat would be brought to [the other teacher’s] attention.

Accordingly, we hold S.D.’s threat was communicated within the meaning of Indiana

Code section 35-45-2-1.” Id.

       In the present case, there was sufficient evidence from which the trial court could

determine that Klein’s statements to Gross were threats communicated within the

meaning of the intimidation statute. While in an agitated state, Klein repeatedly told


                                             9
Gross that he wanted to go to jail. When Gross reminded Klein to leave Jacobs alone, he

said, “I’m going to hurt her is that enough?” Transcript at 103. Klein knew that Gross

had previously met and talked with Jacobs and that she knew that Jacobs had a Protective

Order against him. As in S.D., Klein knew or had reason to know that the threat to “hurt”

Jacobs would be brought to Jacobs’ attention.

         We hold that the threat in this case was “communicated” within the meaning of

Indiana Code Section 35-45-2-1. See S.D., 847 N.E.2d at 259. Klein’s contention that he

did not communicate a threat but merely had an “emotional outburst” is a request that we

reweigh the evidence, which we cannot do.          See Jones, 783 N.E.2d at 1139.       The

evidence is sufficient to support Klein’s conviction for intimidation, as a Class D felony.

                                     Invasion of Privacy

         Klein next contends that the evidence is insufficient to support his conviction for

invasion of privacy, as a Class A misdemeanor.             “A person who knowingly or

intentionally violates . . . an ex parte protective order issued under IC 34-26-5 . . .

commits invasion of privacy, a Class A misdemeanor.” Ind. Code § 35-46-1-15.1. Klein

contends that the State failed to prove that he knowingly or intentionally violated the

protective order. We cannot agree.

         Klein asserts that he “did not realize that he was not supposed to be on the Purdue

Campus[.]” Appellant’s Brief at 20. But the Protective Order clearly prohibited Klein

from being on the Purdue University West Lafayette campus. And the Protective Order

had been personally served on him. Klein cannot disclaim knowledge of the terms of the

order.


                                             10
       Klein also asserts that he “did not know that the Union Club Hotel was part of the

Purdue University Campus.” Appellant’s Brief at 20. Gross testified that Klein appeared

outside her office in distress, and she invited him in. When they talked, he said that he

wanted to go to jail and that he had violated the protective order, but he denied having

seen Jacobs. The evidence also shows that Klein had visited his brother on the West

Lafayette campus and was familiar with it. Moreover, the Union Club Hotel is attached

to and part of the Student Union Building on the campus. And when a hotel clerk

directed Klein to a student library on campus for working printers, he walked in the other

direction. Further, the hearing for which Klein was in town was to be held in Lafayette,

not West Lafayette, and there are other hotels in the area that are not on the campus. This

evidence and the reasonable inferences from the evidence support the conclusion that

Klein was aware that the Union Club Hotel was on the Purdue University West Lafayette

campus.

       Klein’s arguments regarding the terms of the Protective Order and the definition of

the West Lafayette campus amount to a request that we reweigh the evidence. Again, we

will not do so.    See Jones, 783 N.E.2d at 1139.         The evidence shows that Klein

knowingly or intentionally violated the terms of the Protective Order. Thus, the evidence

is sufficient to support his conviction for invasion of privacy, as a Class A misdemeanor.

                           Issue Three: Appellate Rules 7(B)

       Finally, Klein contends that his sentences are inappropriate in light of the nature of

the offenses and his character. Although a trial court may have acted within its lawful

discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana


                                             11
Constitution “authorize [] independent appellate review and revision of a sentence

imposed by the trial court.” Roush, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration

original). This appellate authority is implemented through Indiana Appellate Rule 7(B).

Id.   Revision of a sentence under Appellate Rule 7(B) requires the appellant to

demonstrate that his sentence is inappropriate in light of the nature of his offense and his

character. See App. R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.

2007). We assess the trial court’s recognition or non-recognition of aggravators and

mitigators as an initial guide to determining whether the sentence imposed was

inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a

defendant must persuade the appellate court that his or her sentence has met th[e]

inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration original).

       The Indiana Supreme Court more recently stated that “sentencing is principally a

discretionary function in which the trial court’s judgment should receive considerable

deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible

sentencing scheme allows trial courts to tailor an appropriate sentence to the

circumstances presented. See id. at 1224. The principal role of appellate review is to

attempt to “leaven the outliers.”      Id. at 1225.   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 facts that come to

light in a given case.” Id. at 1224.

       Klein does not articulate his Rule 7(B) argument in terms of the nature of the

offenses, but we note that the offenses are clear-cut. Klein had a working knowledge of


                                            12
the Purdue University West Lafayette campus and was to appear in court in Lafayette in

the Protective Order case. Despite the terms of the Protective Order, he spent the night

on the Purdue West Lafayette campus in the Union Club Hotel. And when the hearing

the following day resulted in adverse determinations, he became agitated, told Gross that

he wanted to go to jail, confessed that he had violated the terms of the Protective Order,

and threatened to harm Jacobs if that would accomplish his goal of going to jail. In

addition, the trial court imposed less than the three-year maximum on the Class D felony.

On these facts, we cannot say that his aggregate sentence of less than the maximum

allowable, with two years executed and one year suspended to probation, is inappropriate

in light of his convictions for intimidation, as a Class D felony, and invasion of privacy,

as a Class A misdemeanor.

       We next consider whether the sentence is inappropriate in light of Klein’s

character. In this regard, Klein first takes issue with the trial court’s findings regarding

aggravating and mitigating circumstances. In particular, Klein asserts that the trial court

erred when it found that he was not remorseful for his actions. But Klein has not shown

by citation to the record or cogent authority exactly how he believes the trial court abused

its discretion in coming to that determination. Thus, the issue is waived. See App. R.

7(B). In any event, Klein merely cites to the transcript to show that determination by the

trial court. Klein has not shown an abuse of discretion with regard to the finding

regarding his lack of remorse.

       Klein also points out that the risk and needs were assessed under the Indiana Risk

Assessment System Community Supervision Tool and that he “was found to be in the


                                            13
low risk category, indicating that he should be subject to minimum supervision and non-

reporting supervision.” Appellant’s Brief at 23. He also asserts that “no violations of the

protective order were alleged, and [he] has had no contact with the alleged victim[.]” Id.

at 24.    But Klein ignores the instant offenses, which involve two violations of the

Protective Order, even though they did not involve contact with Jacobs.              We also

consider the findings by the trial court regarding Klein’s character, namely: his lack of

remorse, repeated disdain for authority, and “unwillingness to simply accept facts.”

Transcript at 312. A review of the record supports those findings. Although Klein has a

minimal criminal history and is relatively young, we cannot say that the aggregate

sentence is inappropriate in light of Klein’s character. In sum, Klein has not shown that

his sentences are inappropriate in light of the nature of the offenses or his character.

         Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.




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