MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Mar 28 2017, 9:27 am
this Memorandum Decision shall not be                                       CLERK
regarded as precedent or cited before any                               Indiana Supreme Court
                                                                           Court of Appeals
court except for the purpose of establishing                                 and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

John Browning, Jr.,                                      March 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A04-1605-CR-1063
        v.                                               Appeal from the Dearborn
                                                         Superior Court
State of Indiana,                                        The Honorable Jonathan Cleary,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         15D01-1410-F4-051



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017           Page 1 of 10
[1]   John Browning, Jr. appeals his conviction for patronizing a prostitute as a class

      A misdemeanor. Browning raises one issue which we revise and restate as

      whether the evidence is sufficient to sustain his conviction. We affirm.


                                      Facts and Procedural History

[2]   The facts most favorable to the conviction reveal that in early July of 2014,

      seventeen-year-old S.M., her baby, and some of her friends were sitting outside

      the post office in Moores Hill, Dearborn County, when Browning left the gun

      shop he owned, crossed the street, and approached them. S.M. knew

      Browning, and they attended the same church. Browning told S.M. her baby

      was cute and asked if he could take a picture of her. Afterwards, he told S.M.

      to have a nice day and returned to the gun shop.


[3]   About one week later, S.M. walked near the gun shop, Browning yelled at her,

      and she went into the shop and spoke with him. Browning asked S.M. if she

      was still looking for a job, and he told her she could break down the unpacked

      boxes in the shop and also mentioned that she could help him with “personal

      business.” Transcript at 28. S.M. did not understand what Browning meant by

      the reference to “personal business,” and she “just told him [she] would think

      about it.” Id. at 29. Browning told her to come back in a couple of days.


[4]   Approximately three days later, on July 16, 2014, S.M. returned to the gun

      shop, and Browning asked her if she had thought about the “personal offer,

      options [he] gave [her],” S.M. asked him what he meant, and Browning

      responded “you know what I mean.” Id. at 32. When S.M. told him that she


      Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017   Page 2 of 10
      did not understand, Browning “offered [her] to have oral sex with him for

      twenty dollars an hour or half hour or something” and to “have sex with him

      for a half hour for thirty dollars.” Id. S.M. felt strange, awkward, and upset,

      and she left the shop and walked to her mother’s residence. S.M. told her

      mother what had occurred and subsequently called the police and asked for

      Moores Hill Town Marshall Brent Casebolt.


[5]   Marshall Casebolt was dispatched and arrived at S.M.’s mother’s residence and

      spoke to S.M. At first, Marshall Casebolt did not “believe her totally.” Id. at

      67. Marshall Casebolt told S.M. that he would talk with her at a later date and

      would have her return to the shop wearing a recording device.


[6]   On August 12th, 2014, Marshall Casebolt returned to S.M.’s mother’s residence

      with a digital recorder and obtained her mother’s permission for its use, and

      S.M. agreed to wear the digital recorder and return to Browning’s shop and

      record their conversation. Marshall Casebolt demonstrated how to operate the

      digital recorder. At around 4:30 p.m., she donned the digital recorder and

      walked to the gun shop, activating the recorder before she entered. Right after

      she walked in, Browning locked the store’s door and lowered the blinds, which

      made S.M. scared. Marshall Casebolt positioned himself across the street from

      the shop. After speaking about guns, Browning asked S.M. what she thought

      about the “personal business.” Id. at 39. She asked him “one more time what

      that is,” and “that’s when he repeated himself about oral sex, paying her for

      oral sex and to have sex with him” and specifically stated that he was willing to

      pay “[a]round twenty to thirty dollars for a half hour to an hour.” Id. at 39, 41.

      Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017   Page 3 of 10
      They also discussed S.M.’s previous sexual experience and various sexual

      positions and activities. After approximately thirty minutes, S.M. left the shop,

      stopped the digital recorder, and returned to her mother’s residence. Marshall

      Casebolt met her there, retrieved the digital recorder, and subsequently listened

      to the recording.


[7]   On August 19, 2014, Marshall Casebolt spoke with Browning and told him that

      he was investigating a complaint made by a seventeen-year old whom he had

      propositioned for sex, and Browning immediately said that the complainant

      would be S.M. Browning told Marshall Casebolt that “she was just there and

      his mind had went to mush and the devil won on this one.” Id. at 76. Also, on

      August 21, 2014, Browning told Marshall Casebolt that “the sexual part” was

      “a personal thing between him and [S.M.]” and that “he had nothing further in

      mind for her than that.” Id. at 82. Browning also stated that “this would never

      happen again and if you took away the variable there was no problem he was

      fixed,” in which the “variable” was S.M. Id. at 83.


[8]   On October 10, 2014, the State charged Browning with Count I, promoting

      prostitution of a person under eighteen years of age, a level 4 felony. Also, on

      January 20, 2016, the State amended the charging information to add Count II,

      patronizing a prostitute as a class A misdemeanor.


[9]   The court held a bench trial on April 14, 2016. At the trial, the State introduced

      and the court admitted as State’s Exhibit 1 the digital recording of the

      conversation between S.M. and Browning made on August 12, 2014. In the


      Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017   Page 4 of 10
recording, Browning can be heard saying “[w]ell what we talk about before,

twenty dollars for a half hour, something like that?” State’s Exhibit 1 at 11:16-

11:18. S.M. responded: “Yea.” Id. at 11:19. S.M. then stated that she was

confused by what Browning “meant by that,” id. at 11:36-11:37, Browning

asked whether S.M. was wondering if the work was something of a “sexual

nature,” id. at 12:07-12:10, S.M. replied affirmatively, and Browning asked

“well what do you think about that?” Id. at 12:14-12:16. S.M. responded that

she would have to think about it. Browning told her he was asking for help

with whatever S.M. was comfortable with and that he could use help “after

hours” on Tuesdays and Thursdays. Id. at 13:01-13:02. Browning also told

S.M. that he “might be able to afford thirty dollars” for a half hour. Id. at

13:30-13:40. Later in the conversation, Browning asked S.M. if she “like[d]

porn or not,” and she responded that she had never watched it. Id. at 19:16-

19:20. He further instructed that what they had talked about “stays between me

and you.” Id. at 20:40-20:43. He also asked S.M. what she had done before

and if she had any “favorite things” or if there was anything she did not like.

Id. at 23:31-23:32. Browning then asked if she had ever “masturbated in front

of her partner,” id. at 23:49-23:53, or if she had done “sixty-nine.” Id. at 24:55-

24:57. Browning told S.M. that he could give her “instructions” or “lessons”

and that she could “learn from” him. Id. at 25:25-25:30. He asked her if her

partner had showed her how to “really suck cock,” id. at 25:45-25:48, and that

if she wanted to “get into a guy’s pocketbook you learn how to do that.” Id. at

26:05-26:08.


Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017   Page 5 of 10
[10]   After the State rested, defense counsel moved for a directed verdict on the

       evidence on both counts. During the discussion of Browning’s motion, the

       State moved to amend both counts to include August 12th in the range of dates

       noted in the charging information. The parties agreed with the court that there

       was a “typographical error” in the charging information in that the date range

       ended at August 11th. Transcript at 102. The State asserted that the charging

       information “does say on about or between,” that “there is other testimony that

       the same type of conduct happened prior to that” and that “[t]he recorded

       conversations just bolster[] her testimony about the prior contact . . . .” Id. at

       103-104. The State argued that Browning’s fundamental rights would not be

       impacted by the amendment “when there’s no allegations or alibi defense or

       some other prohibition of that date.” Id. at 104. The parties also discussed how

       Marshall Casebolt testified during a deposition that the recording occurred on

       August 11, 2014. The court denied the motion for directed verdict on Count II

       “because there’s been testimony that he did the exact same thing days before . .

       . .” Id. at 107. The court noted that it still could consider the recorded evidence

       “because it’s been admitted without objection.” Id. The court also granted

       Browning’s motion for directed verdict regarding Count I and denied the State’s

       motion to amend. After the court made its rulings, Browning rested.


[11]   The trial court found Browning guilty as charged on Count II and sentenced

       him to 365 days with sixty days executed and 305 days suspended to supervised

       probation.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017   Page 6 of 10
                                                   Discussion

[12]   The issue is whether the evidence is sufficient to sustain Browning’s conviction.

       When reviewing the sufficiency of the evidence to support a conviction, we

       must consider only the probative evidence and reasonable inferences supporting

       the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

       witness credibility or reweigh the evidence. Id. We consider conflicting

       evidence most favorably to the trial court’s ruling. Id. We affirm the conviction

       unless “no reasonable fact-finder could find the elements of the crime proven

       beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270

       (Ind. 2000)). It is not necessary that the evidence overcome every reasonable

       hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference

       may reasonably be drawn from it to support the verdict. Id.


[13]   The offense of patronizing a prostitute as a class A misdemeanor is governed by

       Ind. Code § 35-45-4-3, which provides in relevant part:

               A person who knowingly or intentionally pays, or offers or agrees
               to pay, money or other property to another person:


                       (1) for having engaged in, or on the understanding that the
                       other person will engage in, sexual intercourse or other
                       sexual conduct (as defined in IC 35-31.5-2-221.5) with the
                       person or with any other person; . . .


               commits patronizing a prostitute, a Class A misdemeanor.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017   Page 7 of 10
       The charging information alleged that “[o]n, about or between July 10, 2014,

       and August 11, 2014, in Dearborn County, State of Indiana, [Browning] did

       knowingly offer to pay money to another person, to-wit: S.M., on the

       understanding that S.M. would engage in sexual intercourse or other sexual

       conduct with” him. Appellant’s Appendix Volume 2 at 48.


[14]   Browning argues that “[t]he most damning evidence from trial came through a

       taped conversation from August 12, 2014,” which is “one day after the charged

       crime.” Appellant’s Brief at 9-10. He asserts that “[a] conviction cannot rest on

       weak facts and conjecture.” Id. at 10. Browning maintains that S.M. admitted

       at trial to having a proclivity for lying and that accordingly it is “necessary to

       carefully examine the taped conversation to ensure her testimony was reliable.”

       Id. at 11. He argues that the recording demonstrates that S.M. lied or

       exaggerated her prior conversations with Browning concerning payment for

       sex.


[15]   The State argues that it presented evidence that, on July 16, 2014, Browning

       offered S.M. twenty dollars per half hour for oral sex and thirty dollars per half

       hour for sexual intercourse with him and that his arguments amount to a

       request that we reweigh the evidence and judge S.M.’s credibility. It also

       argues regarding the digital recording that “[w]hen an information alleges that

       an offense occurred ‘on or about’ a certain date, the State is not limited to

       presenting evidence of events that occurred on that particular date when time is

       not an element of the offense.” Appellee’s Brief at 12. The State argues that it

       was not limited to events that occurred only before August 11, 2014.

       Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017   Page 8 of 10
[16]   The evidence most favorable to the conviction demonstrates that Browning on

       or about July 13, 2014, mentioned to S.M. that she could earn money by

       helping him with his “personal business,” and on July 16, 2014, she returned to

       Browning’s gun shop to ask him what he meant by personal business.

       Transcript at 28. Browning responded that “you know what I mean.” Id. at 32.

       When S.M. told him that she did not understand, Browning “offered [her] to

       have oral sex with him for twenty dollars an hour or half hour or something”

       and to “have sex with him for a half hour for thirty dollars.” Id. Based on this

       conversation, she phoned the police, and Marshall Casebolt on that date spoke

       with S.M. at her mother’s residence about the incident. Also, in the digital

       recording, Browning can be heard saying “[w]ell what we talk about before,

       twenty dollars for a half hour, something like that?” State’s Exhibit 1 at 11:16-

       11:18. This statement and others on the recording, as well as Browning’s

       statements to Marshall Casebolt, corroborate S.M.’s testimony regarding the

       conversation occurring on July 16th.


[17]   Browning does not assert that the evidence presented at his bench trial

       regarding the events of July 16, 2014 are insufficient on their face to prove the

       elements of patronizing a prostitute. Rather, he argues that S.M.’s credibility is

       questionable and that she is lying or exaggerating regarding those events.

       Browning’s arguments are merely a request that we reweigh the evidence and

       judge the credibility of the witnesses, which we cannot do. See Drane, 867

       N.E.2d at 146.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017   Page 9 of 10
[18]   Based upon our review of the testimony most favorable to the conviction, we

       conclude that a reasonable trier of fact could have found that Browning

       knowingly offered to pay money to S.M. with the understanding that she would

       engage in sexual intercourse or other sexual conduct with him, and that

       sufficient evidence exists from which the trier of fact could find him guilty

       beyond a reasonable doubt of patronizing a prostitute as a class A

       misdemeanor.


                                                   Conclusion

[19]   For the foregoing reasons, we affirm Browning’s conviction for patronizing a

       prostitute as a class A misdemeanor.


[20]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1605-CR-1063 | March 28, 2017   Page 10 of 10
