977 N.E.2d 31 (Ind.App. 2012), 03A01-1110-CR-496, Bryant v. State
| Judge | BAKER, J., and KIRSCH, J., concur. |
| Parties | Matthew BRYANT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Docket Number | 03A01-1110-CR-496. |
| Date | 11 October 2012 |
| Court | Indiana Appellate Court |
| Citation | 977 N.E.2d 31 |
Page 31
Appeal from the Bartholomew Superior Court; The Honorable Chris D. Monroe, Judge; Cause No. 03D01-1012-FA-1625.
MEMORANDUM DECISION— NOT FOR PUBLICATION
Matthew Bryant appeals his convictions and sentences for burglary as a class A felony, two counts of criminal confinement as class B felonies, two counts of intimidation as class C felonies, and battery resulting in serious bodily injury as a class C felony. Bryant raises five issues which we revise and restate as:
I. Whether the trial court abused its discretion by admitting certain evidence;
II. Whether the evidence is sufficient to sustain Bryant's conviction for burglary as a class A felony;
III. Whether Bryant's convictions for burglary as a class A felony and battery as a class C felony violate double jeopardy;
IV. Whether the prosecutor committed prosecutorial misconduct that resulted in fundamental error;
V. Whether the court abused its discretion in sentencing Bryant; and
VI. Whether Bryant's sentence is inappropriate in light of the nature of the offenses and the character of the offender.
We affirm in part and remand.
The relevant facts follow. In May 2010, E.B. began a relationship with Bryant. By September 2010, they were arguing a lot. During the two weeks prior to December 4, 2010, Bryant and E.B. were " arguing all of the time," and Bryant was " very possessive and controlling." Transcript at 286. On December 1, 2010, Bryant had a spare key to E.B.'s apartment.
On December 3, 2010, E.B. worked, and Bryant spent the night with her. The next morning, E.B. went to work and had to work later than her regular shift. Bryant sent E.B. text messages throughout the day because he was angry that E.B. was working late and accused her of being somewhere other than work. Bryant told E.B. that he was leaving and would not be at her apartment when she arrived home.
Around 7:00 p.m., E.B. returned home and thought that Bryant was gone as all of the lights were off in the apartment. E.B. went upstairs to change her clothes and then saw a flashlight on her and felt Bryant grab her. Bryant threw E.B. into the bedroom, threw her on the floor, held her down, attempted to remove her phone from her possession, and yelled at her. E.B. attempted to escape, but Bryant was straddled over her. E.B. " ended up off ... the floor" and attempted to run for the stairs to run downstairs, but Bryant grabbed her, picked her up, and took her down the hallway to her bedroom. Id. at 290. E.B. flailed, kicked, and tried to " squirm away." Id. at 291.
E.B. " ended up like flying backwards and slammed the back of [her] head against the wall and it knocked [her] down." Id. Bryant picked her up and yelled: " [L]ook what [you're] doing to [yourself] and look what [you] made happen." Id. Bryant picked up E.B., put her on her bed, straddled her again, pulled out a knife, and flipped open the blade. Bryant then called Billy Boker and told him that E.B. was " freaking out and going crazy," that he did not know what was wrong with E.B., that he was going to " put a stop to it," and that he needed two " guys to come down and be the clean-up crew." Id. at 292. E.B. thought that Bryant was going to kill her. Bryant told E.B. to talk to Boker, and E.B. told Boker to tell Bryant to stop.
At some point, Bryant and E.B. ended up downstairs, E.B. attempted to run out the front door, but Bryant grabbed her from behind and hit her with his arm around her throat. Bryant then dragged E.B. into the living room and struck her in the jaw which hurt " really bad" and knocked one of her teeth loose. Id. at 294. E.B. then sat down on the floor, became overwhelmingly fatigued, curled up with her knees pulled to her chest, and fell asleep.
On the morning of December 5, 2010, E.B. woke up in bed next to Bryant. At some point that day, E.B. took the spare key back from Bryant. E.B. went to work and did not call the police because she was afraid of the consequences and that Bryant would physically harm her if he discovered that she had called the police. That day, Bryant sent E.B. text messages and " [i]t was like nothing ever happened." Id. at 298. Bryant told E.B. that he loved her and that he was going to cook her dinner that night.
On the morning of December 6, 2010, E.B. drove Bryant to his friend's house. E.B. drove into the driveway of the friend's house, and Bryant exited the car and said, " I love you, I'll see you later ." Id. at 299. Before driving away, E.B. said, " I'm not doing this anymore and I [don't] want to be with [you]." Id. As soon as E.B. drove away, Bryant called her, and E.B. did not answer. Bryant called again, and they had a short conversation while E.B. drove to work in which E.B. told Bryant that she did not want to be with him anymore. After work, E.B. went to her apartment to grab some clothes and spent the night at her coworker's house. Bryant called E.B.'s phone " non-stop," and E.B. could not " really use [her] phone because it was just call after call after call and [Bryant] would text." Id. at 302. Bryant told E.B. that life without him was going to be torture. Bryant left a voicemail message for E.B. in which he stated that he was at her apartment and that the doors were weak and that he would make the cops shoot him.
That same day, Bryant sent E.B. multiple text messages. Specifically, Bryant sent E.B. a text message that read:
Maybe we can pass love letters thru the doors to each other when were in there together. Oh my bad you will be by yourself with a case & ill be dead cuz [I] made them shoot me. Hope you like ten to twenty babe.
State's Exhibit 24. E.B. thought that Bryant was threatening to " get her in trouble" and that she would go to jail. Transcript at 306. Bryant sent E.B. a text message that stated: " Very strong odor coming from ur place," and " There sayn something bout a meth lab at your place babe. What the f---?" State's Exhibits 20, 49. Bryant sent E.B. a text message that read: " Call my bluff then is what you do babe." State's Exhibit 21. E.B. took this message to mean that if she did not talk to him that he was going to set her up and that she was going to be in trouble. Bryant also sent E.B. a text message that read:
[E.B.] if your gonna keep doin this shit then dont trip when [I] hook you up with something special. Yea im tired of all this bullshit so since you want to play your games then ill play mine & you will lose. Absolutely lose everything. I mean everything too [E.B.]. Call me or answer your phone when [I] call or be ready for whatever.
State's Exhibits 22, 23.
On December 7, 2010, the calls and texts from Bryant to E.B. " wouldn't stop." Transcript at 308. E.B. worked that day and then went home to obtain clean clothes for the next day. While E.B. was talking on the phone to her sister, she saw a bag on her patio. E.B. nudged the bag with her toe and two glass jars full of liquid fell over. E.B. told her sister that it looked like a meth lab and told her sister to call the police because she was not going to touch the bag. After seeing the bag, Bryant's text messages made more sense to E.B. Specifically, E.B. thought that the text from Bryant that mentioned a foul odor referred to the smell of anhydrous ammonia.
E.B. waited at her apartment until police arrived, told the police what Bryant had done that day, showed the police the text messages from the prior night, and told the police what had occurred on December 4th. Columbus Police Detective Tom Foust gave E.B. his cell phone number and told her to contact him immediately if she knew Bryant's location and to call 911 in the event of an emergency. The police escorted E.B. to her workplace, and a police detective escorted E.B. to her friend's house after E.B. finished her shift. On December 8, 2010, E.B.'s friend drove her to work, and Bryant never stopped calling E.B. E.B. again stayed at her friend's house that night.
On December 9, 2010, E.B. worked until 4:30 p.m. and then went to her house. Bryant knocked on E.B.'s door, and E.B. sent Detective Foust a text message indicating that Bryant was at her residence. Detective Foust called E.B. and heard a female and male screaming. Based upon the tone of the voices, Detective Foust asked for all available units to respond in emergency mode to E.B.'s residence because he believed that Bryant was harming E.B.
E.B. called 911 and while she was talking to the 911 operator, Bryant kicked in her patio door. E.B. locked herself in an upstairs bathroom, but Bryant kicked in the bathroom door. Bryant then closed the bathroom door behind him, grabbed E.B., and struck her. E.B. told Bryant that she had called 911 and that he should leave, but Bryant kept hitting E.B.'s face with a closed fist and yelling at her. Bryant said: " Why are you making me do this? You're making me do this to you. I don't understand why you're doing this." Id. at 326. Bryant then paused for a moment, pulled a knife out of his pocket, looked at E.B. " like [she] was really, really pathetic," put the knife back in his pocket, and started hitting E.B. again. Id. at 327.
Columbus Police Sergeant Jennifer VanVactor was the first officer on the scene and observed that the patio door had been kicked in and there was debris from the doorway on the ground. Other officers arrived and entered E.B.'s residence. Bryant stated that E.B. was going to " get what [she] want[ed] because [he was] going to make them shoot [him] in front of" her. Id. at 328. Bryant sat on the toilet and put his feet on the door, and E.B....
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