Brown v. State

Decision Date07 June 2006
Docket NumberNo. 49A05-0506-CR-321.,49A05-0506-CR-321.
PartiesRichard BROWN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Joel M. Schumm, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.


CRONE, Judge.

Case Summary

Richard Brown appeals his convictions and sentence for three counts of class D felony criminal confinement and his guilty verdicts for three counts of class D felony identity deception.1 We affirm in part, reverse in part, and remand.


Brown raises nine issues, which we reorder and restate as the following six:

I. Whether the trial court abused its discretion in denying his motion for mistrial;

II. Whether he waived his constitutional challenges;

III. Whether the criminal confinement statute, Indiana Code Section 35-42-3-3, is unconstitutionally vague as applied to him;

IV. Whether the identity deception statute, Indiana Code Section 35-43-5-3.5, is unconstitutionally vague as applied to him;

V. Whether the evidence is sufficient to support the guilty verdicts for identity deception; and

VI. Whether the trial court violated his statutory and constitutional due process rights by imposing a $400 jury fee.

Facts and Procedural History

On July 28, 2004, Brown called the Greek Islands Restaurant from his home at 1731 Fletcher Avenue in Indianapolis and spoke to A.H., a twenty-five-year-old server at the restaurant. Brown told A.H. that he was from the "93.1 radio station." Tr. at 52. 93.1 Radio Now is an Indianapolis radio station owned by Emmis Communications. Brown explained that the radio station was having a contest and that A.H. could win a car by going to 1731 Fletcher Avenue and persuading the occupant to give him a t-shirt in exchange for A.H.'s clothes. Brown told A.H. that it sometimes helped to bring food to bribe the person, and that A.H. would have to take a lie detector test the following day to see whether he followed the contest instructions. A.H. believed that Brown was a radio disc jockey and that the contest was legitimate because Brown sounded "very fast, very excited" like a radio personality. Id. at 53.

A.H. left the restaurant with a sandwich and drove to the Fletcher Avenue address. A.H. knocked on the front door, and Brown answered. A.H. explained the contest and gave Brown the sandwich. Brown suggested that A.H. drive to the back of the house so that the neighbors would not see him undress. A.H. did so, and Brown let him in the house through the back door. A.H. went to an adjacent room and took off his waiter's uniform while Brown watched from approximately four feet away. Brown gave A.H. a torn t-shirt, and he wrapped it around his waist like a beach towel and left.

On July 29, 2004, at approximately 6:00 a.m., Brown called a Steak 'n Shake restaurant and spoke with J.M., a college freshman employed as a waiter. Brown told J.M. that he was from Radio Now and that the station was holding a "dare contest," in which the contestant could win a new car of his choosing. Id. at 88. The dare was to trade his clothing for a t-shirt with the person at 1731 Fletcher Avenue, who knew about the contest, within the next hour. Afterward, J.M. would talk about the experience on the radio. J.M. agreed to enter the contest and drove to 1731 Fletcher Avenue.

J.M. rang the front door bell. When Brown answered, J.M. asked him if he knew anything about the contest. Brown said that he did not, but that his wife had entered Radio Now contests. J.M. explained the contest. Brown agreed to help, invited J.M. in, and gave him a child-sized t-shirt. J.M. asked Brown if he could go into a restroom to change. Brown replied, "No, that's all right. I'll see you anyway. It's not like I get off on that sort of thing." Id. at 94. J.M. started to unbutton his shirt but stopped when he saw Brown staring at him. He asked Brown to turn around. Brown turned slightly, but J.M. could see his profile. He also noticed that Brown's hand was shaking.

The situation made J.M. nervous. He asked Brown where his wife was. Brown told J.M. that he and his wife were not currently together. He also told J.M. that he should leave through the back door so that the neighbors would not see him. J.M. felt anxious and turned to open the door, but it was locked. He quickly unbolted the door and ran to his car. J.M. turned on Radio Now and heard about an incident that sounded similar to what he had just experienced. J.M. called the phone number broadcast by Radio Now and spoke to a police officer who happened to be at the radio station.

Around 6:30 that same morning, Brown called a McDonald's restaurant and spoke to M.C., a thirty-one-year-old cashier. Brown told M.C. that he was "Scott Ross" from Radio Now and invited M.C. to enter the "Summer dare to be wild contest" and win a Dodge Viper or any car up to $50,000, or elect a cash option of $50,000. Id. at 113. To win, M.C. had to go to 1731 Fletcher Avenue, "a randomly picked address," within the next forty-five minutes and persuade the occupant to give him a t-shirt in exchange for all his clothing. Id. at 131. Then, M.C. should wait by his phone for Radio Now to call and confirm that he had completed the dare. M.C. thought that Brown's voice was friendly and personable and believed him to be legitimate. He gave Brown his home and cell phone numbers. M.C.'s managers gave him permission to leave work, and he did.

M.C. went home and changed out of his uniform into street clothes. He then drove to 1731 Fletcher Avenue and knocked on the door. After Brown answered the door, M.C. explained the contest and asked Brown to help him. Brown agreed. M.C. began to disrobe on the front porch, but Brown told him not to disrobe outside. M.C. walked into the entryway of the house. Brown brought M.C. a very small t-shirt, stood in the entryway, and watched M.C. undress. Brown suggested that M.C. cut the shirt in half and wear it like a skirt, and M.C. did so. Brown told him not to go out the front door and led him to the back of the house. M.C. left and drove home.

When the radio station failed to call, M.C. became suspicious. He turned on the radio to listen to Radio Now and heard the disc jockeys talking about an incident similar to his. He called the number broadcast by Radio Now and spoke to a police officer.

Police interviewed the three men. A.H. and M.C. were individually shown a photo array, and both identified Brown as the man at 1731 Fletcher Avenue. Radio Now did not have an employee named Scott Ross, nor did it have a dare contest in which contestants could win a car by trading their clothing for a t-shirt. At 7:29 p.m. that day, a search warrant was executed for 1731 Fletcher Avenue. Police found clothing belonging to A.H. and M.C. inside the home.

On July 29, 2004, the State charged Brown with three counts of class D felony criminal confinement (Counts I, III, and V) and three counts of class D felony identity deception (Counts II, IV, and VI). On March 30, 2005, a jury trial commenced. Throughout all trial proceedings, Brown wore civilian clothes and a yellow jail bracelet with a sheriff's star on his wrist. He wore the jail bracelet because he was incarcerated at the Marion County Jail and was required to wear it at all times. During trial, M.C. was asked to identify the person he had met at 1731 Fletcher Avenue. M.C. testified, "Uh, he's wearing a white shirt, a tie, a jail armband, black shoes with white socks and blue or black pants." Id. at 119.

Brown moved for mistrial, contending that M.C.'s testimony violated his right to be presumed innocent until proven guilty and violated a motion in limine that prohibited any reference to his criminal history. Brown argued that the witness's identification of the jail armband had the same effect as if the jury had seen him "in handcuffs and paraded around in leg irons." Id. at 121. In response, the State argued that (1) the motion in limine only prohibited reference to past crimes; (2) there was no doubt that Brown had been arrested for this crime; and (3) the statement was made inadvertently in response to the question of identification.

After conducting research, the trial court denied Brown's motion for mistrial. The trial court then asked Brown whether he wished to have a cautionary instruction. Brown declined the instruction, stating that he did not want to draw attention to the armband. However, he asked the trial court to keep the option of a cautionary instruction open in the event that it became apparent that the jurors heard the reference to the "jail armband" and it was "on their minds." Id. at 125. The court deputy informed the trial court that if Brown removed the yellow jail bracelet, he would be charged a fee. The State offered to pay for a replacement bracelet, but the trial court declined the offer. Brown then objected to having to wear the jail bracelet based upon the fact that it had been brought to the jury's attention and identified as jail clothing. The trial court overruled the objection. The jury found Brown guilty as charged.

On May 11, 2005, Brown filed (1) a motion to vacate his identity deception convictions based on double jeopardy principles, (2) a motion to vacate his criminal confinement convictions and identity deception convictions based on statutory vagueness and overbreadth, and (3) a motion to limit any sentence imposed on the identity deception counts to one year based on the proportionality clause of the Indiana Constitution. Notice was provided to the prosecutor and the attorney general.

At the sentencing hearing on May 31, 2005, the prosecutor and the attorney general responded to Brown's motions. The State argued that Brown waived his constitutional claims by failing to raise them in a motion to dismiss prior to trial. However, the trial...

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