Opinion
24A-CR-1154
10-16-2024
Kari C. Spray, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Jane Ann Noblitt Columbus, Indiana ATTORNEYS FOR APPELLEE Theordore E. Rokita Indiana Attorney General Kathy Bradley Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Bartholomew Superior Court The Honorable Jonathan L. Rohde, Judge Trial Court Cause No. 03D02-2210-CM-5224
ATTORNEY FOR APPELLANT
Jane Ann Noblitt
Columbus, Indiana
ATTORNEYS FOR APPELLEE
Theordore E. Rokita
Indiana Attorney General
Kathy Bradley
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Kari Spray appeals her convictions and corresponding sentence for seven counts of harassment, as Class B misdemeanors. We affirm.
Issues
[¶2] Spray raises the following two issues for our review:
1. Whether the State presented sufficient evidence to support her convictions.
2. Whether the trial court abused its discretion when it sentenced her.
Facts and Procedural History
[¶3] Spray and Char Ison have one minor child together, C.I. ("Child"). Child resided with Ison, Ison's wife, and her two children, but Ison allowed Spray to visit with Child at his home. Between August 1, 2021, and August 13, 2022, when Child was between five and six years old, Spray made a series of anonymous reports to the Indiana Department of Child Services ("DCS") hotline.
[¶4] In particular, on August 1, 2021, following a visit with Child, Spray called the hotline and reported that Child had been "forced to stay in the rain for a couple of hours[.]" Tr. Vol. 2 at 52. She further alleged that Child was malnourished and that there were issues with domestic violence between Ison and his wife. Following that report, DCS interviewed Child with Ison's permission. Based on the information provided during the interview, DCS did not take any action.
[¶5] On August 23, Spray again called the DCS hotline and reported that Child was being "psychologically abused, mentally abused, [and] verbally abused" and that he is in a home where "violence occurs regularly." Id. at 70. She also reported that Ison regularly drinks to the "point of intoxication" while caring for Child and that Ison and his wife are "neglectful" and "abusive." Id. at 71.
[¶6] Spray called the DCS hotline again on September 14. During that call, Spray reported that Ison had "threaten[ed]" Child, that Child was being "denie[d] food," and that she had concerns about domestic violence between Ison and his wife. Id. at 76-77. On January 2, 2022, Spray again called the hotline. During this call, Spray stated that Child had been "thrown" by Ison and that he needed medical care. Id. at 81. She also reported that Ison had anger management issues and that he would get high while caring for Child. DCS again contacted Ison, who allowed DCS to speak with Child at his school. Again, no action was taken following the interview with Child.
[¶7] On April 28, Spray made another phone call to the hotline. Spray alleged that Child was being denied food and water and that he was being abused. But she additionally alleged that Ison and his wife had exposed Child to sexual behavior and that Ison and his mother "were groping [Child] to erections." Id. at 86. Following Spray's call, DCS and law enforcement officers went to Ison's house at 1:00 a.m. the next day. Ison did not allow anyone to see Child because of the time but later allowed him to be interviewed. Detective Terrance Holderness of the Bartholomew Sheriff's Department contacted Spray about the allegations of abuse against Child. Spray declined to meet with Detective Holderness. A DCS case worker and Detective Holderness also contacted Ison, who agreed to meet with them.
[¶8] On May 7, Spray reported to the hotline that Ison and his wife were "neglecting" Child, that they were withholding food from Child, and that they were "sexually molest[ing] Child." Id. at 106. On May 10, Detective Holderness and DCS met with Child at Ison's home. Neither DCS nor Detective Holderness observed anything during the interview that caused any concern. As a result, the allegations of abuse were unsubstantiated, and Detective Holderness did not pursue any criminal charges.
[¶9] Then, on July 31, Spray reported to DCS that Ison "sexually [and] physically" abused Child "all the time," that Child was denied food and water, that Ison had thrown Child "down some stairs," that Ison makes Child "watch him have sex with women," and that Ison touched Child "in a sexual way." Id. at 114-17. And, on August 13, Spray called the hotline and alleged that Child was being "kicked and tossed like a piece of trash." Id. at 123. During each call, Spray named Ison as Child's father, indicated that Child was with Ison during the alleged actions, but did not identify herself as Child's mother.
During each call, DCS asked Spray to name Child's mother. In some calls, Spray said that she was not aware of that information, but in other calls she responded that Child's mother is "Kari Spray." But she never identified herself as Spray or Child's mother.
[¶10] Detective Holderness began to investigate the calls made to DCS regarding the alleged abuse of Child. As part of his investigation, he subpoenaed all of the DCS calls relating to Child from August 2021. Detective Holderness was able to determine that Spray had made all of the phone calls. Detective Holderness contacted Spray about the calls, but she denied any involvement and stated that she believed Ison was the person who had called DCS.
[¶11] The State charged Spray with eight counts of harassment, as Class B misdemeanors, for each of the eight phone calls she had placed to DCS. Specifically, in each charging information, the State alleged that Spray "with the intent to harass, annoy, or alarm Char T. Ison, but with no intent of legitimate communication, did make a telephone call." Appellant's App. Vol. 2 at 28. The court held a jury trial, during which a DCS case worker and Detective Holderness testified regarding Spray's calls to the hotline and the investigation into the calls, and they each testified that the allegations lacked merit. At the conclusion of the trial, the jury found Spray not guilty of Count 1, which pertained to the first call Spray had placed on August 1, 2021, but guilty of the remaining seven counts. The court entered judgment of conviction accordingly.
Except for the listed date, the language in all eight charges was identical.
[¶12] Thereafter, the court held a sentencing hearing. During the hearing, the court found that the offenses "were not closely related in time or place and not collectively related in time or place and not collectively consider[ed] a single episode of criminal conduct." Tr. Vol. 3 at 50. As such, the court found that "it is appropriate that the sentences be served consecutive to one another." Id. The court continued that, while "it is not necessary to go over aggravators and mitigators," because of the level of offenses, the court made "commentary" regarding the sentence. Id. In particular, the court noted that, while the offenses may seem to be "minor crimes," the "impact and devastation and loss of enjoyment of life that the victims experienced is real and is significant." Id. at 51.
[¶13] The court further stated that Spray's "behavior throughout this cause has been manipulative, uncooperative, casually defiant" and that "[e]very time she has the opportunity to modify her behavior, she instead doubles down [at]tempting to create the illusion that she is wronged and that everybody else is incompetent." Id. The court found that her "behavior has overwhelmingly demonstrated that any type of probated sentence would only provide her an opportunity to continue her charade[.]" Id. The court clarified that its sentence "is not a punishment for her behaviors" but that her behaviors explained the court's "rationale for why probation . . . would be inappropriate." Id. The court then sentenced Spray to an executed sentence of 180 days for each count, to be served consecutively. This appeal ensued.
Discussion and Decision
Issue One: Sufficiency of the Evidence
[¶14] Spray first asserts that the State failed to present sufficient evidence to support her convictions. Our standard of review on a claim of insufficient evidence is well settled:
For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the [judgment]. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence. Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[¶15] To demonstrate that Spray committed harassment, the State was required to prove that she, with the intent to harass, annoy, or alarm Ison but with no intent of legitimate communication, made a telephone call, whether or not a conversation ensued. Ind. Code § 35-45-2-2(a)(1). On appeal, Spray does not dispute that she made the phone calls to the DCS hotline. But she asserts that the State failed to prove that she did not intend a legitimate conversation. Specifically, she contends that each phone call "identifies a legitimate concern a mother might have regarding the welfare of her child." Appellant's Br. at 12.
[¶16] However, the evidence most favorable to the jury's verdict demonstrates that, over the course of one year, Spray made repeated phone calls to the DCS hotline alleging that Child was being physically, sexually, and emotionally abused by Ison and his family. Further, following investigations into the allegations, DCS determined that the reports were unsubstantiated, and officers did not pursue criminal action. Indeed, both DCS and officers determined that the allegations lacked merit. In addition, at no point during any phone call did Spray identify herself as Child's mother. Rather, she provided false information to DCS by saying she either did not know who Child's mother was or that she did not know how to contact Child's mother.
[¶17] In other words, Spray made repeated claims that lacked merit while also providing false information to DCS. Based on that evidence, a reasonable factfinder could infer that Spray did not intend to have a legitimate conversation when she made the reports to DCS. Spray's argument is simply a request for us to reweigh the evidence, which we will not do.
[¶18] Still, Spray also contends that the State failed to present sufficient evidence to support her conviction because the statute was implemented "to address repeated calls to a person with the intent to harass, annoy, or alarm the recipient of the call." Id. at 13 (emphasis in original). And because Ison was not the recipient of the call, Spray maintains that she cannot be guilty of having harassed him.
[¶19] However, Spray does not cite any authority to demonstrate that only the person who received the phone call can be harassed. Rather, this Court has stated that "to be criminally liable under the statute, [a defendant] need not have directly transmitted the message to the target of her harassment." McGuire v. State, 132 N.E.3d 438, 443 (Ind.Ct.App. 2019). Further, in order to interpret the statute as Spray asks us to, we would be required to add words to the statute that do not exist. "But is it well settled that we may not add words to a statute which are not the expressed intent of the legislature." Ramey v. Ping, 190 N.E.3d 392, 403 (Ind.Ct.App. 2022). Had the legislature intended to limit harassment only to the recipient of the phone call, it could have said so. But it did not, and we decline to read that limitation into the statute. We therefore affirm Spray's convictions.
Spray cites this Court's opinion in Leuteritz v. State, 534 N.E.2d 265 (Ind.Ct.App. 1989), to support her position. However, nothing in that decision supports Spray's claim that only the recipient of the phone call can be harassed. Rather, that opinion simply found insufficient evidence to support a conviction for harassment when the defendant called his former employer's home and, when the former employer's wife answered, asked to speak with "Diaper Rash Face Charlie." Id. at 266. This Court found that, while discourteous, that statement "was itself a legitimate conversation." Id. at 267. The Court went on to state that it would be pure speculation that "there would have been no legitimate communication" had Leuteritz been able to speak to his former employer. Id.
Issue Two: Sentencing
[¶20] Spray next asserts that the trial court abused its discretion when it sentenced her. Sentencing decisions lie within the sound discretion of the trial court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion occurs if the decision is "clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Gross v. State, 22 N.E.3d 863, 869 (Ind.Ct.App. 2014) (citation omitted).
[¶21] A trial court abuses its discretion in sentencing if it does any of the following:
(1) fails "to enter a sentencing statement at all;" (2) enters "a sentencing statement that explains reasons for imposing a sentence-including a finding of aggravating and mitigating factors if any-but the record does not support the reasons;" (3) enters a sentencing statement that "omits reasons that are clearly supported by the record and advanced for consideration;" or (4) considers reasons that "are improper as a matter of law."Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.), clarified on reh'g on other grounds, 875 N.E.2d 218 (Ind. 2007)).
[¶22] The sentence for a Class B misdemeanor may not exceed 180 days. See I.C. § 35-50-3-3. Here, the trial court made "commentary" regarding the sentence. Tr. Vol. 3 at 50. In particular, the court noted that the "impact and devastation and loss of enjoyment of life that the victims experienced is real and is significant." Id. at 51. The court further noted that Spray's "behavior throughout this cause has been manipulative, uncooperative, [and] casually defiant." Id.
[¶23] On appeal, Spray first asserts that the court relied on an improper aggravator when it "base[d] its sentence primarily on her behavior throughout the trial and not on what was appropriate based on the behavior for which she was tried." Appellant's Br. at 14. But contrary to Spray's assertions, the trial court did not rely on her behavior when it sentenced her to 180 days on each count. Rather, the court clarified that its sentence "is not a punishment for her behaviors" but that her behaviors explained the court's "rationale for why probation . . . would be inappropriate." Tr. Vol. 3 at 51. In other words, the court only referenced her behavior to explain why it would not suspend any of her sentence. We cannot say that the court abused its discretion on this issue.
[¶24] Still, Spray also contends that the court abused its discretion when it did not identify as mitigating circumstances her mental health issues or the fact that she was pregnant. However, the trial court was not required to articulate and balance aggravators and mitigators. See Stewart v. State, 754 N.E.2d 608, 613 (Ind.Ct.App. 2001) (stating that the "statute requires our courts to articulate aggravating and mitigating circumstances only in felonies" and that the "statute excludes misdemeanor sentencing by implication"). As such, we cannot say that the court abused its discretion when it did not identify and balance any alleged mitigators.
Spray also cites Indiana Code Section 35-50-1-2(d)(1) and states that "even for persons who have been convicted of an episode of criminal conduct and whose most serious crime arising out of that episode is a Level 6 felony, the total of their consecutive imprisonment may not exceed four (4) years." However, it is unclear how that statute relates to Spray's sentence, which was based on offenses that were Class B misdemeanors, did not constitute a single episode of criminal conduct, and totaled less than three and one-half years.
In her Statement of the Issues and in her Summary of the Argument, Spray purports to assert that the trial court abused its discretion when it ordered her sentences to run consecutively. However, she does not develop any corresponding argument in her Argument section. As such, any purported claim on that issue is waived. See Ind. Appellate Rule 46(A)(8)(a).
Conclusion
[¶25] The State presented sufficient evidence to support her convictions. And the trial court did not abuse its discretion when it sentenced her. We therefore affirm the trial court's order.
[¶26] Affirmed.
Bradford, J., and Foley, J., concur.