John Browning, Jr. v. State of Indiana (mem. dec.) ( 2017 )


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  • 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
    

Document Info

Docket Number: 15A04-1605-CR-1063

Filed Date: 3/28/2017

Precedential Status: Precedential

Modified Date: 3/28/2017