Simms v. State

Citations: 791 N.E.2d 225; 2003 Ind. App. LEXIS 1213; 2003 WL 21540390Docket: 20A05-0207-CR-310

Court: Indiana Court of Appeals; July 9, 2003; Indiana; State Appellate Court

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Michael Anthony Simms was convicted of stalking, a Class B felony, following a series of threatening behaviors towards his estranged wife, Heather Simms. The couple, married in 1997 and parents to two young children, faced significant marital strife due to Simms' violent tendencies, prompting Heather to seek a divorce in March 2001 and obtain a temporary protective order against him. Following the divorce filing, Heather began receiving threatening phone calls from Simms, including one where he threatened to kill her.

In April 2001, after Heather found numerous threatening messages on her answering machine, she took her children and sought refuge at her mother’s house, later staying with friends. Despite her efforts to distance herself, Simms continued to leave threats until she changed her phone number. The situation escalated on October 2, 2001, when Simms confronted Heather outside her mother’s house, brandished a firearm, and fired multiple shots at her as she attempted to enter her truck. This incident led to charges of attempted murder and stalking against Simms. The court affirmed the stalking conviction and addressed Simms' appeals regarding the sufficiency of evidence, potential double jeopardy concerns with a prior sentence for violating the protective order, and the propriety of his sentencing.

From May 6 to May 11, 2002, Simms was tried before a jury, which could not reach a verdict on attempted murder but convicted him of stalking, a Class B felony. On June 6, 2002, Simms was sentenced to the maximum of twenty years in the Department of Correction due to aggravating circumstances. Simms is appealing this conviction, arguing that the evidence was insufficient to support his stalking charge while armed with a deadly weapon. 

In reviewing his claim, the court emphasizes that it does not reweigh evidence or assess witness credibility, but instead considers the evidence favorably to the verdict. Indiana law defines stalking as a knowing or intentional pattern of repeated harassment that causes a reasonable person to feel terrorized, frightened, or threatened.

To uphold the Class B felony conviction, the State needed to prove beyond a reasonable doubt that Simms knowingly or intentionally engaged in such conduct while armed. Simms contends the State failed to show that Heather felt terrorized, which he claims is essential for the stalking charge. However, the evidence presented included numerous threatening and violent messages left by Simms on Heather's answering machine following her divorce filing. Heather testified to almost seven hours of these messages and described feeling scared, particularly highlighting one message where Simms threatened to take her severed head to the police station. This testimony substantiated her feelings of being threatened and intimidated, supporting the conviction.

Heather filed for divorce in March 2001 and obtained a temporary protective order against Simms due to his harassing phone calls and threats, which were later made permanent in April 2001. Simms had threatened her life multiple times, both in messages and in front of family. In response, Heather took her children to stay with her mother and lived with a friend to avoid Simms, fearing for her safety. She took precautions like buying a new car and obtaining an unlisted phone number to protect herself and her children. The jury inferred that Heather felt terrorized, which supported the State's case for stalking as a Class B felony.

Simms challenged the sufficiency of evidence for his conviction, arguing that messages left on Heather's answering machine after she moved out should not count as harassment. This argument was deemed waived due to lack of legal support and was considered meritless since Heather's absence was a direct result of Simms' threats. Furthermore, even without the post-April 3 messages, there was sufficient evidence of Simms' ongoing harassment to uphold the conviction.

Simms also claimed that his stalking conviction and a prior sentence for violating a protective order constituted double jeopardy. However, the court found that the two offenses had distinct elements and that the evidence for each did not overlap, thereby rejecting the double jeopardy claim. The legal standards referenced include Indiana Code I.C. 35-45-10-1 and -5 regarding stalking and I.C. 35-45-10-2 for harassment.

Indirect contempt of court requires the trial court to establish that Simms willfully disobeyed a protective order issued by the court, which was served upon him. To convict Simms of stalking, classified as a Class B felony, the State needed to prove beyond a reasonable doubt that Simms knowingly or intentionally engaged in repeated harassment of Heather while armed, which caused her to feel terrorized. Each offense has distinct essential elements, indicating no double jeopardy violation under the statutory elements test. The actual evidence test examines whether separate facts support each offense. Simms failed to demonstrate a reasonable possibility that evidence for one offense overlapped with the other. The contempt charge was based on an incident on September 1, 2001, where Simms threatened Heather’s stepfather with a knife, while the stalking charge stemmed from a separate incident on October 2, 2001, when Simms fired a gun at Heather. The State's evidence for stalking included distinct instances of harassment, and the September 1 incident was not part of the prosecution's case-in-chief, being only mentioned later to impeach Simms’ testimony. Thus, there is no double jeopardy. Regarding sentencing, Simms contends the twenty-year sentence is manifestly unreasonable, but current reviews follow the appropriateness standard under App. R. 7(B).

Rule 7(B) establishes that Indiana courts may review and revise sentences only if deemed inappropriate based on the offense's nature and the offender's character. Simms argues that his sentence was improperly enhanced due to insufficient consideration of three mitigating factors: his lack of felony convictions, non-violent criminal history, and a head injury contributing to his anger-management issues. However, the trial court is not obligated to recognize mitigating circumstances presented by the defendant. It viewed Simms' misdemeanor convictions as aggravating, indicating a disregard for the law, which the court deemed acceptable. The trial court acknowledged Simms' head injury and treatment for explosive disorder as mitigating but maintained discretion over the weight of these factors. Simms also claimed that the trial court did not consider provocation, arguing that his partner's actions incited his anger. However, since he did not raise provocation during sentencing, it is not considered significant on appeal. Ultimately, the court confirmed that there was no abuse of discretion in the trial court's sentencing decisions, affirming the appropriateness of the sentence relative to the offense and offender.

Trial courts must begin sentencing by considering the presumptive sentence for the crime, followed by an evaluation of aggravating and mitigating factors as outlined in I.C. 35-38-1-7.1(a). When imposing an enhanced sentence, the court must identify significant factors and articulate the reasons behind their classification as aggravating or mitigating. In the case of Simms, convicted of stalking—a Class B felony with a presumptive sentence of ten years—the court sentenced him to the maximum of twenty years due to several aggravating factors: his criminal history, pending harassment cases, violations of a restraining order, the use of a handgun, violent tendencies, and injuring a pet dog. The trial court acknowledged three mitigating circumstances but concluded that the aggravating factors substantially outweighed them, justifying the enhanced sentence. Simms argued that maximum sentences should be reserved for the worst offenders, asserting that he did not qualify. However, the review found no abuse of discretion in the trial court's balancing of factors, affirming the appropriateness of the sentence given the nature of the offense and the offender's character. The conviction for stalking and contempt of court for violating a protective order were also deemed not to constitute double jeopardy. The appellate review applied the amended standard effective January 1, 2003, despite the sentence being imposed earlier.

Simms raises a Fifth Amendment double-jeopardy claim but fails to present a coherent argument, resulting in the claim being waived under Appellate Rule 46(A)(8)(a). Even if not waived, the Federal double-jeopardy analysis using the Blockberger test aligns with Indiana's statutory elements analysis as established in Richardson, indicating no violation of either standard. The 40 to 50 threatening messages Simms left on Heather's answering machine were crucial for proving the stalking charge, classified as a Class B felony, and therefore cannot be considered as an aggravating factor. However, the severity of Simms' threat to place Heather's severed head at the police station is deemed an appropriate aggravating factor. Additionally, while Simms' handgun was integral to the stalking charge, its discharge in a residential area, posing a danger to bystanders, constitutes a valid aggravating circumstance related to the offense's nature.