Dusty R. Owens v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 11, 2017
• Docket: 69A05-1612-CR-2903
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 11 2017, 9:40 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana

Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dusty R. Owens, April 11, 2017 Appellant-Defendant, Court of Appeals Case No. 69A05-1612-CR-2903 v. Appeal from the Ripley Superior Court State of Indiana, The Honorable Jeffrey L. Sharp, Appellee-Plaintiff. Judge Trial Court Cause Nos. 69D01-1603-F6-65 69D01-1605-F6-92 69D01-1605-F6-104

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017 Page 1 of 9 Case Summary [1] On August 29, 2016, Appellant-Defendant Dusty R. Owens pled guilty to Level

6 felony escape under Cause Number 69D01-1603-F6-65 (“Cause No. F6-65”),

Level 6 felony battery with moderate bodily injury and Level 6 felony

intimidation under Cause Number 69D01-1605-F6-92 (“Cause No. F6-92”),

and Level 6 felony battery with moderate bodily injury under Cause Number

69D01-1605-F6-104 (“Cause No. F6-104”). The trial court accepted Owens’s

guilty pleas, and, on September 27, 2016, sentenced Owens to an aggregate

term of seven and one-half years imprisonment. In this consolidated appeal,

Owens contends that his aggregate seven-and-one-half-year sentence is

inappropriate in light of the nature of his offenses and his character. We affirm.

Facts and Procedural History [2] This consolidated appeal involves the appropriateness of the aggregate sentence

imposed in connection with four separate offenses which were charged under

three separate cause numbers.

A. Cause No. F6-65 [3] Owens has previously been convicted of felony sexual battery with a victim

who was mentally disabled or deficient or was otherwise unable to consent and

misdemeanor resisting law enforcement. In connection with these offenses,

Owens was released from parole and placed on home detention on February

27, 2016. On March 16, 2016, Owens removed the electronic monitoring

Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017 Page 2 of 9 device that had been placed on his ankle as part of his placement on home

detention. Owens indicated that he knew that cutting off his ankle bracelet

would be a violation of the terms of his home detention but that he “cut off his

ankle bracelet because he just wanted to do his backup time.” Appellant’s App.

Vol. II Confidential, p. 68. Owens was subsequently re-arrested and placed in

the Ripley County Jail.

B. Cause No. F6-92 [4] On April 15, 2016, while in custody at the Ripley County Jail following his

arrest for escape, Owens battered Noah Davidson, a fellow inmate, over an

alleged gambling debt. On that date, Officer Jacob Werner, who was employed

by the Ripley County Sheriff’s Department as a jail officer, observed that a

camera focused on the general population had been covered up. When the

camera was uncovered, Officer Werner observed Owens “beat his chest” and

“throwing around some property, which ended up being Noah Davidson’s.”

Tr. p. 32.

[5] Officer Werner responded to the cell block where Davidson and Owens were

gathered. Officer Werner then observed that Davidson had been “beat up” and

“had bruises, cuts, [and] scrapes on his face.” Tr. p. 32. Officer Werner and

another officer observed the Owens had blood on his knuckles. Owens denied

being involved in the altercation. He claimed that his knuckles were bloody

because he had been on the phone with his girlfriend, learned that his girlfriend

had cheated on him, and punched the wall. Officer Werner did not believe

Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017 Page 3 of 9 Owens’s claim, as he had observed video which indicated that Owens had

participated in the altercation.

[6] During Officer Werner’s investigation into the altercation, Owens forcibly

pulled away from Officer Werner when Officer Werner instructed Owens to

follow him to an isolation cell. Owens hesitated, saying that “he is not locking

down and [that] he is innocent until proven guilty.” Tr. p. 33. Owens also

failed to comply with Officer Werner’s subsequent instructions to back up so

that another inmate could gather his belongings. In refusing to follow Officer

Werner’s instructions, Owens punched a door frame and began cussing at

Officer Werner. Owens looked toward Officer Werner and said “F[***] you

mother f[*****].” Tr. p. 35. Owens then proceeded to drop his pants, expose

his genitals to Officer Werner, and tell Officer Werner “to suck his f[******]

d[***].” Tr. p. 35. Owens continued to ignore Officer Werner’s instructions

and “stepped forward towards” Officer Werner. Tr. p. 35. Officer Werner

considered this to be threatening behavior and eventually deployed his taser on

Owens.

[7] The following night, Owens again failed to follow instructions from Officer

Werner and the other jail officers. During this encounter, Owens became

agitated and told Officer Werner that “I am going to smash your girl up Jake

just for the fun of it.” Tr. p. 37. Owens then proceeded to inform Officer

Werner that he knew where Officer Werner lived and that Officer Werner and

his girlfriend lived together.

Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017 Page 4 of 9 C. Cause No. F6-104 [8] On May 12, 2016, Owens again engaged in a physical altercation with

Davidson. This altercation again resulted in injury to Davidson. With respect

to the batteries of Davidson, Owens showed no remorse and indicated that

“someone is not going to punk me out.” Appellant’s App. Vol. II Confidential,

p. 68. Owens also acknowledged that he was not under the influence of drugs

when he committed either of the batteries against Davidson.

D. Guilty Pleas and Sentencing [9] On March 30, 2016, Appellee-Plaintiff the State of Indiana (“the State”)

charged Owens under Cause No. F6-65 with Level 6 felony escape. On May 2,

2016, the State charged Owens under Cause No. F6-92 with Level 6 felony

conspiracy to commit battery with moderate bodily injury, Level 6 felony

battery with moderate bodily injury, and Level 6 felony intimidation. On May

17, 2016, the State charged Owens under Cause No. F6-104 with Level 6 felony

battery with moderate bodily injury. On August 29, 2016, Owens pled guilty to

the following charges: (1) Level 6 felony escape under Cause No. F6-65, (2)

Level 6 felony battery with moderate bodily injury and Level 6 felony

intimidation under Cause No. F6-92, and (3) Level 6 felony battery with

moderate bodily injury under Cause No. F6-104.

[10] The trial court accepted Owens’s guilty pleas and, on September 27, 2016,

conducted a consolidated sentencing hearing. At the conclusion of the hearing,

the trial court made a detailed sentencing statement which is summarized as

Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017 Page 5 of 9 follows: (1) Owens’s poor childhood and drug addiction were mitigating

factors; (2) prior attempts to place Owens in drug treatment centers were

unsuccessful; (3) Owens has a high level of criminal thinking as is reflected by

the fact that he has been categorized as a very high risk to reoffend; (4) Owens’s

criminal history dates back to when he was a juvenile and includes numerous

juvenile arrests, at least one juvenile adjudication, and multiple adult

convictions; (5) Owens has previously violated the terms of his probation on at

least four different occasions; (6) both the April 15, 2016 altercation and the

May 12, 2016 altercation were unprovoked attacks on a fellow inmate and

occurred while Owens was in jail following his decision to violate the terms of

his home detention by cutting his GPS tracking device off of his ankle; (7) the

fact that the two unprovoked attacks occurred while Owens was incarcerated

was an aggravating factor; (8) Owens’s character was an aggravating factor; and

(9) Owens failed to follow the instructions of jail officers on numerous

occasions, going as far as telling Officer Werner to “suck my [d***], [f***]

you,” and exposing himself to Officer Werner. Tr. p. 47.

[11] The trial court sentenced Owens to an aggregate seven-and-one-half year term

of imprisonment. In imposing this sentence, the trial court found that Owens

was an extreme danger to himself and to the community. The trial court also

found that there was an extremely high likelihood that Owens would reoffend.

Discussion and Decision

Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017 Page 6 of 9 [12] Owens contends that his aggregate seven-and-one-half year sentence is

inappropriate. In challenging the appropriateness of his sentence, Owens

asserts that his sentence is inappropriate because at the age of twenty, he “still

suffers from the impetuousness of youth.” Appellant’s Br. p. 9. Owens also

asserts that his sentence is inappropriate because neither the nature of his

offenses nor his character “warrant so much time in prison.” Appellant’s Br. p.

8. We disagree.

[13] Indiana Appellate Rule 7(B) provides that “The Court may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, the

Court finds that the sentence is inappropriate in light of the nature of the offense

and the character of the offender.” In analyzing such claims, we “‘concentrate

less on comparing the facts of [the case at issue] to others, whether real or

hypothetical, and more on focusing on the nature, extent, and depravity of the

offense for which the defendant is being sentenced, and what it reveals about

the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.

denied). The defendant bears the burden of persuading us that his sentence is

inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).

[14] With respect to the nature of Owens’s offenses, the record reveals that Owens

knowingly and intentionally violated the terms of his home detention by cutting

off his GPS monitoring device. Owens subsequently explained that he did so

because he “just wanted to do his backup time.” Appellant’s App. Vol. II

Confidential, p. 68. Once back in jail, Owens engaged in an altercation with

Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017 Page 7 of 9 another inmate who he claimed owed him money. Owens initially denied

involvement in this altercation despite video evidence showing otherwise.

Further, while jail officials were investigating the altercation, Owens proceeded

to verbally abuse and intimidate one of the jail officers. Specifically, Owens

yelled obscenities at the officer, exposed himself to the officer, gave the officer

vulgar and explicit directions, and angrily walked toward the officer when

instructed to step back. In addition, the next day, Owens made a threat to the

same officer involving the officer’s girlfriend. Approximately one month later,

Owens again engaged in a physical altercation with the same fellow inmate

who was involved in the prior altercation. Owens did not show any remorse for

either altercation, but explained that “someone is not going to punk me out.”

Appellant’s App. Vol. II Confidential, p. 68.

[15] As for Owens’s character, the record reveals that Owens has a criminal history

that includes juvenile adjudications, misdemeanor and felony convictions, and

numerous prior probation violations. Owens’s contact with the criminal justice

system dates back to when he was approximately eight years old. He had

numerous interactions with the criminal justice system as a juvenile, including

at least one juvenile adjudication. As an adult, Owens has been charged with

and convicted of felony sexual battery with a victim who was mentally disabled

or deficient or was otherwise unable to consent and Class A misdemeanor

resisting law enforcement.

[16] In addition, previous requests for leniency in the form of drug treatment have

not been successful. Owens’s criminal history also includes numerous

Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017 Page 8 of 9 probation violations. It is also of note that probation would not seem to be a

viable alternative for Owens given that he committed one of the instant

offenses, the Level 6 felony escape charge, by cutting off his home detention

monitor because “he just wanted to do his backup time.” Appellant’s App. Vol.

II Confidential, p. 68.

[17] Owens’s criminal history indicates that he has not only a disdain for the

criminal justice system, but also a disdain for the rights and safety of others.

The trial court specifically noted this disdain for the rights and safety of others,

finding that Owens was an extreme danger to both himself and the community.

Moreover, the Ripley County Probation Department indicated that a risk

assessment of Owens placed him “in the VERY HIGH risk category to

reoffend.” Appellant’s App. Vol. II Confidential, p. 69. Further, we are

unconvinced by Owens’s apparent attempt to justify his actions by claiming that

he “still suffers from the impetuousness of youth.” Appellant’s Br. p. 9. Given

the totality of the facts and circumstances before us in this consolidated appeal,

we conclude that Owens has failed to prove that his sentence is inappropriate in

light of the nature of his offenses and his character.

[18] The judgment of the trial court is affirmed.

Najam, J., and Riley, J., concur.

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