Pursuant to Ind.Appellate Rule 65(D), this Aug 08 2013, 5:30 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY L. FUMAROLO GREGORY F. ZOELLER Fort Wayne, Indiana Attorney General of Indiana
CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JEFFREY G. TOURNEY, ) ) Appellant-Defendant, ) ) vs. ) No. 02A03-1211-CR-503 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Wendy W. Davis, Judge Cause No. 02D05-1206-FD-801
August 8, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, Jeffrey G. Tourney (Tourney), appeals his sentence for
Counts I and II, criminal mischief, Class D felonies, Ind. Code § 35-43-1-2; and Counts
III-VII, cruelty to an animal, Class A misdemeanors, I.C. § 35-46-3-7.
We affirm.
ISSUES
Tourney raises one issue on appeal, which we restate as follows: Whether
Tourney’s sentence was inappropriate in light of the nature of the offense and the
character of the offender.
FACTS AND PROCEDURAL HISTORY
On March 1, 2012, a neighborhood resident contacted the Fort Wayne Animal
Care and Control Department (FWACC), reporting that abandoned cats were located at
908 Elmer Street in Fort Wayne, Indiana. FWACC Officer J. Schmeling (Officer
Schmeling) was dispatched to investigate. When he arrived and looked through the
windows, Officer Schmeling observed multiple cats and a large amount of feces inside
the residence. Due to the strong odor emanating from the house, Officer Schemling
believed that there could be human and/or animal remains located inside and called the
Fort Wayne Police Department.
Shortly thereafter, it was discovered that Constance Anderson (Anderson) along
with her fiancé, Tourney, were responsible for the cats. Police officers contacted
Anderson, and she consented to a search of the property. Officers entered the residence 2 but were unable to stay inside because of the overwhelming smell of cat urine. Due to
the suspected high ammonia levels from the cat urine, the Fort Wayne Fire Department
was contacted to test the air quality inside the residence. While normal air quality
contains thirty-five parts per million of ammonia, the FWACC testing indicated levels in
excess of four times that amount. The residence had to be ventilated for two weeks before
the ammonia levels were reduced to safe limits to recover the cats.
Between sixty-six and eighty-five cats were removed from the residence and later
euthanized. The cats were emaciated and in poor condition. Due to the fact that Tourney
and Anderson did not supply enough food for the cats, the cats began to eat each other
and their young when they reproduced. At some point in time, Tourney or Anderson
entered the residence, discovered partially eaten kittens or cats, wrapped the remains, and
stored them in the refrigerator and freezer. Sixteen dead kittens were found in the
freezer, and a cat skull was also recovered from the kitchen floor. Some dead kittens
were in pieces, while others appeared to have been struck with a blunt object. Urine
soaked into the walls of the first floor and had seeped into the floorboards that divided the
first floor and basement. Based on the amount of feces, urine, and overall damage to the
residence, it was condemned. The property had been valued at $45,000 before Tourney
and Anderson rented it.
On March 13, 2012, the owner of a different property rented by Tourney and
Anderson on St. Mary’s Avenue in Fort Wayne, contacted FWACC because of a strong
smell of cat urine emanating from inside the residence. Once again, Tourney and
3 Anderson were contacted and consented to a search. Twenty-three live cats and twenty-
one deceased cats and kittens were discovered. The property required $13,000 in
renovations due to damage caused by the cats. In total, 108 live cats were discovered at
the two properties, and thirty-seven dead kittens or cats were discovered in the
refrigerator or freezer. All but five of them had to be euthanized due to their lack of
socialization and health issues.
On March 14, 2012, Tourney met with the authorities and gave a statement. He
stated that he and Anderson moved into the Elmer Street residence approximately six
years ago. Both he and Anderson cared for the cats up until approximately two years ago
when he gave up. Tourney stated that he could not continue caring for the cats as the
“conditions were horrible and the house was bad.” (Appellant’s App. p. 26). Tourney
acknowledged that he knew there were deceased cats at both Elmer Street and the St.
Mary Avenue residences, and that both he and Anderson continued living at both
locations together and knew the conditions in each home.
It was later revealed that Tourney was the handyman for both the Elmer Street and
St. Mary’s Avenue properties. Tourney and Anderson had been approached previously
by the property owners and asked to remove the cats. Tourney and Anderson assured the
owners they would, but they did not do so.
On June 12, 2012, the State filed an Information charging Tourney with Counts I
and II, criminal mischief, Class D felonies, Ind. Code § 35-43-1-2; Counts III-VII, animal
cruelty, Class A misdemeanor, I.C. §35-46-3-7. On October 18, 2012, Tourney pled
4 guilty to all charges without the benefit of a plea agreement. On October 29, 2012, the
trial court sentenced Tourney to three years on Count I and three years on Count II with
one and a half years suspended to probation on each Count. With regards to Counts III
through VII, Tourney was sentenced to one year on each Count. All Counts were to be
served concurrently at the Department of Correction. Additionally, Tourney was ordered
to pay restitution in the amount of $919.20 to the Fort Wayne Fire Department; $58,000
to the property owners; and $590.30 to FWACC.
Tourney now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Tourney contends that the sentence imposed by the trial court was inappropriate in
light of the nature of the offense and the character of the offender. Although a trial court
may have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4
and 6 of the Indiana Constitution authorize independent appellate review and revision of
sentences through Indiana Appellate Rule 7(B), which states that a 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. See Ind. App. Rule 7(B). Under this rule, the burden is on the
defendant to persuade the appellate court that his sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006). Moreover, the underlying question is not
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Pursuant to Ind.Appellate Rule 65(D), this Aug 08 2013, 5:30 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY L. FUMAROLO GREGORY F. ZOELLER Fort Wayne, Indiana Attorney General of Indiana
CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JEFFREY G. TOURNEY, ) ) Appellant-Defendant, ) ) vs. ) No. 02A03-1211-CR-503 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Wendy W. Davis, Judge Cause No. 02D05-1206-FD-801
August 8, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, Jeffrey G. Tourney (Tourney), appeals his sentence for
Counts I and II, criminal mischief, Class D felonies, Ind. Code § 35-43-1-2; and Counts
III-VII, cruelty to an animal, Class A misdemeanors, I.C. § 35-46-3-7.
We affirm.
ISSUES
Tourney raises one issue on appeal, which we restate as follows: Whether
Tourney’s sentence was inappropriate in light of the nature of the offense and the
character of the offender.
FACTS AND PROCEDURAL HISTORY
On March 1, 2012, a neighborhood resident contacted the Fort Wayne Animal
Care and Control Department (FWACC), reporting that abandoned cats were located at
908 Elmer Street in Fort Wayne, Indiana. FWACC Officer J. Schmeling (Officer
Schmeling) was dispatched to investigate. When he arrived and looked through the
windows, Officer Schmeling observed multiple cats and a large amount of feces inside
the residence. Due to the strong odor emanating from the house, Officer Schemling
believed that there could be human and/or animal remains located inside and called the
Fort Wayne Police Department.
Shortly thereafter, it was discovered that Constance Anderson (Anderson) along
with her fiancé, Tourney, were responsible for the cats. Police officers contacted
Anderson, and she consented to a search of the property. Officers entered the residence 2 but were unable to stay inside because of the overwhelming smell of cat urine. Due to
the suspected high ammonia levels from the cat urine, the Fort Wayne Fire Department
was contacted to test the air quality inside the residence. While normal air quality
contains thirty-five parts per million of ammonia, the FWACC testing indicated levels in
excess of four times that amount. The residence had to be ventilated for two weeks before
the ammonia levels were reduced to safe limits to recover the cats.
Between sixty-six and eighty-five cats were removed from the residence and later
euthanized. The cats were emaciated and in poor condition. Due to the fact that Tourney
and Anderson did not supply enough food for the cats, the cats began to eat each other
and their young when they reproduced. At some point in time, Tourney or Anderson
entered the residence, discovered partially eaten kittens or cats, wrapped the remains, and
stored them in the refrigerator and freezer. Sixteen dead kittens were found in the
freezer, and a cat skull was also recovered from the kitchen floor. Some dead kittens
were in pieces, while others appeared to have been struck with a blunt object. Urine
soaked into the walls of the first floor and had seeped into the floorboards that divided the
first floor and basement. Based on the amount of feces, urine, and overall damage to the
residence, it was condemned. The property had been valued at $45,000 before Tourney
and Anderson rented it.
On March 13, 2012, the owner of a different property rented by Tourney and
Anderson on St. Mary’s Avenue in Fort Wayne, contacted FWACC because of a strong
smell of cat urine emanating from inside the residence. Once again, Tourney and
3 Anderson were contacted and consented to a search. Twenty-three live cats and twenty-
one deceased cats and kittens were discovered. The property required $13,000 in
renovations due to damage caused by the cats. In total, 108 live cats were discovered at
the two properties, and thirty-seven dead kittens or cats were discovered in the
refrigerator or freezer. All but five of them had to be euthanized due to their lack of
socialization and health issues.
On March 14, 2012, Tourney met with the authorities and gave a statement. He
stated that he and Anderson moved into the Elmer Street residence approximately six
years ago. Both he and Anderson cared for the cats up until approximately two years ago
when he gave up. Tourney stated that he could not continue caring for the cats as the
“conditions were horrible and the house was bad.” (Appellant’s App. p. 26). Tourney
acknowledged that he knew there were deceased cats at both Elmer Street and the St.
Mary Avenue residences, and that both he and Anderson continued living at both
locations together and knew the conditions in each home.
It was later revealed that Tourney was the handyman for both the Elmer Street and
St. Mary’s Avenue properties. Tourney and Anderson had been approached previously
by the property owners and asked to remove the cats. Tourney and Anderson assured the
owners they would, but they did not do so.
On June 12, 2012, the State filed an Information charging Tourney with Counts I
and II, criminal mischief, Class D felonies, Ind. Code § 35-43-1-2; Counts III-VII, animal
cruelty, Class A misdemeanor, I.C. §35-46-3-7. On October 18, 2012, Tourney pled
4 guilty to all charges without the benefit of a plea agreement. On October 29, 2012, the
trial court sentenced Tourney to three years on Count I and three years on Count II with
one and a half years suspended to probation on each Count. With regards to Counts III
through VII, Tourney was sentenced to one year on each Count. All Counts were to be
served concurrently at the Department of Correction. Additionally, Tourney was ordered
to pay restitution in the amount of $919.20 to the Fort Wayne Fire Department; $58,000
to the property owners; and $590.30 to FWACC.
Tourney now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Tourney contends that the sentence imposed by the trial court was inappropriate in
light of the nature of the offense and the character of the offender. Although a trial court
may have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4
and 6 of the Indiana Constitution authorize independent appellate review and revision of
sentences through Indiana Appellate Rule 7(B), which states that a 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. See Ind. App. Rule 7(B). Under this rule, the burden is on the
defendant to persuade the appellate court that his sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006). Moreover, the underlying question is not
whether another sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
5 The trial court is far better situated than the appellate court to assess nature of
offenses, character of offender, and offender’s need for long-term treatment in a penal
facility, and to assess appropriateness of enhanced sentences or consecutive sentences on
that basis. Allen v. State, 722 N.E.2d 1246, 1258 (Ind. Ct. App. 2000). The “nature of
offense compares the defendant’s actions with the required showing to sustain a
conviction under the charged offense.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). The “character of the offender” allows for a broader consideration of the
defendant’s character. Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007).
With respect to the nature of the offense, we assess Tourney’s conduct with the
requirements to sustain a conviction under the charged offense. Tourney was convicted
of criminal mischief, which required the State to prove that he recklessly, knowingly, or
intentionally damaged the properties, without consent and caused pecuniary loss of at
least $2,500.00. See I.C. § 35-43-1-2. Tourney was aware of the state of the property, as
Tourney advised that he could not continue caring for the cats as the “conditions were
horrible and the house was bad.” (Appellant’s App. p. 26). Neither landlord consented
to Tourney’s method of housing and maintaining the cats. Tourney and Anderson caused
extensive damage amounting to $45,000 in damages to the Elmer Street property and
$13,358.11 in damages to the St. Mary’s Avenue property.
Tourney’s animal cruelty convictions required the State to prove that Tourney
recklessly, knowingly, or intentionally abandoned or neglected an animal by restraining it
in a manner that seriously endangered the animal’s life or health. See I.C. § 35-46-3-7.
6 Tourney and Anderson resided at the Elmer Street property in 2006; however, they left
the property around 2010 due to its neglected state. There, approximately eighty-five
cats were left without adequate nourishment. The air quality test showed ammonia levels
four times higher than the expected amount for a safe living space. Around thirty-seven
dead cats were kept in their refrigerators and freezers. As a consequence of Tourney and
Anderson’s neglect, another 103 cats had to be euthanized.
With respect to the character of the offender, the record indicates that Tourney was
a trusted employee of the property owners. When Tourney was told to remove the cats
from the properties, he pretended to do so and gave assurance that he had done so. Yet,
Tourney continued to keep cats on the properties and never remedied the situation.
Finally, Tourney has had two prior misdemeanor convictions including an
operating while intoxicated and a criminal conversion charge. Based upon our review,
we see nothing in the nature of the offense or in the character of the offender to lead us to
conclude that Tourney’s sentence is inappropriate.
CONCLUSION
Based on the foregoing, we conclude that Tourney’s sentence was not
inappropriate in light of the nature of the offense and the character of the offender.
Affirmed.
BRADFORD, J. and BROWN, J. concur