MEMORANDUM DECISION                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                           Feb 28 2018, 10:06 am

this Memorandum Decision shall not be                                 CLERK
                                                                  Indiana Supreme Court
regarded as precedent or cited before any                            Court of Appeals
                                                                       and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                        Curtis T. Hill, Jr.
Brooke Smith                                             Attorney General of Indiana
Indianapolis, Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Dustin Scott Anthony Devers,                             February 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A04-1708-CR-1749
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Kelli Fink,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1701-F5-575



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A04-1708-CR-1749 | February 28, 2018   Page 1 of 9
                                               Case Summary


[1]   Following a jury trial, Dustin Devers was convicted of Level 5 felony

      intimidation, and he subsequently admitted to being a habitual offender.

      Devers presents the following issues on appeal:


              1. Did the State commit prosecutorial misconduct rising to the
              level of fundamental error?


              2. Is Devers’s sentence inappropriate in light of the nature of the
              offense and his character?


[2]   We affirm.


                                       Facts & Procedural History


[3]   On January 28, 2017, Edward Brandt called 911 and reported that Devers was

      inside an Evansville home, armed with a knife, and had threatened the lives of

      all of the home’s occupants. Officer John Matthews of the Evansville Police

      Department was the first to respond to the dispatch. Officer Matthews

      approached the home and found the interior side door open and the screen door

      closed. As he approached, Officer Mathews could hear a male voice yelling

      and arguing with someone. Once he reached the door, Officer Mathews could

      see inside the home and saw Devers and a younger woman, later identified as

      Devers’s girlfriend, Lindsay Clark, sitting at a kitchen table. An older woman,

      later identified as Devers’s grandmother, Donna Devers (Donna), was standing

      behind Clark. None of the people inside noticed Officer Matthews, and he

      continued to observe the situation unfold as he waited for backup to arrive.
      Court of Appeals of Indiana | Memorandum Decision 82A04-1708-CR-1749 | February 28, 2018   Page 2 of 9
[4]   Devers continued to argue and shout at Clark while Donna tried to calm him

      down. Devers then grabbed a knife and said to Clark, “okay, are you ready for

      this? I’m going to ram this through your head, and I’m going to go away for a

      long time.” Transcript Vol. 2 at 16. Devers then held the knife up to Clark’s

      throat. At about that time, several backup officers arrived, and while the

      officers were formulating a plan, Devers somehow fell to the ground. The

      officers then entered the home and Officer Matthews used his taser to subdue

      Devers, allowing the other officers to take him into custody.


[5]   As a result of these events, the State charged Devers with Level 5 felony

      intimidation and filed a habitual offender allegation. A jury trial was held on

      June 7, 2017, at the conclusion of which the jury found Devers guilty of

      intimidation. Thereafter, Devers admitted the habitual offender allegation.

      Following a hearing, Devers was sentenced to six years for Level 5 felony

      intimidation, enhanced by four years based on the habitual offender

      adjudication. Devers now appeals.


                                       1. Prosecutorial Misconduct


[6]   Devers first argues that the State’s comments in closing argument amounted to

      prosecutorial misconduct. Conceding that he failed to properly preserve this

      issue, Devers argues that the prosecuting attorney’s allegedly improper

      statements resulted in fundamental error.


              In reviewing a claim of prosecutorial misconduct properly raised
              in the trial court, we determine (1) whether misconduct occurred,
              and if so, (2) “whether the misconduct, under all of the
      Court of Appeals of Indiana | Memorandum Decision 82A04-1708-CR-1749 | February 28, 2018   Page 3 of 9
              circumstances, placed the defendant in a position of grave peril to
              which he or she would not have been subjected” otherwise. . . .
              To preserve a claim of prosecutorial misconduct, the defendant
              must—at the time the alleged misconduct occurs—request an
              admonishment to the jury, and if further relief is desired, move
              for a mistrial.


              Our standard of review is different where a claim of prosecutorial
              misconduct has been procedurally defaulted for failure to
              properly raise the claim in the trial court, that is, waived for
              failure to preserve the claim of error. The defendant must
              establish not only the grounds for prosecutorial misconduct but
              must also establish that the prosecutorial misconduct constituted
              fundamental error. Fundamental error is an extremely narrow
              exception to the waiver rule where the defendant faces the heavy
              burden of showing that the alleged errors are so prejudicial to the
              defendant’s rights as to “make a fair trial impossible.” In other
              words, to establish fundamental error, the defendant must show
              that, under the circumstances, the trial judge erred in not sua
              sponte raising the issue because alleged errors (a) “constitute
              clearly blatant violations of basic and elementary principles of
              due process” and (b) “present an undeniable and substantial
              potential for harm.” . . . Fundamental error is meant to permit
              appellate courts a means to correct the most egregious and
              blatant trial errors that otherwise would have been procedurally
              barred, not to provide a second bite at the apple for defense
              counsel who ignorantly, carelessly, or strategically fail to preserve
              an error.


      Ryan v. State, 9 N.E.3d 663, 667-69 (Ind. 2014) (citations, footnotes, and

      emphasis omitted).


[7]   At trial, Donna testified that Devers never threatened Clark, and that he had

      instead held the knife to his own throat and threatened suicide. On cross-


      Court of Appeals of Indiana | Memorandum Decision 82A04-1708-CR-1749 | February 28, 2018   Page 4 of 9
      examination, the State elicited Donna’s testimony that she loved her grandson

      and would do “just about anything” for him. Transcript Vol. 2 at 99. Further, in

      closing arguments, the State asserted that the accounts given by Donna and

      Officer Matthews were irreconcilable, and that one of them must be lying. The

      State went on to ask the jury to consider Donna’s relationship with Devers and

      whether she would lie to protect him. Specifically, the prosecuting attorney

      stated:


                Obviously, that’s his grandmother, the defendant’s grandmother,
                and honestly my grandmother, if I asked her to, which I would
                never ask her to do this, but if I asked her to, I’m sure that she
                would lie under oath for me, and I don’t blame her frankly. I
                think that a grandmother is going to do anything that they can
                for their grandsons . . . .


      Id. at 112. The State argued further that Donna’s testimony was not credible

      because it conflicted with Brandt’s 911 call, in which he reported that Devers

      had threatened to kill everyone in the house. Devers argues that these

      statements were improper comments on Donna’s truthfulness, and amounted to

      prosecutorial misconduct rising to the level of fundamental error. We disagree.


[8]   It is well settled that a prosecutor may properly comment on the credibility of a

      witness as long as the assertions are based on reasons arising from the evidence.

      Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). In closing arguments, a

      prosecutor may state and discuss the evidence and reasonable inferences

      flowing therefrom so long as there is no implication of personal knowledge



      Court of Appeals of Indiana | Memorandum Decision 82A04-1708-CR-1749 | February 28, 2018   Page 5 of 9
       independent of the evidence. Hobson v. State, 675 N.E.2d 1090, 1096 (Ind.

       1996).


[9]    Nothing about the prosecuting attorney’s comments suggested personal

       knowledge independent of the evidence. Rather, they were proper comments

       on Donna’s credibility based on the evidence—i.e., her relationship with

       Devers and Brandt’s 911 call. These statements did not constitute prosecutorial

       misconduct, much less fundamental error.


                                                 2. Sentencing


[10]   Devers also argues that his ten-year sentence is inappropriate. Article 7, section

       4 of the Indiana Constitution grants our Supreme Court the power to review

       and revise criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind.

       2014), cert. denied, 135 S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the

       Supreme Court authorized this court to perform the same task. Cardwell v. State,

       895 N.E.2d 1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence

       “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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.

       7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

       court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference

       should prevail unless overcome by compelling evidence portraying in a positive

       light the nature of the offense (such as accompanied by restraint, regard, and

       lack of brutality) and the defendant’s character (such as substantial virtuous


       Court of Appeals of Indiana | Memorandum Decision 82A04-1708-CR-1749 | February 28, 2018   Page 6 of 9
       traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d

       111, 122 (Ind. 2015).


[11]   The determination of whether we regard a sentence as inappropriate “turns on

       our sense of the culpability of the defendant, the severity of the crime, the

       damage done to others, and myriad other factors that come to light in a given

       case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895

       N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to

       leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is

       not our goal in this endeavor to achieve the perceived “correct” sentence in

       each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under

       Appellate Rule 7(B) 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) (emphasis in original).


[12]   In order to assess the appropriateness of a sentence, we first look to the

       statutory range established for the classification of the relevant offense. Devers

       was convicted of a Level 5 felony and adjudicated a habitual offender. The

       sentencing range for a Level 5 felony is one to six years, with an advisory

       sentence of three years. Ind. Code § 35-50-2-6(b). Additionally, when a

       defendant convicted of a Level 5 felony is also found to be a habitual offender,

       the trial court shall sentence him to an additional fixed term between two and

       six years. I.C. § 35-50-2-8(i). Thus, Devers’s ten-year sentence is two years

       short of the maximum sentence allowed under the law.



       Court of Appeals of Indiana | Memorandum Decision 82A04-1708-CR-1749 | February 28, 2018   Page 7 of 9
[13]   With respect to the nature of the offense, we note that the record reflects that

       Devers held a kitchen knife to Clark’s throat and threatened to stab her in the

       head. According to Brandt, Devers also threatened to kill everyone else in the

       house. Devers argues that his acts were fueled by his use of drugs and alcohol

       as well as grief over Clark’s recent miscarriage. Even if we accept Devers’s

       arguments in this regard, these facts do little if anything to mitigate his

       culpability.


[14]   Moreover, Devers’s character standing alone is more than sufficient to justify

       the sentence imposed. Devers’s criminal history is astonishingly long and

       includes nine prior felony convictions and numerous misdemeanor convictions.

       As a minor, Devers was adjudicated delinquent five times and once waived into

       adult court. Much of Devers’s criminal history has been violent, his probation

       has been revoked three times, and he was on parole when he committed the

       instant offense. Devers admitted that he had used methamphetamine nearly

       every day since 2008 and was injecting approximately half a gram of

       methamphetamine daily at the time of his arrest in this case. Devers notes that

       he has three children and has been ordered to pay child support, but he does not

       direct our attention to any evidence that he has paid support as ordered or been

       involved in his children’s lives. Devers also notes that he admitted the habitual

       offender allegation, but a guilty plea does not rise to the level of significant

       mitigation where the evidence against the defendant is such that the decision to

       plead guilty is “purely pragmatic.” Abrajan v. State, 917 N.E.2d 709, 713 (Ind.

       Ct. App. 2009). Devers admitted his habitual offender status only after a jury


       Court of Appeals of Indiana | Memorandum Decision 82A04-1708-CR-1749 | February 28, 2018   Page 8 of 9
       trial on the intimidation charge, and given the nature and extent of Devers’s

       criminal history, it is clear that the State would have been prepared to try the

       habitual offender allegation to the jury as well. Devers’s admission appears to

       have been a pragmatic one, and it did not save the State the time and expense of

       trial preparation. See Jackson v. State, 973 N.E.2d 1123, 1131 (Ind. Ct. App.

       2012) (noting that a habitual offender admission following a trial does not

       provide the same benefits to the State and victims as a guilty plea to the

       underlying crime), trans. denied. For all of these reasons, we cannot conclude

       that Devers’s ten-year sentence is inappropriate.


[15]   Judgment affirmed.


[16]   May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A04-1708-CR-1749 | February 28, 2018   Page 9 of 9
