MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Feb 21 2017, 9:42 am
court except for the purpose of establishing                            CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony S. Churchward                                    Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

David L. Allen,                                          February 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1607-CR-1732
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D05-1506-F4-38



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017    Page 1 of 15
[1]   David L. Allen was convicted, following a jury trial, of Level 4 felony arson,

      Level 4 felony burglary, and Level 6 felony intimidation. The trial court

      sentenced Allen to an aggregate term of nineteen years in prison. On appeal,

      Allen raises a number of issues:


          1. Did the State present sufficient evidence to support the arson and
             burglary convictions?

          2. Should Allen have been released on his own recognizance based on
             Indiana Criminal Rule 4(A)?

          3. Did the trial court abuse its discretion in admitting certain evidence?

          4. Is Allen’s sentence inappropriate in light of his character and the nature
             of the offenses?

[2]   We affirm.


                                       Facts & Procedural History


[3]   Allen began dating Tierre Jordan in December 2011, and he moved into her

      Fort Wayne home in February 2013. He lived there with Jordan and her three

      minor children until July 13, 2014, when Jordan asked him to leave and

      indicated that she no longer wished to be in a relationship with him. Allen

      responded by punching Jordan multiple times, kicking her, and stomping on

      her face. Jordan called the police that night and made a report of the abuse but

      did not follow through with charges.


[4]   After the attack, Jordan and Allen remained separated for a few months. Allen

      eventually apologized and asked Jordan to take him back, but Jordan pleaded

      with him to leave her alone. He then began making numerous threatening

      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017   Page 2 of 15
      phone calls to her, three of which Jordan recorded in early October 2014. He

      repeatedly warned Jordan that there would be problems if they were not

      together. For example, he indicated on multiple occasions that she would have

      no house to come home to because he would burn it down. Allen also warned

      that Jordan better know how to shoot because he could bring his gun and shoot

      her in the face. When Jordan indicated that she did not want to be with

      someone she was scared of, Allen explained that she would only need to worry

      about him putting his hands on her if they were not together.


[5]   Jordan finally relented and let Allen move back into her home in December

      2014. Although she was afraid of Allen, Jordan explained at trial that she still

      loved him and, therefore, agreed to try and work things out.


[6]   Sometime over the weekend of February 20, 2015, Jordan ended her

      relationship with Allen once again, but he would not accept the breakup.

      Initially, he pleaded with Jordan that they could work things out. His phone

      calls became more aggressive by the day and he eventually resorted to threats.

      Jordan became very scared and recorded some of the calls.


[7]   During one phone call on February 24, 2015, Allen warned that he was coming

      the next day to talk with her after work and that the kids better not be there. He

      told her not to mess with him or he would make her pay. He threatened that

      she was about to be evicted and would see her house on the news. According

      to Allen, the damage would be so great that she would have nothing to come

      home to.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017   Page 3 of 15
[8]    In another recorded call on February 25, 2015, Allen made a number of threats

       to Jordan in a heated and lengthy exchange. Allen warned that his anger was

       building and that he would never leave her alone if she did not take him back.

       He threatened, among other things, that he would kill her by unloading

       (presumably a gun) in her face and that her home was going to be on fire on the

       news. He stated that the home would be going up in flames that night. In fact,

       Allen stated that he had been inside the home already that day while she was at

       work, and he was coming again. The call concluded with him stating that he

       was going to stomp Jordan’s ass out and shoot her in the face.


[9]    Jordan immediately contacted the police and made a report of the threatening

       calls. As directed by the officer, she went the next day to file for a restraining

       order. At some point over the next several days, she also changed the locks to

       her front and back doors. However, she did not change the lock to an outside

       access door to her garage to which Allen still had a key. Jordan was afraid of

       Allen, so she stopped going to her college classes and either stayed in a motel or

       had friends or family stay with her at the house.


[10]   On the morning of March 5, 2015, Jordan left home and took her children to

       school before going to work. At that time, Allen still had belongings in the

       home that he had refused to pick up. He had clothes in a closet and a dresser in

       the master bedroom. Next to the dresser, Allen also had a box with his

       important papers, such as his birth certificate and social security card.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017   Page 4 of 15
[11]   Fort Wayne firefighters were called to Jordan’s home around noon that same

       day. The home had been intentionally set on fire with gasoline in two

       locations. The bulk of the fire was in the upstairs master bedroom and a small

       fire had been started on the main floor. There were no signs of forced entry, the

       alarm system to the house had been disarmed, and a smoke detector located on

       the main floor had been removed from the ceiling. The fire caused $168,000 in

       damage and took over four months to repair, displacing Jordan and her

       children during that time.


[12]   After the fire was extinguished, Jordan walked the scene with investigators.

       She noted that all of Allen’s belongings had been removed from the home.

       Additionally, a gas can that was usually kept in the garage was inside the home.

       Jordan provided investigators with the two phone numbers regularly used by

       Allen. These numbers were for prepaid cell phones. Based on telephone

       records for these numbers, investigators were able to track one of these devices

       on the day of the fire. The device traveled from Richmond to Fort Wayne that

       morning. A call at 10:53 a.m. placed the device within the service area that

       included Jordan’s home. The next call was at 12:43 p.m. in a different area of

       Fort Wayne.


[13]   Allen communicated with Jordan after the fire and indicated that she should

       not have changed the locks. Jordan continued to receive a number of calls –

       over a hundred – on the day of and the day after the fire. On March 6, she

       called police for assistance as she returned to clear out her home. Additionally,



       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017   Page 5 of 15
       she made a report about continued threats. Jordan made another report

       regarding harassing calls about five days later.


[14]   On June 26, 2015, the State charged Allen with Level 4 felony arson, Level 4

       felony burglary, and Level 6 felony intimidation. Allen was arrested on July

       10, 2015. His jury trial commenced on June 7, 2016, and the jury found Allen

       guilty as charged. The trial court entered judgments of conviction on each

       count and sentenced Allen, on July 6, 2016, to twelve years for arson, six years

       for burglary, and one year for intimidation. The terms of imprisonment were

       ordered to be served consecutively, resulting in an aggregate sentence of

       nineteen years in prison. Allen appeals both his convictions and sentence.

       Additional information will be provided below as needed.


                                           Discussion & Decision


                                       1. Sufficiency of the Evidence


[15]   Allen initially challenges the sufficiency of the evidence regarding the arson and

       burglary convictions. He argues that there was no evidence tying him to

       Jordan’s home on the day of the fire such as eyewitness testimony, finger prints,

       or other physical evidence.


[16]   On review for sufficiency of the evidence, we consider only the probative

       evidence and reasonable inferences supporting the conviction. Drane v. State,

       867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses

       or reweigh evidence, and we will affirm unless no reasonable fact-finder could


       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017   Page 6 of 15
       find the elements of the crime proven beyond a reasonable doubt. Id. It is not

       necessary that the evidence overcome every reasonable hypothesis of

       innocence; rather, the evidence will be found sufficient if an inference may

       reasonably be drawn from it to support the conviction. Id. at 147. “Moreover,

       arson is almost always subject to proof by circumstantial evidence, and we defer

       to the jury’s determination that the defendant set the fire.” Belser v. State, 727

       N.E.2d 457, 464 (Ind. Ct. App. 2000), trans. denied.


[17]   Allen does not dispute that the evidence established someone entered Jordan’s

       home without permission and intentionally set two fires using gasoline. His

       claim is simply that the evidence failed to establish that he committed the

       crimes. We reject his blatant request for us to reweigh the evidence.


[18]   The State presented overwhelming circumstantial evidence that Allen was the

       individual who set Jordan’s home ablaze. Allen would not accept Jordan’s

       decision to break up with him. He threatened repeatedly that he would burn

       down her home if she refused to get back together with him. According to

       Allen, she was either with him or against him and he would never leave her

       alone. In a recorded call made eight days before the fire, Allen warned Jordan

       that he had been in the home that day and was coming back. During his

       lengthy rant, Allen threatened that he was going to kill Jordan, set her home on

       fire, shoot her in the face, and stomp her ass out.


[19]   On the morning of the arson, phone records establish that one of Allen’s

       prepaid cell phones traveled from Richmond to Fort Wayne and was in the area


       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017   Page 7 of 15
       of Jordan’s home shortly before the fire. Additionally, all of Allen’s belongings

       – just his – were removed from the master bedroom before the bed in that room

       was set ablaze using gasoline. Although Jordan had changed some locks to the

       home, she had failed to change the lock to the outside garage door, and Allen

       had a key to that door. He also knew the code to deactivate the home’s alarm

       system. At some point after the fire, Allen taunted Jordan by telling her that

       she should not have changed the locks.


[20]   The State presented ample evidence to support Allen’s convictions for burglary

       and arson. Accordingly, his sufficiency challenge fails.


                                                 2. Criminal Rule 4(A)


[21]   Allen argues that his rights under Crim. R. 4(A) 1 were violated because he was

       held in jail longer than six months pending trial. He filed a motion to be

       released on his own recognizance on January 12, 2016, and renewed the

       motion on February 23, 2016. In both instances, the trial court denied the




       1
           The rule provides in relevant part:

                No defendant shall be detained in jail on a charge, without a trial, for a period in aggregate
                embracing more than six (6) months from the date the criminal charge against such defendant is
                filed, or from the date of his arrest on such charge (whichever is later); except where a
                continuance was had on his motion, or the delay was caused by his act, or where there was not
                sufficient time to try him during such period because of congestion of the court calendar ….
                Provided further, that a trial court may take note of congestion or an emergency without the
                necessity of a motion, and upon so finding may order a continuance. Any continuance granted
                due to a congested calendar or emergency shall be reduced to an order, which order shall also
                set the case for trial within a reasonable time. Any defendant so detained shall be released on
                his own recognizance at the conclusion of the six-month period aforesaid and may be held to
                answer a criminal charge against him within the limitations provided for in subsection (C) of
                this rule.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017          Page 8 of 15
       motion, finding court congestion to be the cause of the recent delays. Allen

       unsuccessfully attempted an interlocutory appeal of the February order.


[22]   In this appeal, Allen makes no attempt to establish that the trial court’s findings

       of court congestion were in error. Further, even if Allen was improperly

       detained beyond six months, his remedy would have been release from jail on

       his own recognizance pending trial, not discharge from criminal liability. See

       Joyner v. State, 678 N.E.2d 386, 392 (Ind. 1997). Because Allen has already

       been tried and convicted, there is no longer any relief available to him for the

       alleged Crim. R. 4(A) violation. See McQueen v. State, 711 N.E.2d 503, 505

       (Ind. 1999).


                                           3. Evidentiary Rulings


[23]   Allen challenges several evidentiary rulings by the trial court. Our standard of

       review in this regard is well settled. A trial court has broad discretion in ruling

       on the admissibility of evidence, and we will disturb such a ruling only where

       the appellant has shown an abuse of that discretion. Bowman v. State, 51 N.E.3d

       1174, 1180 (Ind. 2016). “An abuse of discretion occurs only ‘if a ruling is

       clearly against the logic and effect of the facts and circumstances and the error

       affects a party’s substantial rights.’” Id. (quoting Carpenter v. State, 18 N.E.3d

       998, 1001 (Ind. 2014)).


[24]   Initially, Allen contends that the trial court erred by admitting the recorded

       telephone conversations and the telephone records for two prepaid phones. His



       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017   Page 9 of 15
       argument is based on lack of authentication. Specifically, he contends that the

       recorded calls and the phone numbers were not sufficiently tied to him.


[25]   Indiana Evidence Rule 901(a) provides: “To satisfy the requirement of

       authenticating or identifying an item of evidence, the proponent must produce

       evidence sufficient to support a finding that the item is what the proponent

       claims it is.” This may be done in a variety of ways, and Evid. R. 901(b)

       provides a non-exhaustive list.


[26]   With respect to telephone calls, the caller’s identity may be established by

       testimony of a witness familiar with the caller’s voice and who recognizes it in

       the conversation. State v. Motley, 860 N.E.2d 1264, 1266 (Ind. Ct. App. 2007).

       The caller’s identity may also be inferred from the circumstances and details

       included in the conversation. Id. In this case, based on Jordan’s testimony and

       the content of the calls, there is absolutely no doubt that the recorded calls were

       between Jordan and Allen. Accordingly, the trial court did not abuse its

       discretion by admitting this evidence.


[27]   Regarding the phone records, the evidence establishes that Jordan identified

       two phone numbers that were used by Allen, whom she had dated for a

       significant period of time and spoken on the phone to daily. Investigators

       obtained records for these two phone numbers. Allen argues that the State

       failed to “present any subscriber documentation from the cellular carrier to

       prove [his] ownership of these numbers.” Appellant’s Brief at 21. The record

       indicates, however, that these numbers were for prepaid phones that would not


       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017   Page 10 of 15
       have subscribers. Jordan’s testimony was sufficient to establish that the phone

       numbers and their related records were for cell phones regularly used by Allen.


[28]   Allen’s final evidentiary argument relates to the admission of evidence

       regarding his July 2014 battery of Jordan after she tried to break up with him

       the first time. Allen claims this constituted inadmissible 404(b) evidence.


[29]   Indiana Evidence Rule 404(b) provides in relevant part:2


               (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
               not admissible to prove a person’s character in order to show that
               on a particular occasion the person acted in accordance with the
               character.


               (2) Permitted Uses; Notice in a Criminal Case. This evidence may be
               admissible for another purpose, such as proving motive,
               opportunity, intent, preparation, plan, knowledge, identity,
               absence of mistake, or lack of accident….


       In assessing the admissibility of evidence under 404(b), the trial court must: (1)

       determine whether the evidence is relevant to a matter at issue other than the

       defendant’s propensity to commit the charged act; and (2) balance the probative

       value of the evidence against its prejudicial effect pursuant to Indiana Evidence

       Rule 403. Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004). We employ

       the same test in determining whether the trial court abused its discretion. Id.




       2
         We note that Allen and the State both provide a former version of Evid. R. 404(b). This rule was amended
       in 2013 with an effective date of January 1, 2014.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017      Page 11 of 15
[30]   Here, evidence of the prior attack was properly admitted as relevant evidence of

       motive and the relationship between Jordan and Allen. See id. at 408

       (“Numerous cases have held that where a relationship between parties is

       characterized by frequent conflict, evidence of the defendant’s prior assaults and

       confrontations with the victim may be admitted to show the relationship

       between the parties and motive for committing the crime.”). The July 2014

       attack showed Allen’s extreme hostility toward Jordan when she wanted to end

       their relationship. This evidence was probative of Allen’s motive – retribution

       for finally ending the relationship seven months later – for breaking into

       Jordan’s home and setting it on fire. Moreover, Allen has not established that

       the probative value of this evidence was substantially outweighed by the danger

       of unfair prejudice under Evid. R. 403.


                                                 4. Sentencing


[31]   Finally, Allen challenges the appropriateness of the aggregate nineteen-year

       sentence imposed by the trial court. 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 a sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57,

       64 (Ind. Ct. App. 2009) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.

       2007), clarified on reh’g, 875 N.E.2d 218). This appellate authority is

       implemented through Indiana Appellate Rule 7(B), which provides 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

       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017   Page 12 of 15
       of the nature of the offense and the character of the offender.” Anglemyer, 868

       N.E.2d at 491. Nevertheless, “we must and should exercise deference to a trial

       court’s sentencing decision, both because Rule 7(B) requires us to give ‘due

       consideration’ to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Stewart v.

       State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the

       burden of persuading us that his sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[32]   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 v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008)). 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 v. State, 9 N.E.3d 1274, 1292

       (Ind. 2014). 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).


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

       statutory ranges established for the classification of the relevant offenses. A

       Level 4 felony has a sentencing range of two to twelve years, with the advisory

       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017   Page 13 of 15
       sentence being six years. Ind. Code § 35-50-2-5.5. Thus, Allen received the

       maximum sentence for his arson conviction and the advisory sentence for his

       burglary conviction. He also received the advisory sentence for his Level 6

       intimidation conviction. See I.C. § 35-50-2-7(b) (providing for a sentencing

       range of six months to two and one-half years for a Level 6 felony, with an

       advisory sentence of one year). The trial court ordered the terms to be served

       consecutively for an aggregate sentence of nineteen years. Accordingly, Allen

       received seven and one-half years less than the maximum aggregate sentence.


[34]   The nature of Allen’s offenses was particularly severe. Allen engaged in a

       sustained campaign of terror against Jordan for the simple reason that she

       wanted to break up with him. During his unrelenting calls, he threatened to kill

       her, shoot her in the face, stomp her out, and burn down the house in which she

       and her three minor children lived. His threats caused Jordan immense fear

       because she knew what he was capable of doing. As a result of the threats,

       Jordan stopped attending her classes and did not feel safe in her own home,

       opting to stay in a motel or have others stay with her at her home. She also

       notified the police on more than one occasion and changed the locks to her

       home. Allen’s most prevalent threat – to burn Jordan’s house down – came to

       fruition on March 5, 2015. After removing his belongings, Allen doused

       Jordan’s bed with gasoline and set it on fire. He also set another fire on the first

       level of the house. The arson resulted in $168,000 in damage to Jordan’s home

       and displaced the family of four for nearly five months. In addition, Allen




       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017   Page 14 of 15
       continued to terrorize Jordan after the fire by telling her that she should not

       have changed the locks.


[35]   While the nature of the offenses reflect poorly on Allen’s character, so does his

       extensive criminal history. Allen has five prior felony convictions and three

       misdemeanor convictions, with convictions in Indiana (four different counties)

       and Ohio. Allen has spent the majority of his adult life incarcerated. His most

       serious past convictions are for class B felony dealing in cocaine (1997), class C

       felony prisoner possessing dangerous device/material (2002), class C felony

       possession of cocaine (2007), and felony trafficking cocaine (Ohio 2012). Allen

       has had his felony probation revoked (1995), a suspended sentence revoked

       (1996), and his class B felony sentence modified twice as a result of probation

       violations (2007 and 2010). Additionally, we agree with the State that Allen’s

       disturbing character is vividly revealed by his own recorded words.


[36]   In sum, we conclude that the nineteen-year sentence imposed by the trial court

       is not inappropriate in light of Allen’s character and the nature of the offenses.


[37]   Judgment affirmed.


[38]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1732 | February 21, 2017   Page 15 of 15
