MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Nov 02 2017, 8:40 am

regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Wieneke Law Office                                      Attorney General of Indiana
Brooklyn, Indiana
                                                        Angela N. Sanchez
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Danny J. Howe,                                          November 2, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        60A01-1701-CR-238
        v.                                              Appeal from the Owen Circuit
                                                        Court
State of Indiana,                                       The Honorable Lori Thatcher
Appellee-Plaintiff                                      Quillen, Judge
                                                        Trial Court Cause No.
                                                        60C01-1509-F1-431



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 60A01-1701-CR-238 | November 2, 2017     Page 1 of 8
[1]   Danny J. Howe appeals his thirty-nine-year sentence for Level 1 felony

      attempted murder 1 and Level 6 felony obstruction of justice. 2 Howe argues that

      sentence is inappropriate in light of his character and offense. We affirm.



                                Facts and Procedural History
[2]   Howe dated Jenifer Pickett off and on between December 2014 and April 2015.

      Thereafter, the two remained friends, corresponding online and occasionally

      spending time together. Howe continued to express interest in their friendship

      developing into a romantic relationship, but Pickett was not interested. During

      the summer of 2015, Howe began showing up at Pickett’s house at unexpected

      times. On September 11, 2015, Pickett informed Howe that she was dating

      someone else, and Howe texted Pickett that he was going to kill himself

      because she would not be in a relationship with him. The next morning, when

      Pickett let her dog outside, Howe was standing in her back yard and tried to

      talk to her, but she screamed and her neighbor called the police. Pickett

      cancelled a date scheduled for that evening with David Sheese because she was

      concerned that Howe would follow them.


[3]   In the late afternoon on September 17, Sheese and Pickett went on a motorcycle

      ride, and then Sheese dropped Pickett off at her house between 8:00 and 8:30 in




      1
          Ind. Code §§ 35-42-1-1(1) (2014) & 35-41-5-1(a) (2014).
      2
          Ind. Code § 35-44.1-2-2(a)(3) (2014).


      Court of Appeals of Indiana | Memorandum Decision 60A01-1701-CR-238 | November 2, 2017   Page 2 of 8
      the evening. As Sheese was driving out of Pickett’s neighborhood, he noticed

      headlights pull out behind him and begin to follow him. He believed the

      headlights were for a Jeep, which was the kind of vehicle Pickett had told

      Sheese that her ex-boyfriend, Howe, drove. Because Sheese was concerned

      Howe was following him, Sheese pulled into a restaurant parking lot. Howe

      pulled the Jeep into a parking lot down the street, turned it around to face

      Sheese, and turned off his headlights.


[4]   When Sheese pulled out of the parking lot, Howe resumed following him.

      Sheese tried to lose Howe by weaving in and out of traffic, speeding, passing

      numerous cars, and taking a circuitous route, but Howe caught up with Sheese

      a couple of miles before Sheese arrived home. Sheese did not want to lead

      Howe to his house, so he kept driving and turned back toward town. A few

      miles later, after following Sheese for over twenty-three miles, Howe rammed

      the back of Sheese’s motorcycle with the front of the Jeep, sending Sheese and

      the motorcycle flying into the ditch on the right side of the road.


[5]   Sheese landed on his right side and felt pain in his chest. He saw Howe exit the

      driver’s door, retrieve a shotgun from the back seat of the Jeep, and begin

      walking toward where Sheese and his motorcycle were lying in the ditch.

      Sheese decided to play dead as Howe used the barrel of the gun to look through

      the weeds for Sheese. When the barrel of the gun came close to Sheese, he

      grabbed the barrel and attempted to pull the gun away from Howe. Howe

      managed to keep ahold of the gun and backed up three or four steps from

      Sheese. Sheese jumped up and screamed that he did not want to die.

      Court of Appeals of Indiana | Memorandum Decision 60A01-1701-CR-238 | November 2, 2017   Page 3 of 8
[6]   Without saying anything, Howe raised the shotgun to his hip and pulled the

      trigger. The shot hit Sheese’s right arm and the right side of his body. The shot

      shattered Sheese’s forearm, leaving his arm dangling by the skin. Sheese felt

      “the worst pain you could ever have,” (Tr. Vol. 3 at 83), and believed he “was

      going to die any minute.” (Id.) Sheese thought he was too injured to run away,

      so he fell to the ground to play dead again. Howe walked up close to look at

      Sheese and then returned to the Jeep and sped away. That night, Howe

      disposed of the shotgun in a lake and his Jeep was destroyed by a suspicious fire

      in Howe’s garage. 3


[7]   After Howe sped away, Sheese tried to locate his cell phone but could not. He

      stood to walk to the house down the road, but he did not have the strength to

      walk and returned to the ground. A passing car stopped, and the passengers

      called authorities and rendered first aid. Sheese was rushed to the hospital

      where he had exploratory surgery of his chest and abdomen to ensure he did

      not have any internal injuries from the gunshot wounds. Sheese has had

      multiple surgeries on his arm, including placement of a steel rod and bone grafts

      using bone removed from his hips, and he is expected to need additional

      surgeries in the future. After the blast “there was no skin left on the inside of

      [Sheese’s] forearm,” (id. at 92), so doctors had to stretch the skin from the

      outside of Sheese’s forearm to cover the inside of his arm.




      3
        An officer from the State Fire Marshall’s Office testified no criminal charges were filed with respect to the
      fire because “we couldn’t classify it to an acceptable scientific level of certainty.” (Tr. Vol. 2 at 98.)

      Court of Appeals of Indiana | Memorandum Decision 60A01-1701-CR-238 | November 2, 2017                Page 4 of 8
[8]   The State charged Howe with Level 1 felony attempted murder and Level 6

      felony obstruction of justice. A jury found Howe guilty of both. After another

      hearing, the court sentenced Howe to concurrent sentences of thirty-nine years

      for attempted murder and two and a half years for obstruction of justice. The

      court entered a written order that included the following statement:


              The Court finds that there are significant aggravating
              circumstances that exist in this case. The defendant has
              expressed no responsibility for his actions. The defendant at trial
              attempted to place the blame for his actions on an ex-girlfriend
              breaking his heart and playing with his emotions. The defendant
              at sentencing still will not accept full responsibility for the totality
              of his actions and the emotional, physical and financial toll it has
              had upon the victim. The Court finds that defendant by failing to
              accept responsibility and by refusing to be held accountable
              mentally for his actions cannot substantiate to this Court that this
              type of criminal behavior may not happen in the future. The
              Court re-enforces this position by looking at the defendant’s prior
              criminal history. The past criminal history is significant in that it
              is similar to the stalking conduct that resulted in this crime
              occurring. The defendant has prior crimes of invasion of privacy.
              It is also relevant that the defendant pursued the victim for over
              20 miles and had numerous opportunities to change his mind and
              not commit these crimes. The conduct was planned and
              calculated both before and after the contact with the victim. The
              victim has suffered significant mental and medical health issues
              that are directly related to the actions of the defendant. The
              injuries suffered were extensive and will require further surgeries
              and will result in future trauma and pain for the victim. The
              injuries suffered are in excess of those normally associated with
              an attempted murder conviction. The [victim] played dead and
              as a result the defendant fled the scene leaving the victim laying
              on the side of the road. It is only because a paramedic and a
              good Samaritan drove by and saw him and administered

      Court of Appeals of Indiana | Memorandum Decision 60A01-1701-CR-238 | November 2, 2017   Page 5 of 8
               emergency aid that the victim is alive today. Certainly had the
               victim died the defendant would be serving no less than a
               minimum of 45 [y]ears at the Department of Corrections [sic]
               and potentially much more. This Court finds that to sentence the
               defendant to anything less than 39 years would undermine the
               seriousness of this offense and the manner in which it was
               committed. The Court finds that there are no mitigating
               circumstances. The Court finds that the aggravating
               circumstances significantly outweigh the mitigating
               circumstances.


       (Appellant’s App. Vol. 2 at 167-68.)



                                 Discussion and Decision
[9]    We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633

       (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider the

       aggravators and mitigators found by the trial court and also any other factors

       appearing in the record. Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App.

       2016), trans. denied. The appellant must demonstrate his sentence is

       inappropriate. Id. at 418.


[10]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

       sentencing range for a Level 1 felony is “a fixed term of between twenty (20)

       and forty (40) years, with the advisory sentence being thirty (30) years.” Ind.

       Code § 35-50-2-4 (2014). The sentencing range for a Level 6 felony is “a fixed
       Court of Appeals of Indiana | Memorandum Decision 60A01-1701-CR-238 | November 2, 2017   Page 6 of 8
       term of between six (6) months and two and one-half (2 ½) years, with the

       advisory sentence being one (1) year.” Ind. Code § 35-50-2-7(b) (2014).


[11]   Howe asserts the nature of his offense was “unremarkable,” (Br. of Appellant at

       7), and “not atypical of other attempted murders.” (Id.) We disagree. Howe

       had never met Sheese, and Howe’s only reason for having contact with Sheese

       was that Sheese had started dating the woman who had stopped dating Howe

       approximately five months earlier. Howe followed Sheese more than twenty

       miles, drove his Jeep into Sheese and his motorcycle, and then, without saying

       a word, shot Sheese from three paces with a shotgun and left him for dead. To

       try to hide his guilt, Howe threw the shotgun in a lake, and lied to police about

       its location. Thirty-nine years is not inappropriate for those crimes.


[12]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The significance of a criminal history in assessing a defendant’s

       character varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense. Id.


[13]   In 1991, Howe paid a fine for carrying a concealed weapon without a permit,

       and in 2005, Howe committed invasion of privacy in two separate counties, and

       one of the offenses involved violation of a protective order. For those crimes,

       Howe served time in jail and on probation. As the trial court noted at

       sentencing, Howe’s criminal history is significant because of its similarity to the




       Court of Appeals of Indiana | Memorandum Decision 60A01-1701-CR-238 | November 2, 2017   Page 7 of 8
       behavior Howe was exhibiting toward Pickett, which lead to Howe shooting

       Sheese.


[14]   Also relevant to Howe’s character is his denial of responsibility for the injuries

       he inflicted on Sheese. At trial, Howe asserted he was following Sheese

       because Sheese shook his fist at Howe and his Jeep hit Sheese because Sheese

       “just stopped suddenly.” (Tr. Vol. 3 at 135.) Howe also claimed he

       approached Sheese in the ditch without his gun and, when he got close, Sheese

       “popped his eyes open real big and growled and showed his teeth,” (id. at 138),

       which is why Howe ran back to the Jeep for his gun, “pointed it at the ground

       and fired one shot at – at the ground.” (Id. at 141.) Howe asserted he did not

       know Sheese was injured when he sped away from the scene, but yet Howe did

       not bother to report the accident to police and he disposed of the gun in a lake.

       Howe’s behavior after leaving the scene of what he alleges was just an accident

       undermines his version of events and his character.


[15]   In light of all those facts, we cannot say Howe’s thirty-nine-year sentence is

       inappropriate in light of his character and his offenses. Accordingly, we affirm.


[16]   Affirmed.


       Barnes, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 60A01-1701-CR-238 | November 2, 2017   Page 8 of 8
