MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be
                                                                                Jun 27 2019, 5:55 am
regarded as precedent or cited before any
court except for the purpose of establishing                                        CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
the defense of res judicata, collateral                                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald R. Shuler                                         Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP                       Attorney General of Indiana
Goshen, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John D. Owensby,                                         June 27, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2418
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael A.
Appellee-Plaintiff                                       Christofeno, Judge
                                                         Trial Court Cause No.
                                                         20C01-1711-F2-41



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2418 | June 27, 2019                       Page 1 of 12
[1]   John Owensby appeals his convictions and sentence for Level 2 Felony Dealing

      in Methamphetamine1 and Level 5 Felony Carrying a Handgun Without a

      License with a Prior Felony Conviction.2 He argues that the evidence was

      insufficient, that the trial court committed fundamental error by failing to give

      the jury a certain instruction, and that his sentence is inappropriate in light of

      the nature of the offenses and his character. Finding the evidence sufficient and

      no error, and that his sentence is not inappropriate, we affirm.


                                                      Facts
[2]   Elkhart County’s Intelligence and Covert Enforcement Unit (the ICE Unit) is

      comprised of ten to twelve law enforcement officers from several local law

      enforcement agencies. The ICE Unit officers work undercover to investigate

      higher level drug trafficking in the county. In November 2017, Owensby was a

      person of interest based on an ICE Unit investigation. The officers were

      familiar with Owensby’s appearance and knew that he drove a Lexus.


[3]   On November 8, 2017, at approximately eight or nine p.m., approximately ten

      ICE Unit officers arrived at a trailer in Mishawaka for a surveillance operation.

      They had information that Owensby would be there. While there, the officers

      observed five or six cars arrive; in each case, a person exited the vehicle, entered

      the trailer, and then left the area shortly thereafter. Around 10:30 p.m., a Lexus




      1
          Ind. Code § 35-48-4-1.1(a)(2)(A), (e)(1).
      2
          Ind. Code § 35-47-2-1(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2418 | June 27, 2019   Page 2 of 12
      arrived, and ICE Unit undercover officer 382 (Officer 382) notified the other

      officers by radio. A person later identified as Owensby entered the trailer,

      stayed for a minute or two, and then left. The ICE Unit officers believed that

      they had witnessed a drug transaction. Several ICE Unit officers followed the

      Lexus to conduct a traffic stop. ICE Unit undercover officer 256 (Officer 256)

      was assigned to follow the Lexus; ICE Unit undercover officer 353 (Officer

      353), who was in uniform and in a marked vehicle, was assigned to conduct the

      traffic stop. ICE Unit undercover officer 152 (Officer 152) also followed the

      Lexus.


[4]   While following the Lexus, Officer 256 saw the vehicle’s left tires cross the

      center lane into the southbound lane while it was traveling northbound. Officer

      353 stopped the Lexus on County Road 6, approached the driver’s side of the

      vehicle, and asked Owensby and his passenger, later identified as Angela

      Markham, for identification. Both Owensby and Markham appeared nervous

      to Officer 353 and kept checking the rearview mirrors. The officer collected

      their information and returned to his police vehicle, where he checked each of

      their license statuses and checked for warrants. The passenger identified herself

      by a false name; she was discovered to be Markham, who had warrants out for

      her arrest.


[5]   Before Officer 353 had stopped Owensby’s vehicle, Owensby had given

      Markham the methamphetamine he had just obtained, telling her to “[t]ake it

      and run.” Tr. Vol. II p. 232. He also gave her a gun. During the stop, while

      Officer 353 was checking the information, Markham exited the vehicle and fled

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2418 | June 27, 2019   Page 3 of 12
      on foot. Officer 353 chose to remain with Owensby. He had Owensby exit the

      vehicle, putting him in the custody of Officer 152, who searched him. Officer

      152 found a black cellphone, car keys, and a clear cellophane wrapper

      containing a white crystal-like residue.


[6]   Meanwhile, Officer 382 and Officer 256 learned from Officer 353 that

      Markham had fled from the traffic stop. The officers, along with Officer 353’s

      canine, searched for her in the nearby field. They found what they believed to

      be methamphetamine in a nearby bush and a clear plastic baggie containing a

      white rock-like substance. After the evidence was photographed, Officer 382

      collected it and returned to the ICE Unit office, where the officer weighed and

      field-tested it. The substance tested positive for methamphetamine and weighed

      55.76 grams.


[7]   On November 9, 2017, Markham was located, and during an interview with

      Officer 152, she informed the police of the location of the handgun she had

      discarded in the field near the traffic stop. Officer 256 and Officer 382 returned

      to the field to search for the handgun, finding it where Markham had said it

      would be.


[8]   That same day, officers also executed a search warrant for Owensby’s Lexus

      and his cellphone. During the search of the vehicle, they found a backpack,

      inside of which was a document with Owensby’s name on it, a soft case that

      would fit the handgun, a scale, multiple unused little plastic baggies, and two

      cellphones. ICE Unit undercover officer 150 (Officer 150) searched the cell


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2418 | June 27, 2019   Page 4 of 12
       phone that Officer 152 had found on Owensby, recovering images of what

       appeared to be methamphetamine on a scale, a bag of what appeared to be

       methamphetamine, cash that included one hundred dollar bills, and Owensby

       holding cash.


[9]    Goshen Police Officer Nick McCloughen interviewed Owensby. Owensby

       stated that he had been a drug dealer for twenty-four years; he also identified his

       source and revealed his knowledge of potential informants.


[10]   On November 13, 2017, the State charged Owensby with Level 2 felony dealing

       in methamphetamine and Class A misdemeanor carrying a handgun without a

       license, which was enhanced to a Level 5 felony based on Owensby’s prior

       felony conviction. A jury trial took place on August 20-21, 2018. During the

       trial, Markham testified to the following:


           • that Owensby had told her to take the drugs and run.
           • that she did not mention the handgun during her recorded statement to
             the police, but that she told them about it later when they asked.
           • that when Officer 152 asked her whether Owensby had “asked [her] to
             take the drugs and run[,]” tr. vol II p. 238, she initially said that he had
             not, and that she had fled the vehicle because there was a warrant out for
             her arrest.
           • that Officer 152 told her not to “‘go down for this.” Id. at 239.

[11]   Before deliberations, the jury received the following instruction:


                     The crime of Dealing in Methamphetamine is defined by
               law as follows:




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2418 | June 27, 2019   Page 5 of 12
                    A person who knowingly possesses with intent to deliver
               methamphetamine commits dealing in methamphetamine . . . .


                                                        ***


                     Before you may convict the Defendant, the State must
               have proved each of the following beyond a reasonable doubt:


                        1. The Defendant


                        2. knowingly possessed with intent to deliver


                        3. methamphetamine


                        4. and the amount of the drug involved was at least ten
                        (10) grams.


                     If the State fails to prove any of these elements beyond a
               reasonable doubt, you should find the Defendant not guilty of
               Dealing in Methamphetamine, . . .


       Appellant’s Conf. App. Vol. II p. 85. The trial court instructed the jury on the

       definitions of the terms “knowingly” and “possession” but not on “intent to

       deliver.”


[12]   The jury found Owensby guilty as charged. During the September 20, 2018,

       sentencing hearing, the trial court sentenced Owensby to thirty years executed

       for the dealing in methamphetamine conviction and six years for the carrying a

       handgun without a license conviction with three years suspended, to be served



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2418 | June 27, 2019   Page 6 of 12
       consecutively, for an aggregate term of thirty-three years executed and three

       suspended. Owensby now appeals.


                                    Discussion and Decision
                                I. Sufficiency of the Evidence
[13]   Owensby first argues that the evidence is insufficient to support his convictions.

       When reviewing the sufficiency of the evidence to support a conviction, we

       must consider only the probative evidence and reasonable inferences supporting

       the conviction and will neither assess witness credibility nor reweigh the

       evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm

       unless no reasonable factfinder could find the elements of the crime proved

       beyond a reasonable doubt. Id.


[14]   To convict Owensby of Level 2 felony dealing in methamphetamine, the State

       was required to prove beyond a reasonable doubt that Owensby possessed at

       least ten grams of methamphetamine with intent to deliver. I.C. § 35-48-4-

       1.1(a)(2)(A), (e)(1). To convict Owensby of Level 5 felony carrying a handgun

       without a license, the State was required to prove beyond a reasonable doubt

       that Owensby carried a handgun in any vehicle or on his person without being

       licensed to carry a handgun. I.C. § 35-47-2-1(a), (e)(2).


[15]   Owensby argues that the evidence does not show beyond a reasonable doubt

       that he had actual possession of either methamphetamine or a handgun. The

       crux of Owensby’s argument is that Markham’s testimony was inconsistent and

       contradictory and therefore insufficient to support Owensby’s convictions. In
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2418 | June 27, 2019   Page 7 of 12
       addition to testifying that Owensby had told her to take the drugs and run,

       Markham testified that she did not mention the handgun during her recorded

       statement to the police, but that she told them about it later when they asked.

       She also testified that when Officer 152 asked her whether Owensby had “asked

       [her] to take the drugs and run[,]” tr. vol II p. 238, she initially said that he had

       not, and that she had fled the vehicle because there was a warrant out for her

       arrest. She further testified that Officer 152 told her not to “‘go down for this.”

       Id. at 239. The jury heard all of Markham’s testimony and decided that her

       testimony that Owensby handed her the drugs and gun before she fled was

       credible. Owensby’s argument is simply a request that we reassess witness

       credibility, which we may not do.


[16]   In addition, the police found a backpack inside of Owensby’s vehicle that

       contained a document with Owensby’s name on it, a soft case that would fit the

       handgun, a scale, multiple unused little plastic baggies, and two cellphones.

       Owensby’s cellphone contained images of what appeared to be

       methamphetamine on a scale, a bag of what appeared to be methamphetamine,

       cash that included one hundred dollar bills, and Owensby holding cash.

       Further, Officer McCloughen testified that Owensby told him that Owensby

       had been a drug dealer for twenty-four years.


[17]   In sum, the evidence was sufficient to support his convictions.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2418 | June 27, 2019   Page 8 of 12
                                         II. Jury Instruction
[18]   Owensby next argues that the trial court committed fundamental error by

       failing to instruct the jury on the element of “intent to deliver” in the dealing in

       methamphetamine charge.


[19]   An instruction serves to inform the jury of the law applicable to the facts

       without misleading the jury and to enable it to comprehend the case clearly and

       arrive at a just, fair, and correct verdict. Overstreet v. State, 783 N.E.2d 1140,

       1163 (Ind. 2003). Instruction of the jury is generally within the trial court’s

       discretion and is reviewed for error. Id. Owensby, who did not object to the

       trial court’s instructions, argues that the error was fundamental. Fundamental

       error applies only where the error was a blatant violation of basic principles, the

       harm or potential for harm is substantial, and the resulting error made a fair

       trial impossible. Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006).


[20]   Specifically, regarding the element “knowingly possessed with intent to deliver”

       in the instruction on the dealing in methamphetamine charge, Owensby argues

       that the trial court erred by failing to instruct the jury on the definition of

       “intent to deliver” when it instructed the jury on the definitions of “knowingly”

       and “possessed.” Owensby contends that as a result, the jury was given the

       impression that if it found that Owensby knowingly possessed

       methamphetamine, then it was a foregone conclusion that he also had the

       intent to deliver.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2418 | June 27, 2019   Page 9 of 12
[21]   We disagree. First, the language of the instruction establishes that the State had

       to prove both that Owensby knowingly possessed the drugs and that he had the

       intent to deliver the drugs. And second, although the trial court did not instruct

       the jury on the definition of the term “intent to deliver,” that phrase does not

       have a specific legal meaning and would not be confusing to a lay person on the

       jury. See McKinley v. State, 45 N.E.3d 25, 31 (Ind. Ct. App. 2015) (“Although

       defining ‘intent to deliver’ may have been preferable, terms in common use that

       can be understood by a person of ordinary intelligence do not always need to be

       defined.”). Accordingly, the trial court did not commit error, fundamental or

       otherwise, by not defining this term for the jury.


                             III. Appropriateness of Sentence
[22]   Finally, Owensby argues that the sentence is inappropriate in light of the nature

       of the offenses and his character pursuant to Indiana Appellate Rule 7(B). In

       considering an argument under Rule 7(B), we must “conduct [this] review with

       substantial deference and give ‘due consideration’ to the trial court’s decision—

       since the ‘principal role of [our] review is to attempt to leaven the outliers,’ and

       not to achieve a perceived ‘correct’ sentence . . . . ” Knapp v. State, 9 N.E.3d

       1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.

       2013)) (internal citations omitted).


[23]   Owensby was convicted of one Level 2 felony, for which he faced a term of ten

       to thirty years imprisonment, with an advisory sentence of seventeen and one-

       half years. Ind. Code § 35-50-2-4.5. The trial court imposed the maximum


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2418 | June 27, 2019   Page 10 of 12
       thirty-year term. Owensby was also convicted of one Level 5 felony, for which

       he faced a term of one to six years, with an advisory sentence of three years.

       I.C. § 35-50-2-6(b). The trial court imposed a term of six years, with three years

       suspended. The trial court ordered the sentences to be served consecutively, for

       an aggregate term of thirty-three years executed and three suspended.


[24]   With respect to the nature of the offenses, Owensby possessed more than fifty-

       five grams of methamphetamine and a handgun without a license. A Level 2

       felony conviction for dealing in methamphetamine requires possession of at

       least ten grams of methamphetamine; here, Owensby had more than five times

       that amount. And based on Officer 382’s testimony that drug users generally

       have between one and three grams of methamphetamine, Owensby had enough

       drugs to sell to between eighteen and fifty-five people. The ability and intent to

       deliver drugs to so many people have serious consequences and ramifications

       for the community in which the drugs are being sold. Further, after the police

       stopped his vehicle, Owensby told Markham to take and discard the contraband

       so that he could evade capture.


[25]   With respect to Owensby’s character, Owensby told Officer McCloughen that

       he had been dealing drugs for twenty-four years. In other words, Owensby

       enabled others to harm themselves through drug use for more than two

       decades. His past includes a litany of crimes in several states: he was convicted

       of domestic battery at least four times, unlawful possession of drug

       paraphernalia, and battery causing serious bodily harm in Nevada; criminal

       trespass and disorderly conduct in Arizona; and domestic battery by

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2418 | June 27, 2019   Page 11 of 12
       strangulation in Alabama. In Indiana, Owensby was convicted of possession of

       methamphetamine. His history includes violation and revocation of parole and

       probation. Owensby’s history shows that he is unable or unwilling to comply

       with the rule of law.


[26]   In sum, Owensby’s sentence imposed by the trial court is not inappropriate in

       light of the nature of the offenses and his character.


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


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2418 | June 27, 2019   Page 12 of 12
