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               MEMORANDUM DECISION – NOT FOR PUBLICATION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
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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




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