MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                                    Apr 11 2017, 9:40 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dusty R. Owens,                                          April 11, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         69A05-1612-CR-2903
        v.                                               Appeal from the Ripley Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey L. Sharp,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         69D01-1603-F6-65
                                                         69D01-1605-F6-92
                                                         69D01-1605-F6-104



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017       Page 1 of 9
                                          Case Summary
[1]   On August 29, 2016, Appellant-Defendant Dusty R. Owens pled guilty to Level

      6 felony escape under Cause Number 69D01-1603-F6-65 (“Cause No. F6-65”),

      Level 6 felony battery with moderate bodily injury and Level 6 felony

      intimidation under Cause Number 69D01-1605-F6-92 (“Cause No. F6-92”),

      and Level 6 felony battery with moderate bodily injury under Cause Number

      69D01-1605-F6-104 (“Cause No. F6-104”). The trial court accepted Owens’s

      guilty pleas, and, on September 27, 2016, sentenced Owens to an aggregate

      term of seven and one-half years imprisonment. In this consolidated appeal,

      Owens contends that his aggregate seven-and-one-half-year sentence is

      inappropriate in light of the nature of his offenses and his character. We affirm.



                            Facts and Procedural History
[2]   This consolidated appeal involves the appropriateness of the aggregate sentence

      imposed in connection with four separate offenses which were charged under

      three separate cause numbers.


                                         A. Cause No. F6-65
[3]   Owens has previously been convicted of felony sexual battery with a victim

      who was mentally disabled or deficient or was otherwise unable to consent and

      misdemeanor resisting law enforcement. In connection with these offenses,

      Owens was released from parole and placed on home detention on February

      27, 2016. On March 16, 2016, Owens removed the electronic monitoring


      Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017   Page 2 of 9
      device that had been placed on his ankle as part of his placement on home

      detention. Owens indicated that he knew that cutting off his ankle bracelet

      would be a violation of the terms of his home detention but that he “cut off his

      ankle bracelet because he just wanted to do his backup time.” Appellant’s App.

      Vol. II Confidential, p. 68. Owens was subsequently re-arrested and placed in

      the Ripley County Jail.


                                         B. Cause No. F6-92
[4]   On April 15, 2016, while in custody at the Ripley County Jail following his

      arrest for escape, Owens battered Noah Davidson, a fellow inmate, over an

      alleged gambling debt. On that date, Officer Jacob Werner, who was employed

      by the Ripley County Sheriff’s Department as a jail officer, observed that a

      camera focused on the general population had been covered up. When the

      camera was uncovered, Officer Werner observed Owens “beat his chest” and

      “throwing around some property, which ended up being Noah Davidson’s.”

      Tr. p. 32.


[5]   Officer Werner responded to the cell block where Davidson and Owens were

      gathered. Officer Werner then observed that Davidson had been “beat up” and

      “had bruises, cuts, [and] scrapes on his face.” Tr. p. 32. Officer Werner and

      another officer observed the Owens had blood on his knuckles. Owens denied

      being involved in the altercation. He claimed that his knuckles were bloody

      because he had been on the phone with his girlfriend, learned that his girlfriend

      had cheated on him, and punched the wall. Officer Werner did not believe


      Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017   Page 3 of 9
      Owens’s claim, as he had observed video which indicated that Owens had

      participated in the altercation.


[6]   During Officer Werner’s investigation into the altercation, Owens forcibly

      pulled away from Officer Werner when Officer Werner instructed Owens to

      follow him to an isolation cell. Owens hesitated, saying that “he is not locking

      down and [that] he is innocent until proven guilty.” Tr. p. 33. Owens also

      failed to comply with Officer Werner’s subsequent instructions to back up so

      that another inmate could gather his belongings. In refusing to follow Officer

      Werner’s instructions, Owens punched a door frame and began cussing at

      Officer Werner. Owens looked toward Officer Werner and said “F[***] you

      mother f[*****].” Tr. p. 35. Owens then proceeded to drop his pants, expose

      his genitals to Officer Werner, and tell Officer Werner “to suck his f[******]

      d[***].” Tr. p. 35. Owens continued to ignore Officer Werner’s instructions

      and “stepped forward towards” Officer Werner. Tr. p. 35. Officer Werner

      considered this to be threatening behavior and eventually deployed his taser on

      Owens.


[7]   The following night, Owens again failed to follow instructions from Officer

      Werner and the other jail officers. During this encounter, Owens became

      agitated and told Officer Werner that “I am going to smash your girl up Jake

      just for the fun of it.” Tr. p. 37. Owens then proceeded to inform Officer

      Werner that he knew where Officer Werner lived and that Officer Werner and

      his girlfriend lived together.



      Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017   Page 4 of 9
                                         C. Cause No. F6-104
[8]    On May 12, 2016, Owens again engaged in a physical altercation with

       Davidson. This altercation again resulted in injury to Davidson. With respect

       to the batteries of Davidson, Owens showed no remorse and indicated that

       “someone is not going to punk me out.” Appellant’s App. Vol. II Confidential,

       p. 68. Owens also acknowledged that he was not under the influence of drugs

       when he committed either of the batteries against Davidson.


                                D. Guilty Pleas and Sentencing
[9]    On March 30, 2016, Appellee-Plaintiff the State of Indiana (“the State”)

       charged Owens under Cause No. F6-65 with Level 6 felony escape. On May 2,

       2016, the State charged Owens under Cause No. F6-92 with Level 6 felony

       conspiracy to commit battery with moderate bodily injury, Level 6 felony

       battery with moderate bodily injury, and Level 6 felony intimidation. On May

       17, 2016, the State charged Owens under Cause No. F6-104 with Level 6 felony

       battery with moderate bodily injury. On August 29, 2016, Owens pled guilty to

       the following charges: (1) Level 6 felony escape under Cause No. F6-65, (2)

       Level 6 felony battery with moderate bodily injury and Level 6 felony

       intimidation under Cause No. F6-92, and (3) Level 6 felony battery with

       moderate bodily injury under Cause No. F6-104.


[10]   The trial court accepted Owens’s guilty pleas and, on September 27, 2016,

       conducted a consolidated sentencing hearing. At the conclusion of the hearing,

       the trial court made a detailed sentencing statement which is summarized as


       Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017   Page 5 of 9
       follows: (1) Owens’s poor childhood and drug addiction were mitigating

       factors; (2) prior attempts to place Owens in drug treatment centers were

       unsuccessful; (3) Owens has a high level of criminal thinking as is reflected by

       the fact that he has been categorized as a very high risk to reoffend; (4) Owens’s

       criminal history dates back to when he was a juvenile and includes numerous

       juvenile arrests, at least one juvenile adjudication, and multiple adult

       convictions; (5) Owens has previously violated the terms of his probation on at

       least four different occasions; (6) both the April 15, 2016 altercation and the

       May 12, 2016 altercation were unprovoked attacks on a fellow inmate and

       occurred while Owens was in jail following his decision to violate the terms of

       his home detention by cutting his GPS tracking device off of his ankle; (7) the

       fact that the two unprovoked attacks occurred while Owens was incarcerated

       was an aggravating factor; (8) Owens’s character was an aggravating factor; and

       (9) Owens failed to follow the instructions of jail officers on numerous

       occasions, going as far as telling Officer Werner to “suck my [d***], [f***]

       you,” and exposing himself to Officer Werner. Tr. p. 47.


[11]   The trial court sentenced Owens to an aggregate seven-and-one-half year term

       of imprisonment. In imposing this sentence, the trial court found that Owens

       was an extreme danger to himself and to the community. The trial court also

       found that there was an extremely high likelihood that Owens would reoffend.



                                  Discussion and Decision


       Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017   Page 6 of 9
[12]   Owens contends that his aggregate seven-and-one-half year sentence is

       inappropriate. In challenging the appropriateness of his sentence, Owens

       asserts that his sentence is inappropriate because at the age of twenty, he “still

       suffers from the impetuousness of youth.” Appellant’s Br. p. 9. Owens also

       asserts that his sentence is inappropriate because neither the nature of his

       offenses nor his character “warrant so much time in prison.” Appellant’s Br. p.

       8. We disagree.


[13]   Indiana Appellate Rule 7(B) provides that “The 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.” In analyzing such claims, we “‘concentrate

       less on comparing the facts of [the case at issue] to others, whether real or

       hypothetical, and more on focusing on the nature, extent, and depravity of the

       offense for which the defendant is being sentenced, and what it reveals about

       the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

       2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.

       denied). The defendant bears the burden of persuading us that his sentence is

       inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[14]   With respect to the nature of Owens’s offenses, the record reveals that Owens

       knowingly and intentionally violated the terms of his home detention by cutting

       off his GPS monitoring device. Owens subsequently explained that he did so

       because he “just wanted to do his backup time.” Appellant’s App. Vol. II

       Confidential, p. 68. Once back in jail, Owens engaged in an altercation with

       Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017   Page 7 of 9
       another inmate who he claimed owed him money. Owens initially denied

       involvement in this altercation despite video evidence showing otherwise.

       Further, while jail officials were investigating the altercation, Owens proceeded

       to verbally abuse and intimidate one of the jail officers. Specifically, Owens

       yelled obscenities at the officer, exposed himself to the officer, gave the officer

       vulgar and explicit directions, and angrily walked toward the officer when

       instructed to step back. In addition, the next day, Owens made a threat to the

       same officer involving the officer’s girlfriend. Approximately one month later,

       Owens again engaged in a physical altercation with the same fellow inmate

       who was involved in the prior altercation. Owens did not show any remorse for

       either altercation, but explained that “someone is not going to punk me out.”

       Appellant’s App. Vol. II Confidential, p. 68.


[15]   As for Owens’s character, the record reveals that Owens has a criminal history

       that includes juvenile adjudications, misdemeanor and felony convictions, and

       numerous prior probation violations. Owens’s contact with the criminal justice

       system dates back to when he was approximately eight years old. He had

       numerous interactions with the criminal justice system as a juvenile, including

       at least one juvenile adjudication. As an adult, Owens has been charged with

       and convicted of felony sexual battery with a victim who was mentally disabled

       or deficient or was otherwise unable to consent and Class A misdemeanor

       resisting law enforcement.


[16]   In addition, previous requests for leniency in the form of drug treatment have

       not been successful. Owens’s criminal history also includes numerous

       Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017   Page 8 of 9
       probation violations. It is also of note that probation would not seem to be a

       viable alternative for Owens given that he committed one of the instant

       offenses, the Level 6 felony escape charge, by cutting off his home detention

       monitor because “he just wanted to do his backup time.” Appellant’s App. Vol.

       II Confidential, p. 68.


[17]   Owens’s criminal history indicates that he has not only a disdain for the

       criminal justice system, but also a disdain for the rights and safety of others.

       The trial court specifically noted this disdain for the rights and safety of others,

       finding that Owens was an extreme danger to both himself and the community.

       Moreover, the Ripley County Probation Department indicated that a risk

       assessment of Owens placed him “in the VERY HIGH risk category to

       reoffend.” Appellant’s App. Vol. II Confidential, p. 69. Further, we are

       unconvinced by Owens’s apparent attempt to justify his actions by claiming that

       he “still suffers from the impetuousness of youth.” Appellant’s Br. p. 9. Given

       the totality of the facts and circumstances before us in this consolidated appeal,

       we conclude that Owens has failed to prove that his sentence is inappropriate in

       light of the nature of his offenses and his character.


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


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 69A05-1612-CR-2903 | April 11, 2017   Page 9 of 9
