MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Dec 11 2019, 9:18 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                      Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                     Attorney General of Indiana
Madison, Indiana                                        Lauren A. Jacobsen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael L. Bower,                                       December 11, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1379
        v.                                              Appeal from the Decatur Superior
                                                        Court
State of Indiana,                                       The Honorable Matthew D.
Appellee-Plaintiff.                                     Bailey, Judge
                                                        Trial Court Cause No.
                                                        16D01-1804-F5-530, 16D01-1710-
                                                        F5-1032, & 16D01-1710-F6-1033



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1379 | December 11, 2019                 Page 1 of 11
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Michael Bower (Bower), appeals his conviction for

      felony escape, a Level 5 felony, Ind. Code § 35-44.1-3-4(a).


[2]   We affirm.


                                                  ISSUES
[3]   Bower presents this court with two issues on appeal, which we restate as:


      (1) Whether the State presented sufficient evidence beyond a reasonable doubt

      to support his conviction; and


      (2) Whether Bower’s sentence is inappropriate in light of the nature of the

      offense and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   In 2017, Bower’s ex-wife, was granted a protective order against Bower. On

      October 1, 2017, Bower’s ex-wife called the Decatur County Police Department

      and reported that Bower was following her in his orange Jeep. Detective Mike

      McNealy (Detective McNealy) “overheard the patrol units engage in a vehicle

      pursuit” of Bower and he joined the chase. (Appellant’s App. Vol. IV, p. 36).

      The pursuit of Bower ended in Shelby County on I-74. When the police

      apprehended Bower, they questioned him as to whether he had a gun or if he

      had thrown it out. Bower claimed that he had left his gun at home. During the

      search of Bower’s vehicle, “3 Springfield Amory pistol magazines containing

      live ammunition for a .40 caliber pistol” were located “in the middle console.”

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1379 | December 11, 2019   Page 2 of 11
      (Appellant’s App. Vol. IV, p. 36). On the floorboard, there was “a paddle style

      holster for a Springfield XD pistol.” (Appellant’s App. Vol. IV, p. 36). No

      handgun was found inside Bower’s vehicle or on Bower; however, the next

      morning, a homeowner called the police to report that she had found a

      Springfield XD handgun in her yard. The handgun was along the path that

      Bower had used while fleeing from the police.


[5]   On October 3, 2017, under Cause Number 16D01-1710-F5-1032 (F5-1032), the

      State filed an Information, charging Bower with Level 5 felony stalking. Also,

      under Cause Number 16D01-1710-F6-1033 (F6-1033), the State filed an

      Information, charging Bower with Level 6 felony resisting law enforcement,

      Level 6 felony criminal recklessness, and Level 6 felony obstruction of justice.

      On December 11, 2016, in both Causes, Bower pleaded guilty on all Counts.

      For his Level 5 felony in F5-1032, the trial court sentenced Bower to five years,

      with two and one-half years to be served in home detention, and two and one-

      half years suspended to probation. For his three Level 6 felonies in F6-1033,

      the trial court sentenced Bower to concurrent sentences of two years on each

      Count, with 180 days to be served in home detention, and 540 days suspended

      to probation. Bower’s sentences in F5-1032 and F6-1033 were to run

      consecutively.


[6]   On December 11, 2017, the trial court issued an Order, setting out the terms of

      Bower’s home detention. Among other things, Bower was ordered to remain in

      “the interior portion” of his home and “within the range of the monitoring

      equipment at all times” unless he was working, seeking employment,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1379 | December 11, 2019   Page 3 of 11
      undergoing medical treatment, attending a religious service, or performing

      approved community service work. (Appellant’s App. Vol. IV, p. 58). On

      March 28, 2018, Bower began serving his home detention through Decatur

      Community Corrections. Bower met with the home detention supervisor and

      signed the home detention agreement (Agreement) which mirrored the

      probation Order. Bower’s supervisor then worked out a work schedule with

      Bower, and Bower was fitted with a GPS monitoring device. Bower was

      advised on how to charge his GPS monitor when it issued a low battery alert.


[7]   Three weeks later, on Saturday April 21, 2018, Bower’s tracker notified

      Community Corrections that Bower was outside his home and the battery on

      his GPS monitor was low. Community Corrections officer Eric Adkins

      (Adkins) called Bower to advise Bower to charge his GPS tracker. Bower did

      not pick up Adkins’ call. Adkins texted Bower to relay the same message, and

      he directed Bower to “contact [him] immediately.” (Transcript Vol. II, p. 43).

      Bower did not return Adkins text. Later that evening, Adkins received a

      notification that Bower’s GPS monitor had a “dead battery.” (Tr. Vol. II, p.

      43). Adkins contacted the Greensburg Police Department to report the

      incident.


[8]   On Monday April 23, 2018, Adkins and other officers visited Bower’s home

      and Bower’s mother opened the door. Bower’s mother informed the officers

      and Adkins that they were “too late” since Bower had “packed up and left.”

      (Tr. Vol. II, p. 44). After obtaining consent from Bower’s mother, the officers

      searched for Bower’s GPS monitor, but they could not locate it. On April 24,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1379 | December 11, 2019   Page 4 of 11
       2018, under Cause Number 16D01-1804-F5-530, the State filed an Information,

       charging Bower with Level 5 felony escape. Also, a statewide arrest warrant

       was issued, and probation revocation petitions were simultaneously filed.


[9]    On June 8, 2018, the Arizona Police Department received information that

       Bower was residing in Navajo County, Arizona. Sergeant Kyle Esparza

       (Sergeant Esparza) and another officer traced the location of Bower’s cellphone

       to a car dealership in Snowflake, Arizona. On the same day, Sergeant Esparza

       went to the car dealership, and a man and a woman met him at the door. After

       Sergeant Esparza showed his badge and a photo of Bower, the woman walked

       across the showroom to where Bower was seated. Sergeant Esparza initiated

       contact with Bower, and he informed Bower that he was under arrest. Sergeant

       Esparza attempted to take Bower into custody, but Bower broke free, jumped

       over a chair, exited the showroom, and ran out on foot. Sergeant Esparza

       pursued Bower on foot down Arizona State Route 77. In the middle of a

       southbound traffic lane, Sergeant Esparza tackled and detained Bower.

       Sergeant Esparza searched Bower, but did not find Bower’s GPS tracker.


[10]   On, April 8, 2019, the trial court conducted a jury trial on Bower’s Level 5

       felony escape charge. At the close of the evidence, Bower was found guilty as

       charged. On May 6, 2019, the trial court conducted a sentencing hearing and

       sentenced Bower to an advisory executed sentence of three years in the Indiana

       Department of Correction.


[11]   Bower now appeals. Additional information will be provided as necessary.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1379 | December 11, 2019   Page 5 of 11
                               DISCUSSION AND DECISION
                                        I. Sufficiency of the Evidence

[12]   Bower contends that there was insufficient evidence to convict him of the Level

       5 felony escape. When reviewing a claim of insufficient evidence, it is well-

       established that our court does not reweigh evidence or assess the credibility of

       witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we

       consider all of the evidence, and any reasonable inferences that may be drawn

       therefrom, in a light most favorable to the verdict. Id. We will uphold the

       conviction “‘if there is substantial evidence of probative value supporting each

       element of the crime from which a reasonable trier of fact could have found the

       defendant guilty beyond a reasonable doubt.’” Id. (quoting Davis v. State, 813

       N.E.2d 1176, 1178 (Ind. 2004)).


[13]   To convict Bower of Level 5 felony escape, the State was required to prove

       beyond a reasonable doubt that Bower “intentionally fle[d] from lawful

       detention.” I.C. § 35-44.1-3-4(a). Lawful detention is defined by statute as:


               (1) arrest;


               (2) custody following surrender in lieu of arrest;


               (3) detention in a penal facility;


               (4) detention in a facility for custody of persons alleged or found
               to be delinquent children;




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1379 | December 11, 2019   Page 6 of 11
               (5) detention under a law authorizing civil commitment in lieu of
               criminal proceedings or authorizing such detention while
               criminal proceedings are held in abeyance;


               (6) detention for extradition or deportation;


               (7) placement in a community corrections program’s residential
               facility;


               (8) electronic monitoring;


               (9) custody for purposes incident to any of the above including
               transportation, medical diagnosis or treatment, court
               appearances, work, or recreation; or


               (10) any other detention for law enforcement purposes.


               (b) Except as provided in subsection (a)(7) and (a)(8), the term
               does not include supervision of a person on probation or parole
               or constraint incidental to release with or without bail.


               (c) The term does not include electronic monitoring through the
               use of an unmanned aerial vehicle under [I.C. §] 35-33-5-9.


       I.C. § 35-31.5-2-186(a).


[14]   While Bower admits that he left Indiana and his home, he claims that was

       incapable of forming the necessary intent, thus, he did not intentionally flee

       from lawful detention. In his brief, Bower explains that


               In late May or early June of 2018, [he] awoke from a fugue state
               in Oklahoma. . . . He had no car, no clothes, no money and no

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1379 | December 11, 2019   Page 7 of 11
               identification. He was stuck in waste deep mud and water in a
               ditch by the roadside and had to flag down traffic for assistance.
               He had no idea when or how he ended up in Oklahoma. He
               never had any intention of leaving Indiana.


               Scared and alone, [he] spent two to three weeks in an Oklahoma
               shelter trying to figure how to get back to Indiana without getting
               in trouble. . . . He did not contact police or his home detention
               supervisor. Instead, [he] made contact with a business associate
               who took him to Arizona where he could make money and
               return to Indiana. While in Arizona, he was taken into custody
               by a plain clothes officer and transported to Indiana before he
               could return on his own accord.


       (Appellant’s Br. pp. 13-14). Bower’s arguments amount to a request to reweigh

       the evidence, which we will not do. See Walker, 998 N.E.2d at 726.


[15]   The State presented evidence that under the home detention Agreement Bower

       signed, he was required to be confined in his home unless he had authorization

       to leave. Further, Bower was required to wear his GPS monitor and charge it

       when it issued a low battery warning. On April 21, 2018, Bower’s GPS tracker

       reported that its battery was low, and the gadget eventually shut off. When

       Adkins and other officers visited Bower’s home on April 23, 2018, Bower’s

       mother stated that they were “too late” since Bower had “packed up and left.”

       (Tr. Vol. II, p. 44). A statewide warrant for his arrest was then issued. In June

       2018, Bower was found working at a car dealership in Arizona. Bower’s escape

       was effectuated by being absent from his home. See Grabarczyk v. State, 772

       N.E.2d 428, 432 (Ind. Ct. App. 2002) (holding that a home detention order

       requires the person to stay at home). As such, we conclude that the State

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1379 | December 11, 2019   Page 8 of 11
       presented sufficient evidence beyond a reasonable doubt to convict Bower of

       Level 5 felony escape.


                                         II. Inappropriate Sentence

[16]   Bower contends that his three-year advisory sentence is inappropriate in light of

       the nature of the offense and his character. We may revise a sentence if it is

       inappropriate in light of the nature of the offense and the character of the

       offender. Ind. Appellate Rule 7(B). The defendant has the burden of

       persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d

       1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review “should be to

       attempt to leaven the outliers and identify some guiding principles for trial

       courts and those charged with improvement of the sentencing statutes, but not

       to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895

       N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B) analysis is not to

       determine whether another sentence is more appropriate but rather whether the

       sentence imposed is inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

       2012) (internal quotation marks and citation omitted), reh’g denied. Whether a

       sentence is inappropriate turns on “the culpability of the defendant, the severity

       of the crime, the damage done to others, and a myriad of other factors that

       come to light in a given case.” Cardwell, 895 N.E.2d at 1224.


[17]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       For his Level 5 felony escape, Bower faced a sentencing range of one to six
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1379 | December 11, 2019   Page 9 of 11
       years, with the advisory sentence being three years. I.C. § 35-50-2-6(b). Bower

       received a three-year advisory sentence.


[18]   Turning to the specifics of his offense, following his guilty plea to various

       offenses under F5-1032 and F6-1033, Bower was placed on home detention in

       March 2018. During his first month, Bower attended all of his appointments

       and was in full compliance. On April 21, 2018, Bower failed to charge his GPS

       monitor, and it eventually turned off. When his probation officer and other law

       enforcement officers visited Bower’s home, Bower’s mother stated that Bower

       was long gone. Two months later, Sergeant Esparza located Bower in Arizona.

       When Sergeant Esparza informed Bower that he was under arrest, Bower went

       to great lengths to flee on foot and he had to be tackled in the middle of a

       highway. Based on the evidence, we cannot conclude Bower’s three-year

       advisory sentence is inappropriate in light of the nature of the offense.


[19]   This court has determined that the significance of a criminal history in assessing

       a defendant’s character and an appropriate sentence varies based on the gravity,

       nature, and proximity of prior offenses in relation to the current offense, as well

       as the number of prior offenses. Sandleben v. State, 29 N.E.3d 126, 137 (Ind. Ct.

       App. 2015), trans. denied. In addition to his convictions in F5-1032 and F6-

       1033, which included convictions for stalking, resisting law enforcement, and

       obstruction of justice, Bower has a criminal history dating to 2001 and that

       includes convictions for battery, criminal trespass (multiple), intimidation

       (multiple), conversion, and disorderly conduct. Notably, Bower has been

       subject to petitions to revoke his probation in previous cases.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1379 | December 11, 2019   Page 10 of 11
[20]   Further, Bower has not shown remorse or accepted responsibility for his felony

       escape offense. Bower now claims that most of his crimes were attributed by

       his depression. However, the presentencing report indicated that Bower’s

       mental health was “good.” (Appellant’s App. Vol. III, p. 115).


[21]   In light of the foregoing, Bower has failed to persuade us that his advisory

       three-year sentence is inappropriate in light of the nature of the offense and his

       character.


                                             CONCLUSION
[22]   For the reasons stated, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to convict Bower of Level 5 felony escape, and

       Bower’s three-year sentence is not inappropriate in light of the nature of the

       offense and his character.


[23]   Affirmed.


[24]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1379 | December 11, 2019   Page 11 of 11
