MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Feb 28 2018, 10:06 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Curtis T. Hill, Jr.
Brooke Smith Attorney General of Indiana
Indianapolis, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dustin Scott Anthony Devers, February 28, 2018
Appellant-Defendant, Court of Appeals Case No.
82A04-1708-CR-1749
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff Judge
The Honorable Kelli Fink,
Magistrate
Trial Court Cause No.
82C01-1701-F5-575
Altice, Judge.
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Case Summary
[1] Following a jury trial, Dustin Devers was convicted of Level 5 felony
intimidation, and he subsequently admitted to being a habitual offender.
Devers presents the following issues on appeal:
1. Did the State commit prosecutorial misconduct rising to the
level of fundamental error?
2. Is Devers’s sentence inappropriate in light of the nature of the
offense and his character?
[2] We affirm.
Facts & Procedural History
[3] On January 28, 2017, Edward Brandt called 911 and reported that Devers was
inside an Evansville home, armed with a knife, and had threatened the lives of
all of the home’s occupants. Officer John Matthews of the Evansville Police
Department was the first to respond to the dispatch. Officer Matthews
approached the home and found the interior side door open and the screen door
closed. As he approached, Officer Mathews could hear a male voice yelling
and arguing with someone. Once he reached the door, Officer Mathews could
see inside the home and saw Devers and a younger woman, later identified as
Devers’s girlfriend, Lindsay Clark, sitting at a kitchen table. An older woman,
later identified as Devers’s grandmother, Donna Devers (Donna), was standing
behind Clark. None of the people inside noticed Officer Matthews, and he
continued to observe the situation unfold as he waited for backup to arrive.
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[4] Devers continued to argue and shout at Clark while Donna tried to calm him
down. Devers then grabbed a knife and said to Clark, “okay, are you ready for
this? I’m going to ram this through your head, and I’m going to go away for a
long time.” Transcript Vol. 2 at 16. Devers then held the knife up to Clark’s
throat. At about that time, several backup officers arrived, and while the
officers were formulating a plan, Devers somehow fell to the ground. The
officers then entered the home and Officer Matthews used his taser to subdue
Devers, allowing the other officers to take him into custody.
[5] As a result of these events, the State charged Devers with Level 5 felony
intimidation and filed a habitual offender allegation. A jury trial was held on
June 7, 2017, at the conclusion of which the jury found Devers guilty of
intimidation. Thereafter, Devers admitted the habitual offender allegation.
Following a hearing, Devers was sentenced to six years for Level 5 felony
intimidation, enhanced by four years based on the habitual offender
adjudication. Devers now appeals.
1. Prosecutorial Misconduct
[6] Devers first argues that the State’s comments in closing argument amounted to
prosecutorial misconduct. Conceding that he failed to properly preserve this
issue, Devers argues that the prosecuting attorney’s allegedly improper
statements resulted in fundamental error.
In reviewing a claim of prosecutorial misconduct properly raised
in the trial court, we determine (1) whether misconduct occurred,
and if so, (2) “whether the misconduct, under all of the
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circumstances, placed the defendant in a position of grave peril to
which he or she would not have been subjected” otherwise. . . .
To preserve a claim of prosecutorial misconduct, the defendant
must—at the time the alleged misconduct occurs—request an
admonishment to the jury, and if further relief is desired, move
for a mistrial.
Our standard of review is different where a claim of prosecutorial
misconduct has been procedurally defaulted for failure to
properly raise the claim in the trial court, that is, waived for
failure to preserve the claim of error. The defendant must
establish not only the grounds for prosecutorial misconduct but
must also establish that the prosecutorial misconduct constituted
fundamental error. Fundamental error is an extremely narrow
exception to the waiver rule where the defendant faces the heavy
burden of showing that the alleged errors are so prejudicial to the
defendant’s rights as to “make a fair trial impossible.” In other
words, to establish fundamental error, the defendant must show
that, under the circumstances, the trial judge erred in not sua
sponte raising the issue because alleged errors (a) “constitute
clearly blatant violations of basic and elementary principles of
due process” and (b) “present an undeniable and substantial
potential for harm.” . . . Fundamental error is meant to permit
appellate courts a means to correct the most egregious and
blatant trial errors that otherwise would have been procedurally
barred, not to provide a second bite at the apple for defense
counsel who ignorantly, carelessly, or strategically fail to preserve
an error.
Ryan v. State, 9 N.E.3d 663, 667-69 (Ind. 2014) (citations, footnotes, and
emphasis omitted).
[7] At trial, Donna testified that Devers never threatened Clark, and that he had
instead held the knife to his own throat and threatened suicide. On cross-
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examination, the State elicited Donna’s testimony that she loved her grandson
and would do “just about anything” for him. Transcript Vol. 2 at 99. Further, in
closing arguments, the State asserted that the accounts given by Donna and
Officer Matthews were irreconcilable, and that one of them must be lying. The
State went on to ask the jury to consider Donna’s relationship with Devers and
whether she would lie to protect him. Specifically, the prosecuting attorney
stated:
Obviously, that’s his grandmother, the defendant’s grandmother,
and honestly my grandmother, if I asked her to, which I would
never ask her to do this, but if I asked her to, I’m sure that she
would lie under oath for me, and I don’t blame her frankly. I
think that a grandmother is going to do anything that they can
for their grandsons . . . .
Id. at 112. The State argued further that Donna’s testimony was not credible
because it conflicted with Brandt’s 911 call, in which he reported that Devers
had threatened to kill everyone in the house. Devers argues that these
statements were improper comments on Donna’s truthfulness, and amounted to
prosecutorial misconduct rising to the level of fundamental error. We disagree.
[8] It is well settled that a prosecutor may properly comment on the credibility of a
witness as long as the assertions are based on reasons arising from the evidence.
Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). In closing arguments, a
prosecutor may state and discuss the evidence and reasonable inferences
flowing therefrom so long as there is no implication of personal knowledge
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independent of the evidence. Hobson v. State, 675 N.E.2d 1090, 1096 (Ind.
1996).
[9] Nothing about the prosecuting attorney’s comments suggested personal
knowledge independent of the evidence. Rather, they were proper comments
on Donna’s credibility based on the evidence—i.e., her relationship with
Devers and Brandt’s 911 call. These statements did not constitute prosecutorial
misconduct, much less fundamental error.
2. Sentencing
[10] Devers also argues that his ten-year sentence is inappropriate. Article 7, section
4 of the Indiana Constitution grants our Supreme Court the power to review
and revise criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind.
2014), cert. denied, 135 S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the
Supreme Court authorized this court to perform the same task. Cardwell v. State,
895 N.E.2d 1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence
“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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.
7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial
court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference
should prevail unless overcome by compelling evidence portraying in a positive
light the nature of the offense (such as accompanied by restraint, regard, and
lack of brutality) and the defendant’s character (such as substantial virtuous
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traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d
111, 122 (Ind. 2015).
[11] The determination of whether we regard a sentence as inappropriate “turns on
our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a given
case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895
N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to
leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is
not our goal in this endeavor to achieve the perceived “correct” sentence in
each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under
Appellate Rule 7(B) 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) (emphasis in original).
[12] In order to assess the appropriateness of a sentence, we first look to the
statutory range established for the classification of the relevant offense. Devers
was convicted of a Level 5 felony and adjudicated a habitual offender. The
sentencing range for a Level 5 felony is one to six years, with an advisory
sentence of three years. Ind. Code § 35-50-2-6(b). Additionally, when a
defendant convicted of a Level 5 felony is also found to be a habitual offender,
the trial court shall sentence him to an additional fixed term between two and
six years. I.C. § 35-50-2-8(i). Thus, Devers’s ten-year sentence is two years
short of the maximum sentence allowed under the law.
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[13] With respect to the nature of the offense, we note that the record reflects that
Devers held a kitchen knife to Clark’s throat and threatened to stab her in the
head. According to Brandt, Devers also threatened to kill everyone else in the
house. Devers argues that his acts were fueled by his use of drugs and alcohol
as well as grief over Clark’s recent miscarriage. Even if we accept Devers’s
arguments in this regard, these facts do little if anything to mitigate his
culpability.
[14] Moreover, Devers’s character standing alone is more than sufficient to justify
the sentence imposed. Devers’s criminal history is astonishingly long and
includes nine prior felony convictions and numerous misdemeanor convictions.
As a minor, Devers was adjudicated delinquent five times and once waived into
adult court. Much of Devers’s criminal history has been violent, his probation
has been revoked three times, and he was on parole when he committed the
instant offense. Devers admitted that he had used methamphetamine nearly
every day since 2008 and was injecting approximately half a gram of
methamphetamine daily at the time of his arrest in this case. Devers notes that
he has three children and has been ordered to pay child support, but he does not
direct our attention to any evidence that he has paid support as ordered or been
involved in his children’s lives. Devers also notes that he admitted the habitual
offender allegation, but a guilty plea does not rise to the level of significant
mitigation where the evidence against the defendant is such that the decision to
plead guilty is “purely pragmatic.” Abrajan v. State, 917 N.E.2d 709, 713 (Ind.
Ct. App. 2009). Devers admitted his habitual offender status only after a jury
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trial on the intimidation charge, and given the nature and extent of Devers’s
criminal history, it is clear that the State would have been prepared to try the
habitual offender allegation to the jury as well. Devers’s admission appears to
have been a pragmatic one, and it did not save the State the time and expense of
trial preparation. See Jackson v. State, 973 N.E.2d 1123, 1131 (Ind. Ct. App.
2012) (noting that a habitual offender admission following a trial does not
provide the same benefits to the State and victims as a guilty plea to the
underlying crime), trans. denied. For all of these reasons, we cannot conclude
that Devers’s ten-year sentence is inappropriate.
[15] Judgment affirmed.
[16] May, J. and Vaidik, C.J., concur.
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