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.
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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
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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
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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.
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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
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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
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[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
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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
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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.
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