Tubo D. Owei v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Feb 07 2019, 9:16 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Thoma Curtis T. Hill, Jr.
Leonard, Hammond, Thoma & Terrill Attorney General of Indiana
Fort Wayne, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tubo D. Owei, February 7, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1679
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D04-1803-F6-239
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1679 | February 7, 2019 Page 1 of 10
[1] Tubo D. Owei appeals his conviction of and sentence for Level 6 felony
domestic battery. 1 He presents three issues for our review:
1. Whether the State presented sufficient evidence he committed
Level 6 felony domestic battery;
2. Whether the trial court abused its discretion when it sentenced
him to two years; and
3. Whether Owei’s two-year sentence is inappropriate.
We affirm.
Facts and Procedural History
[2] Owei and B.R. had an off and on romantic relationship and had a child
together. On February 27, 2018, Owei, B.R., and B.R.’s two children 2 were at
home. Owei asked B.R. if he could borrow her deodorant. B.R. scraped off the
top layer of the deodorant to give to Owei because “it’s [D]ove and it’s for
women. So [she] didn’t want him to put it under his arm.” (Tr. Vol. II at 135.)
Owei became irritated, and B.R. left the room.
[3] Owei followed B.R. and started yelling. Owei then punched B.R. in the face,
and the two “started fighting inside the living room[.]” (Id. at 137.) After a few
1
Ind. Code § 35-42-2-1.3(b)(2) (2016).
2
One of the children was Owei’s child.
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minutes during which B.R. and Owei punched each other, Owei picked up B.R.
and threw her down, injuring B.R.’s head. B.R. attempted to reach her phone
to call 911, but Owei began choking her. At some point, Owei obtained a knife,
but B.R. was able to get it away from him. Owei also grabbed a computer cord
and whipped B.R. with it multiple times. B.R. was eventually able to reach the
bathroom, close the door, and call 911.
[4] Police arrived shortly thereafter and arrested both B.R. and Owei. The attack
lasted a total of thirty to forty-five minutes. As a result of the attack, B.R.
suffered two black eyes, a lump on her head, bruises and cuts on her fingers,
and welts and bruises on her back. Owei also sustained injuries: a busted lip, a
loose tooth, and a bleeding head injury.
[5] The State charged Owei with Level 6 felony domestic battery and Class A
misdemeanor interference with the reporting of a crime. 3 A jury returned a
guilty verdict for the domestic battery charge. The trial court convicted Owei of
Level 6 felony domestic battery and sentenced him to two years, with eighteen
months suspended to probation.
Discussion and Decision
3
Ind. Code § 35-45-2-5 (2002).
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Sufficiency of the Evidence
[6] When reviewing sufficiency of evidence to support a conviction, we consider
only the probative evidence and reasonable inferences supporting the trial
court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-
finder’s role, and not ours, to assess witness credibility and weigh the evidence
to determine whether it is sufficient to support a conviction. Id. To preserve
this structure, when we are confronted with conflicting evidence, we consider it
most favorably to the trial court’s ruling. Id. We affirm a conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id. It is therefore not necessary that the evidence overcome
every reasonable hypothesis of innocence; rather, the evidence is sufficient if an
inference reasonably may be drawn from it to support the trial court’s decision.
Id. at 147.
[7] To prove Owei committed Level 6 felony domestic battery, the State had to
present evidence he touched a member of his family or household in a rude,
angry, or insolent manner and the crime occurred in the presence of a child less
than sixteen years old, provided he knew the child was present and would be
able to hear or see the offense. Ind. Code § 35-42-2-1.3(b)(2) (2016). Owei
argues there are several inconsistencies in B.R.’s testimony and her “account of
things does not make sense and is unreasonable given the evidence.” (Br. of
Appellant at 19.)
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[8] B.R. testified that, over a period of thirty to forty-five minutes, Owei punched
her, dropped her causing a head injury, choked her, and whipped her. B.R.
suffered two black eyes, a lump on her head, cuts and bruises on her fingers,
and welts and bruises on her back. The crime occurred in the presence of B.R.’s
small children, whom the evidence demonstrated Owei knew were present.
Owei’s account of the events, in which B.R. was the aggressor and the time
frame of the attack was considerably shorter, is an invitation for us to reweigh
the evidence, which we cannot do. See Drane, 867 N.E.2d at 146 (appellate
court cannot reweigh evidence or judge the credibility of witnesses). B.R.’s
account is neither incoherent nor unbelievable, and we therefore affirm. See,
e.g., Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015) (“For the incredible
dubiosity rule to apply, the evidence presented must be so unbelievable,
incredible, or improbable that no reasonable person could ever reach a guilty
verdict based upon that evidence alone.”).
Sentencing - Abuse of Discretion
[9] Sentencing decisions are within the sound discretion of the trial court, and we
review them on appeal only for an abuse of discretion. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). One
way a court abuses its discretion is by failing to address mitigating
circumstances that are advanced for consideration and clearly supported by the
record. Id. at 490-1. A trial court is not, however, required to accept a
defendant’s claim as to the existence of mitigating circumstances. Harman v.
State, 4 N.E.3d 209, 218 (Ind. Ct. App. 2014), trans. denied. Rather, the
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defendant must “establish that the mitigating evidence is both significant and
clearly supported by the record.” Id. The trial court is not obligated to explain
why it did not find a circumstance to be mitigating. Anglemyer, 868 N.E.2d at
493.
[10] A Level 6 felony has a sentencing range of six months to two and a half years,
with an advisory sentence of one year. Ind. Code § 35-50-2-7(b) (2016). The
trial court sentenced Owei to two years, with eighteen months suspended to
probation. During Owei’s sentencing hearing, the trial court stated:
All right. I hear - I’m having trouble finding some mitigating
circumstances this morning. I did hear him apologize.
Although, it’s hard when to know[,] as the Court[,] how sincere
that is considering he’s been found guilty. I look at the IRAS
score. It does put him at a moderate risk to reoffend. That is an
objective[,] as you know [Defense Counsel,] that allows the
Court to determine whether or not he should remain incarcerated
or put on a suspended sentence with services. I do find that all of
the aggravating factors in this case including prior attempts of
rehabilitation I guess have failed because he had a prior criminal
offense in carrying a handgun. I do agree with the prosecutor
that the facts and circumstances alone push this well above the
advisory sentence. Accordingly, I am going to sentence you to
two years. However, six months will be executed based on the
arguments I hear from [Defense Counsel]. The remaining year
and a half, [Defense Counsel], I will go ahead and place him on
active adult probation. When he is released on active adult
probation, he will have 180 days of community control. That’s
the ankle bracelet[,] Mr. Owei. When you get out or after you
are done completing your executed time you will wear an ankle
bracelet as a condition of probation for 180 days. That will force
you to get a place to live. They will give you time to get hooked
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up. It will force you to get a place to live and to get a job as
you’ve outlined to me.
(Tr. Vol. III at 100-1.)
[11] Owei argues the trial court abused its discretion when it did not recognize his
“ability to maintain employment and minimal criminal history as mitigating
circumstances.” (Br. of Appellant at 23.) However, the trial court is not
required to find his ability to maintain employment as a mitigator. See Newsome
v. State, 797 N.E.2d 293, 301 (Ind. Ct. App. 2003) (“Many people are gainfully
employed such that this would not require the trial court to note it as a
mitigating factor or afford it the same weight as Newsome proposes.”), trans.
denied. It is also not obliged to find as mitigating Owei’s minimal criminal
history. See Robinson v. State, 775 N.E.2d 316, 321 (Ind. Ct. App. 2002) (trial
court is not required to find minimal criminal history as a mitigating factor).
We hold the trial court did not abuse its discretion when it did not assign
mitigating weight to Owei’s ability to maintain employment and minimal
criminal history. See Harman, 4 N.E.3d at 218 (trial court is not required to find
the same mitigators as those offered by defendant).
[12] Owei asserts the trial court’s assignment of aggravating weight to failed
attempts at rehabilitation was an abuse of discretion and states, “[s]imply
because Mr. Owei reoffended does not mean that all efforts at rehabilitation
have failed.” (Br. of Appellant at 24.) Should we determine this aggravator
was improper, “remand for resentencing may be the appropriate remedy if we
cannot say with confidence that the trial court would have imposed the same
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sentence.” Anglemyer, 868 N.E.2d at 491. However, the trial court also found
aggravating the nature of the crime, and Owei does not dispute the use of that
factor as an aggravator. Even disregarding Owei’s failure at rehabilitation, the
trial court considered the nature of the offense a significant aggregator. (See Tr.
Vol. III at 100) (“the facts and circumstances alone push this well above the
advisory sentence”). Accordingly, even if the trial court erroneously found the
aggravator, we are confident the court would have sentenced Owei to two years
for his Level 6 felony domestic battery.
Sentencing - Inappropriate
[13] Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due
consideration of the trial court’s decision, we find the sentence inappropriate in
light of the nature of the offense and the character of the offender. Anglemyer,
868 N.E.2d at 491. We consider not only the aggravators and mitigators found
by the trial court, but also any other factors appearing in the record. Johnson v.
State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s
decision, and our goal is to determine whether the defendant’s sentence is
inappropriate, not whether some other sentence would be more appropriate.
Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. Owei, as the
appellant, bears the burden of demonstrating his sentence is inappropriate. See
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006) (appellant bears burden of
demonstrating sentence is inappropriate).
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[14] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d
at 494. A Level 6 felony has a sentencing range of six months to two and a half
years, with an advisory sentence of one year. Ind. Code § 35-50-2-7(b) (2016).
The trial court sentenced Owei to two years, with eighteen months suspended
to probation.
[15] Owei argues the nature of his offense does not make him the “worst of the
worst offenders,” (Br. of Appellant at 25), and thus his two-year sentence is
inappropriate. We first note Owei did not receive the maximum sentence for
his crime, which is two and a half years. See Ind. Code § 35-50-2-7(b) (2016)
(maximum sentence for Level 6 felony is two and a half years). Additionally,
the State presented evidence he assaulted B.R. for thirty to forty-five minutes;
that he whipped, hit, dropped, and choked her resulting in injuries such as two
black eyes, bruises and cuts on her hands, and a lump on her head; and that the
incident occurred in the presence of B.R.’s children, one of whom was Owei’s
child.
[16] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of
criminal history varies based on the gravity, nature, and number of prior
offenses in relation to the current offense. Id. Owei’s criminal history is
unremarkable, with one prior felony conviction.
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[17] However, taken together, the nature of Owei’s offense and his character do not
lead us to the conclusion that his sentence is inappropriate. See Kunberger v.
State, 46 N.E.3d 966, 974 (Ind. Ct. App. 2015) (sentence in excess of advisory
not inappropriate based on injuries sustained by the victim despite defendant’s
minimal criminal record).
Conclusion
[18] The State presented sufficient evidence Owei committed Level 6 felony
domestic battery. In addition, the trial court did not abuse its discretion when it
sentenced him to two years with eighteen months suspended to probation.
Finally, Owei’s sentence is not inappropriate based on the nature of his offense
and his character. Accordingly, we affirm.
[19] Affirmed.
Baker, J. and Tavitas, J., concur.
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