Danny J. Howe v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 02 2017, 8:40 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office Attorney General of Indiana
Brooklyn, Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Danny J. Howe, November 2, 2017
Appellant-Defendant, Court of Appeals Case No.
60A01-1701-CR-238
v. Appeal from the Owen Circuit
Court
State of Indiana, The Honorable Lori Thatcher
Appellee-Plaintiff Quillen, Judge
Trial Court Cause No.
60C01-1509-F1-431
May, Judge.
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[1] Danny J. Howe appeals his thirty-nine-year sentence for Level 1 felony
attempted murder 1 and Level 6 felony obstruction of justice. 2 Howe argues that
sentence is inappropriate in light of his character and offense. We affirm.
Facts and Procedural History
[2] Howe dated Jenifer Pickett off and on between December 2014 and April 2015.
Thereafter, the two remained friends, corresponding online and occasionally
spending time together. Howe continued to express interest in their friendship
developing into a romantic relationship, but Pickett was not interested. During
the summer of 2015, Howe began showing up at Pickett’s house at unexpected
times. On September 11, 2015, Pickett informed Howe that she was dating
someone else, and Howe texted Pickett that he was going to kill himself
because she would not be in a relationship with him. The next morning, when
Pickett let her dog outside, Howe was standing in her back yard and tried to
talk to her, but she screamed and her neighbor called the police. Pickett
cancelled a date scheduled for that evening with David Sheese because she was
concerned that Howe would follow them.
[3] In the late afternoon on September 17, Sheese and Pickett went on a motorcycle
ride, and then Sheese dropped Pickett off at her house between 8:00 and 8:30 in
1
Ind. Code §§ 35-42-1-1(1) (2014) & 35-41-5-1(a) (2014).
2
Ind. Code § 35-44.1-2-2(a)(3) (2014).
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the evening. As Sheese was driving out of Pickett’s neighborhood, he noticed
headlights pull out behind him and begin to follow him. He believed the
headlights were for a Jeep, which was the kind of vehicle Pickett had told
Sheese that her ex-boyfriend, Howe, drove. Because Sheese was concerned
Howe was following him, Sheese pulled into a restaurant parking lot. Howe
pulled the Jeep into a parking lot down the street, turned it around to face
Sheese, and turned off his headlights.
[4] When Sheese pulled out of the parking lot, Howe resumed following him.
Sheese tried to lose Howe by weaving in and out of traffic, speeding, passing
numerous cars, and taking a circuitous route, but Howe caught up with Sheese
a couple of miles before Sheese arrived home. Sheese did not want to lead
Howe to his house, so he kept driving and turned back toward town. A few
miles later, after following Sheese for over twenty-three miles, Howe rammed
the back of Sheese’s motorcycle with the front of the Jeep, sending Sheese and
the motorcycle flying into the ditch on the right side of the road.
[5] Sheese landed on his right side and felt pain in his chest. He saw Howe exit the
driver’s door, retrieve a shotgun from the back seat of the Jeep, and begin
walking toward where Sheese and his motorcycle were lying in the ditch.
Sheese decided to play dead as Howe used the barrel of the gun to look through
the weeds for Sheese. When the barrel of the gun came close to Sheese, he
grabbed the barrel and attempted to pull the gun away from Howe. Howe
managed to keep ahold of the gun and backed up three or four steps from
Sheese. Sheese jumped up and screamed that he did not want to die.
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[6] Without saying anything, Howe raised the shotgun to his hip and pulled the
trigger. The shot hit Sheese’s right arm and the right side of his body. The shot
shattered Sheese’s forearm, leaving his arm dangling by the skin. Sheese felt
“the worst pain you could ever have,” (Tr. Vol. 3 at 83), and believed he “was
going to die any minute.” (Id.) Sheese thought he was too injured to run away,
so he fell to the ground to play dead again. Howe walked up close to look at
Sheese and then returned to the Jeep and sped away. That night, Howe
disposed of the shotgun in a lake and his Jeep was destroyed by a suspicious fire
in Howe’s garage. 3
[7] After Howe sped away, Sheese tried to locate his cell phone but could not. He
stood to walk to the house down the road, but he did not have the strength to
walk and returned to the ground. A passing car stopped, and the passengers
called authorities and rendered first aid. Sheese was rushed to the hospital
where he had exploratory surgery of his chest and abdomen to ensure he did
not have any internal injuries from the gunshot wounds. Sheese has had
multiple surgeries on his arm, including placement of a steel rod and bone grafts
using bone removed from his hips, and he is expected to need additional
surgeries in the future. After the blast “there was no skin left on the inside of
[Sheese’s] forearm,” (id. at 92), so doctors had to stretch the skin from the
outside of Sheese’s forearm to cover the inside of his arm.
3
An officer from the State Fire Marshall’s Office testified no criminal charges were filed with respect to the
fire because “we couldn’t classify it to an acceptable scientific level of certainty.” (Tr. Vol. 2 at 98.)
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[8] The State charged Howe with Level 1 felony attempted murder and Level 6
felony obstruction of justice. A jury found Howe guilty of both. After another
hearing, the court sentenced Howe to concurrent sentences of thirty-nine years
for attempted murder and two and a half years for obstruction of justice. The
court entered a written order that included the following statement:
The Court finds that there are significant aggravating
circumstances that exist in this case. The defendant has
expressed no responsibility for his actions. The defendant at trial
attempted to place the blame for his actions on an ex-girlfriend
breaking his heart and playing with his emotions. The defendant
at sentencing still will not accept full responsibility for the totality
of his actions and the emotional, physical and financial toll it has
had upon the victim. The Court finds that defendant by failing to
accept responsibility and by refusing to be held accountable
mentally for his actions cannot substantiate to this Court that this
type of criminal behavior may not happen in the future. The
Court re-enforces this position by looking at the defendant’s prior
criminal history. The past criminal history is significant in that it
is similar to the stalking conduct that resulted in this crime
occurring. The defendant has prior crimes of invasion of privacy.
It is also relevant that the defendant pursued the victim for over
20 miles and had numerous opportunities to change his mind and
not commit these crimes. The conduct was planned and
calculated both before and after the contact with the victim. The
victim has suffered significant mental and medical health issues
that are directly related to the actions of the defendant. The
injuries suffered were extensive and will require further surgeries
and will result in future trauma and pain for the victim. The
injuries suffered are in excess of those normally associated with
an attempted murder conviction. The [victim] played dead and
as a result the defendant fled the scene leaving the victim laying
on the side of the road. It is only because a paramedic and a
good Samaritan drove by and saw him and administered
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emergency aid that the victim is alive today. Certainly had the
victim died the defendant would be serving no less than a
minimum of 45 [y]ears at the Department of Corrections [sic]
and potentially much more. This Court finds that to sentence the
defendant to anything less than 39 years would undermine the
seriousness of this offense and the manner in which it was
committed. The Court finds that there are no mitigating
circumstances. The Court finds that the aggravating
circumstances significantly outweigh the mitigating
circumstances.
(Appellant’s App. Vol. 2 at 167-68.)
Discussion and Decision
[9] We may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633
(Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider the
aggravators and mitigators found by the trial court and also any other factors
appearing in the record. Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App.
2016), trans. denied. The appellant must demonstrate his sentence is
inappropriate. Id. at 418.
[10] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The
sentencing range for a Level 1 felony is “a fixed term of between twenty (20)
and forty (40) years, with the advisory sentence being thirty (30) years.” Ind.
Code § 35-50-2-4 (2014). The sentencing range for a Level 6 felony is “a fixed
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term of between six (6) months and two and one-half (2 ½) years, with the
advisory sentence being one (1) year.” Ind. Code § 35-50-2-7(b) (2014).
[11] Howe asserts the nature of his offense was “unremarkable,” (Br. of Appellant at
7), and “not atypical of other attempted murders.” (Id.) We disagree. Howe
had never met Sheese, and Howe’s only reason for having contact with Sheese
was that Sheese had started dating the woman who had stopped dating Howe
approximately five months earlier. Howe followed Sheese more than twenty
miles, drove his Jeep into Sheese and his motorcycle, and then, without saying
a word, shot Sheese from three paces with a shotgun and left him for dead. To
try to hide his guilt, Howe threw the shotgun in a lake, and lied to police about
its location. Thirty-nine years is not inappropriate for those crimes.
[12] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). The significance of a criminal history in assessing a defendant’s
character varies based on the gravity, nature, and number of prior offenses in
relation to the current offense. Id.
[13] In 1991, Howe paid a fine for carrying a concealed weapon without a permit,
and in 2005, Howe committed invasion of privacy in two separate counties, and
one of the offenses involved violation of a protective order. For those crimes,
Howe served time in jail and on probation. As the trial court noted at
sentencing, Howe’s criminal history is significant because of its similarity to the
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behavior Howe was exhibiting toward Pickett, which lead to Howe shooting
Sheese.
[14] Also relevant to Howe’s character is his denial of responsibility for the injuries
he inflicted on Sheese. At trial, Howe asserted he was following Sheese
because Sheese shook his fist at Howe and his Jeep hit Sheese because Sheese
“just stopped suddenly.” (Tr. Vol. 3 at 135.) Howe also claimed he
approached Sheese in the ditch without his gun and, when he got close, Sheese
“popped his eyes open real big and growled and showed his teeth,” (id. at 138),
which is why Howe ran back to the Jeep for his gun, “pointed it at the ground
and fired one shot at – at the ground.” (Id. at 141.) Howe asserted he did not
know Sheese was injured when he sped away from the scene, but yet Howe did
not bother to report the accident to police and he disposed of the gun in a lake.
Howe’s behavior after leaving the scene of what he alleges was just an accident
undermines his version of events and his character.
[15] In light of all those facts, we cannot say Howe’s thirty-nine-year sentence is
inappropriate in light of his character and his offenses. Accordingly, we affirm.
[16] Affirmed.
Barnes, J., and Bradford, J., concur.
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