GUILTY IN - Kimberly Dyer, 31, burned, tortured, mutilated, murdered, Elkhart, 22 Oct 2019 *Arrests*

[FrostedGlass]

You can always start a new thread for these people that you want to follow.... just post the link if you do.

The only interest I have in these 2 people due to their involvement in this case, which is why I wanted it here. But it may be better if I just let it die.

I'll still be following them and if anyone is interested, they can bump or pm.

 

[FrostedGlass]

OK, maybe I won't let it die just yet. They finally updated Owen's case; I've been concerned about that notice of appeal getting filed in time:

07/09/2021 = Administrative Event
Defendant as a self-represented litigant files letter to the clerk of the court on June 18, 2021. The Court denies all relief requested for the following reasons: the defendant advised the Court that the defendant intended to appeal his sentence and conviction in this case and requested the appointment of counsel; the Court appointed counsel to represent the defendant in his appeal, but counsel has not yet filed an appearance; the Indiana Court of Appeals will order the court reporter to prepare a record which will include a trial transcript, if the defendant desires a trial transcript outside of the appeal process, the defendant will be provided with a trial transcript upon his payment to the court reporter of the cost for the same; the Court does not have discovery to provide to the defendant as requested; and finally, the defendant will be advised of the contact information for his appellate attorney upon the attorney for filing an appearance of record court. cj
Noticed: Becker, Vicki Elaine
Noticed: Owen, Donald R JR
Noticed: Majerek, Jeffrey
Noticed: Schwartz, Fay
Noticed: Duerring, Marielena
File Stamp: 06/27/2021

07/09/2021 = Automated ENotice Issued to Parties
Hearing Journal Entry ---- 7/8/2021 : Elkhart County Probation;Marielena Duerring;Vicki Elaine Becker;Fay Schwartz;Jeffrey Majerek;Victim Assistance Order of Confinement (Sentenced) ---- 7/8/2021 : Elkhart County Probation;Marielena Duerring;Vicki Elaine Becker;Fay Schwartz;Jeffrey Majerek;Victim Assistance

07/09/2021 = Notice of Appeal Received
Court of Appeals files Notice of Appeal hpd
File Stamp: 07/09/2021

 

[FrostedGlass]

Now this part is finished. I'll still follow the appeal but I may put in a separate thread and link it to this one. We may get some details that we haven't heard.

07/10/2021 = Automated Paper Notice Issued to Parties
Administrative Event ---- 7/9/2021 : Donald R Owen

07/10/2021 = Automated ENotice Issued to Parties
Administrative Event ---- 7/9/2021 : Marielena Duerring;Vicki Elaine Becker;Fay Schwartz;Jeffrey Majerek

07/12/2021 = Notice of Completion of Clerk's Record
Notice of Completion/Certified CCS - Becker/Duerring/Court of Appeals/Indiana Attorney General hpd

07/12/2021 = Clerk Administrative Event
Court of Appeals accepts filing of Notice of Completion of Clerk's Record hpd

 

[FrostedGlass]

The court reporter finally finished the transcript and now the brief is due Jan 24. Duerring states in her motion for extension of time:

There are transcripts consist of fourteen (14) volumes that span twelve (12) days of trial testimony and consist of over 3000 pages.

Hopefully, this will bring up some of the issues the news left out when reporting on the trial.
Angulo's attorney was granted Jan 28 due date. Angulo's appeal: 21A-CR-1465

Owen's appeal: 21S-LW-00333
...
11/23/2021 = Notice of Completion of Transcript
Certificate of Service- Electronically Served 11/23/21
File Stamp: 11/23/2021
12/16/2021 = Motion for Extension of Time to File Brief
Certificate of Service- Electronically Served 12/16/21
Attorney: Duerring, Marielena
Party: Owen, Donald R JR
File Stamp:12/16/2021
12/17/2021 = Order Granting Motion for Extension of Time To File Brief
Being duly advised, the Court GRANTS the appellant's "Verified Motion for Extension of Time to File Appellant's Brief." The appellant's brief shall be filed no later than January 24, 2022.
Judicial Officer:Rush, Loretta H.
Party: Owen, Donald R JR
Serve: Duerring, Marielena
Serve: Rokita, Theodore Edward
File Stamp: 12/17/2021

 

[FrostedGlass]

@Niner
Owen's attorney asked for and was granted another extension.
Angulo's is still due on Jan. 28.

Owen
01/20/2022 = Order Granting Motion for Extension of Time To File Brief
Being duly advised; the Court GRANTS the appellant's "Verified Motion for Extension of; Time to File Appellant's Brief." The appellant's brief shall be filed no later than March 9; 2022.
Judicial Officer: Rush, Loretta H.
Party: Owen, Donald R JR
Serve: Duerring, Marielena
Serve: Rokita, Theodore Edward
File Stamp: 01/20/2022

 

[FrostedGlass]

@Niner Angulo's doc update; I don't know if the lack of page numbers will cause a delay or not.

12/10/2021 = Motion to Set Due Date
Certificate of Service- Electronically Served 12/10/21
Attorney: Shuler, Donald Ray
Party: ANGULO, MARIO M. JR

12/17/2021 = Order Granting Motion to Set Due Date
Having reviewed the matter, the Court finds and orders as follows: 1. Appellant's Verified Motion to Set New Due Date to File Brief of Appellant is granted.
2. Appellant's Brief shall be filed by January 28, 2022.

12/17/2021 = Document Transmitted

01/25/2022 = Received Document
Receive Date: 01/24/22 Appellant's Appendix - Volume 1 lacks page numbers.
Postmark Date: 01/24/2022

 

[FrostedGlass]

@Niner
Mario's appeal is now available. Forty one pages. There's a lot to discuss here, so if anyone wants to join in, feel free. I'm going to go through the appeal and post things that I wasn't able to discuss because it wasn't in the news.

Case # 21A-CR-01465

 

[FrostedGlass]

Robert Porter was one of the main witnesses for the prosecution; he was described as a victim. After listening to the trial, I no longer believe that. I'm convinced that his beating and "robbery" were all about the alleged rape of Kim and not his jewelry.

Here is our Brittany Shank case:
MI - MI - Brittany Shank, 23, Sturgis, St. Joseph County, 30 Nov 2018

This is from the appeal:
Pg 16
Also, before trial occurred in this case, the State filed a Motion in Limine on April
13, 2021. (Appellant’s App., Vol. 2, p. 124-29). The State’s motion sought to limit the
defense from questioning any witnesses, and in particular during any cross examination of Robert Porter, for mention or reference to a missing person investigation by the Saint Joseph County, Michigan police concerning Brittany Shank. (Appellant’s App., Vol. 2, p. 124-29). Mario, through his trial counsel, objected to the States Motion in Limine, arguing that the evidence surrounding the investigation into Brittany Shank was eerily similar to that of Kimberly Dyer - that there was a meth house that similar activities to the Old Orchard Lane home, that the deceased was buried in a can or a barrel and then stuffed in a location and that duct tape was involved. (Tr. Vol. 4, p. 61-65). In particular, Mario’s trial counsel argued that Robert Porter was investigated and interviewed as part of that case, and the similarities may prove relevant to the defense theories of the case that the wrong individual was charged, and that the murderer is Robert Porter. (Tr. Vol. 4, p. 61-65). After discussion, the trial court overruled the objection and granted the State’s Motion
in Limine. (Tr. Vol. 4, p. 61-65).

The case then proceeded to trial on April 20, 2021. During Mario’s case in chief,
he sought to call Brendan Williamson as a witness. The purpose of calling Williamson
was to impeach the prior testimony of Robert Porter. (Tr. Vol. 10, p. 194). However,
Williamson refused to testify, thereby making himself unavailable. (Tr. Vol. 10, p. 175). As a result, Mario’s trial counsel sought to call Commander Mark Daggy and to have Daggy testify about his conversation with Williamson, where Williamson shared that Porter admitted to him that he had killed Kimberly. (Tr. Vol. 10, p. 193). Specifically, Williamson indicated to Daggy that Porter’s admission to him contained specific information about Kimberly Dyer’s murder and how it occurred. (Tr. Vol. 10, p. 193). After discussion and argument, the trial Court denied Mario the opportunity to question Daggy concerning these matters, ruling that it was hearsay within hearsay. (Tr. Vol. 10,p. 193-216).

Pg 25
When Porter was initially asked about the Brittany Shank matter in his deposition,
he immediately became defensive. (Appellant’s App., Vol. 2, p. 131). When asked if he
knew Brittany Shank, he responded, “Sir, that -- that has nothing to do with me.”
(Appellant’s App., Vol. 2, p. 131). When Mario’s trial counsel noted he was going to
investigate the similarities between the Brittany Shank case and the instant case, Porter responded, “This totally ain’t cool. I’m about to be done answering questions real quick.” (Appellant’s App., Vol. 2, p. 132). The jury didn’t get to hear Porter respond to these questions or later questions about the similarities between the Shank matter and the instant case, to gage his demeanor. (Appellant’s App., Vol. 2, p. 142). Such would necessarily played a role in their overall assessment of Porter as a witness and how to discern his credibility.

 

[FrostedGlass]

I probably should have posted this first. I'll continue posting for anyone who is interested but can't access the appeal. Issue #2 was the above post about Porter.

Four Issues presented for review
1. Whether the trial court’s joinder of Mario Angulo’s case with Donald Owen’s
constituted an abuse of discretion as it nullified Mario’s Sixth Amendment
rights.
2. Whether the trial court’s grant of the State’s Motion in Limine concerning cross
examination of a witness, along with excluding testimony and questioning to
impeach that witness, denied Angulo the opportunity to present his theory of
the case, thereby resulting in a denial of due process by violating Mario’s Sixth
Amendment and Fourteenth Amendment rights.
3. Whether the State presented insufficient evidence to sustain Mario’s conviction
for the offense of Robbery Resulting in Serious Bodily Injury.
4. Whether the trial court’s sentence, consisting of four (4) enhanced sentences
imposed consecutively that resulted in an aggregate one hundred twenty seven
year (127) years sentence, is inappropriate considering the nature of the offense
and the character of the offender.

 

[FrostedGlass]

The first part is the actual summary and the second part is from the argument. As a side note: Owen also opposed the joinder.

SUMMARY OF THE ARGUMENT
#1 The trial court erred in permitting the joinder of Mario’s case with Donald’s case
for trial. While the necessary elements of the joinder statute were satisfied, not enough consideration was given to how it put Mario in an untenable situation. His Sixth Amendment right to compel witnesses to testify on his behalf was taken away as he was unable to call Donald Owen as a witness, due to Donald’s Fifth Amendment right to not be a witness at his own trial. By permitting joinder, the trial court partially dictated Mario’s trial strategy and violated his rights under the Sixth Amendment to the U.S. Constitution.
*****
The process of joinder and the applicable standard of review puts criminal
defendants such as Mario in an untenable situation. If a defendant objects to joinder, as Mario did, he must show what harm will occur by the joinder. Mario did so, in particular highlighting the conflict between his Sixth Amendment right to subpoena and compel testimony on his behalf, and Donald’s Fifth Amendment right to remain silent at his own trial. (Appellant’s App., Vol. 2, p. 63-68). Mario stated in his objection that “[he] believes he has a bona fide need for Owen’s testimony to adequately defend against the charges levied against him.” (Appellant’s App., Vol. 2, p. 65).
The trial court dismissed these concerns as speculative.

 

[FrostedGlass]

@Niner Issue #3 pertains to the robbery

SUMMARY OF THE ARGUMENT
In the alternative, the State presented insufficient evidence to sustain Mario’s
conviction for Robbery Resulting in Serious Bodily Injury. Specifically, there was
insufficient evidence that the alleged victim of the Robbery - Robert Porter - actually had any property taken from him. While he testified to such, no other evidence corroborates Porter’s testimony. Significantly, another witness, based on the subject matter of her testimony, could have corroborated the taking of property. But no such corroborating evidence was submitted. Considering the high burden of establishing guilt beyond a reasonable doubt, it should be found that the evidence in the case is insufficient as to the Robbery offense and that conviction should be vacated accordingly.
**
The evidence that anything was actually taken from Porter comes solely from
Porter himself, when he very briefly claims that prior to being zip-tied, Matt and Donald notice he is wearing jewelry - several necklaces and a ring - and come take it off of him. (Tr. Vol. 6, p. 116-17). While there is evidence that a message earlier from Mario to Donald referenced having a “lick,” slang for a robbery target, Porter’s testimony is the only evidence that property was actually taken. See Neal v. State, 14 N.E.2d 590 (Ind. 1938) (holding that for an action to constitute robbery, there must be “asportation,” that is, a showing that property was actually taken from possession of the victim into that of the robber). Significant in this matter, is that there was opportunity for Porter’s allegation to be corroborated. Hope Lowry testified at length concerning the interactions she witnessed involving Porter and Donald, Matt, and Mario. (Tr. Vol. 7, p. 32-53). She never mentioned that anything was ever taken from Robert by anyone.
The evidence needs to establish each element beyond a reasonable doubt. For these reasons, Mario respectfully requests this Court to find the evidence presented as to his conviction for Robbery Resulting in Serious Bodily Injury insufficient as a matter of law and to therefore vacate his conviction for that offense accordingly.

 

[Niner]

Looks to me Porter got a sweet deal for his cooperation in this case. I think Mario should get another trial - or at least his sentence reduced.

Thanks for all info!

 

[FrostedGlass]

Looks to me Porter got a sweet deal for his cooperation in this case. I think Mario should get another trial - or at least his sentence reduced.

Thanks for all info!

I strongly suspect Porter's not the only one who got a sweet deal. BTW, Porter has an extradition hearing today. It was filed yesterday but there's no other info on it. Mag. Ditton will hear it at 1:00 pm and he usually live streams.

I've been undecided about Mario's charges. It's hard to understand how a really good kid (according to his classmates, etc) could do such horrible things. But he was doing meth and who knows how it affected him?

However, we all have a right to a fair trial and I don't feel he got that. His atty Dixon tried really hard to have the Williamson testify but the court blocked him. W was willing until he discovered he was on a live stream to the public and then he backed out. He said he feared for his family and himself. IIRC, the witnesses for the state were not shown on the live stream.

 

[FrostedGlass]

The last argument is long and complex. I've tried to pick some of the issues that were the most clearly explained. His good character was discussed at length, too.

#4 Mario’s Sentence is Inappropriate
In the alternative, Mario challenges his aggregate one hundred twenty seven (127)
year sentence as inappropriate under Ind. Appellate Rule 7(B).
***
Under I.C. § 35-50-2-3(a), an individual who commits Murder may be sentenced
for a fixed term between forty-five (45) and sixty-five (65) years, with the advisory sentence being fifty-five (55) years. Under I.C. § 35-50-2-4.5, an individual who commits a Level 2 felony - the Robbery Resulting in Serious Bodily Injury offense - may be sentenced for a fixed term between ten (10) and thirty (30) years, with the advisory sentencing being seventeen and one-half (17 ½) years. As to the Criminal Confinement offenses, both Level 3 felonies, the range of years for a sentence is between three (3) years and sixteen (16) years, with the advisory sentence being nine (9) years. I.C. § 35-50-2-5(b). The trial court imposed the maximum sentence possible under the circumstances, imposing the maximum on each charged offense and running the sentences consecutively. It is this aggregate sentence - one hundred twenty seven (127) years - that Mario challenges asinappropriate under Ind. Appellate Rule 7(B).

4.2.1. The Nature of the Offense
These offenses are certainly serious, but contextually, they cannot be divorced from
the methamphetamine induced haze under which they occurred. Such does not reduce the seriousness of the offenses, but does distinguish the offenses from those that could be considered the worst of the worst of these types of offenses, which would include premeditation or lying in wait. It is generally observed in Indiana that maximum sentences are most appropriate for the worst offenses. Buchanan v. State, 767 N.E.2d 867, 873 (Ind. 2002), citing Evans v. State, 725 N.E.2d 850, 851 (Ind. 2000). The role of substance abuse and the lack of premeditation distinguishes this from the worst of the worst, and thus the imposition of the maximum sentence possible under the circumstances should be considered inappropriate. As such, Mario’s sentence is deserving of review by this Court.

4.3. Revision is Appropriate
In considering revision of Mario’s sentence in this case, it is significant that his
sentence operates a practical life sentence. Based on the term of Mario’s sentence and
possible credit time, Mario’s earliest release date from the Department of Corrections
would be approximately one (1) month before he would turn one hundred fifteen (115)
years old.1 Generally, a male’s life expectancy in the United States is approximately
seventy-six (76) years. Mario’s sentence may be reasonably concluded to be a life
sentence; the jury, when given the opportunity to recommend a life sentence without
parole, specifically rejected that option, instead recommending a term of years. (Tr. Vol. 13, p. 224).

CONCLUSION
For the foregoing reasons, Mario respectfully requests this Court to find the trial
court committed reversible error by joining his case with Donald Owen’s, thereby denying Mario his Sixth Amendment right to compel witnesses at his trial. Similarly, Mario respectfully requests this Court to find the trial court’s evidentiary decisions limiting the scope of Mario’s defense denied him a meaningful opportunity to present his theory of the case to the jury, violating Mario’s due process rights. Both these findings should result in remaining Mario’s case for a new trial. In the alternative, Mario respectfully requests this Court find that there is insufficient evidence to sustain his conviction for Robbery Resulting in Serious Bodily Injury and to therefore vacate his conviction for the same. Finally, in the alternative, Mario respectfully requests this Court to utilize its power under Ind. Appellate Rule 7(B) to review his sentence as inappropriate and to revise his sentence downward accordingly.

 

[FrostedGlass]

Owen's appeal has been filed; I'll go through the 19 page appeal over the next few days and post some of the info that didn't come out during the trial.

Murder 20C01-1912-MR-000006
Appeal 21S-LW-00333
Here is the argument:
A. There was insufficient evidence to establish beyond a reasonable doubt that Owen was a major participant in the murder of Dyer.

B. The trial court abused its discretion in refusing Owen’s penalty phase jury instructions which properly instructed the jury that the law required proof beyond a reasonable doubt that Owen’s intentionally committed the murder and that he must be proven to be a major participant in the murder before they could recommend a sentence of Life Without Parole.

C. An abuse of discretion concerning the sentencing of a defendant occurs either, when the aggravators listed by the trial court are either improper because they are an element of the crime charged, or the trial court finds that an aggravating circumstance exists that is not supported by the record.
*************
Regarding B, here is a snip from his trial entry on 05/18/2021:
Court declines to enter Deft Owen's proposed instructions 1 through 10 as none of the instructions are pattern instructions and the Court determines that the proposed instructions are already part of the cumulative instructions which the Court will give on Phase II of the trial. cj

 

[FrostedGlass]

Following is the summary of the argument; I'll do parts A,B and C as individual posts as to avoid info overload. I'm leaving part A for last as it's the most detailed.

SUMMARY OF THE ARGUMENT
In order for the state to establish the special aggravating factors as alleged it was vital that
the evidence established that Owen was a major participant in the murder of Dyer. This was not merely a mitigating circumstance as indicated in the court’s instructions to the jury in the penalty phase. In addition, it was critical that the jury understood that the level of culpability had increased from “knowingly” to “intentional” between the guilt phase and the penalty phase. Not only was the jury not instructed on these important factors, but there was also a distinct lack of probative evidence to support a finding that Owen was a major participant as well as support a finding that he “intentionally” killed Dyer.
Moreover, the trial court found aggravating factors in sentencing Owen that not only were not supported by the evidence, they were directly contrary to what the evidence established. As such the trial court abused its discretion in sentencing Owen to Life Without Parole and to the
maximum term of years allowed by law for the remaining counts.

 

[FrostedGlass]

B
The trial court abused its discretion in refusing Owen’s penalty phase jury instructions which properly instructed the jury that the law required proof beyond a reasonable doubt that Owen’s intentionally committed the murder and that he must be proven to be a major participant in the murder before they could recommend a sentence of Life Without Parole.

** ** Snips from the discussion
In the case at bar there were significant changes regarding intent and culpability that the
jury had to determine between the guilt phase of the trial and the penalty phase. In the guilt phase the jury was instructed that it only had to find that Owen “knowingly” killed Dyer.

Moreover, the state’s theory of liability was hinged upon the argument that Owen “aided, induced or caused” Dyer’s death under the theory of accomplice liability. Nothing in the court’s instructions to the jury during the penalty phase informed the jury that there was any difference in the level of culpability between “knowingly” and “intentional”. Moreover, nothing in the court’s final instructions during the penalty phase informed the jury that they must find that Owen was a major participant in the murder of Dyer before they could find that the state proved the aggravating circumstances beyond a reasonable doubt.

Specifically, Owen’s proposed instructions 2, and 7 set forth these important legal concepts.

 

[FrostedGlass]

C. An abuse of discretion concerning the sentencing of a defendant occurs either, when the aggravators listed by the trial court are either improper because they are an element of the crime charged, or the trial court finds that an aggravating circumstance exists that is not supported by the record.

***** Discussion (I formatted and removed most of the citations for easier reading)
In the case at bar, the trial court found a number of aggravating circumstances that were
not supported by the record.
1. The court found as an aggravator that Dyer was “beat and tortured” due to the fact she was believed to be a snitch. It is unsupported by the record that Owen was involved in the beating and torturing of Dyer.
It is also important to note that the jury actually found that the state failed to prove beyond a reasonable doubt that Owen participated in the torture of Dyer by rejecting that as an aggravating circumstance in the penalty phase.

2. The court further found as an aggravator that Owen “allowed” Dyer to have her
head shaved, to be treated in a demeaning manner, to be water boarded and to be duct taped. This also is unsupported by the record based upon what Hope Lowry and Robert Porter as well as others testified to as enumerated above.

3. In addition, the trial court found as an aggravating factor that Owen was “present” when Porter and Angulo strangled Dyer and was “present” when Dyer’s throat was cut. Lowry testified that she never saw Owen lay a hand on Dyer, and that pretty much everything had gone down before Owen arrived and that his involvement was in helping to remove Dyer’s body.

4. The court also found that that it concurred with the jury’s findings with respect to the
special aggravating circumstances. Owen would incorporate his arguments as set forth above
regarding the insufficiency of the evidence to support those aggravators and would further argue that with regards to the aggravator dealing with “criminal gang activity” that there was
insufficient evidence to support a finding that the state proved that there was a nexus between the confinement and murder of Dyer and any gang affiliation that Owen may have. The court in Kilpatrick v. State, 746 N.E.2d 52 (Ind. 2001) held that there must be a showing that there must be evidence of specific intent to further the gang’s criminal goals. See also, Robinson v. State, 730 N.E.2d 185 (Ind. App. 2000) requiring a nexus between gang membership and the crime charged.
Lowry specifically testified that what happened to Dyer had nothing to do with a gang. Moreover, nothing that the state presented in the penalty phase established a connection or nexus between Owen’s alleged gang affiliation and Dyer’s murder.

The trial court abused its discretion in not only sentencing Owen to Life Without Parole, it abused its discretion in considering aggravating circumstances in sentencing Owen to the remaining counts to the maximum allowed by law and running them all consecutively.

 

[FrostedGlass]

Regarding #4: Criminal Gang Activity

As I see it, the problem for Prosecutor Becker was she had no physical evidence on which to convict Owen of the torture and murder of Kim. The DNA excluded him and, as per the appeal, none of the people questioned reported seeing O harm her. IMO, the best she had from the witnesses was Porter's claim that he heard O saying put 'em to sleep; which he interpreted as the command to kill Kim and him.

Owen was not involved with the the activities at the house until Mario told him to come. He wasn't said to be a visitor to the home; so IMO, he really wouldn't have had a motive to kill Kim. He admitted during his sentencing that he beat Porter because "he raped that girl (Kim)." So it seemed unlikely to me that he would then turn around and order her to be put to death.

So, IMO, Becker needed to convince the jury her murder was gang-related and that O had gang leader authority to command M to kill her. There was no dispute that O is a member of the Latin Kings and that he and Mario talked their language in text messages. With that said, the witnesses agreed the whole thing with Kim was about the snitch book and not gang-related activity. O has Almighty King Duke tattooed on his face so it made it easy for the State to make their case that he was the "King Duke".

Murzynski took a plea deal and at that hearing, the judge asked him the usual questions about if anyone had paid or threatened him to take the plea. He said yes and then went on to explain how prosecution said if he didn't, he would be looking at years similar to the other 2. He said he was pleading guilty to what he actually did but not the gang-related charge. He said it was not gang-related. So the judge said he had to plead guilty to the whole plea or none at all. The hearing was stopped but resumed later that day with judge accepting the plea. That action can be seen in his court record.

Murz was asked if he would testify on the witness stand and he said he would. Then he was asked about his testimoney and he replied that he would say the same things he had already said. The judge, prosecution and both defense attorneys thought it would be a bad idea to call him so they didn't. I wonder what he could have said that made all the trial folks so nervous.

 

[FrostedGlass]

A.
There was insufficient evidence to establish beyond a reasonable doubt that Owen
was a major participant in the murder of Dyer.

In the case at bar, the State sought a sentence of life imprisonment without parole by charging four aggravating circumstances:
murder while committing or attempting to commit criminal organization activity,
murder while committing or attempting to commit criminal confinement,
murder while in the custody of a county sheriff, and
murder while the Owen burned, mutilated, or tortured the victim.

If the defendant was convicted of murder under an aiding, inducing or causing theory then evidence that the defendant was a major participant is required. In the case at bar, the evidence did not establish that Owen was a major participant in what was happening to Kim Dyer.

Tylor Saunders, (Saunders) was the owner of the residence located at 56659 Old Orchard Lane, where this all happened. The two main players involved in the confinement and physical violence inflicted upon Dyer were according to Saunders, Mario Angulo and Matthew Murzinski. Owen was not even present when this all began.
When Dyer was first taken downstairs, it was Angulo, Murzinski, and Robert Porter who were involved, with Porter’s role as a guard. Murzinski brought Dyer up and “paraded” her around and Saunders noticed that she had been beat up. During this period of time Owen was not present. Saunders never saw Owen touch her, and for the most part Owen stayed upstairs.

Jose Lopez, (Lopez) also was present during this time. Lopez was told by Angulo that they had Dyer in the basement, Lopez also found Murzinski going through all of Dyer’s belongings. After seeing this he went downstairs and saw Dyer on the floor in the basement. Lopez was then informed that Dyer was being accused of being a snitch. Lopez did see Owen in the basement with Dyer asking her questions, and while Dyer looked unhappy, she was not hurt.

Porter, the man who brought Dyer to the residence, saw Murzinski ordering Dyer into the
basement. That Angulo accused him of raping Dyer and zip tied him in the basement. He said that when he saw Dyer on the floor in the basement her face was messed up and it looked like
she got her “*advertiser censored* kicked”. Owen was not there at that time. Porter observed Angulo waterboarding Dyer. Owen was not in the basement but upstairs. Porter never saw Owen the room alone with Dyer and never saw him interrogating Dyer. Porter admitted to trying to strangle Dyer with a garden hose with the assistance of Angulo, but that Owen had nothing to do with that behavior.

Lowry was also present when Dyer was being confined in the basement and she witnessed
Dyer’s murder. Lowry saw Angulo slit Dyer’s throat with a broken bottle. Lowry never saw Owen lay a hand on Dyer and rarely saw Owen downstairs with Dyer. Lowry testified that things had pretty much already gone down before Owen got there and the most involvement, she saw with Owen was his assistance in removing the body.

This evidence is insufficient to establish that one, Owen “intentionally” killed Dyer, and was a major participant in her death. As such there was insufficient evidence for the jury to find the existence of the aggravating circumstances that would support a sentence of Live Without Parole.