Cox v. State

• Decision Date: 28 October 2002
• Docket Number: No. 79A05-0202-CR-67.,79A05-0202-CR-67.
• Citation: 780 N.E.2d 1150
• Parties: Bradly R.E. COX, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

780 N.E.2d 1150

Bradly R.E. COX, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 79A05-0202-CR-67.

Court of Appeals of Indiana.

October 28, 2002.

Publication Ordered December 18, 2002.

Earl McCoy, Law Office of Patrick Harrington, Lafayette, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Following a jury trial, Bradly Cox was convicted of Criminal Confinement, a Class D felony;¹ Battery, a Class B misdemeanor;² and Invasion of Privacy, a Class B misdemeanor.³ He presents two issues for our review, which we restate as:

(1) whether the evidence was sufficient to support the convictions, and

(2) whether the trial court erred in sentencing.

We affirm the convictions and remand for resentencing.

The record reveals that J.H. had received a permanent protective order against Cox, her ex-boyfriend, on December 4, 2000. On December 9, J.H. had gone to the Mirage, an all-ages dance club and pool hall in Lafayette. While there, J.H. saw Cox enter the club. Cox approached J.H. and forcibly tried to remove her from the Mirage. The owner of the Mirage, Roger Herr, would not allow Cox to take J.H. out of the club and ordered him to let her go. Following the exchange with Herr, Cox then left the club. Cox was subsequently arrested and charged with the crimes for which he was convicted.

I Sufficiency of the Evidence

Cox states that the only consistent testimony established that he did not have any contact with J.H. while at the Mirage. He asserts that the State's witnesses' testimony was contradictory and that J.H.'s testimony is replete with incredible dubiousity. In effect, Cox is asking this court to judge the credibility of the witnesses and does not claim that the State failed to prove the elements of the crimes charged if the testimony of the State's witnesses is credible.

Our standard of review for a sufficiency of the evidence claim is well settled. We will not reweigh the evidence or judge the credibility of the witnesses. VanMatre v. State, 714 N.E.2d 655, 657-58 (Ind.Ct.App. 1999). We will consider only the evidence which supports the conviction and any reasonable inferences which the trier of fact may have drawn from the evidence. Id. at 657. We will affirm the conviction if there is substantial evidence of probative value from which a reasonable trier of fact could have drawn the conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt. Id. at 658. Reasonable doubt is a doubt which arises from the evidence, the lack of evidence, or a conflict in the evidence. Chambers v. State, 551 N.E.2d 1154, 1156 (Ind.Ct.App. 1990).

We will not impinge upon the jury's resolution with regard to the credibility of witnesses unless confronted with testimony of inherent improbability, or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Heeter v. State, 661 N.E.2d 612, 615 (Ind.Ct.App. 1996). A conviction will be overturned only where a victim's testimony is so incredibly dubious or inherently improbable that it runs counter to human experience, and no reasonable person could believe it. Id. However, this exception is applied only where a sole witness testifies. Bowles v. State, 737 N.E.2d 1150, 1152 (Ind.2000).

In this case, because J.H. was not the only witness to testify to the events, we do not address Cox's claim that her testimony was incredibly dubious. That aside, we do note that Cox is correct in asserting that the testimony of the State's witnesses did contain some inconsistencies. However, while there may have been some minor inconsistencies, the testimony of the other witnesses is not wholly unsupportive of J.H.'s testimony as Cox claims. Viewing the testimony of the State's witnesses for what was actually said by each individual, including their statements as to what they did or did not remember seeing, the jury had before it a version of the incident as follows.

J.H. testified that she saw Cox enter the Mirage and that she went to Jeff Michaels, the DJ at the Mirage, to get his help. Michaels testified that J.H. had asked him to call her father and to inform him that Cox was in the Club. J.H. further testified that Cox came to the DJ booth and grabbed her by the arm. Cox then dragged her to the front of the club as she struggled to get away. As Cox dragged J.H., she reached out and grabbed Alex Martinez for help. Martinez, however, because he did not know J.H. well and thought that Cox may have been her brother, boyfriend, or cousin, did not help her but instead told Michaels about what was occurring. After Michaels called J.H.'s father, he went to the front of the club where Cox was holding J.H. by what Michaels believed was her wrist. At this time, Herr, who witnessed Cox dragging J.H. by her arm, told Cox to let go of J.H., an order to which Cox complied after first resisting. Following Cox releasing J.H., Michaels testified that Cox pushed her over a pool table, an act which J.H. characterized as Cox picking her up and throwing her onto the pool table while he yelled at her.

While this version of the incident is completely different than that relayed by Cox and his witnesses,⁴ it was for the jury to determine which version of the incident to believe. See Simpson v. State, 165 Ind. App. 619, 621, 333 N.E.2d 303, 304 (1975)

(stating that it is common for the trial court as the trier of fact to base judgment upon selecting one of two conflicting stories in a criminal case). In such situations the decision to give credence to one story over the other must be a reasoned selection and not an arbitrary decision. Id. Here, a review of the transcript leads us to determine that the decision of the jury to convict Cox of the crimes with which he was charged was not arbitrary and that it was within the prerogative of the jury to determine that Cox was guilty of the crimes charged beyond a reasonable doubt.

II Sentencing

Cox also claims that the trial court erred in sentencing in that the trial court relied upon improper aggravating circumstances and failed to consider all mitigating factors. Cox also asserts that his sentence is manifestly unreasonable.

Sentencing lies within the discretion of the trial court. Powell v. State, 751 N.E.2d 311, 314 (Ind.Ct.App.2001). Sentencing decisions are reviewed only for an abuse of discretion. Id. When a trial court enhances a sentence, the trial court is required to state its specific reasons for doing so. Id. The sentencing statement must: (1) identify significant aggravating and mitigating circumstances; (2) state the specific reason why each circumstance is aggravating or mitigating; and (3) demonstrate that the aggravating and mitigating circumstances have been weighed to determine that the aggravators outweigh the mitigators. Id. at 315. We examine both the written sentencing order and the trial court's comments at the sentencing hearing to determine whether the trial court adequately explained the reasons for the sentence. Id. A sentence enhancement will be affirmed in spite of a trial court's failure to specifically articulate its reasons if the record indicates that the court engaged in the evaluative processes and the sentence imposed was not manifestly unreasonable. Id.

A single aggravating circumstance may be sufficient to enhance a sentence. Hatchett v. State, 740 N.E.2d 920, 929 (Ind.Ct.App.2000), trans. denied. A sentence enhancement may still be upheld when a trial court improperly applies an aggravator but other valid aggravators exist. Id. However, when we cannot say with confidence that the sentencing judge would weigh the valid aggravators against the valid mitigators in the same way that they were weighed when improper aggravators were considered, we must remand for a new sentencing hearing. Id. (remanding for a new sentencing hearing when only one valid aggravator and two valid mitigators existed).

At sentencing, the trial court made the following statement:

"The Court's going to find the following aggravating and mitigating circumstances: Mitigating circumstances is his youth and his support of family. Aggravating circumstances he has a poor work history, he has a history of criminal activity, including violent criminal activity, he was convicted as an adult in 1998 of a D Felony, Criminal Recklessness, which was possession of a handgun. You were sentenced to 18 months, it was all suspended." Transcript at 170.

The trial court further stated:

"You had two petitions to revoke in that case; you have several operating while suspended pending and the most recent case. I do see a pattern here of irresponsibility and not taking responsibility for actions. It was somebody else's handgun, I didn't know. Driving While Suspended weren't my fault. There is some problems with accidents and no insurance, although looking at your driving record I see repeated offenses for driving while suspended when you did have actual notice of your suspensions. All the witnesses for the State were lying despite the fact you had an independent witness, Roger Herr, who supported the state's witnesses saying that he saw a man, you, dragging and pulling the victim against her will. You complained at first about a plea agreement you were not offered. However, as Mr. Corrigan has already explained you can't plead guilty when you aren't guilty, and you were saying you were not guilty. And I find that those aggravators outweigh any of the mitigators. You've had chances at probation in the past and that has not proved to be successful." Tr. at 171.

A. Aggravating Circumstances

Cox challenges the trial court's reliance upon his criminal history, his pending Operating While Suspended charges, his character,⁵ his poor work history, that he needed rehabilitative treatment in a penal facility, and the filing of petitions to revoke his probation as aggravators.

1. Criminal...