Moore v. State

• Decision Date: 10 April 1991
• Docket Number: No. 64A04-8912-CR-00592,64A04-8912-CR-00592
• Citation: 569 N.E.2d 695
• Parties: John W. MOORE, Appellant/Defendant, v. STATE of Indiana, Appellee/Plaintiff. 1 .
• Court: Indiana Appellate Court

Page 695

569 N.E.2d 695

John W. MOORE, Appellant/Defendant, v. STATE of Indiana, Appellee/Plaintiff.

No. 64A04-8912-CR-00592 ¹.

Court of Appeals of Indiana Fifth District.

April 10, 1991.

James V. Tsoutsouris, Porter County Public Defender by Roy G. Moutaw, Deputy Public Defender, Portage, for appellant/defendant.

Linley E. Pearson, Atty. Gen. of Indiana, Louis E. Ransdell, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee/plaintiff.

BARTEAU, Judge.

John W. Moore appeals after a jury convicted him of two counts of rape ² and two counts of criminal deviate conduct, ³ all four counts as Class A felonies; one count of criminal confinement ⁴ and one count of attempted criminal confinement, ⁵ both as Class B felonies. On each of the four Class A offenses, the trial judge enhanced the presumptive thirty-year sentence ⁶ to forty-five years and ordered the sentences run consecutively, for a total of 180 years. Both of the Class B offenses were enhanced from the presumptive ten-year sentence ⁷ to seventeen years, and run concurrent to each other and concurrent to the Class A consecutive sentences.

Eight issues are presented:

(1) Was it error to admit evidence that Moore had committed another rape not charged in this trial?

(2) Was the sentence manifestly unreasonable and did the trial court adequately explain its departure from the presumptive sentences?

(3) Was it error to admit the testimony of a police investigator through deposition?

(4) Was it error to admit exhibits that the defense did not see before trial despite a mutual discovery order?

(5) Was it error to deny Moore's motion for directed verdict on the charge of attempted criminal confinement?

(6) Was Moore denied effective assistance of counsel?

(7) Was the evidence sufficient on each count?

(8) Was it error to keep the jury on duty for seventeen hours?

We affirm.

FACTS

Moore abducted seventeen-year-old M.B. at knifepoint from the parking lot of a convenience store in the early morning hours of April 10, 1988. He forced her into his car and drove to one secluded area and then a second, compelling her into anal intercourse and fellatio at the first stop, and raping her at both. Those events were the basis for all the charges except attempted criminal confinement.

Moments before abducting M.B., Moore had run at Jeannine Ullom, who was in a car parked at the same store. Ullom saw Moore approaching, armed with a knife, and locked her car door in the instant before he grabbed the outside door handle. As Ullom drove away, Moore struck the driver's side window with his knife, chipping the glass. The charge of attempted criminal confinement reflects that conduct.

The defense was mistaken identity and alibi. Further facts are supplied where necessary.

EXTRINSIC OFFENSE

(1) Was it error to admit evidence that Moore had committed another rape not charged in this trial?

D.H. testified that Moore had raped her five months before M.B. was raped. Generally, such extrinsic offense evidence is inadmissible; however, where the commission of a crime is undisputed but the identity of the perpetrator is at issue, such evidence is admissible if the charged crime and the extrinsic one are "so strikingly similar that one can say with reasonable certainty that one and the same person" committed both. Penley v. State (1987), Ind., 506 N.E.2d 806, 810.

The parties have ably mustered the facts for and against a holding of striking similarity. According to the State, both M.B. and D.H. were attacked in or near the same shopping mall. In each case, the rapist used a knife; repeatedly struck the victim about the head; drove to a secluded area then committed the rape in the back seat of the car; injured the victim's breasts; took her money; ineffectively blindfolded her, and bragged of his other rapes and his enjoyment of the crime.

Moore points out ten dissimilarities between the two rapes, including: M.B.--taken from a convenience store in the car of her attacker, who openly displayed a knife, who engaged in sodomy and cunnilingus, burned her with a cigarette, threatened to cut her breasts or to kill her, and said nothing about being afflicted with AIDS; D.H.--taken from a tavern in her own car by an attacker who said he had a knife but never displayed it, who committed neither sodomy nor cunnilingus, did not burn her with a cigarette, or threaten to cut or kill her, but did say he had AIDS.

These facts make our Penley inquiry a close question. Aware that sex crimes contain "inherent similarities," Penley, supra at 810, yet realizing that even strikingly similar crimes need not be perfectly identical, we would conclude that D.H.'s testimony was inadmissible under the Penley standard. Cf. Sizemore v. State (1988), Ind., 530 N.E.2d 736, 738 ("carefully prepared strips of towel" to bind victims satisfied Penley ).

However, we need not make that decision. Even if admission of D.H.'s testimony was error under Penley, the error did not affect the verdict and was therefore harmless. Substantial independent evidence supported the jury's verdict. See Staton v. State (1988), Ind., 524 N.E.2d 6, 9. Given that M.B. and Ullom unequivocally identified Moore at trial, and given the quality and quantity of other inculpatory evidence, we are satisfied beyond a reasonable doubt that D.H.'s testimony did not contribute to the verdict. Moreover, although neither party has discussed the point, we see no contemporaneous objection by Moore to admission of D.H.'s testimony. Thus, it could be said that Moore has waived the issue. Akins v. State (1981), Ind., 429 N.E.2d 232, 237, reh'g denied.

It is true, as Moore repeatedly argues, that both M.B. and Ullom initially selected from a photo array the same picture, not of Moore. In Penley, that the victim initially misidentified her attacker compelled the conclusion that admitting testimony of an extrinsic rape not strikingly similar required reversal despite unequivocal identification at trial. However, here both M.B. and Ullom stated when selecting the photo that it resembled the rapist, but was not him. Thus, it cannot be said that M.B. and Ullom misidentified their attacker. Therefore, D.H.'s testimony was not crucial, and reversible error cannot flow from its admission.

SENTENCING

(2) Whether the sentence of 180 years is unreasonable and not supported by an adequate explanation?

Sentencing is within the discretion of the trial court. A sentence authorized by statute will not be revised unless it is "manifestly unreasonable," i.e., "no reasonable person could find such sentence appropriate to the particular offense and offender The trial court's discretion in sentencing is regulated by I.C. 35-38-1-7.1. ⁸ In determining sentence, the trial judge must consider certain factors in mitigation or aggravation, and may consider others. When a presumptive sentence is imposed, the appellate court will presume compliance with I.C. 35-38-1-7.1. Hammons v. State (1986), Ind., 493 N.E.2d 1250, 1254, reh'g denied, 496 N.E.2d 1284.

                for which such sentence was imposed."   Appellate Rule 17(B)
                

However, when a trial court finds aggravating or mitigating circumstances, I.C. 35-38-1-3 requires a statement of reasons underlying the sentence imposed. The explanation cannot merely recite the statutory factors, but must relate in some detail the facts peculiar to the defendant and the crime--thereby assuring the sentence was fair and reasonable. Page v. State (1981), Ind., 424 N.E.2d 1021, 1023, aff'd (1982), Ind., 442 N.E.2d 977, reh'g denied.

An adequate explanation contains at least three elements: (1) a list of all the significant aggravating and mitigating factors, (2) a statement of the specific reason why each factor is aggravating or mitigating, and (3) an evaluation and balancing of the factors. Robinson v. State (1985), Ind., 477 N.E.2d 883. Only one aggravating factor is necessary to enhance a sentence. Thorpe v. State (1988), Ind., 524 N.E.2d 795. The same factors that support imposing enhanced sentences can support consecutive service of them. Parrish v. State (1987), Ind., 515 N.E.2d 516, 521. If an explanation is inadequate, the appellate court has a range of options: ordering an enhanced sentence reduced to the presumptive; ordering consecutive sentences changed to concurrent; remanding for a more detailed statement; or, examining the record for indications that the trial judge engaged in the required evaluative process. Brown v. State (1982), Ind., 442 N.E.2d 1109, 1118, reh'g denied; Erby v. State (1987), Ind., 511 N.E.2d 302, 304; Henderson v. State (1986), Ind., 489 N.E.2d 68, 72.

Here, the trial judge listed five reasons for enhancing the sentences beyond the presumptive. The first three reasons are virtually identical to the three held inadequate in Henderson, supra. However, the statement also mentioned two valid aggravating factors--deliberately burning M.B. with a cigarette and the psychological injury inflicted on her. These reasons are not among the discretionary aggravating factors of I.C. 35-38-1-7.1(b). However, they may be considered mandatory factors under I.C. 35-38-1-7.1(a)(2), or unlisted discretionary factors under I.C. 35-38-1-7.1(d).

The trial judge specifically found no mitigating factors, and Moore advanced none. Thus, there was nothing to balance.

In running the sentences consecutively, the trial judge mentioned only "the Court's requirement not only to deal with rehabilitation but to detention." This statement by itself is insufficient to explain why the enhanced forty-five year sentences were transformed into a sentence of 180 years, because a forty-five year sentence would also deal with detention. However, the sentencing record contains the two valid aggravators. Therefore, the trial judge's sentencing statement is adequate. Thorpe, supra; Parrish, supra. We hold the sentence imposed not manifestly unreasonable. Moore committed a brutal crime; Judge Bradford imposed a harsh...