Payne v. State, 49A02-9608-CR-482

• Decision Date: 18 November 1997
• Docket Number: No. 49A02-9608-CR-482,49A02-9608-CR-482
• Citation: 687 N.E.2d 252
• Parties: Marcus PAYNE, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 252

687 N.E.2d 252

Marcus PAYNE, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 49A02-9608-CR-482.

Court of Appeals of Indiana.

Nov. 18, 1997.

M.E. Tuke, Indianapolis, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Carol A. Nemeth, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

SULLIVAN, Judge.

Appellant, Marcus Payne (Payne), appeals his jury convictions for rape, a Class A felony, robbery, a Class A felony, criminal confinement, a Class B felony, and battery, a Class C felony. Two issues are presented on appeal:

(1) whether the evidence presented by the State was sufficient to support his convictions; and

(2) whether the trial court judge improperly imposed enhanced and consecutive sentences.

We affirm.

The facts most favorable to judgment are as follows: At approximately 5:00 a.m. on March 24, 1995, M.H. was approached by an African-American male in the parking lot of the Briarwood Apartments. The man pointed a gun at M.H. and demanded money. She provided him with forty dollars and asked that he not hurt her.

Subsequently, the individual demanded that M.H. take him home in her automobile. While M.H. was driving, the man shot her in her right hip, purportedly to "show [her] that he was in charge, to show [her] that he wasn't playing around." Record at 276. Eventually, he told M.H. to turn onto a secluded dirt road.

After the car became stuck in the mud, the man ordered M.H. to move to the back seat and lie down. He told M.H. to pull her pants down and proceeded to rape her for approximately twenty minutes. Thereafter, he threatened to kill her, but she was able to dissuade him. Before departing, the man asked M.H. if she had anything else he could steal, and she gave him her necklaces.

M.H. was subsequently hospitalized for her injuries. After she was released, M.H. provided the police with a statement and a description of the perpetrator. She later testified that she had sufficient time to observe her attacker. Based upon this description, the investigating officer made a computerized composite picture which was distributed to other police officers and residents of nearby apartment complexes.

On April 2, 1995, Payne was detained by police on an unrelated charge and a photograph of him was obtained. A photo array was subsequently presented to M.H., which was comprised of the photographs of six African-American men, including Payne. The five other men included had approximately the same physical description as Payne. From this photo array, M.H. identified Payne as the man who attacked her.

During trial, the State presented evidence that the bullet removed from M.H. matched a gun found in the appellant's apartment. In addition, a DNA analyst testified that DNA patterns found on the vaginal swab and on the victim's jeans matched a blood sample provided by Payne. Based upon this and other evidence, Payne was convicted on all counts. Payne was sentenced to forty-five years for the rape, forty-five years for the robbery, twenty years for the confinement, and eight years for the battery. The trial court ordered that the rape, robbery, and battery sentences be served consecutively, with the confinement sentence to be served concurrently with the rape sentence.

I. Sufficiency of the Evidence

In a criminal appeal, the State is entitled to the most favorable interpretation of the evidence and all inferences reasonably received therefrom. Boushehry v. State (1995) Ind.App., 648 N.E.2d 1174, 1176, reh'g denied. Evidence is not reweighed, nor is the credibility of witnesses reassessed. Id. Reversal is appropriate only where the appellate court is convinced as a matter of law that the verdict is not supported by the facts of the case and any inferences derived therefrom. Binkley v. State (1995) Ind., 654 N.E.2d 736, 737, reh'g denied.

Payne challenges the sufficiency of the State's evidence. First, he claims that the victim could not have observed the assailant because the incident occurred before dawn. Alternatively, he alleges that the pre-trial identification was impermissibly suggestive.

Because the jury determined that the victim was able to identify her assailant despite the dark and inclement conditions, we will not superimpose our assessment of the evidence over the appropriate and reasonable assessment made by the jury.

In addition, Payne does not sustain his argument that the pre-trial identification was impermissibly suggestive. In the case of photographic displays, the total circumstances and facts of the case need be reviewed to determine whether the display was impermissibly suggestive. Utley v. State (1992) Ind., 589 N.E.2d 232, 237, cert. denied (1993) 506 U.S. 1058, 113 S.Ct. 991, 122 L.Ed.2d 142. Due process is only offended when verbal communications accompany the viewing, or unduly suggestive graphic characteristics emphasize the defendant's photograph. Lane v. State (1983) Ind., 445 N.E.2d 965, 967.

The photo array was composed of the photograph of Payne and those of five other African-American men with similar physical characteristics. The investigating officer used a computer to produce the photographs of the individuals with similar characteristics. The photographs bore no reference to the identities of the respective persons. When the photo array was presented to the victim, there was no suggestion that the picture of the defendant was among the group. The officer also reminded the victim that certain characteristics, such as hair length, could be easily altered. As such, the photo array was not impermissibly suggestive.

The identification evidence might well alone support the convictions. Such evidence, however, was in conjunction with the bullet-gun match and the DNA evidence. The evidence was clearly adequate.

II. Sentencing

The trial court has discretion to impose sentences and will not be reversed unless the sentence is manifestly unreasonable. Wells v. State (1990) Ind.App., 555 N.E.2d 1366, 1373, reh'g denied. A sentence is manifestly unreasonable if no reasonable person could find that the sentence was appropriate for the crime committed and the nature of the perpetrator. Browning v. State (1991) Ind.App., 576 N.E.2d 1315, 1319, op. on reh'g.

To facilitate appellate review, the trial court must state its reasoning with regard to the sentence that it has imposed if more than the presumptive sentence or if made discretionarily consecutive. Morgan v. State (1996) Ind., 675 N.E.2d 1067. Specifically, the sentencing statement must contain three elements: "(1) it must identify all of the significant mitigating and aggravating circumstances, (2) it must state the specific reason why each circumstance is considered to be mitigating or aggravating, and (3) it must articulate that the court evaluated and balanced the mitigating circumstances to determine if the mitigating circumstances offset the aggravating circumstances." Scheckel v. State (1995) Ind., 655 N.E.2d 506, 509. Mere recitation of statutory factors is insufficient to justify enhancement of the sentence; rather, facts particular to the defendant and his crime must be specifically noted as aggravators. Barker v. State (1987) Ind., 508 N.E.2d 795, 798.

As observed in Staton v....