Payton v. State
| Decision Date | 24 July 2013 |
| Docket Number | No. 47A01–1211–CR–512.,47A01–1211–CR–512. |
| Citation | 990 N.E.2d 995 |
| Parties | Zane PAYTON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Lawrence Superior Court; The Honorable William Sleva, Judge; Cause No. 47D02–1108–FB–950.
Lorinda Meier Youngcourt, Daniel Dixon, Lawrence County Public Defender Agency, Bedford, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Andrew Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Zane Payton (“Payton”) was convicted in Lawrence Superior Court of Class B felony robbery and ordered to serve a twelve-year sentence, with nine years executed in the Department of Correction and three years suspended to probation. Payton appeals his conviction and sentence and raises three issues, which we restate as:
I. Whether the trial court abused its discretion when it refused to instruct the jury on Class C felony robbery, a lesser included offense of Class B felony robbery;
II. Whether Payton's twelve-year sentence is inappropriate in light of the nature of the offense and the character of the offender; and,
III. Whether the trial court abused its discretion when it ordered Payton to pay restitution to the victim.
We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
Sixteen-year-old Payton and three other individuals were attending a party on August 9, 2011, when they decided to rob a Clark gas station in Mitchell, Indiana. After changing their clothes and donning masks, the group drove to the CVS drug store across Highway 37 from the Clark gas station and parked their vehicle.
Payton entered the gas station first and spoke to the gas station attendant, Sujan Singh. Matthew Green then physically restrained Singh, and was assisted by Tommy Jones. Jones was armed with a wooden rod or club similar in size to a police baton or nightstick. The fourth individual, Joshua Turner proceeded toward the counter with Payton.
Payton tried to open the cash register by striking several buttons. After his attempt to open the register failed, Payton and Turner took several cartons of cigarettes, Singh was released, and the group fled from the gas station. After the robbery, Singh discovered that an envelope containing $600 in cash that was placed beneath the cash register was missing.
The gas station's video surveillance system recorded the robbery, and as a result, the responding officers were able to provide descriptions of Payton and his accomplices to other officers patrolling the area. Officer Tyler Trueblood of the Lawrence County Sheriff's Department assisted in the investigation. At approximately 4:00 a.m., Officer Trueblood observed a speeding vehicle, and when he turned around to initiate a traffic stop, the vehicle began to speed up. Eventually the driver pulled the vehicle into a school parking lot and turned off its lights.
When Officer Trueblood turned his spotlight on the vehicle, he noted that one of the individuals was wearing a hat matching the description previously given. Officer Trueblood approached the vehicle and observed packages of cigarettes on the floorboard in plain sight. Another responding officer saw the club that had been used in the gas station robbery. Additional cartons of cigarettes were found in the truck bed and glove box. Payton was a passenger in the truck.
On August 11, 2011, Payton was charged with Class B felony armed robbery. 1 His jury trial commenced on September 18, 2012. At the close of evidence, the trial court refused Payton's request for jury instructions on the lesser-included offenses of Class C felony robbery and Class D felony theft. Payton was convicted as charged.
Payton's sentencing hearing was held on October 18, 2012. The trial court considered Payton's age as a mitigating circumstance and his substantial juvenile history as an aggravating circumstance. The trial court then ordered Payton to serve a twelve-year sentence: nine years executed in the Department of Correction and three years suspended to probation. Payton also stated that he was willing to pay restitution and the trial court ordered him to pay $1150 in restitution to the Clark gas station.
Payton now appeals. Additional facts will be provided as necessary.
Payton argues the trial court abused its discretion when it refused to instruct the jury on Class C felony robbery, a lesser-included offense of Class B felony robbery. “The purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.” Taylor v. State, 943 N.E.2d 414, 416–17 (Ind.Ct.App.2011) (citing Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind.2003)), trans. denied. When a defendant requests a lesser-included offense instruction, the trial court must apply a three-part analysis: (1) determine whether the lesser-included offense is inherently included in the crime charged; if it is not, (2) determine whether the lesser-included offense is factually included in the crime charged; and, if either inherently included or factually included, (3) determine whether a serious evidentiary dispute exists whereby the jury could conclude that the lesser offense was committed but not the greater. Id. at 417 (citing Hauk v. State, 729 N.E.2d 994, 998 (Ind.2000)). Payton argues only that there was a serious evidentiary dispute at trial about whether he committed a lesser-included crime. The trial court should grant the defendant's request for a lesser-included offense instruction if it determines that that there was such a serious evidentiary dispute at trial. Id.
When faced with the issue of whether there is a serious evidentiary dispute about a lesser-included offense, the trial court must evaluate the evidence presented by both parties. Fisher v. State, 810 N.E.2d 674, 680 (Ind.2004). If the trial court made an express finding on the existence or lack of such a dispute, our standard of review for a lesser-included offense instruction is abuse of discretion. True v. State, 954 N.E.2d 1105, 1108 (Ind.Ct.App.2011). This deference reflects and recognizes the trial court's unique proximity to, and understanding of, the evidence. Champlain v. State, 681 N.E.2d 696, 700 (Ind.1997). If the trial court makes no ruling as to whether there is a serious evidentiary dispute, the reviewing court will make a de novo determination based on its own review of the evidence. Garrett v. State, 964 N.E.2d 855, 857–58 (Ind.Ct.App.2012), trans. denied. Here, the trial court did not make a explicit ruling on the evidence, but stated that the tendered, lesser-included instruction would not “meet” the three prong test cited above. Tr. p. 558.
Payton argues that he was entitled to an instruction on Class C felony robbery because there was a serious evidentiary dispute as to whether his accomplice was armed with a deadly weapon. First, we observe that it is undisputed that Class C felony robbery is an inherently lesser-include offense to Class B felony robbery. The element of committing the offense “while armed with a deadly weapon” elevates Class C felony robbery to Class B felony robbery. SeeInd.Code § 35–42–5–1.
On the date Payton was charged, Indiana Code section 35–41–1–8 defined a “deadly weapon” as a weapon “that in the manner it is used; or could ordinarily be used, or is intended to be used, is readily capable of causing serious bodily injury.” 2Indiana Code section 35–41–1–25 defined serious bodily injury as “bodily injury that creates a substantial risk of death or that causes (1) serious permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent or protracted loss or impairment of the function of a bodily member or organ; or (5) loss of a fetus.” 3
Payton's accomplice, Jones, was armed with a wooden rod similar in size to a police baton or nightstick. Ex. Vol., State's Ex. 50. Mitchell Police Department Officer Matt England testified that, like a police baton, the wooden rod or club Jones carried in this case could be used to inflict serious bodily injury on a person. Tr. p. 493. Officer England stated that if a person was struck in the head with the club it would be considered a deadly [ ] weapon.” Id. Similarly, Officer Trueblood testified that a club such as the one that Jones carried can be used with deadly force. The officer also stated that use of the club to hit someone on “the right part of the head” could disable that person and cause serious bodily injury. Tr. p. 391.
The fact that the club was not actually used to harm the gas station attendant is immaterial because Payton and his accomplices certainly had the ability to use the club to cause serious bodily injury. See e.g. Gleason v. State, 965 N.E.2d 702, 708 (Ind.Ct.App.2012) (). Moreover, the club was certainly used to intimidate and cause fear. We conclude that the evidence in this case indisputably establishes that Payton's accomplice, Jones, was armed with a deadly weapon. For these reasons, we conclude that the trial court did not abuse its discretion when it refused to instruct the jury on the lesser-included offense of Class C felony robbery.
Payton next argues that his twelve-year sentence is inappropriate in light of the nature of the offense and the character of the offender. Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of a sentence imposed by the trial court. This appellate authority is implemented through Indiana Appellate Rule 7(B), which provides that a court “may...
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