Salone v. State

• Decision Date: 11 July 1995
• Docket Number: No. 34A02-9410-CR-00608,34A02-9410-CR-00608
• Citation: 652 N.E.2d 552
• Parties: Orza SALONE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 552

652 N.E.2d 552

Orza SALONE, Appellant, v. STATE of Indiana, Appellee.

No. 34A02-9410-CR-00608.

Court of Appeals of Indiana.

July 11, 1995.

Rehearing Denied Sept. 21, 1995.

Transfer Denied Nov. 29, 1995.

William C. Menges, Jr., Howard County Public Defender, Kokomo, for appellant.

Pamela Carter, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellee.

OPINION

FRIEDLANDER, Judge.

Orza Salone appeals his conviction of four counts of Criminal Deviate Conduct, ¹ class A felonies, four counts of Confinement, ² class B felonies, and two counts of Aggravated Battery, ³ class B felonies. Salone presents the following restated issues for review:

I. Did the trial court err in admitting State's Exhibits 7, 12, and 17?

II. Did the trial court err in not restricting the cross-examination of witness T.F.?

III. Did the trial court err in denying Salone's motion for continuance?

IV. Did the trial court err in refusing to give Salone's tendered instruction regarding lesser included offenses?

V. Was the evidence sufficient to sustain Salone's convictions of aggravated battery?

VI. Does IC 35-42-2-1.5 violate the equal protection clauses in the Indiana Constitution and the United States Constitution?

VII. Did the trial court err in sentencing Salone for both criminal deviate conduct and confinement regarding each victim?

VIII. Did the trial court err in imposing enhanced and consecutive sentences?

We affirm in part, reverse in part, and remand with instructions.

The facts favorable to the judgment are that on September 28, 1993, Salone and Troy Moore were staying at the home of two of the victims, T.F., a female, and J.B., a male. Also present that evening were the other two victims, R.P. and his wife C.P. While Moore and Salone were away from the house, T.F. discovered in Salone's room a rock of crack cocaine which was "nearly as big as an egg." Record at 546. T.F. cut off a portion of the rock and returned the remainder. The victims then ingested the cocaine and drank alcohol. At approximately 7:30 p.m., Moore and Salone and a woman arrived at the house and went into Salone's bedroom to eat, where Salone discovered that some of the crack cocaine was missing. Salone armed himself with a shotgun and demanded to know who had his cocaine. After shouting at T.F., Salone directed the victims into the living room, where

"[h]e just started going off and saying he wanted his [cocaine] and nobody was leaving, everybody was going to die and started looking around at everybody, pointing the gun at their heads...." Record at 385.

Salone then began throwing things around the room and breaking objects, including a television, with a hammer. Salone struck T.F. several times with a gun. The victims were ordered to disrobe at gunpoint. While Salone was holding the gun, each victim was ordered to perform various sexual acts with each of the other victims, including oral and anal sex.

At some point, C.P. told Moore and Salone that T.F. had been the one who retrieved the crack cocaine from Salone's room. With Salone still holding the gun, Moore went into the kitchen and retrieved a knife. Moore held the knife over the stove until it was red-hot, then came back into the living room and forced R.P. to hold the knife blade. Moore threatened to shoot R.P. if he did not comply. Moore repeated this procedure four more times, forcing J.B. to hold the knife once and T.F. to hold the knife three times. J.B. was ordered to insert a hammer handle into T.F.'s vagina. While J.B. complied, Moore beat T.F. in the head with a VCR tape. The victims were then ordered to lie face down on the floor and were beaten with a stick by Moore while Salone held the gun.

The victims were ordered to get dressed. Salone then ordered C.P. to "start beating [T.F.] up." Record at 491. When asked how many times C.P. subsequently struck T.F., J.B. responded, "Bunch. Then she picked up a piece of wood and hit her with that a few times, too." Id. Salone then handed the gun to Moore and challenged R.P. to fight. The fight did not last long, however, because R.P. did not fight back. The victims were ordered to go into the basement and the basement door was barricaded shut.

The next morning, J.B. was let out of the basement and ordered to drive Moore, Salone, and the woman to Detroit. The four remained in Detroit for four days. While in Detroit, someone called back to Kokomo and discovered that C.P., R.P., and T.F. had escaped from the basement. J.B. was allowed to return to Kokomo by bus.

Salone was charged with four counts of criminal deviate conduct, four counts of confinement, and two counts of aggravated battery. Salone was convicted on all counts following a jury trial and sentenced to an aggregate term of 180 years.

I

Salone argues that the trial court erred in admitting Exhibits 7, 12, and 17.

A

Exhibit 12 is a photograph of T.F. lying on her back in a hospital bed, with her left arm extended up in the air and her open palm facing the camera. The exhibit was introduced to show the extent and nature of T.F.'s injuries, and reveals extensive contusions on T.F.'s face and arm and severe burns on the palm of her hand. Exhibit 7 is an enlargement of a portion of Exhibit 12, focusing on the burns on the left hand. Salone concedes that either picture, by itself, would be admissible, but contends that introduction of both was cumulative and "unfairly and prejudicially emphasize[d] this single piece of evidence." Appellant's Brief at 7.

The admissibility of photographs is committed to the trial court's discretion and will be disturbed only for abuse of discretion. Jackson v. State (1992), Ind., 597 N.E.2d 950, cert. denied, 507 U.S. 976, 113 S.Ct. 1424, 122 L.Ed.2d 793. In order to establish error, a defendant must show that the improper influence of the photographs outweighed their probative value so as to render them unduly prejudicial. Schweitzer v. State (1989), Ind., 531 N.E.2d 1386. In the instant case, it is incumbent upon Salone to demonstrate that the cumulative effect of seeing both photographs, as opposed to only one, prejudiced the jury against Salone to such an extent as to outweigh the probative value of the exhibits.

The jury viewed a total of five photographs taken of T.F. in the hospital shortly after the attack. In addition to Exhibits 7 and 12, Exhibit 8 depicted extensive cuts and contusions on T.F.'s right leg. Exhibit 9 depicted extensive cuts and contusions on T.F.'s right arm and hand. Exhibit 10 depicted extensive cuts and contusions on the portions of T.F.'s left arm, hand, and fingers which were not visible in Exhibits 7 and 12. We conclude that, in view of the number and character of the photographic exhibits properly in evidence, the prejudicial effect, if any, of Exhibit 7, an enlargement of a portion of Exhibit 12, did not outweigh its probative value. The trial court did not abuse its discretion in admitting Exhibits 7 and 12.

B

Salone contends that the trial court erred in admitting Exhibit 17, a letter written to T.F. and J.B. by Salone while Salone was in the Howard County Jail awaiting trial. Salone contends the trial court erred because the State failed to establish the letter's authenticity.

Proof of authentication is required before documents may be admitted. Brooks v. State (1986), Ind., 497 N.E.2d 210. The admissibility of documents is within the trial court's discretion and will be reversed only upon a showing of abuse of discretion. Id. With regard to the sufficiency of proof of authentication, our supreme court has stated:

"Authentication has been deemed sufficient when the witness knew the alleged author and had corresponded with him, and where the envelope bore the author's return address and the letter contained familiar references and the author's signature." Id. at 216.

See also Indiana Rules of Evidence, Rule 901(b)(4).

T.F. testified that Exhibit 17 was a letter she and J.B. had received from Salone. The letter arrived in an envelope which bore a red stamped inscription stating, "This stamp identifies this correspondence as having been mailed by an offender incarcerated at the Howard County Jail." Record at 584. The letter described in detail, and demanded the return of, certain personal belongings of Salone's which were left in T.F. and J.B.'s home. Finally, the letter was signed "Orza Donutts", which was a nickname of Salone's. T.F.'s testimony concerning the letter and the contents of the letter itself supplied sufficient authentication to support the admission of Exhibit 17.

II

Salone contends the trial court erred in restricting the scope of cross-examination of T.F. in the following instance:

"Q: T.F., your last name's [F.]?

A: Yes.

Q: So when you told the hospital your last name was [B.] you were lying?

A: I never told--". Record at 12.

The State objected to the question and the objection was sustained.

Our supreme court has stated:

"Since the trial judge is in the best position to observe the trial proceeding, the trial judge should control the extent of cross-examination and accordingly will be reversed only on an abuse of discretion. [Citation omitted.] To show abuse of discretion, a defendant must demonstrate how he was prejudiced by the court's actions." Corbin v. State (1990), Ind., 563 N.E.2d 86, 90 (quoting Johnson v. State (1988), Ind., 518 N.E.2d 1073, 1075) (emphasis supplied).

Even assuming for the sake of argument that the trial court erred in sustaining the objection, we cannot discern any resulting prejudice to Salone. Salone's brief argument on this issue fails even to claim prejudice, much less identify its nature. Salone has failed to demonstrate error. Corbin, supra.

III

Salone anticipated that his mother and sister would testify on his behalf at trial. However, as the trial neared conclusion, neither his mother nor his sister were present at trial. Salone submitted an oral motion for continuance in order to permit Salone to secure the...