MEMORANDUM DECISION
Mar 20 2015, 7:18 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr. Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Senaca V. Lapsley, March 20, 2015
Appellant-Defendant, Court of Appeals Case No. 02A05-
1408-CR-399
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Judge
Appellee-Plaintiff.
Cause No. 02D05-1312-FB-247
Brown, Judge.
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[1] Senaca V. Lapsley appeals his convictions and sentence for two counts of
aggravated battery as class B felonies and criminal recklessness as a class C
felony. Lapsley raises two issues, which we revise and restate as:
I. Whether the evidence is sufficient to sustain his convictions; and
II. Whether his sentence is inappropriate in light of the nature of the offense
and the character of the offender.
We affirm.
Facts and Procedural History
[2] At around 12:00 a.m. on December 25, 2013, Lapsley asked his girlfriend,
Tequila James, if she would drop him off to see his brother at Stein Tavern.
James saw that Lapsley had a pistol “on the side of his jacket and the pants
pocket.” Transcript at 107. James dropped Lapsley off at Stein Tavern and
drove away.
[3] At approximately 1:00 a.m. on December 25, 2013, Lapsley, who had
dreadlocks, his brother Lorenzo, and another man entered Sports and Spirits, a
tavern in Fort Wayne, Indiana. There were around fifty people at the bar.
Randy Daniels was working as a doorman at the bar, and Anna Roque and
Zachary Huddleston, both of whom worked as bartenders but were not working
at the time, were socializing with Daniels. At some point, Lorenzo punched a
man in the face, and Daniels rushed over to break up the fight. Daniels
attempted to defuse the situation and, with the help of Huddleston, directed
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Lapsley, Lorenzo, and the third man toward the door. Daniels, with
Huddleston’s assistance, forced the three men to exit the bar through the front
door, and Daniels locked the door.
[4] Within seconds after he exited the building, Lapsley pulled a gun out of his
clothing, pointed it directly through the front window of the bar, and fired the
gun multiple times. Roque was struck in the hand, and Huddleston was struck
in the neck and abdomen. A bullet entered Huddleston’s neck below his chin
and exited out of his jaw, shattering it. A second bullet entered Huddleston’s
abdomen, traveled through his bladder, and struck the femoral artery in his left
leg. Huddleston tried to scream but could not because of the blood in his
throat. Roque helped Huddleston roll over so that he could cough so that he
would not choke on his own blood. A part of one of Roque’s fingers later had
to be amputated as a result of her injuries. Huddleston later underwent
approximately ten operations during three hospital stays totaling about two
months.
[5] In the morning following the shooting, Lapsley told James that Lorenzo had
“knocked out somebody” at Sports and Spirits. Transcript at 112. Later that
night, Lapsley and James were watching the news, and there was a report about
the shooting at Sports and Spirits. When the report showed a picture of the
window of Sports and Spirits with bullet holes in it, Lapsley yelled: “Damn,
that look like my holes I put through the windows.” Id.
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[6] On December 27, 2013, the State charged Lapsley with two counts of
aggravated battery as class B felonies and three counts of criminal recklessness
as class C felonies. The State later alleged Lapsley was an habitual offender. A
two-day jury trial was held in July 2014, at which the jury heard the testimony
of, among others, Daniels, Roque, Huddleston, James, and Fort Wayne Police
Detective Edward Sabo. Roque and Daniels made in-court identifications of
Lapsley, Detective Sabo testified that Roque identified Lapsley in a photo
array, and James testified regarding seeing Lapsley with a gun prior to the
shooting and his statements following the shooting. The jury found Lapsley
guilty as charged and found him to be an habitual offender. Following a
sentencing hearing, at which the court found no mitigating factors and
Lapsley’s criminal history and failed prior attempts at rehabilitation to be
aggravating factors, the court sentenced him to twenty years for each of the
aggravated battery convictions and eight years for one criminal recklessness
conviction. The court vacated two of the convictions for criminal recklessness
due to double jeopardy concerns, ordered that Lapsley serve his sentences
consecutively, and enhanced the sentence for one of the aggravated battery
convictions by thirty years due to the habitual offender finding, for an aggregate
term of seventy-eight years.
Discussion
I.
[7] The first issue is whether the evidence is sufficient to sustain Lapsley’s
convictions. When reviewing claims of insufficiency of the evidence, we do not
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reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656
N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and
the reasonable inferences therefrom that support the verdict. Id. We will affirm
the conviction if there exists evidence of probative value from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. Id.
[8] Lapsley contends the State presented insufficient evidence to convict him. He
argues that, with no physical evidence linking him to the shooting, the State’s
case rises and falls on the sufficiency of the identifications given by Daniels and
Roque. He argues that the inherent problems in eyewitness testimony are well
known and that “[i]t is likely no exaggeration to state that, within our collective
lifetimes, the current use of eye witness testimony alone to support a criminal
conviction will be viewed as having similar validity as the methods used for
determining the guilt of accused witches in 17th Century Salem.” Appellant’s
Brief at 6-7. He argues that “[t]his Court is left with two cross-racial
identifications, made on the basis of memories formed during a high-stress, and
extremely short, period of time.” Appellant’s Brief at 7. Specifically, Lapsley
argues that Daniels’s identification “was some seven (7) months after the
incident” and in direct contradiction to his inability to identify any suspect on
the day of the incident. Id. He asserts that Roque’s identifications “are even
more suspect” as she was under the influence of alcohol at the time and
identified Lapsley on the date of the incident as someone other than the
shooter. Id. Lapsley further argues that, while James’s testimony places
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Lapsley in possession of a handgun and in similar clothes as the shooter, James
could not testify that Lapsley was at Sports and Spirits on the night of the
shooting.
[9] The State maintains that two people identified Lapsley as the person who fired
a gun into the bar, and the entire episode was captured on video from multiple
angles leaving little question Lapsley was properly identified as the shooter.
The State argues that Roque testified she knew Lapsley and his brother Lorenzo
personally and that Roque identified Lapsley in a video by his clothing and
hair. The State notes there was a discrepancy between Roque’s testimony and
the report of Detective Sabo, that Roque’s trial testimony and identification of
Lapsley from a photo array were unequivocal, and whatever weight the jury
assigned to the discrepancy appears to have been resolved by the jury in
Roque’s favor. The State further argues that Daniels was unequivocal in
identifying Lapsley as the person in a photograph admitted as State’s Exhibit 2
as the person closest to the door, that the photograph shows Lapsley standing
nearest the door, and that the same man is shown firing the gun in the video
from outside the door. The State also argues that Lapsley admitted to James
that he and Lorenzo went to Sports and Spirits and that Lorenzo had struck
someone while there, that James had seen a gun on Lapsley earlier in the
evening, and that Lapsley’s comment to James during news coverage of the
shooting corroborates that Lapsley was responsible for the bullet holes in the
window of the bar.
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[10] Elements of offenses and identity may be established entirely by circumstantial
evidence and the logical inferences drawn therefrom. Bustamante v. State, 557
N.E.2d 1313, 1317 (Ind. 1990). The unequivocal identification of the defendant
by a witness in court, despite discrepancies between his description of the
perpetrator and the appearance of the defendant, is sufficient to support a
conviction. Emerson v. State, 724 N.E.2d 605, 610 (Ind. 2000), reh’g denied.
Identification testimony need not necessarily be unequivocal to sustain a
conviction. Heeter v. State, 661 N.E.2d 612, 616 (Ind. Ct. App. 1996).
Inconsistencies in identification testimony impact only the weight of that
testimony, because it is the jury’s task to weigh the evidence and determine the
credibility of the witnesses. Gleaves v. State, 859 N.E.2d 766, 770 (Ind. Ct. App.
2007) (citing Badelle v. State, 754 N.E.2d 510 (Ind. Ct. App. 2001), trans. denied).
As with other sufficiency matters, we will not weigh the evidence or resolve
questions of credibility when determining whether the identification evidence is
sufficient to sustain a conviction. Id. Rather, we examine the evidence and the
reasonable inferences therefrom that support the verdict. Id.
[11] Roque testified that she recognized and knew Lapsley and Lorenzo, identified
Lorenzo as the person wearing a fur coat, and identified Lapsley in a video
admitted into evidence as the person who was wearing a white t-shirt, grey
sweatshirt or coat, and a dark skullcap and whose hair was in dreadlocks.
Roque also identified Lapsley in court and testified that she had identified him
to police in a photo array, and the photograph with her initials was admitted
into evidence as State’s Exhibit 3. (Tr. at 71, 76; State’s Exhibit 3) The State
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presented three video recordings, admitted into evidence as State’s Exhibit 1,
which together showed footage of the shooting and the activities in the bar
before and after the shooting. One of the recordings shows a man in a fur coat
and identified by Roque as Lorenzo punch another person, and the man
identified as Lapsley by Roque is shown standing with the man in the fur coat.
Another of the video recordings shows the area outside the door of the bar and
clearly shows the person identified as Lapsley by Roque firing a gun multiple
times toward the building moments after he had exited the building. On cross-
examination, defense counsel asked Roque if she had indicated to Detective
Sabo that the same person with the fur coat and fuzzy hat had dreadlocks, and
Roque said no and that she told Detective Sabo that Lorenzo was the person
wearing the fur coat. When asked if she, by chance, identified Lorenzo as being
Lapsley, Roque answered no. Detective Sabo testified that, according to his
report, when Roque gave him a description of the possible suspects, she
described the individual as a black male with dreadlocks and that she believed
the person was wearing a fur coat. In addition, Detective Sabo testified that
Roque was able to positively identify Lapsley from a photo array, and the
photograph was admitted into evidence.
[12] Daniels identified Lapsley as the person in a photograph admitted as State’s
Exhibit 2 as the person positioned closest to the door of the bar. The
photograph depicts a man standing near the bar door wearing a white t-shirt, a
dark sweatshirt or coat, and a dark hat or cap. The man identified by Daniels
as Lapsley in the photograph is the man shown in the video recording admitted
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into evidence firing a gun multiple times towards the bar window. Daniels
testified that he “was a real basket case” immediately following the shooting
and was not able to identify the suspects at the time. Transcript at 45. Daniels
unequivocally identified Lapsley in court as the person who was positioned
closest to the door of the bar in the photograph admitted as State’s Exhibit 2.
[13] James testified that, prior to dropping Lapsley off at Stein Tavern, she had
noticed that Lapsley possessed a gun. She also testified that, in the morning
following the shooting, Lapsley told her that Lorenzo had “knocked out
somebody” at Sports and Spirits and that, later in the evening when watching a
news report showing the window of Sports and Spirits, Lapsley stated “that
looks like my holes I put through the windows.” Id. at 112.
[14] The jury heard testimony from Roque, Daniels, and James as set forth in part
above, and each of them were examined before the jury regarding their
observations. The three video recordings depicting the shooting and the actions
of the persons described as Lapsley and Lorenzo by Roque and Daniels were
also admitted into evidence. The jury was able to assess the credibility of each
of the witnesses in light of his or her own testimony and in light of the
testimony of the other witnesses. To the extent there was any discrepancy
between Detective Sabo’s report regarding a description given by Roque and
Roque’s subsequent positive photo identification and in-court identification of
Lapsley, or between Daniels’s initial failure to make a positive identification of
the suspects and his subsequent unequivocal in-court identification of Lapsley,
it was the jury’s function to resolve any such conflicting testimony and
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discrepancies. See Emerson, 724 N.E.2d at 610 (observing that it is the jury’s
function to resolve conflicting testimony and discrepancies between the
witnesses’ original out-of-court identifications); Gleaves, 859 N.E.2d at 770
(observing that discrepancies were factual issues for the jury to resolve). Roque
described Lapsley’s clothing and appearance at the bar, identified him in a
photo array, and identified him in court; Daniels identified Lapsley in a
photograph as the person positioned closest to the bar door and identified him
in court; and the person identified as Lapsley by Roque and Daniels is shown
shooting through the bar’s window in the video recording admitted into
evidence. Lapsley’s arguments regarding why the witnesses or certain
testimony of the witnesses should not be believed amount to an invitation that
we reweigh the evidence, which we cannot do. See Jordan, 656 N.E.2d at 817.
It was reasonable for the jury to infer based upon the evidence presented that
Lapsley was the person who performed the acts for which he was charged and
convicted.
[15] Based upon our review of the evidence as set forth in the record and above, we
conclude that sufficient evidence exists from which the jury could find Lapsley
guilty beyond a reasonable doubt of the aggravated battery and criminal
confinement counts as charged. See Wilder v. State, 716 N.E.2d 403, 405 (Ind.
1999) (noting that it is the duty of the fact-finder to assess the credibility of
witness testimony and finding that the State presented evidence of the
defendant’s identity as the perpetrator involved in the offense).
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II.
[16] The next issue is whether Lapsley’s sentence is inappropriate in light of the
nature of the offense and his character. Indiana Appellate Rule 7(B) provides
that this court “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [we find] that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Under this rule, the burden is on the defendant to persuade the
appellate court that his or her sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[17] Lapsley acknowledges that the severity of the injuries to Huddleston and Roque
cannot be disputed, nor can he minimize his extensive criminal history, but he
argues “the sentence handed down by the trial court amounts to a life sentence”
and that “[g]iven the fact that Lapsley’s convictions rest almost entirely on
evidence which is of questionable reliability, Lapsley would submit that such a
severe punishment is unwarranted.” Appellant’s Brief at 9. He requests this
court to revise his sentence to the advisory sentence and order that the sentences
be served concurrently.
[18] The State argues that Lapsley’s sentence is not inappropriate and that he
waived his argument as to an appropriateness claim because he failed to make
cogent argument regarding the nature of the offense and his character. The
State asserts that only the prompt and effective field treatment of Huddleston’s
wounds by Trooper Anderson prevented this from being a murder case, and
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notes that the trial court described the offense as being horrific and stated that
the fact someone did not die is remarkable. The State argues that there were
about fifty people in the bar on the night Lapsley fired his gun nine times
through the window, that he shot into the bar because he had been thrown out
earlier, and that he committed a horribly violent act over a trivial matter in
which he was the party in the wrong. The State further notes Lapsley’s
criminal history, including fifteen misdemeanor and five felony convictions and
that he was on probation at the time of this offense. The State also argues
Lapsley “snorted” when the court stated it was remarkable that nobody died,
making it clear he has no remorse for his actions. Appellee’s Brief at 13.
[19] Our review of the nature of the offense reveals that, after he had been thrown
out of a bar for fighting, Lapsley turned around and fired his gun multiple times
into the bar through the window, which resulted in serious injuries to
Huddleston and Roque and could have resulted in serious injury or death to
many others. At sentencing, the court stated:
It’s horrific what you did, Mr. Lapsley, it’s horrific. The fact that
people didn’t die is remarkable. You can sit there and snort at me all
you want, sir, I watched the videotape that twelve (12) jurors watched,
as well, and saw you . . . casually pull out a weapon as you would pull
out your billfold and fire into that building that was packed with
people. And the scary thing about it, Mr. Lapsley, is you couldn’t care
less.
Sentencing Transcript at 14. The nature of the offense does not warrant a
reduction of Lapsley’s sentence.
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[20] Our review of the character of the offender reveals that, according to the
information presented at the sentencing hearing, Lapsley’s criminal history
includes three juvenile delinquency adjudications, fifteen misdemeanor
convictions, and five prior felony convictions. His prior felonies include
convictions for possession of cocaine or narcotic drug as a class D felony in
2002, forgery as a class C felony and possession of cocaine as a class D felony
in 2005, and failure to return to lawful detention, a class D felony, in 2008. His
misdemeanors include convictions for resisting law enforcement, public
intoxication, false informing, operating while intoxicated, domestic battery,
possession of marijuana, and invasion of privacy. He has had sentences
modified four times and his probation revoked four times. The sentencing
transcript reveals that the court noted that Lapsley “snorted” and that he
“couldn’t care less.” Id. Lapsley’s character does not merit a reduction of his
sentence.
[21] After due consideration, we conclude that Lapsley has not sustained his burden
of establishing that his sentence is inappropriate in light of the nature of the
offense and his character.
Conclusion
[22] For the foregoing reasons, we affirm Lapsley’s convictions and sentence for two
counts of aggravated battery as class B felonies and criminal confinement as a
class C felony.
[23] Affirmed.
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Bailey, J., and Robb, J., concur.
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