ATTORNEY FOR APPELLANT
Kathleen M. Sweeney
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Barbara Gasper Hines
Deputy Attorney General
Indianapolis, Indiana
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IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
JASON RASCOE, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-9911-CR-667
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane Magnus-Stinson, Judge
Cause No. 49G06-9802-CF-017642
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
October 5, 2000
BOEHM, Justice.
Jason Rascoe was convicted of murder and sentenced to sixty-five
years imprisonment. In this direct appeal he contends that the trial court
abused its discretion by imposing the maximum sentence and that his sixty-
five year sentence is manifestly unreasonable. We affirm the judgment of
the trial court.
Factual and Procedural Background
On January 30, 1998, Rascoe was home alone with his cousin, Brian
Parker. Parker was asleep on a couch when Rascoe placed a gun to his head
and fired seven shots. Rascoe then called his sister and mother and warned
them to stay away from the house for a few days. Sometime later Rascoe
told his brother that he had killed Parker.
Rascoe confessed to the police on February 2. He claimed to hear
voices, black out, and experience fits of anger and aggression after
listening to gangsta rap music, and attributed the shooting to such an
event. However, court-appointed psychiatrists found that Rascoe was of
sound mind at the time of the murder and did not suffer from severe mental
disease or defect. At a bench trial Rascoe was found guilty of murder and
sentenced to sixty-five years imprisonment.
I. Sentencing Error
Rascoe contends that (1) the trial court considered improper
aggravating circumstances; (2) the trial court failed to consider
mitigating circumstances clearly supported by the record; and (3) the trial
court improperly weighed the aggravating and mitigating circumstances. In
general, sentencing determinations are within the trial court's discretion
and are governed by Indiana Code Section 35-38-1-7.1. Harris v. State, 659
N.E.2d 522, 527 (Ind. 1995). If a trial court relies on aggravating or
mitigating circumstances to enhance or reduce the presumptive sentence, it
must (1) identify all significant mitigating and aggravating circumstances;
(2) state the specific reason why each circumstance is determined to be
mitigating or aggravating; and (3) articulate the court's evaluation and
balancing of the circumstances. Id. at 527-28.
First, Rascoe challenges the trial court’s finding of aggravating
circumstances. Rascoe does not dispute that, at sentencing, he had a
significant criminal history consisting of four prior convictions and
another pending murder charge. This is a statutory aggravating
circumstance. Indiana Code § 35-38-1-7.1(b)(2) (1998). Although the trial
court did not mention his significant criminal history, it did rely on five
aggravating circumstances to enhance Rascoe’s sentence. He challenges
three as improper, which he identifies as: (1) the manner in which the
crime was committed, (2) the relationship between Rascoe and Parker, and
(3) the fact that the killing was unprovoked. Although the sentencing
order is hardly a model of clarity, it appears that at the sentencing
hearing the trial court found two proper aggravating circumstances: (1)
the nature and circumstances of the crime, including that there were a
number of wounds, the victim was a family member, and the murder was
unprovoked and (2) the risk to the community.[1]
The “nature and circumstances” of a crime are a proper aggravating
circumstance. Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999). In this
case, clearly the nature of the crime, including the number of wounds,
Mitchem v. State, 685 N.E.2d 671, 680 (Ind. 1997) (the “number of times
victims were shot” was a proper consideration under the “nature and
circumstances” of the crime), and the circumstances surrounding the crime,
specifically, the shooting of an unarmed man seven times while he slept,
were proper to consider. Even if the trial court relied on an improper
factor under this aggravating circumstance, the sentence may be upheld so
long as “[t]he remaining components of that aggravator were proper.”
Angleton v. State, 714 N.E.2d 156, 160 (Ind. 1999). Also, the risk to the
community, which we take to refer to “the risk that the person will commit
another crime,” is statutorily required to be considered in sentencing.
Ind. Code § 35-38-1-7.1(a)(1) (1998). In short, the trial court did not
abuse its discretion when it relied on the nature and the circumstances of
the crime and the risk to the community as aggravating circumstances.
Rascoe also contends that the trial court failed to find mitigating
circumstances that were supported by the record. The finding of mitigating
circumstances is within the discretion of the trial court. Legue v. State,
688 N.E.2d 408, 411 (Ind. 1997). An allegation that the trial court failed
to identify or find a mitigating circumstance requires the defendant to
establish that the mitigating evidence is both significant and clearly
supported by the record. Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999).
The trial court is not obligated to accept the defendant's contentions as
to what constitutes a mitigating circumstance. Legue, 688 N.E.2d at 411.
Rascoe contends that the trial court failed to consider his remorse.
Rascoe did voluntarily go the police station, confess, and then ask for the
death penalty, all of which tend to show his remorse. However, he also
made plans to conceal his crime by keeping his family away from the house
for several days, and stated that he “was going to take [Parker’s body] out
of the house and get rid of it.” Given Rascoe’s attempt to conceal the
crime, we cannot say that the trial court abused its discretion in failing
to find Rascoe’s remorse as a significant mitigating circumstance. See,
e.g., Bonds v. State, 721 N.E.2d 1238, 1243 (Ind. 1999) (equivocal
statement of remorse was not a significant mitigating circumstance); Wooley
v. State, 716 N.E.2d 919, 931 (Ind. 1999) (rejecting defendant's apology to
the victim's family as significant mitigating circumstance); cf. Wilkins
v. State, 500 N.E.2d 747, 749 (Ind. 1986) (finding no error in trial
court's failure to address mitigating circumstances that were “highly
disputable in nature, weight, or significance”).
As a final sentencing error, Rascoe argues that the trial court failed
to properly weigh the aggravating and mitigating circumstances. He
concedes that the trial court has discretion in determining the weight to
assign to these factors, but nonetheless contends that the trial court
improperly considered certain aggravating circumstances, gave too much
weight to the aggravating circumstances, and did not assign enough weight
to the mitigating circumstances.
Although the aggravating circumstances here may not be the weightiest
ones, for the reasons discussed above they were proper aggravators, and the
trial court was allowed to consider them and give them considerable weight.
The trial court also did not abuse its discretion by failing to find
Rascoe’s remorse as a mitigating circumstance. Therefore, what remains is
Rascoe’s claim of mental problems as the sole mitigating circumstance to be
weighed against the nature and circumstances of the crime and the risk to
the community as aggravating circumstances. The trial court mentioned
Rascoe’s “emotional problems” several times in the sentencing statement.
We cannot conclude that the trial court improperly weighed these factors
when it concluded that the “concern about the aggravators does outweigh the
mitigators of his emotional problems, and . . . an aggravated sentence is
warranted in this case.”
II. Manifestly Unreasonable
Rascoe also contends that his sentence is manifestly unreasonable.[2]
Although this Court has the constitutional authority to review and revise
sentences, Ind. Const. art. VII, § 4, it will not do so unless the sentence
imposed is “manifestly unreasonable in light of the nature of the offense
and the character of the offender.” Carter v. State, 711 N.E.2d 835, 841
(Ind. 1999); Ind. Appellate Rule 17(B). This review is deferential to the
trial court: “[T]he issue is not whether in our judgment the sentence is
unreasonable, but whether it is clearly, plainly, and obviously so.” Bunch
v. State, 697 N.E.2d 1255, 1258 (Ind. 1998) (quoting Prowell v. State, 687
N.E.2d 563, 568 (Ind. 1997)); accord Brown v. State, 698 N.E.2d 779, 783-84
(Ind. 1998).
The “nature of the offense” is the shooting of a sleeping man at close
range seven times in the head and face. Under “character of the offender,”
although the trial judge found that Rascoe had some mental problems, court-
appointed experts found no psychiatric disorders. Rascoe has a violent and
lengthy criminal history including twelve arrests, and has since been
convicted of another murder.[3] In view of these factors, the trial
court’s imposition of the presumptive sentence was not “clearly, plainly,
and obviously” unreasonable.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON and RUCKER, JJ., concur.
SULLIVAN, J., concurs in result.
-----------------------
[1] Rascoe also claims that the trial court improperly relied on the impact
on the family as an aggravator. Although the trial court does make mention
of Parker’s “beautiful little child” and that it is “sick of seeing these
little babies without daddies,” this reference is in a generalized
discussion about the strength of the family and does not appear to have
been considered as an aggravating or mitigating circumstance.
[2] Rascoe suggests that his sentence violates Article I, Section 16 of the
Indiana Constitution requiring that “[a]ll penalties shall be proportioned
to the nature of the offense.” However, because he does not present a
separate argument for this claim, we will address it under the manifestly
unreasonable standard.
[3] Although the other murder charge was pending at the time of Rascoe’s
sentencing in this case, he was convicted of that charge in a jury trial on
May 23, 1999 and sentenced on June 4.