ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:
ERIC K. KOSELKE KAREN M. FREEMAN-WILSON
STEVEN G. POORE Attorney General of Indiana
Indianapolis, Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
MICHAEL LACEY, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 49S00-0002-CR-111
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM NO. 2
The Honorable Amy Barnes, Judge
Cause No. 49G05-9705-CF-070177
ON DIRECT APPEAL
September 28, 2001
RUCKER, Justice
In this direct appeal, Michael Lacey contends the evidence is not
sufficient to sustain his conviction for felony murder and that his sixty-
year sentence is manifestly unreasonable. We disagree with both contentions
and therefore affirm.
Facts
In the early morning hours of May 15, 1997, Wajibu Wynn along with
his sister and two others were asleep in Wynn’s apartment when two armed
intruders wearing dark clothing and Halloween masks broke through the front
door. R. at 269. Wynn’s sister was asleep on a living room couch. One of
the intruders sprayed her with mace, while the other intruder pointed a
“machine gun” looking weapon to her head and began dragging her to the back
of the apartment. R. at 204, 271-72, 282-83. Awakened by the noise, Wynn
rushed to his bedroom door and saw a man wearing a Frankenstein mask
dragging his sister at gunpoint down the hallway. Wynn retrieved his
handgun, fired at the man, and fatally wounded him. R. at 203, 281-82.
That intruder was later identified as Guy Simpson. The other intruder fled
the apartment.
A K-9 officer was called to the scene. Shortly after arrival, the
officer and his dog located Lacey in a wooded area approximately 200 feet
from Wynn’s apartment. R. at 314, 431. He was lying on the ground among a
clump of bushes. R. at 314. Five feet away, the officer found a can of
mace and a Halloween mask. R. at 389, 424-25.
Lacey was charged with felony murder, burglary, and confinement. The
jury convicted him as charged. At sentencing, the trial court vacated the
burglary and confinement convictions and sentenced Lacey to an enhanced
term of sixty years for the felony murder conviction. This direct appeal
followed.
Discussion
I.
Lacey first contends the evidence is insufficient to support his
conviction. Pointing out that no one ever identified him as one of the
assailants and no fingerprints linked him to the crime, Lacey argues the
State failed to prove beyond a reasonable doubt that he was the second
intruder who broke into Wynn’s apartment.[1] The standard for reviewing
sufficiency of the evidence claims is well settled. We do not reweigh the
evidence or assess the credibility of witnesses. Houston v. State, 730
N.E.2d 1247, 1248 (Ind. 2000). Rather, we look to the evidence and
reasonable inferences drawn therefrom that support the verdict and will
affirm the conviction if there is probative evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable
doubt. Id. A verdict may be sustained based upon circumstantial evidence
alone if that circumstantial evidence supports a reasonable inference of
guilt. Id. In this case, Lacey’s argument is essentially an invitation
for this Court to reweigh the evidence. We decline. Evidence that he was
found near Wynn’s apartment in the early morning hours, apparently
attempting to conceal himself among the vegetation, and in close proximity
to items used by the intruders, was sufficient for the jury to conclude
that Lacey was the second intruder who broke into Wynn’s apartment.
II.
The trial court sentenced Lacey to an enhanced term of sixty years.
In so doing the court listed as aggravating factors Lacey’s criminal
history and that Lacey was on bond in two other cases when he committed the
crime for which he was being sentenced. The trial court also found as
aggravating factors Lacey’s need of correctional or rehabilitative
treatment that could best be provided by his commitment to a penal facility
and that a suspended sentence would depreciate the seriousness of the
crime. In this appeal, Lacey does not challenge the trial court’s
findings. The trial court noted Lacey’s young age as a mitigating factor,
cf. Brown v. State, 720 N.E.2d 1157, 1159 (Ind. 1999) (noting a defendant’s
youth is a significant mitigating factor in some circumstances); however,
the court concluded the aggravating factors outweighed the sole mitigating
factor. Lacey does not contend there are additional mitigating factors
that the trial court ignored. Rather, pointing out that he was not the
triggerman and again focusing on his age, Lacey argues his sixty-year
sentence is manifestly unreasonable and asks that we reduce it to the
presumptive term of fifty-five years.
This Court does have the constitutional authority to review and revise
sentences. See Ind. Const. art. 7, § 4. However, we will not exercise
that authority unless the sentence imposed is “manifestly unreasonable in
light of the nature of the offense and the character of the offender.”
Ind. Appellate Rule 7(B) (formerly App.R. 17(B)); Evans v. State, 725
N.E.2d 850, 851 (Ind. 2000). The nature of the offense in this case is
that Lacey engaged in an armed home invasion that involved taking a woman
hostage in the house and dragging her to the back of the house with a gun
pointed at her head. Lacey’s cohort was shot and killed by the owner of
the house as a result. As for Lacey’s character, even though only nineteen
at the time the instant crime was committed, Lacey has a criminal history
that consists of true findings as a juvenile of: aggravated battery that
would have been a Class B felony if committed by an adult (shooting a
neighbor over a dispute about a car); two separate instances of carrying a
handgun without a license; and resisting law enforcement. Also, when he
committed the instant offense, Lacey was on bond in two other cases. We
decline to modify Lacey’s sentence because he has not convinced us that it
is manifestly unreasonable.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
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[1] We observe that Lacey does not argue that the felony murder
statute is inapplicable to the facts presented in this appeal. Our felony
murder statute provides: “A person who . . . kills another human being
while committing or attempting to commit arson, burglary, child molesting,
consumer product tampering, criminal deviate conduct, kidnapping, rape,
robbery, or carjacking . . . commits murder, a felony.” Ind. Code § 35-42-
1-1(2). In Palmer v. State, 704 N.E.2d 124 (Ind. 1999), this Court, in a
three to two decision, held that the statutory language “kills another
human being while committing” does not restrict the felony murder statute
solely to instances in which the felon is the killer. Id. at 126. Rather,
the felony murder statute may also apply equally when, in committing any of
the designated felonies, the felon, although not the killer, contributes to
the death of any person. Id. Where an accused reasonably should have
foreseen that his felonious conduct would result in the “mediate or
immediate cause” of the victim’s death, the accused is held accountable.
Id. In this appeal, Lacey has not argued that his participation in the
burglary was not the mediate or immediate cause of Simpson’s death.