Rascoe v. State

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
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                              ON DIRECT APPEAL

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                               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.