Allen v. State

sen- finding warrant a deficiencies ALLEN, Appellant manifestly Alonzo

tence was unreasonable. (Defendant Below), contends that the trial Defendant also miti court failed to consider his identified imposing

gating circumstances Indiana, Appellee STATE record, however, reveals sentence.13 The (Plaintiff Below). Defen the trial court did consider No. 49S00-9801-CR-25. mitigating dant’s circumstances but found aggravating out circumstances Supreme Court of Indiana. weighed the A mitigating circumstances. mitigating trial court “need not credit fac Dec. 1999. manner

tors the same as would the

[defendant], explain why nor it found miti

particular insufficiently circumstance

gating.” Coleman v. 694 N.E.2d (Ind.1998); Brown,

782-88; Widener v. 659 N.E.2d (Ind.1995).

533-34

Considering Defendant’s criminal histo-

ry coupled with the trial emphasis court’s nature and circumstance of the circumstances, aggravating

crime as we imposed by

find the sentence the trial light

court was reasonable of the nature offense and character of the

offender.

Conclusion

We affirm Defendant’s conviction

sentence.

SHEPARD, C.J., and DICKSON

BOEHM, JJ., concur. aggravating age.... years

held that Miller is 22 He circumstance "John support serves to a trial court’s refusal to helped provide worked and for his mother. presumptive reduce State, sentence. Hollins He to school. He a C-aver- went maintained 1997); (Ind. Ripple. age at to an Broad He went addition- Mayberry v. longer per- until no al school finances would (Ind.1996); Ector v. 639 N.E.2d State, to do so. He of his summer mit him ran out (Ind. 1994); Evans job, Temporary he went to work for Ser- (Ind.1986). nothing There is vices.” indicating record the trial con court was Therefore, sidering a sentence. reduced aggravating use of this circumstance was im proper. Wild,

Kevin C.C. Patricia Caress McMath, Indiana, Indianapolis, Attorneys Appellant. for Franklin, Modisett, charging Attorney A. an attack on Melanie Jeffrey General conduct, confine- Indiana, Fossum, Deputy rape, At- criminal deviate J. Priscilla Indiana, ment, General, robbery. At- Indianapolis, torney Alen at a Franklin claimed that she met torneys Appellee. restaurant, that he introduced himself SHEPARD, Chief Justice. “Play,” exchanged they her as pager numbers. Aonzo Alen was convicted Defendant they claimed that met Franklin also of criminal deviate murder two counts date, threatened at Allen’s house for for the death of Nikita Jackson. conduct cutter, hands with a bound her her box years. him to 165 trial court sentenced tape, legs her with duct threatened to bind presents Alen four claims of error if her struggled, raped mouth she appeal: this direct (R. 1787-88.) 1691, 1698-1706, twice. at in admit- 1. That the trial court erred the inci- Alen was for Franklin ting of another crime evidence robbery of and guilty dent and found not tried which and Alen conduct; on jury hung criminal deviate the convicted; but (R. at rape charges. and the confinement in mis- prosecutor engaged 2. That the 557.) argu- his during closing conduct that crimes police The concluded the two ment; similar; Franklin and Jackson were both variance 3. That there was material tape sexually were bound with duct and charging the information assaulted, had Alen’s number pager both at Alen the presented and “Play.” knew him as Alen was and trial; and charged with conduct criminal deviate unreason- 4. That Alen’s sentence is July and the of on upon murder Jackson able. (R. 42-44.) at 1996. proceedings, the During pretrial Background Factual and filed to Offer State a Notice Intent History Procedural 404(b) (R. to Rule at Evidence Pursuant arriv- employee On October (R. 119-20), version, at an amended body ing for work found Nikita Jackson’s 193-94, purpose provide The was to on west side behind business that, at Alen notice with Jackson (R. 1305.) Indianapolis. at She of the the State intended to offer evidence sexually strangled had been assaulted and rape attempted 'rape Franklin (R. 1415.) 1377, 1413, The death. at Mays Sylvia July that occurred arms, police glue residue on her (before or Franklin either the Jackson ear, that legs, indicating ear to from incidents).1 the trial hearing, Ater (R. tape. had with duct at she been bound ruled both the that evidence of 1387-88.) bedroom, 1317-18, 1381, In her Mays Franklin assaults could be pager a note with Alen’s police found (R. 248-254.) la- at admitted. State (R. “Play.” name at 1312- number 404(b), ter filed another notice under Rule 13,1349-51.) permitted that it be to offer requesting Alen, Aon- During investigation rape Jack- of Cecelia of Nikita evidence (R. 1147.) murder, Alen for zo Alen’s at police son’s arrested wife.2 14, 1995, July police report menstruating, On he instead 1. filed discovered she (Id.) penis against his rubbed her buttocks. Sylvia Mays’ allegation that recounted battery, tried Allen for sexual day Allen took to his house and told her that (R. 250.) guilty. at he found not (R. her sex he wanted have with her. 203.) resisted, he bound her wrists When she hearing a pretrial Cecelia Allen testified (Id.) ankles tape. duct Once early in late summer or fall of

7H against prejudicial evidence of the Cecelia evidence its effect court excluded 1189.) Sylvia Mays to Rule 403.” Id. pursuant Allen attack. testify,

did not but the of the judge The trial considered some at trial. Franklin admitted length the Franklin whether evidence was Behavior I. Evidence of Previous identity merely relevant offered to propensity.3 demonstrate He examined 404(b) Rule of Indiana Evidence with some care the similarities two provides evidence of other misconduct signature crimes that make might one a may prove admitted not be for the other. in conformity defendant acted with a cer trait, tain such sexual vio character as Both victims were African-American “designed prevent lence. The rule was teenage girls. The crimes jury assessing pres from a defendant’s neighborhood, both occurred in the same guilt propensi ent past on the basis within two months of each other. ...” ties. Hicks 252, 1281-82, 1305, Melanie (Ind.1997). hand, On the other evi “Play,” Franklin said knew she dence about other “bad acts” be ad 1682-83); police found in Nikita missible for different such as purposes, in her a scrap Jackson’s room home identity. proof of Rule Evidence upon paper pager which Allen’s number 404(b). The State the asserts that evi (R. written, “Play” the and name were at (for dence of Franklin which Al the 1349-50). Both incidents involve len was and not convict tried but probing some sort of anal or penetration. ed) prove to Allen’s identity is admissible (R. 1413, 1414, 1705.) at perpetrator as the case. (Appel this Finally, both victims were bound 7.) lee’s Br. at (R. 252.) tape. duct was taped at Jackson mouth, (R. wrists, ankles, identity exception Rule at her at and 404(b) 1387); primarily taped was crafted for crimes Franklin at so wrists, nearly operandi identical that the modus is her but she said Allen threatened virtually “signature.” Thompson In tape to her ankles and mouth. both (Ind.1997). State, tape after 234 cases the duct was removed the 1787-88.) 1702, 1771, “The is that Al- exception’s rationale the attack. at crimes, them, Opposition or used A to means to commit len’s Exhibit his Brief 404(b) unique highly were so it is similar Evidence is a list of the cases [to] probable the person Indianapolis Depart- same committed handled the Police all of analysis them.” admissi ment from late 1994 to March 1997 involv- 404(b) 241^12, at bility incorporates ing tape. under Rule the the use of duct relevancy of Rule 401 the all Examining test balanc of the crimes re- Hicks, ing of Rule 403. over ported Indianapolis test 690 N.E.2d at to the Police the First, years, “the court must determine course of two and one-half the ex- crimes, wrongs, only of other catalogs forty-two evidence hibit incidents tape or acts is relevant to a matter at the perpetrators issue which used duct Moreover, only eight other than the propensity defendant’s bind the victims. act; [second,] forty-two commit the or rapes the the were sexual attacks. probative sug- must value of own exhibit balance Allen’s 241— defense, (R. tape bound a tee duct her with shirt and Allen asserted an alibi 1155, 1157-60.) raped her. thereby affirmatively claiming he was not identity as the assailant attacker. His 3. Such would be if Allen’s irrelevant was, therefore, See, e.g., at issue. Brim v. case, identity ever, were issue. In this how not (Ind.Ct.App. 34-35 killed, was therefore victim 1993), trans. denied. identify unable to her attacker. In addition. 712 have involving jury cases convicted even

gests that sexual assault testimony. without Melanie Franklin’s binding relatively rare. tape are duct Whether this evidence offered .was II. Prosecutorial Misconduct identity close propensity was a prove During argument, closing say trial hard-pressed are call. We made remarks about case prosecutor As for the judge point. erred on this using imagery. Biblical contends decision, admissibility part second these constituted misconduct and remarks admissible unless its evidence is relevant the reversal of his convictions. warrant substantially outweighed probative value preserve regarding pro “To an issue prejudice. of unfair Evid. danger priety closing argument appeal, of a balancing act R. 403. “We review simply must do make defendant more trial court under an abuse discretion prompt objection argument. De Hicks, N.E.2d at 223. standard.” an request fendant must also admonish identity attacker was of Franklin’s desired, ment, if further relief is de a crucial certainly issue must move for a mistrial.” fendant substantially probative Allen evidence was Wright of that issue. Zenthofer have might where we reached Failure to Even re case, tried quest different conclusion had we admonition or mistrial results in only Zenthofer, we are convinced waiver of the issue. we reverse 34; judge’s trial call was an abuse of dis- see also Stacker v. (Ind.1976) (be 692, 348 N.E.2d We are not. cretion. ... did “Appellant’s cause counsel event, it persuaded were we [,] seek ... an admonishment abuse, it have warranted was an would not failure to is not renewa [issue one] court’s under Trial Rule reversal the standard Court.”). by ble Nikita sperm 61. The found on Jackson’s objected prosecutor’s While Allen to the submitted to the Marion Coun shorts was trial, request at he remarks failed an lab ty private crime lab a for DNA (See 2098; R. admonition. at see also concluded, private you “if testing. lab Appellant’s Reply (stating Br. at 3 that randomly out and tested went individu objected closing argument, Allen to the but als[,] only you expect find one admonition).) making no reference to This 37,900 person that had that same out claim waived. is Allen characteristics Alonzo which were III. Material Variance same that were also the characteristics Allen claims that a material vari sperm of the found in the fraction shorts.” (R. 1559.) ance charging existed between the infor into taking at Even account the proof (Appellant’s mation and the at trial. suggested Research Council’s National 23.) argues Br. he Specifically, at that type analysis, error margin of on this Count of the information Allen IV range the of likelihood that was the involving with criminal deviate conduct 1/3,800 to perpetrator impressive is an proof sex the at trial organ while indicated (R. 1568.) 1/380,000. Moreover, at while perpetrator that the committed criminal no statistical estimates were calculated on involving object. deviate conduct a blunt sperm in the likelihood that the 22.) Br. at (Appellant’s Allen states that body, mouth came from Jackson’s Allen’s the in crime at issue Count IV private the lab concluded that Allen could has excluded as a contributor to that two alternative definitions. One [in- not be (R. 1861.) organ person DNA. at This remarkable sci the sex of one volves] evidence, the other is pen- entific taken with the other ad anus of another. The evidence, an by object. missible of the leads us conclude etration anus in category The State former Count er covered the statute. Id. at IV. The showed latter. specified use of a variance handgun, thereby limiting This constituted the charge to proof presented illegal Information and the at use of firearm. Id. Because proof variance is not immaterial. showed that the defendant used firearm, weapon was not a the Mil- (Id.) agree. We ler held that there was a material A variance is an essential dif variance. Id. at 756. ference between Mit proof pleading. (Ind. chem v. same is true here. The State 1997). Not all variances are material or charged Allen with criminal deviate con- fatal, however. Id. involving organ. duct his sex

The test vari- physician determine whether a The State’s testified trial that ance the “injury injury between the trial and [was] forcible sexu- al charging information or assault caused indictment a forcible fatal is [by] object.” as follows: into the anus a blunt 1413.) While there (1) was evidence that the was the defendant misled injury profuse resulted bleeding such variance in the evidence from the alle- sperm that any have been in gations specifications Nikita Jackson’s anus would have been charge in preparation and mainte- 1414), away, washed and that the defense, nance of his he nature,” injury was “sexual in harmed prejudiced thereby; the State failed to elicit testimony that (2) protected will the defendant be sex organ Allen’s cause future criminal proceeding [a] cover- (Id.). anus,” injury of “extensive Be- event, ing facts, evi- same charge cause the State limited the to a sex against dence jeopardy? double rather organ, employing broader Harrison v. “object” information, language (Ind.1987) (citations omitted)). recharged again could be and tried on the Allen claims error both the above evidence, fact, same facts and for the grounds, more arguing strenuously about same event. two, that, prong despite his conviction on TV, subject Count remains likeli- variance, We have held that is no there of prosecution hood another same despite weapon the fact that one was al- event, on the same facts and evidence.4 used, leged proved another was to be nature, Appeals weapon Court of simi- if a confronted a “was of similar State, lar situation in Miller N.E.2d 616 and caused the same of character wound Mitchem, 750 (Ind.Ct.App.1993), approval injury.” cited with or N.E.2d at 685 677 Mitchem, Miller, State, 517, 685 N.E.2d at 677. In (quoting Madison v. 234 Ind. (1955) (Arterburn, 551, 35, the State the defendant with con- 50 J., finement with deadly concurring, joined “while armed a three by jus- other Miller, tices) weapon, namely handgun.” 589, a 616 (quoting Spahr, State v. 186 Ind. (1917))). N.E.2d at 754. A handgun 648, is defined 117 N.E. 649 This statute as a firearm. Id. respect The evidence at statement of law with arose to showed, however, that involving trial surplusage defendant cases the informa- “ pellet gun. tion; used a Id. at a ‘tendency 752. While it indicated a to tolerate a gun pellet weapon be described greater allegations as variance between “capable injury,” of serious causing bodily allegations are where not neces- Madison, category within the sary.’” broader covered Ind. at 234 130 statute, firearm, (Arterburn, J., it is not the narrow- at 47 concurring) merits, 4. We address this issue on the as the State has claimed that waived it. 714 view, point of 217 Ind. did. From defendant’s

(quoting McCallister (1940)). of is between a sentence difference today, affirm and a sen- years, which we Madison, spe- was charge more In years. fifty-year For tence of 165 (infor- by law. required cific was difference, we the State should conclude grenade hand was loaded mation stated matches provide plainly evidence that indicated it nitroglycerine, proof charge.5 T.N.T.; allegation “An filled with danger- with ‘a grenade hand was loaded conviction therefore reverse Allen’s We language or high explosive’ like ous that count for a on Count IV remand case.”). By in this have sufficed new trial. contrast, in the surplusage was no there IV. Review the Sentence of case; present charging information rather, out the re- the information set claims sentenc- three of presents (See R. at of the offense. quired elements (1) investiga- ing presentence error: elements of the (stating offense (2) biased; report was the trial court tion AL- R. by statute: “ALONZO provided the evidence of his improperly considered cause ... NIKI- knowingly LEN ... did an aggravating crime Franklin as against perform JACKSON[ ] TA submit (3) circumstance; and sen- aggregate conduct, involving an act deviate sexual manifestly (Appel- is unreasonable. tence ,.. organ ALLEN and the anus sex 27, 28.) Br. at lant’s ... ... JACKSON JACKSON threat compelled by force or the imminent First, presen Allen claims the - force, bodily resulted serious because report “[i]t tence biased is death.”).) injury ..., that is: details crimes for which focused on convicted, ... acquitted, argues briefly autop- The State testimony merely suspected,” (Appellant’s about Br. at sy physician’s object” presence “the officer com probation “blunt and because on the victim’s shorts constitute pletely mitigating apparent semen factors ignored charge inference consistent with history,” family from ... Allen’s and social his sex (Id. Allen committed the offense with officer probation who effect, organ. Attorney In General presentence investigation re prepares the trying not like we were argues, “It’s given wide to include port discretion use of a club or other prove some matters he or she deems relevant argument This has object.” inanimate Dillon v. determination a sentence. us consider some and leads weight (cit really variance claim war- whether Allen’s ing Lang v. fairly or could be called a rants reversal presentence report technicality. include the defendant’s criminal should history. Misenheimer the crime in Count defining 523, (1978); 274, 289, N.E.2d 532 Ind. 374 IV, pen- distinguishes our Code 35-38-1-9(b)(2) 1998). (West § Code Ann. organ” and by etration a “sex “ ‘[cjriminal history’ Here, held that charged We have by an the State “object.” charges to include which were may of its would seem It well be that one former. acquittal.” Mi dropped in an pen- or resulted witnesses could have stated that senheimer, no one 268 374 N.E.2d organ,” etration a “sex Ind. but State, (1979); leading 700 Wilson v. 164 5. Other error in variance claims 665, State, (1975); Bailey Ind.App. 330 N.E.2d 356 clude: v. 250 Ind. Kirk State, State, (1968); Ind.App. 314 247 219 v. 161 N.E.2d 755 684 Ferrell v. Ind. State, (1974); (1966); State, Ind.App. 157 230 Ind. Hochman v. N.E.2d 311, v. 804 Tullis Miller, (1973) (all (1952); reversing convic 300 N.E.2d 373 103 N.E.2d 353 variance). 750; Ind.App. the basis material Waye N.E.2d tions on of “ to include the of degree subjectivity at 532. It was error ‘Given that history whole Allen’s encounters be sentencing pro- cannot eliminated justice system. parts criminal What cess, it would be inappropriate us sentencing judge might history that merely to substitute our opinions for those ” aggravating mitigating properly find Fointno, trial judge.’ (quoting question. is a circumstances different general- 487 N.E.2d at We therefore ly to a sentencing defer trial court’s deter- that proba We also conclude mination. adequately tion officer addressed Allen’s family Allen, background. report social and sentencing trial employment history, examines Allen’s reli multiple aggravating circumstances: affiliation, health, and roles gious as father (1) (a Alen prior history has a criminal 486, 488, (separated) husband. battery conviction and dealing 493-95.) find While the officer did not shotgun). sawed-off that those factors amounted to what he (2) responded prior Alen has not at- circumstances, be mitigating considered to tempts at rehabilitation. 497), the information Allen claims (3) The presented credible evi- “completely ignored” the officer avail raped dence Alen Melanie Frank- own, able to the court when it made its lin. independent, determination. sentencing (4) particular- this case facts of are presentencing investigation report ly violently strangled heinous: Allen properly prepared. We see no error 17-year-old girl, death who was here. family. adored her Second, Allen claims that trial court (a) Alen committed sexual assault improperly relied on evidence of the Jackson, killing prior Nikita Franklin as an rape aggravating circum- injury resulted in serious to her 27.)6 (Appellant’s stance. Br. This anus). (bleeding her from solely contention his earlier rests claim (b) Alen bound Jackson. of the Franklin (c) strangled Alen so Jackson force- 404(b), inadmissible under Rule which we fully that he crushed her trachea. have resolved adverse to Allen. (d) dumped body Alen Jackson’s Third, Alen claims that his “like rubbish behind business manifestly (Ap sentence is unreasonable. Indianapolis, Indiana.” pellant’s requires Br. at “This claim us to all aggravating reexamine valid mitigating circumstances consider While the court found no miti whether imposed the sentence was ‘mani factors, gating finding “[t]he festly unreasonable in of the light nature mitigating mandatory is not factors offense the character of the rests within the discretion ” offender.’ Carter court.” Hurt v. (Ind.1999) 835, 841 (citing Appellate Wingett 17(B)). Rule “Only significant

We review sentences with the trial court fails to find a knowledge mitigator clearly that reasonable minds dif supported is appropriate fer as to what sentence is record there a reasonable that it belief any given Legue case. v. improperly Fointno overlooked.” (Ind.1986)). (cit- Franklin, sentencing 6. The trial stated at the hear- Melanie who testified in connection case, ing, “there has been evidence that that is credible with and considered as to the rape upon one Defendant committed Defendant’s character.” Justice, BOEHM, concurring dis- and ing Jones senting. mitigating circum- We find no record. by this compelled stance I would conclude that the evidence sufficiently shaky as a prior rape was circumstance single aggravating A have “signature” crime that it should not en support both the be sufficient and in of the obvious admitted view been and presumptive sentence hancement prior prejudice that substantial of consecutive sentences. imposition agree I charge generate. with (Ind. 757, 765 Isaacs v. majority that the error was harmless found several. The court here of the DNA evidence. view a valid exer imposed represents sentence disagree testimony pen- I of anal of trial court discretion. cise object” a “blunt varied suffi- etration with ciently charged penetration from Conclusion con- organ” jury “sex could not vict for the crime Count IV. Count Allen’s conviction on We reverse jury properly instructed on was a material on that there IV the basis and elements of criminal deviate conduct charging information variance rely instructed to on common also re- presented at trial and gained day-to-day it from sense that had We on Count IV. mand for a new trial living. It heard evidence semen affirm Allen’s other convictions view, my the victim’s shorts. 115 years. new sentence aggregate the inference support this was sufficient object. penis that a was the Accord- blunt RUCKER, SULLIVAN, JJ., Allen’s ingly, I dissent from the reversal of concur. IV, in af- conviction on Count and concur firming the on other convictions DICKSON, J., with concurs dissents counts. BOEHM, J., which separate opinion, with

concurs. DICKSON, J., part. concurs in J., BOEHM, concurs dissents DICKSON, separate opinion, with

J., part. concurs

DICKSON, Justice, dis- concurring and

senting. (the III issue of I from Part dissent SUNDAY, Appellant M. Jason variance) majority opinion material (Defendant Below), Allen’s conviction would not reverse for criminal deviate conduct. sentence Indiana, Appellee At did not assert anal STATE of Below). (Plaintiff object” “blunt other organ.” defendant’s “sex No. 34S00-9902-CR-123. crimi- defendant was not with one nal evi- act and confronted trial with Indiana. Supreme Court of He not mis- dence of a different act. Dec. led. agree I with Justice Boehm this issue. J.,

BOEHM, concurs.

Case Details

Case Name: Allen v. State

Court Name: Indiana Supreme Court

Date Published: Dec 13, 1999

Citation: 720 N.E.2d 707

Docket Number: 49S00-9801-CR-25

Court Abbreviation: Ind.