Jones v. State
600 N.E.2d 544
Ind.
1992
Check Treatment
*546 KRAHULIK, Justice.

Frаnk Lee Jones (Defendant-Appellant) was found guilty by a jury of two counts of attempted murder, a class A felony, Ind. Code §§ 35-41-5-1 and 35-42-1-1, and was determined to be an habitual offender, Ind. Code § 35-50-2-8. On April 29, 1990, he received a sentence of fifty (50) years on еach attempted murder conviction, to be served concurrently. In addition, one of the attempted murder sentences was enhanced by thirty (80) years on account of the habitual offender finding. Thus, Jones' total sentence was еighty (80) years. In this direct appeal, Jones raises the following issues:

(1) Whether the trial court abused its discretion in controlling the scope of re-direct examination; and
(2) Whether defendant's sentence is manifestly unreasonable.

We affirm the convictions.

Facts

In July of 1990, Jimmy Poindexter lived with Charles Benion and his father, Sam Benion. Sam, who lived in an apartment in the rear of the house, was the victim of a stabbing on July 8, and was hospitalized for treatment. On the evening of July 10, Poindexter came home from work, bathed, atе, and fell asleep on the living room couch watching television. Charles and Dalton Hinton were also in the house on July 10. Charles went to his bedroom to watch television while Hinton watched television in the living room.

Later that evening, Charlеs' brother (the defendant Jones) and a companion knocked on the door looking for Charles. Hinton answered the door, let them in and said Charles was in his bedroom. Jones walked over, knocked on Charles' door, and entered the room. Jones and Charles then went into the kitchen to talk. Jones was very upset about the news of his father's stabbing and was angry with Poindexter for not preventing the stabbing. After they talked a while in the kitchen, they returned to Charles' bedroom. Jones tоld Charles he was going to the hospital to see their father. Charles closed his bedroom door and lay back down.

Jones and his companion started out the door, but then Jones returned while his companion remained outside. Jones proceeded to awaken Poindexter by shaking him. Jones called Poindexter a few names and asked him, "Why would you let my father get hurt?" Poindexter denied knowing anything about the stabbing until after it happened, but Jones continued to push Poindexter and call him names. Jones pulled out a gun and shot Poindexter.

Charles heard the shots and opened the bedroom door. As he opened the door, Poindexter fell into the bedroom. Jones walked over ‍‌‌‌​‌‌​‌​​‌​‌‌​‌​‌‌​​‌‌​‌​‌‌‌‌​​​​‌‌‌​‌‌​​‌​​‌‌‌‍to Poindexter, plaсed his foot on Poindexter's shoulder to hold him down, said, "I stole your wife" and shot Poindex-ter again.

Jones then walked to the chair where Hinton was seated and shot him in the back of the head. Hinton was shot a total of four times. Jones then ran away.

Poindexter's mother, Catherine Poindex-ter, who lived across the street, heard the shots fired. After hearing the first shots, she stepped on her porch and saw Jones shoot Hinton. She watched Jones run down the street and called 911.

Poindеxter spent three months in the hospital. He lost the hearing in one ear and is paralyzed on one side of his mouth. Two bullets remain in his skull. Hinton sustained bullet wounds to his head and arms, but never lost consciousness. He spent two to three weeks in the hоspital, and bullets remain in him as well.

On July 12, 1990, Jones was charged by information with two counts of attempted murder. On October 15, 1990, the State charged Jones with being an habitual offender and amended this information on January 10, 1991. Jones was arrested in Davenport, Iowa, in October of 1990, while using the name of his brother, William Benion.

I. Re-Direct Examination

Jones asserts reversible error occurred in the trial court's control of the scope of redirect examination of two witnesses, *547 Charles Benion and Sgt. David Dosmаnn. With regard to both witnesses, Jones contends the trial court abused its discretion by permitting the State to exceed the seope of cross-examination.

It is well established that the scope and extent of re-direct examination is a matter within the trial court's ‍‌‌‌​‌‌​‌​​‌​‌‌​‌​‌‌​​‌‌​‌​‌‌‌‌​​​​‌‌‌​‌‌​​‌​​‌‌‌‍discretion which will not be disturbed absent an abuse of discretion. Dooley v. State (1981), Ind., 428 N.E.2d 1, 6. Generally, the scope of redirect is limited to answering new matters addressed during cross-examination. Kimp v. State (1989), Ind., 546 N.E.2d 1193, 1195. A party, howеver, is entitled to address an issue on re-direct examination to avoid a false or misleading impression once the opposing party inquires into a subject on cross-examination. Ratcliffe v. State (1990), Ind., 553 N.E.2d 1208, 1211; Kimball v. State (1983), Ind., 451 N.E.2d 302, 306. Additionally, if the court, in exerсising its discretion, permits evidence to be introduced during re-direct examination for the first time, this will not constitute reversible error unless the opposing party is prevented from further questioning the witness on the subject and from presenting other evidence to contradict the testimony if it is prejudicial to his case. Shipman v. State (1962), 243 Ind. 245, 255, 183 N.E.2d 823, 838; cert. denied, 371 U.S. 958, 83 S.Ct. 515, 9 L.Ed.2d 504 (1963).

A. Examination of Charles Benion

During direct examination, Charles testified that he did not see Hinton when he was shot, but did see Hinton afterward. On cross-examination, Charles testified that he never saw anybody shoot Hinton. The State, on re-direct examination, asked Charles about a statement he made shortly after the incident in which he said he saw Jones shoot Hinton. Jones' counsel objected to questions about the statеment arguing that the questions were beyond the seope of cross-examination. The trial court overruled the objection and the State was allowed to question Charlee about the statement. Jones counsel was permittеd on - re-cross - examination - to - discredit Charles' testimony.

The record reflects that Jones' counsel took advantage of the re-cross examination to explore Charles' memory of the statement and its accuracy. The police statement itself may have been prejudicial to Jones' case, but he was given the opportunity to discredit it and to present other evidence to dispute the information it contained. Jones has not demоnstrated an abuse of the trial court's discretion.

B. Examination of Sgt. Dosmann

Sergeant David Dosmann, a homicide investigator, was called as a witness by the State. During direct examination, Sgt. Dosmann identified photographs of the crime seene. Further, on direct examination Sgt. Dosmann identified the location of a blue chair inside the house in which Hinton sat the night he was shot. On cross-examination, Jones' counsel questioned Sgt. Dosmann about the photographs and his ability to see the blue chair from а photograph taken directly in front of the house. Sgt. Dosmann on re-direct examination testified about the lighting conditions in front of the house. Jones' counsel objected on the grounds that the questions were beyond the seope оf cross-examination. The objection was overruled, and Sgt. Dosmann was permitted to continue his testimony. Jones' counsel on recross examination challenged the testimony of Sgt. Dosmann and later presented a witness who alsо contradicted the testimony. Jones has not demonstrated how he was prejudiced by this testimony.

We hold that the trial court did not abuse its discretion regarding the scope of the redirect examination ‍‌‌‌​‌‌​‌​​‌​‌‌​‌​‌‌​​‌‌​‌​‌‌‌‌​​​​‌‌‌​‌‌​​‌​​‌‌‌‍of either Charles Benion or Sgt. Dоsmann, and that the trial court committed no reversible error.

II. Manifestly Unreasonable Sentence

As aggravating circumstances, the trial court found that Jones (1) was on parole when he committed the crime, (2) was recently released from prison, (8) had a history of criminal activity, (4) needed correctional treatment, and that (5) a reduced sentence would depreciate the seriousness of the crime. Additionally, the court found that there were no mitigating circumstances.

*548 Jones acknowledges that the trial court could properly consider two of the specified aggravating circumstances, (1) his prior criminal history, and (2) that he was on parole at the time of the offenses; but argues that these carry little actual aggravating weight because the court merely repeated the statute when stating the other three circumstances and that these two circumstances were used for a double purpose. He asserts that it is manifestly unreasonable to use the prior criminal history to enhance the sentence on the present offense and to use the criminal history to form the basis of the habitual offender status where the trial court failed to identify anything unusual about the nаture of the offense or the character of the offender beyond the criminal history. - Further, Jones argues that the mandatory sentence for being an habitual offender satisfies the State's interest for an increased punishment of аn offender with a criminal history.

- Our standard of reviewing a sentence is well established. Sentencing is conducted within the discretion of the trial court and will be reversed only upon a showing of a manifest abuse of that discretion. Sims v. State (1992), Ind., 585 N.E.2d 271, 272. It is within the discrеtion of the trial court to determine whether a presumptive sentence will be increased or decreased because of aggravating or mitigating circumstances. Id. A sentence authorized by statute will not be revised unless the sentence is manifestly unreasonable. Id. See also Letica v. State (1991), Ind., 569 N.E.2d 952, 958. A sentence is not manifestly unreasonable unless no reasonable person could find such sentence appropriate to the particular offеnse and offender for which such sentence was imposed. Ind. Appellate Rule 17(B)(2). If a trial court enhances a presumptive sentence, the record "must demonstrate that the determination was based upon the considerаtion of the facts of the specific crime, the aggravating and mitigating cireumstances involved, and the relation of the sentence imposed to the objectives which will be served by that sentence." Fointno v. State (1986), Ind., 487 N.E.2d 140, 144. The trial court's statement must identify all significant aggravating and mitigating cireumstances, include a specific reason why each circumstance is aggravating or mitigating, and weigh mitigating circumstances against the aggravating factors. Boyd v. State (1991), Ind., 564 N.E.2d 519, 524-25.

The trial court record must disclose the factors considered ‍‌‌‌​‌‌​‌​​‌​‌‌​‌​‌‌​​‌‌​‌​‌‌‌‌​​​​‌‌‌​‌‌​​‌​​‌‌‌‍in justifying an enhancement of a presumptive sentence. Boyd, 564 N.E.2d at 524. Although there may be several aggravating circumstances, "[olnly one valid aggravator is needed to sustain an еnhanced sentence." Reaves v. State (1992), Ind., 586 N.E.2d 847, 852. Additionally, an enhanced sentence may be imposed where the only aggravating circumstance is a prior criminal history. Du-Vall v. State (1989), Ind., 540 N.E.2d 34, 36. Where the record, however, indicates that the trial court did engage in the evaluative processes but simply did not articulate sufficiently the reasons for sentence enhancement, and the record indicates that the sentence was not manifestly unreasonable, then the purposes underlying the specificity requirement are satisfied. Id.

Our review of the record reveals that the trial court did evaluate the mitigating and aggravating circumstances. Al though the trial court did not fully articulate each aggravаting circumstance, the record is sufficient to support sentence enhancement and to determine that the sentence is not manifestly unreasonable.

Jones also asserts that the use of the prior offense to enhanсe the present offense and to establish habitual offender status is manifestly unreasonable. This Court has held, however, that it is permissible for the trial court to consider the same prior offenses for both enhancement of the instant оffense and to establish habitual offender status. Criss v. State (1987), Ind., 512 N.E.2d 858, 860. We hold here that the trial court properly evaluated the aggravating and mitigating circumstances and that the sentence is not manifestly unreasonable.

*549 Conclusion

Accordingly, the convictions and sentences are affirmed.

SHEPARD, C.J., and DeBRULER, GIVAN ‍‌‌‌​‌‌​‌​​‌​‌‌​‌​‌‌​​‌‌​‌​‌‌‌‌​​​​‌‌‌​‌‌​​‌​​‌‌‌‍and DICKSON, JJ., concur.