FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANTHONY S. CHURCHWARD STEVE CARTER
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
RYAN D. JOHANNINGSMEIER Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RICHARD E. PAYTON, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-0403-CR-139
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-0306-FD-403
November 30, 2004
OPINION - FOR PUBLICATION
BAILEY, Judge
Case Summary
Appellant-Defendant Richard E. Payton (“Payton”) appeals his convictions for sexual battery as Class
D felonies
See footnote and his aggregate thirty-nine-year sentence. We reverse and remand in
part and revise in part.
Issues
Payton raises two issues, the first of which we restate as whether the
evidence is sufficient to support his convictions for sexual battery. We do
not address this issue. Rather, we address, sua sponte, whether Payton’s simultaneous
convictions for sexual battery as Class D felonies, child molesting as Class
C felonies, and sexual misconduct with a minor as a Class C felony
violate the Indiana Constitution’s prohibition against double jeopardy. The second issue raised
by Payton is whether the trial court abused its discretion when it imposed
the thirty-nine-year sentence.
Facts and Procedural History
On June 21, 2003, twelve-year-old K.S., fourteen-year-old D.S., eleven-year-old Ke.S., and twelve-year-old R.T.
(collectively, the “Children”) were playing behind a children’s recreational facility in Fort Wayne,
Indiana. At some point, Payton approached D.S. and asked if anyone was
with her, to which she affirmatively replied. Payton then made the Children
stand in a line, told them he was an undercover police officer, “flipped
[them] a badge,” and showed them his handcuffs. Tr. at 123.
Payton proceeded to tell the children that they were trespassing and asked them
if they were carrying drugs or weapons. With the children lined up
in a row, Payton asked each, one by one, to take three steps
backwards so that he could conduct a pat-down search. Believing that Payton
was a police officer and fearing that they would go to jail if
they disobeyed his orders, the Children complied. D.S. testified that, during her
pat-down search, Payton “started with [her] breasts and he rubbed them and .
. . lifted them up. And then he went down to [her]
private area, [her] vagina, and he just did it so hard that it
made [her] jump.” Id. at 125. D.S. also testified that, although
Payton touched her pockets during the pat-down, he spent more time patting down
her breasts and vagina.
K.S. also testified that, during Payton’s pat-down search of her, he spent more
time on her breasts and vagina. K.S. further testified that Payton’s pat-down
of her breasts and vagina was not a pat, but more a “lift
and a rub.” Tr. at 97. After Payton finished patting-down K.S.,
he told her not to look at her other friends or he would
send her to a juvenile facility. R.T. testified that Payton touched his
private parts when he patted him down and warned that he would take
the children to jail if they trespassed again. Ke.S. testified that Payton
patted him down in the same manner as he had done R.T., spending
more time patting his private area.
After Payton finished patting down the Children, he told them to leave the
premises. Payton threatened that if the Children returned to the recreational facility,
he would send them to a juvenile correctional facility. The Children went
to D.S.’s house and contacted the police. Fort Wayne Police Officer Jean
Gigli (“Officer Gigli”) responded to the Children’s call, saw Payton approximately three or
four blocks away from the recreational facility, and confronted him about the incident.
Payton admitted that he told the Children he was an undercover officer
and that he had patted them down. During a subsequent pat-down search
of Payton, Officer Gigli discovered two condoms, a ten-ounce bottle of Lubriderm lotion,
and a pair of handcuffs.
Subsequently, Payton admitted to Fort Wayne Police Detective Cary Young (“Detective Young”) that
he showed the Children a badge and patted them down, “like he had
observed police officers do on television.” Id. at 207. Payton also
told Officer Young that he was not a law enforcement officer, but rather
a janitor at a truck plaza.
In late June of 2003, the State charged Payton with the following Counts:
(I) impersonation of a police officer as a Class D felony;
See footnote (II)
sexual battery of D.S. as a Class D felony; (III) sexual battery of
K.S. as a Class D felony; (IV) sexual battery of R.T. as a
Class D felony; (V) child molesting of R.T. as a Class C felony;See footnote
(VI) child molesting of K.S. as a Class C felony; and (VII) sexual
misconduct with a minor, i.e., D.S., as a Class C felony.See footnote On
August 5, 2003, the State charged Payton with being a habitual offender.
At the conclusion of Payton’s trial, the jury found Payton guilty as charged
on Counts I through VII. Further, the jury found that Payton is
a habitual offender.
On February 9, 2004, the trial court entered judgments of conviction on the
jury’s verdicts, including the habitual offender finding. For purposes of sentencing, however,
the trial court merged the sexual battery of D.S. conviction into the sexual
misconduct with D.S. conviction; the sexual battery of K.S. conviction into the child
molesting of K.S. conviction; and the sexual battery of R.T. conviction into the
child molesting of R.T. conviction. The trial court then sentenced Payton to
three years in the Indiana Department of Correction for the impersonation conviction, eight
years for the child molesting of R.T. conviction, eight years for the child
molesting of K.S. conviction, and eight years for the sexual misconduct with D.S.
conviction. The trial court enhanced the sexual misconduct with D.S. conviction by
twelve years because of Payton’s status as a habitual offender and ordered that
the sentences be served consecutive to each other, for an aggregate sentence of
thirty-nine years.See footnote In so doing, the trial court found no mitigating circumstances and
the following aggravating circumstances: (1) Payton’s prior criminal history consisting of two
misdemeanor and four felony offenses, including murder; (2) the nature and circumstances of
the crimes; (3) that prior efforts at rehabilitating Payton have failed; and (4)
in committing these crimes, Payton violated the conditions of his probation. This
appeal ensued.
Discussion and Decision
I. Double Jeopardy
On appeal, Payton first argues that the evidence is insufficient to support his
three convictions for sexual battery, all as Class D felonies. We do
not address this issue. Rather, we address, sua sponte, the issue of
whether Payton’s simultaneous convictions for sexual battery as Class D felonies, child molesting
as Class C felonies, and sexual misconduct with a minor as a Class
C felony violate the Indiana Constitution’s prohibition against double jeopardy.
Here, the trial court entered judgments of conviction, in relevant part, on the
following counts: (II) sexual battery of D.S.; (III) sexual battery of K.S.; (IV)
sexual battery of R.T.; (V) child molesting of R.T.; (VI) child molesting of
K.S.; and (VII) sexual misconduct with a minor, i.e., D.S. Recognizing that
the sexual battery of D.S., sexual battery of K.S., and sexual battery of
R.T. convictions are lesser-included offenses of the sexual misconduct with D.S., child molesting
of K.S., and child molesting of R.T. convictions, the trial court merged the
former offenses into the latter ones for sentencing purposes.
See footnote
However, the trial court’s act of merging, without also vacating, the convictions is
not sufficient. Indeed, a double jeopardy violation occurs when judgments of conviction
are entered and cannot be remedied by the “practical effect” of concurrent sentences
or by merger after conviction has been entered.
See Jones v. State,
807 N.E.2d 58, 67-68 (Ind. Ct. App. 2004), trans. denied; see also Webster
v. State, 708 N.E.2d 610, 616 (Ind. Ct. App. 1999) (holding that “where
a defendant is found guilty of both the greater offense and the lesser
included offense, the trial court’s proper procedure is to vacate the conviction for
the lesser included offense and enter a judgment of conviction and sentence only
upon the greater offense”), trans. denied. Therefore, we remand this cause to
the trial court with an order to vacate Payton’s convictions of the lesser-included
offenses of sexual battery and enter judgments of conviction and sentence only upon
the greater offenses of child molesting and sexual misconduct with a minor.
See, e.g., Spry v. State, 720 N.E.2d 1167, 1170 (Ind. Ct. App. 1999),
trans. denied.
II. Appropriate Sentence
Payton next argues that the trial court abused its discretion when it sentenced
him to thirty-nine years in the Indiana Department of Correction. Sentencing decisions
rest within the sound discretion of the trial court and such decisions will
be reversed only upon a showing of a manifest abuse of that discretion.
Thacker v. State, 709 N.E.2d 3, 9 (Ind. 1999), reh’g denied.
Here, the trial court sentenced Payton, in relevant part, to the maximum term
of three years for his impersonating a police officer conviction,
See footnote the maximum term
of eight years for the child molesting convictions, and the maximum and enhanced
term of twenty years for his sexual misconduct with a minor conviction,See footnote and
ordered that the sentences be served consecutively. In so doing, the trial
court found several aggravating circumstances including
Payton’s criminal history. This aggravator is
sufficient to support Payton’s enhanced sentences. See, e.g., Blakely v. Washington,
124
S. Ct. 2531 (2004) (holding that “‘[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt,’ or admitted by the defendant), reh’g denied; see also
Powell v. State,
751 N.E.2d 311, 317 (Ind. Ct. App. 2001) (holding that an enhanced sentence
will be affirmed if it is supported by a legitimate aggravator). Moreover,
“a single aggravating circumstance may be used both to enhance a sentence and
to impose consecutive sentences.” Allen v. State, 722 N.E.2d 1246, 1253 (Ind.
Ct. App. 2000). Accordingly, the trial court did not abuse its discretion
by imposing the enhanced sentences for Payton’s convictions and ordering that those sentences
be served consecutive to each other.
Payton further argues that his thirty-nine-year sentence was inappropriate in light of the
nature of the offenses and the character of the offender. See Ind.
Appellate Rule 7(B). In the present case, the trial court sentenced Payton
to the maximum term of thirty-nine years. In general, the maximum possible
sentences should be reserved for the worst offenders and offenses. See Buchanan
v. State, 767 N.E.2d 967, 974 (Ind. 2002). Indeed, the presumptive sentence
is meant to be the starting point for the trial court’s consideration of
the appropriate sentence for the particular crime or crimes committed. Williams v.
State, 782 N.E.2d 1039 1051 (Ind. Ct. App. 2003), trans. denied.
In this case, t
he record reveals that Payton, while impersonating a police officer,
inappropriately touched the Children, under the guise of a pat-down search. During
the incident, which lasted for a minute or two for each child, the
Children were fully clothed. After the “searches,” Payton told the Children to
leave the premises and did not subject them to any further inappropriate conduct.
The record also indicates that Payton has a criminal history consisting of
two misdemeanor and four felony offenses, including a 1983 murder conviction, for which
he has served time. The evidence further demonstrates that Payton committed the
present offenses while on probation from another offense.
From this evidence, it is clear that Payton’s character falls within the category
of the worst offenders. However, we are also obliged to consider the
nature of the offenses. In our opinion, the offenses committed, while egregious,
are by far not the worst we have reviewed. Therefore, in this category
of offenses, we do not find Payton’s actions to be the worst we
have reviewed and, thus, we deem his aggregate thirty-nine-year sentence to be inappropriate.
Therefore, we revise Payton’s sentence to reflect the presumptive for each offense, i.e.,
one and one-half years for the impersonating a police officer conviction, four years
for the child molesting convictions, and four years—enhanced by twelve years—for the sexual
misconduct with a minor conviction, to be served consecutively for an aggregate sentence
of twenty-five and one-half years.
For the foregoing reasons, we reverse Payton’s convictions for sexual battery and remand
to the trial court with instructions to vacate Payton’s conviction of the lesser-included
offenses of sexual battery and enter judgments of conviction and sentence only upon
the greater offenses of child molesting and sexual misconduct with a minor.
We also revise Payton’s aggregate sentence to twenty-five and one-half years.
Reversed and remanded in part and revised in part.
DARDEN, J., concurs.
MATHIAS, J., concurs in part and dissents in part with separate opinion.
IN THE
COURT OF APPEALS OF INDIANA
RICHARD E. PAYTON, )
)
Appellant-Defendant, )
)
vs. )
No. 02A03-0403-CR-139
)
STATE OF INDIANA,
)
)
Appellee-Plaintiff. )
___________________________________________________________________________
MATHIAS, Judge, concurring and dissenting
I concur with the majority’s determination that Payton’s convictions of the lesser-included offenses
of sexual battery must be vacated on double jeopardy grounds. However, believing
that Payton’s sentence is entirely appropriate, I respectfully dissent from the majority’s decision
to modify that sentence.
When we review the appropriateness of a sentence “we exercise with great restraint
our responsibility to review and revise sentences, recognizing the special expertise of the
trial bench in making sentencing decisions.” Green v. State, 811 N.E.2d 874,
880 (Ind. Ct. App. 2004). As the majority observes, our supreme court
has determined that the maximum possible sentence should be reserved for the worst
offenders and offenses. Slip op. at 9 (citing Buchanan v. State, 767
N.E.2d 967, 974 (Ind. 2002)). In applying that principle, our court has
held when determining whether
a case is among the very worst offenses and a defendant among the
very worst offenders, thus justifying the maximum sentence: We should concentrate less
on comparing the facts of this case to others, whether real or hypothetical,
and more on focusing on the nature, extent, and depravity of the offense
for which the defendant is being sentenced, and what it reveals about the
defendant’s character.
Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied;
see also Foster v. State, 795 N.E.2d 1078, 1092 (Ind. Ct. App. 2003),
trans. denied.
I agree with the majority’s determination that “Payton’s character falls within the category
of the worst offenders.” See Slip op. at 10. However, the
majority also concluded that Payton’s offenses “while egregious, are by far not the
worst we have reviewed,” and therefore, found his aggregate thirty-nine-year sentence to be
inappropriate. Id.
In considering the nature of Payton’s offenses, the trial court found the offenses
“to be particularly disturbing.” Sentencing Tr. p. 15. The court noted
that Payton accosted the children while they were playing by impersonating a police
officer. Id. By impersonating a police officer, Payton led the children
to believe that they were required to submit to his authority and used
that belief to molest and sexually batter the children. Therefore, after considering
the nature of the offense and the character of the offender, I conclude,
as did the trial court, that the maximum sentence was warranted in this
case. Accordingly, I would affirm the trial court’s decision to sentence Payton
to the maximum, aggregate sentence of thirty-nine years.
Footnote:
Ind. Code § 35-42-4-8.
Footnote:
Ind. Code § 35-44-2-3.
Footnote: Ind. Code § 35-42-4-3.
Footnote: Ind. Code § 35-42-4-9.
Footnote:
The trial court also ordered Payton to serve the thirty-nine-year sentence consecutive
to sentences for two other felony cause numbers.
Footnote:
Payton does not challenge the trial court’s finding that sexual battery, as
charged, was a lesser-included offense of child molesting and sexual misconduct with a
minor. Nor does Payton challenge the sufficiency of the evidence supporting the
child molesting and sexual misconduct with a minor convictions.
Footnote: Payton was convicted of impersonating an officer as a Class D felony.
Indiana Code Section 35-50-2-7 provides, in pertinent part, that “[a] person who
commits a Class D felony shall be imprisoned for a fixed term of
one and one-half (1 1/2) years, with not more than one and
one-half (1 1/2) years added for aggravating circumstances or not more than
one (1) year subtracted for mitigating circumstances.”
Footnote:
Payton was convicted of child molesting and sexual misconduct with a minor,
both as Class C felonies. Indiana Code Section 35-50-2-6 provides, in relevant
part, that “[a] person who commits a Class C felony shall be imprisoned
for a fixed term of four (4) years, with not more than four
(4) years added for aggravating circumstances or not more than two (2) years
subtracted for mitigating circumstances.”
Moreover, Indiana Code Section 35-50-2-8, which applies to habitual offender enhancements, provides:
The court shall sentence a person found to be a habitual offender to
an additional fixed term that is not less than the presumptive sentence for
the underlying offense nor more than three (3) times the presumptive sentence for
the underlying offense. However, the additional sentence may not exceed thirty (30)
years.