Senaca v. Lapsley v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 20, 2015
• Docket: 02A05-1408-CR-399
• Status: Published

Opinion

MEMORANDUM DECISION Mar 20 2015, 7:18 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald C. Swanson, Jr. Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Senaca V. Lapsley, March 20, 2015

Appellant-Defendant, Court of Appeals Case No. 02A05- 1408-CR-399 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Judge Appellee-Plaintiff. Cause No. 02D05-1312-FB-247

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015 Page 1 of 14 [1] Senaca V. Lapsley appeals his convictions and sentence for two counts of

aggravated battery as class B felonies and criminal recklessness as a class C

felony. Lapsley raises two issues, which we revise and restate as:

I. Whether the evidence is sufficient to sustain his convictions; and

II. Whether his sentence is inappropriate in light of the nature of the offense

and the character of the offender.

We affirm.

Facts and Procedural History

[2] At around 12:00 a.m. on December 25, 2013, Lapsley asked his girlfriend,

Tequila James, if she would drop him off to see his brother at Stein Tavern.

James saw that Lapsley had a pistol “on the side of his jacket and the pants

pocket.” Transcript at 107. James dropped Lapsley off at Stein Tavern and

drove away.

[3] At approximately 1:00 a.m. on December 25, 2013, Lapsley, who had

dreadlocks, his brother Lorenzo, and another man entered Sports and Spirits, a

tavern in Fort Wayne, Indiana. There were around fifty people at the bar.

Randy Daniels was working as a doorman at the bar, and Anna Roque and

Zachary Huddleston, both of whom worked as bartenders but were not working

at the time, were socializing with Daniels. At some point, Lorenzo punched a

man in the face, and Daniels rushed over to break up the fight. Daniels

attempted to defuse the situation and, with the help of Huddleston, directed

Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015 Page 2 of 14 Lapsley, Lorenzo, and the third man toward the door. Daniels, with

Huddleston’s assistance, forced the three men to exit the bar through the front

door, and Daniels locked the door.

[4] Within seconds after he exited the building, Lapsley pulled a gun out of his

clothing, pointed it directly through the front window of the bar, and fired the

gun multiple times. Roque was struck in the hand, and Huddleston was struck

in the neck and abdomen. A bullet entered Huddleston’s neck below his chin

and exited out of his jaw, shattering it. A second bullet entered Huddleston’s

abdomen, traveled through his bladder, and struck the femoral artery in his left

leg. Huddleston tried to scream but could not because of the blood in his

throat. Roque helped Huddleston roll over so that he could cough so that he

would not choke on his own blood. A part of one of Roque’s fingers later had

to be amputated as a result of her injuries. Huddleston later underwent

approximately ten operations during three hospital stays totaling about two

months.

[5] In the morning following the shooting, Lapsley told James that Lorenzo had

“knocked out somebody” at Sports and Spirits. Transcript at 112. Later that

night, Lapsley and James were watching the news, and there was a report about

the shooting at Sports and Spirits. When the report showed a picture of the

window of Sports and Spirits with bullet holes in it, Lapsley yelled: “Damn,

that look like my holes I put through the windows.” Id.

Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015 Page 3 of 14 [6] On December 27, 2013, the State charged Lapsley with two counts of

aggravated battery as class B felonies and three counts of criminal recklessness

as class C felonies. The State later alleged Lapsley was an habitual offender. A

two-day jury trial was held in July 2014, at which the jury heard the testimony

of, among others, Daniels, Roque, Huddleston, James, and Fort Wayne Police

Detective Edward Sabo. Roque and Daniels made in-court identifications of

Lapsley, Detective Sabo testified that Roque identified Lapsley in a photo

array, and James testified regarding seeing Lapsley with a gun prior to the

shooting and his statements following the shooting. The jury found Lapsley

guilty as charged and found him to be an habitual offender. Following a

sentencing hearing, at which the court found no mitigating factors and

Lapsley’s criminal history and failed prior attempts at rehabilitation to be

aggravating factors, the court sentenced him to twenty years for each of the

aggravated battery convictions and eight years for one criminal recklessness

conviction. The court vacated two of the convictions for criminal recklessness

due to double jeopardy concerns, ordered that Lapsley serve his sentences

consecutively, and enhanced the sentence for one of the aggravated battery

convictions by thirty years due to the habitual offender finding, for an aggregate

term of seventy-eight years.

Discussion

I.

[7] The first issue is whether the evidence is sufficient to sustain Lapsley’s

convictions. When reviewing claims of insufficiency of the evidence, we do not Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015 Page 4 of 14 reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656

N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and

the reasonable inferences therefrom that support the verdict. Id. We will affirm

the conviction if there exists evidence of probative value from which a

reasonable trier of fact could find the defendant guilty beyond a reasonable

doubt. Id.

[8] Lapsley contends the State presented insufficient evidence to convict him. He

argues that, with no physical evidence linking him to the shooting, the State’s

case rises and falls on the sufficiency of the identifications given by Daniels and

Roque. He argues that the inherent problems in eyewitness testimony are well

known and that “[i]t is likely no exaggeration to state that, within our collective

lifetimes, the current use of eye witness testimony alone to support a criminal

conviction will be viewed as having similar validity as the methods used for

determining the guilt of accused witches in 17th Century Salem.” Appellant’s

Brief at 6-7. He argues that “[t]his Court is left with two cross-racial

identifications, made on the basis of memories formed during a high-stress, and

extremely short, period of time.” Appellant’s Brief at 7. Specifically, Lapsley

argues that Daniels’s identification “was some seven (7) months after the

incident” and in direct contradiction to his inability to identify any suspect on

the day of the incident. Id. He asserts that Roque’s identifications “are even

more suspect” as she was under the influence of alcohol at the time and

identified Lapsley on the date of the incident as someone other than the

shooter. Id. Lapsley further argues that, while James’s testimony places

Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015 Page 5 of 14 Lapsley in possession of a handgun and in similar clothes as the shooter, James

could not testify that Lapsley was at Sports and Spirits on the night of the

shooting.

[9] The State maintains that two people identified Lapsley as the person who fired

a gun into the bar, and the entire episode was captured on video from multiple

angles leaving little question Lapsley was properly identified as the shooter.

The State argues that Roque testified she knew Lapsley and his brother Lorenzo

personally and that Roque identified Lapsley in a video by his clothing and

hair. The State notes there was a discrepancy between Roque’s testimony and

the report of Detective Sabo, that Roque’s trial testimony and identification of

Lapsley from a photo array were unequivocal, and whatever weight the jury

assigned to the discrepancy appears to have been resolved by the jury in

Roque’s favor. The State further argues that Daniels was unequivocal in

identifying Lapsley as the person in a photograph admitted as State’s Exhibit 2

as the person closest to the door, that the photograph shows Lapsley standing

nearest the door, and that the same man is shown firing the gun in the video

from outside the door. The State also argues that Lapsley admitted to James

that he and Lorenzo went to Sports and Spirits and that Lorenzo had struck

someone while there, that James had seen a gun on Lapsley earlier in the

evening, and that Lapsley’s comment to James during news coverage of the

shooting corroborates that Lapsley was responsible for the bullet holes in the

window of the bar.

Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015 Page 6 of 14 [10] Elements of offenses and identity may be established entirely by circumstantial

evidence and the logical inferences drawn therefrom. Bustamante v. State, 557

N.E.2d 1313, 1317 (Ind. 1990). The unequivocal identification of the defendant

by a witness in court, despite discrepancies between his description of the

perpetrator and the appearance of the defendant, is sufficient to support a

conviction. Emerson v. State, 724 N.E.2d 605, 610 (Ind. 2000), reh’g denied.

Identification testimony need not necessarily be unequivocal to sustain a

conviction. Heeter v. State, 661 N.E.2d 612, 616 (Ind. Ct. App. 1996).

Inconsistencies in identification testimony impact only the weight of that

testimony, because it is the jury’s task to weigh the evidence and determine the

credibility of the witnesses. Gleaves v. State, 859 N.E.2d 766, 770 (Ind. Ct. App.

2007) (citing Badelle v. State, 754 N.E.2d 510 (Ind. Ct. App. 2001), trans. denied).

As with other sufficiency matters, we will not weigh the evidence or resolve

questions of credibility when determining whether the identification evidence is

sufficient to sustain a conviction. Id. Rather, we examine the evidence and the

reasonable inferences therefrom that support the verdict. Id.

[11] Roque testified that she recognized and knew Lapsley and Lorenzo, identified

Lorenzo as the person wearing a fur coat, and identified Lapsley in a video

admitted into evidence as the person who was wearing a white t-shirt, grey

sweatshirt or coat, and a dark skullcap and whose hair was in dreadlocks.

Roque also identified Lapsley in court and testified that she had identified him

to police in a photo array, and the photograph with her initials was admitted

into evidence as State’s Exhibit 3. (Tr. at 71, 76; State’s Exhibit 3) The State

Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015 Page 7 of 14 presented three video recordings, admitted into evidence as State’s Exhibit 1,

which together showed footage of the shooting and the activities in the bar

before and after the shooting. One of the recordings shows a man in a fur coat

and identified by Roque as Lorenzo punch another person, and the man

identified as Lapsley by Roque is shown standing with the man in the fur coat.

Another of the video recordings shows the area outside the door of the bar and

clearly shows the person identified as Lapsley by Roque firing a gun multiple

times toward the building moments after he had exited the building. On cross-

examination, defense counsel asked Roque if she had indicated to Detective

Sabo that the same person with the fur coat and fuzzy hat had dreadlocks, and

Roque said no and that she told Detective Sabo that Lorenzo was the person

wearing the fur coat. When asked if she, by chance, identified Lorenzo as being

Lapsley, Roque answered no. Detective Sabo testified that, according to his

report, when Roque gave him a description of the possible suspects, she

described the individual as a black male with dreadlocks and that she believed

the person was wearing a fur coat. In addition, Detective Sabo testified that

Roque was able to positively identify Lapsley from a photo array, and the

photograph was admitted into evidence.

[12] Daniels identified Lapsley as the person in a photograph admitted as State’s

Exhibit 2 as the person positioned closest to the door of the bar. The

photograph depicts a man standing near the bar door wearing a white t-shirt, a

dark sweatshirt or coat, and a dark hat or cap. The man identified by Daniels

as Lapsley in the photograph is the man shown in the video recording admitted

Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015 Page 8 of 14 into evidence firing a gun multiple times towards the bar window. Daniels

testified that he “was a real basket case” immediately following the shooting

and was not able to identify the suspects at the time. Transcript at 45. Daniels

unequivocally identified Lapsley in court as the person who was positioned

closest to the door of the bar in the photograph admitted as State’s Exhibit 2.

[13] James testified that, prior to dropping Lapsley off at Stein Tavern, she had

noticed that Lapsley possessed a gun. She also testified that, in the morning

following the shooting, Lapsley told her that Lorenzo had “knocked out

somebody” at Sports and Spirits and that, later in the evening when watching a

news report showing the window of Sports and Spirits, Lapsley stated “that

looks like my holes I put through the windows.” Id. at 112.

[14] The jury heard testimony from Roque, Daniels, and James as set forth in part

above, and each of them were examined before the jury regarding their

observations. The three video recordings depicting the shooting and the actions

of the persons described as Lapsley and Lorenzo by Roque and Daniels were

also admitted into evidence. The jury was able to assess the credibility of each

of the witnesses in light of his or her own testimony and in light of the

testimony of the other witnesses. To the extent there was any discrepancy

between Detective Sabo’s report regarding a description given by Roque and

Roque’s subsequent positive photo identification and in-court identification of

Lapsley, or between Daniels’s initial failure to make a positive identification of

the suspects and his subsequent unequivocal in-court identification of Lapsley,

it was the jury’s function to resolve any such conflicting testimony and

Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015 Page 9 of 14 discrepancies. See Emerson, 724 N.E.2d at 610 (observing that it is the jury’s

function to resolve conflicting testimony and discrepancies between the

witnesses’ original out-of-court identifications); Gleaves, 859 N.E.2d at 770

(observing that discrepancies were factual issues for the jury to resolve). Roque

described Lapsley’s clothing and appearance at the bar, identified him in a

photo array, and identified him in court; Daniels identified Lapsley in a

photograph as the person positioned closest to the bar door and identified him

in court; and the person identified as Lapsley by Roque and Daniels is shown

shooting through the bar’s window in the video recording admitted into

evidence. Lapsley’s arguments regarding why the witnesses or certain

testimony of the witnesses should not be believed amount to an invitation that

we reweigh the evidence, which we cannot do. See Jordan, 656 N.E.2d at 817.

It was reasonable for the jury to infer based upon the evidence presented that

Lapsley was the person who performed the acts for which he was charged and

convicted.

[15] Based upon our review of the evidence as set forth in the record and above, we

conclude that sufficient evidence exists from which the jury could find Lapsley

guilty beyond a reasonable doubt of the aggravated battery and criminal

confinement counts as charged. See Wilder v. State, 716 N.E.2d 403, 405 (Ind.

1999) (noting that it is the duty of the fact-finder to assess the credibility of

witness testimony and finding that the State presented evidence of the

defendant’s identity as the perpetrator involved in the offense).

Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015 Page 10 of 14 II.

[16] The next issue is whether Lapsley’s sentence is inappropriate in light of the

nature of the offense and his character. Indiana Appellate Rule 7(B) provides

that this court “may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, [we find] that the sentence is

inappropriate in light of the nature of the offense and the character of the

offender.” Under this rule, the burden is on the defendant to persuade the

appellate court that his or her sentence is inappropriate. Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).

[17] Lapsley acknowledges that the severity of the injuries to Huddleston and Roque

cannot be disputed, nor can he minimize his extensive criminal history, but he

argues “the sentence handed down by the trial court amounts to a life sentence”

and that “[g]iven the fact that Lapsley’s convictions rest almost entirely on

evidence which is of questionable reliability, Lapsley would submit that such a

severe punishment is unwarranted.” Appellant’s Brief at 9. He requests this

court to revise his sentence to the advisory sentence and order that the sentences

be served concurrently.

[18] The State argues that Lapsley’s sentence is not inappropriate and that he

waived his argument as to an appropriateness claim because he failed to make

cogent argument regarding the nature of the offense and his character. The

State asserts that only the prompt and effective field treatment of Huddleston’s

wounds by Trooper Anderson prevented this from being a murder case, and

Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015 Page 11 of 14 notes that the trial court described the offense as being horrific and stated that

the fact someone did not die is remarkable. The State argues that there were

about fifty people in the bar on the night Lapsley fired his gun nine times

through the window, that he shot into the bar because he had been thrown out

earlier, and that he committed a horribly violent act over a trivial matter in

which he was the party in the wrong. The State further notes Lapsley’s

criminal history, including fifteen misdemeanor and five felony convictions and

that he was on probation at the time of this offense. The State also argues

Lapsley “snorted” when the court stated it was remarkable that nobody died,

making it clear he has no remorse for his actions. Appellee’s Brief at 13.

[19] Our review of the nature of the offense reveals that, after he had been thrown

out of a bar for fighting, Lapsley turned around and fired his gun multiple times

into the bar through the window, which resulted in serious injuries to

Huddleston and Roque and could have resulted in serious injury or death to

many others. At sentencing, the court stated:

It’s horrific what you did, Mr. Lapsley, it’s horrific. The fact that people didn’t die is remarkable. You can sit there and snort at me all you want, sir, I watched the videotape that twelve (12) jurors watched, as well, and saw you . . . casually pull out a weapon as you would pull out your billfold and fire into that building that was packed with people. And the scary thing about it, Mr. Lapsley, is you couldn’t care less.

Sentencing Transcript at 14. The nature of the offense does not warrant a

reduction of Lapsley’s sentence.

Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015 Page 12 of 14 [20] Our review of the character of the offender reveals that, according to the

information presented at the sentencing hearing, Lapsley’s criminal history

includes three juvenile delinquency adjudications, fifteen misdemeanor

convictions, and five prior felony convictions. His prior felonies include

convictions for possession of cocaine or narcotic drug as a class D felony in

2002, forgery as a class C felony and possession of cocaine as a class D felony

in 2005, and failure to return to lawful detention, a class D felony, in 2008. His

misdemeanors include convictions for resisting law enforcement, public

intoxication, false informing, operating while intoxicated, domestic battery,

possession of marijuana, and invasion of privacy. He has had sentences

modified four times and his probation revoked four times. The sentencing

transcript reveals that the court noted that Lapsley “snorted” and that he

“couldn’t care less.” Id. Lapsley’s character does not merit a reduction of his

sentence.

[21] After due consideration, we conclude that Lapsley has not sustained his burden

of establishing that his sentence is inappropriate in light of the nature of the

offense and his character.

Conclusion

[22] For the foregoing reasons, we affirm Lapsley’s convictions and sentence for two

counts of aggravated battery as class B felonies and criminal confinement as a

class C felony.

[23] Affirmed.

Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015 Page 13 of 14 Bailey, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015 Page 14 of 14