Eric Rasnick v. State of Indiana , 2013 Ind. App. LEXIS 643 ( 2013 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES C. SPENCER GREGORY F. ZOELLER
Dattilo Law Office Attorney General of Indiana
Madison, Indiana
ANGELA N. SANCHEZ
LARRY D. ALLEN
Deputies Attorney General
Indianapolis, Indiana
NOV 20 2013, 10:09 am
IN THE
COURT OF APPEALS OF INDIANA
ERIC RASNICK, )
)
Appellant-Defendant, )
)
vs. ) No. 39A01-1211-CR-526
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE JEFFERSON CIRCUIT COURT
The Honorable Ted R. Todd, Judge
Cause No. 39C01-1109-FB-888
November 20, 2013
OPINION – FOR PUBLICATION
MATHIAS, Judge
Eric Rasnick (“Rasnick”) was convicted in Jefferson Circuit Court of Class B
felony burglary and Class D felony theft and sentenced to the Department of Correction
for an aggregate sentence of thirty-six years. Rasnick raises four issues on this appeal,1
which we restate as follows:
I. Whether the trial court abused its discretion in admitting evidence of the
“show-up” identification of Rasnick and items seized during the search
based on that identification;
II. Whether the trial court abused its discretion in admitting GPS evidence
against Rasnick;
III. Whether the evidence is sufficient to support Rasnick’s conviction for
burglary; and
IV. Whether Rasnick’s sentence is inappropriate in light of the nature of the
offense and the character of the offender.
Affirmed.
Facts and Procedural History
On September 25, 2011, Rasnick spent the afternoon at a Madison, Indiana
winery, sampling wine with Tamara Campbell (“Campbell”), Jessica Starks (“Starks”),
and Brandon Eugene Stidham (“Stidham”). At the time, Rasnick was on parole for a
previous burglary conviction and was being monitored by Scott County Community
Corrections via a GPS tracking bracelet on his ankle.
The four individuals left the winery in Campbell’s red, four-door 1996 Chevrolet
Corsica, license plate number NN3776, with Rasnick driving. Rasnick drove the group to
1
We held oral argument in this case on November 4, 2013, at Cathedral High School in Indianapolis,
Indiana. We would like to extend our thanks to the students, staff, faculty, and administration of the
school for their hospitality, and we commend counsel for the quality of their written and oral advocacy.
2
Hanover College, where he had previously worked laying carpet. Rasnick parked the car
near the college’s Wiley Hall dormitory and both Rasnick and Campbell went inside the
dormitory. Starks and Stidham remained in the car.
Once inside, Rasnick and Campbell went to the basement of the dormitory and
entered room number 33. There, they dumped several books from a blue backpack that
they found in the room, took a laptop computer and three cameras, and left the room.
At the time of the burglary, room 33 was occupied by Hanover students Sarah
Lathrop (“Lathrop”) and Christiana Haynes (“Haynes”). Lathrop and Haynes had
attended a local festival during the afternoon of September 25 and returned to the dorm
between 5:00 and 5:30 p.m. Haynes stopped on the dormitory’s first floor to talk to her
resident assistant and Lathrop proceeded alone to the basement of the dormitory.
As Lathrop walked through the basement’s lobby toward the room she shared with
Haynes, she passed a male and female, neither of whom she recognized as Hanover
students, but whom she later identified as Rasnick and Campbell. Rasnick and Campbell
were walking towards Lathrop from the general direction of room 33. Rasnick was
carrying a black trash bag. When Rasnick and Campbell passed Lathrop in the lobby, all
three of them paused and looked at one another for a moment, and Lathrop made eye
contact with both Rasnick and Campbell. Rasnick and Campbell then turned and hurried
across the lobby and up the stairs leading out of the basement. Lathrop watched Rasnick
and Campbell leave and noticed a black tattoo on the back of Rasnick’s right calf as he
climbed the stairs.
3
Rasnick and Campbell also passed by Haynes in a first floor hallway of the dorm
as she waited outside her resident assistant’s room. Haynes thought Rasnick and
Campbell looked suspicious, so she watched them closely as they left the building.
Haynes later identified Campbell as the person who was carrying the black trash bag.
Like Lathrop, Haynes noticed the large black tattoo on the back of Rasnick’s calf.
In the meantime, Lathrop had returned to her dorm room and noticed that the door
was open. Once inside the room, she looked around and saw that the books that had been
in her backpack had been dumped on the floor and that Haynes’s laptop was missing
from her desk. Haynes entered the room a moment later, as Lathrop was still looking
around. Lathrop told Haynes that their “stuff was gone” and “asked where those two
people went.” Tr. p. 127. Haynes told Lathrop that she had seen Rasnick and Campbell
walk out through the north entrance to the dormitory. The two girls then ran upstairs and
outside just in time to see Rasnick, Campbell, and two others drive away in Campbell’s
car. Lathrop chased after the car and came within ten feet of it. As the car sped off,
Lathrop noted the last four digits on the car’s license plate: 3776.
Lathrop and Haynes then contacted campus security, and campus security called
the Hanover police. Lathrop and Haynes reported to the responding officers that their
dorm room had been burglarized and gave the officers a description of Rasnick,
Campbell, and the car in which the two fled. They also described the car’s partial license
plate number and the items stolen from their room.
The Hanover police broadcast the description provided by the victims. A few
minutes later, Jefferson County Sheriff’s Deputy Shane Gibson spotted a car matching
4
that description traveling along Highway 356. He followed the car over the county line
into Scott County, where the car pulled into the driveway of a residence. Rasnick,
Campbell, Stark, and Stidham exited the car and raised the car’s hood. Deputy Gibson
approached the car from the passenger side and noticed a blue backpack on the
floorboard of the front passenger side. He called for backup and ordered the four
occupants to sit behind the car.
Police then radioed campus security to inform Lathrop and Haynes that a vehicle
matching the description they had provided had been stopped and asked the two victims
to come to the location where the car was stopped to try to make an identification. The
police did not describe the occupants of the car or reveal the presence of the blue
backpack in the car.
Hanover Police Sergeant Ian Pearson drove Lathrop and Haynes to the residence
where the car was stopped. As Pearson’s cruiser approached the scene, both victims
spontaneously identified Campbell as the woman they had seen inside the dormitory.
After exiting Pearson’s car, both victims also quickly identified Rasnick.
Police then searched Campbell’s car, apparently pursuant to her consent to do so.
Inside, they found the blue backpack belonging to Lathrop. Inside the backpack, they
discovered Haynes’s laptop and one of Haynes’s missing cameras. After searching the
nearby roadside, police found another of Haynes’s cameras, this one with a broken lens
and serious water damage. A third camera was never recovered.
5
On September 26, 2011, Rasnick was charged with Class B felony burglary, Class
D felony theft, and Class A misdemeanor driving while license suspended. The State
also alleged that Rasnick was an habitual offender.
On September 18, 2012, Rasnick filed a motion to suppress. In the motion,
Rasnick claimed that the victims’ “show-up” identification of Rasnick was impermissibly
suggestive and that evidence seized pursuant to the subsequent search of the vehicle
should be suppressed as the result of the improper identification. On September 21,
2012, Rasnick filed a motion in limine seeking suppression of any evidence that revealed
that he was on a Scott County Community Corrections GPS monitoring system at the
time of the burglary. After a suppression hearing, the trial court denied both motions, but
ruled that the GPS evidence could be used only to show Rasnick’s locations during the
relevant time period.2
A three-day jury trial commenced on September 25, 2012. The jury found
Rasnick guilty of Class B felony burglary and Class D felony theft.3 Thereafter, Rasnick
admitted his habitual offender status. On October 24, 2012, the trial court sentenced
Rasnick to an aggregate sentence of thirty-six years, eighteen years for burglary and
eighteen years for being an habitual offender. Rasnick now appeals.
2
At trial, the State presented to the jury an electronic record of Rasnick’s movements between 5:00 p.m.
and 5:45 p.m. on September 25, 2011. Rasnick’s movements appeared as a red dot moving on a map.
The evidence showed that, during the period in question, Rasnick first made a stop on Hanover’s campus
and then another stop at the residence along Highway 356 where he was later arrested.
3
Before any evidence was presented, Rasnick pleaded guilty in open court to Class A misdemeanor
driving while license suspended.
6
I. Admission of Evidence
Rasnick makes two arguments regarding the admission of evidence. First,
Rasnick argues that the trial court abused its discretion when it admitted the “show-up”
identification by the two victims and the evidence seized pursuant to the identification.
Second, Rasnick asserts that the trial court abused its discretion when it admitted GPS
evidence of Rasnick’s movements during the period of time in which the crime occurred.
In reviewing these claims, we note that the admission of evidence is within the
sound discretion of the trial court, and we review the court’s decision only for an abuse of
that discretion. Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010). The trial
court abuses its discretion only if its decision is clearly against the logic and effect of the
facts and circumstances before the court, or if the court has misinterpreted the law. Id.A. Identification Evidence
1. Undue Suggestiveness
Rasnick argues that the show-up identification procedure was unduly suggestive,
and that therefore, the trial court abused its discretion in admitting the identification and
the evidence seized pursuant to the identification. The Fourteenth Amendment’s
guarantee of due process of law requires the suppression of evidence when the procedure
used during a pretrial identification is impermissibly suggestive. Harris v. State, 716
N.E.2d 406, 410 (Ind. 1999). In some circumstances, a show-up identification “may be
so unnecessarily suggestive and so conducive to irreparable mistake as to constitute a
violation of due process.” Hubbell v. State, 754 N.E.2d 884, 892 (Ind. 2001).
7
We review challenges to show-up identifications by examining the totality of the
circumstances surrounding the identification, including (1) the opportunity of the witness
to view the offender at the time of the crime; (2) the witness’s degree of attention while
observing the offender; (3) the accuracy of the witness’s prior description of the offender;
(4) the level of certainty demonstrated by the witness at the identification; and (5) the
length of time between the crime and the identification. Adkins v. State, 703 N.E.2d 182,
186 (Ind. Ct. App. 1998). “‘Identifications of a freshly apprehended suspect have been
held to be not unnecessarily suggestive despite the suggestive factors unavoidably
involved in such confrontations because of the value of the witness’s observation of the
suspect while the image of the offender is fresh in his mind.’” Lyles v. State, 834 N.E.2d
1035, 1044-45 (Ind. Ct. App. 2005) (quoting Lewis v. State, 554 N.E.2d 1133, 1135 (Ind.
1990)).
To support his argument that the identification was unduly suggestive, Rasnick
points to Lathrop’s testimony that, before the show-up identification, a police officer told
her, “I think we have the people that had your stuff.” Tr. pp. 47-48, 167. Rasnick argues:
The identification of Rasnick and Campbell is unreliable since Lathrop and
Haynes were given every expectation that they would make an
identification once they arrived because of the suggestive statements by
police that they had stopped the persons who had taken their property and
that the car matched the description. Furthermore, the two alleged victims
traveled to the scene together and made their identification together at the
same time.
Appellant’s Br. at 11-12.
Rasnick cites Stovall v. Denno, where the United States Supreme Court noted that
“[t]he practice of showing suspects singly to persons for the purpose of identification, and
8
not as part of a lineup, has been widely condemned.” Stovall v. Denno, 388 U.S. 293,
302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), overruled on other grounds. Rasnick
declares the suggestiveness of the identification in the present case “far more egregious
than cases where [our] Supreme Court found that show-up identifications should have
been suppressed[.]” Specifically, he points to Wethington v. State, 560 N.E.2d 496 (Ind.
1990) and Hubbell v. State, 754 N.E.2d 884 (Ind. 2001).4
In Hubbell v. State, a witness in a homicide prosecution observed a man get into a
van with a woman who was similar in appearance to the homicide victim. Hubbell v.
State, 754 N.E.2d 884, 891 (Ind. 2001). The witness saw the man’s face from a distance
of about thirty feet and for approximately three seconds. The witness also noticed the
license plate number of the van. Six hours after her observation, the police presented the
appellant to her in a show-up procedure. The witness told officers that she thought the
appellant was the man she had seen, but she was uncertain. Our supreme court held that
this show-up identification was unduly suggestive, emphasizing the fact that the
identification occurred six hours after the witness’s observation. Id. at 892.
In Wethington v. State, two armed men broke into the house occupied by the three
victims, bound the victims, and stole cash and marijuana. 560 N.E.2d 496, 501-02 (Ind.
1990). The police arrived shortly after the intruders had fled. While some of the officers
4
In Wethington, our supreme court held that the erroneous admission of evidence of show-up
identifications of the defendant was harmless where in-court identifications had an independent basis
established by victims' ability to observe the defendant and their accurate descriptions of him, and where
items stolen from the victims were discovered during initial pat down of the defendant. Wethington, 560
N.E.2d at 503. In Hubbell, our supreme court held that the admission of a witness's unduly suggestive
pre-trial identification of a murder defendant was harmless error where the witness had given the
defendant's license plate number to police, the witness’s description roughly matched the defendant’s
actual appearance, police found incriminating fibers in the defendant’s van, and the defendant made a
confession. Hubbell, 754 N.E.2d at 892.
9
searched the house, other officers questioned the victims and compiled a collective
description of the intruders. Two hours after the crime, two of the victims were taken in
separate police cars to an intersection where the appellant and his accomplice had been
stopped by a police officer. One of the victims testified that, en route to the scene, an
officer told him that they had “picked up a couple of hitchhikers and wanted us to come
and see if they [were] the right ones that had been to our house.” Id. Another officer told
the other victim that “they had picked up two hitchhikers on State Road 39 and they
didn’t know for sure if they [were] the men that [were] at our house, they just wanted us
to go look at them to make sure.” Id.
In Wethington, there were three police cars and at least seven law enforcement
officers present at the intersection at which the identifications occurred. A gun and knife
seized from the appellant were displayed on the hood of one of the police cars. Both
victims identified the appellant immediately as one of the intruders. An hour later, three
hours after the crime, all three victims were taken to a fire station where numerous law
enforcement officers were present and the weapons were again displayed prominently.
The victims again identified the appellant as one of the intruders. The Indiana Supreme
Court held that these show-up identifications were “egregious” and “deserving of the
strongest judicial condemnation.” Id. at 502.
The present case is distinguishable from both Hubbell and Wethington, most
importantly because the identification occurred within thirty minutes of the crime.
Moreover, the stolen goods were not removed from the car until after the victims had
identified Rasnick. Although there is some conflict in the testimony, en route to the
10
scene, the police did not make any statement that the people detained were definitely
those the victims had seen in the dormitory and did not state that they had found the
victims’ property.5 When the victims arrived at the scene of the stopped vehicle, both
quickly and unequivocally identified Rasnick as the man they had seen, despite the
presence of another male at the scene.
Therefore, in light of the totality of the circumstances surrounding this
identification, we conclude that the show-up identification procedure was not unduly
suggestive, and the trial court did not abuse its discretion in admitting the identification
and the evidence seized pursuant to the identification.
2) In-Court Identification
Relying on his arguments concerning the show-up identification, Rasnick also
argues that “[t]he impermissible suggestibility and unreliability of the show-up
identification tainted the in-court identification of Rasnick, due to the fact that he had
already been seen at the scene of his arrest and improperly identified by Lathrop and
Haynes.” Appellant’s Br. at 12.
Even where a show-up identification is deemed unduly suggestive, a subsequent,
in-court identification may still be admissible if the State proves that an independent
basis for the in-court identification exists. See Gordon v. State, 981 N.E.2d 1215, 1219
(Ind. Ct. App. 2013). In determining whether an independent basis for the in-court
identification exists, the inquiry is whether, under the totality of the circumstances
5
The record indicates that Lathrop testified in a deposition that the police said, “I think we have the
people that had your stuff.” Tr. p. 47. At trial, Lathrop did not recall making that statement. Id.11
surrounding the witness’s initial observation of the perpetrator at the scene of the crime,
the witness could (1) resist any suggestiveness inherent in the improper show-up staged
by the police and (2) make an accurate in-court identification based on that earlier
observation. See Hale v. State, 976 N.E.2d 119, 124 (Ind. Ct. App. 2012).
Here, both Lathrop and Haynes were able to observe Rasnick closely at the
dormitory. The victims discovered the burglary immediately after encountering Rasnick.
Both victims noticed the tattoo on the back of Rasnick’s leg. The victims immediately
provided to police a detailed description of Rasnick. Therefore, there was an independent
basis for the victims’ in-court identification of Rasnick. See Heiman v. State, 511 N.E.2d
458, 460 (Ind. 1987) (finding sufficient independent basis to support admission of in-
court identification where both victims “had the opportunity to view appellant at close
range under good lighting conditions, both gave an accurate description and both
independently and unequivocally identified appellant from the original photo array on the
day of the crime”).
Under these facts, even if we were to conclude that the trial court abused its
discretion by admitting evidence of the show-up identification, the trial court’s admission
of the victims’ subsequent in-court identifications of Rasnick was proper.
B. GPS Evidence
Rasnick next asserts that the trial court abused its discretion by admitting GPS
evidence pointing to Rasnick’s movements on the day of the burglary. Specifically,
Rasnick argues that the “prejudicial value of the GPS evidence far outweighed any
probative value” because the “mere fact that he was on GPS” likely “created speculation
12
by the jury as to why he was being monitored.” Appellant’s Br. at 14. He contends that
the GPS evidence contained “minimal probative value” because “[t]he fact that Rasnick,
according to GPS, was at Hanover College in and of itself does not prove he participated
in any crime.” Id.Indiana Evidence Rule 403 provides that relevant evidence “may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice[.]”
However, all evidence is “inherently prejudicial” and, therefore, the Rule 403 analysis
“boils down to a balance of the probative value of the proffered evidence against the
likely unfair prejudicial impact of that evidence.” Duvall v. State, 978 N.E.2d 417, 428
(Ind. Ct. App. 2012) (citing Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002)). This
balancing is “a discretionary task best performed by the trial court.” Bostick v. State, 773
N.E.2d 266, 271 (Ind. 2002).
Here, the GPS data was probative because it provided objective evidence as to
Rasnick’s locations and movements during the precise period of time in which the crime
occurred. The data placed Rasnick at both the scene of the burglary and at the scene of
the arrest. Furthermore, any improper prejudicial effect was limited very effectively at
trial by the court. Before presentation of the evidence, the parties stipulated that the jury
would neither be advised that Rasnick was on GPS monitoring because he was a parolee,
nor that he was being monitored by Scott County Community Corrections at the time of
the burglary. When questioning the witness who testified as to the GPS information, the
13
State was careful not to elicit any testimony as to the witness’s place of employment6, the
fact that Rasnick was on parole, or Rasnick’s prior convictions. The jury was not
informed that the method of monitoring was a tracking bracelet. The trial court offered to
give a limiting instruction to the jury regarding the GPS evidence, but Rasnick’s counsel
declined.
Given the care taken by the trial court to minimize speculation by the jury as to the
purpose of the GPS monitoring, we conclude that the probative value of the GPS data
substantially outweighs any potential prejudicial effect. Therefore, the trial court did not
abuse its discretion in admitting the evidence.
C. Harmless Error
Even if we concluded that the trial court erred in admitting the identity
confirmation and stolen items obtained from the show-up identification procedure and the
GPS tracking evidence, these errors would nonetheless be harmless. An error is harmless
if there is “substantial independent evidence of guilt satisfying the reviewing court there
is no substantial likelihood the challenged evidence contributed to the conviction.”
Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011). “Generally, errors in the admission
of evidence are to be disregarded unless they affect the substantial rights of a party.” Id.In Wethington, one of the cases upon which Rasnick relies, our supreme court
held that even though the show-up identification of the appellant was unduly suggestive,
“it is clear as well that the error in admitting the evidence of the pre-trial confrontations
was harmless beyond a reasonable doubt.” Wethington, 560 N.E.2d at 503. There, the
6
The witness, Amanda Hurt, was a Community Corrections Officer with Scott County.
14
victims observed the appellant in a well-lit room, the appellant was unmasked and came
within inches of the victims’ faces when he bound their hands, the victims’ descriptions
of the appellant corresponded roughly with the appellant’s actual appearance, and the
victims later testified that when they saw the appellant at the scene of the identification,
they knew immediately that he was one of the intruders.
Likewise, in Hubbell, our supreme court found that the witness’s identification of
the appellant’s van by license plate number and the description of the appellant the
witness provided prior to the show-up identification, together with the fiber and grass
evidence found in the appellant’s van and the appellant’s confession, rendered any error
in the admission of the witness’s identification harmless. Hubbell, 754 N.E.2d at 892.
In the present case, there was substantial independent evidence of guilt supporting
Rasnick’s conviction such that we are satisfied that any error was harmless. Lathrop and
Haynes closely observed Rasnick in a well-lit dormitory lobby. They both immediately
and unequivocally identified him at the location where the car was stopped. Their
descriptions of Rasnick roughly matched with his actual appearance.7 Jessica Stark, one
of the four occupants of the car on the night of the crime and a longtime friend of
Rasnick’s, testified that Rasnick drove the car to the dormitory, entered the building, and
later exited carrying a blue backpack. The stolen items were recovered from the car.
GPS data placed Rasnick at the dorm and at the location where the car was stopped. In
7
Both victims testified that, at the scene of the crime, Rasnick was wearing a light-colored hooded
sweatshirt and shorts. Lathrop testified that, when she saw Rasnick and Campbell, Rasnick was carrying
the black trash bag. Haynes testified that, when she saw Rasnick and Campbell, Campbell was carrying
the trash bag. Lathrop testified that Rasnick was not wearing the hooded sweatshirt at the scene of the
identification. Haynes could not remember whether or not Rasnick was wearing the hooded sweatshirt.
Both victims testified that they did not see the black trash bag at the scene of the identification.
15
light of this overwhelming evidence of Rasnick’s guilt, we conclude that any error in
admitting the show-up identification and GPS evidence was harmless.
II. Sufficiency of Evidence
Rasnick next claims that the State presented insufficient evidence to support his
conviction for burglary. Upon a challenge to the sufficiency of evidence, we neither
reweigh the evidence nor judge the credibility of the witnesses. Instead, we respect the
exclusive province of the trier of fact to weigh any conflicting evidence. McHenry v.
State, 820 N.E.2d 124, 126 (Ind. 2005). We consider only the probative evidence and
reasonable inferences supporting the verdict, and we will affirm if the probative evidence
and reasonable inferences drawn from the evidence could have allowed a reasonable trier
of fact to find the defendant guilty beyond a reasonable doubt. Id.To sustain a conviction for Class B felony burglary, the State was required to
prove beyond a reasonable doubt that Rasnick broke and entered the victims’ dwelling
with the intent to commit a felony therein.8 Ind. Code § 35-43-2-1. Rasnick argues that
the State failed to prove that he was the person the victims saw inside the dormitory. He
claims that the evidence presented did not exclude Stidham, the other male passenger in
the car, as the individual who burglarized the victims’ dorm room. Rasnick emphasizes
that Stidham also has tattoos and that Tamara Campbell’s testimony indicates that it was
Stidham who threw one of the stolen cameras out of the window.
8
Ind. Code § 35-43-2-1 provides, “[a] person who breaks and enters the building or structure of another
person, with intent to commit a felony in it, commits burglary, a Class C felony. However, the offense is
a Class B felony if it is committed while armed with a deadly weapon or the building or structure is a
dwelling[.]”
16
Rasnick’s claims in this regard are really a request that we reweigh the evidence,
which we may not do. See McHenry v. State, 820 N.E.2d 124 (Ind. 2005); Stewart v.
State, 866 N.E.2d 858 (Ind. Ct. App. 2007); Calhoon v. State, 842 N.E.2d 432 (Ind. Ct.
App. 2006). At trial, Lathrop testified that she observed Rasnick and Campbell walking
through the dormitory basement from the direction of her room. She stated that she saw
both of their faces, made eye contact with them, and then watched them walk up the stairs
out of the basement. She testified that she viewed Rasnick’s tattoo at eye level and noted
its distinctive shape, size, color, and location.
Haynes testified that she saw Rasnick and Campbell when they reached the
dormitory’s first floor from the basement. She said, “[t]hey looked really suspicious, so I
was keeping my eye on them.” Tr. p. 194. She testified that they passed her in the
“pretty thin hallway” closely enough that they were within an arm’s reach of her. Tr. p.
195. Like Lathrop, Haynes noticed Rasnick’s tattoo.
Less than half an hour after the burglary, police stopped Rasnick driving a car
matching the description provided by the victims. When brought to the scene, both
victims unequivocally identified Rasnick as the person they had seen in the dormitory.
The police searched the vehicle and discovered Lathrop’s backpack, Haynes’s laptop, and
one of the stolen cameras on the floorboard of the front passenger seat. Another of the
cameras was found a short distance away. GPS monitoring records show that Rasnick
was on campus and even indicate that he was inside the dormitory when the crime
17
occurred.9 Both victims identified Rasnick in court and Lathrop identified Rasnick’s
tattoo in court. Stark and Campbell testified that it was Rasnick, not Stidham, who
entered the dormitory and later exited carrying the blue backpack containing the stolen
items. Stark also testified that, while Stidham does have tattoos, she did not believe that
he has any tattoos on either of his legs. This evidence is sufficient to support Rasnick’s
burglary conviction.
III. Inappropriate Sentence
Finally, Rasnick argues that his aggregate thirty-six year sentence is inappropriate
in light of the nature of the offense and the character of the offender. This court may
revise a sentence otherwise authorized by statute if, “after due consideration of the trial
court’s decision, the Court finds that the sentence is inappropriate in light of the nature of
the offense and the character of the offender.” Appellate Rule 7(B).
In our review of sentences, “we must and should exercise deference to a trial
court’s sentencing decision, both because Rule 7(B) requires us to give ‘due
consideration’ to that decision and because we understand and recognize the unique
perspective a trial court brings to its sentencing decisions.” Trainor v. State, 950 N.E.2d
352, 355 (Ind. Ct. App. 2011), trans. denied. Our principal role when reviewing and
revising sentences “should be to attempt to leaven the outliers, and identify some guiding
principles for trial courts and those charged with improvement of the sentencing statutes,
[] not to achieve a perceived ‘correct’ result in each case.” Cardwell, 895 N.E.2d 1219,
9
State’s Exhibit 21 featured a red dot indicating Rasnick’s precise location on the GPS diagram “to the
right of Wiley Hall and … a dot to the left of Wiley Hall and a line straight up.” Tr. pp. 303-04.
18
1225 (Ind. 2008). It is the burden of the appellant to persuade us that the sentence
imposed by the trial court is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006).
The sentencing range for Class B felony burglary is six to twenty years, with the
advisory sentence being ten years. Ind. Code § 35-50-2-5. The sentencing range for a
habitual offender enhancement is six to twenty years. Ind. Code § 35-50-2-8. Here, the
trial court sentenced Rasnick to thirty-six years, or four years less than the maximum
sentence he could have received for the underlying crime and his habitual status.
On October 24, 2012, following a sentencing hearing, the trial court issued a
sentencing order, which found five aggravating factors, including Rasnick’s prior
criminal history, his failure to appear at trial, his parole violation, the unlikelihood that
Rasnick would respond to a short prison term, and the fact that Rasnick violated the law
while out on bond in the present case. The trial court found one mitigating factor: the
fact that Rasnick was helping to care for his mother, who was suffering from cancer.
Rasnick argues that the trial court “placed too much emphasis” on several of the
aggravating factors. Appellant’s Br. at 17. He seeks to downplay the factors, claiming
that his failure to appear on the morning of trial was caused by problems with his
transportation and that, eventually, he “willingly went with Deputy Gibson who was
looking for him.” Appellant’s Br. at 18. He further notes that “[a]ny parole [he] had was
up by the time [he] requested a bond reduction in January 2012” and that he received no
punishment for his failure to appear or violation of parole. Id. Finally, he asserts that he
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entered guilty pleas to driving while suspended and the habitual offender count and
“received little consideration for his concessions on these parts of the case.” Id.Rasnick also claims that the thirty-six year sentence was inappropriate given the
nature of the offense. He states:
This was an unplanned entry into an unlocked dormitory building and room
where a few electronic items were quickly taken. While burglary is always
a serious offense, a close to maximum sentence on that charge should be
reserved for situations involving pre-planning, forced entry, significant
property loss and significant property damage. None of that was present
here.
Appellant’s Br. at 18.
Despite Rasnick’s attempts to minimize the nature of his offenses, the facts in this
case, and Rasnick’s criminal history, strongly support the trial court’s sentencing
judgment. Rasnick entered into a Hanover College dormitory room without the
occupants’ consent and stole expensive electronics, later destroying one of the cameras
he had stolen. He has been convicted of five other felonies, one of which was a burglary
and two of which were thefts, as well as of three misdemeanors. He has been arrested
eighteen times since 2002. This court has often noted that the significance of a
defendant’s criminal history varies based on the gravity, nature, and number of prior
offenses as they relate to the current offense. See Bryant v. State, 841 N.E.2d 1154, 1157
(Ind. 2006) (“a former conviction for burglary might make it appropriate to impose the
maximum sentence for a subsequent theft”); Wooley v. State, 716 N.E.2d 919, 929 n. 4
(Ind. 1999) (noting that a prior conviction for OWI would be a significant aggravator in a
subsequent alcohol-related offense). Rasnick’s prior convictions involving burglary and
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theft and the fact that Rasnick committed this offense while on parole do not reflect well
on his character.
Therefore, giving due consideration to the trial court’s sentencing discretion, and
considering the nature of the offense and the character of the offender, we conclude that
the sentence imposed by the trial court is not inappropriate.
Conclusion
The trial court did not abuse its discretion by admitting the show-up identification
of Rasnick and GPS evidence of his whereabouts at the time of the crime and arrest. The
evidence provided by the State was sufficient to support Rasnick’s conviction for
burglary, and any error in the admission of that evidence was harmless error. Rasnick’s
sentence was not inappropriate in light of the nature of the offense and the character of
the offender.
Affirmed.
NAJAM, J., and KIRSCH, J., concur.
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