Jesse L. Payne v. State of Indiana

FILED
May 15 2019, 9:02 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stacy R. Uliana Curtis T. Hill, Jr.
Bargersville, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jesse L. Payne, May 15, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1359
v. Appeal from the Parke Circuit
Court
State of Indiana, The Honorable Sam A. Swaim,
Appellee-Plaintiff. Judge
Trial Court Cause No.
61C01-0505-FB-79
Najam, Judge.
Statement of the Case
[1] In Barcroft v. State, 111 N.E.3d 997, 1002-06 (Ind. 2018), the Indiana Supreme
Court held that a fact-finder’s conclusion that a criminal defendant was sane at
the time of the commission of an offense could be supported by circumstantial
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demeanor evidence 1 alone, even if the unanimous opinion of three court-
appointed mental-health experts was that the defendant was suffering from a
delusional psychosis at the time of the offense and that the circumstantial
demeanor evidence was consistent with the defendant’s delusions. In this
appeal, Jesse L. Payne, a diagnosed schizophrenic who has suffered from
delusions and hallucinations for a substantial part of his life, asserts that the
State failed to present sufficient evidence to show that he was sane at the time
he burned down two covered bridges in Parke County and attempted to burn
down a third. In particular, he argues that the unanimous opinion of three
court-appointed mental-health experts was that he was not sane at the time of
the offenses and that the State’s circumstantial demeanor evidence was not
probative of his sanity because that evidence was consistent with Payne’s
delusions.
[2] Following Barcroft, we hold that the State’s circumstantial demeanor evidence
of Payne’s behavior before, during, and after his offenses is sufficient to support
the fact-finder’s conclusion that Payne was sane at the time of those offenses,
notwithstanding the unanimous opinion to the contrary by the three court-
appointed mental-health experts, and Payne’s arguments on appeal are merely
requests for this Court to reweigh the evidence, which we cannot do. We also
reject Payne’s other arguments in this appeal. Accordingly, we affirm his
1
Our Supreme Court defines “demeanor evidence” in such cases as “circumstantial evidence of a
defendant’s actions before, during, and after the crime to infer his or her mental state.” Barcroft, 111 N.E.3d
at 1004.
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convictions for two counts of arson, one count of attempted arson, and for
being an habitual offender, and we also affirm Payne’s aggregate sentence of
ninety years in the Department of Correction.
Facts and Procedural History
[3] In 2002, the Jeffries Ford Covered Bridge in Parke County burned down. The
first Parke County firefighters to arrive at the scene got there less than five
minutes after the fire had been reported. When they arrived, however, the
“entire bridge was on fire” and “the south span was already collapsed” into the
creek below. Tr. Vol. 4 at 10. Subsequent investigation ruled out natural
causes for the initiation of the fire and determined that “an ignitable liquid” had
likely been used to burn down the bridge. Id. at 25.
[4] In April of 2005, Kristopher Bunting stayed at the Lighthouse Mission in Terre
Haute for a time. During that time, Payne, who was out on parole, also stayed
at the Lighthouse Mission. Around April 24, comments Payne made led
Bunting to conclude that Payne “had a lot of hate,” especially toward “Parke
County.” Id. at 38. Bunting also observed Payne reading numerous law-related
books. Bunting was not comfortable being around Payne.
[5] At the Lighthouse Mission, Payne shared a room with David Nolan. In the
evening hours of April 27, Payne asked Nolan “where the Mill Dam was,” and
Nolan told Payne that it was a little ways “up north” in Bridgeton. Id. at 48.
Payne then “took off.” Id. The Bridgeton Covered Bridge was “very close” to
the mill dam. Id. at 11.
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[6] That same evening, Jason Doddridge was working at a Jiffy Mini Mart in
northwest Terre Haute. Shortly after Payne left the Lighthouse Mission,
Doddridge observed Payne enter the Mini Mart and purchase one two-liter
bottle of soda and prepay for one gallon of gasoline. Doddridge then observed
Payne exit the store and “dump[] the soda from the bottle.” Id. at 67.
Doddridge also noted that Payne “did not pump a full gallon” of gasoline. Id.
Not long thereafter, a little past midnight on April 28, Michael Long drove
through Bridgeton and observed a red Honda parked near a vending machine
just south of the Bridgeton Covered Bridge, which stood out to Long as “not
typical for the town of Bridgeton.” Id. at 71.
[7] At 12:42 a.m. on April 28, Parke County firefighters received a report that the
Bridgeton Covered Bridge was on fire. The first firefighters to arrive at the
bridge got there “less than a minute” after the fire had been reported, but the
bridge was already “fully engulfed.” Id. at 12. The Parke County Sheriff’s
Department then instructed “the full-time deputies . . . to check bridges”
elsewhere in Parke County. Id. at 84.
[8] Meanwhile, in the early morning hours of April 28, Samantha Hill, an
employee of the BP gas station in Groveland, observed Payne enter the store.
Payne purchased one two-liter bottle of soda and “some gas.” Id. at 80. Hill
then observed Payne “[p]our[] . . . out” the two-liter bottle of soda and the put
“gas in the two[-]liter” bottle. Id. at 81. Payne then left.
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[9] Around 1:40 a.m., Parke County Sheriff’s Deputy Mike Watts went to
Mansfield, which is between Bridgeton and Groveland, “to check the covered
bridge there.” Id. Deputy Watts observed Payne near the Mansfield Covered
Bridge and asked Payne for his identification. Payne immediately responded
that he “had a receipt to show where he had been.” Id. at 85. Payne also
volunteered that “he had a bottle of gasoline in his vehicle,” a nearby red
Honda. Id. at 86. Deputy Watts observed that Payne was not “nervous at all”
and did not present himself in a manner that suggested to Deputy Watts that
Payne may have suffered from mental illness. Id. at 94.
[10] Parke County Sheriff’s Deputy Eddie McHargue joined Deputy Watts shortly
after Deputy Watts had arrived in Mansfield. Deputy McHargue “didn’t see
any problems with [Payne] at all” that suggested Payne may have suffered from
mental illness. Id. at 117. Deputy McHargue read Payne his Miranda warnings
and then inquired about Payne’s recent routes of travel. Payne responded by
saying that he had left Terre Haute to camp at Raccoon Lake and needed some
gasoline for a campfire, and so Payne went to a nearby gas station, in
Groveland, to get that gasoline, which he put in a two-liter bottle. Payne
further responded that, after having obtained that gasoline, he decided not to
camp at Raccoon Lake after all, that he wanted a soda, and that he knew there
was a vending machine near the Mansfield Covered Bridge.
[11] When asked why he did not get his gasoline at a more convenient gas station in
Rockville given Payne’s described route of travel, Payne said that he must not
have seen any open gas stations in Rockville. When asked why he went out of
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his way to go to Mansfield for a soda, Payne simply said “he knew there was a
pop machine” there. Id. at 104. And when Deputy McHargue asked Payne
how Payne had navigated around some construction on Payne’s described
route of travel, which construction did not in fact exist, Payne gave an
explanation for navigating around the nonexistent construction.
[12] Deputy McHargue informed Payne that he did not think Payne was “being
truthful,” and he asked Payne if Payne would submit to a polygraph
examination. Id. at 108. Payne agreed and the officers immediately escorted
him to a nearby police station where Parke County Sheriff Charles L. Bollinger
administered the test. Following that examination, Sheriff Bollinger concluded
that Payne had exhibited a “strong likelihood of deception” and
“untruthfulness.” Id. at 154. Officers then detained Payne in the Parke County
Jail on a parole hold. Less than one week later, Payne agreed to take an
additional polygraph examination regarding the Jeffries Ford Covered Bridge
fire in 2002. However, before that examination commenced, Payne admitted to
having started that fire as well as having set fire to the Bridgeton Covered
Bridge.
[13] The State charged Payne with arson of the Jeffries Ford Covered Bridge, arson
of the Bridgeton Covered Bridge, attempted arson of the Mansfield Covered
Bridge, and for being an habitual offender. At his ensuing jury trial, Payne
asserted the defense of insanity. Dr. Ashan Mahmood, a court-appointed
psychiatrist, reviewed Payne’s lengthy medical history, the police reports of the
incidents in question, and the probable cause affidavit. He also interviewed
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Payne. Dr. Mahmood testified that “the records have been quite consistent in a
long[-]term mental illness with a similar pattern of delusions, hallucinations,
[and] non-adherence to medications[ and] requirement[s] of treatment.” Tr.
Vol. 5 at 74-75. Dr. Mahmood further testified that Payne’s mental illness and
symptoms have been “prevalent.” Id. at 75. He then testified that he had
diagnosed Payne with “schizophrenia” with “prominent delusions[ and]
hallucinations,” which illness had prohibited Payne from appreciating the
wrongfulness of his arsons and attempted arson. Id. at 92.
[14] Dr. Jeffrey Huttinger, a court-appointed psychologist, similarly reviewed
Payne’s long medical history and Payne’s “interact[ion] with the officers.” Id.
at 112. Dr. Huttinger also interviewed Payne. Like Dr. Mahmood, Dr.
Huttinger testified that he had diagnosed Payne with “schizophrenia, paranoid
type” at the time of the arsons and attempted arson, and Dr. Huttinger testified
that Payne’s illness prohibited Payne from appreciating the wrongfulness of his
conduct at those times. Id. at 99-102. Dr. Huttinger further testified that
Payne’s demeanor near the time of the 2005 crimes—including “leaving
suddenly from the Mission house . . . , purchasing gas[,] and . . . when he
interacted with the police officers,” and also including Payne having a “plan”
for the crimes and an apparent cover story ready—would not be inconsistent
with schizophrenia if those acts were “driven by some type of delusion.” Id. at
112-18. As Dr. Huttinger explained, “sometimes schizophrenics . . . can make
rational decisions even though they are . . . going through a . . . psychosis . . . .
[T]hey can look like they are doing okay” but under proper questions and
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examination a professional might discover that there are “more bizarre”
thoughts at issue. Id. at 118.
[15] Payne and the State also jointly stipulated to the admission of a report by Dr.
Rebecca Mueller, a court-appointed psychiatrist. Dr. Mueller reviewed the
charging information, the probable cause affidavit, and Payne’s medical history.
She also interviewed Payne. According to Dr. Mueller’s report, at the time of
the offenses Payne suffered from schizophrenia; he “had extended periods of
time where he experienced auditory and/or visual hallucinations[] and
delusions”; he was “insane at the time of the alleged offenses”; and he “was
unable to appreciate the wrongfulness of his conduct at the time of the alleged
offenses.” Ex. Vol. 7 at 125-26 (emphases removed).2 No other experts testified
or provided other evidence for or against Payne’s insanity defense.
[16] The jury rejected Payne’s insanity defense and instead found Payne guilty but
mentally ill3 for the arson of the Jeffries Ford Covered Bridge, the arson of the
Bridgeton Covered Bridge, and the attempted arson of the Mansfield Covered
2
Our pagination of the Exhibits Volume is based on the .pdf pagination, and the parties’ refusal to do the
same and instead merely cite a given exhibit’s labeled number has hindered our review.
3
As our Supreme Court has explained:
A verdict of guilty but mentally ill requires an evaluation and treatment of the defendant’s
mental illness during his or her incarceration “in such a manner as is psychiatrically
indicated,” but otherwise imposes the same criminal sentence as a standard conviction of
guilt. Ind. Code § 35-36-2-5(a), (c). By contrast, a verdict of nonresponsibility by reason
of insanity may result in the defendant’s civil commitment if the trial court finds by clear
and convincing evidence that the defendant is mentally ill and either dangerous or
gravely disabled. I.C. § 35-36-2-4.
Barcroft, 111 N.E.3d at 1001 n.2.
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Bridge. The jury also found Payne to be an habitual offender. The trial court
entered its judgment of conviction accordingly, and, following a separate
hearing, the court sentenced Payne to an aggregate term of ninety years in the
Department of Correction. This appeal ensued.
Discussion and Decision
Issue One: Insanity Defense
[17] On appeal, Payne first asserts that the State failed to present sufficient evidence
to rebut the evidence favorable to his defense of insanity. As our Supreme
Court made clear in Barcroft:
A factfinder’s determination that a defendant was not insane at
the time of the offense warrants substantial deference from an
appellate court. On review, we do not reweigh evidence, reassess
witness credibility, or disturb the factfinder’s reasonable
inferences. We will instead affirm the [defendant’s] conviction
unless the evidence is without conflict and leads only to the
conclusion that the defendant was insane when the crime was
committed.
111 N.E.3d at 1002 (citations and quotation marks omitted). Further:
To convict a criminal defendant, the State must prove each
element of the offense beyond a reasonable doubt. But a
defendant may avoid criminal responsibility by invoking the
insanity defense. This plea requires the defendant to prove by a
preponderance of the evidence (1) that [he] suffers from a
“mental disease or defect” and (2) that the “mental disease or
defect” rendered [him] unable to appreciate the wrongfulness of
[his] conduct at the time of the offense.
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Id. (citations and footnote omitted).
[18] In Barcroft, the defendant shot and killed her pastor. At her ensuing murder
trial, two court-appointed mental-health experts concluded that, at the time of
the offense, the defendant suffered from schizophrenia. A third court-appointed
mental-health expert concluded that, at the time of the offense, she suffered
from delusional disorder. But the three experts agreed that the defendant’s
mental illness caused her to experience delusions that prevented her from
appreciating the wrongfulness of her conduct. They also each testified that the
defendant’s demeanor evidence before, during, and after the shooting was
consistent with her delusional psychosis and supportive of their respective
diagnoses. Nonetheless, the trial court rejected the defendant’s insanity defense
and instead found her guilty but mentally ill.
[19] Our Supreme Court affirmed the trial court’s judgment and held that the State’s
“demeanor evidence [was] more than sufficient to support the [fact-finder’s]
rejection of [the defendant’s] insanity defense” notwithstanding the unanimous
opinion of the three court-appointed mental-health experts. Id. at 1006. The
court explained:
First, [the defendant] exhibited deliberate, premeditated conduct
in the weeks and days leading up to the crime: She asked
another member of the church when [the pastor] planned to
return from a mission trip. She purchased a handgun and waited
for a permit. She prepared goodbye letters to members of her
family. She packed several rounds of ammunition, a pair of
binoculars, and other personal items in her backpack. And she
planned to confront the pastor during the early morning hours,
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before the day’s activities had started and to avoid potential
witnesses. [The defendant’s] choice of clothing—black pants and
a black, hooded sweatshirt—likewise show a calculated attempt
to evade detection or to obscure her identity.
[The defendant’s] actions during and right after the shooting also
suggest a consciousness of guilt. As she spoke with [another
church member] outside the church, she kept her handgun—a .22
caliber pistol—concealed in her front pocket. Even more
revealing was her decision to spare [that church member’s] life.
Expert testimony suggested that this conduct reflected [the
defendant’s] delusional state, the inference being that a sane
person would have shot the eyewitness to avoid criminal
implication. But a factfinder could have reasonably come to the
opposite conclusion: that [the defendant’s] decision not to shoot
showed an understanding that killing is wrong.
Cloaked by the hood of her sweatshirt, [the defendant] then fled
from the crime scene and attempted to hide, taking great pains to
conceal herself under the foliage of an overgrown lot. She lay
motionless in her hiding spot even as police ordered her to
surrender, emerging only when an officer threatened to shoot.
Finally, when the detective asked whether [the defendant]
understood that she “ha[d] to be arrested” for her crime, she
replied that she had “actually planned on not getting caught.”
This comment implies a consciousness of guilt. . . .
Id. at 1005-06 (last alteration in original; citations, quotation marks, and
footnote omitted).
[20] In other words, the State’s demeanor evidence in Barcroft showed “deliberate,
premediated conduct . . . leading up to the crime”; a “calculated attempt to
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evade” after the crime; and “actions during and right after the [crime]” that
suggested “consciousness of guilt.” Id. at 1005. Although the unanimous
opinion of the mental-health experts in Barcroft was that the defendant was
“legally insane at the time of the offense and could not appreciate the
wrongfulness of her actions” due to a complex delusional psychosis, and
although the experts agreed that the defendant’s demeanor evidence was
consistent with her delusions, our Supreme Court held that it was within the
fact-finder’s prerogative to consider that demeanor evidence for itself and to
reject the mental-health experts’ unanimous opinion. Id. at 1002-06.
[21] Following Barcroft here, we are obliged to conclude that the State’s demeanor
evidence of Payne’s behavior before, during, and after the offenses is sufficient
to support the jury’s finding that Payne was sane at the time of those offenses.
That evidence suggests that Payne’s conduct surrounding the crimes was
calculated, deliberate, and premeditated. He concealed his involvement in the
Jeffries Ford Covered Bridge fire for about three years. The evening before the
Bridgeton Covered Bridge fire, he asked where the mill dam was; he purchased
one two-liter bottle of soda along with one gallon of gasoline, and then he
poured out the soda and filled the bottle with gasoline; after having burned
down the Bridgeton Covered Bridge, he drove out of his way to Groveland to
again obtain gasoline and a two-liter bottle along with a paper receipt that
would support an attempted alibi defense; in both Bridgeton and Mansfield he
parked near vending machines in case someone engaged him, again in apparent
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support of an attempted alibi; and he committed his acts late at night when the
opportunity for witnesses would be diminished.
[22] Payne’s actions during and right after the fires also suggest consciousness of
guilt. Again, he concealed his involvement in the Jeffries Ford Covered Bridge
fire for about three years. Further, in between the Bridgeton Covered Bridge
fire and the attempted arson of the Mansfield Covered Bridge, Payne drove to
the BP gas station in Groveland to obtain a time-stamped receipt as part of his
attempted cover story; when asked for his identification by Deputy Watts in
Mansfield, Payne immediately responded that he “had a receipt to show where
he had been,” Tr. Vol. 4 at 85; and when officers asked him about his route of
travel from Terre Haute to Mansfield by way of, supposedly, Rockville, Payne
lied to the officers about navigating through nonexistent construction.
[23] Payne’s arguments on appeal are, in essence, the same arguments our Supreme
Court rejected in Barcroft. Specifically, Payne asserts that the jury could not
reasonably infer sanity from the evidence because the expert witnesses
unanimously concluded that he was not sane at the time of the offenses; the lay
witnesses’ testimony—e.g., Bunting’s testimony and Nolan’s testimony—is not
inconsistent with the expert testimony; ample evidence supports the experts’
diagnoses of Payne; and the demeanor evidence was not inconsistent with the
unanimous opinion of the court-appointed mental-health experts that Payne
was suffering from a delusional psychosis at the time of the offenses. However,
we conclude, following Barcroft, that Payne’s arguments are merely requests for
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this Court to reweigh the evidence on appeal, which we cannot do. 111 N.E.3d
at 1002.
[24] In sum, in Barcroft our Supreme Court clarified that Indiana’s appellate courts
are to review a fact-finder’s rejection of a claim of insanity the same way we
review any other claim of insufficient evidence to support a fact-finder’s
determinations. We review only the evidence most favorable to the fact-finder’s
judgment, and we do not “reweigh evidence, reassess witness credibility, or
disturb the factfinder’s reasonable inferences.” Id. Applying that standard here,
we are obliged to conclude that the State presented sufficient evidence to show
that Payne was able to appreciate the wrongfulness of his conduct at the time of
the offenses and, thus, that he was legally sane at those times.
Issue Two: Admission of Statements
to Officers, Polygraph, and Confession
[25] Payne next asserts that the trial court abused its discretion when it admitted into
evidence Payne’s statements to the officers in Mansfield, a video-recording of
Payne’s polygraph examination with Sheriff Bollinger, and Payne’s confession
to Sheriff Bollinger less than one week after the polygraph examination.4 As
our Supreme Court has stated:
4
We agree with the State’s assessment that Payne does not provide a separate and independent analysis of
his rights under the Indiana Constitution, at least insofar as such an analysis relates to the only issue properly
preserved for appellate review, and thus any arguments under the Indiana Constitution are waived. Myers v.
State, 839 N.E.2d 1154, 1158 (Ind. 2005).
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Generally, a trial court’s ruling on the admission of evidence is
accorded “a great deal of deference” on appeal. Tynes v. State,
650 N.E.2d 685, 687 (Ind. 1995). “Because the trial court is best
able to weigh the evidence and assess witness credibility, we
review its rulings on admissibility for abuse of discretion” and
only reverse “if a ruling is ‘clearly against the logic and effect of
the facts and circumstances and the error affects a party’s
substantial rights.’” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.
2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)).
Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015).
[26] We initially note that Payne makes numerous arguments on appeal relating to
the purported inadmissibility of his statements, the polygraph, and his
confession. However, in the trial court, Payne objected to the admissibility of
that evidence only on the ground that he “did not make a knowing and
voluntary waiver of his right[s] . . . in light of [his] diminished capacity as a
result of his mental illness . . . .” Tr. Vol. 4 at 99-100, 138-40.5 A party may not
object to the admissibility of evidence in the trial court on one ground and then
assert on appeal that that evidence was inadmissible on different grounds. Hitch
v. State, 51 N.E.3d 216, 219 (Ind. 2016). Accordingly, we limit our review on
appeal to Payne’s argument that his mental illness, standing alone, renders his
5
Payne further asserted in the trial court that Indiana v. Edwards, 554 U.S. 164 (2008), should apply to the
admissibility of the evidence at issue, but Payne does not raise that question for our review on appeal. See
Ind. Appellate Rule 46(A)(8)(a). We also note that, in a prior interlocutory appeal, we affirmed the trial
court’s denial of Payne’s motion to suppress the evidence on other grounds. Payne v. State, 854 N.E.2d 1199,
1202-05 (Ind. Ct. App. 2006), trans. denied.
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statements, polygraph examination, and confession inadmissible. 6 And we
reject that argument.
[27] As we have explained:
The trial court’s decision regarding admissibility of a confession
or incriminating statement is controlled by determining from the
totality of the circumstances whether the statement was given
voluntarily[] rather than through coercion or other improper
influence so as to overcome the free will of the accused.
Standard indicators for voluntariness include whether the
confession was freely self-determined, the product of a rational
intellect and free will, without compulsion or inducement of any
sort, and whether the accused’s will was overborne. “The mere
fact a statement is made by the defendant while under the influence of
drugs, or that the defendant is mentally ill, does not render it
inadmissible per se.” Pruitt[ v. State], 834 N.E.2d [90,] 115 [(Ind.
2005)] (citing Brewer v. State, 646 N.E.2d 1382, 1385 (Ind. 1995)).
“Intoxication, drug use and mental illness are only factors to be
considered by the trier of fact in determining whether a statement was
voluntary.” Id. The State also bears the burden of proving
beyond a reasonable doubt that the defendant’s confession was
voluntarily given.
6
Arguments not preserved for our review on this issue include Payne’s argument that the stipulation he
signed prior to the administration of the polygraph examination did not sufficiently advise him of his rights
and was unlawfully ambiguous; that he was not properly Mirandized prior to his May confession; and that
his confession resulted from “flagrant” misconduct by Parke County law enforcement officers in “exploit[ing]
an obviously delusional man.” Appellant’s Br. at 34. Payne similarly has not preserved for our review his
assertions that his statements to officers were not lawfully given because of “coercive tactics” allegedly
utilized by Parke County law enforcement officers against Payne. Id. at 36. And Payne does not argue
fundamental error on appeal. See Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011).
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State v. Banks, 2 N.E.3d 71, 80-81 (Ind. Ct. App. 2014) (emphasis added; some
citations omitted), trans. denied.
[28] Thus, our case law is clear that one’s mental illness “does not render”
statements to officers “inadmissible per se.” Id. at 81. Payne’s argument to the
contrary on appeal is not consistent with Indiana precedent, and, as such, he
has not met his burden on appeal to show that the trial court abused its
discretion when it rejected that argument. Accordingly, we affirm the trial
court’s judgment on this issue.
Issue Three: Venue
[29] We next consider Payne’s argument on appeal that the trial court abused its
discretion when it declined Payne’s request to transfer venue out of Parke
County. In particular, Payne asserts that the trial court erred because the entire
population of Parke County was the victim of his acts. According to Payne, the
implied bias of every possible juror in Parke County was summarized in pretrial
statements made by the Parke County Prosecutor: Payne’s acts were a “direct
attack on Parke County’s Heritage.” Appellant’s App. Vol. II at 65. In other
words, Payne asserts that he was entitled to a transfer of venue because it was
impossible for him to receive a fair trial in Parke County.
[30] As our Supreme Court has explained:
in order to obtain a change of venue [the defendant] bears the
burden of showing that community prejudice exists which would
prevent his obtaining a fair trial in that community, and to
prevail on appeal from the denial of his motion he must
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demonstrate an abuse of the trial court’s discretion. . . . [T]o
establish such an abuse of discretion, [the defendant] must
demonstrate both prejudicial pretrial publicity and juror inability
to render an impartial verdict on the evidence.
Clemons v. State, 610 N.E.2d 236, 240 (Ind. 1993).
[31] Among other deficiencies in his argument on this issue on appeal, Payne has
not shown that any of the seated jurors were unable to set aside any
preconceived notions of guilt and decide the case on the evidence. See id.Payne cites no portion of the voir dire that reveals partiality on the part of any
jurors who heard his trial. See id. And we reject Payne’s speculation that all of
the potential jurors were necessarily impliedly biased against anyone accused of
these offenses. We therefore affirm the trial court’s denial of Payne’s motion to
transfer venue.
Issue Four: Episode of Criminal Conduct
[32] We next consider Payne’s argument that the trial court erred when it did not
find the arson of the Bridgeton Covered Bridge and the attempted arson of the
Mansfield Covered Bridge to be an episode of criminal conduct. “Separate
offenses are not part of a single ‘episode of criminal conduct’ when a full
account of each crime can be given without referring to the other offenses.”
Reeves v. State, 953 N.E.2d 665, 671 (Ind. Ct. App. 2011), trans. denied.
“[W]hether a series of crimes are related in some way is not the relevant test.”
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[33] Here, Payne’s assertions aside, the facts plainly demonstrate that Payne
prepared for and completed the act of arson of the Bridgeton Covered Bridge.
Thereafter, he drove to Groveland, obtained additional gasoline, and then
drove to Mansfield in an attempt to burn down the Mansfield Covered Bridge.
A full account of the Bridgeton Covered Bridge arson is readily given without
reference to the attempted arson of the Mansfield Covered Bridge and vice
versa. These were each independent crimes. The trial court did not error when
it declined to find Payne’s two crimes to be an episode of criminal conduct.
Issue Five: Inappropriateness of Sentence
[34] Finally, we address Payne’s argument that his aggregate term of ninety years in
the Department of Correction is inappropriate in light of the nature of the
offenses and his character. Indiana Appellate Rule 7(B) provides that “[t]he
Court may revise a sentence 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.” “The
principal role of appellate review should be to attempt to leaven the outliers,”
not to “achieve a perceived ‘correct’ result in each case. Defendant has the
burden to persuade us that the sentence imposed by the trial court is
inappropriate.” Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (citations and
omission removed).
[35] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
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2008). “The advisory sentence is the starting point the legislature has selected
as an appropriate sentence for the crime committed.” Sanders v. State, 71
N.E.3d 839, 844 (Ind. Ct. App. 2017), trans. denied. Whether we regard a
sentence as inappropriate at the end of the day turns on “our sense of the
culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Cardwell, 895
N.E.2d at 1224. Deference to the trial court “prevail[s] unless overcome by
compelling evidence portraying in a positive light the nature of the offense (such
as accompanied by restraint, regard, and lack of brutality) and the defendant’s
character (such as substantial virtuous traits or persistent examples of good
character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[36] The trial court entered judgment on each of Payne’s convictions for arson and
attempted arson as a Class B felony, which, at all relevant times, carried a
sentencing range of six to twenty years and an advisory sentence of ten years.
See Ind. Code § 35-50-2-5 (2005). Following the jury’s finding, the trial court
also entered judgment against Payne as an habitual offender, which carried an
additional mandatory term of ten to thirty years. See I.C. § 35-50-2-8 (2005).
Thus, Payne faced a maximum aggregate term of ninety years, which is the
sentence the court imposed.
[37] In imposing that sentence, the trial court stated as follows:
the Court finds the following aggravating circumstances: The
harm, injury[,] or loss associated with the offense[s] was greater
than the elements necessary to prove the commission of the
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offense[s], and the loss was significant in that the structures
targeted and destroyed had historical significance. The
defendant has a history of delinquent or criminal activity . . . .
The defendant was recently released from prison and on parole at
the time of the offense[s]. The defendant’s character indicates
that he has a compulsion to commit crimes and if released would
likely commit further crimes, particularly Arson. Court considers
the following mitigating circumstances: The defendant suffers
from mental illness, particularly paranoid schizophrenia.
However, the defendant has a history of non-compliance with
treatment, lack of a support system, and the Court finds that he
can receive rehabilitative, structured supervision and treatment in
the Indiana Department of Correction.
Appellant’s App. Vol. VI at 213.
[38] On appeal, Payne asserts that the nature of the offenses “does not justify a
maximum sentence” but instead simply shows “that a sick man burned two
bridges when no one was around or could get hurt, and intended to burn a
third.” Appellant’s Br. at 45. He further asserts that his character justifies a
downward revision of his sentence because “a person who is so mentally ill to
be found Guilty But Mentally Ill is not one of the worst of the worst offenders.”
Id. at 43.
[39] But we cannot say that Payne’s sentence is such an outlier that our disruption of
the trial court’s sentencing discretion is required. Although we agree with
Payne that his mental illness is well documented and significant, the
Department of Correction is not devoid of authority to address the needs of
mentally ill prisoners. See Ind. Code §§ 11-10-4-1 to -9 (2018). Moreover, the
nature of the offenses here was significant: Payne destroyed two historically
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significant bridges and would have destroyed a third but for the intervention of
local law enforcement officers. We also reject Payne’s assumption that the
arsons here did not put any people at risk when each arson required an
emergency response by local firefighters.
[40] Neither does Payne’s character justify this Court’s revision of his sentence.
Payne has a lengthy criminal history, including five juvenile delinquency
adjudications and three adult felony convictions, one of which was for arson.
He has a prior probation revocation, and he was on parole at the time he
committed the Bridgeton Covered Bridge arson and attempted to commit the
arson of the Mansfield Covered Bridge. Accordingly, we cannot say that
Payne’s aggregate sentence of ninety years in the Department of Correction is
inappropriate in light of the nature of the offenses and his character.
Conclusion
[41] In sum, we affirm Payne’s convictions and his sentence.
[42] Affirmed.
Baker, J., and Robb, J., concur.
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