ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:
ERIC K. KOSELKE KAREN M. FREEMAN-WILSON
STEVEN G. POORE Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
SUPREME COURT OF INDIANA
MICHAEL LACEY, )
) Supreme Court Cause Number
v. ) 49S00-0002-CR-111
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM NO. 2
The Honorable Amy Barnes, Judge
Cause No. 49G05-9705-CF-070177
ON DIRECT APPEAL
September 28, 2001
In this direct appeal, Michael Lacey contends the evidence is not sufficient to
sustain his conviction for felony murder and that his sixty-year sentence is manifestly
unreasonable. We disagree with both contentions and therefore affirm.
In the early morning hours of May 15, 1997, Wajibu Wynn along with
his sister and two others were asleep in Wynns apartment when two armed
intruders wearing dark clothing and Halloween masks broke through the front door.
R. at 269. Wynns sister was asleep on a living room couch.
One of the intruders sprayed her with mace, while the other intruder
pointed a machine gun looking weapon to her head and began dragging her
to the back of the apartment. R. at 204, 271-72, 282-83.
Awakened by the noise, Wynn rushed to his bedroom door and saw a
man wearing a Frankenstein mask dragging his sister at gunpoint down the hallway.
Wynn retrieved his handgun, fired at the man, and fatally wounded him.
R. at 203, 281-82. That intruder was later identified as Guy Simpson.
The other intruder fled the apartment.
A K-9 officer was called to the scene. Shortly after arrival, the
officer and his dog located Lacey in a wooded area approximately 200 feet
from Wynns apartment. R. at 314, 431. He was lying on
the ground among a clump of bushes. R. at 314. Five
feet away, the officer found a can of mace and a Halloween mask.
R. at 389, 424-25.
Lacey was charged with felony murder, burglary, and confinement. The jury convicted
him as charged. At sentencing, the trial court vacated the burglary and
confinement convictions and sentenced Lacey to an enhanced term of sixty years for
the felony murder conviction. This direct appeal followed.
Lacey first contends the evidence is insufficient to support his conviction. Pointing
out that no one ever identified him as one of the assailants and
no fingerprints linked him to the crime, Lacey argues the State failed to
prove beyond a reasonable doubt that he was the second intruder who broke
into Wynns apartment.
See footnote The standard for reviewing sufficiency of the evidence claims
is well settled. We do not reweigh the evidence or assess the
credibility of witnesses.
Houston v. State, 730 N.E.2d 1247, 1248 (Ind. 2000).
Rather, we look to the evidence and reasonable inferences drawn therefrom that
support the verdict and will affirm the conviction if there is probative evidence
from which a reasonable jury could have found the defendant guilty beyond a
reasonable doubt. Id. A verdict may be sustained based upon circumstantial
evidence alone if that circumstantial evidence supports a reasonable inference of guilt.
Id. In this case, Laceys argument is essentially an invitation for this
Court to reweigh the evidence. We decline. Evidence that he was
found near Wynns apartment in the early morning hours, apparently attempting to conceal
himself among the vegetation, and in close proximity to items used by the
intruders, was sufficient for the jury to conclude that Lacey was the second
intruder who broke into Wynns apartment.
The trial court sentenced Lacey to an enhanced term of sixty years.
In so doing the court listed as aggravating factors Laceys criminal history and
that Lacey was on bond in two other cases when he committed the
crime for which he was being sentenced. The trial court also found
as aggravating factors Laceys need of correctional or rehabilitative treatment that could best
be provided by his commitment to a penal facility and that a suspended
sentence would depreciate the seriousness of the crime. In this appeal, Lacey
does not challenge the trial courts findings. The trial court noted Laceys
young age as a mitigating factor, cf. Brown v. State, 720 N.E.2d 1157,
1159 (Ind. 1999) (noting a defendants youth is a significant mitigating factor in
some circumstances); however, the court concluded the aggravating factors outweighed the sole mitigating
factor. Lacey does not contend there are additional mitigating factors that the
trial court ignored. Rather, pointing out that he was not the triggerman
and again focusing on his age, Lacey argues his sixty-year sentence is manifestly
unreasonable and asks that we reduce it to the presumptive term of fifty-five
This Court does have the constitutional authority to review and revise sentences.
See Ind. Const. art. 7, § 4. However, we will not exercise
that authority unless the sentence imposed is manifestly unreasonable in light of the
nature of the offense and the character of the offender. Ind. Appellate
Rule 7(B) (formerly App.R. 17(B)); Evans v. State, 725 N.E.2d 850, 851 (Ind.
2000). The nature of the offense in this case is that Lacey
engaged in an armed home invasion that involved taking a woman hostage in
the house and dragging her to the back of the house with a
gun pointed at her head. Laceys cohort was shot and killed by
the owner of the house as a result. As for Laceys character,
even though only nineteen at the time the instant crime was committed, Lacey
has a criminal history that consists of true findings as a juvenile of:
aggravated battery that would have been a Class B felony if committed
by an adult (shooting a neighbor over a dispute about a car); two
separate instances of carrying a handgun without a license; and resisting law enforcement.
Also, when he committed the instant offense, Lacey was on bond in
two other cases. We decline to modify Laceys sentence because he has
not convinced us that it is manifestly unreasonable.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
We observe that Lacey does not argue that the felony murder
statute is inapplicable to the facts presented in this appeal. Our felony
murder statute provides: A person who . . . kills another human
being while committing or attempting to commit arson, burglary, child molesting, consumer product
tampering, criminal deviate conduct, kidnapping, rape, robbery, or carjacking . . . commits
murder, a felony. Ind. Code § 35-42-1-1(2). In
Palmer v. State,
704 N.E.2d 124 (Ind. 1999), this Court, in a three to two decision,
held that the statutory language kills another human being while committing does not
restrict the felony murder statute solely to instances in which the felon is
the killer. Id. at 126. Rather, the felony murder statute may
also apply equally when, in committing any of the designated felonies, the felon,
although not the killer, contributes to the death of any person. Id.
Where an accused reasonably should have foreseen that his felonious conduct would
result in the mediate or immediate cause of the victims death, the accused
is held accountable. Id. In this appeal, Lacey has not argued
that his participation in the burglary was not the mediate or immediate cause
of Simpsons death.