ATTORNEY FOR APPELLANT
Kathleen M. Sweeney
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Barbara Gasper Hines
Deputy Attorney General
SUPREME COURT OF INDIANA
JASON RASCOE, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-9911-CR-667
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane Magnus-Stinson, Judge
Cause No. 49G06-9802-CF-017642
ON DIRECT APPEAL
October 5, 2000
Jason Rascoe was convicted of murder and sentenced to sixty-five years imprisonment.
In this direct appeal he contends that the trial court abused its discretion
by imposing the maximum sentence and that his sixty-five year sentence is manifestly
unreasonable. We affirm the judgment of the trial court.
Factual and Procedural Background
On January 30, 1998, Rascoe was home alone with his cousin, Brian Parker.
Parker was asleep on a couch when Rascoe placed a gun to
his head and fired seven shots. Rascoe then called his sister and
mother and warned them to stay away from the house for a few
days. Sometime later Rascoe told his brother that he had killed Parker.
Rascoe confessed to the police on February 2. He claimed to hear
voices, black out, and experience fits of anger and aggression after listening to
gangsta rap music, and attributed the shooting to such an event. However,
court-appointed psychiatrists found that Rascoe was of sound mind at the time of
the murder and did not suffer from severe mental disease or defect.
At a bench trial Rascoe was found guilty of murder and sentenced to
sixty-five years imprisonment.
I. Sentencing Error
Rascoe contends that (1) the trial court considered improper aggravating circumstances; (2) the
trial court failed to consider mitigating circumstances clearly supported by the record; and
(3) the trial court improperly weighed the aggravating and mitigating circumstances. In
general, sentencing determinations are within the trial court's discretion and are governed by
Indiana Code Section 35-38-1-7.1. Harris v. State, 659 N.E.2d 522, 527 (Ind.
1995). If a trial court relies on aggravating or mitigating circumstances to
enhance or reduce the presumptive sentence, it must (1) identify all significant mitigating
and aggravating circumstances; (2) state the specific reason why each circumstance is
determined to be mitigating or aggravating; and (3) articulate the court's evaluation and
balancing of the circumstances. Id. at 527-28.
First, Rascoe challenges the trial courts finding of aggravating circumstances. Rascoe does
not dispute that, at sentencing, he had a significant criminal history consisting of
four prior convictions and another pending murder charge. This is a statutory
aggravating circumstance. Indiana Code § 35-38-1-7.1(b)(2) (1998). Although the trial court
did not mention his significant criminal history, it did rely on five aggravating
circumstances to enhance Rascoes sentence. He challenges three as improper, which he
identifies as: (1) the manner in which the crime was committed, (2)
the relationship between Rascoe and Parker, and (3) the fact that the killing
was unprovoked. Although the sentencing order is hardly a model of clarity,
it appears that at the sentencing hearing the trial court found two proper
aggravating circumstances: (1) the nature and circumstances of the crime, including that
there were a number of wounds, the victim was a family member, and
the murder was unprovoked and (2) the risk to the community.
The nature and circumstances of a crime are a proper aggravating circumstance.
Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999). In this case,
clearly the nature of the crime, including the number of wounds, Mitchem v.
State, 685 N.E.2d 671, 680 (Ind. 1997) (the number of times victims were
shot was a proper consideration under the nature and circumstances of the crime),
and the circumstances surrounding the crime, specifically, the shooting of an unarmed man
seven times while he slept, were proper to consider. Even if the
trial court relied on an improper factor under this aggravating circumstance, the sentence
may be upheld so long as [t]he remaining components of that aggravator were
proper. Angleton v. State, 714 N.E.2d 156, 160 (Ind. 1999). Also,
the risk to the community, which we take to refer to the risk
that the person will commit another crime, is statutorily required to be considered
in sentencing. Ind. Code § 35-38-1-7.1(a)(1) (1998). In short, the trial
court did not abuse its discretion when it relied on the nature and
the circumstances of the crime and the risk to the community as aggravating
Rascoe also contends that the trial court failed to find mitigating circumstances that
were supported by the record. The finding of mitigating circumstances is within
the discretion of the trial court. Legue v. State, 688 N.E.2d 408,
411 (Ind. 1997). An allegation that the trial court failed to identify
or find a mitigating circumstance requires the defendant to establish that the mitigating
evidence is both significant and clearly supported by the record. Carter v.
State, 711 N.E.2d 835, 838 (Ind. 1999). The trial court is not
obligated to accept the defendant's contentions as to what constitutes a mitigating circumstance.
Legue, 688 N.E.2d at 411.
Rascoe contends that the trial court failed to consider his remorse. Rascoe
did voluntarily go the police station, confess, and then ask for the death
penalty, all of which tend to show his remorse. However, he also
made plans to conceal his crime by keeping his family away from the
house for several days, and stated that he was going to take [Parkers
body] out of the house and get rid of it. Given
Rascoes attempt to conceal the crime, we cannot say that the trial court
abused its discretion in failing to find Rascoes remorse as a significant mitigating
circumstance. See, e.g., Bonds v. State, 721 N.E.2d 1238, 1243 (Ind. 1999)
(equivocal statement of remorse was not a significant mitigating circumstance); Wooley v. State,
716 N.E.2d 919, 931 (Ind. 1999) (rejecting defendant's apology to the victim's family
as significant mitigating circumstance); cf. Wilkins v. State, 500 N.E.2d 747, 749
(Ind. 1986) (finding no error in trial court's failure to address mitigating circumstances
that were highly disputable in nature, weight, or significance).
As a final sentencing error, Rascoe argues that the trial court failed to
properly weigh the aggravating and mitigating circumstances. He concedes that the trial
court has discretion in determining the weight to assign to these factors, but
nonetheless contends that the trial court improperly considered certain aggravating circumstances, gave too
much weight to the aggravating circumstances, and did not assign enough weight to
the mitigating circumstances.
Although the aggravating circumstances here may not be the weightiest ones, for the
reasons discussed above they were proper aggravators, and the trial court was allowed
to consider them and give them considerable weight. The trial court also
did not abuse its discretion by failing to find Rascoes remorse as a
mitigating circumstance. Therefore, what remains is Rascoes claim of mental problems as
the sole mitigating circumstance to be weighed against the nature and circumstances of
the crime and the risk to the community as aggravating circumstances. The
trial court mentioned Rascoes emotional problems several times in the sentencing statement.
We cannot conclude that the trial court improperly weighed these factors when it
concluded that the concern about the aggravators does outweigh the mitigators of his
emotional problems, and . . . an aggravated sentence is warranted in this
II. Manifestly Unreasonable
Rascoe also contends that his sentence is manifestly unreasonable.
See footnote Although this Court
has the constitutional authority to review and revise sentences, Ind. Const. art. VII,
§ 4, it will not do so unless the sentence imposed is manifestly
unreasonable in light of the nature of the offense and the character of
Carter v. State, 711 N.E.2d 835, 841 (Ind. 1999); Ind.
Appellate Rule 17(B). This review is deferential to the trial court:
[T]he issue is not whether in our judgment the sentence is unreasonable,
but whether it is clearly, plainly, and obviously so. Bunch v. State,
697 N.E.2d 1255, 1258 (Ind. 1998) (quoting Prowell v. State, 687 N.E.2d 563,
568 (Ind. 1997)); accord Brown v. State, 698 N.E.2d 779, 783-84 (Ind. 1998).
The nature of the offense is the shooting of a sleeping man at
close range seven times in the head and face. Under character of
the offender, although the trial judge found that Rascoe had some mental problems,
court-appointed experts found no psychiatric disorders. Rascoe has a violent and lengthy
criminal history including twelve arrests, and has since been convicted of another murder.
In view of these factors, the trial courts imposition of the presumptive
sentence was not clearly, plainly, and obviously unreasonable.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON and RUCKER, JJ., concur.
SULLIVAN, J., concurs in result.
Rascoe also claims that the trial court improperly relied on the impact
on the family as an aggravator. Although the trial court does make
mention of Parkers beautiful little child and that it is sick of seeing
these little babies without daddies, this reference is in a generalized discussion about
the strength of the family and does not appear to have been considered
as an aggravating or mitigating circumstance.
Rascoe suggests that his sentence violates Article I, Section 16 of the
Indiana Constitution requiring that [a]ll penalties shall be proportioned to the nature of
the offense. However, because he does not present a separate argument for
this claim, we will address it under the manifestly unreasonable standard.
Although the other murder charge was pending at the time of Rascoes
sentencing in this case, he was convicted of that charge in a jury
trial on May 23, 1999 and sentenced on June 4.