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ATTORNEY FOR APPELLANT 			ATTORNEYS FOR APPELLEE    

Lesa Lux Johnson  				Jeffrey A. Modisett

Attorney at Law           		Attorney General of Indiana

Indianapolis, Indiana

                 				Kimberly Macdonald

                      			Deputy Attorney General

                     			Indianapolis, Indiana

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	IN THE

	SUPREME COURT OF INDIANA

THOMAS MONTGOMERY,

	Appellant (Defendant),

		v.

STATE OF INDIANA,

	Appellee (Plaintiff).

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49S00-9708-CR-465

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	APPEAL FROM THE MARION SUPERIOR COURT, CRIMINAL DIVISION, ROOM 1

	The Honorable Alex Murphy,  Judge Pro TemMaster Commissioner

	Cause No. 49G031-9606-CF-80608

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	[Date]May 11, 1998

Shepard, Chief Justice. 

	Appellant Thomas Montgomery was charged with one count of

murder, Ind. Code Ann. § 35-42-1-1 (West 1998), and one count of

carrying a handgun without a license, Ind. Code Ann. § 35-47-2-1 (West 1998).  The jury found Montgomery guilty of both counts, and the trial judge sentenced him to a term of sixty years for murder

and to a term of one year for carrying a handgun without a license,

to be served concurrently.  Montgomery appeals his conviction and

sentence.  We affirm.  

	Facts

  	On Monday, June 10, 1996, Indianapolis Police Officer Matthew Elam was on routine patrol when he received a report at about 8

p.m. that a man had been shot in the twenty-one hundred block of

North College Avenue.  He proceeded directly to the scene of the

shooting, arriving less than a minute later, and observed an

unidentified man jump out into the street and wave toward the

sidewalk.  The officer stopped and found Victor Jackson bleeding,

lying face down on the sidewalk. 

	Officer Elam asked Jackson who shot him, but Jackson stated

that he had to go home.  The officer encouraged Jackson to relax

and remain lying down, and again asked Jackson who shot him. 

Jackson repeated that he wanted to go home.  He got up on his

knees, but immediately collapsed.  Jackson's fiancé, Sandura Stephens, arrived and helped the officer calm Jackson down.  She and Officer Elam helped Jackson sit up against a fence.  The

officer again asked Jackson who shot him, and Jackson said: "Buster

shot me."  About a minute had passed from the time of Officer Elam's arrival to the time of Jackson's statement. 

 	Jackson was taken to a hospital, where he died shortly after arrival.  He had been shot four times, with bullets entering his

chin, arm, thigh, and chest.  The gunshot to the chest proved

fatal.  The bullet that entered Jackson's thigh appears to have

entered his body from above while he was in a seated position. 

	Thomas Montgomery, who is also known as "Buster," and Victor

Jackson had been long-time friends.  Stephens testified, however,

that on the weekend before his death, Jackson told her that he had

had an argument with Montgomery over disparaging remarks Montgomery

had made about her.  Amos Mitchell testified that he saw Jackson

and Montgomery arguing that weekend, that Jackson threatened to shoot Montgomery if Montgomery continued to insult Stephens, that

Jackson pulled a gun on Montgomery, and that Mitchell intervened to stop Jackson from shooting Montgomery.  Stephens asked Jackson not to make a big deal of what had been said, and at her request,

Jackson did not take his pistol with him when he left Stephens'

apartment on the evening he was shot. 

	After leaving Stephens' apartment, Jackson went to a nearby vacant lot to socialize with friends.  Mitchell testified that he had been in the group with Jackson, but left when he saw Montgomery approaching and headed toward a liquor store down the block.  He heard gunshots shortly thereafter and saw Montgomery going past him  and Jackson running in the opposite direction.  Wilfred Martin came out of the liquor store after hearing gunshots and saw a man he

identified at trial as Montgomery running toward him, carrying a

handgun.  After the man had run past him, Martin walked down the

block and found Jackson lying on the sidewalk.

	After Montgomery was arrested, he told the investigating officer that he had been in the group with Jackson but had left to

go the liquor store before the shooting.  As he was walking back to

the group, he heard shots being fired, everyone scattered, and he

learned later that Jackson had died.  Montgomery presented two

witnesses who testified that he was near the liquor store talking

with someone else when the shots were fired, at which point

everyone around started running. 

	Issues

	Appellant presents the following issues on appeal:  

	(1) whether the trial court erred in admitting the following

hearsay into evidence:  

		(a) testimony by Officer Elam and Stephens about

Jackson's identification of his assailant, and

		(b) Stephens' testimony about statements Jackson made  concerning an argument he had had with Montgomery; and 

	(2) whether the trial court properly imposed an enhanced

sentence for murder.  

	I. Admission of Hearsay

	The Indiana Rules of Evidence define hearsay as "a statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter

asserted." Ind.Evidence Rule 801(c).  Hearsay is generally not

admissible in evidence.  Evid.R. 802.  However, errors in the admission of evidence, including hearsay, are to be disregarded as

harmless unless they affect the substantial rights of a party.     See McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996).  In determining whether an evidentiary ruling has affected an appellant’s

substantial rights, we assess the probable impact of the evidence

on the jury.  See id.  Admission of hearsay is not grounds for reversal where it is merely cumulative of other evidence admitted. 

See id. at 331-32.

	A. Jackson's Identification of Montgomery as his Assailant

	The trial court permitted both Officer Elam and Stephens to

testify that Jackson had identified Montgomery as the person who

shot him.  Jackson's identification is clearly hearsay, as it is an out of court statement offered in evidence to prove the truth of

the matter asserted--that Montgomery shot Jackson.  The State asserts that it was nevertheless admissible under three hearsay

exceptions:  (1) excited utterance, Evid.R. 803(2), (2) present

sense impression, Evid.R. 803(1), and (3) statement under belief of impending death, Evid.R. 804(b)(2).

	An excited utterance is defined as follows:  "A statement

relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or

condition."  Evid.R. 803(2).  In a case involving a shooting

victim's identification of his assailant, this Court has explained:

	For a hearsay statement to be admitted as an excited

utterance, three elements must be shown:  1) a startling event

occurs; 2) a statement is made by a declarant while under the

stress of excitement caused by the event; and 3) the statement

relates to the event. Application of these criteria is not

mechanical.  Rather, under Rule 803(2), like its predecessor

common-law doctrine, the heart of the inquiry is whether the

statement is inherently reliable because the declarant was

incapable of thoughtful reflection. . . .

		. . . .

		A declaration does not lack spontaneity simply because it

was an answer to a question.  Whether given in response to a

question or not, the statement must be unrehearsed and made

while still under the stress of excitement from the startling

event. . . . 

		. . . [T]he time between the startling event and the

hearsay statement is one factor to be considered in

determining admissibility as an excited utterance.  While a

declaration is generally less likely to be admitted if it is

made long after the startling event, the amount of time that

has passed is not dispositive. . . .  Again, the central issue

is whether the declarant was still under the stress of

excitement caused by the startling event when the statement

was made. . . .

		. . .  Being shot is a traumatic event, both physically

and psychologically.  Its startling effect, depending on the

severity of the injury, can continue for hours or longer. . .

.

		. . . .

		. . .  We have addressed in several decisions whether a

shooting victim's identification of the assailant was properly

admitted as an excited utterance under common law.  In nearly every instance, we held the statement to be admissible. . . . 

[However], trial courts should not abdicate rational analysis

in cases where a shooting victim has fingered a possible

perpetrator.  Fairness to the defendant requires an assessment

of whether the declarant's statement was the product of

reflective thought.

Yamobi v. State, 672 N.E.2d 1344, 1346-47 (Ind. 1996) (citations omitted).  

	In this case, Officer Elam and Stephens arrived within minutes

after Jackson had been shot four times.  Jackson was lying face

down on the sidewalk and bleeding.  While Jackson did not answer

the officer's first two inquiries as to the identity of his

assailant, Jackson's expressed concern was to reach the safety of

his home.  After Jackson collapsed while attempting to get up, he

answered the officer's third inquiry without hesitation.  The

officer did not suggest who the assailant might be, and although

there were other people in the vicinity, there is no evidence that

anyone else suggested that Jackson identify  Montgomery in the short

time it took for Officer Elam to arrive at the scene.  

	We conclude that the trial court did not err in admitting into

evidence under the excited utterance exception the testimony of Officer Elam and of Stephens that Jackson had identified Montgomery

as his assailant.  Because the identification was properly admitted

on this basis, we need not consider whether any other hearsay

exception would also apply.

	B. Jackson's Description of an Argument with Montgomery

	The trial court permitted Stephens to testify that the weekend

before he was shot, Jackson came to her apartment and reported that

he had had an argument with Montgomery over disparaging remarks

Montgomery had made about her.  Jackson's statement is  hearsay,  as

it is an out of court statement offered in evidence to prove the

truth of the matter asserted--that Montgomery and Jackson had a

falling out shortly before the shooting.  The State contends that the statement is admissible under the hearsay exception for present sense impression. 

	Present sense impression is defined as:  "A statement describing or explaining a material event, condition or

transaction, made while the declarant was perceiving the event,

condition or transaction, or immediately thereafter."  Evid.R.

803(1).  Jackson did not make the statement at issue while

perceiving the event, and nothing in the evidence indicates that he

was reporting the argument to Stephens immediately after it

occurred.  Nevertheless, even if the trial court erred in admitting

Stephens' testimony on this point, it was merely cumulative of

Mitchell's more detailed eyewitness account of the argument.  We

conclude that the admission of this evidence was at most harmless

error.  See McClain, 675 N.E.2d at 331-32. 

	II. 	Sentencing

	The crime of murder carries a presumptive fifty-five year

sentence, which may be enhanced by ten years due to aggravating

circumstances.  Ind. Code Ann. § 35-50-2-3(a) (West 1998).  Sentencing decisions are left to the sound discretion of the trial court and will be reversed only upon a showing of a manifest abuse

of that discretion.  See Sims v. State, 585 N.E.2d 271, 272 (Ind. 1992). 

	It is within the discretion of the trial court to determine

whether a presumptive sentence will be increased or decreased

because of aggravating or mitigating circumstances.  See id.  When a trial court enhances a presumptive sentence, however, it must

state its reasons for doing so.  See Morgan v. State, 675 N.E.2d 1067, 1073 (Ind. 1996).  The court's statement must identify all

significant aggravating and mitigating factors, state why each is

considered to be aggravating or mitigating, and weigh the

aggravating factors against the mitigating factors.  See Sims, 585 N.E.2d at 272.  "These requirements serve the dual purpose of guarding against arbitrary sentences and providing an adequate

basis for appellate review."  Morgan, 675 N.E.2d at 1074. 

	In this case, the trial court found the following aggravating factors and enhanced the presumptive sentence by five years:   

(1)

Montgomery's criminal history, (2) the manner in which the murder was committed, and (3) a lesser sentence would depreciate the

seriousness of the crime. 

	A. Sufficiency of the Sentencing Statement

	Montgomery first claims the sentencing statement is

insufficient to support an enhanced sentence because it is a

mechanical recitation of statutory aggravating factors. 

	When sentencing Montgomery, the trial court stated that it had

considered the following: 

	the aggravating factors that Mr. Montgomery has a history

of criminal activity, specifically the older robbery that

[defense counsel] referenced which did involve peripheral

violence . . . and the jury finding relative to the

factors as alleged that the decedent, Victor Jackson, was

shot four time apparently from a superior position while

he was sitting down. 

Although a mere recitation of statutory factors is insufficient to support an enhanced sentence, see Erby v. State, 511 N.E.2d 302, 303-04 (Ind. 1987), the trial court in this case identified a particular prior serious crime and the specific manner in which

Montgomery murdered his victim as aggravating circumstances.  We

therefore conclude that the sentencing statement was sufficiently

specific.

	B.  Trial Court's Evaluation of Aggravating Factors

	Montgomery next argues that the trial court erred in not considering that his last serious criminal offense was in 1977,

and that since that time until his conviction in this case, he

had been convicted of only two alcohol-related offenses.  He

argues that the lack of any recent violent crimes should "offset"

the aggravating factors and weigh in favor of the presumptive

sentence.  Montgomery appears to be arguing that the trial court

should have considered as a mitigating factor the fact that nearly twenty years had passed since his last serious offense. 

See Ind. Code Ann. § 35-38-1-7.1(c)(6) (West 1998).  

	A trial court must set forth on the record a description of

significant mitigating circumstances if the trial court reduces

the presumptive sentence or uses mitigating circumstances to

offset aggravating circumstances.  See Widener v. State, 659 N.E.2d 529, 533 (Ind. 1995).  However, while a trial court may not ignore facts in the record that would mitigate an offense, a

finding of mitigating circumstances is within the trial court's

discretion.  See id. at 533-34.  A trial court is "not required to include within the record a statement that it considered all

proffered mitigating circumstances, only those it consider[s]

significant."  Id. at 534.  Moreover, a trial court is not required to give the same weight to proffered mitigating

circumstances as the defendant does.  See id. at 533-34.

	In this case, the sentencing statement indicates that the

trial court considered Montgomery's criminal record and the nature and circumstances of the crime to be aggravating factors. 

These may properly be considered as aggravating factors.  See Ind. Code Ann. § 35-38-1-7.1(a)(2), (a)(3)(A), and (b)(2)(West 1998).  The trial court apparently did not find Montgomery's lack of recent criminal violence to be sufficiently mitigating to

offset these aggravating factors.  Under the circumstances, the

trial court was not required to state on the record the reasons

why it found this factor to be insufficiently mitigating to

outweigh the aggravating circumstances.  See Widener, 659 N.E.2d at 533-34. 

	While Montgomery does not specifically challenge the third

aggravating factor identified by the trial court, we note that a

finding that a lesser sentence would depreciate the seriousness

of the crime has application only when considering imposition of a sentence of shorter duration than the presumptive sentence, not

when enhancing a sentence.  See Penick v. State, 659 N.E.2d 484, 488 (Ind. 1995).  However, "[d]espite a trial court’s use of an

improper aggravating circumstance to enhance a sentence, this

Court will affirm if the other aggravating circumstances are

adequate to support the sentence imposed."  Scheckel v. State, 620 N.E.2d 681, 684 (Ind. 1993).  A single, proper aggravating

factor may be sufficient to support an enhanced sentence.  See Barany v. State, 658 N.E.2d 60, 67 (Ind. 1995).  In the present case, the trial court stated two valid aggravating factors.  They

are sufficient to support imposition of an enhanced sentence.

	We therefore find no error in the trial court's imposition

of an enhanced sentence.    

			Conclusion

	Finding no reversible error in either Montgomery's

conviction or sentence, we affirm the trial court.    

Dickson, Sullivan, Selby, and GBoehm, JJ., concur.