Attorneys for Appellant

Patricia Caress McMath

Indianapolis, IN

Attorneys for Appellee

Jeffrey A. Modisett

Attorney General of Indiana

Arthur Thaddeus Perry

Deputy Attorney General

Indianapolis, IN

	IN THE

	INDIANA SUPREME COURT

ALFONSO HARRIS,

	Appellant (Defendant below),

	v.

STATE OF INDIANA,

	Appellee (Plaintiff below).

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)	Supreme Court No.

)	49S00-9701-CR-0033

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	APPEAL FROM THE MARION SUPERIOR COURT, CRIMINAL DIVISION II

	The Honorable Robert Justice, Judge Pro Tempore

	Cause No.  49G02-9601-CF-5968

ON DIRECT APPEAL

September 23, 1999

SULLIVAN,  Justice.

	Defendant Alfonso Harris appeals convictions and sentences imposed for felony

murder, attempted murder, robbery, criminal confinement and carrying a handgun without a license in connection with assaults on two men.  Our analysis reveals no reversible error

and we affirm. 

	This Court has jurisdiction over this direct appeal because the longest single sentence

exceeds fifty years.  Ind. Const. art. 7, § 4; Ind. Appellate Rule 4(A)(7).

Background

	On the evening of January 10, 1996, Julius Johnson, Kenny Elmore and Ronald

Eldridge decided to rob a drug dealer named Marcus Coe.  The next day, Elmore, Johnson

and Eldridge picked up Defendant and the four men drove to Elmore’s house.  There,

Eldridge contacted his step-brother, Coe, and told him that someone wanted to buy drugs. 

Coe eventually agreed to sell what he had. 

	While waiting for Coe to arrive, Defendant told Eldridge and Johnson that he was

going to hit Coe with a pistol.  Later, believing Coe was not going to appear, Eldridge and

Johnson left.

	In the meantime, Coe convinced Kelly Abney to drive him to Elmore’s house. Abney

parked his van in front of the house while Coe went inside; Coe said he would return shortly.  After waiting thirty minutes, someone waved Abney into the house.  Upon

approaching the house, two men confronted Abney; one of them held a gun to his head.

	When Abney entered the living room, he observed Coe sitting on the couch, tied up

and bleeding.  Abney was tied up and his watch, ring, shoes, jacket and ten dollars were

taken.  At this time, Abney was unable to identify the individuals in the house because the

men wore masks over their faces.  

	The men placed Abney in a closet.  Eventually, he managed to untie himself.  He

peered through the keyhole and noticed that a side door to the house was open.  When a

man, later identified as Elmore, opened the closet door, Abney was able to escape and run

out the side door.   Elmore chased Abney out of the house and a struggle ensued.  During

the struggle, Abney removed Elmore’s mask.  Defendant followed to assist Elmore.  He

pointed a gun at Abney’s head and instructed Abney to return to the house.  On the way

back to the house, Abney knocked the gun away and ran off.  During the escape, Abney was

shot in the arm. 

	Even after being shot, Abney was able to run to a nearby house for help where the

police were finally summoned.  Police were also dispatched to the 3200 block of North New

Jersey where they found a blue van with Coe slumped in the driver’s seat.  Coe had died

from multiple gunshot wounds. 

	On January 17, 1996, Defendant was charged with Murder,1 Felony Murder,2 Attempted Murder,3 Conspiracy to Commit Robbery,4 a class B felony, Robbery,5 a class B felony, Criminal Confinement,6 a class B felony, and Carrying a Handgun without a License.7  After the first jury trial ended in a mistrial, a second jury trial, in which both Defendant and a co-defendant Kenny Elmore were tried, was held on September 16-20,

1996.  At trial, both Abney and Trya Bentley, a woman who observed Abney’s escape from

an upstairs window in Elmore’s house, identified Defendant as the man who shot Abney. 

The jury found Defendant guilty of felony murder, attempted murder, conspiracy to commit

robbery, robbery, criminal confinement, and carrying a handgun without a license. 

	Additional facts will be provided as necessary.	

Discussion

I  

	Defendant first contends that the prosecutor engaged in misconduct by improperly

vouching for a witness’s credibility.  During cross-examination of Tyra Bentley, the

following testimony and objections occurred (counsel for co-defendant Elmore questioning): 

		Q.	And you’re telling this jury that Rahshaun Robinson was with you.

		A.	Yes.  He did. . .   he did . . . .

		Q.	They don’t tape him until the next day at 10:20 p.m. That is about thirty-three hours later.

		A.	Yes.

		Q.	Did he need thirty-three hours to get his story together?

		A.	I don’t know.

		Q.	I see.  You got yours together though by January 12th at 1:15?

	[Prosecutor]:		Your Honor, State objects to the tenor and the 		 characterization of the question.  The witness is trying 		to

answer as truthfully as she can.

	The Court:		Nonetheless, this is cross examination . . . .

	[Counsel for

	Defendant]:		Objection to counsel’s comments, Your Honor.  It’s up to the jury to decide whether this witness is answering truthfully or

not.

	The Court:		Let’s not get into a bickering match, counsel. Go ahead, [counsel for co-defendant Elmore].

(R. at 408-09.) 

	  While the prosecutor should not have referred to the truthfulness of the witness’s

testimony, we see no reversible error.  The context of the comment was an objection to what

the prosecutor perceived as badgering of the witness about the precise sequence of events

which occurred months before.  In effect, the prosecutor was saying, “Have defense counsel

cut her some slack, judge, she’s doing the best she can.”  Even if the prosecutor’s comment

caused Defendant some prejudice in the eyes of the jury, which we do not believe it did, we

hold that it was cured when the trial court referred to the entire exchange as a “bickering

match.” 

II 

	Defendant contends that Abney’s pre-trial identification was the result of an unduly

suggestive police procedure, which, in turn, tainted his in-court identification such that

evidence of neither should have been admitted at trial.  Defendant argues that the

photographic array from which Abney identified him was impermissibly suggestive because

(1) he was the sole person depicted in the array wearing a white shirt, and (2) only he and

one other person are depicted in the array with hairstyles that resemble dreadlocks. 

	Due process of law under the Fourteenth Amendment requires suppression of

testimony concerning a pre-trial identification when the procedure employed is

impermissibly suggestive.  Parker v. State, 698 N.E.2d 737, 740 (Ind. 1998); James v. State, 613 N.E.2d 15, 27 (Ind. 1993); Bell v. State, 622 N.E.2d 450, 454 (Ind. 1993).  A photographic array is impermissibly suggestive if it raises a substantial likelihood of

misidentification given the totality of the circumstances.  Parker, 698 N.E.2d at 740; James, 613 N.E.2d at 27;  Hampton v. State, 553 N.E.2d 132, 135 (Ind. 1990).  Factors to be considered in evaluating the likelihood of a misidentification include (1) the opportunity of

the witness to view the criminal at the time of the crime, (2) the witness’s degree of

attention, (3) the accuracy of the witness’s prior description of the criminal, and (4) the level

of certainty demonstrated by the witness.  Parker, 698 N.E.2d at 740;  James, 613 N.E.2d at 27; Lyons v. State, 506 N.E.2d 813, 815 (Ind. 1987). 

	A review of the photographs at issue discloses that each of the photographs depicted

young African-American men who shared similar physical characteristics. Defendant’s

photograph is not distinguishable from the others by virtue of his clothing or hair style nor

are any of his physical characteristics uniquely distinguishable from those of the other men

depicted in the array.8  See Farrell v. State, 622 N.E.2d 488, 494 (Ind. 1993) (photographic array not impermissibly suggestive where the defendant wore a dark t-shirt and had a

different hair style from others depicted in array); Hampton, 553 N.E.2d at 134-35 (depicting the defendant in “dress shirt” as opposed to casual shirt did not make the array

impermissibly suggestive).  Further, Abney reported to police officials that Defendant wore

a black jacket at the time of the crime.9  Defendant’s appearance in the photo array wearing a white shirt suggests that Abney identified defendant without relying on clothing.  With

respect to hairstyles, all of the men depicted in the array had some form of braids or

“dreadlocks.”  Although the hairstyles were dissimilar in length, a photographic array is

sufficient if the defendant “does not stand out so strikingly in his characteristics that he

virtually is alone with respect to identifying features.”  Pierce v. State, 267 Ind. 240, 246, 369 N.E.2d 617, 620 (1977).  Defendant did not stand out.

	Given the totality of the circumstances, including Abney’s description of Defendant

and his level of certainty in identifying Defendant, we find the record demonstrates that the

photographic array was not impermissibly suggestive.  The trial court properly admitted this

evidence.  Where the pre-trial procedures are not impermissibly suggestive, both the

evidence of the pre-trial and in-court identifications are held to be properly admitted without further analysis.  Parker, 698 N.E.2d at 740;   see also Bell, 622 N.E.2d at 454 (citing Coleman v. State, 558 N.E.2d 1059 (Ind. 1990)).  Accordingly, we need not address whether an independent basis existed for Abney’s in-court identification.

III 

	Defendant next contends that the trial court improperly instructed the jury on the

elements necessary for the State to prove he carried a handgun without a license. Defendant

argues that the trial court failed to include as an element of the offense that he did not have

a license to carry the handgun thereby placing the burden on him to show he possessed a

valid license.10  

	The relevant statute states ,as follows: “[e]xcept as provided in section 2 of this chapter, a person

shall not carry a handgun in any vehicle or on or about his person, except in his dwelling,

on his property or fixed place of business, without a license issued under this chapter being

in his possession.”  Ind. Code § 35-47-2-1 (1993).11  We have previously held that once the State proves that the defendant carried a handgun on or about his person, away from his

dwelling or business, the burden shifts to the defendant to establish that he possessed a valid

license.  Washington v. State, 517 N.E.2d 77, 79 (Ind. 1987).   In Washington, we concluded that “[p]roof that [the defendant] had a license is an exception to the offense, and

the burden is on [the defendant] to prove he possessed a valid license.”  Id.; accord  Williams v. State, 700 N.E.2d 784, 787 (Ind. 1998); Taylor v. State, 578 N.E.2d 664, 666 (Ind. 1991); Tonge v. State, 575 N.E.2d 269, 271 (Ind. 1991).  Further, Ind. Code § 35-47-2- 24 places the burden on the defendant to prove he or she has a license or was exempt from

the statute.12  

	Defendant, however, relies on Tonge to contend that we approved a jury instruction that placed the burden on the State to establish that the defendant possessed a valid license.13  (Appellant Br. at 10.)  In Tonge, we held that

	when the State has established that a defendant was found to be in possession

of a handgun and not in possession of a license to carry it, then the burden

shifts to the defendant to come forward with any proof that he in fact was

licensed to carry the weapon or was exempt from the statute.

Tonge, 575 N.E.2d at 271 (citing Washington, 517 N.E.2d at 77).  Standing alone, it appears that this language in Tonge added an element for the State to prove — that the defendant was not in possession of a valid license.  However, taken in its entirety, Tonge does not change previous holdings or the direction set by the legislature pursuant to Ind. Code § 35-

47-2-24.  In Tonge, we further explained that proving that a defendant had a license “is not an undue burden upon a defendant.  This is information which is peculiar and readily available to him.  To require the State to eliminate all possibilities of lawful carrying of the

weapon would be a waste of judicial time and effort.”  Tonge, 575 N.E.2d at 271.  Three months after Tonge, we held in Taylor that “[t]he fact that [the handgun] was being carried with or without a valid license was a matter for [defendant] to establish in an affirmative

defense that he in fact did possess a valid license or an exception therefrom for the carrying

of the gun.”  Taylor, 578 N.E.2d at 666 (citing Washington, 517 N.E.2d at 77).  

	We reaffirm that once the State has established that the defendant carried a handgun

on or about his person, away from his residence or place of business, the burden then shifts

to the defendant to demonstrate that he possessed a valid license.  Accordingly, the trial

court did not err in giving the jury instruction. 

IV 

	Defendant next asserts that his conviction and sentence for criminal confinement and

robbery should be vacated.  Defendant contends that double jeopardy principles prohibit the

conviction and subsequent sentencing for both offenses because the force used for the

confinement constituted the same force used to commit the robbery.  However, the facts of

this case, set forth under Background, supra, indicate confinement well beyond that used to commit the robbery.  Abney was tied up and placed in a closet.  And later he was

apprehended when trying to escape.  Cf. Brown v. State, 671 N.E.2d 401, 410 (Ind. 1996) (affirming convictions for both confinement and robbery where the confinement was more

extensive than that necessary to commit the robbery). 

V

	Finally, Defendant contends that the trial court improperly imposed presumptive

consecutive sentences for his felony murder and attempted murder convictions.  Defendant

argues that the trial court failed to articulate specific aggravating factors sufficient to justify

the imposition of consecutive sentences. 

	In general, the legislature has prescribed standard sentences for each crime, allowing

the sentencing court limited discretion to enhance each sentence to reflect aggravating

circumstances or reduce the sentence to reflect mitigating circumstances.  The legislature

also permits sentences to be imposed consecutively if aggravating circumstances warrant.  Morgan v. State, 675 N.E.2d 1067, 1073 (Ind.1996) (citing Reaves v. State, 586 N.E.2d 847 (Ind.1992));  See Ind. Code § 35-38-1-7.1(b) (Supp. 1995) (A court may consider aggravating circumstances in determining whether to impose consecutive sentences.).

	When the trial court imposes a sentence other than the presumptive sentence, or

imposes consecutive sentences where not required to do so by statute, this Court will

examine the record to insure that the court explained its reasons for selecting the sentence it imposed.  Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997) (citing Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986)).  The trial court’s statement of reasons must include the

following components: (1) identification of all significant aggravating and mitigating

circumstances;  (2) the specific facts and reasons that lead the court to find the existence of

each such circumstance; and (3) an articulation demonstrating that the mitigating and

aggravating circumstances have been evaluated and balanced in determining the sentence. 

Mitchem v. State, 685 N.E.2d 671, 678 (Ind. 1997) (citing Jones v. State, 675 N.E.2d 1084, 1086 (Ind. 1996)). 

	The trial court identified and considered several aggravating factors in imposing

consecutive sentences.  Aggravating circumstances upon which the trial court relied

included: Defendant’s previous felony convictions; Defendant’s previous interaction with

handguns including the use of a handgun in this case; the nature and circumstances of the

crime (victims were bound, tormented and beaten); and that this violent criminal act was

planned.14   The trial court identified no significant mitigating factors.  The court imposed presumptive sentences for each conviction.  The aggravating factors enumerated by the trial

court serve as ample justification for the imposition of consecutive sentences for murder and

attempted murder.  And within its discussion of each aggravating factor, the trial court

demonstrated that it had engaged in an evaluative process of the sort necessary for

meaningful appellate review.  Beason v. State, 690 N.E.2d 277, 285 (Ind. 1998).  Accordingly, we affirm the imposition of consecutive presumptive sentences for the felony

murder of Marcus Coe and the attempted murder of Kelly Abney and deny Defendant’s

request for the imposition of concurrent sentences.

Conclusion

	We affirm the judgment of the trial court.

	SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.