MEMORANDUM DECISION
                                                                         Mar 20 2015, 7:18 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                   Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Senaca V. Lapsley,                                       March 20, 2015

Appellant-Defendant,                                     Court of Appeals Case No. 02A05-
                                                         1408-CR-399
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
                                                         Judge
Appellee-Plaintiff.
                                                         Cause No. 02D05-1312-FB-247




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015    Page 1 of 14
[1]   Senaca V. Lapsley appeals his convictions and sentence for two counts of

      aggravated battery as class B felonies and criminal recklessness as a class C

      felony. Lapsley raises two issues, which we revise and restate as:


          I. Whether the evidence is sufficient to sustain his convictions; and


          II. Whether his sentence is inappropriate in light of the nature of the offense

              and the character of the offender.


      We affirm.


                                      Facts and Procedural History

[2]   At around 12:00 a.m. on December 25, 2013, Lapsley asked his girlfriend,

      Tequila James, if she would drop him off to see his brother at Stein Tavern.

      James saw that Lapsley had a pistol “on the side of his jacket and the pants

      pocket.” Transcript at 107. James dropped Lapsley off at Stein Tavern and

      drove away.


[3]   At approximately 1:00 a.m. on December 25, 2013, Lapsley, who had

      dreadlocks, his brother Lorenzo, and another man entered Sports and Spirits, a

      tavern in Fort Wayne, Indiana. There were around fifty people at the bar.

      Randy Daniels was working as a doorman at the bar, and Anna Roque and

      Zachary Huddleston, both of whom worked as bartenders but were not working

      at the time, were socializing with Daniels. At some point, Lorenzo punched a

      man in the face, and Daniels rushed over to break up the fight. Daniels

      attempted to defuse the situation and, with the help of Huddleston, directed


      Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015   Page 2 of 14
      Lapsley, Lorenzo, and the third man toward the door. Daniels, with

      Huddleston’s assistance, forced the three men to exit the bar through the front

      door, and Daniels locked the door.


[4]   Within seconds after he exited the building, Lapsley pulled a gun out of his

      clothing, pointed it directly through the front window of the bar, and fired the

      gun multiple times. Roque was struck in the hand, and Huddleston was struck

      in the neck and abdomen. A bullet entered Huddleston’s neck below his chin

      and exited out of his jaw, shattering it. A second bullet entered Huddleston’s

      abdomen, traveled through his bladder, and struck the femoral artery in his left

      leg. Huddleston tried to scream but could not because of the blood in his

      throat. Roque helped Huddleston roll over so that he could cough so that he

      would not choke on his own blood. A part of one of Roque’s fingers later had

      to be amputated as a result of her injuries. Huddleston later underwent

      approximately ten operations during three hospital stays totaling about two

      months.


[5]   In the morning following the shooting, Lapsley told James that Lorenzo had

      “knocked out somebody” at Sports and Spirits. Transcript at 112. Later that

      night, Lapsley and James were watching the news, and there was a report about

      the shooting at Sports and Spirits. When the report showed a picture of the

      window of Sports and Spirits with bullet holes in it, Lapsley yelled: “Damn,

      that look like my holes I put through the windows.” Id.




      Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015   Page 3 of 14
[6]   On December 27, 2013, the State charged Lapsley with two counts of

      aggravated battery as class B felonies and three counts of criminal recklessness

      as class C felonies. The State later alleged Lapsley was an habitual offender. A

      two-day jury trial was held in July 2014, at which the jury heard the testimony

      of, among others, Daniels, Roque, Huddleston, James, and Fort Wayne Police

      Detective Edward Sabo. Roque and Daniels made in-court identifications of

      Lapsley, Detective Sabo testified that Roque identified Lapsley in a photo

      array, and James testified regarding seeing Lapsley with a gun prior to the

      shooting and his statements following the shooting. The jury found Lapsley

      guilty as charged and found him to be an habitual offender. Following a

      sentencing hearing, at which the court found no mitigating factors and

      Lapsley’s criminal history and failed prior attempts at rehabilitation to be

      aggravating factors, the court sentenced him to twenty years for each of the

      aggravated battery convictions and eight years for one criminal recklessness

      conviction. The court vacated two of the convictions for criminal recklessness

      due to double jeopardy concerns, ordered that Lapsley serve his sentences

      consecutively, and enhanced the sentence for one of the aggravated battery

      convictions by thirty years due to the habitual offender finding, for an aggregate

      term of seventy-eight years.


                                                  Discussion

                                                        I.


[7]   The first issue is whether the evidence is sufficient to sustain Lapsley’s

      convictions. When reviewing claims of insufficiency of the evidence, we do not
      Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015   Page 4 of 14
      reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656

      N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and

      the reasonable inferences therefrom that support the verdict. Id. We will affirm

      the conviction if there exists evidence of probative value from which a

      reasonable trier of fact could find the defendant guilty beyond a reasonable

      doubt. Id.


[8]   Lapsley contends the State presented insufficient evidence to convict him. He

      argues that, with no physical evidence linking him to the shooting, the State’s

      case rises and falls on the sufficiency of the identifications given by Daniels and

      Roque. He argues that the inherent problems in eyewitness testimony are well

      known and that “[i]t is likely no exaggeration to state that, within our collective

      lifetimes, the current use of eye witness testimony alone to support a criminal

      conviction will be viewed as having similar validity as the methods used for

      determining the guilt of accused witches in 17th Century Salem.” Appellant’s

      Brief at 6-7. He argues that “[t]his Court is left with two cross-racial

      identifications, made on the basis of memories formed during a high-stress, and

      extremely short, period of time.” Appellant’s Brief at 7. Specifically, Lapsley

      argues that Daniels’s identification “was some seven (7) months after the

      incident” and in direct contradiction to his inability to identify any suspect on

      the day of the incident. Id. He asserts that Roque’s identifications “are even

      more suspect” as she was under the influence of alcohol at the time and

      identified Lapsley on the date of the incident as someone other than the

      shooter. Id. Lapsley further argues that, while James’s testimony places


      Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015   Page 5 of 14
      Lapsley in possession of a handgun and in similar clothes as the shooter, James

      could not testify that Lapsley was at Sports and Spirits on the night of the

      shooting.


[9]   The State maintains that two people identified Lapsley as the person who fired

      a gun into the bar, and the entire episode was captured on video from multiple

      angles leaving little question Lapsley was properly identified as the shooter.

      The State argues that Roque testified she knew Lapsley and his brother Lorenzo

      personally and that Roque identified Lapsley in a video by his clothing and

      hair. The State notes there was a discrepancy between Roque’s testimony and

      the report of Detective Sabo, that Roque’s trial testimony and identification of

      Lapsley from a photo array were unequivocal, and whatever weight the jury

      assigned to the discrepancy appears to have been resolved by the jury in

      Roque’s favor. The State further argues that Daniels was unequivocal in

      identifying Lapsley as the person in a photograph admitted as State’s Exhibit 2

      as the person closest to the door, that the photograph shows Lapsley standing

      nearest the door, and that the same man is shown firing the gun in the video

      from outside the door. The State also argues that Lapsley admitted to James

      that he and Lorenzo went to Sports and Spirits and that Lorenzo had struck

      someone while there, that James had seen a gun on Lapsley earlier in the

      evening, and that Lapsley’s comment to James during news coverage of the

      shooting corroborates that Lapsley was responsible for the bullet holes in the

      window of the bar.




      Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015   Page 6 of 14
[10]   Elements of offenses and identity may be established entirely by circumstantial

       evidence and the logical inferences drawn therefrom. Bustamante v. State, 557

       N.E.2d 1313, 1317 (Ind. 1990). The unequivocal identification of the defendant

       by a witness in court, despite discrepancies between his description of the

       perpetrator and the appearance of the defendant, is sufficient to support a

       conviction. Emerson v. State, 724 N.E.2d 605, 610 (Ind. 2000), reh’g denied.

       Identification testimony need not necessarily be unequivocal to sustain a

       conviction. Heeter v. State, 661 N.E.2d 612, 616 (Ind. Ct. App. 1996).

       Inconsistencies in identification testimony impact only the weight of that

       testimony, because it is the jury’s task to weigh the evidence and determine the

       credibility of the witnesses. Gleaves v. State, 859 N.E.2d 766, 770 (Ind. Ct. App.

       2007) (citing Badelle v. State, 754 N.E.2d 510 (Ind. Ct. App. 2001), trans. denied).

       As with other sufficiency matters, we will not weigh the evidence or resolve

       questions of credibility when determining whether the identification evidence is

       sufficient to sustain a conviction. Id. Rather, we examine the evidence and the

       reasonable inferences therefrom that support the verdict. Id.


[11]   Roque testified that she recognized and knew Lapsley and Lorenzo, identified

       Lorenzo as the person wearing a fur coat, and identified Lapsley in a video

       admitted into evidence as the person who was wearing a white t-shirt, grey

       sweatshirt or coat, and a dark skullcap and whose hair was in dreadlocks.

       Roque also identified Lapsley in court and testified that she had identified him

       to police in a photo array, and the photograph with her initials was admitted

       into evidence as State’s Exhibit 3. (Tr. at 71, 76; State’s Exhibit 3) The State

       Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015   Page 7 of 14
       presented three video recordings, admitted into evidence as State’s Exhibit 1,

       which together showed footage of the shooting and the activities in the bar

       before and after the shooting. One of the recordings shows a man in a fur coat

       and identified by Roque as Lorenzo punch another person, and the man

       identified as Lapsley by Roque is shown standing with the man in the fur coat.

       Another of the video recordings shows the area outside the door of the bar and

       clearly shows the person identified as Lapsley by Roque firing a gun multiple

       times toward the building moments after he had exited the building. On cross-

       examination, defense counsel asked Roque if she had indicated to Detective

       Sabo that the same person with the fur coat and fuzzy hat had dreadlocks, and

       Roque said no and that she told Detective Sabo that Lorenzo was the person

       wearing the fur coat. When asked if she, by chance, identified Lorenzo as being

       Lapsley, Roque answered no. Detective Sabo testified that, according to his

       report, when Roque gave him a description of the possible suspects, she

       described the individual as a black male with dreadlocks and that she believed

       the person was wearing a fur coat. In addition, Detective Sabo testified that

       Roque was able to positively identify Lapsley from a photo array, and the

       photograph was admitted into evidence.


[12]   Daniels identified Lapsley as the person in a photograph admitted as State’s

       Exhibit 2 as the person positioned closest to the door of the bar. The

       photograph depicts a man standing near the bar door wearing a white t-shirt, a

       dark sweatshirt or coat, and a dark hat or cap. The man identified by Daniels

       as Lapsley in the photograph is the man shown in the video recording admitted


       Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015   Page 8 of 14
       into evidence firing a gun multiple times towards the bar window. Daniels

       testified that he “was a real basket case” immediately following the shooting

       and was not able to identify the suspects at the time. Transcript at 45. Daniels

       unequivocally identified Lapsley in court as the person who was positioned

       closest to the door of the bar in the photograph admitted as State’s Exhibit 2.


[13]   James testified that, prior to dropping Lapsley off at Stein Tavern, she had

       noticed that Lapsley possessed a gun. She also testified that, in the morning

       following the shooting, Lapsley told her that Lorenzo had “knocked out

       somebody” at Sports and Spirits and that, later in the evening when watching a

       news report showing the window of Sports and Spirits, Lapsley stated “that

       looks like my holes I put through the windows.” Id. at 112.


[14]   The jury heard testimony from Roque, Daniels, and James as set forth in part

       above, and each of them were examined before the jury regarding their

       observations. The three video recordings depicting the shooting and the actions

       of the persons described as Lapsley and Lorenzo by Roque and Daniels were

       also admitted into evidence. The jury was able to assess the credibility of each

       of the witnesses in light of his or her own testimony and in light of the

       testimony of the other witnesses. To the extent there was any discrepancy

       between Detective Sabo’s report regarding a description given by Roque and

       Roque’s subsequent positive photo identification and in-court identification of

       Lapsley, or between Daniels’s initial failure to make a positive identification of

       the suspects and his subsequent unequivocal in-court identification of Lapsley,

       it was the jury’s function to resolve any such conflicting testimony and

       Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015   Page 9 of 14
       discrepancies. See Emerson, 724 N.E.2d at 610 (observing that it is the jury’s

       function to resolve conflicting testimony and discrepancies between the

       witnesses’ original out-of-court identifications); Gleaves, 859 N.E.2d at 770

       (observing that discrepancies were factual issues for the jury to resolve). Roque

       described Lapsley’s clothing and appearance at the bar, identified him in a

       photo array, and identified him in court; Daniels identified Lapsley in a

       photograph as the person positioned closest to the bar door and identified him

       in court; and the person identified as Lapsley by Roque and Daniels is shown

       shooting through the bar’s window in the video recording admitted into

       evidence. Lapsley’s arguments regarding why the witnesses or certain

       testimony of the witnesses should not be believed amount to an invitation that

       we reweigh the evidence, which we cannot do. See Jordan, 656 N.E.2d at 817.

       It was reasonable for the jury to infer based upon the evidence presented that

       Lapsley was the person who performed the acts for which he was charged and

       convicted.


[15]   Based upon our review of the evidence as set forth in the record and above, we

       conclude that sufficient evidence exists from which the jury could find Lapsley

       guilty beyond a reasonable doubt of the aggravated battery and criminal

       confinement counts as charged. See Wilder v. State, 716 N.E.2d 403, 405 (Ind.

       1999) (noting that it is the duty of the fact-finder to assess the credibility of

       witness testimony and finding that the State presented evidence of the

       defendant’s identity as the perpetrator involved in the offense).




       Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015   Page 10 of 14
                                                         II.


[16]   The next issue is whether Lapsley’s sentence is inappropriate in light of the

       nature of the offense and his character. Indiana Appellate Rule 7(B) provides

       that this court “may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, [we find] that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” Under this rule, the burden is on the defendant to persuade the

       appellate court that his or her sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[17]   Lapsley acknowledges that the severity of the injuries to Huddleston and Roque

       cannot be disputed, nor can he minimize his extensive criminal history, but he

       argues “the sentence handed down by the trial court amounts to a life sentence”

       and that “[g]iven the fact that Lapsley’s convictions rest almost entirely on

       evidence which is of questionable reliability, Lapsley would submit that such a

       severe punishment is unwarranted.” Appellant’s Brief at 9. He requests this

       court to revise his sentence to the advisory sentence and order that the sentences

       be served concurrently.


[18]   The State argues that Lapsley’s sentence is not inappropriate and that he

       waived his argument as to an appropriateness claim because he failed to make

       cogent argument regarding the nature of the offense and his character. The

       State asserts that only the prompt and effective field treatment of Huddleston’s

       wounds by Trooper Anderson prevented this from being a murder case, and


       Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015   Page 11 of 14
       notes that the trial court described the offense as being horrific and stated that

       the fact someone did not die is remarkable. The State argues that there were

       about fifty people in the bar on the night Lapsley fired his gun nine times

       through the window, that he shot into the bar because he had been thrown out

       earlier, and that he committed a horribly violent act over a trivial matter in

       which he was the party in the wrong. The State further notes Lapsley’s

       criminal history, including fifteen misdemeanor and five felony convictions and

       that he was on probation at the time of this offense. The State also argues

       Lapsley “snorted” when the court stated it was remarkable that nobody died,

       making it clear he has no remorse for his actions. Appellee’s Brief at 13.


[19]   Our review of the nature of the offense reveals that, after he had been thrown

       out of a bar for fighting, Lapsley turned around and fired his gun multiple times

       into the bar through the window, which resulted in serious injuries to

       Huddleston and Roque and could have resulted in serious injury or death to

       many others. At sentencing, the court stated:

               It’s horrific what you did, Mr. Lapsley, it’s horrific. The fact that
               people didn’t die is remarkable. You can sit there and snort at me all
               you want, sir, I watched the videotape that twelve (12) jurors watched,
               as well, and saw you . . . casually pull out a weapon as you would pull
               out your billfold and fire into that building that was packed with
               people. And the scary thing about it, Mr. Lapsley, is you couldn’t care
               less.


       Sentencing Transcript at 14. The nature of the offense does not warrant a

       reduction of Lapsley’s sentence.


       Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015   Page 12 of 14
[20]   Our review of the character of the offender reveals that, according to the

       information presented at the sentencing hearing, Lapsley’s criminal history

       includes three juvenile delinquency adjudications, fifteen misdemeanor

       convictions, and five prior felony convictions. His prior felonies include

       convictions for possession of cocaine or narcotic drug as a class D felony in

       2002, forgery as a class C felony and possession of cocaine as a class D felony

       in 2005, and failure to return to lawful detention, a class D felony, in 2008. His

       misdemeanors include convictions for resisting law enforcement, public

       intoxication, false informing, operating while intoxicated, domestic battery,

       possession of marijuana, and invasion of privacy. He has had sentences

       modified four times and his probation revoked four times. The sentencing

       transcript reveals that the court noted that Lapsley “snorted” and that he

       “couldn’t care less.” Id. Lapsley’s character does not merit a reduction of his

       sentence.


[21]   After due consideration, we conclude that Lapsley has not sustained his burden

       of establishing that his sentence is inappropriate in light of the nature of the

       offense and his character.


                                                   Conclusion

[22]   For the foregoing reasons, we affirm Lapsley’s convictions and sentence for two

       counts of aggravated battery as class B felonies and criminal confinement as a

       class C felony.


[23]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015   Page 13 of 14
Bailey, J., and Robb, J., concur.




Court of Appeals of Indiana | Memorandum Decision No. 02A05-1408-CR-399 | March 20, 2015   Page 14 of 14
