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689 N.E.2d 444

Berry v. State

Indiana Supreme Court

Decided December 30, 1997

Indiana Supreme Court · decided 1997-12-30

Cited by 4 later decisions — most recently February 2002

4 state decisions

Key passage — most relied on by later courts

“(c) Except as provided in subsection (d) or (e), the court shall determine whether terms of imprisonment shall be served concurrently or conseculively. The court may consider the aggravating and mitigating circumstances in IC 35-38-1-7.1(b) and IC 35-38-1-7.1(c) in making a determination under this subsection. The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted. (d) If, after being arrested for one (1) crime, a person commits another crime: (1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime; or (2) while the person is released: (A) upon the person's own recognizance; or (B) on bond; the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed.”

quoted by 1 later decision, including Badger v. State

“essentially overturned the contemporaneity requirement”

quoted by 1 later decision, including Badger v. State

Relies on Rideout v. United States · Loyd v. State · Case v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1997-12-30

View the full empirical analysis of this case →

DICKSON, Justice.

¶1The defendant-appellant, Tony Berry, was convicted of murder and robbery and sentenced to consecutive terms of sixty years for the murder and eight years for the robbery. The trial court also ordered that these sentences run consecutive to a separate sentence for an unrelated conviction in another court. In this direct appeal, the defendant claims that the evidence was insufficient to support his convictions and that the sentence consecutive to the unrelated conviction was error.

¶2An appellate claim of insufficient evidence will prevail if, considering the probative evidence and reasonable inferences that support the judgment, and without weighing evidence or assessing witness credibility, we conclude that no reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Case v. State, 458 N.E.2d 223, 226 (Ind.1984); Loyd v. State, 272 Ind.404, 407, 398 N.E.2d 1260, 1264 (1980), cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

¶3The evidence supporting the judgment reveals that the defendant spent the evening of October 12, 1995, with two other men, Carlton Holcomb and Gregory Ellis, visiting various clubs and driving around. While driving near the Eagle Terrace Apartment Complex, the defendant noticed Edward White’s car, a white Buick Park Avenue with gold-colored rims. The defendant stated that he wanted to get the rims from it. Ellis, who was driving at the time, stopped at a corner to let the defendant out. A short time later, Ellis and Holcomb decided to try to stop the defendant. As they backed around the comer, Holcomb saw a flash and heard a shot. The defendant then pulled up behind them, driving White’s car. The three men drove away, stopped briefly at a hotel parking lot, and then drove to the area where police eventually found the victim’s car. Ellis and Holcomb helped the defendant strip the car of three rims, the radio, and the battery. The men then placed them in the trunk of the car Ellis was driving. Holcomb testified that, while driving away from the victim’s car, the defendant admitted that “he walked up behind him and shot him.” Record at 232. A forensic pathologist testified that White’s death was caused by a gunshot to the back of the head. The police technician recovered fingerprints from several items found in the ear and from the outside of the car. A fingerprint analyst identified the defendant’s fingerprints on the ear and also identified fingerprints of both Holcomb and Ellis either on the car or on items found with the ear.

¶4The defendant offered an alibi witness at trial and attempted to portray Ellis and Holcomb as the perpetrators, explaining his own fingerprints on the car by offering the excuse that he later helped them strip the ear after the crime had been committed. He essen*446tially asks us to reweigh the evidence, which we cannot undertake on appellate review. There was sufficient evidence to support the jury’s conclusion that the defendant committed the murder and robbery.

¶5The defendant next contends that the trial court had no authority to impose the sentences in this case consecutive to the sentence in a separate, unrelated case. The applicable statute provides, in relevant part: “The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time.” IND.Code § 35-50-l-2(c) (Supp.1996). We have noted that this portion of the statute “essentially overturned the contemporaneity requirement” of previous cases. Weaver v. State, 664 N.E.2d 1169, 1170 (Ind.1996). In Weaver, the trial court imposed a sentence and ordered that it be served consecutive to sentences imposed in unrelated eases tried in different counties. Because the statute had not yet gone into effect, the trial court lacked authority to impose the consecutive sentence. Id. at 1170-71. Here, however, the defendant was sentenced on August 9, 1996, after the statutory provision went into effect. The trial court therefore had authority to impose this sentence consecutive to the sentence in another case even though the two sentences were not contemporaneously imposed.

¶6The convictions and sentence of the defendant are affirmed.

SHEPARD, C.J., and BOEHM, J., concur.SULLIVAN, J., dissents with separate opinion in which SELBY, J., concurs.
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