Young v. State, 696 N.E.2d 386 (Ind. 1998). · Go Syfert
Young v. State, 696 N.E.2d 386 (Ind. 1998). Cases Citing This Book View Copy Cite
58 citation events (45 in the last 25 years) across 3 distinct courts.
Strongest positive: State v. Thompson (scctapp, 2017-06-14)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 32 distinct citers. How cited ↗
discussed Cited as authority (quoted) State v. Thompson
S.C. Ct. App. · 2017 · quote attribution · 1 verbatim quote · confidence low
a caller's identity can be established by circumstantial evidence, and need not be proven beyond a reasonable doubt.
discussed Cited as authority (rule) James A. Camp v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2019 · signal: cf. · confidence medium
Cf. Young v. State, 696 N.E.2d 386, 391 (Ind. 1998) (sentence manifestly unreasonable where trial court failed to consider defendant’s mental disabilities). [23] Second, we find that Camp’s expression of remorse reflects well on his character.
discussed Cited as authority (rule) Leon C. Sieg v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2016 · confidence medium
However, in Young v. State, 696 N.E.2d 386, 389 (Ind. 1998), the supreme court stated that “[a] telephone call to a 911 system may not always require such authentication where the point of submitting it as evidence is not really to establish the identification of the caller.” In the present case, the caller’s identity was not at issue.
discussed Cited as authority (rule) Michael Francis Corley v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2016 · confidence medium
Corley notes that it has been held that “the identities of both parties must be authenticated before admitting a telephone call.” Young v. State, 696 N.E.2d 386, 389 (Ind. 1998) (citing King v. State, 560 N.E.2d 491, 494 (Ind. 1990)); see also Johnson v. State, 699 N.E.2d 746, 749 (Ind. Ct. App. 1998) (noting that a recording is not admissible unless the voices contained thereon are identified).
cited Cited as authority (rule) Joshua Frierson v. State of Indiana
Ind. Ct. App. · 2014 · confidence medium
Young v. State, 696 N.E.2d 386, 390-91 (Ind. 1998) (quoting Lottie v. Smith, 406 N.E.2d 632, 637 (Ind. 1980)).
discussed Cited as authority (rule) St. Margaret Mercy Healthcare Centers, Inc. v. Poland (2×)
Ind. Ct. App. · 2005 · confidence medium
It has long been held that the trial court has broad discretion in conducting a trial and the giving of instructions, and the decision to give an instruction will "only be reversed on a showing of abuse of that discretion." Centennial Mortgage, Inc. v. Blumenfeld, 745 N.E.2d 268, 278 (Ind.Ct.App.2001) (citing Young v. State, 696 N.E.2d 386, 389 (Ind.1998)).
discussed Cited as authority (rule) McCarty v. State
Ind. Ct. App. · 2004 · confidence medium
In Young v. State, 696 N.E.2d 386, 391 (Ind.1998), Young argued his 195-year sentence was manifestly unreasonable because the trial court failed to consider as a mitigating factor his mental disabilities.
cited Cited as authority (rule) Slate v. State
Ind. Ct. App. · 2003 · confidence medium
Young v. State, 696 N.E.2d 386, 389-90 (Ind.1998).
discussed Cited as authority (rule) Smith v. State (2×)
Ind. Ct. App. · 2002 · confidence medium
“Jury instructions are solely within the discretion of the trial court; we will reverse only if the court abuses that discretion.” Young v. State, 696 N.E.2d 386, 389 (Ind.1998).
cited Cited as authority (rule) Smallwood v. State
Ind. · 2002 · confidence medium
The defendant highlights Young v. State, 696 N.E.2d 386, 391 (Ind.1998) as support of his contention.
cited Cited as authority (rule) Hall v. State
Ind. Ct. App. · 2002 · confidence medium
Young v. State, 696 N.E.2d 386, 389 (Ind.1998).
cited Cited as authority (rule) Smith v. State
Ind. · 2002 · confidence medium
Young v. State, 696 N.E.2d 386, 389 (Ind.1998).
cited Cited as authority (rule) Hero v. State
Ind. Ct. App. · 2002 · confidence medium
Young v. State, 696 N.E.2d 386, 389 (Ind.1998).
cited Cited as authority (rule) Williams v. State
Ind. Ct. App. · 2001 · confidence medium
Young v. State, 696 N.E.2d 386, 389 (Ind.1998).
cited Cited as authority (rule) Castor v. State
Ind. · 2001 · confidence medium
Young v. State, 696 N.E.2d 386, 391 (Ind.1998).
discussed Cited as authority (rule) Turner v. State (2×) also: Cited "see"
Ind. Ct. App. · 2001 · confidence medium
Young v. State, 696 N.E.2d 386, 389 (Ind.1998).
discussed Cited as authority (rule) Jimmerson v. State
Ind. Ct. App. · 2001 · signal: cf. · confidence medium
Cf. Young v. State, 696 N.E.2d 386, 391-92 (Ind.1998) (holding trial court erred in giving no mitigating weight to evidence of defendant's mental retardation where record clearly indicated he functioned with the mental capacity of a child and he had been found to be mentally retarded under the procedures of Indiana Code Chapter 35-86-9, thus precluding imposition of the death penalty or life without parole).
discussed Cited as authority (rule) Conrad v. State (2×)
Ind. Ct. App. · 2001 · confidence medium
Young v. State, 696 N.E.2d 386, 389-90 (Ind.1998).
discussed Cited as authority (rule) Kilpatrick v. State
Ind. · 2001 · confidence medium
See Albrecht v. State, 737 N.E.2d 719, 731 (Ind.2000); McGregor v. State, 725 N.E.2d 840, 842 (Ind.2000); Warren v. State, 725 N.E.2d 828, 834 (Ind.2000); Turnley v. State, 725 N.E.2d 87, 89 (Ind.2000); Dobbins v. State, 721 N.E.2d 867, 874-75 (Ind.1999); Ford v. State, 718 N.E.2d 1104, 1105 (Ind.1999); Barber v. State, 715 N.E.2d 848, 851-52 (Ind.1999); Young v. State, 696 N.E.2d 386, 390 (Ind.1998). 6 .
cited Cited as authority (rule) Centennial Mortgage, Inc. v. Blumenfeld
Ind. Ct. App. · 2001 · confidence medium
Young v. State, 696 N.E.2d 386, 389 (Ind.1998).
discussed Cited as authority (rule) Albrecht v. State
Ind. · 2000 · confidence medium
See McGregor v. State, 725 N.E.2d 840, 842 (Ind.2000); Turnley v. State, 725 N.E.2d 87, 89 (Ind.2000); Williams v. State, 724 N.E.2d 1093, 1094-95 (Ind.2000); Dobbins v. State, 721 N.E.2d 867, 874-75 (Ind.1999); Ford v. State, 718 N.E.2d 1104, 1105 (Ind.1999); Barber v. State, 715 N.E.2d 848, 851-52 (Ind.1999); Williams v. State, 714 N.E.2d 644, 650 (Ind.1999), cert. denied, — U.S. -, 120 S.Ct. 1195 , 145 L.Ed.2d 1099 (2000); Young v. State, 696 N.E.2d 386, 390 (Ind.1998); Tobias v. State, 666 N.E.2d 68, 69 (Ind.1996).
cited Cited as authority (rule) Chambers v. State
Ind. · 2000 · confidence medium
Young v. State, 696 N.E.2d 386, 389-90 (Ind.1998).
cited Cited as authority (rule) Ellis Thomas v. State
Ind. · 2000 · confidence medium
Young v. State, 696 N.E.2d 386, 389 (Ind.1998); King v. State, 560 N.E.2d 491, 494-95 (Ind.1990).
cited Cited as authority (rule) Southport Little League v. Vaughan
Ind. Ct. App. · 2000 · confidence medium
Young v. State, 696 N.E.2d 386, 389 (Ind.1998).
discussed Cited as authority (rule) McGregor v. State
Ind. · 2000 · confidence medium
See, e.g., Tumley v. State, 725 N.E.2d 87, 89 (Ind.); Williams v. State, 724 N.E.2d 1093, 1094-95 (Ind.2000); Dobbins v. State, 721 N.E.2d 867, 874-75 (Ind.1999); Ford v. State, 718 N.E.2d 1104, 1105 (Ind.1999); Barber v. State, 715 N.E.2d 848, 851-52 (Ind.1999); Williams v. State, 714 N.E.2d 644, 650 (Ind.1999), cert. denied — U.S. -, 120 S.Ct. 1195 , 145 L.Ed.2d 1099 (2000); Young v. State, 696 N.E.2d 386, 390 (Ind.1998); Tobias v. State, 666 N.E.2d 68, 69 (Ind.1996).
cited Cited as authority (rule) Geiger v. State
Ind. Ct. App. · 1999 · confidence medium
Young v. State, 696 N.E.2d 386, 389 (Ind.1998).
discussed Cited as authority (rule) Ford v. State
Ind. · 1999 · confidence medium
This instruction is a near verbatim recitation of a pattern jury instruction developed by the Indiana Judges Association and approved by this Court in Young v. State, 696 N.E.2d 386, 390 (Ind.1998), over a defendant’s objection to the same sentence.
discussed Cited as authority (rule) Allen v. State (2×)
Ind. Ct. App. · 1999 · confidence medium
See Bluck, 716 N.E.2d at 514 ; Young v. State, 696 N.E.2d 386, 391 (Ind.1998) (although weight need not be given to every mitigating factor, the trial court may not ignore mitigating factors that are clearly supported by the record).
discussed Cited "see" Jerry E Russell, Sr. v. State of Indiana
Ind. · 2024 · signal: see · confidence high
See Young v. State, 696 N.E.2d 386 , 391–92 (Ind. 1998) (holding that the trial court should have considered the defendant’s diminished mental capacity as a mitigating factor after the trial court concluded the defendant’s intellectual disability precluded an LWOP sentence).
discussed Cited "see" Donald W. Campbell v. State of Indiana
Ind. Ct. App. · 2013 · signal: see · confidence high
See Young v. State, 696 N.E.2d 386, 391 (Ind. 1998) (rejecting claim that motive instruction diluted State’s burden of proof of intent).
discussed Cited "see" Hollen v. State (2×)
Ind. Ct. App. · 2001 · signal: see · confidence high
See Young v. State, 696 N.E.2d 386, 391-392 (Ind.1998) (finding the defendant's enhanced sentence manifestly unreasonable because the trial court failed to find that the defendant's mental retardation was a significant mitigating factor); Mayberry v. State, 670 N.E.2d 1262, 1270 (Ind.1996) (revising the defendant's sentence because the trial court declined to find the defendant's mental illness mitigating, when the defendant was found to be mentally ill when she committed her crime).
discussed Cited "see" Johnson v. State
Ind. Ct. App. · 1998 · signal: see · confidence high
See Young v. State (1998) Ind., 696 N.E.2d 386, 389 (circumstantial evidence sufficient for authentication where authorities responding to 911 call confirm substantive portions of events heard during call).
Retrieving the full opinion text from the archive…
Tracey A. YOUNG, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below)
71S00-9702-CR-158.
Indiana Supreme Court.
Jun 29, 1998.
696 N.E.2d 386
1998 Ind. LEXIS 87
1998 WL 344933
Anthony V. Luber, South Bend, for Appellant., Jeffrey A. Modisett, Attorney General, Preston W. Black, Deputy Attorney General, Indianapolis, for Appellee.
Shepard, Sullivan, Selby, Boehm, Dickson.
Cited by 38 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 58%
Citer courts: Court of Appeals of South Caro… (1)
SHEPARD, Chief Justice.

A jury found appellant Tracey A. Young guilty of burglary, a class B felony; [1] two counts of attempted murder, class A felonies; [2] and murder, a felony. [3] The jury also found him to be a habitual offender. [4] The trial court imposed a sentence of one hundred ninety-five years.

On direct appeal, Young now raises four issues;

I. Whether a 911 emergency call was authenticated;
II. Whether the court erred by allowing a child victim to show her wounds on the witness stand and by admitting a photograph of that child at the crime scene;
III. Whether several of the jury instructions were erroneous; and
IV. Whether the sentenced was manifestly unreasonable.

Facts

The evidence presented at trial shows that, on October 23, 1995, a 911 emergency dispatcher in South Bend received a call at approximately 10:56 p.m. When no voice was heard, he checked his caller identification system which listed the name of Allison Garner, her address at 1610 Dunham Street in South Bend and her telephone number.

The dispatcher then dialed Garner’s residence and reached the answering machine. He stated that an officer would be sent if the phone was not answered, and a female voice answered the phone. The woman frantically screamed something about her children and the name “Tracey.” The dispatcher also heard a man’s voice in the background and the sound of breaking glass.

Minutes later, South Bend Police Officer Scott Ross arrived at 1610 Dunham Street. Upon noticing the front door open and its glass shattered, he entered the house and found Allison Rochelle Garner and her children, Kenneth Garrón and Allison Latifah Garner, lying on the living room floor covered in blood. Kenneth was crying for help and Allison Latifah was kneeling by her unresponsive mother. Kenneth said that a man named “Tracy” shot all three of them. [5] Al[*389] though 'the two children survived their wounds, their mother died from a gunshot wound to the abdomen.

Officer Charles Eakins, an evidence technician, arrived at approximately 11:30 p.m. He recovered fingerprints from the broken glass of the front door and from a book shelf in the living room. These fingerprints belonged to Tracey Young. Officer Eakins also found four casings and two bullets that were fired from the same gun.

I.Authentication of 911 Call

Young claims that the trial court erred in admitting the recorded 911 call between an emergency dispatcher and Allison Garner. He says the call was not properly authenticated under Indiana Rule of Evidence 901. We disagree.

Generally, the identities of both parties must be authenticated before admitting a telephone call. King v. State, 560 N.E.2d 491, 494 (Ind.1990). A caller’s identity can be established by circumstantial evidence, and need not be proven beyond a reasonable doubt. Lock v. State, 567 N.E.2d 1155, 1158 (Ind.1991) (citing Reed v. State, 491 N.E.2d 182, 186 (Ind.1986)), cert. denied, 503 U.S. 991, 112 S.Ct. 1686, 118 L.Ed.2d 400 (1991); Ashley v. State, 493 N.E.2d 768, 774 (Ind.1986).

A telephone call to a 911 system may not always require such authentication where the point of submitting it as evidence is not really to establish the identification of the caller. Here, the point was largely to demonstrate where the call originated and how the police discovered the crime scene. The foundation here was adequate for that purpose.

In this case, the identity of Allison Garner as the caller can be established by several circumstances surrounding the call. The dispatcher testified that he received a non-responsive call on October 23,1995. His caller identification equipment listed Allison Garner’s name, phone number, and address. He then dialed that number and a woman answered the phone. The voice frantically screamed something about her children and the name “Tracey.” He also heard a man’s voice and breaking glass. When police arrived moments later, they found three victims and broken glass on the front door. One of these victims was indeed Allison Garner. Considering this evidence, the state sufficiently authenticated the fact that Allison Garner was the woman who answered the phone.

II.Demonstration of Child’s Wounds and Photograph

Young also objects to the display of Allison Latifah’s wounds on the witness stand and admittance of a photograph showing that child at the crime scene. He contends this evidence was cumulative and prejudicial, and thus should not have been admitted.

Appellant cites Stone v. State, 536 N.E.2d 534 (Ind.Ct.App.1989) for the proposition that evidence should be excluded if it induces jurors to decide eases on an improper basis, usually an emotional one. Id. at 539 (citing Cook v. Hoppin, 783 F.2d 684, 689 (7th Cir.1986)).

We agree that courts must be cautious of inflammatory and cumulative evidence that impermissibly sways the jury. In this case, however, after careful consideration, the trial judge approved the display and cited Wolfe v. State, 562 N.E.2d 414 (Ind.1990) for the proposition that young children could be used to illustrate testimony concerning their injuries, if their age prevents them from testifying. Id. at 420-21. Although the photograph of the child adds to the cumulative effect, we are not persuaded that it was so prejudicial as to improperly influence the jury. We find no reversible error.

III.Jury Instructions

Young contests several jury instructions given by the trial court.

Jury instructions are solely within the discretion of the trial court; we will reverse only if the court abuses that discretion. Tanner v. State, 471 N.E.2d 665, 667 (Ind.1984). Such abuse, however, does not occur if the instructions, considered as a[*390] whole and in reference to each other, do not mislead the jury as to the applicable law. Daniel v. State, 582 N.E.2d 364, 373 (Ind.1991).

Young claims the court erred by giving its Preliminary Instruction No. 6 on reasonable doubt, rather than using the instruction he tendered. He alleges that the court’s instruction was argumentative and confusing by using the words “imagination or speculation” in the first paragraph and “absolute certainty” in the second paragraph. Further, he argues the instruction did not establish the requisite level of certainty needed for reasonable doubt.

The actual instruction given by the court read:

The State has the burden of proving the Defendant guilty beyond a reasonable doubt.-
A reasonable doubt is a fair, actual and logical doubt that arises in your mind after an impartial consideration of all the evidence and circumstances in the case. It should be a doubt based upon reason and common sense and not a doubt based upon imagination or speculation.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the Defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the Defendant is guilty of the crime charged, you should find [him/her] guilty. If on the other hand, you think there is a real possibility that [he/she] is not guilty, you should give [him/her] the benefit of the doubt and find [him/her] not guilty.

(R. at 104).

The defendant’s proposed final instruction stated:

A reasonable doubt is a fair, actual and logical doubt that arises in your mind after an impartial consideration of the evidence and circumstances in the case. It should be a doubt based on reason and common sense.
To prove .the defendant’s guilt of the elements of the crimes charged beyond a reasonable doubt, the evidence must be such that it would convince you of the truth of it to such a degree of certainty that you would feel safe to act upon such conviction without hesitation in a matter of the highest concern and importance to you when you are not required to act at all.

(R. at 122).

These two instructions are substantively similar. Because trial courts are not required to give instructions already covered by other instructions, the court did not abuse its discretion in rejecting Young’s instruction. Schweitzer v. State, 552 N.E.2d 454, 457 (Ind.1990) (citing Carter v. State, 512 N.E.2d 158, 168 (Ind.1987)).

Although Young challenges the words “imagination or speculation” and “absolute certainty,” we have approved using words of this very sort. See Winegeart v. State, 665 N.E.2d 893, 902 (Ind.1996) (the words “absolute certainty” were approved by our authorization and recommendation of the use of the Federal Judicial Center, Pattern Criminal Jury Instruction 18-19 (1987) on reasonable doubt); Hoskins v. State, 441 N.E.2d 419, 426 (Ind.1982) (using the words “imagination and speculation” in a reasonable doubt instruction was not error). Finally, the instruction sufficiently establishes the requisite degree of certainty — it requires the jury to be “firmly convinced” of the defendant’s guilt based on the evidence. Winegeart, 665 N.E.2d at 902.

The second instruction, that Young challenges is the instruction directing jurors “to fit the evidence to the presumption that the Defendant is innocent and the theory that every witness is telling the truth.” (R. at 105,151). Young claims the instruction is prejudicial because it urges the jury to assume everyone is telling the truth regardless of whether he presents witnesses or testifies.

Although' we approved this instruction in Lottie v. State, 273 Ind. 529, 534-35, 406 N.E.2d 632, 637 (1980), Young distinguishes that case because, unlike the defendant in Lottie, he did not testify. This distinction is unavailing. The instruction merely “tells the[*391] jury that they are to test the evidence as they hear it so that they may then fit that evidence to the presumption that the defendant is innocent.” Id. It does not mandate that jurors are to believe every witness irrespective of the defendant’s presumption of innocence. This instruction is not erroneous.

The trial court also instructed the jury that “[t]he intent of the defendant may be inferred from his conduct and all the surrounding facts and circumstances proved in the case.” (R. at 118, 145). Young believes this instruction suggested to the jury that, regardless of who committed the act, the intent should be attributed to him.

We previously determined that this instruction correctly states the law. See Miller v. State, 541 N.E.2d 260, 262 (Ind.1989). Contrary to Young’s assertions, the instruction did not attribute acts, or intent therefrom, to Young. It merely informed the jury that Young’s intent could be inferred from his conduct, if that conduct had been proven. The instructions taken as a whole make this abundantly clear.

Appellant also contests the court’s instruction on motive. (R. at 120, 150). Young claims it did not clarify the distinction between motive and intent, and thereby, diluted the state’s burden of proof. This instruction comes directly from Indiana Pattern Jury Instructions (Criminal) 12.27. [6] We also have approved its use in Light v. State, 547 N.E.2d 1073, 1081 (Ind.1989). As our intermediate court stated in Malone v. State, 660 N.E.2d 619 (Ind.Ct.App.1996), “the instruction does not lead us to conclude that the jury could have interpreted it as relieving the State of its burden to prove intent.” Id. at 630. We agree and find no reversible error.

IY. Unreasonableness of Sentence

Young’s final allegation of error is that his 195 year sentence was manifestly unreasonable because the trial court failed to consider his mental disabilities as a mitigating factor.

Determination of sentences are a matter of discretion for the trial court. Sims v. State, 585 N.E.2d 271, 272 (Ind.1992). When deciding to enhance a sentence, however, the court must state all significant aggravating and mitigating factors, and articulate the balancing process by which it determined that the aggravating factors outweighed the mitigating ones. Ind.Code Ann. § 35-38-1-7.1 (1998); Harris v. State, 659 N.E.2d 522, 527 (Ind.1995). Although weight need not be give to every mitigating factor, the court cannot ignore mitigating factors that are clearly supported by the record. Widener v. State, 659 N.E.2d 529, 534 (Ind.1995).

The Indiana Constitution' confers upon this Court the power to review and revise sentences. Ind.Const. art. VII, § 4. But, we will not revise a sentence unless it is “manifestly unreasonable in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 17(B); Barany v. State, 658 N.E.2d 60, 67 (Ind.1995).

Finding numerous aggravating factors and no mitigating factors, the trial court sentenced Young to twenty years for robbery, fifty years for each attempted murder, and sixty-five years for murder. (R. at 864-67). The murder and two attempted murder sentences were to be served consecutively and the robbery sentence was to run concurrent with the other terms. The court then enhanced the sentence by thirty years based on the habitual finding for a total of 195 years executed.

We find this sentence to be manifestly unreasonable. Although the court recorded no mitigating factors, the record clearly indicates that Young functions with the mental capacity of a child. (R. at 856, 861-62). In fact, during a pre-trial conference, the court found Young to be mentally retarded under Indiana Code § 35-36-9-2 (1998). Therefore, it determined that he could hot be sentenced to life without parole under Indiána Code § 35-50-2-9 (1998). (R. at 279-82).

[*392] By sentencing Young to 195 years, however, the court virtually imposed life without parole anyway.

We believe that the trial court should have given this mitigator some weight in the sentence.

Conclusion

We vacate Young’s sentence and remand this cause to the trial court with instructions to impose a twenty year sentence for robbery, fifty years for each attempted murder, sixty-five years for murder, and thirty years for the habitual finding. Although the robbery, murder, and one of the attempted murder sentences are to run consecutively, the other attempted murder conviction and the habitual enhancement are imposed concurrently. This totals 135 years executed.

SULLIVAN, SELBY and BOEHM, JJ., concur. DICKSON, J., concurs as to the conviction but dissents to the majority’s finding that the sentence is manifestly unreasonable.
5

. It is unclear whether Kenneth stated that the shooter was "Tracey Young” or "Tracey Jones.” Although Kenneth testified that he said “Tracey[*389] Young,” Officer Ross testified that he said "Tracey Jones.” (R. at 637, 679).

6

. The Indiana Pattern Jury Instructions are prepared under the auspices of the Indiana Judicial Conference Criminal and Civil Instruction Committees. Although not formally approved for use, they are tacitly recognized by Indiana Trial Rule 51(E). Winegeart v. State, 665 N.E.2d 893, 901 n. 1 (Ind.1996).