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State v. Ruff11/4/1997
act that defendant told the female, after he already driven her to a field and raped her, that he would not have brought a gun if he had known that "it was going to be that easy" clearly evidences, in our opinion, the "cool state of blood" in which defendant was in when he drove his pick-up truck to Lutz Oil Company in the middle of the day on 13 June 1995. Contrary then to defendant's assertion, the inescapable Conclusion is that the female, although a "random victim", was still the subject of defendant's premeditated and deliberated acts. That the female was in a sense, "random", does not alter the Conclusion that defendant's actions towards her were not. Accordingly, we hold that the trial court committed no error in finding, as an aggravating factor, that defendant kidnaped and raped the female after a period of premeditation and deliberation.
II.
Next, defendant contends that the trial court erred in not finding as a mitigating factor that he was a person of good character and reputation in his community. Evidence of this factor, defendant argues, was uncontradicted, substantial and inherently credible, thereby warranting mitigation of his sentence. We disagree.
When evidence in support of a mitigating factor is uncontradicted, substantial and inherently credible, it is error for the trial court to simply ignore it. When a defendant argues that his evidence is sufficient to compel a finding of a mitigating factor, he bears the same burden of persuasion as a party seeking a directed verdict. He must demonstrate that "the evidence so clearly established the fact in issue that no reasonable inferences to the contrary can be drawn, and that the credibility of the evidence is 'manifest as a matter of law.'"
In Freeman, our Supreme Court applied the foregoing principles to uphold a trial court's refusal to find, as a mitigating factor, that the defendant was a person of good character or reputation in his community. The defendant in that case, who had been convicted of burglary and assault with a deadly weapon, brought forth several witnesses during his sentencing hearing to show his good character and reputation. Each witness testified to the fact that the defendant was not a violent person, that he was well liked and that he did not get into trouble. Despite the testimony of these witnesses, our Supreme Court held that the defendant's evidence, when considered in light of his prior conviction record, " not rise to the level of being uncontradicted, substantial and manifestly credible." According to the court, such a finding could not be made because defendant's witnesses were "either relatives, close friends or persons who had little knowledge of defendant's general character and reputation in the community."
The evidence before us in the instant case is similar to that which was before the court in Freeman. Here, defendant, like the defendant in Freeman, had a prior conviction on his record - in this case, assault with a deadly weapon - and all but three of the ten character witnesses put on by defendant were either his relatives or close friends. In addition, many of the witnesses who testified as to defendant's "good character" lived in different towns from defendant, making their knowledge of defendant's general character and reputation in the community somewhat suspect. Furthermore, our review of the testimony of defendant's character witnesses reveals that, for the most part, these witnesses testified as to defendant's lack of bad character and his good work habits more so than they did his good character and reputation in the community.
Given the nature of defendant's character evidence and the fact that defendant was previousl
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