ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Pinnow Gregory F. Zoeller
Greenwood, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
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In the FILED
Indiana Supreme Court Mar 22 2010, 9:32 am
_________________________________
CLERK
of the supreme court,
court of appeals and
No. 62S00-0809-CR-486 tax court
KYLE KIPLINGER,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Perry Circuit Court, No. 62C01-0608-MR-789
The Honorable Lucy Goffinet Judge
_________________________________
On Direct Appeal
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March 22, 2010
Sullivan, Justice.
Defendant Kyle Kiplinger appeals his sentence of life in prison without possibility of pa-
role imposed by the trial court after the jury failed to reach a unanimous sentencing recommen-
dation. Because there is no jury finding of record that the State proved the charged aggravating
circumstance beyond a reasonable doubt, the judge did not have authority under the Sixth
Amendment to impose a sentence of life without parole. We vacate the trial court’s sentence and
remand for resentencing.
Background
The evidence supporting the verdicts in this case indicates that Defendant Kyle Kiplinger
attended a party where he and others engaged in drinking and smoking marijuana. Darrick
O’Brien and Bobbi Jo Braunecker were also in attendance. At the end of the night, Defendant
and O’Brien were asked to take Braunecker home because she appeared intoxicated. The three
left the apartment together at about 2:00 a.m. on August 17, 2006.
After leaving the apartment, O’Brien and Defendant drove Braunecker around and even-
tually drove her behind a flood wall in Tell City. O’Brien said he wanted to have sex with Brau-
necker and told Defendant to knock her unconscious. Defendant punched Braunecker in the
head and started choking her; the two men then dragged her out of the vehicle and carried her
down by the river. O’Brien pulled Braunecker’s pants down and kicked her in the head several
times. Defendant stated that O’Brien then had sex with Braunecker. O’Brien then struck her in
the head several times with a 75 to 80 pound rock. The two left Braunecker’s body in the river.
On August 18, a conservation officer recovered Braunecker’s badly decomposed body
from the Ohio River. Her pants were pulled down and she was not wearing a shirt. A medical
examiner determined that Braunecker was murdered and that the cause of death was from mul-
tiple injuries sustained in a physical assault. Her body was too decomposed for a rape evaluation
or to obtain DNA.
On August 20, the police arrested O’Brien and Defendant. The State charged Defendant
with murder,1 knowingly or intentionally killing Braunecker, and felony murder,2 killing Brau-
necker while committing or attempting to commit rape. The State sought a sentence of life with-
1
Ind. Code § 35-42-1-1(1).
2
I.C. § 35-42-1-1(2).
2
out parole based on the qualifying aggravating circumstance that the Defendant intentionally
killed Braunecker while committing or attempting to commit rape.3
The jury found Defendant guilty of murder and felony murder. The jury reconvened for a
hearing on the State’s request for a sentence of life without the possibility of parole. The trial
court instructed the jury that before it could consider recommending a life without parole sen-
tence, it must find that the State had proved beyond a reasonable doubt that Defendant intention-
ally killed Braunecker while committing or attempting to commit rape. The trial court also in-
formed the jury that it would provide verdict forms as to each aggravating circumstance where
there was unanimous agreement. The record is unclear as to whether the jury was in fact pro-
vided the special verdict form.
Following the sentencing hearing, the jury returned a special verdict form stating, “the
State of Indiana has proven that the charged aggravating circumstance that exist [sic] outweigh
any mitigating circumstances herein.” (Appellant’s App. 545.) The jury did not return a special
verdict form finding the aggravating circumstance proved beyond a reasonable doubt; the jury
was also unable to reach a unanimous decision regarding a sentencing recommendation. The
trial court thereupon imposed a sentence of life without parole.
A sentence of life without the possibility of parole has been imposed under Indiana Code
section 35-50-2-9; therefore, we have jurisdiction over this direct appeal pursuant to Indiana Ap-
pellate Rule 4(A)(1)(a).
3
I.C. § 35-50-2-9(b)(1)(F).
3
Discussion
I
A
The trial court imposed a sentence of life without the possibility of parole on Defendant
after the jury was unable to reach a unanimous decision regarding a sentencing recommendation.
The Sixth Amendment to the United States Constitution prohibits a judge from imposing a sen-
tence of life without parole in such circumstances unless the jury has determined that each quali-
fying aggravating circumstance has been proven beyond a reasonable doubt. Bostick v. State,
773 N.E.2d 266, 273 (Ind. 2002) (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).
Defendant contends that the jury did not make the requisite determination that the sole
charged aggravating circumstance, intentionally killing while committing or attempting to com-
mit rape, had been proven beyond a reasonable doubt. The State responds that the jury’s find-
ings were adequate for this purpose.
The record contains no specific written finding that the jury concluded beyond a reasona-
ble doubt that Defendant intentionally killed Braunecker while committing or attempting to
commit rape. Defendant bolsters his argument by pointing to language in the Indiana sentencing
statute, Indiana Code section 35-50-2-9(d), that he says requires such findings to be in writing on
a special verdict form:
The court shall instruct the jury that, in order for the jury to recommend to the
court that . . . life imprisonment without parole should be imposed, the jury must
find at least one (1) aggravating circumstance beyond a reasonable doubt as de-
scribed in subsection (k) and shall provide a special verdict form for each aggra-
vating circumstance alleged.
The State responds that the jury determined that the State had proved the charged aggra-
vating circumstance outweighed the mitigating circumstances on a “special verdict form.” This
4
determination, the State maintains, was sufficient to demonstrate that the jury had found an ag-
gravating circumstance beyond a reasonable doubt.
B
We have decided a number of cases where the jury unanimously recommended a sen-
tence of life without parole (or death) without making an explicit finding that the State had
proved a charged aggravating circumstance beyond a reasonable doubt. In such cases, we have
held that a jury’s guilt phase verdict established the existence of the requisite aggravating cir-
cumstances to meet the requirements of the Sixth Amendment enunciated in Apprendi. See, e.g.,
Clark v. State, 808 N.E.2d 1183, 1196 (Ind. 2004); Williams v. State, 793 N.E.2d 1019, 1028
(Ind. 2003); Brown v. State, 783 N.E.2d 1121, 1126 (Ind. 2003). But our decisions never turned
on the argument the State makes here.
In Brown, for example, the jury did not explicitly find that the State had proved the
charged aggravating circumstance beyond a reasonable doubt, yet the jury recommended that the
defendant be sentenced to life without parole. 783 N.E.2d at 1126. The aggravating circums-
tance that made the defendant eligible for a sentence of life without parole was that he had com-
mitted multiple murders.4 Id. We noted that the jury’s verdict in the guilt phase, finding the de-
fendant guilty of two murders, necessarily established that the jury had found beyond a reasona-
ble doubt that the defendant had committed more than one murder. Id.
In contrast, the jury in this case was unable to reach a unanimous recommendation on the
life sentence, and the jury’s guilt phase verdicts do not necessarily establish that the aggravating
circumstance was proved beyond a reasonable doubt. The jury found Defendant guilty of (1)
knowing or intentional murder and (2) felony murder where rape or attempted rape was the pre-
dicate felony. The charging statement employed the disjunctive “or” – knowingly “or” inten-
tionally – killed another human being. The jury could have rendered these guilty verdicts with-
out finding that Defendant intentionally killed Braunecker while committing or attempting to
4
I.C. § 35-50-2-9(b)(8).
5
commit rape. Thus, the guilt phase verdicts in this case do not establish the charged aggravating
circumstance of an intentional killing while committing or attempting to commit rape.
The jury found that the State had proved the charged aggravating circumstance out-
weighed the mitigating circumstances. We acknowledge that it would be permissible to infer
that the jury unanimously found the existence of the charged aggravating circumstance from this
finding. We are unable, however, to infer that the jury found beyond a reasonable doubt that the
State had proved the aggravating circumstance. The most plausible inference may well be that
the jury did not unanimously find beyond a reasonable doubt that the State had proven that De-
fendant intentionally killed Braunecker while committing or attempting to commit rape. After
all, the jury had been correctly instructed that if it did not unanimously find beyond a reasonable
doubt that Defendant intentionally killed Braunecker while committing or attempting to commit
rape, it must recommend against the life without parole sentence. The jury did not recommend a
sentence of either life without parole or a term of years.
Following the sentencing hearing, the judge issued the following Judgment Order that
reads in pertinent part:
Due to the Jury’s finding on July 15, 2008, that the State of Indiana had proven
that the charged aggravating circumstance that existed outweighed any mitigating
circumstances, to-wit: that Kyle S. Kiplinger killed another human being, to- wit:
Bobbi Jo Braunecker, while committing or attempting to commit rape, the aggra-
vating circumstances enumerated by the Court in the record at the Sentencing
Hearing, and the Court’s finding that the aggravating circumstances clearly and
substantially outweigh the mitigating circumstances presented by Defense Coun-
sel and found by the Court, the Court believes that a sentence in excess of the ad-
visory sentence for Murder is justified in this cause.
(Appellant’s App. 29.) The trial court sentenced the Defendant to life without parole.
Defendant’s sentence to life without parole pursuant to Indiana Code section 35-50-2-9
was based on facts extending the sentence beyond the maximum authorized by the jury’s verdict
finding him guilty of murder.5 The Sixth Amendment required the jury to find those facts to ex-
5
I.C. § 35-50-2-3(a).
6
ist beyond a reasonable doubt. Ring v. Arizona, 536 U.S. 584, 609 (2002); Apprendi, 530 U.S.
at 490. For the reasons set forth above, we conclude that the jury made no such finding. Nor did
the jury’s verdicts in the guilt phase necessarily establish that the jury found the aggravating cir-
cumstance beyond a reasonable doubt.
When a jury is unable to reach a unanimous decision as to the existence of an aggravating
circumstance and the Sixth Amendment prohibits the trial judge from imposing a sentence of life
without possibility of parole under subsection 9(f)6 of the sentencing statute, a new penalty phase
trial is required. State v. Barker, 809 N.E.2d 312, 316 (Ind. 2004) (citing Bostick, 773 N.E.2d at
273-74). We vacate the trial court’s sentence of life without parole and remand for resentencing.
If the State elects to dismiss its request for a life sentence, the trial court may resentence the de-
fendant to a term of years as authorized by Indiana Code section 35-50-2-3(a). Otherwise, the
trial court shall convene a new penalty phase jury and conduct further proceedings pursuant to
Indiana Code section 35-50-2-9.
II
Defendant makes two additional arguments. First, Defendant contends that the State did
not present sufficient evidence to prove beyond a reasonable doubt that Defendant intentionally
killed Braunecker while committing or attempting to commit rape. Specifically, he asserts that
the evidence was insufficient to support the rape or attempted rape element of the felony murder
charge and the rape or attempted rape component of the aggravating circumstance. In reviewing
a sufficiency of the evidence claim, this Court neither reweighs the evidence nor assesses the
credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, we
look to the evidence most favorable to the verdict and draw reasonable inferences therefrom. Id.
6
Indiana Code section 35-50-2-9(f) provides: “If a jury is unable to agree on a sentence recommendation
after reasonable deliberations, the court shall discharge the jury and proceed as if the hearing had been to
the court alone.”
7
The rape statute provides that a person commits rape when a person knowingly or inten-
tionally has sexual intercourse with a member of the opposite sex by compelling the other person
by force or imminent threat of force. I.C. § 35-42-4-1. Indiana Code section 35-41-5-1(a) pro-
vides that “[a] person attempts to commit a crime when, acting with the culpability required for
commission of the crime, he engages in conduct that constitutes a substantial step toward com-
mission of the crime.” A substantial step is any overt act beyond mere preparation and in fur-
therance of the intent to commit the offense. Jackson v. State, 683 N.E.2d 560, 566 (Ind. 1997).
And an offense is deemed committed when a person knowingly or intentionally aids, induces, or
causes another person to commit that offense. I.C. § 35-41-2-4.
Here, the evidence reveals that Defendant knew that O’Brien wanted to have sex with
Braunecker. The evidence also demonstrates that Defendant assisted O’Brien in his effort to
overcome Braunecker so that O’Brien could have sex with her. Defendant hit, punched, and
choked Braunecker. He helped O’Brien drag Braunecker out of the vehicle and watched
O’Brien pull down her pants; Defendant stated that O’Brien had sex with Braunecker. In light of
these facts, the jury could properly infer that Defendant’s active participation went beyond mere
preparation and that substantial steps were taken with a clear intent to commit or attempt to
commit rape.
Second, Defendant maintains that the trial court’s sentencing order did not comply with
the special requirements for sentencing orders mandated by Harrison v. State, 644 N.E.2d 1243,
1262 (Ind. 1995), after remand, 659 N.E.2d 480 (Ind. 1995). We have observed that a Harrison-
style order would be out of place under the current sentencing statute because the judge is re-
quired to follow the jury’s sentencing recommendation. Pittman v. State, 885 N.E.2d 1246, 1254
(Ind. 2008). But we continue to require such an order when the judgment was entered on a guilty
plea or after a bench trial, or when the court assumes control of sentencing after a jury is unable
to agree on a recommendation after reasonable deliberation. Id. The sentence imposed in this
case is vacated, so it is unnecessary to address the adequacy of the sentencing order.
8
Conclusion
We vacate the trial court’s sentence and remand this case for a new sentencing proceed-
ing.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
9