ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
Gregory L. Lewis Matthew D. Fisher
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
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In the
Indiana Supreme Court
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No. 20S00-0405-CR-235
DAVID F. LOSCH,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Elkhart Circuit Court, No. 20C01-0212-MR-162
The Honorable Terry C. Shewmaker, Judge
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On Direct Appeal
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September 29, 2005
Boehm, Justice.
David Losch pleaded guilty to the murder of his sister-in-law. He committed the murder
by dismembering the victim, which rendered him eligible for life without parole. The trial court
found certain mitigating factors, but held that they failed to outweigh the single aggravating fac-
tor of dismemberment. The sole issue in this case is the appropriateness of the sentence of life
without parole. We affirm.
Factual and Procedural Background
In the afternoon of December 23, 2002, David Losch left his home and drove to the home
of his sister-in-law, Lindsay Losch. When he arrived, Lindsay invited Losch inside and offered
him a cigarette. Losch responded by lunging at her and attempting to cut her throat with a small
knife he had brought from home. When the knife bent, Losch proceeded to choke Lindsay into
unconsciousness. Perceiving that Lindsay was still alive, Losch attempted to break her neck.
Although he partially succeeded in this, he found that she had survived this attack as well. He
then went into the kitchen, retrieved a butcher’s knife, and severed Lindsay’s head. After
decapitating Lindsay, Losch retrieved another knife from the kitchen and stabbed the body in the
chest three times, leaving the knife embedded. Losch then washed his hands in Lindsay’s sink
and called the police to report that he had just murdered a woman. In interviews with the police,
Losch admitted that he went to Lindsay’s home with the thought of killing her and recounted in
detail the events described above.
The state charged Losch with murder and sought the death penalty. Losch then pleaded
guilty under an agreement calling for a sentence from sixty-five years to life without parole. At
sentencing, the trial court found that the state proved dismemberment, which is one of the aggra-
vating circumstances rendering a person eligible for the death penalty or life without parole. The
trial court found several mitigating circumstances but held that they were outweighed by the sin-
gle aggravating circumstance of dismemberment and imposed life without parole, as recom-
mended by the state. This direct appeal followed.
The Weighing of Aggravating and Mitigating Circumstances
The sole issue raised on appeal is whether the trial court gave the proper weight to the
mitigating factors that it found to exist in this case. Losch does not argue that the trial court
failed to find mitigating factors that were established by the record. Nor does he contest the find-
ing of the single aggravating factor, dismemberment, which rendered him eligible for the sen-
tence of life without parole. Losch’s sole argument is that that the trial court committed error in
failing to find that the mitigating factors outweighed the aggravating factor. He contends that a
proper weighing of the mitigating factors would have produced a sentence of sixty-five years.
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The statute governing both life without parole and the death penalty requires that “(l) the
state has proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances
listed in subsection (b) exists; and (2) any mitigating circumstances that exist are outweighed by
the aggravating circumstance or circumstances.” Ind. Code § 35-50-2-9(l) (2004). The defen-
dant has a constitutional right to a jury trial on the issue of the existence of a statutory aggrava-
tor. Ring v. Arizona, 536 U.S. 584, 609 (2002); Apprendi v. New Jersey, 530 U.S. 466, 490
(2000); Ritchie v. State, 809 N.E.2d 258, 265 (Ind. 2004). A defendant may, however, waive his
right to a jury trial and authorize a judge to act as the fact finder. Leone v. State, 797 N.E.2d
743, 750 (Ind. 2003). In this case, Losch did that. The trial court found that the state proved the
existence of the aggravating circumstance of dismemberment beyond a reasonable doubt. Losch
does not challenge this finding.
The trial court found that Losch had established more than thirty mitigating circum-
stances. In general, these were based on Losch’s mental illness and his generally good deport-
ment prior to the crime. There were, however, issues as to both categories of mitigators and the
trial court concluded that these mitigating circumstances, taken as a whole, failed to outweigh the
single aggravating circumstance of dismemberment.
Losch argues that the trial court’s weighing of these circumstances was erroneous. We
give great deference to a court’s determination of the proper weight to assign to aggravating and
mitigating circumstances, and the appropriateness of a sentence, which is in the court’s discre-
tion. Leone v. State, 797 N.E.2d at 748. We will set aside the court’s weighing only upon the
showing of a manifest abuse of discretion. Id. Unlike the existence of aggravating circum-
stances, which must be proven beyond a reasonable doubt, the weighing of aggravators against
mitigators is not required to be proved beyond a reasonable doubt. Ritchie, 809 N.E.2d at 265,
268. In Bivins v. State, 642 N.E.2d 928, 946 (Ind. 1994), we concluded, as a matter of state law,
that the weighing of aggravators against mitigators was a balancing process, not a factual deter-
mination subject to a reasonable doubt standard. Ritchie held that Apprendi and its progeny did
not change this conclusion: “[the weighing process] is an exercise in judgment that is not capa-
ble of evaluation beyond a reasonable doubt, and our statute properly omits any standard by
which it is to be measured.” Ritchie, 809 N.E.2d at 268.
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Because of the seriousness of the potential sentence under our capital statute, we require
that the sentencing judge articulate the reasons behind the sentencing determination more com-
pletely than we require in other cases. “The trial court’s statement of reasons (i) must identify
each mitigating and aggravating circumstance found, (ii) must include the specific facts and rea-
sons which lead the court to find the existence of each such circumstance, (iii) must articulate
that the mitigating and aggravating circumstances have been evaluated and balanced in determin-
ing the sentence, and (iv) must set forth the trial court’s own conclusion that the sentence is ap-
propriate punishment for this offender and the crime.” Leone v. State, 797 N.E.2d at 748. The
trial court’s careful sentencing order met this standard and Losch does not contend otherwise.
Judge Shewmaker gave a detailed appraisal of each mitigating circumstance as he bal-
anced them against the one aggravator. Although he found that the defendant’s lack of any adult
criminal convictions, standing alone, would be a substantial mitigating factor, he concluded that
it should be given only minimal weight when considered in the light of other factors. The court
concluded that Losch’s continuous use of marijuana since age 13 and the fact that he stole money
from his family indicated his contempt for the laws of the state and lessened the weight of his
lack of an adult criminal record as a mitigating fact.
Judge Shewmaker also found that Losch suffered from an impaired mental condition.
Twelve mitigating circumstances existed that bore upon Losch’s mental or emotional disturbance
at the time of the murder and his capacity to appreciate the criminality of his conduct or conform
his behavior to the requirements of law. Judge Shewmaker found that these mitigating circum-
stances existed and would be accorded substantial weight if viewed in isolation, but were entitled
to only minimal weight in the light of all the circumstances. The considerations reducing the
weight of these mitigators included: (1) no credible testimony clearly linked any of the mitigat-
ing circumstances to the acts performed in the commission of the crime; (2) Losch’s mental state
at the time of the crime could not be determined; (3) each of Losch’s parents indicated they
would have committed Losch to a mental facility if they believed he was a danger; their failure
to do so suggested he was not suffering from debilitating mental conditions on the date of the
crime; (4) Losch himself stated he was still in his right mind when committing the murder and no
credible evidence suggested that he suffered from a mental impairment; (5) Losch was able to
function on a daily basis unhampered by debilitating mental conditions; (6) Losch accepted full
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and complete responsibility for his commission of the offense of murder by entering a plea of
guilty (he did not enter a plea of guilty but mentally ill); (7) Losch’s mental condition could well
have been self-induced since he used marijuana and would not regularly take medicine pre-
scribed for him; and (8) in his video statement made within hours after the murder, Losch articu-
lately described the crime and his behavior indicated that he was in control of his thought proc-
esses and was oriented as to time and place. The court concluded that these eight aspects of the
mitigating circumstances substantially lessened the weight of the mitigators relating to Losch’s
mental condition.
Finally, the court found that a number of additional mitigating factors were proved be-
yond a reasonable doubt. These included the fact that the defendant was unlikely to commit an-
other crime, was only 21 years old when the crime was committed, was generally kind and con-
siderate toward others, and was active in his church. The trial court concluded that these addi-
tional mitigating circumstances should be given only minimal weight. Among the reasons given
by the court for this conclusion was the fact that the mitigators were based on events and actions
that were remote in time from the date of the murder. Moreover, these observations of friends of
the defendant were contradicted by Losch’s actual behavior, and failed to explain or excuse his
actions. We conclude that Judge Shewmaker’s balancing of these considerations on this record
was well within his discretion.
Conclusion
The judgment of the trial court is affirmed.
Shepard, C.J., and Dickson, and Sullivan, J.J., concur.
Rucker, J., concurs in result.
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