ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KATHERINE A. CORNELIUS KAREN M. FREEMAN-WILSON
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
JOHN HAWKINS, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 49S00-0005-CR-298
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G01-9708-CF-127418
ON DIRECT APPEAL
May 24, 2001
RUCKER, Justice
In the early evening hours of August 21, 1997, Rogshan Love and Steven
Webber were walking along 19th and Decker Street in Indianapolis. Driving
a green Chevy Caprice, John Hawkins stopped the car, pointed a shotgun out
the window, fired the weapon at Love, and drove away. A later autopsy
revealed that Love died as a result of multiple shotgun wounds to the neck
and chest.
Hawkins was ultimately arrested and charged with Love’s murder. After
a trial by jury, he was convicted as charged and later sentenced by the
court to the maximum term of sixty-five years imprisonment. In this direct
appeal, Hawkins contends the evidence was insufficient to sustain the
conviction and that he should not have received an enhanced sentence. We
disagree with both contentions and therefore affirm.
Discussion
I.
For his sufficiency claim, Hawkins contends the State failed to show
that he possessed the “requisite ‘knowing’ mens rea to shoot or kill Mr.
Love.” Br. of Appellant at 14. Hawkins is mistaken. “A person engages in
conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a
high probability that he is doing so.” Ind.Code § 35-41-2-2(b). A knowing
killing may be inferred from the use of a deadly weapon in a manner likely
to cause death. Barker v. State, 695 N.E.2d 925, 931 (Ind. 1998).
Evidence that Hawkins pointed and fired a shotgun at Love striking him in
the neck and chest is sufficient to sustain the murder conviction.
II.
Identifying four aggravating factors and three mitigating factors and
determining that the aggravators outweighed the mitigators, the trial court
sentenced Hawkins to a term of sixty-five years imprisonment. For the
aggravators the court noted: (1) Hawkins’ prior juvenile and adult
criminal history; (2) that Hawkins was in need of correctional or
rehabilitative treatment that could best be provided by confinement to a
penal institution; (3) that imposition of a sentence below the presumptive
would depreciate the seriousness of the crime; and (4) that Love’s family
recommended an enhanced sentence. In mitigation the court noted: (1)
Hawkins’ expression of remorse; and (2) that he was nineteen years of age.
Hawkins correctly asserts that the third and fourth factors are not
proper aggravators. According to Hawkins, once the improper aggravators
are removed from the equation “it is unclear whether the trial court would
have still found the aggravating circumstances outweighed the mitigating
circumstances.” Br. of Appellant at 11. Hawkins argues we should either
revise his sentence to the minimum time or remand for resentencing. We
decline to do either.
We acknowledge that the “depreciate the seriousness” aggravator is
appropriate only where the trial court is considering a reduced sentence.
Georgopulos v. State, 735 N.E.2d 1138, 1144 (Ind. 2000). There is no
indication in the record that the trial court was considering a reduced
sentence in this case. Also, although recommendations by a victim’s family
may be used by the court to assist it in making a sentencing decision, the
recommendations “are not mitigating or aggravating circumstances as those
terms are used in the sentencing statute.” Edgecomb v. State, 673 N.E.2d
1185, 1199 (Ind. 1996). Nonetheless, a single aggravating circumstance is
adequate to justify a sentence enhancement. Georgopulos, 735 N.E.2d at
1146; see also Logan v. State, 729 N.E.2d 125, 136 (Ind. 2000) (declaring
that several mitigating factors may be outweighed by one aggravating
factor). Further, when a sentencing court applies proper aggravating
circumstances along with improper aggravators, a sentence enhancement may
still be upheld. Gibson v. State, 702 N.E.2d 707, 710 (Ind. 1998). In this
case, the single aggravating factor of Hawkins’ prior criminal history is
enough to support an enhanced sentence. The history includes an April 1995
juvenile true finding of battery that would have been a D felony if charged
as an adult; a September 1995 juvenile true finding of battery, involving a
stabbing, that would have been a C felony if charged as an adult; a
November 1996 juvenile true finding of auto theft that would have been a D
felony if charged as an adult; and a 1997 conviction as an adult for
carrying a handgun without a license. R. at 427-28.
Conclusion
We affirm Hawkins’ conviction and sentence.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.