ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RANDALL J. HAMMOND JEFFREY A. MODISETT
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
SIRLANDO D. LOGAN, )
)
Appellant-Defendant, )
)
v. ) Supreme Court Cause Number
) 02S00-9708-CR-448
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable John F. Surbeck, Jr., Judge
Cause No. 02D04-9602-CF-85
ON DIRECT APPEAL
May 26, 2000
RUCKER, Justice
CASE SUMMARY
A jury convicted Sirlando Logan of murder, felony murder, and robbery
of a pizza deliveryman. The State requested and the jury recommended that
Logan be sentenced to life imprisonment without parole. The trial court
followed the jury’s recommendation. The trial court also sentenced Logan to
a term of years for robbery as a Class A felony. In this direct appeal
Logan raises six issues for our review which we separate into seven and
rephrase as follows: (1) did the trial court err in denying Logan’s motion
to suppress evidence; (2) did the trial court err in allowing evidence of a
witness’s out-of-court identification of Logan; (3) did the trial court err
in precluding Logan from questioning prospective jurors regarding life
without parole during voir dire; (4) did the trial court err in precluding
Logan from cross-examining a witness regarding a juvenile car-jacking
adjudication; (5) did the trial court err in permitting the State to
question Logan regarding a prior conviction; (6) was the evidence
sufficient to support the convictions; and (7) was the evidence sufficient
to support a sentence of life without parole. We address sua sponte
whether the trial court erred in sentencing Logan for robbery as a Class A
felony.
We affirm and remand.
FACTS
In the late evening hours of February 15, 1996, Logan and four
accomplices ordered a pizza from Saylor’s Pizza Parlor in Fort Wayne and
directed that it be delivered to a nearby address. Saylor’s Pizza employee
Milton Turner went to the address, knocked on the door, and a woman
answered. She informed Turner that she had not ordered pizza. Logan, who
was standing on the front porch of the building, told Turner the pizza was
to be delivered to a side apartment that was located down a dark hallway.
Turner refused to enter the hallway and told Logan that whomever ordered
the pizza would have to call Saylor’s Pizza to confirm the address. Turner
left and drove back to work.
Logan and his companions made another call to Saylor’s Pizza
demanding delivery of their order. When Turner returned, he told the
store’s owner that he would not re-deliver the pizza because he saw four
shadows in a dark hallway and believed he was being lured into a dangerous
situation. Employees Don Riebersol and Jean Poff agreed to make the
delivery.
Riebersol and Poff drove to the address and knocked on the door.
Logan was again standing on the front porch and motioned the pair to come
to the side apartment down the dark hallway. They complied. Once in the
hallway, they were confronted by three other young men. Logan stood behind
them and told Riebersol to knock on the apartment door. Riebersol again
complied and a young male answered. Riebersol handed the pizza to the man
and asked about payment. Logan produced a handgun and, using it as a club,
struck Riebersol in the face. Logan then began firing the handgun at
Riebersol. Riebersol, Poff, and Logan’s companions ran out of the hallway.
Riebersol was shot three times and collapsed on the sidewalk outside the
apartment. As Riebersol lay on the ground, Logan grabbed him by the hair,
lifted his head off the ground, and put the gun to his head. Poff, who had
escaped injury, screamed and pleaded for Logan not to kill Riebersol.
Logan dropped Riebersol’s head onto the ground, reached inside Riebersol’s
pocket, removed cash, and fled. Riebersol ultimately died of a gunshot
wound to the abdomen.
Later that evening, police determined that the call to Saylor’s Pizza
had been made from the home of three of the young men involved in the
robbery. Those men identified Logan as the shooter and gave police the
address where Logan was staying. Logan was residing with Helen Cunegin and
her son, using the living room couch as a bed. Police went to the address
and knocked on the door. Logan answered and the police immediately took
him into custody. Police obtained Cunegin’s consent to search the home and
discovered pizza boxes and the gun used in the shooting.
The State charged Logan with murder, felony murder, and robbery
resulting in serious bodily injury. The State also sought to have Logan
sentenced to life without parole. In a bifurcated trial, a jury convicted
Logan as charged and recommended that Logan be sentenced to life without
parole. On the robbery conviction, the trial court sentenced Logan to
thirty years imprisonment. Upon the jury’s recommendation, the trial court
sentenced Logan to life without parole for murder. The trial court did not
sentence Logan on the felony murder conviction. This direct appeal
followed. Additional facts are set forth below where relevant.
DISCUSSION
I. Search and Seizure
Prior to trial, Logan filed a motion to suppress as evidence the gun
and pizza boxes. After a hearing the trial court denied the motion. Over
Logan’s objection, the evidence was introduced at trial. Logan contends
the trial court erred in allowing the exhibits into evidence because the
search was conducted without a warrant and that Cunegin’s alleged consent
to his private living space was not valid.
Searches and seizures “conducted outside the judicial process, without
prior approval by judge or magistrate, are per se unreasonable under the
Fourth Amendment--subject only to a few specifically established and well-
delineated exceptions.” Middleton v. State, 714 N.E.2d 1099, 1101 (Ind.
1999) (quoting Katz v. United States, 389 U.S. 347, 357 (1967) (footnote
omitted)). One exception to the federal prohibition on warrantless
searches exists where consent to a search is given by a third party who has
common authority over the premises. United States v. Matlock, 415 U.S.
164, 171 (1974); Brown v. State, 691 N.E.2d 438, 443 (Ind. 1998). The
consent of one who possesses common authority over the premises or effects
is valid against the absent, non-consenting person who shares the
authority. Trowbridge v. State, 717 N.E.2d 138, 144 (Ind. 1999). Common
authority depends on mutual use of the property by persons generally having
joint access or control for most purposes, so that it is reasonable to
recognize that any of the co-habitants has the right to permit the
inspection. Id. The State has the burden of proving that an exception to
the warrant requirement existed at the time of the search. Brown, 691
N.E.2d at 443. Additionally, when reviewing a trial court’s determination
of the validity of a search, we consider the evidence favorable to the
trial court's ruling and any uncontradicted contrary evidence. Id. The
test is sufficiency of the evidence. Id.
Logan contends that Cunegin did not possess common authority over the
living room and thus, lacked the authority to consent to the search. He
cites the testimony of Cunegin and her son given at the motion to suppress
hearing, indicating they would not enter the room without Logan’s
permission. Although other evidence tended to show Cunegin and her son
held common authority over the living room, we need not determine whether
they in fact had such authority. That issue bears mainly on the
credibility and weight of the evidence, and here the trial court did not
render its decision on that basis. Rather, the trial court found that
police reasonably relied on Cunegin’s consent in searching the room. The
trial court’s ruling focused on the key inquiry in consent cases, the
reasonableness of the police conduct. See Illinois v. Rodriguez, 497 U.S.
177, 186-87 (1990) (“[W]hat is at issue when a claim of apparent consent is
raised is not whether the right to be free of searches has been waived, but
whether the right to be free of unreasonable searches has been violated.”).
Even if a third party who consents to a search does not have common
authority over, or the requisite relationship to, the premises, the
warrantless search is still valid if the officers reasonably believed the
third party had common authority or the requisite relationship.
Trowbridge, 717 N.E.2d at 144; see Canaan v. State, 683 N.E.2d 227, 231-32
(Ind. 1997); Rodriguez, 497 U.S. at 179; Perry v. State, 638 N.E.2d 1236,
1241 (Ind. 1996). “As with other factual determinations bearing upon
search and seizure, determination of consent to enter must ‘be judged
against an objective standard: would the facts available to the officer at
the moment . . . warrant a man of reasonable caution in the belief’ that
the consenting party had authority over the premises.” Rodriguez, 497 U.S.
at 188 (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)).
The record in this case supports the conclusion that the officers
reasonably relied on Cunegin’s consent. When police sought Cunegin’s
consent to search the home, she told them that she rented and lived in the
home with her son and that Logan was staying with her until he found
another place to live. Cunegin’s statement came after police had seen her
emerge from one of the home’s two bedrooms upon their entry into the home
in the early morning hours following the shooting. The room over which
Logan contends he had exclusive control was a living room furnished in the
manner one might expect to find such a room. It contained a couch, a
television, stereo equipment, and other furniture. No bed or personal
effects were in the room. Furthermore, from the front door of the house,
officers had to pass through the living room to gain access to the rest of
the home, and when police arrived, Cunegin’s son was in the living room
watching television. We find nothing in the record to indicate that police
should have been on notice that the room was anything other than what it
appeared to be - a living room used by all the residents of the home.
Given the facts available at the time, the police officers’ belief that
Cunegin had the authority to consent to a search of the room was
reasonable. The trial court did not err by allowing into evidence the
items seized as a result of the search.
II. Identification
Prior to trial, Logan filed a motion in limine seeking to preclude any
reference to witness Poff’s out-of-court identification. The essential
facts are these. On the night of the shooting Poff went to the Fort Wayne
Police Department where she was questioned by several officers. After
questioning she sat on a bench in the lobby waiting for a ride home.
Subsequently, she saw a handcuffed Logan being escorted through the lobby.
According to Poff “I just looked up, he looked at me, we stared, I said I’m
going to get sick and I just yelled, he’s the one.” R. at 642. At the
hearing on the motion in limine, the officer who escorted Logan through the
lobby testified that he was unaware of Poff’s presence, that he did not
present Logan to Poff for identification, and that he was taking Logan
upstairs to the detective bureau for questioning. The trial court denied
Logan’s motion. And over Logan’s objection at trial, the trial court
allowed introduction of testimony concerning Poff’s out-of-court
identification. Also over Logan’s objection, the trial court allowed
Poff’s in-court identification. Asserting the confrontation was staged,
Logan contends the trial court erred by allowing the out-of-court
identification into evidence. He also contends the out-of-court
identification provided the basis for Poff’s in-court identification.
When a trial court has admitted evidence of both a pre-trial and an in-
court identification of the accused by the same witness, we must determine
whether, under the totality of the circumstances, the pre-trial
confrontation was so unnecessarily suggestive and conducive to irreparable
mistaken identification that the accused was denied due process of law.
Brooks v. State, 560 N.E.2d 49, 55 (Ind. 1990). If under the totality of
the circumstances we find the out-of-court procedure was not impermissibly
and unnecessarily suggestive, then evidence of both the pre-trial
identification and the in-court identification are properly admissible.
Id. at 55. However, the underlying premise of this rule presupposes the
police conducted a pre-trial confrontation in the first instance. See,
e.g., Wethington v. State, 560 N.E.2d 496, 501 (Ind. 1990) (commenting on
“exigencies associated with the police decision to utilize a show-up
procedure as opposed to other alternatives . . . .”). In this case the
trial court determined that the out-of-court confrontation was purely
coincidental and was not staged by officers of the Fort Wayne Police
Department. The evidence of record supports the trial court’s
determination, and Logan’s argument to the contrary amounts to an
invitation for this court to reweigh the evidence. We decline. The trial
court did not err in allowing testimony of either the pre-trial or the in-
court identification.
Further, assuming for the sake of argument that the officers did
indeed stage the confrontation and that the confrontation was unduly
suggestive, Logan still cannot prevail. Notwithstanding an unduly
suggestive pre-trial procedure, in-court identification is nonetheless
admissible “if the witness has an adequate independent basis for [the] in-
court identification.” Brown v. State, 577 N.E.2d 221, 225 (Ind. 1991);
see also French v. State, 516 N.E.2d 40, 42 (Ind. 1987); Henson v. State,
467 N.E.2d 750, 753 (Ind. 1984). The factors the court considers in
determining whether an independent basis exists include:
The amount of time the witness was in the presence of the perpetrator
and the amount of attention the witness had focused on him, the
distance between the two and the lighting conditions at the time, the
witness’s capacity for observation and opportunity to perceive
particular characteristics of the perpetrator, the lapse of time
between the crime and the subsequent identification. . . .
Wethington, 560 N.E.2d at 503. Here, Poff testified that there was enough
light in the darkened hallway so that she could see everyone there, R. at
634; that she was just a short distance away from where Riebersol had
fallen when she saw Logan raise Riebersol by his hair and point the gun at
his head, R. at 626; that while engaged in this conduct, Logan looked at
her “for a few minutes,” Id.; and that Logan also pointed the gun at her.
R. at 627. We conclude a basis for Poff’s in-court identification existed
independent of any alleged pre-trial procedure for the out-of-court
identification. On this additional ground, the trial court did not err in
admitting the in-court identification.
III. Qualifying Jury for Life Without Parole
Logan next complains about the manner in which the trial court
conducted the voir dire examination of prospective jurors. The record
shows that prior to trial the trial court ruled that during voir dire
neither party would be permitted to question prospective jurors regarding a
sentence of life without parole. Rather, the trial court decided to
conduct that portion of the examination itself. In so doing, the court
informed the parties that they could submit questions to the court, and if
appropriate, it would in turn pose the questions to the prospective jurors.
When the entire jury venire was subsequently brought into the court
room, the trial court informed the group that if Logan was found guilty of
the crimes charged, there would be a second phase or proceeding in which
the jury would be asked to make a recommendation as to whether Logan should
be sentenced to a term of years or imprisoned for life without parole. The
court then told the prospective jurors:
And the question I need you to ask or have you consider is whether or
not, whether you can follow your oaths as jurors and follow the law
and the evidence as it’s given to you and make a decision which is
going to be a weighing sort of process and we’ll help you define it in
our instructions and arguments from counsel or whether you would
automatically go to a particular recommendation, whether that
recommendation be life without parole or to a term of years as
recommended by me. And that’s the question we’ll ask and ask you to
answer, is whether you can hear evidence, follow the instructions, or
whether you would automatically come to a conclusion without making
that weighing decision that we’re going to ask.
R. at 310-11.
Voir dire of the jurors was then conducted in groups of three. Before
the attorneys questioned the prospective jurors, the court asked each group
if they could make a decision regarding punishment based upon the law and
the evidence or would they automatically recommend life without parole or a
term of years based upon other considerations. R. at 341, 359, 363-64, 378-
79, 398-99, 414, 437-38, 463, 489-90, 509-10, 529, 548. Each prospective
juror who was subsequently seated answered that he or she would make the
recommendation based on the law and evidence.
In this appeal, Logan contends “the trial court improperly limited
jury selection with regard to the sentencing phase of the trial when it
precluded Mr. Logan from ‘qualifying’ potential jurors as to their
feelings, opinions, and predispositions regarding a sentence of life
imprisonment without any chance for parole.” Brief of Appellant at 21.
Logan argues that just as in capital cases where counsel is permitted to
“death qualify” a jury, he should have been permitted to “LWOP qualify” the
jury in this case.
In capital cases, prospective jurors may be questioned about their
beliefs regarding the death sentence to determine whether they will be able
to follow their oath and the law regarding imposition of the death
sentence. Witherspoon v. Illinois, 391 U.S. 510, 522 (1968); Fleenor v.
State, 514 N.E.2d 80, 83-84 (Ind. 1987). Those jurors who have firmly-held
beliefs that would prevent or substantially impair them from being able to
follow the law and consider imposition of a death sentence if called upon
to do so, may be removed for cause. Witherspoon, 391 U.S. at 522; Fleenor,
514 N.E.2d at 83-84. Those jurors who merely state a broad opposition to
the death penalty but nevertheless indicate an ability to follow the law
and consider imposition of a death sentence may not be removed for cause.
Witherspoon, 391 U.S. at 522; Fleenor, 514 N.E.2d at 83.
We first observe that defendants generally have sought to preclude
the death qualifying of a jury in capital cases on the theory that it
improperly excludes jurors who voice opposition to the death penalty. See,
e.g., Wisehart, 484 N.E.2d 949, 953 (Ind. 1985); Burris v. State, 465
N.E.2d 171, 177 (Ind. 1984); Hoskins v. State, 441 N.E.2d 419, 421 (Ind.
1982). With this theory in mind, it is not clear to us how “LWOP”
qualifying a jury serves to benefit Logan. In any event trial courts have
broad discretionary power in regulating the form and substance of voir
dire. Cliver v. State, 666 N.E.2d 59, 65 (Ind. 1996). The decision of the
trial court will be reversed only if there is a showing of a manifest abuse
of discretion and a denial of a fair trial. Id. This will usually require
a showing by the defendant that he was in some way prejudiced by the voir
dire. Id.
Indiana Trial Rule 47(D) dictates in pertinent part “the court shall
permit the parties or their attorneys to conduct the examination of
prospective jurors, and may conduct examination itself.” (emphasis
added).[1] In this case the trial court did not permit Logan or his
attorney to directly question prospective jurors concerning their views on
life without parole. This was error. However, each juror was questioned
regarding his or her ability to base a sentencing recommendation on the law
and the evidence. The trial court’s questioning of the jurors sought to
reveal any bias and determine whether the jurors could render a fair and
impartial recommendation, which we have held is the purpose of voir dire.
See Games v. State, 535 N.E.2d 530, 538 (Ind. 1989).
Logan seems to contend that he could better probe into the jurors’
beliefs regarding life without parole and better explain the concept, which
jurors may have misunderstood. However, Logan does not indicate what
questions he would have asked, nor does he explain why the trial court’s
procedure of asking questions tendered by the parties was inadequate for
purposes of empanelling a fair and impartial jury. Further, Logan has
failed to show that the trial court’s procedure adversely impacted his
ability to employ his peremptory challenges or his challenges for cause,
and he does not allege that any specific juror should have been removed and
was not. “[T]he Constitution presupposes that a jury selected from a fair
cross-section of the community is impartial, regardless of the mix of
individual viewpoints actually represented on the jury, so long as the
jurors can conscientiously and properly carry out their sworn duty to apply
the law to the facts of the particular case.” Fleenor, 514 N.E.2d at 83
(quoting Lockhart v. McCree, 476 U.S. 162, 184 (1986)). We conclude that
Logan has not shown that he was prejudiced by the procedure that the trial
court used in selecting the jury. Thus, although the trial court erred by
not permitting Logan to directly question prospective jurors concerning
their views on life without parole, the error was harmless.
IV. Cross-Examination
Logan next contends that the trial court committed reversible error
when it precluded him from cross-examining accomplice and State’s witness
Jason Harrison regarding Harrison’s prior juvenile adjudication.
Harrison’s juvenile adjudication would have amounted to a car-jacking
conviction if he had been an adult.
A defendant’s Sixth Amendment right of confrontation requires that the
defendant be afforded an opportunity to conduct effective cross-examination
of State witnesses in order to test their believability. Thornton v.
State, 712 N.E.2d 960, 963 (Ind. 1999). However, this right is subject to
reasonable limitations imposed at the discretion of the trial judge. Id.
In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the United States Supreme
Court declared:
It does not follow, of course, that the Confrontation Clause of the
Sixth Amendment prevents a trial judge from imposing any limits on
defense counsel's inquiry into the potential bias of a prosecution
witness. On the contrary, trial judges retain wide latitude insofar
as the Confrontation Clause is concerned to impose reasonable limits
on such cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness' safety,
or interrogation that is repetitive or only marginally relevant.
Id. at 679.
Indiana trial courts are guided by Indiana Evidence Rule 609(d) in
placing reasonable limits on the admissibility of juvenile adjudications.
That rule provides:
Evidence of juvenile adjudications is generally not admissible under
this rule. The court may, however, in a criminal case allow evidence
of a juvenile adjudication of a witness other than the accused if
conviction of the offense would be admissible to attack the
credibility of an adult and the court is satisfied that admission in
evidence is necessary for a fair determination of the issue of guilt
or innocence.
The text of the rule makes clear that in most cases evidence of a juvenile
adjudication is not admissible to impeach a witness. Even when the offense
is otherwise admissible to attack the credibility of an adult, the trial
court may exclude the evidence if it is not satisfied that the evidence is
necessary for a fair determination of the guilt or innocence of the
defendant. Thus, Rule 609(d) leaves the admissibility of a juvenile
adjudication to the trial court’s discretion, so long as that discretion
does not violate the defendant’s Sixth Amendment rights.
Here, the trial court found that evidence of Harrison’s juvenile
adjudication was not necessary for a fair determination of Logan’s guilt or
innocence. We cannot disagree with the court’s decision. Logan vigorously
cross-examined and impeached Harrison regarding lies that Harrison told
police, his involvement in Riebersol’s robbery and murder, and Harrison’s
possible bias associated with the plea agreement he reached with the State.
Nevertheless, Logan contends that the adjudication was necessary for a
fair determination of guilt or innocence in this case because it would have
shed more light on Harrison’s plea agreement with the State. Logan implies
that admission of the juvenile adjudication would have shown an extra
incentive for Harrison to enter a plea agreement and testify against Logan.
To support his claim, Logan cites Davis v. Alaska, 415 U.S. 308
(1974). In that case the defendant attempted to show a witness’s potential
bias and prejudice by introducing evidence of the witness’s probationary
status stemming from a juvenile adjudication. The defense wanted to show
that the witness’s fear of probation revocation may have influenced the
witness’s testimony. The trial court in Davis precluded the defendant from
introducing the evidence. The Supreme Court held that the trial court’s
exclusion of the impeachment evidence violated the defendant’s rights under
the Sixth Amendment’s confrontation clause. Id. at 317-18. However,
unlike this case, in Davis the trial court’s decision not to allow the
introduction of a witness’s juvenile adjudication precluded the defendant
from presenting any evidence of bias. Id. Such is not the case here.
Logan was able to present evidence of Harrison’s alleged bias to the jury.
We fail to see how this alleged extra incentive was necessary for a fair
determination of guilt or innocence. The jury was aware that Harrison
received favorable treatment from the State in exchange for his testimony
against Logan. The juvenile adjudication would have added little, if
anything, to Logan’s impeachment of Harrison. We conclude the trial court
did not abuse its discretion in limiting Logan’s cross-examination of
Harrison.
V. Impeachment
Logan filed a motion in limine seeking to preclude the State from
impeaching him with a prior burglary conviction in Illinois. The trial
court denied Logan’s motion. Logan argued at trial that the State failed
to show the Illinois conviction occurred when Logan was an adult. Logan
claimed that the conviction sheet that the State sought to use in
impeaching him indicated that Logan was only seventeen years old at the
time of the conviction. The trial court examined the document and found
that it did not indicate that the conviction was anything other than an
adult conviction for burglary. As a result, the court allowed the State to
use the conviction to impeach Logan. Logan renews his claim on appeal.
Our review of the record reveals that the conviction sheet was never
admitted as evidence, and therefore it is not in the record of proceedings.
Thus, it is impossible for us to review Logan’s claim that the face of the
document indicates the conviction was actually a juvenile adjudication.
Given the record before us, we cannot say the trial court abused its
discretion in denying Logan’s motion in limine.
VI. Sufficiency of the Evidence
Logan also contends that the State failed to present sufficient
evidence to support his convictions for murder and robbery. In reviewing a
sufficiency of the evidence claim, we do not reweigh the evidence or assess
the credibility of the witnesses. Soward v. State, 716 N.E.2d 423, 425
(Ind. 1999). Rather, we look to the evidence and reasonable inferences
drawn therefrom that support the verdict, and we will affirm the
convictions if there is probative evidence from which a reasonable jury
could have found the defendant guilty beyond a reasonable doubt. Kelly v.
State, 719 N.E.2d 391, 394 (Ind. 1999).
The evidence presented at trial was more than adequate to sustain
Logan’s convictions. Poff testified that she saw Logan strike Riebersol in
the head with a gun and then fire the shots that struck and killed
Riebersol. Poff also watched as an armed Logan took money from Riebersol’s
pocket after Reibersol collapsed outside the apartment. Further,
accomplice Jason Harrison testified that only Logan had a gun that evening
and after the robbery Logan placed the gun under a cushion in Cunegin’s
couch and bragged about shooting Riebersol. Accomplice Orlando Johnson
also testified that he saw Logan place a gun under a cushion in the couch
after the shooting. Evidence presented at trial confirmed that the gun
Logan placed in Cunegin’s couch was used in the Riebersol killing. In
addition, both accomplices described how the group planned and executed the
robbery. Logan’s argument amounts to an invitation for this Court to
reweigh the evidence. We decline.
VII. Sentencing
Logan challenges his sentence of life without parole contending there
was insufficient evidence for the jury to recommend and for the court to
find that the aggravating circumstances outweighed the mitigating factors.
To obtain a sentence of life without parole, the State must prove beyond a
reasonable doubt the existence of one or more aggravating circumstances
listed in Ind. Code § 35-50-2-9(b). Monegan v. State, 721 N.E.2d 243, 256
(Ind. 1999). In this case the State relied on Ind. Code § 35-50-2-
9(b)(1)(G) which provides that it is an aggravating circumstance where
“[t]he defendant committed the murder by intentionally killing the victim
while committing or attempting to commit . . . Robbery.” This statutory
aggravator was proven beyond a reasonable doubt. The mitigating factors
considered by the trial court were: Logan’s background of a broken home,
his lack of a father figure, his sexual abuse by a scout leader, the death
of his grandmother, and Logan’s drug and alcohol dependence. Logan argues
the trial court erred in weighing these factors. According to Logan, in
light of the mitigating factors, without more evidence of aggravating
circumstances, the appropriate sentence in this case is a term of years.
We disagree.
Several mitigating factors may be outweighed by one aggravating
factor. McIntyre v. State, 717 N.E.2d 114, 127 (Ind. 1999). Here, the
trial court complied with the procedure prescribed by Ind. Code § 35-50-2-
9. The trial court considered the recommendation of the jury, found the
State had proven at least one aggravating factor beyond a reasonable doubt,
and weighed the applicable mitigating and aggravating factors. His
sentencing decision was based upon the reasonable recommendation of the
jury and his own specific findings. On this issue we find no error.
However, we do address one issue sua sponte, namely the trial court’s
error in sentencing Logan for robbery as a Class A felony. In Richardson
v. State, 717 N.E.2d 32 (Ind. 1999), we developed a two-part test for
determining whether two convictions are permissible under Indiana’s double
jeopardy clause. Id. at 49. A double jeopardy violation occurs when “the
State . . . proceed[s] against a person twice for the same criminal
transgression.” Hampton v. State, 719 N.E.2d 803, 809 (Ind. 1999) (quoting
Richardson, 717 N.E.2d at 49). Under Richardson, “two or more offenses are
the ‘same offense’ . . . if, with respect to either the statutory elements
of the challenged crimes or the actual evidence used to convict, the
essential elements of one challenged offense also establish the essential
elements of another challenged offense.” Id.
When we look to the actual evidence presented at trial, we will
reverse one of the convictions if there is “a reasonable possibility that
the evidentiary facts used by the fact-finder to establish the elements of
one offense may also have been used to establish the elements of a second
challenged offense.” Richardson, 717 N.E.2d at 53. In the case before us,
the record is clear the same evidence that supported Logan’s murder
conviction was also used to elevate Logan’s robbery conviction to a Class A
felony. Robbery is a Class A felony if it results in serious bodily
injury. The serious bodily injury alleged and proven by the State in this
case was Riebersol’s death, the same fact used to convict Logan of murder.
Thus, under Richardson, Logan’s conviction of Class A robbery cannot
stand.[2]
However, this does not entitle Logan to escape conviction and
punishment for the robbery of which he was convicted. There are three
felony classes of robbery:
A person who knowingly or intentionally takes property from another
person or from the presence of another person:
(1) by using or threatening the use of force on any person; or
(2) by putting any person in fear;
commits robbery, a Class C felony. However, the offense is a Class B
felony if it is committed while armed with a deadly weapon or results
in bodily injury to any person other than a defendant, and a Class A
felony if it results in serious bodily injury to any person other than
the defendant.
Ind. Code § 35-42-5-1. Robbery as a Class C felony is a lesser-included
offense of robbery as a Class A felony as charged in the State’s
information. See Kingery v. State, 659 N.E.2d 490, 495 (Ind. 1995).
Robbery as a Class B felony, however, is not necessarily a lesser-included
offense of robbery as a Class A felony. See id. Here, the State did not
allege the use of a deadly weapon as an enhancement of the offense, and as
such, Class B robbery is not lesser included on that basis. Robbery
resulting in bodily injury as a Class B felony may be a lesser included
offense of Robbery as a Class A felony in this case. However, as stated
above, the only injury alleged by the State in this case was Riebersol’s
death. Elevation of the offense to a Class B felony on the basis of bodily
injury poses the same double jeopardy problem as does Logan’s conviction
for robbery resulting in serious bodily injury as a Class A felony. Thus,
the proper remedy for the violation of Logan’s right to be free from double
jeopardy is to vacate that part of Logan’s robbery conviction that elevated
his offense to a Class A felony and reduce his robbery conviction to a
Class C felony. See Wise v. State, 719 N.E.2d 1192, 1201 (Ind. 1999);
Hampton, 719 N.E.2d at 809; Kingery, 659 N.E. 2d at 496. Accordingly,
Logan’s conviction for robbery as a Class A felony must be vacated.
CONCLUSION
We remand this cause to the trial court with instructions to reduce
Logan’s robbery conviction to a Class C felony and to re-sentence Logan
accordingly. In all other respects the judgment of the trial court is
affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
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[1] Rule 47(D) is made applicable to criminal cases through Indiana
Criminal Rule 21.
[2] Even before Richardson, this Court held that “where a single act
forms the basis both for the upgrade, from Class C to Class A, of the
robbery conviction and also the act element of the murder charge, a
defendant cannot be twice sentenced for committing this single act. To do
so would violate the prohibition against double jeopardy.” Kingery v.
State, 659 N.E.2d 490, 495-96 (Ind. 1995).