ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICIA CARESS MCMATH STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
JEREMY GROSS, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 49S00-0009-CR-528
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM 4
The Honorable Patricia J. Gifford, Judge
Cause No. 49G04-9808-CF-141115
ON DIRECT APPEAL
June 18, 2002
RUCKER, Justice
Jeremy Gross was convicted of murder, felony murder, conspiracy to
commit robbery, and robbery as a Class A felony. The trial court sentenced
him to life in prison without parole for the murder conviction and to a
term of years for the conspiracy and robbery convictions. No sentence was
imposed for the felony murder conviction. In this direct appeal, Gross
raises two issues for our review that we rephrase as: (1) did the trial
court err in imposing sentence for robbery as a Class A felony; and (2) is
his life sentence appropriate. We vacate Gross’ conviction for robbery as
a Class A felony and remand for resentencing to impose sentence for robbery
as a Class B felony. Otherwise, we affirm the judgment of the trial court.
Facts
In the early morning hours of August 26, 1998, J.J. Thompson was
driving near a convenience store in Indianapolis when he saw a person later
identified as Jeremy Gross raise his arm and fire a handgun at Christopher
Beers, the store clerk. Thompson immediately drove away and called the
police. In the meantime, after taking $650 in cash, disabling the store’s
telephone lines, and grabbing the video recorder that served the
surveillance cameras, Gross and his confederate, Joshua Spears, fled the
scene. When officers of the Marion County Sheriff’s Department arrived,
they found Beers’ body outside the store near a payphone. He had died as a
result of multiple gunshot wounds to the head, chest, and abdomen.
Sheriff’s deputies arrested Gross shortly thereafter. Gross gave a taped
statement admitting that he entered the store to rob the cashier, and when
the cashier refused to surrender the money, he shot him. Gross also
admitted taking the security video recorder in order to conceal the crime.
The State charged Gross with murder, murder in the perpetration of a
robbery, conspiracy to commit robbery, and robbery as a Class A felony.[1]
In a separate request for a sentence of death, the State alleged as an
aggravating circumstance that Gross committed the murder by intentionally
killing Beers while committing a robbery. A jury convicted Gross as
charged but after the penalty phase of trial recommended life without
parole. The trial court accepted the jury’s recommendation and sentenced
Gross accordingly. The trial court also sentenced Gross to consecutive
terms of thirty years for conspiracy to commit robbery and robbery as a
Class A felony. No sentence was imposed on the felony murder conviction.
This direct appeal followed.
Discussion
I. Double Jeopardy
Gross contends that his multiple convictions violate Indiana’s
constitutional prohibition against double jeopardy. Specifically, Gross
contends that he cannot be convicted for both murder and robbery as a Class
A felony because both crimes were enhanced by the same bodily injury. The
State concedes this point. The Indiana Double Jeopardy Clause prohibits
multiple convictions if there is “a reasonable possibility that the
evidentiary facts used by the fact-finder to establish the essential
elements of one offense may also have been used to establish the essential
elements of a second challenged offense.” Richardson v. State, 717 N.E.2d
32, 53 (Ind. 1999). This formulation of what has come to be known as the
Richardson actual evidence test has generated some amount of confusion.
Indeed, this Court has previously determined that under Richardson “a
robbery conviction cannot be elevated by the same serious bodily injury
(death) that formed the basis of [a] murder conviction.” Chapman v. State,
719 N.E.2d 1232, 1234 (Ind. 1999).[2] However, as we have recently
clarified: “under the Richardson actual evidence test, the Indiana Double
Jeopardy Clause is not violated when the evidentiary facts establishing the
essential elements of one offense also establish only one or even several,
but not all, of the essential elements of a second offense.” Spivey v.
State, 761 N.E.2d 831, 833 (Ind. 2002).
To convict Gross of murder, the State was required to prove that he
knowingly or intentionally killed another human being. Ind. Code § 35-42-1-
1. As charged, in order to convict Gross of robbery as a Class A felony,
the State was required to prove that he: (1) knowingly or intentionally (2)
took property from another person or from the presence of another person
(3) by using or threatening the use of force on any person (4) that
resulted in serious bodily injury. I.C. § 35-42-5-1.
The facts establishing the essential elements of murder may have also
established some of the essential elements of robbery as a Class A felony,
namely: serious bodily injury—death—of the victim and use of force.
However, such facts did not establish the elements of knowingly or
intentionally taking property from another person. As such, there would be
no Indiana double jeopardy violation. Spivey, 761 N.E.2d at 834. On the
other hand, we find a reasonable possibility that the jury may have used
evidentiary facts establishing all the essential elements of robbery as a
Class A felony to establish also all the essential elements of murder. We
refer specifically to evidence that Gross fired a handgun directly at the
store clerk, then took $650 in cash, and the store clerk died from the
gunshot wounds. This violates the Indiana Double Jeopardy Clause.
Moreover, as we recently pointed out, “we have long adhered to a
series of rules of statutory construction and common law that are often
described as double jeopardy, but are not governed by the constitutional
test set forth in Richardson.” Pierce v. State, 761 N.E.2d 826, 830 (Ind.
2002). Among these is the doctrine that where a single act forms the basis
of both a Class A felony robbery conviction and also the act element of the
murder conviction, the two cannot stand. Kingery v. State, 659 N.E.2d 490,
495-96 (Ind. 1995). Accordingly, the robbery conviction as a Class A
felony must be reduced.
The robbery statute provides:
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
a defendant.
I.C. § 35-42-5-1 (emphasis added). The same doctrine and double jeopardy
concerns that prohibit the use of Beers’ death to support both the murder
conviction and the elevation of robbery to a Class A felony apply equally
to the bodily injury variety of Class B felony robbery. However, the
charging information in this case reads in pertinent part:
JEREMY D. GROSS and JOSHUA E. SPEARS, on or about AUGUST 26, 1988, did
knowingly, while armed with a deadly weapon, that is: A HANDGUN, take
from the person or presence of CHRISTOPHER BEERS property, that is:
UNITED STATES CURRENCY, by putting CHRISTOPHER BEERS in fear or by
using or threatening the use of force on CHRISTOPHER BEERS, which
resulted in serious bodily injury, that is: DEATH to CHRISTOPHER
BEERS[.]
R. at 55 (emphasis added). In essence, the State charged Gross with both
the bodily injury variety of Class B felony robbery as well as the armed
with a deadly weapon variety of the offense. Also, the record shows the
jury was instructed on the elements of both varieties of robbery as a Class
B felony. R. at 483-84; compare Spears, 735 N.E.2d at 1165 n.2 (finding it
appropriate to reduce defendant’s Class A robbery conviction to Class C
robbery where “[t]here was no jury instruction on the use of a deadly
weapon . . . .”). Accordingly, we vacate Gross’ sentence for robbery as a
Class A felony and remand to the trial court for a new sentencing order
that imposes sentence for robbery as a Class B felony.
II. Sentencing
Gross challenges his sentence contending the trial court did not give
adequate weight to certain mitigating factors.[3] To obtain a sentence of
death or life without parole, the State must prove beyond a reasonable
doubt the existence of one or more aggravating circumstances listed in
Indiana Code section 35-50-2-9(b). Logan, 729 N.E.2d at 136. To support
its death sentence request in this case, the State relied on the felony
murder aggravator: “The defendant committed the murder by intentionally
killing the victim while committing or attempting to commit . . . Robbery.”
I.C. § 35-50-2-9(b)(1)(G). At sentencing, the trial court found this
aggravator proven beyond a reasonable doubt, and the record supports the
trial court’s finding. In its sentencing order, the trial court weighed as
mitigating circumstances Gross’s unstable childhood characterized by a
pattern of parental abuse and neglect, his attainment of a high school
diploma, his satisfactory adjustment while incarcerated at a youth center
and at Boy’s School, and his volunteering to tutor other inmates while
incarcerated at the Marion County Jail awaiting trial. Finding that the
mitigating circumstances were outweighed by the aggravating circumstance,
the trial court followed the jury’s recommendation and sentenced Gross to
life imprisonment.
“The trial court’s determination of the proper weight to be given
aggravating and mitigating circumstances and the appropriateness of the
sentence as a whole is entitled to great deference and will be set aside
only upon a showing of a manifest abuse of discretion.” Dunlop v. State,
724 N.E.2d 592, 597 (Ind. 2000), reh’g denied. The trial court is not
obligated to accept the defendant’s contentions as to what constitutes a
mitigating factor. McCann v. State, 749 N.E.2d 1116, 1121 (Ind. 2001).
Nor is the court required to give the same weight to proffered mitigating
factors as the defendant does. Bonds v. State, 721 N.E.2d 1238, 1243 (Ind.
1999). Here, the record of the sentencing proceeding does not demonstrate
that the trial court abused its discretion in considering and weighing the
mitigating factors against the sole aggravating factor.
Upon independent review, we find evidence of Gross’ difficult
childhood, his age of eighteen at the time of the crime, his graduation
from high school, his conduct at Boy’s School and at a youth center, his
tutoring of other inmates while incarcerated at the Marion County Jail, and
his expression of remorse. The mitigating weight warranted for each of
these considerations is in the low range, individually and cumulatively.[4]
Although there is only a single aggravating factor here, it is a
“substantial and serious” one. Bivins v. State, 642 N.E.2d 928, 959 (Ind.
1994) (affirming defendant’s death sentence after weighing the mitigating
factors of alcoholism and troubled adolescence against the aggravating
factor of an intentional killing in the course of a robbery). We find that
the mitigating circumstances in this case are outweighed by the aggravating
factor of an intentional murder during a robbery. Having also given due
consideration to the jury’s recommendation, we determine that the proper
and appropriate sentence for Jeremy Gross is life without parole.
Conclusion
We vacate Gross’ sentence for robbery as a Class A felony and remand
to the trial court for a new sentencing order that imposes sentence for
robbery as a Class B felony. In all other respects, the judgment of the
trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] Spears was charged and tried separately for the same offenses.
See Spears v. State, 735 N.E.2d 1161 (Ind. 2000), reh’g denied.
[2] Accord Francis v. State, 758 N.E.2d 528, 533 (Ind. 2001); Burnett
v. State, 736 N.E.2d 259, 263 (Ind. 2000); Grace v. State, 731 N.E.2d 442,
446 (Ind. 2000), reh’g denied; Logan v. State, 729 N.E.2d 125, 136 (Ind.
2000); Hampton v. State, 719 N.E.2d 803, 809 (Ind. 1999).
[3] Gross phrases this issue as “[t]he sentence of life without
parole is manifestly unreasonable and inappropriate for Jeremy because the
one aggravating factor does not outweigh the several mitigating factors.”
Br. of Appellant at 7. Although this Court has the constitutional
authority to review and revise sentences, Ind. Const. art. VII, § 4, it
will not do so unless the sentence is “manifestly unreasonable in light of
the nature of the offense and the character of the offender,” Ind.
Appellate Rule 7(B). In this case, although phrasing the issue in terms of
“manifestly unreasonable,” Gross does not cite the standard for such a
claim nor explain how the facts of this case are applicable to the claim.
Rather, his argument focuses on the trial court’s failure to ascribe
appropriate mitigating weight to certain factors and this Court’s special
appellate scrutiny in cases where the sentence is death or life without
parole.
[4] Gross seems to suggest that his age is automatically a
significant mitigating factor. That is not the case. It is true that a
defendant’s youth may be a mitigating factor in some circumstances. See
Brown v. State, 720 N.E.2d 1157, 1159 (Ind. 1999) (instructing the trial
court to impose concurrent, rather than consecutive, terms on defendant who
was sixteen at time of murder and under the influence of a man twice his
age); see also Carter v. State, 711 N.E.2d 835, 843 (Ind. 1999) (finding
the fourteen-year-old defendant’s sixty-year murder sentence manifestly
unreasonable). However, age is not a per se mitigating factor. See
Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999) (“Unfortunately,
murders committed by eighteen-year-olds are more common than they used to
be.”). As we observed in Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000),
chronological age for people in their teens and early twenties is not the
sole measure of culpability. “There are both relatively old offenders who
seem clueless and relatively young ones who appear hardened and
purposeful.” Id. In this case, Gross has not demonstrated that his age
and culpability are linked in any way.