ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patrick R. Ragains Steve Carter
Smith & Ragains Attorney General of Indiana
Anderson, Indiana
Christopher L. Lafuse
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
CHRISTOPHER NICHOLSON, )
)
Appellant (Defendant Below), )
)
v. ) Cause No. 48S00-0109-CR-434
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-9710-CF-405
May 24, 2002
SHEPARD, Chief Justice
After a remand from this Court, the trial judge sentenced Christopher
Nicholson to life without parole. Nicholson again appeals his sentence,
arguing that the State did not prove two statutory aggravators. We
conclude that he is correct and thus revise Nicholson’s sentence.
Facts & Procedural History
On or about October 11, 1997, Nicholson tied seventy-eight-year-old
Maxine Heitger’s arms and legs to her bed, stuffed tissue into her mouth
and taped her mouth shut. Nicholson then stole Heitger’s credit card and
automobile. Heitger died of asphyxiation.
Nicholson was charged with and convicted of murder,[1] felony
murder,[2] two counts of theft,[3] robbery,[4] burglary[5] and criminal
confinement.[6] The jury recommended that Nicholson receive life without
parole.[7] The trial court subsequently ordered two concurrent life-
without-parole sentences to run consecutively with three term-of-year
sentences of sixty-five, twenty, and three years.
On appeal, we found several errors in the sentencing order.
Nicholson v. State, 734 N.E.2d 1047 (Ind. 2000)(per curiam), reh’g
denied.[8] We noted that the sentencing order failed to satisfy the
heightened sentencing standards for life without parole as set out in
Harrison v. State, 644 N.E.2d 1243, 1262 (Ind. 1995), after remand, 659
N.E.2d 480 (Ind. 1995), cert. denied, 519 U.S. 933 (1996).
On remand, the trial court held a new sentencing hearing. It
sentenced Nicholson to life without parole, with the following sentencing
order:
The Court finds that [Nicholson] did commit the murder by
intentionally killing the victim by committing burglary, robbery and
torture, those being the aggravating circumstances, under [Indiana
Code §] 35-50-2-9. The Court finds aggravating circumstances under
said code that [Nicholson] tortured victim while she was alive . . . .
Also, Court finds aggravating circumstances . . . that the victim was
a victim of criminal confinement, for which [Nicholson] was also
convicted. In addressing the alleged mitigating circumstances of
remorse the [C]ourt finds that remorse may be present, but is not
relevant. The dysfunctional home life is not a mitigating
circumstance. [Nicholson] may have been a drug abuser, but the
evidence will show that at the time this crime was committed, he had
full capacity of all his faculties, his movements and his actions. He
stole the car [and] drove it. His mechanical skills were all in
coordination and he was capable [of] p[er]forming all those acts.
Therefore, [Nicholson] was not under the influence of any alcohol or
drugs at the time. Those are not mitigating circumstances.
(Appellant’s App. at 1.)
I. Sufficiency of the Aggravators
Nicholson argues on appeal that the State did not prove beyond a
reasonable doubt the statutory aggravators of intentionally killing the
victim while committing a robbery, Ind. Code Ann. § 35-50-2-9(b)(1)(G)
(West 1998), and torturing the victim while she was alive, Id. § 35-50-2-
9(b)(11). Neither party addresses the third aggravator found by the trial
court, that Heitger was the victim of criminal confinement for which
Nicholson was convicted.[9] Id. § 35-50-2-9(b)(13)(C).
Sentencing decisions rest within the discretion of the trial court,
and we review such decisions for an abuse of discretion. Monegan v. State,
756 N.E.2d 499, 501 (Ind. 2001)(citations omitted). The same standards
apply in imposing a sentence of life without parole as for the death
penalty,[10] including the degree of specificity required in explaining the
factors and weighing process that led to the sentence. Holsinger v. State,
750 N.E.2d 354, 362 (Ind. 2001). In Harrison v. State, 644 N.E.2d at 1262
(citations omitted), we established the following steps:
The trial court’s statement of reasons (i) must identify each
mitigating and aggravating circumstance found, (ii) must include the
specific facts and reasons 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
determination of the sentence, and (iv) must set forth the trial
court’s personal conclusion that the sentence is appropriate
punishment for this offender and this crime.
We first address the trial court’s third aggravator, that Heitger was
a victim of criminal confinement. Indiana Code § 35-50-2-9(a) requires the
State to “alleg[e], on a page separate from the rest of the charging
instrument, the existence of at least one (1) of the aggravating
circumstances listed in subsection (b).” While Nicholson’s conviction for
criminal confinement could have supported a life without parole sentence
under Ind. Code Ann. § 35-50-2-9(b)(13)(C), it was error for the trial
court to list this as an aggravator because the State did not allege it.
(R. at 102-03.)
A. Evidence of Intentionality. The evidence reveals that Nicholson
bound Heitger’s arms and legs to bedposts, stuffed tissue paper inside her
mouth, taped her mouth shut, and wrapped a ligature tightly around her
neck. (R. at 568, 833, 836-39.) He did not obstruct the airflow through
the victim’s nose, nor did he sexually or physically assault the victim.
(R. at 851-52.) Heitger died of asphyxia, caused by the material inside
her mouth becoming lodged in her throat and the position of her body, which
caused difficulty in breathing. (R. at 846.)
The statutory aggravator relied on by the trial court required an
intentional killing. Ind. Code Ann. § 35-50-2-9(b)(1)(B), (G) (West 1998).
“A person engages in conduct ‘intentionally’ if, when he engages in the
conduct, it is his conscious objective to do so.” Id. § 35-41-2-2(a). In
this case, we cannot conclude that it was Nicholson’s “conscious objective”
to kill Heitger. Rather, Nicholson prevented her interference with the
robbery by restraining her movement and preventing her from calling for
help.[11] While we have no trouble upholding the murder conviction as
Nicholson engaged in the conduct knowingly and with utter disregard for the
victim’s well-being, the evidence does not prove beyond a reasonable doubt
that it was Nicholson’s intent to kill.
B. Torture Aggravator. The second aggravator was an allegation that
Nicholson tortured the victim while she was alive. See Ind. Code Ann. § 35-
50-2-9(b)(11)(C) (West 1998). This case is our first encounter with
torture as an aggravating circumstance.
The statute does not define “torture.” Webster’s Dictionary defines
it as “the infliction of intense pain (as from burning, crushing, wounding)
to punish or coerce someone; torment or agony induced to penalize religious
or political dissent or nonconformity; to extort a confession or a money
contribution, or to give sadistic pleasure to the torturer.” Webster’s
Third New International Dictionary 2414 (1993).
The State argues that the torture aggravator is satisfied by proof of
infliction of severe physical or mental pain. This alone surely cannot be
sufficient. If such were the case, any stabbing or shooting victim would
also be tortured. The other aggravators listed in Ind. Code Ann. § 35-50-2-
9(b)(11), “burned” and “mutilated,” further suggest that the legislature
intended something more than simply the infliction of severe physical or
mental pain to satisfy the torture aggravator.
We conclude that the torture aggravator requires something more: an
appreciable period of pain or punishment intentionally inflicted and
designed either to coerce the victim or for the torturer’s sadistic
indulgence.
Put another way, torture is the gratuitous infliction of substantial
pain or suffering in excess of that associated with the commission of the
charged crime. Although the victim here undoubtedly experienced extreme
suffering, the evidence does not show that the events fit the definition of
torture.
II. Revision of Sentence
As neither of the charged aggravators support the sentence of life
without parole, we have three options: (1) remand the matter to the trial
court for clarification or a new sentencing determination, (2) affirm the
sentence if the error is harmless, or (3) independently reweigh the proper
aggravating and mitigating circumstances. See Bivins v. State, 642 N.E.2d
928, 957 (Ind. 1994), cert. denied, 516 U.S. 1077 (1996). We elect
appellate reweighing.
Without the presence of any statutory aggravator, a life without
parole sentence is impermissible. Therefore, we will impose a term of
years for Nicholson’s convictions of murder, robbery as a class B felony
and criminal confinement as a class D felony.[12]
The presumptive sentence for murder is fifty-five years, with a
possible enhancement of up to ten years. Ind. Code Ann. § 35-50-2-3(a)
(West 1998). For class B felonies, the presumptive term is ten years, with
a possible enhancement of ten additional years. Id. § 35-50-2-5. And for
class D felonies, the presumptive term is one and a half years, with a
possible enhancement of one and a half years. Id. § 35-50-2-7.
We conclude consecutive sentences and full enhancements on each count
are warranted. In his pre-sentence memorandum, Nicholson proferred four
mitigating circumstances: (1) remorse, (2) a difficult childhood, (3) the
inability to conform his conduct due to substantial impairment from alcohol
and drug intoxication, and (4) the potential to be a productive member of
society within a structured, controlled environment.[13] The trial court
assigned little to no weight to each of these proffered mitigators. We
agree.
At the sentencing hearing, Nicholson made a statement to the court
expressing remorse. Although he remarked that he was “deeply and genuinely
sorry for the death of Mrs. Heitger,” he criticized the proceedings for not
demonstrating his “true intentions and acts.” (R. at 1635-36.) He
continued by stating, “I never wanted to be involved in any way in the
death of Mrs. Heitger. And I never intended that result.” (R. at 1636.)
Nicholson’s equivocal statement fell short of a full acceptance of
responsibility. See Bonds v. State, 721 N.E.2d 1238, 1243 (Ind. 1999). We
assign low weight to this mitigator.
The pre-sentence memorandum also listed Nicholson’s “dysfunctional,
chaotic and [u]nstable” home life growing up as a mitigator. (R. at 1595.)
Among other things, the report described Nicholson’s surprise encounter
with a burglar at the age of five, a grade-altering scam when Nicholson was
in high school, and his failures at sports. But Nicholson himself seems to
contradict that his home life was a mitigating circumstance. In his
address to the court, he said:
I have a wonderful and loving family. I never wanted for anything
material. . . . [M]ost people would look and see a wonderful
opportunity and there was a wonderful and great extreme chance and
opportunity for me. The choices that I made for whatever reasons . .
. are the choices that I was free to make and to have to live with.
(R. at 1634.) We also note that Nicholson was thirty-six years old at the
time of these crimes. We assign low weight to this mitigator.
As for intoxication as a mitigator, the record demonstrates that
Nicholson’s act of restraining the victim took time and required a
significant degree of physical dexterity. (See R. at 833.) We think this
mitigator was not proven. And as for Nicholson’s final mitigator, that he
would benefit from a controlled environment, it proves, if anything, that
the structured life of prison will be most beneficial to Nicholson’s
productivity.
On the other hand, ample evidence supports numerous aggravators of
some considerable weight. First, the victim was a seventy-eight-year-old
widow who lived alone and had no family. See Ind. Code Ann. § 35-38-1-
7.1(b)(5) (West 1998). Nicholson took advantage of these circumstances in
perpetrating his crimes. Second, Nicholson has a lengthy history of
criminal and delinquent activity. See id. § 35-38-1-7.1(b)(2). His prior
encounters with the law have not dissuaded him from further criminal acts.
Finally, the nature and circumstances of the crimes committed – the
elaborate binding and gagging of an elderly widow – demonstrate a high
level of criminal purposefulness and moral culpability. See id. § 35-38-1-
7.1(a)(2).
We find the aggravating circumstances outweigh the mitigating
circumstances by a sufficient magnitude that maximum and consecutive
sentences should be imposed.
Conclusion
We remand with instructions to impose consecutive sentences of sixty-
five years on Count I, twenty years on Count V, and three years on Count
VII.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Ind. Code Ann. § 35-42-1-1 (West 1998).
[2] Id.
[3] Id. § 35-43-4-2, 35-43-4-2.5.
[4] Id. § 35-42-5-1.
[5] Id. § 35-43-2-1.
[6] Id. § 35-42-3-3.
[7] See id. § 35-50-2-9.
[8] The court had sentenced Nicholson for murder and felony murder for the
same killing, imposed two life sentences for a single murder, and gave both
a term of years and life for the same offense. Id. at 1048.
[9] The court’s order is minimalist. Only a full and detailed recitation
of the trial court’s reasons for imposing the death penalty or life in
prison without parole can allow us to ensure that these penalties are not
imposed arbitrarily or irrationally.
[10] A court may impose the death penalty or life without parole if the
State proves at least one aggravator beyond a reasonable doubt and the
court finds that the mitigating circumstances are outweighed by the
aggravating circumstances. See Ind. Code Ann. § 35-50-2-9(k) (West 1998);
West v. State, 755 N.E.2d 173, 185 (Ind. 2001)(citation omitted).
[11] Although the State argues that the use of the ligature amounted to the
use of a deadly weapon sufficient to support an inference of intent to
kill, our review of the record does not support this conclusion.
(Appellee’s Br. at 4-5.) The ligature was part of the elaborate bindings
and was used as a means of restraint rather than as a deadly weapon.
[12] Although the original convictions were for robbery as a class A felony
and criminal confinement as a class B felony, (R. at 292), both must be
reduced because the enhancement relied upon in both original convictions
was the death of the victim. See Hulfachor v. State, 735 N.E.2d 214, 218
(Ind. 2000)(citation omitted). We previously ordered that the felony
murder conviction be vacated because there was only one victim, and the
theft and burglary charges merge into robbery.
[13] Two additional mitigators were argued during the sentencing hearing.
Nicholson’s attorney argued that a lengthy imprisonment will cause undue
hardship to Nicholson’s family and that few inmates in the Indiana
Department of Corrections reach the age of seventy. (R. at 1426-31, 1632.)
Nicholson presented no evidence to demonstrate that the hardship to his
family would be any worse than that normally suffered by a family whose
relative is imprisoned. Additionally, we cannot see how the age of other
prisoners is relevant. We find no mitigating circumstance on either point.