ATTORNEY FOR APPELLANT
Michael E. Caudill
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Janet L. Parsanko
Deputy Attorney General
Indianapolis, Indiana
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IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
ALBERT A. LEMOS, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-0001-CR-5
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable W.T. Robinette, Judge Pro-Tempore
Cause No. 49G05-9805-CF-080618
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
May 11, 2001
BOEHM, Justice.
Albert Lemos was convicted of murder and sentenced to sixty years
imprisonment. In this direct appeal, Lemos presents two issues for review:
(1) whether the trial court erred by improperly instructing the jury
regarding the mens rea requirement for murder, and (2) whether the trial
court erred in sentencing him to sixty years imprisonment. We affirm the
trial court.
Factual and Procedural Background
In the early morning of May 10, 1998, Albert Lemos, Gary Morrison, and
Vongsa Phetsomphou left Lemos’ home looking for Michael Pergusan, who had
allegedly stolen two of Lemos’ aunt’s bracelets. They found Pergusan in
the back seat of an abandoned Lincoln Continental in the parking lot of an
apartment complex.
Lemos approached the car, leaned in the back door, and, with the help
of Phetsomphou, pulled Pergusan from the car. As Phetsomphou held
Pergusan, Lemos stabbed him in the back with a pocketknife. Pergusan
struggled free, but was knocked to the ground and kicked in the face.
Pergusan was then held against a wall while Lemos stabbed him in the chest,
piercing his heart. Pergusan died at the hospital. Lemos was found guilty
of murder and sentenced to an aggravated sentence of sixty years.
I. Jury Instructions
Lemos argues that the jury instructions defining the mens rea of
murder allowed the jury to confuse the culpable mental states—“knowingly”
and “intentionally”—and convict on findings that do not support a murder
conviction. Lemos did not raise these objections at trial. Therefore, he
has waived the issue unless he can show that the instructions constituted
fundamental error. Garrett v. State, 714 N.E.2d 618, 622 (Ind. 1999).
This requires an error so serious and prejudicial that it rendered a fair
trial impossible. Barany v. State, 658 N.E.2d 60, 64 (Ind. 1995).
The charging information alleged that Lemos “knowingly” killed another
human being. The jury was instructed pursuant to Indiana Code section 35-
41-2-2(a) that a person acts “knowingly” if, “when he engages in the
conduct, he is aware of the high probability that he is doing so.” It was
also instructed that Lemos acted “intentionally” if the “intent to kill may
be inferred from the use of a deadly weapon in a manner likely to cause
death or great bodily harm.” Lemos contends that the instruction was an
incorrect statement of the law and constituted fundamental error. He
argues that this language permitted the jury to find intent where only
great bodily harm was “likely.” He argues that the instruction on
intentional killing reduced the requirement from a “high probability” of
death to a “likely” result of bodily injury.
The jury instructions do not constitute fundamental error. The
instruction on intent arguably had the effect Lemos claims. However, the
mens rea requirement in the intentional instruction that the trial court
gave is a proper formulation of that requirement for a “knowing” killing.
Barker v. State, 695 N.E.2d 925, 931 (Ind. 1998). Thus the combination of
the instructions, although superfluous, did not create a false impression
of the law. To the contrary, in order to convict under these instructions,
the jury must have found a mens rea that was consistent with the law. It
is true that the instruction on intentional killing was unnecessary because
the charge alleged only a “knowing” killing. However, given that the
“intentional” instruction was a correct statement of the law for a
“knowing” killing, there was a correct instruction on “knowing,” and that
the defendant was charged with a “knowing killing,” we cannot say that the
inclusion of this redundant but correct instruction rendered a fair trial
impossible.
II. Sentencing Error
Lemos contends that the trial court’s sentence of sixty years was
manifestly unreasonable. Much of the argument in support of this claimed
error suggests it is more in the nature of a procedural flaw than the
imposition of a manifestly unreasonable sentence.
A. Aggravating Circumstances
Lemos contends that the trial court abused its discretion by finding
three aggravating circumstances: (1) Lemos’ criminal history, (2) that
Lemos sought out Pergusan, and (3) that Lemos killed Pergusan with a knife.
If the trial court relies on aggravating or mitigating circumstances, the
court must (1) identify all of the significant mitigating and aggravating
circumstances, (2) state the specific reason why each circumstance is
considered to be mitigating or aggravating, and (3) articulate the court’s
evaluation and balancing of the circumstances to determine if the
mitigating circumstances offset the aggravating ones. Harris v. State, 659
N.E.2d 522, 527-28 (Ind. 1995).
Lemos first contends that the trial court failed to provide reasons
why each circumstance was aggravating, or why his criminal history was an
aggravating circumstance. The trial court stated that Lemos’ prior
criminal record and the nature and circumstances of the crime warranted an
aggravated sentence. Although the trial court did not give a detailed
explanation of Lemos’ criminal history, the presentence investigation
report indicates that Lemos was on probation for battery at the time of the
murder and that he had been convicted of another felony. The trial court
took notice of Lemos’ criminal history and judged it to be an aggravating
circumstance. This is sufficient. Ellis v. State, 707 N.E.2d 797, 804
(Ind. 1999) (non-violent Class D felony and various misdemeanor convictions
were sufficient to enhance sentence).
Lemos also contends that because seeking out Pergusan and killing him
with a knife are elements of the crime, they are inappropriate aggravating
circumstances. Lemos is correct that a trial court may not use a material
element of the offense as an aggravating circumstance. Spears v. State,
735 N.E.2d 1161, 1167 (Ind. 2000). However, the trial court may find the
nature and circumstances of the offense to be an aggravating circumstance.
Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). The fact that Lemos
and his assistants hunted down Pergusan is part of the nature and
circumstances of the crime, not an element of the crime itself. The trial
court was within its discretion to consider this factor as an aggravating
circumstance. The fact that a knife was used is in itself not an
aggravating circumstance, because some means is used in every murder.
However, it is not clear that the trial court concluded this was a separate
aggravating circumstance. In any event, one aggravating circumstance is
sufficient to support the trial court’s sentence. Miller v. State, 716
N.E.2d 367, 371 (Ind. 1999).
Mitigating Circumstances
Lemos also contends that the trial court failed to address the
mitigating circumstances. On direct appeal, Lemos presents the following
mitigating circumstances: (1) the involvement of the co-defendants, (2)
that the victim induced the crime, (3) that the wound was fatal for want of
medical attention, (4) that Lemos did not have a stable upbringing, (5)
that Lemos has no history of violence, and (6) that Lemos was intoxicated.
On appeal, a mitigating circumstance must be significant and clearly
supported by the record. Spears, 735 N.E.2d at 1167. A trial court need
not agree with defendant’s assertion of a mitigating circumstance, and the
finding of a mitigating circumstance is within the discretion of the trial
court. Id. If a mitigating circumstance is not raised by the defendant at
trial, it is not available on appeal. Id. The only mitigating
circumstances raised at trial were Lemos’ unstable upbringing, his claimed
lack of criminal history, and that he was intoxicated at the time of the
offense. Therefore, he has waived his claim of error based on the first
three circumstances he identifies on appeal.
Lemos contends that his family history should be a mitigating
circumstance. The record presents conflicting factual information
concerning Lemos’ upbringing. Although Lemos raised this circumstance
during the sentencing phase of his trial, the presentence investigation
report indicates that Lemos described his family as close and supportive,
and denied any form of abuse or mistreatment. In view of this
inconsistency, Lemos’ family history as a mitigating circumstance is not
clearly supported by the record and the trial court was within its
discretion to refuse to find it to be a mitigating circumstance.
As to Lemos’ criminal history, the trial court found this to be an
aggravating, not a mitigating, circumstance. Finally, intoxication as a
mitigating circumstance involves the consideration of various factors that
are best left to the trial court’s discretion. In Legue v. State, 688
N.E.2d 408, 411 (Ind. 1997), this Court observed that:
[W]e are reluctant to hold that mitigating consideration is
necessarily required for sentencing when, at the time of an offense,
the defendant was intoxicated. . . . Finding such circumstance to be
mitigating may involve the consideration and evaluation of various
factors, among them the degree of intoxication and the defendant’s
culpability in the knowing and voluntary consumption of alcohol.
These matters are best left to the sound discretion of the trial
court.
The trial court heard evidence relating to Lemos’ intoxication at trial and
at sentencing. The trial court did not make a specific finding of
mitigation based on intoxication at the time of the offense. This was not
an abuse of discretion.
Manifestly Unreasonable
Lemos also contends that his sentence is manifestly unreasonable.
Although this Court has the constitutional authority to revise and review
sentences, Ind. Const. art. VII, § 4, it will do so only when the sentence
is “manifestly unreasonable in light of the nature of the offense and the
character of the offender.” Former Ind.Appellate Rule 17(B) (now App.R.
7(B)). This Court’s review under Rule 17(B) is very deferential to the
trial court: “[T]he issue is not whether in our judgment the sentence is
unreasonable, but whether it is clearly, plainly, and obviously so.” Bunch
v. State, 697 N.E.2d 1255, 1258 (Ind. 1998) (quoting Prowell v. State, 687
N.E.2d 563, 568 (Ind. 1997)).
The same facts on which the trial court based its aggravated sentence
also support the finding that Lemos’ sentence is not “manifestly
unreasonable in light of the nature of the offense and the character of the
offender.” As to the “nature of the offense,” Lemos killed Pergusan after
seeking him out, helping to pull him from a car, and stabbing him multiple
times while he was immobilized by an accomplice. As for “character of the
offender,” Lemos has a past criminal history that includes violent crimes,
and was on probation for battery at the time of the murder. Lemos’
sentence is not manifestly unreasonable.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON and RUCKER, JJ., concur.
SULLIVAN, J., concurs except as to Part 2-C, as to which he concurs in
result.