Attorney for Appellant
Robert V. Clutter
Indianapolis, Indiana
Attorneys for Appellee
Jeffery A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
IN THE
INDIANA SUPREME COURT
OSHUN R. GRACE,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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) Supreme Court No.
) 49S00-9804-CR-241
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary Miller, Judge
Cause No. 49G05-9701-CF-3520
ON DIRECT APPEAL
June 30, 2000
SULLIVAN, Justice.
Defendant Oshun Grace was convicted of murder, conspiracy, and three
robbery counts for arranging for two accomplices to commit those crimes.
He contends that the evidence of his involvement was insufficient to
sustain his convictions. Our analysis is to the contrary, as it is on his
claim that the trial court allowed inadmissible testimony. We do find the
evidence insufficient to sustain one conviction and that enhancements to
three others violate double jeopardy protections.
We have jurisdiction over this direct appeal because the longest
single sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind.
Appellate Rule 4(A)(7).
Background
The facts most favorable to the verdict indicate that Eugene Davies
III (“Davies”) lived with his girlfriend, Kimberly Scott, in Indianapolis.
On the evening of February 24, 1996, Davies’s father, Eugene Davies, Jr.
(“Davies’s father”), was visiting his son and Scott when they heard a knock
on the door. Davies opened the door and Defendant Oshun Grace was standing
outside. Defendant and Davies exchanged comments and Defendant stepped
into the apartment. Within a few seconds, two masked men brandishing
weapons forced their way into the apartment behind Defendant.
One of the masked men held a gun to Davies’s head and took him to the
back of the apartment; the other told Scott and Davies’s father to get down
on the floor and started kicking Davies’s father and beating him with a
handgun. Scott and Davies’s father testified that they heard shouting and
crashing noises from the back of the apartment and that one of the masked
men instructed them to start counting to 100. Scott and Davies’s father
also heard one of the men in the back of the apartment ask Davies “if he
had any money or ‘Where’s your money?’” (R. at 223, 243.) The intruders
demanded money from Davies’s father and took Scott’s purse. They took
money and a pager from Davies. Soon thereafter, Scott and Davies’s father
heard two gun shots, someone yelled, “Let’s get out of here,” and the
intruders ran out of the apartment. (R. at 225-26, 243-44.)
After Defendant and the gunmen had fled, Davies emerged from the back
room injured and bleeding from gunshot wounds to the face and abdomen.
Scott called 911 as Davies collapsed to the floor. Davies underwent
surgery, regained consciousness, and had conversations with Scott about the
incident before he died six weeks later from the gunshot wound to his
abdomen.
On January 8, 1997, Defendant was charged by information with
Murder,[1] Felony Murder,[2] Conspiracy to Commit Robbery as a Class A
felony,[3] and three counts of Robbery as Class A felonies.[4] A jury
found Defendant guilty of all counts as charged. At sentencing, the trial
court found that the aggravating circumstances outweighed the mitigating
circumstances on all counts and imposed a fully enhanced sentence of 65
years for murder[5] and 50 years for each of the robbery convictions and
conspiracy to commit robbery conviction. The sentencing judge ordered
Defendant to serve the sentence for conspiracy to commit robbery and the
three sentences for robbery concurrently, but ordered Defendant to serve
those concurrent sentences consecutive to the sentence for murder, for a
total executed sentence of 115 years.
Additional facts will be provided as necessary.
Discussion
I
Defendant argues that the trial court committed reversible error when
it allowed inadmissible hearsay testimony and speculation from Scott.
Scott testified to statements made by Davies while he was hospitalized
before his death. Specifically, Scott testified that Davies told her that
he thought Defendant “was in on [the robberies], that it was his job to
knock on the door so [Davies] would open the door while the others were
standing right outside, waiting to come in behind [Defendant].” (R. at 235-
36.) However, when Defendant’s counsel objected to the testimony at trial,
he did not object based on hearsay or speculation grounds. Counsel
objected that the question was leading, and also that it elicited “some
condition of mind.” (R. at 234.)
Grounds for objection must be specific and any grounds not raised in
the trial court are not available on appeal. Williams v. State, 690 N.E.2d
162, 173 (Ind. 1997) (citing Mullins v. State, 646 N.E.2d 40, 44 (Ind.
1995) (“In order to preserve a claim of trial court error in the admission
or exclusion of evidence, it is necessary at trial to state the objection
together with the specified ground or grounds therefore at the time the
evidence is first offered.”)); see also Ingram v. State, 547 N.E.2d 823,
829 (Ind. 1989) (recognizing that grounds not raised in the trial court are
not available on appeal). Because Defendant’s counsel did not object to
the proffered testimony on hearsay and speculation grounds, Defendant’s
claims of hearsay and speculation are not available on appeal.
Even if the trial court erroneously admitted the testimony, erroneous
admission of evidence is not reversible error when evidence of the same
probative value was admitted without objection. Garrison v. State, 589
N.E.2d 1156, 1159 (Ind. 1992); Davidson v. State, 558 N.E.2d 1077, 1089
(Ind. 1990). The substance of Scott’s testimony regarding Defendant’s role
in the crimes was also introduced by means of Ivan Rouse’s testimony.
Rouse testified that on February 24, 1996, Defendant arrived at the home of
Heather Guest, Rouse’s girlfriend, sometime after 8:00 p.m. Rouse was
visiting Guest on that evening. He testified that Defendant was “short of
breath” when he arrived (R. at 269), and that soon thereafter, others
ultimately charged with these crimes also arrived. Rouse further testified
that later in the evening, Defendant told him that he went to the apartment
with the other robbers and that his role was to be the “setup” person — he
was to knock on the door so the other robbers could force their way in
after Davies opened the door. (R. at 279.) Rouse’s testimony was
admitted without objection. Therefore, Scott’s testimony was at worst
merely cumulative, providing evidence of the same probative value as
Rouse’s admissible testimony.[6]
II
Defendant contends that the evidence of his involvement in all of the
crimes was insufficient to sustain his convictions. In light of our
standard of review for sufficiency of the evidence claims, our decision in
Part I, supra, that Scott’s testimony was not inadmissible, and Rouse’s
testimony as to Defendant’s acknowledgment of his role in the crimes, we
find that the evidence and reasonable inferences to be drawn therefrom
supported the jury’s verdicts.
III
Defendant also argues that there was insufficient evidence to sustain
his conviction for the robbery of Davies’s father. Indiana Code § 35-42-5-
1 (1993) defines robbery as the knowing or intentional taking of property
from another person or from the presence of another person by force or
threat of force. The mere threat of taking property is insufficient to
support the taking element of robbery. See, e.g., Richardson v. State, 717
N.E.2d 32, 52 (Ind. 1999) (“[A]n essential element of . . . robbery is the
taking of some type of property.”); Carter v. State, 686 N.E.2d 834, 838
(Ind. 1997) (“[R]obbery requires that property be taken.”) (emphasis in
original), reh’g denied; Cooper v. State, 656 N.E.2d 888, 889 (Ind. Ct.
App. 1995) (“It is not until the property is successfully removed from the
premises or the person’s presence that the robbery is complete.”).
In the present case, the State presented no evidence that Defendant
and the intruders actually took property from Davies’s father. Scott
testified that her purse was stolen; Davies’s father testified that he
heard gunmen demanding money from his son; and Scott testified that the
gunmen demanded money from Davies’s father. But nothing in the record
indicates that the gunmen actually took property from Davies’s father.
We neither reweigh the evidence nor assess the credibility of
witnesses when reviewing a sufficiency of the evidence claim. Thornton v.
State, 712 N.E.2d 960, 961 (Ind. 1999). We only consider the evidence most
favorable to the jury’s verdict, draw all reasonable inferences therefrom,
and will affirm a conviction if the probative evidence and reasonable
inferences drawn from the evidence could have led the jury to find a
defendant guilty beyond a reasonable doubt. Love v. State, 721 N.E.2d
1244, 1245 (Ind. 1999). But to sustain a conviction under a sufficiency of
the evidence challenge, there must be sufficient evidence on each material
element. Kingery v. State, 659 N.E.2d 490, 493 (Ind. 1995), reh’g denied.
Without the taking of property, and no evidence from which to draw an
inference that property was taken, there can be no conviction for robbery.
Therefore, we reverse and vacate that portion of the trial court’s orders
convicting and sentencing Defendant for the robbery of Davies’s father.
IV
Defendant lastly contends that his conspiracy to commit robbery and
robbery convictions should be reduced from Class “A” to “B” felonies.
Defendant contends that because he was convicted and sentenced for the
death of Davies, the trial court violated his double jeopardy protections
under the Indiana Constitution, Article I, Section 14, by using that same
injury to elevate the felony level of his robbery convictions and to
enhance the associated sentences. Appellant’s Br. at 6-7. We agree.
In Hampton v. State, 719 N.E.2d 803 (Ind. 1999), we held that a
defendant cannot be convicted of both murder and robbery as a Class A
felony when “both the murder conviction and the enhanced robbery conviction
are based on the same bodily injury to the [same] victim.” Id. at 808. We
analyzed the issue applying the double jeopardy standard set forth in
Richardson v. State, 717 N.E.2d 32 (Ind. 1999).
Here, as in Hampton, there is more than “‘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 [the] second challenged offense.’” Hampton, 719 N.E.2d at 809 (quoting
Richardson, 717 N.E.2d at 53). In fact, the charging information in the
present case, which was read to the jury, alleges that Defendant (1)
murdered Davies, and (2) committed three robberies, as Class A felonies,
because the robberies resulted in death to Davies. Defendant’s murder
conviction and his enhanced robbery convictions were based on the same
bodily injury to the same victim, and as such, cannot stand together.
However,
Conclusion
We affirm Defendant’s convictions and sentence except that (1) we
reverse Defendant’s conviction for the robbery of Eugene Davies, Jr., and
(2) we reduce Defendant’s two remaining robbery convictions and conspiracy
to commit robbery conviction from Class A felonies to Class B felonies. We
remand to the trial court with instructions to vacate the sentence for the
robbery of Eugene Davies, Jr., and to impose a total executed sentence of
85 years (concurrent sentences of fully enhanced 20 years for conspiracy to
commit robbery and two counts of robbery to be served consecutive to a
fully enhanced 65 year term for murder).
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
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[1] Ind. Code § 35-42-1-1 (1993).
[2] Id. § 35-42-1-1(2).
[3] Id. §§ 35-41-5-2 & 35-42-5-1.
[4] Id. § 35-42-5-1.
[5] The trial court merged Defendant’s felony murder conviction into his
murder conviction.
[6] Defendant also appears to challenge the admission of testimony offered
by Scott that Davies told her that he recognized the person who knocked on
the door as a friend of his brother and that the intruders took his pager
and some money. Appellant’s Br. at 10-11. Defendant’s counsel did not
enter any objection when this testimony was presented at trial. As
indicated supra, absent timely objection, an argument is not preserved for
appeal. See Ingram, 547 N.E.2d at 829.