ATTORNEY FOR APPELLANT
Michael E. Caudill
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Janet L. Parsanko
Deputy Attorney General
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
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 aunts 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 statesknowingly and intentionallyand 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
II. Sentencing Error
Lemos contends that the trial courts 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 courts
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
courts sentence. Miller v. State, 716 N.E.2d 367, 371 (Ind. 1999).
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
Spears, 735 N.E.2d at 1167. A trial court need not
agree with defendants 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 courts
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 defendants
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.
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 Courts 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.
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