ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KATHERINE A. CORNELIUS KAREN M. FREEMAN-WILSON
Marion County Public Defender Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
SUPREME COURT OF INDIANA
JOHN HAWKINS, )
) Supreme Court Cause Number
v. ) 49S00-0005-CR-298
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G01-9708-CF-127418
ON DIRECT APPEAL
May 24, 2001
In the early evening hours of August 21, 1997, Rogshan Love and Steven
Webber were walking along 19th and Decker Street in Indianapolis. Driving a
green Chevy Caprice, John Hawkins stopped the car, pointed a shotgun out the
window, fired the weapon at Love, and drove away. A later autopsy
revealed that Love died as a result of multiple shotgun wounds to the
neck and chest.
Hawkins was ultimately arrested and charged with Loves murder. After a trial
by jury, he was convicted as charged and later sentenced by the court
to the maximum term of sixty-five years imprisonment. In this direct appeal,
Hawkins contends the evidence was insufficient to sustain the conviction and that he
should not have received an enhanced sentence. We disagree with both contentions
and therefore affirm.
For his sufficiency claim, Hawkins contends the State failed to show that he
possessed the requisite knowing mens rea to shoot or kill Mr. Love.
Br. of Appellant at 14. Hawkins is mistaken. A person engages in
conduct knowingly if, when he engages in the conduct, he is aware of
a high probability that he is doing so. Ind.Code § 35-41-2-2(b).
A knowing killing may be inferred from the use of a deadly weapon
in a manner likely to cause death. Barker v. State, 695 N.E.2d
925, 931 (Ind. 1998). Evidence that Hawkins pointed and fired a shotgun
at Love striking him in the neck and chest is sufficient to sustain
the murder conviction.
Identifying four aggravating factors and three mitigating factors and determining that the aggravators
outweighed the mitigators, the trial court sentenced Hawkins to a term of sixty-five
years imprisonment. For the aggravators the court noted: (1) Hawkins prior
juvenile and adult criminal history; (2) that Hawkins was in need of correctional
or rehabilitative treatment that could best be provided by confinement to a penal
institution; (3) that imposition of a sentence below the presumptive would depreciate the
seriousness of the crime; and (4) that Loves family recommended an enhanced sentence.
In mitigation the court noted: (1) Hawkins expression of remorse; and
(2) that he was nineteen years of age.
Hawkins correctly asserts that the third and fourth factors are not proper aggravators.
According to Hawkins, once the improper aggravators are removed from the equation
it is unclear whether the trial court would have still found the aggravating
circumstances outweighed the mitigating circumstances. Br. of Appellant at 11. Hawkins
argues we should either revise his sentence to the minimum time or remand
for resentencing. We decline to do either.
We acknowledge that the depreciate the seriousness aggravator is appropriate only where the
trial court is considering a reduced sentence. Georgopulos v. State, 735 N.E.2d
1138, 1144 (Ind. 2000). There is no indication in the record that
the trial court was considering a reduced sentence in this case. Also,
although recommendations by a victims family may be used by the court to
assist it in making a sentencing decision, the recommendations are not mitigating or
aggravating circumstances as those terms are used in the sentencing statute. Edgecomb
v. State, 673 N.E.2d 1185, 1199 (Ind. 1996). Nonetheless, a single aggravating
circumstance is adequate to justify a sentence enhancement. Georgopulos, 735 N.E.2d at
1146; see also Logan v. State, 729 N.E.2d 125, 136 (Ind. 2000) (declaring
that several mitigating factors may be outweighed by one aggravating factor). Further,
when a sentencing court applies proper aggravating circumstances along with improper aggravators, a
sentence enhancement may still be upheld. Gibson v. State, 702 N.E.2d 707, 710
(Ind. 1998). In this case, the single aggravating factor of Hawkins prior
criminal history is enough to support an enhanced sentence. The history includes
an April 1995 juvenile true finding of battery that would have been a
D felony if charged as an adult; a September 1995 juvenile true finding
of battery, involving a stabbing, that would have been a C felony if
charged as an adult; a November 1996 juvenile true finding of auto theft
that would have been a D felony if charged as an adult; and
a 1997 conviction as an adult for carrying a handgun without a license.
R. at 427-28.
We affirm Hawkins conviction and sentence.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.