ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RANDALL J. HAMMOND JEFFREY A. MODISETT
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
SUPREME COURT OF INDIANA
SIRLANDO D. LOGAN, )
v. ) Supreme Court Cause Number
STATE OF INDIANA, )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable John F. Surbeck, Jr., Judge
Cause No. 02D04-9602-CF-85
ON DIRECT APPEAL
May 26, 2000
A jury convicted Sirlando Logan of murder, felony murder, and robbery of a
pizza deliveryman. The State requested and the jury recommended that Logan be
sentenced to life imprisonment without parole. The trial court followed the jurys
recommendation. The trial court also sentenced Logan to a term of years for
robbery as a Class A felony. In this direct appeal Logan raises
six issues for our review which we separate into seven and rephrase as
follows: (1) did the trial court err in denying Logans motion to
suppress evidence; (2) did the trial court err in allowing evidence of a
witnesss out-of-court identification of Logan; (3) did the trial court err in precluding
Logan from questioning prospective jurors regarding life without parole during voir dire; (4)
did the trial court err in precluding Logan from cross-examining a witness regarding
a juvenile car-jacking adjudication; (5) did the trial court err in permitting the
State to question Logan regarding a prior conviction; (6) was the evidence sufficient
to support the convictions; and (7) was the evidence sufficient to support a
sentence of life without parole. We address sua sponte whether the trial
court erred in sentencing Logan for robbery as a Class A felony.
We affirm and remand.
In the late evening hours of February 15, 1996, Logan and four accomplices
ordered a pizza from Saylors Pizza Parlor in Fort Wayne and directed that
it be delivered to a nearby address. Saylors Pizza employee Milton Turner
went to the address, knocked on the door, and a woman answered.
She informed Turner that she had not ordered pizza. Logan, who was
standing on the front porch of the building, told Turner the pizza was
to be delivered to a side apartment that was located down a dark
hallway. Turner refused to enter the hallway and told Logan that whomever
ordered the pizza would have to call Saylors Pizza to confirm the address.
Turner left and drove back to work.
Logan and his companions made another call to Saylors Pizza demanding delivery of
their order. When Turner returned, he told the stores owner that he
would not re-deliver the pizza because he saw four shadows in a dark
hallway and believed he was being lured into a dangerous situation. Employees
Don Riebersol and Jean Poff agreed to make the delivery.
Riebersol and Poff drove to the address and knocked on the door.
Logan was again standing on the front porch and motioned the pair to
come to the side apartment down the dark hallway. They complied.
Once in the hallway, they were confronted by three other young men.
Logan stood behind them and told Riebersol to knock on the apartment door.
Riebersol again complied and a young male answered. Riebersol handed the
pizza to the man and asked about payment. Logan produced a handgun
and, using it as a club, struck Riebersol in the face. Logan
then began firing the handgun at Riebersol. Riebersol, Poff, and Logans companions
ran out of the hallway. Riebersol was shot three times and collapsed
on the sidewalk outside the apartment. As Riebersol lay on the ground,
Logan grabbed him by the hair, lifted his head off the ground, and
put the gun to his head. Poff, who had escaped injury, screamed
and pleaded for Logan not to kill Riebersol. Logan dropped Riebersols head
onto the ground, reached inside Riebersols pocket, removed cash, and fled. Riebersol
ultimately died of a gunshot wound to the abdomen.
Later that evening, police determined that the call to Saylors Pizza had been
made from the home of three of the young men involved in the
robbery. Those men identified Logan as the shooter and gave police the
address where Logan was staying. Logan was residing with Helen Cunegin and
her son, using the living room couch as a bed. Police went
to the address and knocked on the door. Logan answered and the
police immediately took him into custody. Police obtained Cunegins consent to
search the home and discovered pizza boxes and the gun used in the
The State charged Logan with murder, felony murder, and robbery resulting in serious
bodily injury. The State also sought to have Logan sentenced to life
without parole. In a bifurcated trial, a jury convicted Logan as charged
and recommended that Logan be sentenced to life without parole. On the
robbery conviction, the trial court sentenced Logan to thirty years imprisonment. Upon
the jurys recommendation, the trial court sentenced Logan to life without parole for
murder. The trial court did not sentence Logan on the felony murder
conviction. This direct appeal followed. Additional facts are set forth below
I. Search and Seizure
Prior to trial, Logan filed a motion to suppress as evidence the gun
and pizza boxes. After a hearing the trial court denied the motion.
Over Logans objection, the evidence was introduced at trial. Logan contends
the trial court erred in allowing the exhibits into evidence because the search
was conducted without a warrant and that Cunegins alleged consent to his private
living space was not valid.
Searches and seizures conducted outside the judicial process, without prior approval by judge
or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a
few specifically established and well-delineated exceptions. Middleton v. State, 714 N.E.2d 1099,
1101 (Ind. 1999) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)
(footnote omitted)). One exception to the federal prohibition on warrantless searches exists
where consent to a search is given by a third party who has
common authority over the premises. United States v. Matlock, 415 U.S. 164,
171 (1974); Brown v. State, 691 N.E.2d 438, 443 (Ind. 1998). The
consent of one who possesses common authority over the premises or effects is
valid against the absent, non-consenting person who shares the authority. Trowbridge v.
State, 717 N.E.2d 138, 144 (Ind. 1999). Common authority depends on mutual
use of the property by persons generally having joint access or control for
most purposes, so that it is reasonable to recognize that any of the
co-habitants has the right to permit the inspection. Id. The State
has the burden of proving that an exception to the warrant requirement existed
at the time of the search. Brown, 691 N.E.2d at 443.
Additionally, when reviewing a trial courts determination of the validity of a search,
we consider the evidence favorable to the trial court's ruling and any uncontradicted
contrary evidence. Id. The test is sufficiency of the evidence.
Logan contends that Cunegin did not possess common authority over the living room
and thus, lacked the authority to consent to the search. He cites
the testimony of Cunegin and her son given at the motion to suppress
hearing, indicating they would not enter the room without Logans permission. Although
other evidence tended to show Cunegin and her son held common authority over
the living room, we need not determine whether they in fact had such
authority. That issue bears mainly on the credibility and weight of the
evidence, and here the trial court did not render its decision on that
basis. Rather, the trial court found that police reasonably relied on Cunegins
consent in searching the room. The trial courts ruling focused on the
key inquiry in consent cases, the reasonableness of the police conduct. See
Illinois v. Rodriguez, 497 U.S. 177, 186-87 (1990) ([W]hat is at issue when
a claim of apparent consent is raised is not whether the right to
be free of searches has been waived, but whether the right to be
free of unreasonable searches has been violated.). Even if a third party
who consents to a search does not have common authority over, or the
requisite relationship to, the premises, the warrantless search is still valid if the
officers reasonably believed the third party had common authority or the requisite relationship.
Trowbridge, 717 N.E.2d at 144; see Canaan v. State, 683 N.E.2d 227,
231-32 (Ind. 1997); Rodriguez, 497 U.S. at 179; Perry v. State, 638 N.E.2d
1236, 1241 (Ind. 1996). As with other factual determinations bearing upon search
and seizure, determination of consent to enter must be judged against an objective
standard: would the facts available to the officer at the moment .
. . warrant a man of reasonable caution in the belief that the
consenting party had authority over the premises. Rodriguez, 497 U.S. at 188
(quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)).
The record in this case supports the conclusion that the officers reasonably relied
on Cunegins consent. When police sought Cunegins consent to search the home,
she told them that she rented and lived in the home with her
son and that Logan was staying with her until he found another place
to live. Cunegins statement came after police had seen her emerge from
one of the homes two bedrooms upon their entry into the home in
the early morning hours following the shooting. The room over which Logan
contends he had exclusive control was a living room furnished in the manner
one might expect to find such a room. It contained a couch,
a television, stereo equipment, and other furniture. No bed or personal effects
were in the room. Furthermore, from the front door of the house,
officers had to pass through the living room to gain access to the
rest of the home, and when police arrived, Cunegins son was in the
living room watching television. We find nothing in the record to indicate
that police should have been on notice that the room was anything other
than what it appeared to be - a living room used by all
the residents of the home. Given the facts available at the time,
the police officers belief that Cunegin had the authority to consent to a
search of the room was reasonable. The trial court did not err
by allowing into evidence the items seized as a result of the search.
Prior to trial, Logan filed a motion in limine seeking to preclude any
reference to witness Poffs out-of-court identification. The essential facts are these.
On the night of the shooting Poff went to the Fort Wayne Police
Department where she was questioned by several officers. After questioning she sat
on a bench in the lobby waiting for a ride home. Subsequently,
she saw a handcuffed Logan being escorted through the lobby. According to Poff
I just looked up, he looked at me, we stared, I said Im
going to get sick and I just yelled, hes the one. R.
at 642. At the hearing on the motion in limine, the officer
who escorted Logan through the lobby testified that he was unaware of Poffs
presence, that he did not present Logan to Poff for identification, and that
he was taking Logan upstairs to the detective bureau for questioning. The
trial court denied Logans motion. And over Logans objection at trial, the
trial court allowed introduction of testimony concerning Poffs out-of-court identification. Also over
Logans objection, the trial court allowed Poffs in-court identification. Asserting the confrontation
was staged, Logan contends the trial court erred by allowing the out-of-court identification
into evidence. He also contends the out-of-court identification provided the basis for
Poffs in-court identification.
When a trial court has admitted evidence of both a pre-trial and an
in-court identification of the accused by the same witness, we must determine whether,
under the totality of the circumstances, the pre-trial confrontation was so unnecessarily suggestive
and conducive to irreparable mistaken identification that the accused was denied due process
of law. Brooks v. State, 560 N.E.2d 49, 55 (Ind. 1990).
If under the totality of the circumstances we find the out-of-court procedure was
not impermissibly and unnecessarily suggestive, then evidence of both the pre-trial identification and
the in-court identification are properly admissible. Id. at 55. However, the
underlying premise of this rule presupposes the police conducted a pre-trial confrontation in
the first instance. See, e.g., Wethington v. State, 560 N.E.2d 496, 501
(Ind. 1990) (commenting on exigencies associated with the police decision to utilize a
show-up procedure as opposed to other alternatives . . . .). In
this case the trial court determined that the out-of-court confrontation was purely coincidental
and was not staged by officers of the Fort Wayne Police Department.
The evidence of record supports the trial courts determination, and Logans argument to
the contrary amounts to an invitation for this court to reweigh the evidence.
We decline. The trial court did not err in allowing testimony
of either the pre-trial or the in-court identification.
Further, assuming for the sake of argument that the officers did indeed stage
the confrontation and that the confrontation was unduly suggestive, Logan still cannot prevail.
Notwithstanding an unduly suggestive pre-trial procedure, in-court identification is nonetheless admissible if
the witness has an adequate independent basis for [the] in-court identification. Brown
v. State, 577 N.E.2d 221, 225 (Ind. 1991); see also French v. State,
516 N.E.2d 40, 42 (Ind. 1987); Henson v. State, 467 N.E.2d 750, 753
(Ind. 1984). The factors the court considers in determining whether an independent
basis exists include:
The amount of time the witness was in the presence of the perpetrator
and the amount of attention the witness had focused on him, the distance
between the two and the lighting conditions at the time, the witnesss capacity
for observation and opportunity to perceive particular characteristics of the perpetrator, the lapse
of time between the crime and the subsequent identification. . . .
Wethington, 560 N.E.2d at 503. Here, Poff testified that there was enough
light in the darkened hallway so that she could see everyone there, R.
at 634; that she was just a short distance away from where Riebersol
had fallen when she saw Logan raise Riebersol by his hair and point
the gun at his head, R. at 626; that while engaged in this
conduct, Logan looked at her for a few minutes, Id.; and that Logan
also pointed the gun at her. R. at 627. We conclude a
basis for Poffs in-court identification existed independent of any alleged pre-trial procedure for
the out-of-court identification. On this additional ground, the trial court did not
err in admitting the in-court identification.
III. Qualifying Jury for Life Without Parole
Logan next complains about the manner in which the trial court conducted the
voir dire examination of prospective jurors. The record shows that prior to
trial the trial court ruled that during voir dire neither party would be
permitted to question prospective jurors regarding a sentence of life without parole.
Rather, the trial court decided to conduct that portion of the examination itself.
In so doing, the court informed the parties that they could submit
questions to the court, and if appropriate, it would in turn pose the
questions to the prospective jurors.
When the entire jury venire was subsequently brought into the court room, the
trial court informed the group that if Logan was found guilty of the
crimes charged, there would be a second phase or proceeding in which the
jury would be asked to make a recommendation as to whether Logan should
be sentenced to a term of years or imprisoned for life without parole.
The court then told the prospective jurors:
And the question I need you to ask or have you consider is
whether or not, whether you can follow your oaths as jurors and follow
the law and the evidence as its given to you and make a
decision which is going to be a weighing sort of process and well
help you define it in our instructions and arguments from counsel or whether
you would automatically go to a particular recommendation, whether that recommendation be life
without parole or to a term of years as recommended by me.
And thats the question well ask and ask you to answer, is whether
you can hear evidence, follow the instructions, or whether you would automatically come
to a conclusion without making that weighing decision that were going to ask.
R. at 310-11.
Voir dire of the jurors was then conducted in groups of three.
Before the attorneys questioned the prospective jurors, the court asked each group if
they could make a decision regarding punishment based upon the law and the
evidence or would they automatically recommend life without parole or a term of
years based upon other considerations. R. at 341, 359, 363-64, 378-79, 398-99,
414, 437-38, 463, 489-90, 509-10, 529, 548. Each prospective juror who was
subsequently seated answered that he or she would make the recommendation based on
the law and evidence.
In this appeal, Logan contends the trial court improperly limited jury selection with
regard to the sentencing phase of the trial when it precluded Mr. Logan
from qualifying potential jurors as to their feelings, opinions, and predispositions regarding a
sentence of life imprisonment without any chance for parole. Brief of Appellant
at 21. Logan argues that just as in capital cases where counsel is
permitted to death qualify a jury, he should have been permitted to LWOP
qualify the jury in this case.
In capital cases, prospective jurors may be questioned about their beliefs regarding the
death sentence to determine whether they will be able to follow their oath
and the law regarding imposition of the death sentence. Witherspoon v. Illinois,
391 U.S. 510, 522 (1968); Fleenor v. State, 514 N.E.2d 80, 83-84 (Ind.
1987). Those jurors who have firmly-held beliefs that would prevent or substantially
impair them from being able to follow the law and consider imposition of
a death sentence if called upon to do so, may be removed for
cause. Witherspoon, 391 U.S. at 522; Fleenor, 514 N.E.2d at 83-84.
Those jurors who merely state a broad opposition to the death penalty but
nevertheless indicate an ability to follow the law and consider imposition of a
death sentence may not be removed for cause. Witherspoon, 391 U.S. at
522; Fleenor, 514 N.E.2d at 83.
We first observe that defendants generally have sought to preclude the death
qualifying of a jury in capital cases on the theory that it improperly
excludes jurors who voice opposition to the death penalty. See, e.g., Wisehart,
484 N.E.2d 949, 953 (Ind. 1985); Burris v. State, 465 N.E.2d 171, 177
(Ind. 1984); Hoskins v. State, 441 N.E.2d 419, 421 (Ind. 1982). With
this theory in mind, it is not clear to us how LWOP qualifying
a jury serves to benefit Logan. In any event trial courts have broad
discretionary power in regulating the form and substance of voir dire. Cliver
v. State, 666 N.E.2d 59, 65 (Ind. 1996). The decision of the
trial court will be reversed only if there is a showing of a
manifest abuse of discretion and a denial of a fair trial. Id.
This will usually require a showing by the defendant that he was
in some way prejudiced by the voir dire. Id.
Indiana Trial Rule 47(D) dictates in pertinent part the court shall permit the
parties or their attorneys to conduct the examination of prospective jurors, and may
conduct examination itself. (emphasis added).
See footnote In this case the trial court did
not permit Logan or his attorney to directly question prospective jurors concerning their
views on life without parole. This was error. However, each juror
was questioned regarding his or her ability to base a sentencing recommendation on
the law and the evidence. The trial courts questioning of the jurors
sought to reveal any bias and determine whether the jurors could render a
fair and impartial recommendation, which we have held is the purpose of
dire. See Games v. State, 535 N.E.2d 530, 538 (Ind. 1989).
Logan seems to contend that he could better probe into the jurors beliefs
regarding life without parole and better explain the concept, which jurors may have
misunderstood. However, Logan does not indicate what questions he would have asked,
nor does he explain why the trial courts procedure of asking questions tendered
by the parties was inadequate for purposes of empanelling a fair and impartial
jury. Further, Logan has failed to show that the trial courts procedure
adversely impacted his ability to employ his peremptory challenges or his challenges for
cause, and he does not allege that any specific juror should have been
removed and was not. [T]he Constitution presupposes that a jury selected from
a fair cross-section of the community is impartial, regardless of the mix of
individual viewpoints actually represented on the jury, so long as the jurors can
conscientiously and properly carry out their sworn duty to apply the law to
the facts of the particular case. Fleenor, 514 N.E.2d at 83 (quoting
Lockhart v. McCree, 476 U.S. 162, 184 (1986)). We conclude that Logan
has not shown that he was prejudiced by the procedure that the trial
court used in selecting the jury. Thus, although the trial court erred
by not permitting Logan to directly question prospective jurors concerning their views on
life without parole, the error was harmless.
Logan next contends that the trial court committed reversible error when it precluded
him from cross-examining accomplice and States witness Jason Harrison regarding Harrisons prior juvenile
adjudication. Harrisons juvenile adjudication would have amounted to a car-jacking conviction if
he had been an adult.
A defendants Sixth Amendment right of confrontation requires that the defendant be afforded
an opportunity to conduct effective cross-examination of State witnesses in order to test
their believability. Thornton v. State, 712 N.E.2d 960, 963 (Ind. 1999).
However, this right is subject to reasonable limitations imposed at the discretion of
the trial judge. Id. In Delaware v. Van Arsdall, 475 U.S.
673 (1986), the United States Supreme Court declared:
It does not follow, of course, that the Confrontation Clause of the Sixth
Amendment prevents a trial judge from imposing any limits on defense counsel's inquiry
into the potential bias of a prosecution witness. On the contrary, trial
judges retain wide latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive
or only marginally relevant.
Id. at 679.
Indiana trial courts are guided by Indiana Evidence Rule 609(d) in placing reasonable
limits on the admissibility of juvenile adjudications. That rule provides:
Evidence of juvenile adjudications is generally not admissible under this rule. The
court may, however, in a criminal case allow evidence of a juvenile adjudication
of a witness other than the accused if conviction of the offense would
be admissible to attack the credibility of an adult and the court is
satisfied that admission in evidence is necessary for a fair determination of the
issue of guilt or innocence.
The text of the rule makes clear that in most cases evidence of
a juvenile adjudication is not admissible to impeach a witness. Even when
the offense is otherwise admissible to attack the credibility of an adult, the
trial court may exclude the evidence if it is not satisfied that the
evidence is necessary for a fair determination of the guilt or innocence of
the defendant. Thus, Rule 609(d) leaves the admissibility of a juvenile adjudication
to the trial courts discretion, so long as that discretion does not violate
the defendants Sixth Amendment rights.
Here, the trial court found that evidence of Harrisons juvenile adjudication was not
necessary for a fair determination of Logans guilt or innocence. We cannot
disagree with the courts decision. Logan vigorously cross-examined and impeached Harrison regarding
lies that Harrison told police, his involvement in Riebersols robbery and murder, and
Harrisons possible bias associated with the plea agreement he reached with the State.
Nevertheless, Logan contends that the adjudication was necessary for a fair determination
of guilt or innocence in this case because it would have shed more
light on Harrisons plea agreement with the State. Logan implies that admission
of the juvenile adjudication would have shown an extra incentive for Harrison to
enter a plea agreement and testify against Logan.
To support his claim, Logan cites Davis v. Alaska, 415 U.S. 308 (1974).
In that case the defendant attempted to show a witnesss potential bias
and prejudice by introducing evidence of the witnesss probationary status stemming from a
juvenile adjudication. The defense wanted to show that the witnesss fear of
probation revocation may have influenced the witnesss testimony. The trial court in
Davis precluded the defendant from introducing the evidence. The Supreme Court held
that the trial courts exclusion of the impeachment evidence violated the defendants rights
under the Sixth Amendments confrontation clause. Id. at 317-18. However,
unlike this case, in Davis the trial courts decision not to allow the
introduction of a witnesss juvenile adjudication precluded the defendant from presenting any evidence
of bias. Id. Such is not the case here. Logan
was able to present evidence of Harrisons alleged bias to the jury.
We fail to see how this alleged extra incentive was necessary for a
fair determination of guilt or innocence. The jury was aware that Harrison
received favorable treatment from the State in exchange for his testimony against Logan.
The juvenile adjudication would have added little, if anything, to Logans impeachment
of Harrison. We conclude the trial court did not abuse its discretion
in limiting Logans cross-examination of Harrison.
Logan filed a motion in limine seeking to preclude the State from impeaching
him with a prior burglary conviction in Illinois. The trial court denied
Logans motion. Logan argued at trial that the State failed to show
the Illinois conviction occurred when Logan was an adult. Logan claimed that
the conviction sheet that the State sought to use in impeaching him indicated
that Logan was only seventeen years old at the time of the conviction.
The trial court examined the document and found that it did not
indicate that the conviction was anything other than an adult conviction for burglary.
As a result, the court allowed the State to use the conviction
to impeach Logan. Logan renews his claim on appeal.
Our review of the record reveals that the conviction sheet was never admitted
as evidence, and therefore it is not in the record of proceedings.
Thus, it is impossible for us to review Logans claim that the face
of the document indicates the conviction was actually a juvenile adjudication. Given
the record before us, we cannot say the trial court abused its discretion
in denying Logans motion in limine.
VI. Sufficiency of the Evidence
Logan also contends that the State failed to present sufficient evidence to support
his convictions for murder and robbery. In reviewing a sufficiency of the
evidence claim, we do not reweigh the evidence or assess the credibility of
the witnesses. Soward v. State, 716 N.E.2d 423, 425 (Ind. 1999).
Rather, we look to the evidence and reasonable inferences drawn therefrom that support
the verdict, and we will affirm the convictions if there is probative evidence
from which a reasonable jury could have found the defendant guilty beyond a
reasonable doubt. Kelly v. State, 719 N.E.2d 391, 394 (Ind. 1999).
The evidence presented at trial was more than adequate to sustain Logans convictions.
Poff testified that she saw Logan strike Riebersol in the head with
a gun and then fire the shots that struck and killed Riebersol.
Poff also watched as an armed Logan took money from Riebersols pocket after
Reibersol collapsed outside the apartment. Further, accomplice Jason Harrison testified that only
Logan had a gun that evening and after the robbery Logan placed the
gun under a cushion in Cunegins couch and bragged about shooting Riebersol.
Accomplice Orlando Johnson also testified that he saw Logan place a gun under
a cushion in the couch after the shooting. Evidence presented at trial
confirmed that the gun Logan placed in Cunegins couch was used in the
Riebersol killing. In addition, both accomplices described how the group planned and
executed the robbery. Logans argument amounts to an invitation for this Court
to reweigh the evidence. We decline.
Logan challenges his sentence of life without parole contending there was insufficient evidence
for the jury to recommend and for the court to find that the
aggravating circumstances outweighed the mitigating factors. To obtain a sentence of life
without parole, the State must prove beyond a reasonable doubt the existence of
one or more aggravating circumstances listed in Ind. Code § 35-50-2-9(b). Monegan
v. State, 721 N.E.2d 243, 256 (Ind. 1999). In this case the
State relied on Ind. Code § 35-50-2-9(b)(1)(G) which provides that it is an
aggravating circumstance where [t]he defendant committed the murder by intentionally killing the victim
while committing or attempting to commit . . . Robbery. This statutory
aggravator was proven beyond a reasonable doubt. The mitigating factors considered by
the trial court were: Logans background of a broken home, his lack
of a father figure, his sexual abuse by a scout leader, the death
of his grandmother, and Logans drug and alcohol dependence. Logan argues the
trial court erred in weighing these factors. According to Logan, in light
of the mitigating factors, without more evidence of aggravating circumstances, the appropriate sentence
in this case is a term of years. We disagree.
Several mitigating factors may be outweighed by one aggravating factor. McIntyre v.
State, 717 N.E.2d 114, 127 (Ind. 1999). Here, the trial court complied
with the procedure prescribed by Ind. Code § 35-50-2-9. The trial court
considered the recommendation of the jury, found the State had proven at least
one aggravating factor beyond a reasonable doubt, and weighed the applicable mitigating and
aggravating factors. His sentencing decision was based upon the reasonable recommendation of
the jury and his own specific findings. On this issue we find
However, we do address one issue sua sponte, namely the trial courts error
in sentencing Logan for robbery as a Class A felony. In Richardson
v. State, 717 N.E.2d 32 (Ind. 1999), we developed a two-part test for
determining whether two convictions are permissible under Indianas double jeopardy clause. Id.
at 49. A double jeopardy violation occurs when the State . .
. proceed[s] against a person twice for the same criminal transgression. Hampton
v. State, 719 N.E.2d 803, 809 (Ind. 1999) (quoting Richardson, 717 N.E.2d at
49). Under Richardson, two or more offenses are the same offense .
. . if, with respect to either the statutory elements of the challenged
crimes or the actual evidence used to convict, the essential elements of one
challenged offense also establish the essential elements of another challenged offense. Id.
When we look to the actual evidence presented at trial, we will reverse
one of the convictions if there is 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 a second challenged offense.
Richardson, 717 N.E.2d at 53. In the case before us, the
record is clear the same evidence that supported Logans murder conviction was also
used to elevate Logans robbery conviction to a Class A felony. Robbery
is a Class A felony if it results in serious bodily injury.
The serious bodily injury alleged and proven by the State in this case
was Riebersols death, the same fact used to convict Logan of murder.
Thus, under Richardson, Logans conviction of Class A robbery cannot stand.
However, this does not entitle Logan to escape conviction and punishment for the
robbery of which he was convicted. There are three felony classes of
A person who knowingly or intentionally takes property from another person or from
the presence of another person:
(1) by using or threatening the use of force on any person;
(2) by putting any person in fear;
commits robbery, a Class C felony. However, the offense is a Class
B felony if it is committed while armed with a deadly weapon or
results in bodily injury to any person other than a defendant, and a
Class A felony if it results in serious bodily injury to any person
other than the defendant.
Ind. Code § 35-42-5-1. Robbery as a Class C felony is a
lesser-included offense of robbery as a Class A felony as charged in the
See Kingery v. State, 659 N.E.2d 490, 495 (Ind. 1995).
Robbery as a Class B felony, however, is not necessarily a lesser-included
offense of robbery as a Class A felony. See id. Here,
the State did not allege the use of a deadly weapon as an
enhancement of the offense, and as such, Class B robbery is not lesser
included on that basis. Robbery resulting in bodily injury as a Class
B felony may be a lesser included offense of Robbery as a Class
A felony in this case. However, as stated above, the only injury
alleged by the State in this case was Riebersols death. Elevation of
the offense to a Class B felony on the basis of bodily injury
poses the same double jeopardy problem as does Logans conviction for robbery resulting
in serious bodily injury as a Class A felony. Thus, the proper
remedy for the violation of Logans right to be free from double jeopardy
is to vacate that part of Logans robbery conviction that elevated his offense
to a Class A felony and reduce his robbery conviction to a Class
C felony. See Wise v. State, 719 N.E.2d 1192, 1201 (Ind. 1999);
Hampton, 719 N.E.2d at 809; Kingery, 659 N.E. 2d at 496. Accordingly,
Logans conviction for robbery as a Class A felony must be vacated.
We remand this cause to the trial court with instructions to reduce Logans
robbery conviction to a Class C felony and to re-sentence Logan accordingly.
In all other respects the judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
Rule 47(D) is made applicable to criminal cases through Indiana Criminal
Even before Richardson, this Court held that where a single act
forms the basis both for the upgrade, from Class C to Class A,
of the robbery conviction and also the act element of the murder charge,
a defendant cannot be twice sentenced for committing this single act. To
do so would violate the prohibition against double jeopardy. Kingery v. State,
659 N.E.2d 490, 495-96 (Ind. 1995).