Attorney for Appellant
Robert V. Clutter
Attorneys for Appellee
Jeffery A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
INDIANA SUPREME COURT
OSHUN R. GRACE,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below ).
) Supreme Court No.
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary Miller, Judge
Cause No. 49G05-9701-CF-3520
ON DIRECT APPEAL
June 30, 2000
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).
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, Daviess father, Eugene Davies, Jr. (Daviess 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
One of the masked men held a gun to Daviess head and took
him to the back of the apartment; the other told Scott and Daviess
father to get down on the floor and started kicking Daviess father and
beating him with a handgun. Scott and Daviess 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 Daviess father also heard one of the men in the back
of the apartment ask Davies if he had any money or Wheres your
money? (R. at 223, 243.) The intruders demanded money from Daviess
father and took Scotts purse. They took money and a pager from
Davies. Soon thereafter, Scott and Daviess father heard two gun shots,
someone yelled, Lets 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,
See footnote Felony Murder,See footnote
Conspiracy to Commit Robbery as a Class A felony,See footnote and three counts of
bbery as Class A felonies.
See footnote A jury found Defendant guilty of all
counts as charged. At sentencing, the trial court found that the aggravating
circumstances outweighed the mit
igating circumstances on all counts and imposed a fully enhanced
sentence of 65 years for murder
See footnote and 50 years for each of the
robbery convictions and conspiracy to commit ro
bbery 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.
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 Defendants 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 Defendants counsel did not object to the proffered
testimony on hearsay and speculation grounds, Defendants claims of hearsay and speculation are
not available on appeal.II
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 Scotts
testimony regarding Defendants role in the crimes was also introduced by means of
Ivan Rouses testimony.
Rouse testified that on February 24, 1996, Defendant arrived at the home of
Heather Guest, Rouses 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.) Rouses
testimony was admitted without objection. Therefore, Scotts testimony was at worst merely
cumulative, providing evidence of the same probative value as Rouses admissible testimony.
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 Scotts testimony was not inadmissible, and Rouses testimony as to Defendants acknowledgment
of his role in the crimes, we find that the evidence and reasonable
inferences to be drawn therefrom supported the jurys verdicts.
Defendant also argues that there was insufficient evidence to sustain his conviction for
the robbery of Daviess 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), rehg 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 persons presence that
the robbery is complete.).
In the present case, the State presented no evidence that Defendant and the
intruders actually took property from Daviess father. Scott testified that her purse
was stolen; Daviess father testified that he heard gunmen demanding money from his
son; and Scott testified that the gunmen demanded money from Daviess father.
But nothing in the record indicates that the gunmen actually took property from
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
jurys 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), rehg 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 courts orders convicting and sentencing Defendant for the robbery of Daviess father.
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. Appellants Br. at 6-7.
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.
Defendants murder conviction and his enhanced robbery convictions were based on the
same bodily injury to the same victim, and as such, cannot stand together.
We affirm Defendants convictions and sentence except that (1) we reverse Defendants conviction
for the robbery of Eugene Davies, Jr., and (2) we reduce Defendants 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.
Ind. Code § 35-42-1-1 (1993).
Id. § 35-42-1-1(2).
Id. §§ 35-41-5-2 & 35-42-5-1.
Id. § 35-42-5-1.
The trial court merged Defendants felony murder conviction into his murder conviction.
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. Appellants Br. at 10-11. Defendants 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.