ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICIA CARESS MCMATH STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
SUPREME COURT OF INDIANA
JEREMY GROSS, )
) Supreme Court Cause Number
v. ) 49S00-0009-CR-528
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM 4
The Honorable Patricia J. Gifford, Judge
Cause No. 49G04-9808-CF-141115
ON DIRECT APPEAL
June 18, 2002
Jeremy Gross was convicted of murder, felony murder, conspiracy to commit robbery, and
robbery as a Class A felony. The trial court sentenced him to
life in prison without parole for the murder conviction and to a term
of years for the conspiracy and robbery convictions. No sentence was imposed
for the felony murder conviction. In this direct appeal, Gross raises two
issues for our review that we rephrase as: (1) did the trial
court err in imposing sentence for robbery as a Class A felony; and
(2) is his life sentence appropriate. We vacate Gross conviction for robbery
as a Class A felony and remand for resentencing to impose sentence for
robbery as a Class B felony. Otherwise, we affirm the judgment of
the trial court.
In the early morning hours of August 26, 1998, J.J. Thompson was driving
near a convenience store in Indianapolis when he saw a person later identified
as Jeremy Gross raise his arm and fire a handgun at Christopher Beers,
the store clerk. Thompson immediately drove away and called the police.
In the meantime, after taking $650 in cash, disabling the stores telephone lines,
and grabbing the video recorder that served the surveillance cameras, Gross and his
confederate, Joshua Spears, fled the scene. When officers of the Marion County
Sheriffs Department arrived, they found Beers body outside the store near a payphone.
He had died as a result of multiple gunshot wounds to the
head, chest, and abdomen. Sheriffs deputies arrested Gross shortly thereafter. Gross
gave a taped statement admitting that he entered the store to rob the
cashier, and when the cashier refused to surrender the money, he shot him.
Gross also admitted taking the security video recorder in order to conceal
The State charged Gross with murder, murder in the perpetration of a robbery,
conspiracy to commit robbery, and robbery as a Class A felony.
See footnote In
a separate request for a sentence of death, the State alleged as an
aggravating circumstance that Gross committed the murder by intentionally killing Beers while committing
a robbery. A jury convicted Gross as charged but after the penalty
phase of trial recommended life without parole. The trial court accepted the
jurys recommendation and sentenced Gross accordingly. The trial court also sentenced Gross
to consecutive terms of thirty years for conspiracy to commit robbery and robbery
as a Class A felony. No sentence was imposed on the felony
murder conviction. This direct appeal followed.
I. Double Jeopardy
Gross contends that his multiple convictions violate Indianas constitutional prohibition against double jeopardy.
Specifically, Gross contends that he cannot be convicted for both murder and
robbery as a Class A felony because both crimes were enhanced by the
same bodily injury. The State concedes this point. The Indiana Double
Jeopardy Clause prohibits multiple convictions if there is a reasonable possibility that the
evidentiary facts used by the fact-finder to establish the essential elements of one
offense may also have been used to establish the essential elements of a
second challenged offense. Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999).
This formulation of what has come to be known as the Richardson
actual evidence test has generated some amount of confusion. Indeed, this Court
has previously determined that under Richardson a robbery conviction cannot be elevated by
the same serious bodily injury (death) that formed the basis of [a] murder
conviction. Chapman v. State, 719 N.E.2d 1232, 1234 (Ind. 1999).
See footnote However,
as we have recently clarified: under the
Richardson actual evidence test, the Indiana
Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential
elements of one offense also establish only one or even several, but not
all, of the essential elements of a second offense. Spivey v. State,
761 N.E.2d 831, 833 (Ind. 2002).
To convict Gross of murder, the State was required to prove that he
knowingly or intentionally killed another human being. Ind. Code § 35-42-1-1.
As charged, in order to convict Gross of robbery as a Class A
felony, the State was required to prove that he: (1) knowingly or intentionally
(2) took property from another person or from the presence of another person
(3) by using or threatening the use of force on any person (4)
that resulted in serious bodily injury. I.C. § 35-42-5-1.
The facts establishing the essential elements of murder may have also established some
of the essential elements of robbery as a Class A felony, namely:
serious bodily injurydeathof the victim and use of force. However, such facts
did not establish the elements of knowingly or intentionally taking property from another
person. As such, there would be no Indiana double jeopardy violation.
Spivey, 761 N.E.2d at 834. On the other hand, we find a
reasonable possibility that the jury may have used evidentiary facts establishing all the
essential elements of robbery as a Class A felony to establish also all
the essential elements of murder. We refer specifically to evidence that Gross
fired a handgun directly at the store clerk, then took $650 in cash,
and the store clerk died from the gunshot wounds. This violates the
Indiana Double Jeopardy Clause.
Moreover, as we recently pointed out, we have long adhered to a
series of rules of statutory construction and common law that are often described
as double jeopardy, but are not governed by the constitutional test set forth
in Richardson. Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002).
Among these is the doctrine that where a single act forms the basis
of both a Class A felony robbery conviction and also the act element
of the murder conviction, the two cannot stand. Kingery v. State, 659
N.E.2d 490, 495-96 (Ind. 1995). Accordingly, the robbery conviction as a Class
A felony must be reduced.
The robbery statute provides:
A person who knowingly or intentionally takes property from another person or from
the presence of another person:
by using or threatening the use of force on any person;
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 a defendant.
I.C. § 35-42-5-1 (emphasis added). The same doctrine and double jeopardy concerns
that prohibit the use of Beers death to support both the murder conviction
and the elevation of robbery to a Class A felony apply equally to
the bodily injury variety of Class B felony robbery. However, the charging
information in this case reads in pertinent part:
JEREMY D. GROSS and JOSHUA E. SPEARS, on or about AUGUST 26, 1988,
did knowingly, while armed with a deadly weapon, that is: A HANDGUN, take
from the person or presence of CHRISTOPHER BEERS property, that is: UNITED
STATES CURRENCY, by putting CHRISTOPHER BEERS in fear or by using or threatening
the use of force on CHRISTOPHER BEERS, which resulted in serious bodily injury,
that is: DEATH to CHRISTOPHER BEERS[.]
R. at 55 (emphasis added). In essence, the State charged Gross with
both the bodily injury variety of Class B felony robbery as well as
the armed with a deadly weapon variety of the offense. Also, the
record shows the jury was instructed on the elements of both varieties of
robbery as a Class B felony. R. at 483-84; compare Spears, 735
N.E.2d at 1165 n.2 (finding it appropriate to reduce defendants Class A robbery
conviction to Class C robbery where [t]here was no jury instruction on the
use of a deadly weapon . . . .). Accordingly, we vacate
Gross sentence for robbery as a Class A felony and remand to the
trial court for a new sentencing order that imposes sentence for robbery as
a Class B felony. II. Sentencing
Gross challenges his sentence contending the trial court did not give adequate weight
to certain mitigating factors.
See footnote To obtain a sentence of death or life
without parole, the State must prove beyond a reasonable doubt the existence of
one or more aggravating circumstances listed in Indiana Code section 35-50-2-9(b).
729 N.E.2d at 136. To support its death sentence request in this
case, the State relied on the felony murder aggravator: The defendant committed
the murder by intentionally killing the victim while committing or attempting to commit
. . . Robbery. I.C. § 35-50-2-9(b)(1)(G). At sentencing, the trial
court found this aggravator proven beyond a reasonable doubt, and the record supports
the trial courts finding. In its sentencing order, the trial court weighed
as mitigating circumstances Grosss unstable childhood characterized by a pattern of parental abuse
and neglect, his attainment of a high school diploma, his satisfactory adjustment while
incarcerated at a youth center and at Boys School, and his volunteering to
tutor other inmates while incarcerated at the Marion County Jail awaiting trial.
Finding that the mitigating circumstances were outweighed by the aggravating circumstance, the trial
court followed the jurys recommendation and sentenced Gross to life imprisonment.
The trial courts determination of the proper weight to be given aggravating and
mitigating circumstances and the appropriateness of the sentence as a whole is entitled
to great deference and will be set aside only upon a showing of
a manifest abuse of discretion. Dunlop v. State, 724 N.E.2d 592, 597
(Ind. 2000), rehg denied. The trial court is not obligated to accept
the defendants contentions as to what constitutes a mitigating factor. McCann v.
State, 749 N.E.2d 1116, 1121 (Ind. 2001). Nor is the court required
to give the same weight to proffered mitigating factors as the defendant does.
Bonds v. State, 721 N.E.2d 1238, 1243 (Ind. 1999). Here, the
record of the sentencing proceeding does not demonstrate that the trial court abused
its discretion in considering and weighing the mitigating factors against the sole aggravating
Upon independent review, we find evidence of Gross difficult childhood, his age of
eighteen at the time of the crime, his graduation from high school, his
conduct at Boys School and at a youth center, his tutoring of other
inmates while incarcerated at the Marion County Jail, and his expression of remorse.
The mitigating weight warranted for each of these considerations is in the
low range, individually and cumulatively.
See footnote Although there is only a single aggravating
factor here, it is a substantial and serious one.
Bivins v. State,
642 N.E.2d 928, 959 (Ind. 1994) (affirming defendants death sentence after weighing the
mitigating factors of alcoholism and troubled adolescence against the aggravating factor of an
intentional killing in the course of a robbery). We find that the
mitigating circumstances in this case are outweighed by the aggravating factor of an
intentional murder during a robbery. Having also given due consideration to the
jurys recommendation, we determine that the proper and appropriate sentence for Jeremy Gross
is life without parole.
We vacate Gross sentence for robbery as a Class A felony and remand
to the trial court for a new sentencing order that imposes sentence for
robbery as a Class B felony. In all other respects, the judgment
of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
Spears was charged and tried separately for the same offenses.
See Spears v. State, 735 N.E.2d 1161 (Ind. 2000), rehg denied.
Accord Francis v. State, 758 N.E.2d 528, 533 (Ind. 2001); Burnett
v. State, 736 N.E.2d 259, 263 (Ind. 2000); Grace v. State, 731 N.E.2d
442, 446 (Ind. 2000), rehg denied; Logan v. State, 729 N.E.2d 125, 136
(Ind. 2000); Hampton v. State, 719 N.E.2d 803, 809 (Ind. 1999).
Gross phrases this issue as [t]he sentence of life without parole
is manifestly unreasonable and inappropriate for Jeremy because the one aggravating factor does
not outweigh the several mitigating factors. Br. of Appellant at 7.
Although this Court has the constitutional authority to review and revise sentences, Ind.
Const. art. VII, § 4, it will not do so unless the sentence
is manifestly unreasonable in light of the nature of the offense and the
character of the offender, Ind. Appellate Rule 7(B). In this case, although
phrasing the issue in terms of manifestly unreasonable, Gross does not cite the
standard for such a claim nor explain how the facts of this case
are applicable to the claim. Rather, his argument focuses on the trial
courts failure to ascribe appropriate mitigating weight to certain factors and this Courts
special appellate scrutiny in cases where the sentence is death or life without
Footnote: Gross seems to suggest that his age is automatically a significant
mitigating factor. That is not the case. It is true that
a defendants youth may be a mitigating factor in some circumstances.
Brown v. State, 720 N.E.2d 1157, 1159 (Ind. 1999) (instructing the trial court
to impose concurrent, rather than consecutive, terms on defendant who was sixteen at
time of murder and under the influence of a man twice his age);
see also Carter v. State, 711 N.E.2d 835, 843 (Ind. 1999) (finding the
fourteen-year-old defendants sixty-year murder sentence manifestly unreasonable). However, age is not a
per se mitigating factor. See Sensback v. State, 720 N.E.2d 1160, 1164
(Ind. 1999) (Unfortunately, murders committed by eighteen-year-olds are more common than they used
to be.). As we observed in Ellis v. State, 736 N.E.2d 731,
736 (Ind. 2000), chronological age for people in their teens and early twenties
is not the sole measure of culpability. There are both relatively old
offenders who seem clueless and relatively young ones who appear hardened and purposeful.
Id. In this case, Gross has not demonstrated that his age
and culpability are linked in any way.