ATTORNEY FOR APPELLANT
Amy L. Dell
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
James B. Martin
Deputy Attorney General
SUPREME COURT OF INDIANA
MARIO McCANN, )
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 49S05-0104-CR-209
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 49A05-0002-CR-43
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale J. Bradford, Judge
Cause No. 49G03-9708-CF-127103
ON PETITION TO TRANSFER
June 20, 2001
We hold that the pregnancy of a victim, like any other circumstance that
may extend the harm inflicted by a crime, may be an aggravating circumstance
in sentencing whether or not the perpetrator is aware that the victim is
Factual and Procedural Background
On August 2, 1997, Mario McCann visited A.L. and Anthony Dozier at their
home. After McCann left, A.L. went upstairs, fell asleep, and awoke to
find McCann in her bedroom. McCann told A.L. he had a gun
and would use it if she did not remain silent. He attempted
to pull off her bedcovers, touched her breasts, and then told her, shut
up, it wouldnt take very long, and then hed leave [A.L.] alone.
At that point, Dozier entered the bedroom. A fight ensued and McCann
shot Dozier in the chest and fled through the bedroom window. Both
A.L. and Dozier identified McCann from a thirty-two person photo array. McCann
was arrested and charged with attempted murder, burglary, and attempted rape.
McCann was found guilty on all charges and sentenced to fifty years for
attempted murder and a consecutive sentence of fifty years for burglary. A
concurrent sentence of fifty years was imposed for attempted rape. On direct
appeal, he contended that: (1) the photo array and in-court identification were
unduly suggestive; (2) the State committed prosecutorial misconduct; (3) the trial court gave
an erroneous instruction on attempted rape; and (4) the trial court erred in
sentencing him to maximum, consecutive sentences for his crimes. The Court of
Appeals affirmed his convictions, but remanded to the trial court for resentencing.
McCann v. State, 742 N.E.2d 998 (Ind. Ct. App. 2001). We granted
transfer to address the sentencing issue.
McCann challenges his sentence as excessive and manifestly unreasonable. He raises a
number of statutory issues and also contends that the sentence was manifestly unreasonable
under Indiana Appellate Rule 7(B). As this Court has previously noted, These
are two separate inquiries reviewed under different standards.
Noojin v. State, 730
N.E.2d 672, 678 (Ind. 2000); accord Hackett v. State, 716 N.E.2d 1273, 1276
n.1 (Ind. 1999).
I. Sentencing Error
As procedural error, McCann contends that: (1) the trial court considered improper
aggravating circumstances; (2) the trial court failed to consider mitigating circumstances clearly supported
by the record; and (3) the trial court did not balance the aggravating
and mitigating circumstances. The trial court found four aggravating circumstances: (1)
McCanns prior criminal history, (2) prior attempts to rehabilitate were unsuccessful, (3) the
injuries to Dozier resulted in permanent impairment, and (4) the nature and circumstances
of the crime including that A.L. was pregnant at the time of the
attack and that the crimes involved multiple victims. The trial court found
no mitigating circumstances and then imposed maximum sentences on all three counts, two
of which it ordered to be served consecutively.
On direct appeal, the Court of Appeals determined that the rehabilitation and nature
and circumstances aggravating factors were improperly considered, and that McCanns claimed mitigating circumstanceshis
abusive childhood and the hardship that would result to his child from his
incarcerationwere not required to be considered as mitigating circumstances. The case was
remanded to the trial court to balance the two remaining aggravating circumstances and
resentence McCann. McCann, 742 N.E.2d at 1007. Judge Vaidik dissented, concluding
that the nature and circumstances aggravating factor, specifically the victims pregnancy, was properly
considered by the trial court. Id. at 1009. She also disagreed
with the majoritys decision to remand the case. She took the view
that because a single aggravating circumstance is enough to support enhanced and consecutive
sentences, and there were three valid aggravating circumstances in this case, the sentence
should be affirmed.
In general, sentencing determinations are within the trial courts discretion and are governed
by Indiana Code section 35-38-1-7.1. Harris v. State, 659 N.E.2d 522, 527
(Ind. 1995). If a trial court relies on aggravating or mitigating circumstances
to enhance or reduce the presumptive sentence, it must: (1) identify all
significant mitigating and aggravating circumstances, (2) state the specific reason why each
circumstance is determined to be mitigating or aggravating, and (3) articulate the courts
evaluation and balancing of the identified circumstances. Id. at 527-28.
First, McCann challenges the trial courts finding of aggravating circumstances. We agree
with the Court of Appeals that both McCanns criminal history and Doziers permanent
were proper aggravators. McCanns criminal history is a statutory aggravating circumstance
and was properly considered. Ind. Code § 35-38-1-7.1(b)(2) (1998). The serious
nature of a victims injuries is also a proper aggravator. Aguirre v.
State, 552 N.E.2d 473, 476 (Ind. 1990); Lang v. State, 461 N.E.2d 1110,
1113 (Ind. 1984).
The trial court also found that prior attempts to rehabilitate the defendant have
been unsuccessful. It is not entirely clear whether this is simply a
restatement of the fact that McCann had a criminal record, or was a
reference to the statutory aggravating circumstance that the defendant is in need of
correctional or rehabilitative treatment that can best be provided by commitment of the
person to a penal facility. I.C. § 35-38-1-7.1(b)(3). If the former,
it is cumulative and, if the latter, we agree with the Court of
Appeals that, because the trial court failed to explain why incarceration beyond the
presumptive sentence was necessary, it improperly considered prior attempts at rehabilitation as an
We disagree with the Court of Appeals that the trial courts consideration of
the nature and circumstances of the crime was improper. The Court of
Appeals took the view that this was an improper aggravating circumstance for two
reasons. First, it relied on elements of the offense to enhance the
sentence. Second, the Court of Appeals held that A.L.s pregnancy, because it
was a fact apparently unknown to McCann, was not a proper aggravating circumstance.
Generally, the nature and circumstances of a crime is a proper aggravating circumstance.
Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999). Even if
the trial court relied on an improper factor under this aggravating circumstance, the
sentence may be upheld so long as [t]he remaining components of that aggravator
were proper. Angleton v. State, 714 N.E.2d 156, 160 (Ind. 1999).
Under nature and circumstances, the trial court stated, the facts of this case
are particularly aggravating. The case involves a home invasion of a residence
for the purpose of committing the crime of rape. That the defendant
attempted the rape of [A.L.] in this matter while she was pregnant.
And that these offenses or this series of acts involves multiple victims.
The Court of Appeals was correct that the trial court may not use
a factor constituting a material element of an offense as an aggravating circumstance.
Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000). However, in
this case, in addition to elements of the burglary offense, the trial court
relied on the fact that there were multiple victims and on A.L.s pregnancy.
Injury to multiple victims has been cited several times by this Court
as supporting enhanced and consecutive sentences. Walton v. State, 650 N.E.2d 1134,
1137 (Ind. 1995) (listing multiple killings as a non-statutory aggravating circumstance); cf. Tobar
v. State, 740 N.E.2d 109, 113 (Ind. 2000); Noojin v. State, 730 N.E.2d
672, 679 (Ind. 2000).
The Court of Appeals also found erroneous the trial courts finding that the
victims pregnancy was an aggravating circumstance. We agree with Judge Vaidik that
pregnancy is similar to the infirmity or age of the victim in that
the defendants knowledge of these circumstances is not necessary for them to qualify
See Stevens v. State, 691 N.E.2d 412, 431-33 (Ind. 1997).
To be sure, knowledge of the victims vulnerability adds to the culpability
of the perpetrator, but aggravating circumstances turn on the consequences to the victim
as well as the culpability of the defendant. Id. This understanding
of aggravating circumstances comports with the Blacks Law Dictionary definition of aggravation:
[a]ny circumstance attending the commission of a crime . . . which increases
its guilt or enormity or adds to its injurious consequences . . .
. Blacks Law Dictionary 60 (5th ed. 1979).
McCann also challenges the trial courts failure to find his abusive childhood and
the hardship that will result to his child from incarceration as mitigating circumstances.
The finding of mitigating circumstances is within the discretion of the trial
Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997). An
allegation that the trial court failed to identify or find a mitigating circumstance
requires the defendant to establish that the mitigating evidence is both significant and
clearly supported by the record. Carter v. State, 711 N.E.2d 835, 838
(Ind. 1999). The trial court is not obligated to accept the defendants
contentions as to what constitutes a mitigating circumstance. Legue, 688 N.E.2d at
411. McCanns claims that nobody really liked [him] as a child and
that he got beat up a lot are not significant examples of an
abusive childhood. McCann does not explain how his incarceration for maximum, consecutive
sentences will result in more hardship to his daughter than his incarceration for
the presumptive or minimum sentence. Battles v. State, 688 N.E.2d 1230, 1237
(Ind. 1997). We agree with the Court of Appeals that the trial
court did not abuse its discretion in failing to find these factors as
Finally, McCann contends that the trial court improperly weighed the aggravating and mitigating
circumstances. The Court of Appeals remanded this case to the trial court
because it is unclear what weight the trial court assigned to each designated
aggravator, . . . there are now fewer valid aggravating circumstances to consider,
[and] we are not persuaded that the original sentence would have been the
same had the trial court not relied on . . . impermissible factors.
McCann, 742 N.E.2d at 1007 (quoting Bluck v. State, 716 N.E.2d 507,
515 (Ind. Ct. App. 1999)). We disagree. This Court has many
times noted that [a] single aggravating circumstance is enough to justify an enhancement
or the imposition of consecutive sentences. Williams v. State, 690 N.E.2d 162,
172 (Ind. 1997). However, we will remand for resentencing if we cannot
say with confidence that the trial court would have imposed the same sentence
if it considered the proper aggravating and mitigating circumstances. See Wooley v.
State, 716 N.E.2d 919, 933 (Ind. 1999); Angleton v. State, 686 N.E.2d 803,
817 (Ind. 1997). In this case, although one of the aggravating circumstances
was improper, there were no mitigating circumstances and three other valid aggravating circumstances,
including McCanns criminal history. Given these factors, we can say with confidence
that the trial court would have imposed the same sentence, even without the
improper aggravating circumstance. Accordingly, there is no procedural error requiring reversal or
remand for resentencing.
II. Manifestly Unreasonable
McCann also claims that his sentence is manifestly unreasonable. 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 imposed is manifestly unreasonable
in light of the nature of the offense and the character of the
offender. Carter v. State, 711 N.E.2d 835, 841 (Ind. 1999); Ind. Appellate
Rule 7(B). This review is 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. Spears v. State, 735 N.E.2d
1161, 1168 (Ind. 2000); Brown v. State, 698 N.E.2d 779, 783-84 (Ind. 1998);
Bunch v. State, 697 N.E.2d 1255, 1258 (Ind. 1998) (quoting Prowell v. State,
687 N.E.2d 563, 568 (Ind. 1997)).
The nature of the offense is breaking into a home to attack a
pregnant woman in her bed and then shooting her boyfriend when he tried
to come to her aid. Under character of the offender, McCann had
a lengthy criminal history including over fifteen arrests, one of which was for
breaking into a womans house and sexually assaulting her. In view of
these factors, the trial courts imposition of the enhanced, consecutive sentences was not
clearly, plainly, and obviously unreasonable.
The sentence imposed by the trial court is affirmed. As to all
other issues, the Court of Appeals is summarily affirmed. Ind. Appellate Rule
SHEPARD, C.J, and DICKSON and RUCKER, JJ., concur.
SULLIVAN, J., concurs as to Part I and dissents as to Part II.
Dozier was shot in the chest. The bullet pierced his lung.
The injury caused him to miss work for an extended period of time
and still interferes with his breathing.