ATTORNEY FOR APPELLANT
Kathleen M. Sweeney
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
JOSHUA E. SPEARS, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-9908-CR-430
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale J. Bradford, Judge
Cause No. 49G03-9808-CF-141918
ON DIRECT APPEAL
October 6, 2000
Joshua E. Spears was convicted of murder, felony murder, conspiracy to commit robbery,
and robbery as a Class A felony. The trial court merged the
felony murder and the murder convictions and the conspiracy to commit robbery and
the robbery convictions, and sentenced Spears to sixty-five years for murder to be
served consecutively with fifty years for robbery. In this direct appeal, Spears
contends that (1) the Indiana Double Jeopardy Clause requires that his Class A
felony robbery conviction be reduced to a Class C felony, and (2) the
trial court found an improper aggravating circumstance, failed to find significant mitigating circumstances
supported by the record, and imposed a manifestly unreasonable sentence. We remand
to the trial court with instructions to reduce the robbery conviction to a
Class C felony and otherwise affirm the judgment of the trial court.
Factual and Procedural Background
In August of 1998, Jeremy Gross was an employee of the Convenient Food
Mart in Indianapolis. Gross planned to rob the store and invited Spears
and James Learned to join him. Learned declined, but at approximately 2:40
a.m. on August 26, Spears and Gross approached the Convenient Mart where Christopher
Beers was the sole employee on duty. The doors of the store
were locked from 12:00 a.m. to 6:00 a.m., but Beers could allow people
to enter by buzzing them in. Immediately after Beers allowed Gross and
Spears to enter, Gross, who was following Spears, raised a handgun, shot Beers
in the abdomen, and continued shooting at the fallen clerk as he walked
behind the counter. Spears initially stood beside Gross when he opened fire
but then ran to the video recorder serving four surveillance cameras. When
the eject button did not work, Spears took the entire VCR. Spears
and Gross then grabbed $650 from the cash register, disabled the two telephones
in the building, and fled. Beers followed outside and attempted to use
the payphone. He managed to take the phone off the hook, but
then collapsed on the sidewalk, where he died of multiple gunshot wounds.
Spears and Gross disposed of the VCR and gun in a nearby pond.
They then went to Learneds trailer to count their money. Witnesses,
including a passing motorist, led police to Gross, who later confessed and implicated
Spears. Spears was charged with murder, felony murder, conspiracy to
commit robbery, and robbery as a Class A felony.
A jury found
him guilty of all counts. The trial court merged the felony murder
and murder convictions and also merged the conspiracy to commit robbery and robbery
convictions, then sentenced Spears to sixty-five years for murder and fifty years for
robbery, to be served consecutively.
I. Double Jeopardy
Spears contends that his dual convictions for murder and robbery as a Class
A felony violate the Indiana Double Jeopardy Clause. He bases his claim
on the actual evidence test enunciated by this Court in Richardson v. State,
717 N.E.2d 32 (Ind. 1999). 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, 717 N.E.2d at 53; accord Wise v. State, 719 N.E.2d 1192, 1201
(Ind. 1999). Serious bodily injury differentiates the Class A felony from robbery
as a Class C felony. Ind. Code § 35-42-5-1 (1998). Where
a robbery conviction is elevated to a Class A felony based on the
same serious bodily injury that forms the basis of a murder conviction, the
two cannot stand. Logan v. State, 729 N.E.2d 125, 136-37 (Ind. 2000);
Lowrimore v. State, 728 N.E.2d 860, 868-69 (Ind. 2000); Chapman v. State, 719
N.E.2d 1232, 1234 (Ind. 1999); Hampton v. State, 719 N.E.2d 803, 808-09 (Ind.
Here, the jury was instructed that to find Spears guilty of robbery as
a Class A felony the State had to prove that he knowingly took
property from another person by putting that person in fear or using or
threatening the use of force and that serious bodily injury resulted to the
other person. The State argues that Spears claimed violation of the actual
evidence test should fail because the jury could have reasonably applied different evidence
to support each offense. Specifically, the State points to the fact that
Gross fired several shots at Beers. However, the charging information, which was
read to the jury as part of the instructions, alleged that the serious
bodily injury was the death of Christopher Beers. Moreover, no other serious
bodily injury was asserted as a basis for the elevation of the robbery
during closing argument. Under these circumstances there is at least a reasonable
possibilityif not a near certaintythat the same evidence used by the jury to
establish the essential elements of murder was also included among the evidence establishing
an essential element of robbery as a Class A felony. The fact
that more than one shot was fired does not alter this conclusion.
Absent a specific instruction requiring the jury to base a Class A felony
robbery conviction on a serious bodily injury other than death, there is a
reasonable possibility that the jury used the same evidentiary facts to support a
murder conviction and a Class A robbery conviction. Accordingly, the robbery conviction
must be reduced to a Class C felony.
The State argues that the Indiana Double Jeopardy claim should fail for a
number of novel reasons, none of which have merit. First, the State
contends the state constitutional argument is waived because Spears failed to make any
separate analysis based on the state constitution and failed to provide an analysis
of the statutory elements component in
Spears cited the applicable provision
of the Indiana ConstitutionArticle I, Section 14and this Courts landmark opinion in Richardson
interpreting that provision. Spears noted that the actual evidence test set forth
in Richardson and a comparison of the statutory elements as required for federal
double jeopardy analysis under Blockburger v. United States, 284 U.S. 299 (1932), were
alternative means of reviewing a state constitutional double jeopardy claim. He presented
a cogent argument citing cases that have applied the actual evidence test.
There was no need to provide any analysis of the alternative ground based
on the statutes alone. Spears dual convictions do not violate the Blockburger
test, and Spears made no such claim. His contention based on the
actual evidence test was argued and preserved.
Next, the State contends that this case should be remanded to the trial
court for the trial courts ruling on whether the two crimes are the
same for double jeopardy purposes. The State contends that this intensely factual
determination is best made by the trial court, then reviewed by this Court
for an abuse of discretion. It is true that a determination of
the reasonable possibility component of the
Richardson test turns on an analysis of
the evidence. The instructions and the arguments of counsel are also relevant
to that determination. Although we have not expressly ruled on the standard
of review in double jeopardy cases, we have frequently treated reasonable possibility as
a matter of law for de novo review by the appellate courts.
See, e.g., Burnett v. State, ___ N.E.2d ___, ___ (Ind. 2000); Cutter
v. State, 725 N.E.2d 401, 410 (Ind. 2000), . The State points
out that we have deferred to trial courts findings as to the existence
vel non of a serious evidentiary dispute for the purpose of instructions on
lesser included offenses. See Brown v. State, 703 N.E.2d 1010, 1019 (Ind.
1998). Here, we have no finding by the trial court. Even
if we were to adopt a standard of review analogous to that applied
to the instruction issue, de novo review is appropriate where the trial court
made no finding. Cf. id.
Finally, the State argues that, should this Court find a double jeopardy violation,
the proper remedy is remand for a retrial on the robbery count.
The State cites no double jeopardy precedent for this result, nor do we
find any. To the contrary, both before and after
Richardson, the remedy
for double jeopardy violations has routinely been to reduce or vacate one of
the convictions. Turnley v. State, 725 N.E.2d 87, 91 (Ind. 2000); Cutter,
725 N.E.2d at 410, States pet. for rehg denied; Wise, 719 N.E.2d at
1201; Richardson, 717 N.E.2d at 55; Bunch v. State, 697 N.E.2d 1255, 1257
(Ind. 1998). The State was given one opportunity to try Spears
on the charges it selected, the evidence it presented, and the closing argument
it chose to make. It is not entitled to a second bite
of the apple.
Spears attacks the trial courts findings of aggravating and mitigating circumstances in its
sentencing statement. He also contends that the aggregate sentence is manifestly unreasonable.
The trial court found four aggravating circumstances, no mitigating circumstances, and imposed maximum,
consecutive sentences. The trial court found the following aggravating circumstances: (1)
a prior history of juvenile delinquency, (2) prior attempts at rehabilitation had failed,
(3) Spears involvement with street gangs, and (4) the facts of this particular
case. The trial court further explained that the last of these was
based on (1) the degree of planning that was involved before the commission
of the crime, (2) the crime being an absolute brutal execution of Chris
Beers and that it was done in connection with a Robbery, and (3)
the substantial steps [that] were taken to conceal the involvement of this crime.
Spears contends that the trial court erred in finding the facts of
the crime to be an aggravating circumstance and in failing to find any
When a trial court relies on aggravating or mitigating circumstances to deviate from
the presumptive sentence, it is required to (1) identify all of the significant
mitigating and aggravating circumstances, (2) state the specific reason why each circumstance is
considered to be mitigating or aggravating, and (3) articulate the courts evaluation and
balancing of the circumstances to determine if the mitigating circumstances offset the aggravating
Carter v. State, 711 N.E.2d 835, 837-38 (Ind. 1999) (citing Hammons
v. State, 493 N.E.2d 1250, 1254 (Ind. 1986)). The same aggravating circumstance
or circumstances may be used to both enhance a sentence and order sentences
to be served consecutively. Taylor v. State, 710 N.E.2d 921, 925 (Ind.
1999); Brown v. State, 698 N.E.2d 779, 781 (Ind. 1998).
Improper Aggravating Circumstances
Spears is correct that a trial court may not use a factor constituting
a material element of an offense as an aggravating circumstance.
State, 714 N.E.2d 156, 160 (Ind. 1999). To the extent that the
trial court relied on the planning in the parking lot, an essential element
of the conspiracy conviction, to aggravate Spears conspiracy sentence, it erred. However,
the trial court did not err in finding that the fact that the
killing occurred in connection with a Robbery was an aggravating circumstance. Cf.
Workman v. State, 716 N.E.2d 445, 448-49 (Ind. 1999) (enhancement of a murder
sentence based in part on abuse of the corpse was proper). Spears
contends that the in connection with a Robbery factor was the basis for
the felony murder charge, but the trial court did not enter judgment of
conviction as to the felony murder count. Moreover, the trial courts finding
of the facts of the crime as an aggravating circumstance was also based
on the fact that the killing was in the form of an absolute
brutal execution. This is a permissible aggravating circumstance. The substantial post-crime
steps to conceal the crime are also matters the trial court could find
to be an aggravating circumstance. Although Spears contends there is no
evidence that definitively proves that he removed telephone wires, it was within the
trial courts discretion to draw this reasonable inference based on the evidence presented
at trial. Noojin v. State, 730 N.E.2d 672, 678-79 (Ind. 2000).
In sum, although some components of the nature and circumstances of the offense
aggravator were improper, [t]he remaining components of that aggravator were proper, and a
single aggravating circumstance may be sufficient to enhance a sentence. Angleton, 714
N.E.2d at 160.
Failure to Find Mitigating Circumstances
The finding of mitigating circumstances lies within the trial courts discretion. Hackett
v. State, 716 N.E.2d 1273, 1277 (Ind. 1999). The trial court is
not obligated to find a circumstance to be mitigating merely because it is
advanced by the defendant. Id. Rather, on appeal, a defendant must
show that the proffered mitigating circumstance is both significant and clearly supported by
the record. Carter, 711 N.E.2d at 838. If the defendant does
not advance a factor to be mitigating at sentencing, this Court will presume
that the factor is not significant and the defendant is precluded from advancing
it as a mitigating circumstance for the first time on appeal. Cf.
id. (Trial counsel did not view either factor as significant enough to warrant
any mention at either sentencing hearing.); see generally Wurster v. State, 715 N.E.2d
341, 347-48 (Ind. 1999) (a party may not assert one ground at trial
and a different ground on appeal).
The only two mitigating factors raised on appeal that were also argued to
be mitigating by Spears at sentencing were his youthful ageeighteenand his expression of
remorse. The trial court did not abuse its discretion in concluding that
neither of these was a significant mitigating circumstance. As this Court recently
Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999), an eighteen-year-old
defendant is beyond the age at which the law commands special treatment by
virtue of youth.
Additionally, Spears stated at sentencing:
Id like to express how very sorry I am for the horrible crime
I was involved in on the early morning of August 26th, 1998, and
for the terrible loss of Christopher Beers. I would also like to
say that my intentions that night was to get a fountain drink, not
to rob the Convenient or to wish neither Christopher Beers nor anyone else
The trial court, who had heard all the witnesses testify at trial, was
not convinced. It responded,
Im sure that this soda fountain story is something maybe youve convinced yourself
of in order to live with what youve done . . . .
But as far as whether that story defies logic, sir, youre asking
the Jury and the Court to have the logic of somebody that just
flew into town on the noon balloon, and we didnt.
Although Spears expressed sympathy for the victims of his crimes, in the same
breath he disclaimed responsibility despite substantial evidence to the contrary. Spears statement
is very similar to that of the defendant in
Bonds v. State, 721
N.E.2d 1238, 1243 (Ind. 1999), who apologized to the decedents family and then
was just in the wrong place at the wrong time because I didntI
didnt tell nobody; I didnt pay nobody. I was just going to
talk to the guy about getting my mothers car back. Im sorry
about what all happened. I just dont know what went wrong.
We held in Bonds that this statement did not qualify as a significant
mitigating circumstance that the trial court was required to take into account.
Id. The same is true of Spears equivocal apology coupled with a
disclaimer of accountability for his role in the crime.
As a final point, Spears contends that his maximum, consecutive sentences for murder
and robbery are 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. Ind.
Appellate Rule 17(B). This review is very 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. Bunch v. State,
697 N.E.2d 1255, 1258 (Ind. 1998) (quoting Prowell v. State, 687 N.E.2d 563,
568 (Ind. 1997)); accord Brown v. State, 698 N.E.2d 779, 783-84 (Ind. 1998).
Spears was eighteen at the time of the offense and his criminal record
consisted of two juvenile delinquency adjudications: disorderly conduct in 1995 and misdemeanor battery
in 1996. The nature of the offenseentering a convenience store to rob
and kill the cashieris severe and troubling. Although Spears points to his
lesser role in the offenses, the surveillance video and witness testimony strongly suggest
that Spears was not an unwitting participant in a robbery in which Gross
harbored an intent to kill unbeknownst to Spears. The trial court was
within its discretion in so concluding. In cases in which a defendant
had a limited role in a murder, coupled with other mitigating circumstances, this
Court has, on occasion, found the maximum sentence to be manifestly unreasonable.
E.g., Baxter v. State, 727 N.E.2d 429, 436 (Ind. 2000) (noting the defendants
limited involvement in a murder as the one who drove a car from
which another man shot the victim); Brown v. State, 720 N.E.2d 1157, 1160
(Ind. 1999) (noting defendants role as a follower of a codefendant twice his
age); Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995) (observing that defendant
who participated in a murder and robbery did not formulate or initiate the
planned offenses). That is not the case here, however. To gain
entry to the convenience store, Spears blocked the victims view of Gross, who
was carrying a gun. He stood beside Gross when the first shot
was fired, and ran immediately to the store surveillance system. The maximum
sentence of seventy-three years is not manifestly unreasonable for these offenses and this
This case is remanded to the trial court with instructions to reduce the
robbery conviction to a Class C felony and impose a sentence of eight
years on that count to be served consecutively with the previously imposed sentence
of sixty-five years for murder.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
Gross was charged with the same offenses and tried separately.
Footnote: Although the State contends that the Class A felony robbery conviction does
not violate the actual evidence test, it does not dispute that, if there
is a violation, the proper remedy is reduction to a Class C felony.
As this Court explained in
Hampton, robbery as a Class B felony
(for the use of a deadly weapon) is not necessarily a lesser included
offense of robbery as a Class A felony. 719 N.E.2d at 809
n.1. That is true here where the instructions to the jury gave
the elements of robbery as a Class C felony and further stated that
the charge could be enhanced to a Class A felony if the State
proved beyond a reasonable doubt that Spears caused serious bodily injury to the
victim. There was no instruction on the use of a deadly weapon,
and thus reduction to a Class C felony is the proper remedy.
The State also contends that Spears waived this Court's review of any
federal double jeopardy claim by failing to cite the applicable provision of the
United States Constitution and failing to provide any authority in support. As
Spears notes in his reply brief, he did not raise a federal double
jeopardy claim. Thus, the State is incorrect that the claim is waived;
it was never raised.
Footnote: The trial court imposed the maximum sentence of 115 years, but as
explained in Part I, the Class A felony robbery conviction must be reduced
to a Class C felony. There is no need to remand for
resentencing where it is sufficiently clear that the trial court would impose the
maximum sentence for the Class C felony and order it served consecutively.
Cutter v. State, 725 N.E.2d 401, 409 n.3 (Ind. 2000).