ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID BECSEY STEVE CARTER
Zeigler Cohen & Koch Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
ADAM BORTON, )
vs. ) No. 49A02-0102-CR-69
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9902-CF-30706
November 30, 2001
OPINION FOR PUBLICATION
Appellant-Defendant Adam Borton (Borton) appeals his convictions of Conspiracy to Commit Robbery,
See footnote and
Attempted Robbery,See footnote both Class A felonies. We affirm the conviction for Conspiracy
to Commit Robbery and vacate the conviction for Attempted Robbery. We revise
Bortons sentence to the presumptive sentence to be imposed upon a Class A
Borton presents three issues for review:
Whether the trial court erred in refusing to suppress Bortons statements to police;
Whether Borton was improperly convicted of both Conspiracy to Commit Robbery and Attempted
Whether the sentence imposed is manifestly unreasonable.
Facts and Procedural History
On February 18, 1999, Michael Straight (Straight) arrived in Indianapolis to visit his
long-time friend, Springe Stubbs, who was also Bortons girlfriend. Bortons friend Darrell
Robinson (Robinson) began to taunt Borton about allowing someone to visit his girlfriend.
Initially, the pair discussed beating up Straight, but their focus turned to
robbery after Straight revealed that he had a large amount of cash with
Borton, Robinson and Jonathan Lander (Lander) engaged in telephone conversations to plan the
robbery. Borton was to bring Straight to a bridge at the Westbury
Court Apartments in Indianapolis, where Robinson and Lander would be waiting. Lander
was to bring a gun.
During the evening, Borton requested that Straight take him to a friends house
to return some CDs. When Straight and Borton arrived at the Westbury
Court Apartments, Robinson, Lander and James Walker (Walker) were waiting. Lander forced
Straight out of his car at gunpoint. Straight opened his trunk for
Landers inspection. Taking nothing, Lander pushed Straight back into the car.
Lander reached into the passenger side and fired multiple shots, fatally wounding Straight.
Lander, Walker and Robinson fled.
Borton stayed with Straight until the police arrived. Borton told the officers
that his friend had been the victim of an attempted robbery and a
shooting. An officer asked Borton to wait in the front seat of
a police car. At 1:35 a.m., Borton gave a statement to Detective
Michael Turner (Detective Turner). Borton implicated Robinson, Lander and Walker and showed
the police where Robinson and Lander lived. Borton then went
home with his parents.
During the investigation, some of the participants implicated Borton. Detective Turner called
Bortons home and spoke with Bortons mother, stating that he would like to
talk with Borton again. Bortons stepfather Timothy Ross (Ross) brought Borton to
the police station on the morning of February 19, 1999, where Borton made
another statement. During this taped statement, Borton made self-incriminating comments.
Borton was charged with murder, felony murder, attempted robbery and conspiracy to commit
robbery. Prior to trial, and again at trial, Borton moved to suppress
his police statements; the motions were denied. At the conclusion of Bortons
bench trial, he was acquitted of murder and felony murder but convicted of
attempted robbery and conspiracy to commit robbery. The trial court imposed upon
Borton concurrent fifty-year sentences. Borton now appeals.
Discussion and Decision
I. Motion to Suppress Police Statements
Borton was seventeen at the time he gave his confession. He now
claims that his initial statement to police should have been suppressed because it
was given without a Miranda warning, and that his subsequent confession should have
been suppressed because he and Ross were not given the opportunity for meaningful
consultation on a timely basis.
Indiana Code section 31-32-5-1 provides in pertinent part:
Any rights guaranteed to a child under the Constitution of the United States,
the Constitution of the State of Indiana, or any other law may be
by counsel retained or appointed to represent the child if the child knowingly
and voluntarily joins with the waiver;
by the childs custodial parent, guardian, custodian, or guardian ad litem if:
that person knowingly and voluntarily waives the right;
that person has no interest adverse to the child;
meaningful consultation has occurred between that person and the child; and
the child knowingly and voluntarily joins with the waiver[.]
The State bears the burden of showing that a juvenile defendant received all
of the protections of the foregoing statute. Brown v. State, 751 N.E.2d
664, 670 (Ind. 2001). However, as with any review of the admissibility
of a confession, we review the evidence in the light most favorable to
the trial courts decision. Id. We review a trial courts ruling
as to the voluntariness of a waiver by looking to the totality of
the circumstances. Cherrone v. State, 726 N.E.2d 251, 253 (Ind. 2000).
Pursuant to Indiana Code section 31-32-5-4, a review of the totality of the
circumstances in a juvenile case includes consideration of the childs physical, mental and
emotional maturity; whether the child or parent understood the consequences of the childs
statements; whether the child and parent had been informed of the delinquent act;
the length of time the child was held in custody before consulting with
his parent; whether there was any coercion, force, or inducement; and whether the
child and parent were advised of the childs right to remain silent and
to the appointment of counsel. Id. at 253-54. A. Initial Statement
Concerning Bortons initial statement, the threshold question is whether he was subject to
custodial interrogation. As a general rule, when a juvenile who is not
in custody gives a statement to police, neither the safeguards of Miranda warnings
nor the juvenile waiver statute is implicated. A.A. v. State, 706 N.E.2d
259, 261 (Ind. Ct. App. 1999). A custodial interrogation need not be
preceded by an arrest, but must commence after the persons freedom of action
has been deprived in a significant way. Id.
Evidence adduced by the State discloses that Borton volunteered information to police officers
arriving to assist Straight to the effect that he and Straight had been
victimized. Borton also proffered information regarding the perpetrators. He was asked
to wait in a police car, without handcuffs or physical restraint on his
freedom. When Bortons mother arrived, she was allowed to speak with him.
After Borton gave a statement and showed officers where two of the
suspects lived, he was allowed to go home with his parents. By
all indications at this point, Borton appeared to be a victim/eyewitness willing to
help apprehend the perpetrators. Considering the evidence in a light most favorable
to the trial courts determination, we conclude that Borton was not subject to
custodial interrogation when he gave his initial statement, nor was the statement the
product of coercive police activity. The motion to suppress Bortons initial statement
was properly denied.
B. Subsequent Statement at the Police Station
The State presented evidence that Borton was afforded ten to fifteen minutes to
consult with Ross privately at the police station. Borton concedes that he
was afforded the opportunity to consult with Ross, but claims that he signed
the waiver form before the consultation took place. Second, he claims that
the consultation was not meaningful because Ross did not know that Borton was
considered a suspect in the crimes against Straight.
The meaningful consultation requirement will be met when the State demonstrates actual consultation
of a meaningful nature or the express opportunity for such consultation, which is
then forsaken in the presence of the proper authority by the juvenile, so
long as the juvenile knowingly and voluntarily waives his constitutional rights. Brown,
751 N.E.2d at 670 (quoting Williams v. State, 433 N.E.2d 769, 772 (Ind.
1982)). The preferred practice is to provide consultation after advising the juvenile
and his or her parents of the rights to be waived. Cherrone,
726 N.E.2d at 257 n. 1.
Detective Turner testified that he met with Borton and Ross, reviewed the juvenile
rights form with them, left them alone to talk for ten to fifteen
minutes, and then returned. Sheriffs Deputy Michael Hornbrook testified that after Borton,
his father, Deputy Hornbrook and Detective Turner signed the waiver of rights, Borton
was asked to make a statement in writing. (R. 165.) Therefore,
contrary to Bortons assertion, the evidence most favorable to the trial courts decision
indicates that the proper sequence of advice, consultation, waiver and statement was observed.
Moreover, the absence of specific advice to Ross that Borton was a suspect
in the crimes against Straight does not render the consultation meaningless or the
waiver involuntary. A waiver can be made knowingly even where the parent
is not specifically apprised of the charges against the child or the act
of which the child is suspected. Trowbridge v. State, 717 N.E.2d 138,
146 (Ind. 1999), rehg. denied. Here, Ross was aware that Straight had
been murdered, that his son was present at the time of the murder,
and that he knew people who had allegedly committed the murder. Moreover,
Borton was personally acquainted with Straight, a potential rival for the affections of
Bortons girlfriend. In light of these facts, Ross should have appreciated that
Borton was potentially a suspect in the crimes against Straight.
C. Totality of the Circumstances
Borton was seventeen years and eleven months of age when he made his
statements. As he waited to make the first statement, Borton was allowed
to see his mother as soon as she arrived at the scene.
On the occasion of the second statement, Ross voluntarily brought Borton to the
police station and remained with him throughout the interview. Borton and Ross
were informed of Bortons rights, and afforded the opportunity for consultation in private.
They each executed a waiver form. The record is devoid of
any evidence of police force, coercion or improper inducement to secure either statement.
Under the totality of the circumstances, Bortons statements were voluntary. They
were properly admitted into evidence.
II. Dual Convictions of Attempt and Conspiracy
Indiana Code section 35-41-5-3(a) provides:
A person may not be convicted of both a conspiracy and an attempt
with respect to the same underlying crime.
Borton was convicted of both attempted robbery and conspiracy to commit robbery with
respect to the same underlying crime against Straight, in contravention of the foregoing
statute. Thus, we reverse his conviction for attempted robbery.III. Manifestly Unreasonable Sentence
Finally, Borton argues that the imposition of the maximum sentence upon conviction of
a Class A felony is manifestly unreasonable in his case.
See footnote He claims
that, in light of his youth and the nature of his prior juvenile
adjudications, the primary focus of the sentencing court should have been rehabilitation rather
This Court has the constitutional authority to review and revise sentences. Ind.
Const. Art. VII, Sec. 6. However, we 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 7(B).
The standard is not whether in our judgment the sentence is unreasonable, but
whether it is clearly, plainly and obviously so.
Noojin v. State, 730
N.E.2d 672, 679 (Ind. 2000).
Where the sentencing court imposes an aggravated sentence, it must make valid findings
to support an aggravator. Ajabu v. State, 722 N.E.2d 339, 342 (Ind.
2000), rehg. denied. The court should identify the significant aggravators and mitigators
and demonstrate that it has balanced the aggravators against the mitigators in reaching
its sentence. Id. at 343. The requirement of a specific sentencing
statement guards against arbitrary sentences and provides an adequate basis for appellate review.
Bacher v. State, 722 N.E.2d 799, 801 (Ind. 2000).
In support of the enhanced sentence imposed upon Borton, the trial court identified
as aggravating circumstances the following: Bortons plan to rob someone who trusted
him, his previous record of juvenile adjudications, his violation of probation, his unsatisfactory
conduct during the instant incarceration period, and the failure of prior attempts at
rehabilitation. The court recognized as mitigating factors Bortons youth, his attainment of
a GED, his assistance to police, and hardship to his family upon his
To the extent that the trial courts statement You did plan to commit
this robbery of someone you knew, someone who trusted you, (R. 372.), may
be construed as finding the formulation of a plan to be an aggravating
circumstance, reliance upon this aggravator was improper. A fact that comprises a
material element of a crime may not also constitute an aggravating circumstance to
support an enhanced sentence (although a court may properly consider the particularized circumstances
of the factual elements as aggravating circumstances). Stewart v. State, 531 N.E.2d
1146, 1150 (Ind. 1988). Nevertheless, a single valid aggravating circumstance is adequate
to support the enhancement of a sentence. Love v. State, 741 N.E.2d
789, 793 (Ind. Ct. App. 2001).
However, in addition to reviewing the traditional balancing of aggravating and mitigating circumstances,
we review the sentence to assure that it is constitutionally proportionate to the
nature of the offense and the character of the offender. The maximum
enhancement permitted by law should be reserved for the very worst offenses and
offenders. Bacher v. State, 686 N.E.2d 791, 802 (Ind. 1997). Here,
the trial court properly found that Borton had committed other offenses and violated
probation. However, Bortons history of criminal activity was limited to juvenile adjudications.
These adjudications would have constituted the misdemeanor offenses of Conversion and Public
Intoxication if they had been committed by an adult. He violated probation
by ignoring a curfew and becoming intoxicated in public. Neither of these
offenses is violent. Given Bortons youth, his limited prior contacts with the
justice system, and the non-violent nature of his prior offenses, the sentencing process
should be focused more upon rehabilitation than upon retribution. We conclude that
the fifty-year sentence is manifestly unreasonable in light of the nature of the
offense and the character of the offender. Accordingly, we revise Bortons sentence
to the presumptive sentence of thirty years.
In light of the foregoing, the trial court properly denied Bortons motion to
suppress his statements to police. Borton was improperly convicted of Attempted Robbery
because he was also convicted of Conspiracy to Commit Robbery. Bortons fifty-year
sentence for Conspiracy to Commit Robbery is revised to the thirty-year presumptive sentence
for a Class A felony conviction.
The conviction for Conspiracy to Commit Robbery is affirmed; the conviction for Attempted
Robbery is vacated.
KIRSCH, J., and BROOK, J., concur.
Footnote: Ind. Code §§ 35-41-5-2 and 35-42-5-1.
nd. Code §§ 35-41-5-1 and 35-42-5-1.
A portion of Rosss trial testimony also indicates that he knew his
son was in legal trouble. Ross testified: And Adam looked at
me crying, he was shaking. He said, Dad, help me. And
I told him that he wasnt giving them enough for them to help
you. That they needed more for them to help you. (R.
Footnote: Indiana Code section 35-50-2-4 provides that a person who commits a Class
A felony shall be imprisoned for a fixed term of thirty years, with
not more than twenty years added for aggravating circumstances.