Henson v. State, 82S00-9710-CR-530

• Docket Nº: No. 82S00-9710-CR-530
• Citation: 707 N.E.2d 792
• Case Date: March 16, 1999
• Court: Supreme Court of Indiana

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707 N.E.2d 792 Joseph M. HENSON, Jr., Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 82S00-9710-CR-530. Supreme Court of Indiana. March 16, 1999.

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Mark A. Foster, Jon Aarstad, Evansville, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General, Randi E. Froug, Deputy Attorney General, Indianapolis, Attorneys for Appellee.

ON DIRECT APPEAL

SULLIVAN, Justice.

Defendant Joseph M. Henson, Jr., and another man were convicted of kidnaping, murder, robbery and multiple additional offenses in connection with the abduction and murder of a woman and subsequent crime spree in the Evansville area. He contends that his sentence of 100 years was improperly imposed and that he should have been tried separately on various of the charges. Finding the sentence proper and no entitlement to severance, we affirm.

We have jurisdiction over this direct appeal because the longest single sentence exceeds fifty years. Ind. Const. art. VII, § 4; Ind. Appellate Rule 4(A)(7).

Background

The events that gave rise to this case began in the early morning of July 26, 1996, when defendant and another man, Jason Wentz, abducted Donna Heseman in the parking lot at the Bristol-Myers facility in Evansville. After forcing her into her car, defendant held a shotgun as she drove. At some point shortly thereafter, defendant shot her to death, causing the car to crash through an entrance gate at the facility. Defendant exited Heseman's car and joined Wentz in another vehicle.

As they attempted to escape, defendant and Wentz rattled the basement doors of Cathryn Kuester's residence but were not able to obtain entry. They then stole Gregory Epley's automobile. Abandoning that vehicle, they then stole a truck from Stacey

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Durham. Subsequently abandoning that truck as well, they broke into a residence owned by Orville Childers. When Childers arrived later, they obtained his truck keys. Defendant and Wentz were subsequently apprehended when they crashed Childers's truck into a sheriff's car. The shotgun with which Heseman had been killed was in the truck. Other physical evidence linking defendant with the murder was recovered from various of the vehicles and Childers's residence.

Defendant was charged with the intentional murder, ¹ felony murder ² and kidnaping ³ of Donna Heseman; attempted residential entry ⁴ with respect to the Cathryn Kuester incident; auto theft ⁵ with respect to the Gregory Epley incident; burglary ⁶ and auto theft with respect to the Stacey Durham incident; and residential entry ⁷ and robbery ⁸ with respect to the Orville Childers incident. He was found guilty on all counts except the burglary count. The State also sought a sentence of life without parole under Ind.Code § 35-50-2-9; the jury recommended against life without parole.

I

The jury found defendant guilty of intentional or knowing murder, felony-murder and kidnaping (the kidnaping serving as the underlying felony supporting the felony-murder charge). Acknowledging that it could not enter judgment for both intentional murder and felony-murder with respect to the same killing, see Gregory-Bey v. State, 669 N.E.2d 154, 157 (Ind.1996), the trial court merged the two murder convictions. The court then imposed separate sentences for murder and for kidnaping.

Defendant argues that the trial court's approach was improper. Rather, defendant argues that the kidnaping conviction should have been vacated and judgment of conviction entered for both intentional murder and felony-murder. Then, defendant maintains, concurrent sentences for the two murder offenses should have been imposed.

We conclude that the trial court acted properly. Defendant acknowledges the similarity of his claim to that considered in Kennedy v. State, 674 N.E.2d 966 (Ind.1996). Kennedy reiterated the following principles: a defendant may not be convicted and sentenced for both intentional murder and felony murder with respect to the same killing. Nor may a defendant be convicted and sentenced for both felony-murder and the underlying felony. But in appropriate circumstances, a defendant may be convicted and sentenced for both intentional murder and a felony which serves as the predicate for a felony-murder charge so long as the felony-murder conviction is vacated. The following cases also affirm these principles: Gregory-Bey, 669 N.E.2d 154; Moore v. State, 652 N.E.2d 53 (Ind.1995); Bradley v. State, 649 N.E.2d 100 (Ind.1995); Harris v. State, 644 N.E.2d 552 (Ind.1994); Hicks v. State, 544 N.E.2d 500 (Ind.1989). Although defendant here contends that the approach taken is these cases is incorrect (arguing instead, as noted supra, that convictions should be imposed for both intentional murder and felony-murder and vacated for the felony underlying the felony-murder charge), we see no basis for setting aside long-standing precedent in this regard.

II

Defendant was sentenced to a total of 100 years--consecutive sentences of 60 years for intentional murder, 30 years for kidnaping, and 10 years for robbery. ⁹ Defendant lodges several arguments against the propriety of the sentence: that the trial court considered improper aggravating circumstances in imposing

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a sentence more severe than the standard sentence; that the trial court did not give sufficient weight to mitigating circumstances; that the trial court improperly used the same aggravating circumstances both to enhance the standard sentences and to impose them consecutively; and that the sentence violates art. I, § 18, of the Indiana...