Reaves v. State

• Decision Date: 17 February 1992
• Docket Number: No. 15S00-8806-CR-533,15S00-8806-CR-533
• Citation: 586 N.E.2d 847
• Parties: Douglas REAVES, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 847

586 N.E.2d 847

Douglas REAVES, Appellant, v. STATE of Indiana, Appellee.

No. 15S00-8806-CR-533.

Supreme Court of Indiana.

Feb. 17, 1992.

Susan K. Carpenter, Public Defender of Indiana and M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana and Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Felony Murder and Robbery, a Class A felony. He received consecutive sentences of sixty (60) years and forty (40) years, respectively.

The facts are: On August 27, 1986, appellant, Don Linneman and Daryl Fritts were drinking heavily in an Ohio tavern when appellant talked the other two into going in with him on a burglary in Indiana. Linneman, driving his pickup truck, dropped off the other two at the home of Edward Losekamp and then went to visit Toby Littleton at his home near Lawrenceburg, where he arrived extremely intoxicated around ten o'clock and stayed for about an hour.

Edward Losekamp was virtually confined to a hospital bed and was in bed that night when shortly before ten o'clock appellant, his face covered with a bandanna, kicked open the front storm door, confronted Ruth Losekamp, Edward's niece, and demanded money. Accompanied by Fritts, appellant began smashing furniture and Ruth went into her uncle's bedroom and obtained some money. Threatening Edward with a knife, appellant demanded more money and when Ruth replied there was no more, appellant threw her to the floor, fracturing her hip. Appellant picked her up from the floor and threw her onto her uncle's legs as he lay on his bed. Fritts covered her head with a pillow and proceeded to sexually molest her by fondling her breasts and genitals; appellant then forced her to fondle his. Appellant and Fritts smashed the rest of the furniture in the house, closed the door to the bedroom and blocked it with the stove and refrigerator, loaded their loot including guns, coins, and a gold pocket watch into Ruth's car, and made their getaway. Appellant, however, immediately lost control of the car and ran off the road. They abandoned the car and went on foot to Linneman's truck. He drove them back to the wrecked car to retrieve some of the stolen items.

The victims spent that night on Edward's bed, unable to move. The next morning, a county highway worker noticed their car off the road and went to their house to render assistance. The victims were transported to the hospital where Ruth was treated for bruises, abrasions, vaginal bleeding, and a fractured hip which required replacement. Edward was examined, treated and released the same day. He went to stay in the home of another niece, where he remained bedfast. His condition steadily deteriorated until he died three weeks after the robbery. An autopsy revealed portions of a blood clot in his leg had broken off and traveled to his pulmonary arteries. The embolism had blocked the flow of blood between his lungs and heart, straining the latter and causing his death. The Hamilton County, Ohio Coroner testified that having Ruth thrown onto his lower legs and remaining there had caused the clotting responsible for the pulmonary embolism, and accordingly, the cause of death was listed as a homicide.

The day Edward died, appellant approached his girlfriend and two of her friends, claiming he needed money to leave town because he had injured a man in a bar fight and was afraid he would die. His girlfriend obtained cash, and appellant used it to travel to Florida. One of her friends, fearing appellant had been involved in some illegal activity, notified her uncle, a police officer, of appellant's story. In a statement given in Florida, appellant admitted the burglary and robbery but denied any sexual molestation. At trial, three witnesses testified that appellant had sold them guns, coins, and a pocket watch identified as similar to those stolen from the Losekamps. Daryl Fritts testified he and appellant had perpetrated the burglary and robbery.

Appellant contends the trial court committed fundamental error in violating the prohibition against double jeopardy by imposing sentence on both the felony murder and the robbery. The jury found appellant guilty of felony murder/robbery, felony murder/burglary, robbery, and burglary. The trial court merged the felony murder counts into one conviction for felony murder and entered sentences for felony murder and robbery, the sentences to run consecutively.

Noting the charging information included one count of robbery naming both Losekamps as victims, appellant argues it was double jeopardy to punish him twice for the same robbery by imposing separate sentences for that offense and the felony murder based upon that same offense. He correctly cites Swafford v. State (1986), Ind., 498 N.E.2d 1188 for the proposition that sentence may not be imposed upon both felony murder and its underlying felony. The State acknowledges this is the law, citing Huffman v. State (1989), Ind., 543 N.E.2d 360, cert. denied, --- U.S. ----, 110 S.Ct. 3257, 111 L.Ed.2d 767, overruled on other grounds, Street v. State (1991), Ind., 567 N.E.2d 102, but goes on to point out that in cases where an underlying offense, such as a bodily injury aggravator, was committed on two separate victims, either will suffice as the predicate for the greater while not merging with the other, which survives to stand alone (or to enhance another greater offense). Hansford v. State (1986), Ind., 490 N.E.2d 1083.

Here, the trial court was careful to specify its entry of judgment was for the Class A robbery of the victim Ruth Losekamp; the robbery of her uncle thus remained to serve as the predicate for the felony murder/robbery conviction. In his reply brief, appellant cites King v. State (1988), Ind., 517 N.E.2d 383 for the proposition that injuries to multiple victims charged in one count do not comprise multiple offenses for double jeopardy purposes. However, in King we held the same injuries to two victims could not support murder and attempted murder convictions as well as the elevation of burglary and robbery charges to Class A felonies. This lends no support to appellant's position, and its result is distinguishable from the case at bar, where from similar facts the judgment has been pared down to one conviction for homicide and one for aggravated robbery.

Appellant contends the trial court erred in imposing both aggravated and consecutive sentences totalling 100 years and in ordering them served consecutive to insufficiently specified sentences on Ohio convictions. In its sentencing statement, the court noted appellant had been sentenced to a term of from 6 to 25 years on his guilty plea in Hamilton County, Ohio to charges of aggravated burglary of the home of a 92-year-old man on August 20, 1986, six days before the instant crime. The court noted as well that the mitigating factors were outweighed by the aggravating factors, which it discussed at some length, and then rendered aggravated consecutive sentences to be served consecutive to "the sentences which the defendant is presently serving in the State of Ohio."

Appellant argues the sentencing order, by merely making reference to the one sentence in Ohio, thus was overly vague as to the date service of the instant sentence was to commence, in violation of Ind.Code Sec. 35-38-3-2(d), which states "[a] term of imprisonment begins on the date sentence is imposed, unless execution of the sentence is stayed according to law." The State concedes the order fails to specify which Ohio sentences are to be completed before service of the instant one, but goes on to argue appellant is in the best position to know his Ohio discharge date, and argues setting a specific date would be unrealistic, considering the potential for changes in good time credit, e.g., and that no authority exists requiring it.

In the case at bar, the record reveals the trial court was fully apprised by the probation officer who conducted the presentence investigation of the nature and circumstances of the Ohio burglary conviction and includes State's Exhibit No. 2, a copy of appellant's judgment of conviction for that offense, Case No. B863916, aggravated burglary, for which he was sentenced on January 27, 1987 to a term of from 6 to 25 years in the Ohio Reformatory. As appellant points out, courts may not withhold judgment nor indefinitely postpone sentencing, Robison v. State (1977), 172 Ind.App. 205, 359 N.E.2d 924, nor impose sentences which begin in futuro, Holland v. State (1976), 265 Ind. 216, 352 N.E.2d 752. Here, however, the sentencing order, in conjunction with the record of the sentencing hearing, leaves no doubt as to precisely what Ohio sentence must be completed before appellant is to commence serving his term in the instant case and makes clear the indeterminate nature of that sentence. Under the circumstances, the consecutive sentencing order was sufficiently specific to satisfy statutory and due process requirements.

Appellant argues his 100-year sentence is manifestly unreasonable. He cites his youthful age of nineteen at the time of the crime, his ingestion of controlled substances, the lack of any intent to kill, his childhood in a severely dysfunctional, alcoholic home, and his despondency over the death of his older brother as circumstances the trial court could have balanced in mitigation. He cites Fointno v. State (1986), Ind., 487 N.E.2d 140 wherein we held a series of enhanced consecutive sentences arising from one criminal episode resulted in a manifestly unreasonable term. There, noting that "[g]iven the degree of subjectivity that cannot be eliminated in the sentencing process, it would be inappropriate for us merely to substitute our opinions for those of the trial judge," we nevertheless went on to find that "considering the reduced significance of the confinement counts and the robbery offenses when...