Mark A. Foster
Jeffrey A. Modisett
Randi E. Froug
Evansville, IndianaAttorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
Mark A. Foster
Jeffrey A. Modisett
Randi E. Froug
JOSEPH M. HENSON, JR.,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
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).
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 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.
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
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.See footnote
Defendant lodges several
arguments against the propriety of the sentence: that the trial court considered improper aggravating
circumstances in imposing 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 Constitution.
As a general matter, the legislature has prescribed standard sentences for each crime, allowing the sentencing court limited discretion to enhance each sentence to reflect aggravating circumstances or reduce the sentence to reflect mitigating circumstances. The legislature also permits sentences to be imposed consecutively if aggravating circumstances warrant. Morgan v. State , 675 N.E.2d 1067, 1073 (Ind. 1996) (citing Reaves v. State, 586 N.E.2d 847 (Ind. 1992)). See Ind. Code § 35-38-1-7.1(b) (Supp. 1994) (a court may consider aggravating circumstances in determining whether to impose consecutive sentences). With respect to the convictions at issue here, the trial court enhanced the standard sentence for murder by five yearsSee footnote 10 and imposed the standard
sentences for kidnapingSee footnote
and robbery.See footnote
As noted, these three sentences were ordered to be served
When enhancing a sentence, a trial court must state its specific reasons for doing so.
Accordingly, the sentencing statement must: (1) identify significant aggravating and mitigating
circumstances; (2) state the specific reason why each circumstance is aggravating or mitigating; and
(3) evaluate and balance the mitigating against the aggravating circumstances to determine if the
mitigating offset the aggravating circumstances. Mitchem v. State, 685 N.E.2d 671, 678 (Ind. 1997)
(citing Jones v. State, 675 N.E.2d 1084, 1086 (Ind. 1996)).
At the sentencing hearing, the trial court engaged in an oral recitation of its views of the nature and circumstances of the offense, the character of the Defendant, and any aggravating and mitigating circumstances which may exist. While trial court sentencing discussions and orders which specifically enumerate aggravating and mitigating circumstances, detailing the basis for each, facilitate appellate review, the court's narrative here is sufficiently specific for us to conclude the following. First, the court considered it to be an aggravating circumstance that the crime was particularly violent _ the victim was a defenseless victim of a random car jacking, left to die in her own blood. Second, the court considered it to be an aggravating circumstance that the kidnaping
and murder were followed by a crime spree involving one act of violence, the robbery, and other acts
of invading personal property and other rights. Third, the court considered to be mitigating circumstances that the defendant had no prior criminal history, that he was under the age of 18, and that he
showed remorse at sentencing. Fourth, the court believed that it would depreciate the seriousness
of the crime to grant defendant's request for a reduced sentence because of his age and lack of
criminal history. Fifth, the court found the aggravating circumstances to outweigh the mitigating
circumstances such that a sentence in excess of the standard term was justified. The sentencing
process employed by the trial court comported with applicable requirements.
We find the five-year enhancement of defendant's murder sentence well within the purview
of the trial court's sentencing authority. And we also find the aggravating circumstances identified
sufficient to justify the imposition of consecutive sentences. See Taylor v. State, 695 N.E.2d 117,
120 (Ind. 1998) (a court may consider the nature and circumstances of a crime to determine what
sentence to impose); Scheckel v. State, 620 N.E.2d 681, 685 (Ind. 1993) (the particular heinous
nature and circumstances of the crime were considered as aggravating circumstances).
Defendant's state constitutional claim is that the sentence imposed was obviously based on vindictive justice rather than principles of reformation, violating art. I, § 18, of the Indiana Constitution which provides: The penal code shall be founded on the principles of reformation, and not of vindictive justice. Defendant offers only the phrasing of the trial court's sentencing statement and the fact that the sentence itself will almost certainly take up virtually all of his life as support for his contention that the sentence was obviously based on vindictive justice. We find nothing in the
sentencing statement or the severity of the sentence that leads us to that conclusion. In any event,
our precedents have held that art. 1, § 18, applies only to the penal code as a whole, not to individual
sentences. See, e.g., Lowery v. State, 478 N.E.2d 1214, 1220 (Ind. 1985).
This is an admittedly lengthy sentence for a youthful offender with no prior criminal history.
But at several stages during the crime spree involved, defendant and his confederate had an opportunity to stop and bring the mayhem they were causing to a halt. They did not. In these circumstances, imposing consecutive standard (or near-standard) terms for each of the three most egregious
episodes in the crime spree was well within the trial court's sentencing discretion.
Defendant contends that the trial court committed reversible error when it denied his motion
to be tried separately on the murder charge, on the kidnaping charge, and on the robbery and other
crime spree-related charges. Specifically, he maintains that under Ind.Code § 35-34-1-9(a) (1993),
the State was not entitled to join in the same information the murder, the kidnaping charge, and the
robbery and other crime spree-related charges. That statute provides:
Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses: (1) are of the
same or similar character, even if not part of a single scheme or plan; or (2) are
based on the same conduct or on a series of acts connected together or constituting
parts of a single scheme or plan.
That the murder and kidnaping charges are based on a series of acts connected together
needs little discussion _ the victim was killed while the kidnaping was in progress. As to connection of the robbery and other crime spree-related offenses to the murder and kidnaping, the case of
Brown v. State, 650 N.E.2d 304 (Ind. 1995), is instructive. In that case, the defendant broke into
a man's home and fired a weapon at the homeowner. The defendant then broke into another home
where he confronted the residents and forced them to drive him to another place as he attempted to
avoid capture. Even though these events occurred over a two-day time period, we found them to
be part of a connected series of acts, making joinder permissible. Id. at 306.
Here we find the murder and kidnaping and the robbery and other crime spree-related charges similarly connected. Indeed, all were part of an uninterrupted series of events. As such, defendant was only entitled to severance if appropriate to promote a fair determination of the defendant's guilt or innocence of each offense considering (1) the number of offenses charged; (2) the complexity of the evidence to be offered; and (3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense. Ind.Code § 35-34-1-11(a). See Ben-Yisrayl v. State, 690 N.E.2d 1141, 1145 (Ind. 1997); Barajas v. State, 567 N.E.2d 437, 438 (Ind. 1994); Valentin v. State, 567 N.E.2d 792, 794-95 (Ind. 1991); Pardo v. State, 585 N.E.2d 692, 693 (Ind. Ct. App. 1992). In this case, defendant argues the complexity of the evidence point, pointing to
eight expert witnesses reserved by the State, one expert named by defendant, eight aerial photographs and a large number of slides and photographs. He also argues that trying the charges
together allowed the jury to use evidence of one offense to infer that he committed another. We find
nothing in defendant's showing of complexity or prejudice that overcomes the presumption of
correctness in the trial court's ruling that severance was not appropriate to promote a fair determination of the defendant's guilt or innocence of each offense.
We affirm the trial court.
SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.
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