Attorneys for Appellant

C. Kenneth Wilber

South Bend, Indiana

Attorneys for Appellee

Pamela Carter

Attorney General of Indiana

Preston W. Black

Deputy Attorney General

Indianapolis, Indiana

	IN THE

	INDIANA SUPREME COURT

MICHAEL GREER,

	Appellant (Defendant below),

	v.

STATE OF INDIANA,

	Appellee (Plaintiff below).

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)	Supreme Court No.

)	71S00-9604-CR-272

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	APPEAL FROM THE ST. JOSEPH SUPERIOR COURT

	The Honorable Sanford Brook, Judge

	Cause No. 71D08-9506-CF-258

	ON DIRECT APPEAL

SULLIVAN,  Justice.

	Defendant contends that the trial court improperly sentenced defendant to a cumula tive term of 220 years.  We disagree with defendant and affirm the trial court.

Background

	On the early morning of June 12, 1995, defendant, along with two other men,

Terrance Mitchem and Dorian Lee, broke into a house in South Bend, Indiana.  The home

was occupied by four adults: two men and two women.  Defendant, Mitchem and Lee were

armed.

	Defendant awakened the first woman and ordered her to perform fellatio on him. 

Later, Mitchem raped both women.  Lee also raped the second woman.  At one point, Greer

told the first woman, "Don't try to escape because if any of you all survive I got some boys

from Chicago that will come and finish the job."  The first woman then told Greer that she

"had babies . . . to raise" and Greer responded that he "couldn't leave any witnesses."  

	Mitchem then ordered the four victims to kneel over a mattress on the floor.  Greer

stated "I'm going to count to five and we [sic] going to start shooting."  Greer, Mitchem and

Lee then opened fire on the four victims and fired a total of 21 shots.  They shot the first

woman seven times, the first man four times, the second woman four times, and the second

man six times.  The second man was killed.  The other three miraculously survived.

	Defendant was charged with Murder,1 Burglary, a class B felony,2 three counts of Attempted Murder,3class A felonies, and Criminal Deviate Conduct, a class A felony.4  Defendant was tried jointly with Mitchem and Lee and was found guilty of all charges.  The

trial court entered judgment on each guilty verdict and sentenced defendant to enhanced

terms of 60 years for Murder, 15 years for Burglary, 40 years each for each count of

Attempted Murder, and 40 years for Criminal Deviate Conduct.  The court ordered the

sentence for Burglary to be served concurrently with the sentence for Murder and the

sentences for the other offenses to be served consecutively to one another.  This resulted in

a total executed term of 220 years.

Discussion

					 	On appeal, defendant claims that the terms of his sentence exceeded the limitation imposed by the General Assembly on consecutive sentences.  

	In 1994, the Indiana legislature amended Ind.Code § 35-50-1-2 to add a limitation upon a trial court's authority to order terms of imprisonment to be served consecutively.5  The statute, as amended, read in relevant part:6

The court may order terms of imprisonment to be served consecutively even

if the sentences are not imposed at the same time.  However, except for

murder and felony convictions for which a person receives an enhanced

penalty because the felony resulted in serious bodily injury if the defendant

knowingly or intentionally caused the serious bodily injury, the total of the

consecutive terms of imprisonment, exclusive of the terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced

for felony convictions arising out of an episode of criminal conduct shall not

exceed the presumptive sentence for a felony which is one (1) class of felony

higher than the most serious of the felonies for which the person has been

convicted.

Ind.Code § 35-50-1-2(a) (Supp. 1994).

	Application of this statute requires several steps.  First, we identify the presumptive

sentence for a felony that is one class higher than the most serious felony that defendant was

charged with.  Id.; Salone v. State, 652 N.E.2d 552, 562 (Ind. Ct. App. 1995), trans. denied.  Here, the most serious felony defendant was convicted of was Murder, which had a pre

sumptive term of 50 years.  Ind. Code § 35-50-2-3 (Supp. 1994).  Since there is no felony

higher than Murder, the presumptive sentence of 50 years for Murder is the maximum term

of imprisonment that defendant can be sentenced to for his convictions arising out of this

"episode of criminal conduct" except for "murder and felony convictions for which a person

receives an enhanced penalty because the felony resulted in serious bodily injury if the

defendant knowingly or intentionally caused the serious bodily injury."  Ind.Code § 35-50-

1-2(a).  

	Thus the next step of our analysis requires analyzing whether any of the convictions

for which defendant received consecutive sentences — the three Attempted Murder and one

Criminal Deviate Conduct convictions  — constitute convictions for which defendant (i)

received an enhanced penalty because the felony resulted in serious bodily injury and, if so, (ii) the defendant knowingly or intentionally caused serious bodily injury.7

	Several matters relevant to this inquiry are clear.  

	First, defendant received an enhanced sentence for each of the felonies in question. 

Attempted Murder and Criminal Deviate Conduct as charged here are Class A felonies.  The

presumptive sentence for a Class A felony is 25 years.  Ind. Code § 35-50-2-4 (Supp. 1994). 

The trial court enhanced the sentence for each of these convictions to 40 years.     

	Second, each of the victims suffered serious bodily injury.  The definition of "serious bodily injury" is defined as "bodily injury that creates a substantial risk of death or that

causes serious permanent disfigurement, unconsciousness, extreme pain, or permanent or

protracted loss or impairment of the function of a bodily member or organ."  Ind. Code § 35-

41-1-25 (1993).  The first woman was shot seven times.  The first man was shot four times. 

The second woman was shot four times.  

	Third, defendant knowingly or intentionally caused the serious bodily injury.  While

defendant claims there was no evidence to show that defendant knowingly or intentionally

caused serious bodily injury during the commission of the Attempted Murder and Criminal

Deviate Conduct felonies, we conclude otherwise.  The jury convicted defendant of each of

these offenses in which a knowing or intentional mens rea was an element and in which serious bodily injury indisputably occurred.8  Defendant does not dispute the sufficiency of the evidence to support these convictions.

	 Defendant maintains that because none of the three surviving victims actually saw

defendant shoot them, it cannot be shown that defendant intended to cause serious bodily

injury to any one of them.  He also argues that there was no physical proof linking the

bullets fired from his gun to particular victims.  However, among the three assailants, a total

of 21 shots were fired simultaneously.  Defendant had specifically stated that he intended to kill "any witnesses."    All three of the Attempted Murder victims clearly were potential

witnesses.  Given the jury's verdicts, the number of shots fired, and defendant's clearly

expressed intention to kill all of the victims, it is beyond dispute that defendant knowingly

or intentionally caused serious bodily injuries to the three victims of Attempted Murder.    

	The sole question which remains is whether sentences for the convictions in question

were enhanced because the felonies resulted in serious bodily injury.  While the sentencing hearing and order are not absolutely explicit on this point, the trial court clearly indicated

that among the reasons for imposing enhanced and consecutive sentences was "the serious

ness of the totality of these crimes."  (R. 1573, 1575.)  Given the circumstances, we have

little doubt in concluding that this was a reference to the serious bodily injuries inflicted.

	Defendant's convictions for Attempted Murder were exempted from the term of

imprisonment limitation imposed by Ind.Code § 35-50-1-2 and therefore the trial court did

not violate its terms in sentencing defendant to a total term of 220 years.9

Conclusion

	We affirm the trial court. 

SHEPARD, C.J., and DICKSON, SELBY and BOEHM, JJ., concur.