Attorneys for Appellant

Jeffrey L. Sanford

South Bend, Indiana			

Attorneys for Appellee

Pamela Carter

Attorney General of Indiana

Randi F. Elfenbaum

Deputy Attorney General

Indianapolis, Indiana

	IN THE

	INDIANA SUPREME COURT

TERRANCE MITCHEM,

	Appellant (Defendant  below),

	v.

STATE OF INDIANA,

	Appellee (Plaintiff  below).

)

)	Supreme Court No.

)	71 S00-9604-CR-00294

)

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)

)

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	APPEAL FROM THE ST. JOSEPH SUPERIOR COURT

	The Honorable Sanford Brook, Judge

	Cause No. 71D08-9506-CF-00260

	ON DIRECT APPEAL

SULLIVAN,  Justice.

	On June 14, 1995, defendant Terrance Mitchem was charged with the following:

Murder,1 a class A felony; Burglary,2 a class B felony;  three counts of Attempted Murder,3 two counts of Rape,4 and one count of Criminal Deviate Conduct,5 all class A felonies.  On December 11, 1995, the defendant was found guilty of all Counts, except for Burglary. 

Defendant was ordered to a total prison term of 90 years.  Defendant contends he was

erroneously convicted based upon an inadequate jury instruction and claims that his sen

tence was improperly enhanced.  We affirm the trial court.

	Background

	On June 12, 1995, defendant and two codefendants, Michael Greer and Dorian Lee,

armed with weapons, entered a home occupied by four adults.  Defendant raped the two

female occupants.  Defendant then told the four occupants to line up against the wall with

their backs towards defendants, Greer and Lee.  Defendant then changed his mind and told

the occupants to turn around to face the defendants and to kneel.  Greer, Lee, and defendant

opened fire on all four occupants.   One victim died and the other three survived.

Discussion

	Defendant raises two issues on appeal:  (1)  whether the trial court erred by failing  adequately to instruct the jury that a conviction must be supported by proof of every

material allegation contained in the charging information; and (2) whether the trial court

erred in its sentencing determination by  (a)  failing to articulate the reasons why each factor

was an aggravating or mitigating circumstance; (b) failing to engage in an evaluative

balancing process with respect to the aggravating and mitigating circumstances; and (c) 

applying an improper factor to justify the enhanced sentence.  

	I

	Defendant contends that the trial court failed adequately to instruct the jury that a

conviction must be supported by proof of every material allegation contained in the charging

information.  The State charged defendant with the crime of Attempted Murder with a

handgun and a shotgun.  Evidence at trial suggested that defendant committed the crime of

Attempted Murder with a rifle.  Defendant asserts that this constituted a fatal variance

between the charging information and the proof at trial; that the jury instruction on At

tempted Murder should have specified that the State was required to prove all of the material

allegations contained in the charging  information.6  Before deciding on the merits of this contention, we determine whether the defendant preserved this error for review.

	A

	 In order for this Court to consider this issue on appeal, the defendant must have

properly objected to the jury instruction, Ind.Trial Rule 51(C), and have proffered a written

jury instruction which would correct the error.  Clark v. State, 561 N.E.2d 759, 764 (Ind. 1990);  Raspberry v. State, 275 Ind. 504, 505, 417 N.E.2d 913, 915 (1981); Law v. State, 273 Ind. 624, 406 N.E.2d 1185, 1186 (1980); Corley v. State, 663 N.E.2d 175, 179 (Ind. Ct. App. 1996).  If the defendant failed to tender an instruction on the issue, the defendant

cannot now complain of an incomplete or omitted instruction.  Clark, 561 N.E.2d at 764.  

	The State's proposed instruction on Attempted Murder was as follows:

		To convict a defendant of Attempted Murder, a Class A felony, as charged 

		in Counts III, the State must prove each of the following elements beyond a 

		reasonable doubt:

			1.  A defendant, acting alone or with another accomplice,

			2.  with the intent to kill [name of victim],

			3. engaged in conduct which was a substantial step toward the 

			    commission of the crime of murder that is, the intentional killing 

			     of another human being. 

 (R. 102.) 

Defendant did not tender a written jury instruction for the Attempted Murder charge. 

However, the trial court did make a notation on the proposed jury instruction regarding

defendant's objection.  Defendant's objection was as follows:

		1.  The elements include "acting alone or with another accomplice."

		2.  Does not have all the elements.  that is... "by shooting at 		    	                ____(undecipherable) the body of ......."

		3.  Intentional killing of another human being is covered by element #2.

(R. 102.)

The trial court granted the first and third objection by striking the particular language

objected to, but did not grant the second objection.  In his brief, defendant suggests that this

second objection "related to the language in each of the three charges that the attempted

murder was committed 'with a handgun and a shotgun."  Br. of Appellant at 10.  We agree

with the State that the trial court's notation referring to defendant's objection to the instruc

tion cannot be construed as a request for an instruction regarding the specific weapon. 

	Ind.Trial Rule 51(C) requires that a party distinctly state the matter to which the party

objects and the grounds of the objection.  An objection must be "sufficiently specific to

make the trial judge aware of the alleged error before [the judge] reads the instruction to the

jury."   Terre Haute Regional Hospital v. El-Issa, 470 N.E.2d 1371, 1376 (Ind. Ct. App. 1984) trans. denied (citing Scott v. Krueger, 151 Ind.App. 479, 492, 280 N.E.2d 336, 345 (1972)).  The purpose of this rule is "to protect the trial court from inadvertent error." Id. (citing Conley v. Lothamer, 150 Ind.App. 356, 361, 276 N.E.2d 602, 605 (1971)).  See also Grimes v. State, 353 N.E.2d 500, 508 (Ind. Ct. App. 1976).  Failure to comply with T.R. 51(C) results in waiver of the alleged error.  Id.  With respect to this particular objection, we do not find that defendant made a sufficiently specific objection to make the trial court

aware that what defendant wanted was an instruction which included the weapons alleged

in the charge.  

	On the other hand, defendant did, on another occasion, clearly object to the jury

instruction on Attempted Murder.  After all the evidence was presented to the trial court,

defendant made the following  objection:

	As to Counts II, IV, and V, the attempted--again, I don't think the instruction

is as it should be.  The State's specific instruction that was used as part of the

attempted murder and not proved my client possessed those weapons.  I think

there is a variance between the charge and the prove (sic). 

 (R. 1473.)

While defendant's objection to the instruction was not as well articulated as it could have

been, the objection was not lacking in specificity or clarity.  See Hoffman v.  Bliss Co., 448 N.E.2d 277, 284 (Ind. 1983).   Clearly, it would have been more appropriate for defendant,

at this stage of the trial, to proffer a jury instruction on this issue, or at least inform the court that the error could be corrected by modifying the instruction.  However, because the record

reflects that throughout the trial defendant objected to the variance, we assume, without

deciding, that the objection complied with T.R. 51(C) and thus the error was preserved for

appeal.  Therefore, we proceed to the merits of the issue.

	B

	Defendant argues on appeal that the jury instruction on Attempted Murder was

improper because it did not instruct the jury that a conviction requires a finding of every

material allegation contained in the charging information.  As stated earlier, defendant

asserts that there was a fatal variance between the charging information and the proof at

trial.   A discussion of this issue requires a two part analysis:  (1)  whether the use of

specific weapons were material allegations in the charging information which the state was

required to prove; and  (2) whether the variance between proof at trial and the charging

information was fatal.

	B-1

	The State charged defendant with Attempted Murder.  To establish Attempted

Murder, the State must prove beyond a reasonable doubt that (1) defendant acted with

specific intent to kill and (2) defendant engaged in conduct constituting a substantial step toward commission of the crime.  Minter v. State, 653 N.E.2d 1382, 1383 (Ind. 1995). "Intent may be inferred from the use of a deadly weapon in a manner likely to cause death

or great bodily harm."  Johnson v. State, 455 N.E.2d 932, 936 (Ind. 1983).   "What consti tutes a substantial step must be determined from all the circumstances of each case, and the

conduct must be strongly corroborative of the firmness of the defendant's criminal intent." 

Harris v. State, 425 N.E.2d 112, 115-16 (Ind. 1981)(quoting Zickefoose v. State, 388 N.E.2d 507, 510 (Ind. 1979)).  The specific weapon used in the commission of the crime of At

tempted Murder is not an element of the crime.7  However, defendant asserts that because the State specified the weapons used in the charging information, it was bound to prove the

defendant used such weapons.    We disagree.

	It is well recognized that "a failure to prove a material allegation descriptive of the

offense is fatal."  Madison v. State, 234 Ind. 517, 532, 130 N.E.2d 35, 42 (1955)(citing Crouch v. State, 229 Ind. 326, 335, 97 N.E.2d 860, 863 (1951)).  However, as stated above, the specific weapon used is not an element of Attempted Murder.  In fact, the statute on

indictment and information, Ind. Code § 35-34-1-2, does not require the State to allege with

specificity the instrumentality used in the crime charged.  "The general rule of Indiana criminal procedure is that 'what is unnecessary to allege is automatically unnecessary to

prove.'"  Powell v. State, 250 Ind. 663, 668, 237 N.E.2d 95, 98 (1968) (citing Marks v. State, 220 Ind. 9, 40 N.E.2d 108 (1942)).  "Allegations not essential ... which can be entirely omitted without affecting the sufficiency of the charge against the defendant, are considered

as mere surplusage and may be disregarded."  Id. at 97.  "Unnecessary descriptive material in a charge is surplusage.  It need not be established in the proof and if there is a variance in

the evidence from such unnecessary particularity it does not vitiate the proceedings unless

it is shown that the defendant has been misled or prejudiced thereby."  Madison, 234 Ind. at  543-44, 130 N.E.2d at 47 (concurring opinion of Arterburn, J., in which three other justices

concurred).      

	We agree with the State that the allegation regarding the weapons was surplusage in

this case.  If the words "with a handgun and a shotgun" had been omitted from the charge,

this would not have affected the sufficiency of the charge, nor would the omission of these

words have altered the crime with which defendant was charged.  Therefore, because we

find that the allegation regarding weapons was surplusage, it was not necessary for it to be

included in the jury instruction as an allegation which must be proved in order to convict. 

However, because there was a variance between the proof at trial and the charging informa

tion, we proceed to the second part of the analysis to determine whether the variance was

fatal.

	B-2

	"A variance is an essential difference between the pleading and the proof."  Madison, 234 Ind. at 531, 130 N.E.2d at 41 (concurring opinion of Arterburn, J., in which three other

justices concurred); Miller v. State, 616 N.E.2d 750, 755 (Ind. Ct. App. 1993).  "Not all variances between allegations in the charge and the evidence at the trial are fatal."  Madison, 234 Ind. at 542, 130 N.E.2d at 46 (concurring opinion of Arterburn, J., concurringin which three other

justices concurred).  The test to determine whether a variance between the proof at trial and

a charging information or indictment is fatal is as follows:

		(1) was the defendant misled by the variance in the evidence from the

allegations and specifications in the charge in the preparation and

maintenance of his defense, and was he harmed or prejudiced thereby;

		(2) will the defendant be protected in the future criminal proceeding 

covering the same event, facts, and evidence against double jeopardy?

Harrison v. State, 507 N.E.2d 565, 566 (Ind. 1987)(citations omitted).8

	Defendant asserts that the variance was fatal because proof at trial showed defendant used a different weapon than the weapon in the charging information and cites to Miller v. State to support this proposition.  In Miller, the State charged defendant with confinement  “while armed with a deadly weapon, namely a handgun.”  There are two categories of

“deadly weapons:”  (1) firearms; and (2) weapons capable of causing serious bodily injury.9 Actual proof at trial showed defendant used a pellet gun.  A pellet gun is not a firearm, 

although a pellet gun can be considered a deadly weapon within the statute.  Miller, 616 N.E.2d at 755.  A handgun, however, is a firearm.  The court held that because the State

specified the use of handgun in the charging information, the State chose to limit the charges

against the defendant to the illegal use of a firearm, rather than the use of a deadly weapon. 

Id.  And because proof at trial showed defendant used a weapon that was not a firearm, the court held that there was a fatal variance.

	The facts of this case are different from Miller.  The State charged defendant with use of a handgun and shotgun, while proof at trial showed defendant used a rifle.  Following the

rationale in Miller, the State's charge of the use of a handgun and a shotgun only limited the charge to the use of a firearm, not to the use of those precise weapons.  Furthermore,

"[t]here is no variance where the proof shows that another instrument than that alleged was used, where it was of a similar nature, and caused the same character of wound or injury." 

Madison, 234 Ind. at 551, 130 N.E.2d at 50 (concurring opinion of Arterburn, J., concurring)(in which three other justices concurred)(quoting State v. Spahr, 186 Ind. 589, 592, 117 N.E. 648, 649 (1917)).10   All three of these weapons are firearms and the use of any of these weapons results in the same charge and the same punishment.11    Thus, defendant was not misled in preparing a defense, nor was defendant harmed or prejudiced.  We find that the variance

was not fatal.

	II

	The trial court enhanced the sentence with respect to each of defendant's convictions

to the maximum sentence permissible due to aggravating circumstances; ordered the sen

tence for one of the attempted murder sentences to run consecutive to the murder sentence;

and ordered the remaining sentences to run concurrent with the murder sentence.  The court

justified the enhanced and consecutive sentences with the following  factors:  (1)  a sentence

less than the sentence imposed would depreciate the seriousness of the totality of the crimes; 

(2)  the defendant is in need of correctional or rehabilitative treatment that can best be

provided by commitment to a penal facility;  and (3)  the emotional and psychological

effects of the crimes committed on the victims and their families.  The trial court also found

the defendant's age and the defendant's showing of remorse to be mitigating factors.

	 When a court enhances a presumptive sentence under Ind. Code § 35-50-1-2, the

court must explain its rationale for doing so.  Morgan v. State, 675 N.E.2d 1067, 1072 (Ind. 1996).  A trial court's sentencing statement must: (1) identify all of the significant mitigating

and aggravating circumstances; (2) state the specific reason why each circumstance is

considered mitigating or aggravating; and (3) articulate that the court evaluated and balanced

mitigating circumstances against the aggravating circumstances to determine if the mitigat

ing circumstances offset the aggravating circumstances.  Jones v. State, 675 N.E.2d 1084, 1086 (Ind. 1996).  "These requirements serve the dual purpose of guarding against arbitrary sentences and providing an adequate basis for appellate review."  Morgan, 675 N.E.2d at 1074.

	A

	Defendant claims that the trial court did not articulate the reasons why each factor

cited was an aggravating or mitigating circumstance.  The trial court did identify all of the

significant mitigating and aggravating circumstances that it considered in imposing a

sentence.  Furthermore, all of these factors may be considered to be aggravating circum

stances pursuant to Ind. Code § 35-38-1-7.1 (1993).  This identification of all the factors

was sufficient to comply with the first requirement of a sentencing statement.  

	The trial judge, however, did not state the specific reasons why each factor was

aggravating or mitigating.  With respect to the second aggravating factor regarding defen

dant's need of correctional or rehabilitative treatment, the trial judge did elaborate on why

this was an aggravating factor.  The judge made the following comments:

	There are--when one looks at the evidence and particularly your testimony, 

	there is justification I think in terms of the spirit of the law to treat you seriously 

	and harshly, but perhaps differently than the other two defendants.  And I think 

	your testimony and your remorse and your acceptance, go a long, long way in 

	terms of anybody believing that if rehabilitation can occur, that it may occur with 

	you.  That is why your sentence, although a very serious and lengthy sentence, are 

	different than those of your co-defendants.

(R. 1542.)  

We find that the trial court made a proper sentencing statement with respect to this aggravat

ing circumstance.

	With respect to the other two aggravating factors identified,  the trial court's state

ment was a "generalized statutory recitation."  See Ridenour v. State, 639 N.E.2d 288, 296 (Ind. Ct. App. 1994).  "A mere recitation of statutory language in a statement disclosing

factors the trial court considered to justify enhancement of presumptive sentence is insuffi

cient to support an enhanced sentence."   Jones, 675 N.E.2d at 1087.  Nevertheless, "[w]hen the record indicates that the trial judge engaged in the evaluative processes but simply did

not sufficiently articulate his reasons for enhancing sentence and the record indicates that

the sentence imposed was not manifestly unreasonable, then the purposes underlying the

specificity requirement have been satisfied."  Adkins v. State, 532 N.E.2d 6, 9 (Ind. 1989)(quoting Henderson v. State, 489 N.E.2d 68, 72 (Ind. 1986)).  Such an error does not mandate remand.  Beasley v. State, 445 N.E.2d 1372, 1375 (Ind. 1983); Singer v. State, 674 N.E.2d 11, 14 (Ind. Ct. App. 1996) (citing Meriweather v. State, 659 N.E.2d 133, 145 (Ind. Ct. App. 1995) trans. denied).  Because we find that the trial court did engage in an evaluative balancing process, as discussed below, the trial court satisfied the second require

ment of properly articulating the reasons why each factor was an aggravating or mitigating

circumstance.

	B

	The trial judge made the following comments during the sentencing hearing that lead

us to conclude that a balancing process occurred:

	Mr. Mitchem, I'm required to weigh aggravating and mitigating factors at  sentencing

on each of these counts.  In doing so for each of these counts I find the following

aggravating factors to apply:  . . .  I find the following mitigating factors to be pres

ent: . . .  With the aggravating factors outweighing the mitigating factors, . . ., you are

sentenced to the Department of Corrections for a period of . . .         

(R. 1539-1540.)

 	C

	Defendant claims that the first factor, a sentence less than the sentence imposed

would depreciate the seriousness of the totality of the crimes, was improperly applied to

justify the enhanced and consecutive sentences.  Pursuant to Ind. Code § 35-38-1-7.1(b)(4),

a trial court may consider as an aggravating factor the possibility that a reduced sentence

might depreciate the seriousness of a crime.  However, this factor "may be used only when

considering the imposition of a sentence of shorter duration than the presumptive sentence." 

Jones, 675 N.E.2d at 1088;  Gregory-Bey v. State, 669 N.E.2d 154, 159 (Ind. 1996)(quoting Ector v. State, 639 N.E.2d 1014, 1015 (Ind. 1994)).  This factor may not be used, as it was here, as the basis for enhancing the sentencing or imposing consecutive sentences.  Id.  Because there is nothing in the record to indicate that the trial court was considering a

reduced sentence, the use of this aggravating factor was inappropriate.

	The second factor, that the defendant was in need of correctional or rehabilitative

treatment, was also improperly applied.  "For this aggravating circumstance to justify in part

an enhanced sentence, it must be understood to mean that the defendant is in need of

correctional and rehabilitative treatment that can best be provided by a period of incarcera

tion in a penal facility in excess of the presumptive sentence term."  Mayberry v. State, 670 N.E.2d 1262, 1271 (Ind. 1996).   As stated, supra, the record only reflects that the trial judge believed that the defendant could be rehabilitated, but did not specifically state that such

rehabilitation could only be achieved by incarceration for a period in excess of the presump

tive sentence.  Therefore, the need for correctional or rehabilitative treatment was improp

erly applied to justify enhanced and consecutive sentences.

	Finally, the third factor, the emotional and psychological effects of the crimes

committed on the victims and their families, was also not properly applied as a justification

for an enhanced sentence.  We presume that the legislature considers victim impact when

establishing a presumptive sentence.  There is nothing in the record to indicate that the

impact on the families and victims in this case was different than the impact on families and

victims which usually occur in such crimes.

	In summary, we find that all three of the aggravating circumstances that the trial court

identified were improperly applied as a justification for enhanced and consecutive sen

tences.  However, because the Indiana Constitution gives this Court the power to review and

revise criminal sentences, Ind. Const. art. VII, § 4, we find that it would be proper and just

under the circumstances for defendant to serve the enhanced and consecutive sentences

imposed. 

	Pursuant to Ind. Code § 35-50-1-2 (1994), the court may order terms of imprisonment

to be served consecutively.  However, "the power to order consecutive sentences is subject

to the rule of rationality and the limitation in the constitution."  Starks v. State, 523 N.E.2d 735, 736 (Ind. 1988).  "The basis for the gross impact which consecutive sentences may

have is the moral principle that each separate and distinct criminal act deserves a separately

experienced punishment.”  Id.   To impose consecutive sentences, there must be at least one aggravator,  Morgan, 675 N.E.2d at 1072, but the court is not limited to the factors identi fied in Ind. Code § 35-38-1-7.   

  	Because of the nature and circumstances of the crimes committed and because there were four separate victims, we find aggravating circumstances sufficient to justify the

enhanced and consecutive sentences imposed.  The nature and circumstances of a crime may

be considered an aggravating factor.  Scheckel v. State, 620 N.E.2d 681, 684 (Ind. 1993).  See also Concepcion v. State, 567 N.E.2d 784, 791 (Ind. 1991).  The nature of these crimes justify enhanced and consecutive sentences for several reasons:  (1)  the number of times the

victims were shot;12 (2)  the victims were asked to helplessly kneel before defendant and face defendant while he deliberately executed the victims;13 and (3)  the female victims were repeatedly raped and forced to perform deviate sexual acts.14   We find that it is appropriate under these circumstances for the defendant to serve the enhanced and consecutive sen

tences imposed.

	Conclusion

	We affirm the judgment of the trial court.

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