Rucker, J.
Among other offenses a jury convicted Mark Leonard of two counts of murder for which the trial court imposed consecutive life without parole sentences. In this direct appeal Leonard raises several issues for our review which we consolidate, rephrase, and reorder as follows: (1) Is the evidence sufficient to support the murder convictions; (2) Did the State prove an alleged aggravator beyond a reasonable doubt; (3) Did the trial court abuse its discretion by admitting Leonard’s out of court statements into evidence; and (4) Is Indiana’s life without parole statute unconstitutional. We affirm Leonard’s convictions and sentences.
Richmond Hill is a quiet subdivision on the southeast side of Indianapolis. Shortly after 11:00 p.m. on November 10, 2012, this tranquil enclave was rocked by a massive explosion that could be heard for more than ten miles away. …
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The home at the epicenter of these events was owned by Monserrate Shirley, a nine-year resident of Richmond Hill. Her boyfriend Mark Leonard also lived at the residence along with Shirley’s teenaged daughter and the family cat. No one was home at the time of the explosion. Ultimately authorities concluded natural gas was intentionally leaked into the Shirley home through a modification of the fireplace and that a delayed timing device was triggered which caused an explosion equal in force to approximately three tons of TNT.
Initially both Leonard and Shirley denied any wrongdoing. Shirley later agreed to cooperate with authorities. According to Shirley, for several months Leonard had planned to destroy the house by fire in a scheme to collect insurance money. …
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Shirley’s house was next door to the home of husband and wife Dion and Jennifer Longworth. Their home was also destroyed in the explosion. It was reduced from a two-story residence to a seven-foot pile of rubble. Despite the best efforts of firefighters and neighbors to rescue the couple neither survived. …
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… After several delays, including a change of venue from Marion County, the guilt phase of Leonard’s jury trial began June 4, 2015 and concluded July 14, 2015, generating a twenty-two-volume transcript and over eighteen hundred exhibits. Following the guilt phase of trial the jury found Leonard guilty as charged on all counts. Leonard had previously waived his right to trial by jury for the penalty phase of the trial. Therefore, the trial court conducted a hearing before the bench. It found the State proved each of the three charged aggravating factors beyond a reasonable doubt. … The trial court thus imposed consecutive life without parole sentences for the two murder convictions; and except for Counts IV and V the trial court imposed an aggregate sentence of 75 years on the remaining counts to be served consecutively to the LWOP sentences. This appeal proceeded in due course. Pursuant to Appellate Rule 9(A)(1)(a) the Court has mandatory and exclusive jurisdiction over this appeal. …
Leonard contends the evidence is not sufficient to sustain the murder convictions. …
As charged, the State had the burden of proving Leonard knowingly killed Dion and/or Jennifer Longworth. To sustain a verdict, the evidence must show the defendant “was aware of a high probability that someone’s death would result from his actions. Because knowledge is the mental state of the actor, the trier of fact must resort to reasonable inferences of its existence.” Young v. State, 761 N.E.2d 387, 389 (Ind. 2002).
The record shows the Longworths had lived next door to Shirley since 2003 when her house was first built. … The evidence supporting the verdict also shows Leonard knowingly planned for the entire house to be destroyed from the beginning.
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Further, “[a] knowing killing may be inferred from the use of a deadly weapon in a way likely to cause death.” Young, 761 N.E.2d at 389. …
Although Leonard’s victims were not in the same structure as the explosion and resulting fire, the record is clear the homes were in very close proximity—approximately ten feet apart. This increased the likelihood that a fire or explosion in one home would impact the neighboring home. The jury could therefore reach the reasonable conclusion that Leonard “was aware of a high probability that someone’s death would result from his actions.” Young, 761 N.E.2d at 389.
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… In summary, we conclude the evidence in this case is sufficient to sustain Leonard’s convictions for murder, a Felony, as alleged in Counts I and II of the charging Information.
The State sought life without parole based on three aggravating circumstances … and “[t]he defendant burned, mutilated, or tortured the victim while the victim was alive,” I.C. § 35-50-2-9(b)(11) (2012). The State must prove the existence of an aggravator beyond a reasonable doubt. Leonard challenges only the (b)(11) aggravating circumstance contending the State failed to prove this aggravator “beyond a reasonable doubt, or by any standard, because it presented no proof that Leonard intentionally burned Mr. Longworth.”
“A sentence of life without parole is subject to the same statutory standards and requirements as the death penalty.” Treadway v. State, 924 N.E.2d 621, 637 (Ind. 2010). The death penalty statute provides: “… If the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing.” I.C. § 35-50-29(d). Here the guilt phase of trial was decided by a jury. And ordinarily the trial court would reconvene the jury to hear the sentencing phase of trial. However, five days before the guilt phase of trial concluded, Leonard submitted and the trial court accepted his written “Waiver of Jury Trial for Phase II/LWOP” proceedings. …
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We pause here to note the State is required to prove “beyond a reasonable doubt that at least one (1) of the aggravating circumstances listed in subsection (b) exists” and that the mitigating circumstances are outweighed by the aggravating circumstances. … Here, the trial court found the State had proven all three aggravators beyond a reasonable doubt. …
On appeal, except for the (b)(11) aggravating factor, Leonard does not challenge the trial court’s findings. Thus, even if the trial court erroneously found the State proved the (b)(11) aggravator beyond a reasonable doubt, any error would be harmless beyond a reasonable doubt. Leonard would still be subject to consecutive life without parole sentences. This is so because of the remaining two valid aggravating circumstances and the trial court’s finding that the aggravators outweigh the mitigators. But for reasons explained below we discern no error.
With respect to the (b)(11) aggravator the trial concluded:
[Dion] Longworth survived the explosion, but was killed in the ensuing fire. He died as a result of hot gas and soot inhalation and was burnt while alive and his body was mutilated in the fire. Inasmuch as the fire which killed [Dion] Longworth was a direct result of the explosion at 8349 Fieldfare Way, the Court finds that the State has proven, beyond a reasonable doubt, [this aggravating circumstance].
Leonard contends this Court’s opinion in Nicholson v. State, 768 N.E.2d 443 (Ind. 2002) requires the State to prove he intentionally burned Dion Longworth. …
Leonard couples his argument with the structure of the statute to argue that we must read a requirement of intent into the “burned” aggravator also. We decline to expand the holding of Nicholson, construing torture to the meaning of burned. …
The State counters that this reading of the statute would create an absurd result, because “setting a fire to a residence by torch and burning a family alive would not satisfy his interpretation of the statute; he would need to actively and personally burn each member of the family while alive.” We agree with this reasoning and ultimately conclude the trial court properly found the State proved the (b)(11) aggravator beyond a reasonable doubt.
Alleging a Sixth Amendment violation Leonard contends the trial court abused its discretion by admitting his out of court statement into evidence. … Sometime after Leonard was charged with the instant offenses and taken into custody, he was placed in the same maximum security cellblock in the Marion County jail as Robert Smith. … Later, Leonard told Smith that Mark Duckworth was supposed to be a State’s witness against him and that Duckworth was lying and trying to get him sent to prison for life. Leonard wanted Duckworth killed and was willing to pay a fee to make it happen. Leonard asked Smith if he knew anyone who could kill Duckworth, and Smith replied that he would find someone.
Smith’s plan however was to inform law enforcement about what Leonard had told him. … The officers provided Smith with the name “Jay”—the purported hit man—and a phone number to pass on to Leonard. “Jay” was actually Special Agent Jeremy Godsave, a special agent with ATF, one of the agencies investigating the explosion. … On his own accord and with no prompting from Smith, Leonard placed two calls to “Jay.” In both conversations Leonard expressed a desire to have Duckworth killed, admitted he had drawn the map to Duckworth’s residence, and gave Jay specific directions. …
Prior to trial Leonard moved to suppress his statements both to Smith as well as the phone calls to Special Agent Godsave. Following briefing and a hearing the trial court denied the motion. At trial, over Leonard’s objection, the statements were introduced into evidence. In this appeal Leonard challenges only the admission of his recorded phone calls made to “Jay”— Special Agent Godsave. According to Leonard these calls “were deliberately elicited by the State after he had been charged in this case and his right to counsel had attached” and thus should not have been admitted at trial. …
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There is no dispute that Leonard’s right to counsel in this case (“the explosion case”) attached on December 20, 2012, when charges were filed against him. But the federal circuits appear divided on the question of whether a defendant’s voluntary statements—made after his Sixth Amendment rights have attached for one offense—about a separate offense for which he had not yet been charged are admissible in the trial of the first offense. And the U.S. Supreme Court has not directly addressed the issue. Nonetheless our analysis is informed by the Court’s opinion in Texas v. Cobb, 532 U.S. 162 (2001).
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The Cobb Court appears to make plain that Leonard’s phone calls to Special Agent Godsave were not protected by Leonard’s Sixth Amendment right to counsel. This right attached to the explosion case for which charges had already been filed. It did not attach to an offense “for which he had not been charged” and thus “were admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses.” …
… Here, upon de novo review, we conclude the trial court properly admitted evidence of the phone conversations between Leonard and Special Agent Godsave.
Leonard challenges as unconstitutional Indiana’s life without parole statutory sentencing scheme. According to Leonard this is so because the statute does not require … the trial court to find that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt. We rejected this precise argument in Isom v. State, 31 N.E.3d 469, 487-88 (Ind. 2015), cert. denied, 136 S. Ct. 1161 (2016), and before that Ritchie v. State, 809 N.E.2d 258, 266 (Ind. 2004) (noting the Court had previously concluded “as a matter of state law, that the determination of the weight to be accorded the aggravating and mitigating circumstances is not a ‘fact’ which must be proved beyond a reasonable doubt but is a balancing process” … Recently, the United States Supreme Court issued its decision in Hurst v. Florida, 577 U.S. ___, 136 S. Ct. 616 (2016). Leonard contends Hurst dictates we revisit our existing precedent.
In Hurst the Court reviewed Florida’s death penalty statutory scheme in which the jury provided the trial court a non-binding advisory verdict, but the trial court made the ultimate sentencing determination. Writing for a seven-person majority, Justice Sotomayor declared the Court’s holding at the beginning of the opinion: “We hold [Florida’s] sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.” Hurst, 136 S.Ct. at 616.
According to Leonard “Hurst stands for the proposition that before a capital defendant in Florida may be sentenced to death, a jury must find beyond a reasonable doubt that sufficient aggravating circumstances exist and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances.” … Even assuming the rationale of Hurst—a death penalty case—is applicable in the life without parole case before us, we nonetheless disagree with Leonard’s reading of Hurst. Importantly, the opinion did not hold that weighing must be done beyond a reasonable doubt. Indeed Hurst says nothing at all about whether the weighing of aggravating and mitigating circumstances must be determined beyond a reasonable doubt. And Leonard points to no such discussion.
We conclude the evidence in this case is sufficient to sustain the murder convictions; the State proved the (b)(11) aggravator beyond a reasonable doubt; the trial court did not abuse its discretion in admitting the recorded statement into evidence; and Indiana’s life without parole statute is not unconstitutional. We therefore affirm Leonard’s convictions and sentences.
Rush, C.J., and David, Massa and Slaughter, JJ., concur.