Slaughter, J.
Defendant, Donald R. Owen, Jr., was an acknowledged gang leader in Elkhart County. When members of the local Latin Kings gang believed a woman among them was a police snitch, they interrogated her, roughed her up, and eventually killed her—but not before contacting Owen, who later arrived at the scene and both supervised and participated in torturing and killing her brutally. Once she was dead, Owen oversaw cleaning up the crime scene. Then he stuffed her corpse into a trash can, drove it to Michigan, hid it in a ditch, and covered it with weeds and camouflage.
A jury convicted Owen of murder, felony robbery resulting in serious bodily injury, and two counts of criminal confinement. During sentencing, the jury found three statutory aggravators beyond a reasonable doubt and recommended a sentence of life without parole for the murder conviction, which the trial court adopted. In this direct appeal, Owen argues there was insufficient evidence that he was a major participant in the murder and insufficient evidence that he committed the murder in furtherance of a criminal organization. He also argues the trial court abused its discretion by declining to adopt his proposed jury instructions and by relying on sentencing factors not supported by the record. We affirm.
…
Owen asserts three arguments in this direct appeal: one challenges both his murder conviction and the corresponding life-without-parole sentencing aggravator; two other arguments challenge his sentence. The first argument is that (1) there was insufficient evidence that Owen was a “major participant” in the murder of Dyer, and (2) there was insufficient evidence that Owen murdered Dyer while also satisfying one of the statutory aggravators for imposing a life-without-parole sentence. We hold there was sufficient evidence both to find that Owen was a major participant and to support two of the statutory aggravators. The second argument is that the trial court abused its discretion in declining to instruct the jury as Owen proposed. We hold there was no abuse of discretion. The third argument is that the other aggravating factors, not relating to the life-without-parole sentence, were not supported by the record. We hold the record supports these other aggravators and thus affirm the trial court’s judgment in all respects.
…
Owen argues there was insufficient evidence that he was a major participant because he did not actually kill Dyer himself and was not there for each and every event leading up to her murder. He further argues there was insufficient evidence that he murdered Dyer to further the interests of the Latin Kings gang. We disagree…
…
Additionally, by requiring that the killing be “intentional”, our general assembly has imposed a higher degree of culpability than the Supreme Court mandated in Tison, which required only that the killing be committed with a “reckless indifference to human life”. Id. at 939 (quoting Tison, 481 U.S. at 151). In contrast, our own caselaw emphasizes that the 9(b)(1) aggravating factors require a finding of intentional killing. Ibid. (concluding that defendant’s awareness that “the probability of the victims being killed was very high” was not sufficient to prove the killing was intentional and satisfy 9(b)(1)’s mens rea requirement). “A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.” Id. at 938–39 (quoting I.C. § 35-41-2-2(a) (1993)). To satisfy 9(b)(1), the defendant must have had the conscious objective to murder the victim and to be a major participant in effectuating the murder. Id. at 938–39.
Such major participation in a murder requires, at least, the defendant’s “(1) active involvement in any crimes surrounding the commission of the murder; and (2) physical presence during the entire sequence of criminal activity culminating in the murder and flight from the scene.” Id. at 937 (citing Tison, 481 U.S. at 158). While the perpetrator who delivers the fatal blow is plainly a major participant, an accomplice need not be the “trigger man” to qualify as a “major participant” in a murder. Ibid
The Supreme Court holds that the more an offender participated in the antecedent crimes, the more likely he was a major participant in the resulting murder. Tison, 481 U.S. at 151–52.
…
Just as with the brothers in Tison, here, there is sufficient evidence to conclude that Owen was a major participant in Dyer’s murder. His significant participation and culpability are similar to those of the Tison and Ajabu defendants: he actively participated in the antecedent crimes leading to Dyer’s murder; confined her against her will; interrogated her; gave the order to “make her go to sleep”; did not intervene as he watched Angulo choke Dyer and slit her throat; and led the effort in covering up the crime. These actions easily satisfy subsection 9(b)(1)’s actus reus requirement. Ajabu, 693 N.E.2d at 939. Based on these circumstances, the jury was entitled to find that Owen was a major participant in Dyer’s murder. Thus, we affirm Owen’s conviction for murder.
Under Indiana Code section 35-50-2-9(a), the state may seek a lifewithout-parole sentence for murder by proving beyond a reasonable doubt the existence of at least one aggravating circumstance listed in subsection 9(b). The LWOP-eligible circumstances include committing the murder while also committing or attempting to commit criminal organization activity, I.C. § 35-50-2-9(b)(1)(I), or doing so while under the custody of a county sheriff, id. § 35-50-2-9(b)(9)(B).
…
For starters, it is undisputed that the Latin Kings are a criminal organization. There is ample evidence that Owen, Murzynski, and Angulo were affiliated with the Latin Kings. All three claimed to be members of the Latin Kings. And Porter saw Owen and Murzynski perform the Latin Kings handshake while he was in the kitchen with them.
..
Owen’s behavior at the house also connected the killing to the Latin Kings. He “tagged” the basement after Dyer’s death, spraying his name, “King Duke”, and other Latin Kings symbols on the walls. The State’s expert witness, Lieutenant Kyle Dombrowski, explained the paint’s color, the name “King Duke”, and the crown symbol were all “particularly associated” with the Latin Kings. The purpose of this “tagging” was “to broadcast that association . . . for the organization itself.” It is done to “promote themselves, to sponsor oneself, to further the interest.” By tying the murder of an alleged snitch to the Latin Kings, Owen was seeking to “further the interest” of the Latin Kings by celebrating its triumph over a threat to its members, or so a reasonable jury could find. The evidence was sufficient to show that Owen’s directive to murder Dyer furthered the interests of the Latin Kings and satisfied the criminal-organization aggravator.
Next, we consider the under-custody aggravator. It is an aggravating circumstance if the “defendant committed the murder by intentionally killing the victim while [the defendant was] . . . under the custody of the county sheriff”. I.C. § 35-50-2-9(b)(9)(B). It is undisputed that Owen was under the custody of the county sheriff at the time of Dyer’s murder. Julie Koets, who worked with Michiana Community Corrections, testified that during October 2019, Owen was serving a sentence for unrelated crimes through the Elkhart County Jail, which is controlled by the Elkhart County sheriff. At the time, Owen was on in-home detention through the local community corrections. He did not challenge this aggravating factor in his appellate briefing and thus has waived any argument it does not apply. Isom v. State, 170 N.E.3d 623, 645 (Ind. 2021) (citing Appellate Rule 46(A)(8)(a)) (concluding that failure to raise argument on appeal resulted in waiver)).
A jury could reasonably find that Owen murdered Dyer both to further the interests of the Latin Kings and while he was under the custody of the county sheriff. For both reasons, we hold there was sufficient evidence for the jury to recommend—and the trial court to impose—a life-without-parole sentence.
Next, Owen argues that the trial court erred by declining to provide two proposed instructions to the jury.
…
Based on these two instructions—Nos. 4 and 6, which the jury actually heard, and which, along with the other given instructions, are to be “considered as a whole”, Chambers, 734 N.E.2d at 580—the jury had all the information it needed under Indiana law to make a life-without-parole recommendation.
Further, the trial court also could have concluded that instruction No. 7 was confusing. This instruction was taken directly from Landress v. State, 600 N.E.2d 938, 940 (Ind. 1992). Although trial courts may use language from appellate opinions to instruct a jury, the “mere fact that certain language or expression [is] used in the opinions of this Court to reach its final conclusion does not make it proper language for instructions to a jury.” Ludy, 784 N.E.2d at 462 (brackets in original) (quoting Drollinger v. State, 408 N.E.2d 1228, 1241 (Ind. 1980)). Extracting specific language from a judicial opinion out of context can confuse the jury. Ibid. Jury instructions are meant to be neutral statements of the law. The trial court’s definitional instruction (No. 6) did a better job than proposed instruction No. 7 of telling the jurors evenhandedly the differences between “knowingly” and “intentionally”.
For these reasons, we hold the trial court did not abuse its discretion in choosing not to instruct the jury as Owen proposed.
Lastly, concerning his non-murder convictions, Owen argues the trial court relied on several aggravating factors not supported by the record. Specifically, he argues there was insufficient evidence that (1) he was involved in beating and torturing Dyer for being a snitch; (2) he allowed Dyer to have her head shaved, to be treated in a demeaning manner, to be waterboarded, and to be duct-taped; and (3) he was present when Dyer was strangled and killed.
As for Owen’s claim that he had nothing to do with Dyer’s torture, the record shows it happened on his watch and under his supervision. Owen was the “boss”; he was “holding court”; and when he arrived at the house, the action stopped. The trial court was allowed to consider all the circumstances surrounding Dyer’s unlawful confinement, mistreatment, and eventual death, and these included Owen’s role in them. Bradley v. State, 770 N.E.2d 382, 388 (Ind. Ct. App. 2002) (“Indiana Code § 35-38-1-7.1 . . . requires the trial court to consider the nature and circumstances of the crime committed in imposing a sentence.”) (footnote omitted). This same rationale applies to Owen’s claim that he had nothing to do with the demeaning treatment of Dyer (i.e., head shaved, waterboarded, duct-taped). Moreover, the record shows Owen was in the basement both when Angulo attempted to strangle Dyer and when he slit her throat and that Owen did nothing to stop Angulo from doing these things. Thus, the record supports the trial court’s consideration and application of these aggravating factors.
But even were Owen right about one or more of these aggravators, any such error would not warrant resentencing him. In McDonald v. State, we held that when a defendant challenges some, but not all, of the aggravating circumstances found by the trial court, we will not remand for resentencing if we can say with confidence the trial court would have imposed the same sentence had it not considered the purportedly erroneous aggravators. 868 N.E.2d 1111, 1114 (Ind. 2007). Specifically, we noted in McDonald that “in imposing sentence the trial court declared any one of the aggravating circumstances taken alone or in conjunction with others substantially outweigh all of the mitigating circumstances considered as a whole.” Ibid. (internal quotation marks and citation omitted). There, we held the record was clear that the trial court “would have imposed the same sentence without regard to the challenged aggravators.” Ibid.
Here, Owen challenges some, but not all, of the aggravating factors found by the trial court. At sentencing, the trial court said: “With respect to Counts II, III and IV, the Court finds that the aggravators taken alone or in conjunction with the others would warrant the imposition of an enhanced sentence.” Thus, even if Owen were correct that the judge improperly found some aggravators to be present, the record is clear that the trial court “would have imposed the same sentence without regard to [the] challenged aggravators.” McDonald, 868 N.E.2d at 1114. We hold the trial court did not abuse its discretion in sentencing Owen with respect to his other, non-murder offenses.
For all these reasons, we affirm the trial court’s judgment.
Rush, C.J., and Massa, Goff, and Molter, JJ., concur.