STATE OF INDIANA ) IN THE ST. JOSEPH SUPERIOR COURT )ss: ST.JOSEPHCOUNTY _) CAUSE NO. 71D02-1408-MR-000009 STATE OF INDIANA ) ) - FILED - VS. ) ) AUG 10 2015 MARK LEONARD ) Clerk St. Joseph Superior Court PRELIMINARY FINDINGS AND FACT ON COUNT 54 LIFE WITHOUT PAROLE ‘The defendant, Mark Leonard was originally charged in this case before the Marion Superior Court and was assigned to Hon. Sheila A. Carlisle, On February 11, 2010, the State filed a request for Life Without Parole; on March 20, 2013 the defendant filed a Motion to Dismiss the State's Request for Life Sentence Without Parole, which Motion is in the following words and figures, to-wit: (H.L.), arguing both Constitutional grounds and Pittman v. State, 885 N.E.2d 124 (Ind. 2008). On October 11, 2013, Judge Carlisle, entered an Order on Defendant's Motion to Dismiss the State’s request for Life Sentence Without Parole on Constitutionality Grounds, which Order is in the following words and figures, to-wit: (HL); and on January 31, 2014, entered an Order on Defendant’s Motion to Dismiss the State’s request for Life Sentence Without Parole (Based on Pittman v. State), which Order is in the following words and figures, to-wit: (H.L). The court now adopts those Orders and incorporates them herein by reference. This cause was transferred, on a change of venue, to the St. Joseph Superior Court and assigned to the undersigned Judge. A jury trial commenced on June 4, 2015, and concluded on July 14, 2015, withthe jury finding the defendant guilty, on all counts, as follows: Count 1: Felony Murder; Count 2: Felony Murder; Count 3: Conspiracy to Commit Arson, a class A felony; Count 4: Conspiracy to Commit Arson, a class B felony; Count 5: Arson, class A felony; Count 6: Arson, class A felony; Count 7: Arson, class A felony; Count 8: Arson, class A felony; Count 9: Arson, class A felony; Count 10: Arson, class A felony; Count 11: Arson, class A felony; Arson, class A felony; Arson, class A felony; Arson, class A felony; Arson, class A felony; Arson, class A felony; Arson, class B felony; Arson, class B felony; Arson, class B felony; Count 20: Arson, class B felony; Count 21: Arson, class B felony; Count 22: Arson, class B felony; Count 23: Arson, class B felony; Count 24: Arson, class B felony; Count 25: Arson, class B felony; Count 26: Arson, class B felony; : Count 27: Arson, class B felony; Count 28: Arson, class B felony; Count 29: Arson, class B felony; Count 30: Arson, class B felony; Count 31: Arson, class B felony; Count 32: Arson, class B felony; Count 33: Arson, class B felony; Count 34: Arson, class B felony; Count 35: Arson, class B felony; Count 36: Arson, class B felony; Count 37: Arson, class B felony; Count 38: Arson, tlass B felony; Count 39: Arson, class B felony; Count 40: Arson, class B felony; Count 41: Arson, class B felony;Arson, class B felony; Arson, class B felony; Arson, class B felony; Arson, class B felony; Arson, class B felony; ‘Arson, class B felony; ‘Arson, class B felony; ‘Arson, class B felony; Arson, class B felony; Conspiracy to Commit Insurance Fraud, class C felony; Murder; and Murder Inasmuch as the jury found the defendant guilty of Counts $2 and 53, each alleging a “knowing” murder, the court now denies the defendants Motion to Dismiss, on Pittman grounds, as being moot. On July 9, 2015, the parties filed their written Waiver of Jury Trial for Phase IV/LWOP Proceedings, which waiver was reaffirmed with Mr. Leonard, in open Court, on July 14, 2015 and was then accepted by the Court. The State in it’s Request for Life SENTENCE Without Parole, has alleged the following three aggravating circumstances: 1. On or about November 10, 2012, Mark Leonard did commit the murder of John Longworth. and/or Jennifer Longworth by the unlawful detonation of an explosive device with the intent to damage property, in violation of 1.C. 35-50-2-9(b)(2) 2. On or about November 10, 2012, Mark Leonard did commit the murder of John Longworth and/or Jennifer Longworth having previously committed another murder at any time, specifically, in that Mark Leonard did murder at least one (1) of the named persons after having previously committed the murder of one (1) or more of the other named persons, in violation of I.C. 35-50-; 9(b)(8). 3, On or about November 10, 2012, Mark Leonard did bum or mutilate John Longworth while John Longworth was alive, in violation of I.C. 35-50-2-9(b)(I1). ‘An evidentiary hearing (and argument) concerning the State’s Request for Life Without Parole was held on July 15, 2015 and the matter was taken under advisement. 3The Court, in reaching its decision has considered the evidence introduced in the guilt phase of this trial and the fact that the jury has found the Defendant Guilty of Count 52, that is: “Mark Leonard...on or about November 10, 2012 did knowingly kill another human being, namely: John D. Longworth” and of Count 53, that is: “Mark Leonard...on or about November 10, 2012 did knowingly kill another human being, namely: Jennifer Longworth.” The court, further, considers that the jury was instructed on 1.C. 35-41-2-4: “Aiding, Inducing, or Causing an Offense.” The Court, having considered all of the evidence adduced at trial and adduced at the July 14, 2015 hearing, and, further, having considered the argument of counsel, now finds as follows: Aiding, Inducing, and Causing The court, based on the evidence adduced at trial, finds that the defendant was a major participant in the killing of John Longworth and Jennifer Longworth, He was, in fact, the “prime mover” of the events which led to their deaths. Aggravating Circumstance: 1. ATF Agent Michael Eggleston, testified that although he saw evidence of an explosion, but did not see evidence of a destructive device or a bomb. The court finds that his opinion relates to the destruction of 8349 Fieldfare Way, but not to the resulting damage to the Richmond Hill Subdivision, in ‘general, and to the murders of, Jennifer Longworth and John Longworth, in particular. ‘The court finds that the deliberate planning and acts of the defendant, by filling, or causing to be filled, 8349 Fieldfare Way with natural gas and then inserting, introducing, or utilizing an ignition source into that address, in effect, transformed 8349 Fieldfare Way, into an “explosive” and thus an “explosive device” as it relates to the murders of Jennifer Longworth and John Longworth. Accordingly, and inasmuch as, Jennifer ' See, Court’s Instruction No. 4.Longworth and John Longworth were killed as a result, the court finds that the state has proven, beyond a reasonable doubt, Aggravating Circumstance No. 1. 2. Both Jennifer Longworth and John Longworth were killed as a result of the explosion at 8349 Fieldfare Way. Further, among the charges which the jury found that the State had proven beyond a reasonable doubt, and, accordingly, found the defendant guilty of, were: Count 3: Conspiracy to Commit Arson, a Class A felony; Count 4: Conspiracy to Commit Arson, a class B felony; Count 49: Arson, a class B felony; Count 52: Murder; and Count 53 Murder. Inasmuch as the evidence in the guilt phase of the trial was that Jennifer Longworth died instantaneously, as a result of the explosion, and that John Longworth died a short while later, as a result of the subsequent fire, the Court finds that the State has proven, beyond a reasonable doubt, Aggravating Circumstance No. 2. 3. John Longworth survived the explosion, but was killed in the ensuing fire. He died as a result of hot gas and soot inhalation; he was burnt while alive and his body was mutilated in the fire? Inasmuch as the fire which killed John Longworth was a direct result of the explosion at 8349 Fieldfare Way, the Court finds that the State has proven, beyond a reasonable doubt, Aggravating Circumstance No. 3 igating Circumstances, ‘Ather hearing held on July 14, 2015, the defense did not present evidence in mitigation, but, instead, made a legal argument as to why the defendant should not face a sentence of Life Without parole. The court rejects those legal arguments and finds, based upon the law and the facts, that Life Without Parole is a possible sentence in this case. 2 ‘The court has reached this conclusion based upon the evidence adduced at trial from the witnesses who attempted top rescue John Longworth, the pathologist’ testimony concerning the autopsy performed, and State's Exhibits 561, 562, Ind 563. -S-The court having found that the State has proven each of it’s alleged Aggravating Circumstances, beyond a reasonable doubt, and the defendant having not presented any evidence in mitigation, the court finds that the aggravating circumstances outweigh mitigating circumstances, ‘The Court finds that, based upon the evidence adduced at trial, none of the potential mitigating factors, as listed in I.C. 35-50-2-9(c)(1)-(7), apply to the defendant. However, inasmuch as the court has not yet been provided with a Pre-Sentence Report, which may contain additional mitigating circumstances which the Court should consider (see, 1.C. 35-50-2-9(c)(8)), the Court delays until sentencing it's final decision as to whether the defendant shall be sentenced to a term of years with respect to Counts 52 and 53 or whether Life Without Parole shall be imposed and is an appropriate? sentence in this case. Signed and Ordered of the date file stamped hereon. DISTRIBUTION: File Diane Black and David Shircliff, Attorneys for the Defendant. Denise Robinson and Mark Hollingsworth, Deputy Prosecuting Attorneys 3 See, Harrison v. State, 644 N.E.2d 1243, 1262 (Ind. 1995); and, Lewis v. State, N.E.3d__, (Ind, 2015) 6