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ATTORNEYS FOR APPELLANT Susan K. Carpenter Public Defender of Indiana Gregory L. Lewis Deputy Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana Matthew D. Fisher Deputy Attorney General Indianapolis, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 20S00-0405-CR-235 DAVID F. LOSCH, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Elkhart Circuit Court, No. 20C01-0212-MR-162 The Honorable Terry C. Shewmaker, Judge _________________________________ On Direct Appeal _________________________________ September 29, 2005 Boehm, Justice. David Losch pleaded guilty to the murder of his sister-in-law. He committed the murder by dismembering the victim, which rendered him eligible for life without parole. The trial court found certain mitigating factors, but held that they failed to outweigh the single aggravating factor of dismemberment. The sole issue in this case is the appropriateness of the sentence of life without parole. We affirm.

Factual and Procedural Background In the afternoon of December 23, 2002, David Losch left his home and drove to the home of his sister-in-law, Lindsay Losch. When he arrived, Lindsay invited Losch inside and offered him a cigarette. Losch responded by lunging at her and attempting to cut her throat with a small knife he had brought from home. When the knife bent, Losch proceeded to choke Lindsay into unconsciousness. Perceiving that Lindsay was still alive, Losch attempted to break her neck. Although he partially succeeded in this, he found that she had survived this attack as well. He then went into the kitchen, retrieved a butcher's knife, and severed Lindsay's head. After decapitating Lindsay, Losch retrieved another knife from the kitchen and stabbed the body in the chest three times, leaving the knife embedded. Losch then washed his hands in Lindsay's sink and called the police to report that he had just murdered a woman. In interviews with the police, Losch admitted that he went to Lindsay's home with the thought of killing her and recounted in detail the events described above. The state charged Losch with murder and sought the death penalty. Losch then pleaded guilty under an agreement calling for a sentence from sixty-five years to life without parole. At sentencing, the trial court found that the state proved dismemberment, which is one of the aggravating circumstances rendering a person eligible for the death penalty or life without parole. The trial court found several mitigating circumstances but held that they were outweighed by the single aggravating circumstance of dismemberment and imposed life without parole, as recommended by the state. This direct appeal followed. The Weighing of Aggravating and Mitigating Circumstances The sole issue raised on appeal is whether the trial court gave the proper weight to the mitigating factors that it found to exist in this case. Losch does not argue that the trial court failed to find mitigating factors that were established by the record. Nor does he contest the finding of the single aggravating factor, dismemberment, which rendered him eligible for the sentence of life without parole. Losch's sole argument is that that the trial court committed error in failing to find that the mitigating factors outweighed the aggravating factor. He contends that a proper weighing of the mitigating factors would have produced a sentence of sixty-five years.

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The statute governing both life without parole and the death penalty requires that "(l) the state has proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances listed in subsection (b) exists; and (2) any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances." Ind. Code

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Indiana Law