¶1concurring in part and dissenting in part.
¶2I concur in Part I, concur in result with Part II, and dissent from Part III of the majority opinion.
¶3As to Part I, I write separately to emphasize that a defendant's failure to request an admonishment, standing alone, does not necessarily result in waiver. Although Dresser v. State, 454 NE.2d 406 (Ind.1983) advises that admonishment is the "correct procedure to employ against an improper argument," id. at 407, it continues with the following important qualification: "Where it is obvious, from the nature and degree of misconduct, that no admonishment could suffice, the motion for one may be dispensed with." Id. at 408; see also Leach v. State, 699 N.E.2d 641, 644 n. 4 (Ind.1998) ("We disagree with the State and agree with the defendant that, in cases such as this, an instruction will not cure the error.") Dresser recognizes that merely objecting to improper argument is not enough and advises in general that the correct procedure is to request admonishment followed by a motion for mistrial, but it expressly acknowledges that a request *366for an admonishment is not necessary in some circumstances. Neither Robinson v. State, 698 N.BE2d 548 (Ind.1998), nor Brown v. State, 572 N.E.2d 496 (Ind.1991), hold to the contrary. Although the language in both is "the failure to request an admonishment or move for a mistrial results in waiver of the issue," Robinson, 698 N.E.2d at 552; Brown, 572 N.E.2d at 498, in both cases, the defendants not only failed to seek an admonishment but also failed to move for mistrial. When an admonishment would be futile, the failure to request one does not preclude appellate review of a denial of an otherwise timely motion for mistrial.
¶4With respect to Part II, I agree with the concurring in result opinion of Justice Boehm that the admission of Lopez's prior consistent statement was harmless error.
¶5As to Part III of the majority opinion, I agree that the trial court's sentence of life imprisonment without parole was improperly based on non-statutory aggravating cireumstances, and that it must be vacated. I am unable, however, to join the majority's evaluation of the trial court's consideration of the evidence related to mitigating cireumstances, and I disagree with the sentence imposed.
¶6Contrary to the majority's conclusion in Part IIIB, I believe that the trial court's explanation was adequate as to mitigating cireumstances. The sentencing statement advises that the trial court gave consideration to the defendant's expressions of condolences, his claim that his role as an accessory was relatively minor, and his contention that he was acting under substantial domination of another. A sentencing judge is not obligated to make an affirmative finding expressly negating each potentially _ mitigating circumstance. Crawley v. State, 677 N.E.2d 520, 528 (Ind. 1997). The determination that a civreum-stance is mitigating is within the trial court's discretion, and the court is not obligated to explain why it finds a cireum-stance not to be mitigating. Taylor v. State, 681 N.E.2d 1105, 1112 (Ind.1997). The trial court is not required to give the same weight to proffered mitigating circumstances as the defendant does. Thacker v. State, 709 N.E.2d 3, 10 (Ind.1999). I cannot fault the trial court's consideration of mitigating cireumstances. Its sentencing statement here is easily equivalent to or much more detailed than many other sentencing statements that we have affirmed.
¶7Having determined that the sentence imposed by the trial court was erroneous, the majority elects to engage in appellate reweighing to determine the sentences to be imposed and expresses its evaluation by assigning various general weights to each aggravating and mitigating circumstance found. While some members of this Court have often chosen to employ this method of analysis, this should not be understood as the exclusive or prescribed methodology for trial or appellate sentencing evaluations.
¶8Matters that may be appropriate for consideration are extraordinarily diverse and often defy quantification or precise analogous comparison to opposing considerations. - Determining the appropriate criminal sentence is an act of subjective judgment, the quintessence of a judge's function. The analysis cannot be circumscribed to any single mathematical formula or methodology. The requirement of general sentencing statements to explain the sentencing decision assures fairness and propriety, and permits judicial review. But reasonable latitude is permitted in the way trial and appellate judges undertake to evaluate and determine the sentences to be imposed.
¶9With respect to the majority's reweighing of the aggravating and mitigating cir*367cumstances and consideration of the jury's recommendation, I agree with the conclusions that the aggravating cireumstances outweigh the mitigating circumstances but that life without parole is not an appropriate sentence. I disagree, however, with the decision to order that the sentences for murder be served concurrently. Notwithstanding the mitigating circumstances found by the majority, the fact that the defendant was convicted of killing two people weighs heavily in my judgment. For the two murder counts, merely imposing the equivalent of a single fully enhanced sentence is insufficient. I would require that sentences on the murder counts be served consecutively to each other and consecutively to the concurrent twenty-year sentences for the other counts.
¶10concurring in result.
¶11I concur in Parts I and III. I concur in result in Part II because although I believe that it was error to admit Lopez's prior consistent statement, I believe that error was harmless.
¶12Indiana Rule of Evidence 801(d)(1)(B) provides that a prior consistent statement may be admitted to rebut a charge of fabrication if it was made before the motive to fabricate arose. Because I believe that Lopez's statement to police was made after her motive to fabricate arose, I would conclude that it was error for the trial court to admit that statement.
¶13I agree with the majority that we do not "automatically" find that a participant in a crime has a motive to fabricate. Stephenson v. State, 742 N.E.2d 463, 475 (Ind.2001); Sturgeon v. State, 719 N.E.2d 1173, 1180 (Ind.1999); cf. United States v. Awon, 135 F.3d 96, 100 (1st Cir.1998) (motive to fabricate, namely, a desire for leniency, pre-dated plea negotiations); Farris v. State, 732 N.E.2d 230, 233 (Ind.Ct.App.2000) (no question that accomplice with familial relationship to defendant had motive to fabricate); McCray v. State, 122 Md.App. 598, 716 A.2d 302, 308 (1998) (noting that accomplice's motive to fabricate existed from the moment that the robbery and murder, in which she was admittedly involved, took place). I also agree that whether a motive to fabricate has arisen is a fact sensitive issue. Stephenson, 742 N.E.2d at 475; Sturgeon, 719 N.E.2d at 1178. However, after comparing the facts of this case to those of previous cases considered by this Court, I would arrive at a different result.
¶14The majority stresses the facts that: (1) no evidence was presented that suggested that Lopez herself committed the murders; and (2) Lopez admitted her role in the robbery, and therefore opened herself up to charges of robbery and felony murder. However, it is undisputed that Lopez accompanied Holsinger to the crime seene, stood by while two victims were murdered, participated in the robbery of the victims, and fled with Holsinger to another state. Only after learning that police were searching for both Lopez and Holsinger did Lopez voluntarily go to the police to give a statement. In her first statement, she attempted to minimize the roles that both she and Holsinger played in the crimes. In her second statement, given the next day, she admitted her role in the robbery and implicated Holsinger in the murder and robbery. Lopez's voluntary statements to police included an admission of her culpability in the crimes, but they also minimized her role vis-&-vis the other participants and set the stage for her eventual plea agreement. Before she voluntarily spoke to police, Lopez knew that she was wanted for questioning in connection with these crimes. It seems reasonable to conclude that she decided that a proactive approach was her best bet to secure a reduced sentence.
¶15*368This Court recently considered a different fact pattern in Stephenson. In that case, the accomplice/witness, Dale Funk, had a level of involvement in a triple murder comparable to Lopez's here. Stephenson, 742 N.E.2d at 470-72. However, Funk's prior consistent statement was not a voluntary admission to police. Id. at 472-78. Rather, it was a part of a conversation with an uninvolved third party a few days after the crime. Funk received no prosecutorial benefit for his testimony. Id. at 475. Thus, although I agree with the conclusion in Stephenson that Funk had no motive to fabricate when he made his prior consistent statement, I believe that the differences in the fact patterns justify a different result in this case.
¶16The facts of Thompson v. State, 690 N.E.2d 224 (Ind.1997), are analogous to this case. The accomplice/witness, Douglas Perey, voluntarily went to police and made a statement implicating Jerry Thompson in a double murder and robbery. Id. at 228. Perey admitted participating in the robbery after Thompson unexpectedly shot the victims. Id. Pending charges against Perey for another felony were dismissed in exchange for his testimony against Thompson. Id. Given these facts, we noted that admission of Percy's statement to police consistent with his testimony was arguably improper because "Perey had every reason to shift culpability to Thompson while minimizing his own involvement." Id. at 282 n. 8; accord Bouye v. State, 699 N.E.2d 620, 625-26 (Ind.1998) (accomplice's motive to fabricate arose at the time of the crime).
¶17I would find that Lopez had a motive to fabricate before she made her voluntary statement to police. I would therefore hold that admission of her prior consistent statement was error. However, given the other evidence against Holsinger, I would find the error harmless.