Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                           FILED
before any court except for the                          Jun 05 2012, 8:27 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                       CLERK
                                                              of the supreme court,
law of the case.                                              court of appeals and
                                                                     tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

ELLEN M. O’CONNOR                                GREGORY F. ZOELLER
Marion County Public Defender Agency             Attorney General of Indiana
Indianapolis, Indiana
                                                 MONIKA PREKOPA TALBOT
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

MARK SHEPARD,                                    )
                                                 )
       Appellant- Defendant,                     )
                                                 )
              vs.                                )      No. 49A04-1108-CR-415
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee- Plaintiff,                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Sheila A. Carlisle, Judge
                           Cause No. 49G03-1003-MR-19208




                                        June 5, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                Case Summary and Issue

      Mark Shepard was convicted of conspiracy to commit robbery, a Class C felony,

and felony murder. He appeals, raising the sole issue of whether Indiana’s double

jeopardy principles were violated by his conviction of both offenses. Concluding his

convictions do not violate double jeopardy principles, we affirm.

                              Facts and Procedural History

      In the early hours of March 8, 2010, Mark Shepard, Ronald More, Randall

Bowles, and Nick Khanthamany arrived at the residence of John Tracey for the purpose

of robbing him. They believed that Tracey was a drug dealer and had possession of

$14,000, thirty pounds of marijuana, and numerous pills.       More and Bowles began

discussing the robbery four to six months earlier. Approximately three to four days

before March 8, More and Bowles asked Khanthamany if he would like to help with the

robbery. Khanthamany declined so More and Bowles asked Shepard to participate and

convince Khanthamany to help.        Shepard agreed to participate and, shortly after,

Khanthamany did as well.

      On March 7, all four men came together at the shared residence of More and

Bowles to discuss the details of the robbery. They possessed two guns, a .25 caliber gun

belonging to Bowles and a .40 caliber gun belonging to Khanthamany. The men had

ammunition for the .40 caliber handgun, but had not yet obtained ammunition for the .25

caliber gun. At approximately 10 or 11 p.m., the four men left and went to Debora

Khanthamany’s home. They continued discussing the robbery, focusing on the plan and

how to divide anything they recovered from Tracey’s home. Khanthamany agreed to

bring a third gun, which was his own .25 caliber handgun, and ammunition. When the
                                            2
four men left Debora’s home in a white Buick LeSabre, Shepard was armed with a loaded

.40 caliber handgun and More and Khanthamany were armed with loaded .25 caliber

handguns. The men drove to Tracey’s home dressed in black and gray clothing. All

covered their faces with blue bandanas and Bowles and More wore ski masks.

          While the four men were attempting to find a way into Tracey’s residence, they

noticed a white car parked outside that had not been there when they arrived. They

assumed the driver would return shortly and decided to attempt to gain entry into

Tracey’s residence by putting a gun to the head of the driver and forcing him to take the

four men into the residence. To facilitate that plan, they let the air out of the tires of the

car. While Shepard, More, Bowles, and Khanthamany were flattening the tires, Seth

Habig, a friend of Tracey’s, came out of Tracey’s apartment and saw the four men

surrounding the car. Habig went back inside to warn Mark Jenkins, another friend of

Tracey’s, that some men were disturbing Jenkins’s car.

          Habig, Jenkins, and Tracey armed themselves with a hammer, a hatchet, some

knives, and mace, and went outside to investigate.            Habig, Jenkins, and Tracey

discovered the white Buick LeSabre, which belonged to Shepard.               The three men

proceeded to “slice their tire,” “bash[] out their windows” and spray mace on the car.

Transcript at 85. Eventually, Habig, Jenkins, and Tracey discovered Shepard, More,

Bowles, and Khanthamany hiding in the bushes and said “there’s the motherfuckers right

there.”     Id. at 128.   Upon hearing those words, Shepard and Khanthamany began

shooting. Tracey was shot six times and later died from his injuries. Shepard kicked

Tracey in the face before the four men escaped in the white Buick LeSabre. Shepard

later told his girlfriend he shot Tracey because “[h]e thought the dude had a gun because .
                                              3
. . [s]omething shiny was in his hands.” Id. at 232. Shepard, More, Bowles, and

Khanthamany were later arrested. The guns were never recovered.

       The State charged Shepard with conspiracy to commit robbery as a Class B felony,

attempted robbery as a Class A felony, and felony murder. Following a bench trial,

Shepard was found guilty as charged. The trial court entered the conspiracy to commit

robbery as a Class C felony conviction and did not enter a conviction for attempted

robbery. Shepard was sentenced to sixty years for felony murder and five years for

conspiracy to commit robbery, to be served concurrently. Shepard now appeals his

convictions.

                                  Discussion and Decision

                                    I. Double Jeopardy

       Article 1, section 14 of the Indiana Constitution provides, “No person shall be put

in jeopardy twice for the same offense.” “[T]wo or more offenses are the ‘same offense’

. . . if, with respect to either the statutory elements of the challenged crimes or the actual

evidence used to convict, the essential elements of one challenged offense also establish

the essential elements of another challenged offense.” Richardson v. State, 717 N.E.2d

32, 49 (Ind. 1999) (emphasis in original, footnote omitted). To establish that “two

challenged offenses constitute the ‘same offense’ in a claim of double jeopardy, a

defendant must demonstrate a reasonable possibility that the evidentiary facts used by the

fact-finder to establish the essential elements of one offense may also have been used to

establish the essential elements of a second challenged offense.” Id. at 53 (footnote

omitted).      The “actual evidence test ‘is not violated when the evidentiary facts

establishing the essential elements of one offense also establish only one or even several,
                                              4
but not all, of the essential elements of a second offense.’” James v. State, 953 N.E.2d

1191, 1194 (Ind. Ct. App. 2011) (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind.

2002)). “When two convictions are found to contravene double jeopardy principles, a

reviewing court may remedy the violation by reducing either conviction to a less serious

form of the same offense if doing so will eliminate the violation.” Richardson, 717

N.E.2d at 54. If not, it is necessary to vacate one conviction. Id.

                                    II. Actual Evidence

       Shepard, making a claim only under the actual evidence test, contends “[t]he

Information set forth the ‘substantial act’ of the attempted robbery which resulted in the

felony murder and the ‘overt act’ in furtherance of the conspiracy as the same facts.”

Appellant’s Brief at 8. Application of the actual evidence test requires the reviewing

court to identify the essential elements of the challenged crimes and evaluate the

evidence from the fact-finder’s perspective, considering the charging information, jury

instructions, and arguments of counsel where relevant. James, 953 N.E.2d at 1194.

       The essential elements of the conspiracy charge are that (1) Shepard (2) agreed

with another person (3) to commit the crime of robbery and (4) one of the conspirators

performed an overt act in furtherance of the agreement. Ind. Code § 35-41-5-2(a).

Notably, the conspiracy was charged as a Class B felony, which required proof of an

agreement to commit a robbery while armed with a deadly weapon or resulting in bodily

injury to a person other than the defendant, see Ind. Code § 35-42-5-1 (defining robbery),

and was entered as a Class C felony conviction, which required proof of an agreement to

commit a robbery by using or threatening the use of force on any person or by putting

any person in fear, see id. The essential elements of the felony murder charge are that (1)
                                             5
Shepard (2) killed another person (3) while attempting to commit robbery. Ind. Code §

35-42-1-1(2).

       The Information charging Shepard with conspiracy to commit robbery alleges in

part that “Mark Shepard, Nick Khanthamany, Randall S. Bowles, and/or Ronald A. More

discussed and planned the details of the robbery and performed the following overt act(s)

in furtherance of the agreement, that is: obtained guns and ammunition, went to the

residence where Tracey was known to be, and approached the residence for the purpose

of carrying out the robbery.” Appellant’s Appendix at 105. The Information charging

Shepard with felony murder alleges that while “Mark Shepard . . . [was] participating in

the attempted robbery John Tracey was shot several times and died as a result of that

shooting.” Id. at 103. The Information charging Shepard with attempted robbery, the

felony underlying the murder charge, alleges in part that Shepard attempted to rob Tracey

“by engaging in conduct, described as: after discussing and planning the robbery and

obtaining guns and ammunition . . . went to [ ] Hanna Ave. to locate the victim and began

to approach the residence, which constituted a substantial step toward the commission of

[robbery].” Id. at 104.

       We would agree that Shepard could not be convicted of both attempted robbery

and conspiracy to commit robbery on the basis of the overlap in evidence of the

substantial step toward the attempted robbery and the overt act for the conspiracy.

However, as an overt act of the conspiracy, the attempted robbery was completed when

Shepard and his compatriots armed themselves, went to Tracey’s residence, and

approached the home with the intent to take money and drugs from him by their show of

force. The crime of murder, however, required not only the attempted robbery but also
                                           6
Tracey’s death, which was caused when Shepard and the others damaged a car outside

the residence and hid to await the driver’s return, opening fire when Tracey and his

friends came out to investigate.     These acts were not part of the overt act for the

conspiracy to commit robbery.

       In our analysis, the “actual evidence test’ is not violated when the evidentiary facts

establishing the essential elements of one offense also establish only one or even several,

but not all, of the essential elements of a second offense.” Richardson, 717 N.E.2d at 49.

In Spivey, our supreme court held that the actual evidence used to prove the elements of

conspiracy to commit burglary did not also prove all of the elements of felony murder

predicated upon the burglary:

       As an overt act of the conspiracy, the burglary was completed when the
       defendant entered the residence of [the victim] with the intent to commit
       theft. . . . The defendant’s crime of murder, however, required not only the
       burglary but also the death of [the victim], which is not part of the overt act
       for the conspiracy to commit burglary. Thus the overt act was not the same
       as the crime of murder, and the offenses of conspiracy [to commit burglary]
       and murder are sufficiently distinct to permit the defendant to be separately
       convicted and punished for each.

761 N.E.2d at 834; see also Henderson v. State, 769 N.E.2d 172, 178 (Ind. 2002)

(holding under the actual evidence test “the offenses of felony-murder and class A felony

conspiracy were each established by the proof of a fact not used to establish the other

offense” and there was no violation of the Indiana Double Jeopardy clause). Likewise in

this case, the evidence presented to establish that Shepard agreed to participate in the

robbery and that the four men engaged in an overt act in furtherance of the conspiracy,

thus proving conspiracy to commit robbery, does not also prove all of the essential

elements of felony murder.

                                             7
                                     Conclusion

      Based on the foregoing, we conclude that double jeopardy principles have not

been violated by Shepard’s convictions for conspiracy to commit robbery and felony

murder, and therefore we affirm.

      Affirmed.

NAJAM, J., and VAIDIK, J., concur.




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