MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                                   Sep 29 2017, 7:23 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kirk S. Freeman                                          Curtis T. Hill, Jr.
Law Office of Kirk S. Freeman                            Attorney General of Indiana
Lafayette, IN
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, IN



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jerome L. Williams,                                      September 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1701-CR-40
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy Williams,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D01-1605-F3-13



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017      Page 1 of 10
                                          Case Summary
[1]   Jerome Williams was convicted of robbery while armed with a deadly weapon,

      robbery resulting in bodily injury, and conspiracy to commit robbery. He

      appeals, arguing that the evidence is insufficient to support the convictions.

      While we find sufficient evidence to convict, we also conclude, sua sponte, that

      the two convictions for robbery violate double jeopardy because there was only

      one robbery. We remand this matter to the trial court with instructions to

      vacate one of the robbery convictions.



                            Facts and Procedural History
[2]   In early April 2016, Aiden McNeill posted online ads to sell his AR-15 rifle.

      After posting the ads, a man identified later only as “Middleman” approached

      McNeill outside of his home and asked if McNeill had anything for sale or

      knew where he could purchase a gun. Because of the neighborhood, McNeill

      did not find this conversation unusual. McNeill informed “Middleman” that

      he had an AR-15 rifle for sale and gave him his cell-phone number.


[3]   On April 12, “Middleman” called McNeill and inquired further about the rifle.

      “Middleman” made multiple phone calls to McNeill to try to set up a buy for

      later that day. McNeill eventually agreed to meet with “Middleman” and sell

      the gun that day. McNeill created a bill of sale, and a man other than

      “Middleman” went to McNeill’s home and signed the bill of sale as “Cashmere

      Jordan.” Despite the details of the sale being prearranged, Cashmere did not


      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017   Page 2 of 10
      purchase the gun from McNeill but rather directed McNeill to go to the Spring

      Gardens apartment complex down the road.


[4]   McNeill had an uneasy feeling about going to Spring Gardens alone, so,

      incredibly, he decided that his girlfriend and four-year-old son should

      accompany him to the buy as his “backup.” “Middleman” directed McNeill to

      the back of the apartment complex and told McNeill to park next to a white

      SUV, which had been backed into its parking spot. McNeill parked and got out

      of his car; three men exited the SUV, including Aaron Scott. Williams, the

      driver of the SUV, remained inside.


[5]   McNeill and the passengers walked to the trunk of his car to inspect the rifle.

      Scott took the rifle and told McNeill to get into the SUV to get paid. Thinking

      this was an odd request, McNeill grabbed an unloaded handgun out of his trunk

      and shoved it into his waistband. He then got into the SUV, sitting behind

      Williams, and Scott sat in the front passenger seat. Scott then immediately

      drew his handgun and pointed it at McNeill. Scott told the back-seat

      passengers to “get that gun off” of McNeill, referring to McNeill’s handgun.

      Tr. Vol. II p. 65. A fight ensued between McNeill and the two unidentified

      passengers sitting next to him. McNeill was shoved up against the car window,

      with both passengers holding him against the window by his neck.


[6]   While the rear passengers were trying to get McNeill’s handgun from him, Scott

      alternated between pointing the gun at McNeill and at his girlfriend, who was

      still sitting inside the other car. When pointing the gun at the girlfriend, Scott


      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017   Page 3 of 10
      leaned over Williams, placing the gun directly in front of Williams’s face.

      Throughout the entire ordeal, Williams stared out the driver-side window at

      McNeill’s girlfriend with a look that said, “hey don’t do anything” like call 911

      or try to help McNeill. Id. at 122. Williams did not appear surprised by the

      fight or the fact that Scott had pulled out a handgun.


[7]   The fight lasted approximately one minute. McNeill was pulled through the

      SUV and thrown to the ground. The two back-seat passengers and Scott hit

      and kicked McNeill. Scott then struck McNeill on the back of the head three

      times with the rifle. The three men got back into the SUV, and Williams pulled

      out of the parking lot at a speed that caused the tires to squeal. As Williams

      drove away, McNeill pulled out his cell phone and took a picture of the SUV.


[8]   McNeill called 911, and officers from the Lafayette Police Department

      responded to the scene. Officers found a cell phone in the parking spot where

      the SUV had been parked and later determined that it belonged to Williams.

      Officers were able to access the call log on the cell phone and discovered that

      “Middleman’s” phone number was on Williams’s phone as well as McNeill’s.

      Many of the calls “Middleman” placed on April 12 to Williams were made

      within minutes of calls he had with McNeill, revealing a “triangle” of

      communication between the three men. See Tr. Vol. III pp. 8-51; Exs. 44, 53.

      Officers also obtained a copy of the photo McNeill took of the SUV. They

      located the SUV in the parking lot of McNeill’s apartment complex. The SUV

      was a rental and had been rented to Lolita Logan, Williams’s girlfriend.



      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017   Page 4 of 10
[9]    McNeill was taken to the hospital for injuries he sustained during the fight,

       including a gash on his head that required seven staples to close. While at the

       hospital, officers showed McNeill a series of photo arrays, and McNeill

       identified Williams as the driver of the SUV and Scott as the front-seat

       passenger. He was not able to identify either of the back-seat passengers.


[10]   Based on the robbery of McNeill, the State charged Williams with three Level 3

       felonies: robbery while armed with a deadly weapon, robbery resulting in bodily

       injury, and conspiracy to commit robbery. A jury trial was held in November

       2016. During the trial, the State argued that Williams was guilty as an

       accomplice. The State also presented phone records between “Middleman,”

       Williams, and Scott. The records indicate that “Middleman” called Williams

       over 100 times between April 1 and April 12, with twenty to thirty calls placed

       on the day of the robbery. Williams and Scott also talked on the phone

       approximately five times before the robbery. The jury found Williams guilty on

       all counts. On each count, Williams was sentenced to a term of ten years in the

       Department of Correction, with one year suspended to probation. The court

       ordered the sentences to run concurrently.


[11]   Williams now appeals.



                                 Discussion and Decision
[12]   Williams contends that the evidence is insufficient to support his convictions.

       When reviewing the sufficiency of the evidence, we neither reweigh the


       Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017   Page 5 of 10
       evidence nor determine the credibility of witnesses; that role is reserved for the

       factfinder. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). “The evidence—

       even if conflicting—and all reasonable inferences drawn from it are viewed in a

       light most favorable to the conviction.” Id. A conviction will be affirmed “if

       there is substantial evidence of probative value supporting each element of the

       crime from which a reasonable trier of fact could have found the defendant

       guilty beyond a reasonable doubt.” Id.


                                                 I. Robbery
[13]   Williams argues that the evidence is insufficient to convict him as an

       accomplice for robbery while armed with a deadly weapon and robbery

       resulting in bodily injury. Robbery occurs when a person “knowingly or

       intentionally takes property from another person or from the presence of

       another person: (1) by using or threatening the use of force on any person; or (2)

       by putting any person in fear . . . .” Ind. Code § 35-42-5-1. Robbery, as

       defined, is a Level 5 felony, but the crime is elevated to a Level 3 felony if it is

       committed while armed with a deadly weapon or results in bodily injury to any

       person other than the defendant. Id.


[14]   “It is well settled that there is no distinction between the responsibility of a

       principal and an accomplice.” Stokes v. State, 919 N.E.2d 1240, 1245 (Ind. Ct.

       App. 2010), trans. denied. “A person who knowingly or intentionally aids,

       induces, or causes another person to commit an offense commits that offense . .

       . .” Ind. Code § 35-41-2-4. It is not necessary that the evidence show the


       Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017   Page 6 of 10
       individual personally participated in the commission of each element of the

       crime because the act of one companion is imputed to all. Griffin v. State, 16

       N.E.3d 997, 1003 (Ind. Ct. App. 2014). To determine whether an individual is

       an accomplice, we look at four factors: (1) presence at the scene of the crime;

       (2) companionship with another engaged in the crime; (3) failure to oppose the

       commission of the crime; and (4) the individual’s conduct before, during, and

       after the occurrence of the crime. Id.


[15]   Williams concedes that he was present at the scene of the robbery and did

       nothing to contest the commission of the robbery but notes that these facts by

       themselves are insufficient to establish accomplice liability. See Turner v. State,

       755 N.E.2d 194, 198 (Ind. Ct. App. 2001), trans. denied. Nevertheless, the jury

       may consider them in conjunction with the other two factors—companionship

       and conduct—that tend to show that one acted as an accomplice to a crime.

       Griffin, 16 N.E.3d at 1004.


[16]   “Middleman,” who set up the “buy” with McNeill, spoke to Williams on the

       phone upwards of thirty times on the day of the robbery. Most of those phone

       calls were within mere minutes of “Middleman” talking to McNeill. Williams

       also spoke with Scott on the phone multiple times before the robbery took

       place. These phone records establish Williams’s companionship with

       “Middleman” and Scott.


[17]   Williams’s conduct before the robbery was such that he was in constant contact

       with “Middleman,” procured his girlfriend’s rental car as the getaway car and


       Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017   Page 7 of 10
       backed the SUV into the parking space for an easy exit. During the robbery,

       Williams did not appear surprised by the fight taking place in the back seat or

       the fact that Scott had pulled out a handgun. Rather, he stared out of the

       driver-side window at McNeill’s girlfriend with a look that she interpreted to

       mean that she could not help McNeill or call 911. Moreover, while Scott and

       the other passengers were punching, kicking, and beating McNeill with the rifle,

       Williams did not drive away. He waited until all three passengers were back in

       the SUV before driving off at a speed that caused the tires to squeal. Williams

       then abandoned the SUV in a nearby parking lot.


[18]   Williams claims that his case is “directly analogous” to our Supreme Court’s

       decision in Garland v. State, 719 N.E.2d 1236 (Ind. 1999). Appellant’s Br. p. 8.

       In Garland, the Court found insufficient evidence was presented to convict the

       defendant of murder as an accomplice for killing his father. 719 N.E.2d at

       1242. The Court reached this conclusion largely because of the “absence of

       evidence demonstrating that the defendant took any step to aid, induce, or

       cause the crime, even though the defendant may have known that [the killer]

       intended to commit murder, and took no action to prevent it.” Id. We

       distinguish the case before us from the holding in Garland because Williams did

       take steps to aid, induce, or cause the robbery: he obtained the SUV, backed

       into the parking space to facilitate a quicker getaway, and communicated

       multiple times with “Middleman” and Scott before the robbery. Having

       examined the four factors for accomplice liability, we conclude that the




       Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017   Page 8 of 10
       evidence is sufficient to support Williams’s convictions for robbery with a

       deadly weapon and robbery resulting in bodily injury.


[19]   Despite finding sufficient evidence, we conclude that the trial court erred when

       it entered judgment of convictions for both robbery convictions. Williams does

       not raise the issue of double jeopardy for our review, and we reach this

       conclusion sua sponte. The State brought two separate charges of robbery

       based on two separate theories of the same robbery. Williams was found guilty

       under both theories, but because only one robbery occurred, the entry of

       judgment on both charges violates double jeopardy. See Lane v. State, 428

       N.E.2d 28, 31 (Ind. 1981) (holding that a defendant who robs one victim one

       time can be convicted of only one count of robbery). We remand to the trial

       court with instructions to vacate one of the robbery convictions.


                                             II. Conspiracy
[20]   Williams also contends that the State presented insufficient evidence to support

       his conviction for conspiracy to commit robbery. An individual conspires to

       commit a felony when, with the intent to commit the felony, the individual

       agrees with another person to commit the felony, and one of the parties

       performs an overt act in furtherance of the agreement. Ind. Code § 35-41-5-2.


[21]   Williams only argues that the State failed to prove that an agreement existed

       between Williams and another individual to rob McNeill. The State is not

       required to prove that an express, formal agreement existed. Guffey v. State, 42

       N.E.3d 152, 164 (Ind. Ct. App. 2015), trans. denied. Proof of the conspiracy

       Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017   Page 9 of 10
       may rest entirely on circumstantial evidence. Id. The State introduced multiple

       pages of phone records showing a “triangle” of calls between Williams,

       “Middleman,” and McNeill. See Ex. 53. “Middleman” called Williams

       between twenty and thirty times on the day of the robbery, the majority of

       which were made within minutes of “Middleman” speaking to McNeill.

       Williams also spoke with Scott on at least five different occasions leading up to

       the robbery and was not surprised when Scott brandished a handgun.


[22]   Williams is correct that the State did not introduce any evidence of the content

       of the phone conversation. But the State was not required to do so. Based on

       the evidence presented, the jury could reasonably infer that Williams and

       “Middleman,” or Williams and Scott, or all three men had an agreement to rob

       McNeill due to the multitude of calls placed, the timing of the calls, and

       Williams’s lack of reaction to the robbery itself.


[23]   Affirmed in part and remanded in part with instructions.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017   Page 10 of 10
