MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Apr 12 2017, 10:20 am

this Memorandum Decision shall not be                                           CLERK
regarded as precedent or cited before any                                   Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Destin D. Jones,                                         April 12, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A05-1609-CR-2065
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D01-1504-F3-863



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A05-1609-CR-2065 | April 12, 2017               Page 1 of 7
[1]   Destin Jones was convicted of Level 3 Felony Attempted Armed Robbery 1 and

      Level 3 Felony Conspiracy to Commit Armed Robbery. 2 He appeals, arguing

      that there was insufficient evidence to sustain his convictions. Finding

      sufficient evidence for Jones’s conspiracy to commit armed robbery conviction

      but not for his attempted armed robbery conviction, we affirm in part and

      reverse in part, and remand for resentencing.


                                                             Facts
[2]   At 2:00 a.m. on April 2, 2015, the security surveillance video of a Speedway gas

      station in Terre Haute captured footage of two men outside the store. The men

      were wearing masks and dark hoodies, and they were carrying what appeared

      to be handguns. The men eventually removed their masks and hoodies and

      entered the store. They proceeded to the store’s back area and into the office,

      which is not a public area; at some point, one of the men entered the restroom

      in the back of the store. These two men were the only people to enter the

      store’s back area during this time. Later that morning, the manager of the

      Speedway went to the back office and noticed that lottery books were on the

      floor and that the lottery machine safe was open. He could not find the key for

      the lottery machine safe. The manager called the police.




      1
          Ind. Code § 35-42-5-1; Ind. Code § 35-41-5-1(a).
      2
          I.C. § 35-42-5-1; I.C. § 35-41-5-2(a)-(b).


      Court of Appeals of Indiana | Memorandum Decision 84A05-1609-CR-2065 | April 12, 2017   Page 2 of 7
[3]   The mother of Jones’s daughter became aware of the news coverage of an

      attempted armed robbery at the Speedway gas station. She saw pictures on

      Facebook, identified Jones, and called the police.


[4]   The State charged him with multiple counts stemming from a crime spree that

      took place in late March and early April 2015.3 These charges included Level 3

      felony attempted armed robbery and Level 3 felony conspiracy to commit

      armed robbery, both stemming from the events at the Speedway gas station. A

      jury trial took place from June 13 through June 16, 2016. The jury found Jones

      guilty on most of the charges, including the two relevant to this appeal. The

      trial court sentenced Jones to an aggregate executed term of seventeen years.

      Jones now appeals.


                                        Discussion and Decision
[5]   Jones argues that the State did not present sufficient evidence to support his

      convictions for attempted armed robbery and conspiracy to commit armed

      robbery. Specifically, he argues that the State failed to prove beyond a

      reasonable doubt that Jones did not voluntarily abandon his attempt and

      conspiracy to rob the Speedway gas station.


[6]   An armed robbery occurs when a person knowingly or intentionally takes

      property from another person by using or threatening the use of force on any




      3
          Although the State charged Jones with other crimes, we will discuss only the ones relevant to this appeal.



      Court of Appeals of Indiana | Memorandum Decision 84A05-1609-CR-2065 | April 12, 2017                Page 3 of 7
      person, or by putting any person in fear, while armed with a deadly weapon.

      I.C. § 35-42-5-1. An attempt crime occurs when a person, acting with the

      culpability required for commission of the crime, engages in conduct that

      constitutes a substantial step toward commission of the crime. I.C. § 35-41-5-

      1(a). A “substantial step” for purposes of the attempt statute is any overt act

      beyond mere preparation and in furtherance of intent to commit an offense.

      Collier v. State, 846 N.E.2d 340, 344 (Ind. Ct. App. 2006). A conspiracy occurs

      when a person agrees with another person to commit a felony and either person

      performs an overt act in furtherance of the agreement. I.C. § 35-41-5-2(a)-(b).


[7]   With respect to a charge of attempt or conspiracy, it is a defense that the person

      who engaged in the prohibited conduct voluntarily abandoned his effort to

      commit the underlying crime and voluntarily prevented its commission. I.C. §

      35-41-3-10. The defense of abandonment is only available in cases involving

      attempted crimes; a person cannot abandon an attempt to commit an offense

      after the crime has been completed. Barnes v. State, 269 Ind. 76, 83, 378 N.E.2d

      839, 843 (1978). An abandonment is voluntary if it originates with the accused

      and is not “the product of extrinsic factors that increase the probability of

      detection or make more difficult the accomplishment of the criminal purpose.”

      Smith v. State, 636 N.E.2d 124, 127 (Ind. 1994).


[8]   The State does not need to disprove the defense of abandonment “unless and

      until there is support for the defense in the evidence. Then it must disprove the

      defense beyond a reasonable doubt.” Id. If the State must disprove the defense

      of abandonment, whether it sustained its burden is a question of the sufficiency

      Court of Appeals of Indiana | Memorandum Decision 84A05-1609-CR-2065 | April 12, 2017   Page 4 of 7
       of the evidence. See Munford v. State, 923 N.E.2d 11, 17-18 (Ind. Ct. App.

       2010). When considering a challenge to the sufficiency of the evidence, we do

       not reweigh the evidence or judge the credibility of the witnesses. McHenry v.

       State, 820 N.E.2d 124, 126 (Ind. 2005). We will affirm if the probative evidence

       and the reasonable inferences drawn therefrom could have allowed a reasonable

       jury to find the defendant guilty beyond a reasonable doubt. Id.


[9]    The defense of abandonment does not apply to Jones’ conviction for conspiracy

       to commit armed robbery. A conspiracy is complete when a person has the

       intent to commit a felony, forms an agreement with another person to commit a

       felony, and either person performs an overt act. Owens v. State, 929 N.E.2d 754,

       756 (Ind. 2010). Jones does not claim that he and his companion did not intend

       to rob the Speedway gas station, nor does he claim that they did not enter into

       an agreement to do so. The security video shows them outside the gas station

       at 2 a.m. wearing masks and hoodies and holding what appeared to be

       handguns. In other words, the video showed Jones and his companion

       performing an overt act, and the elements of a conspiracy were complete. As a

       result, for this conviction, a defense of abandonment is unavailable.


[10]   As for Jones’s conviction for attempted armed robbery, however, we find that

       the State did not overcome its burden of disproving Jones’s abandonment

       defense beyond a reasonable doubt. According to the State, the jury could have

       reasonably inferred that Jones and his companion abandoned their plan to rob

       the gas station because of the presence of customers, thereby making their

       decision based on extrinsic factors rather than originating from their own

       Court of Appeals of Indiana | Memorandum Decision 84A05-1609-CR-2065 | April 12, 2017   Page 5 of 7
       volition. Yet the case law on the defense of abandonment turns on whether

       extrinsic factors actually thwarted the person’s attempt to commit a criminal

       act. See Munford, 923 N.E.2d at 18 (finding sufficient evidence to disprove

       abandonment defense because the defendant, while in a store restroom,

       removed liquor bottles from his coat and said, ‘“They’re on us, we need to get

       out of here’”); Gravens v. State, 836 N.E.2d 490, 497 (Ind. Ct. App. 2005)

       (finding sufficient evidence to disprove abandonment defense because

       defendant became flustered and left the bank after the bank teller loudly

       questioned him about his demand note). Here, the only interaction that the

       store employee or any of the customers had with Jones or his companion was

       engaging in friendly conversation, which is not an extrinsic factor that would

       thwart an attempt to commit a crime. Thus, the mere presence of the store

       employee and customers is not enough to establish beyond a reasonable doubt

       that Jones and his companion did not voluntarily abandon their plan.


[11]   Moreover, the overt act required to convict Jones of the conspiracy charge

       cannot be the same act used to prove that he attempted armed robbery. A

       violation of Article I, Section 14 of the Indiana Constitution, which protects a

       person against double jeopardy, occurs if “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). See Bradley v. State,

       867 N.E.2d 1282, 1285 (Ind. 2007) (finding that if the jury found one element of

       a charge satisfied by the evidence used to establish one element of another

       charge, then the double jeopardy clause was implicated). Here, a reasonable


       Court of Appeals of Indiana | Memorandum Decision 84A05-1609-CR-2065 | April 12, 2017   Page 6 of 7
       possibility exists that the jury used the same evidentiary fact—that Jones and

       his companion were outside the gas station wearing masks and hoodies and

       holding what appeared to be handguns—to prove that Jones performed an overt

       act in furtherance of an agreement and that Jones took a substantial step toward

       the commission of an armed robbery. If this fact was used to establish the

       conspiracy, it could not be used to also establish the attempted armed robbery,

       and without it, the State cannot point to an action taken by Jones that would

       constitute a substantial step in his attempt to commit armed robbery.


[12]   Finally, in charging Jones with attempted armed robbery, the State did not

       include theft as a lesser included offense in the charge; had the State structured

       its charge to encompass lesser included offenses, it seems likely that a jury

       would have found him guilty of a lesser offense such as theft. But because the

       State did not do so, we cannot simply reduce Jones’s attempted armed robbery

       conviction to a theft conviction. For these reasons, we reverse Jones’s

       conviction for attempted armed robbery and remand for resentencing.


[13]   The judgment of the trial court is affirmed in part and reversed in part, and

       remanded with instructions to vacate the attempted armed robbery conviction

       and for resentencing.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A05-1609-CR-2065 | April 12, 2017   Page 7 of 7
