                                                                                     FILED
                                                                             Mar 24 2016, 9:45 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                               ATTORNEYS FOR APPELLEE
      Timothy J. O’Connor                                  Gregory F. Zoeller
      O’Connor & Auersch                                   Attorney General of Indiana
      Indianapolis, Indiana
                                                           Jodi Kathryn Stein
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Alexander Dupree,                                         March 24, 2016

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1505-CR-439
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Lisa F. Borges,
                                                                Judge
      Appellee-Plaintiff.
                                                                Trial Court Cause No. 49G04-1311-
                                                                FA-70773


      Bradford, Judge.

                                           Case Summary
[1]   On October 29, 2013, Appellant-Defendant Alexander Dupree and five

      accomplices (collectively, “the Defendants”), after variously using marijuana

      and cocaine and drinking alcohol since the prior evening, entered the

      Indianapolis home of C.P., his wife E.P., and their daughter A.P. (“the

      House”). Once inside, the Defendants proceeded to ransack the House in


      Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016                           Page 1 of 20
      search of valuable items to steal, frequently threatening to shoot or kill C.P.,

      E.P., and A.P. One of the Defendants drove with E.P. so that she could

      withdraw money from her bank, and he forced her to fellate him in the vehicle.

      Back at the House, Dupree forced A.P. to fellate him before he and three other

      Defendants vaginally raped her. At one point, C.P., who is unable to walk

      without the use of leg braces and a cane, was beaten with a drawer. One of the

      Defendants forced A.P. to drive to the bank so that she could withdraw cash,

      and then the Defendants left, taking C.P.’s, E.P.’s and A.P.’s vehicles with

      them. The ordeal lasted approximately two hours. Dupree was charged with

      thirty-five offenses, and, after a jury trial, was convicted and sentenced for

      eleven: Class A felony criminal deviate conduct, Class A felony attempted

      criminal deviate conduct, two counts of Class A felony rape, Class A felony

      burglary, Class A felony robbery, Class B felony robbery, Class C felony

      robbery, and three counts of Class B felony carjacking. The trial court imposed

      an aggregate sentence of 248 years of incarceration.


[2]   Dupree contends that (1) his convictions for Class B felony robbery of A.P. and

      three counts of carjacking violate Indiana’s single larceny rule, (2) his

      convictions for Class A felony robbery and Class A felony Burglary violate

      prohibitions against double jeopardy because they were both enhanced by the

      same bodily injury, and (3) his 248-year sentence is inappropriate. While we

      disagree with Dupree’s first and third contentions, his second is meritorious.

      Consequently, we affirm in part, reverse in part, and remand with instructions




      Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016    Page 2 of 20
      to reduce Dupree’s Class A felony robbery conviction to a Class B felony and

      reduce his aggregate sentence to 218 years of incarceration.


                             Facts and Procedural History
[3]   During the evening of October 28, 2013, Dupree, Trae Spells, Michael Pugh,

      Adrian Anthony, and Demetre Brown were “hanging out” at an apartment

      near the intersection of 38th and Meridian Streets in Indianapolis. Tr. p. 968.

      At the apartment, the group was “chilling, smoking, and drinking.” Tr. p. 970.

      Spells indicated that he personally smoked marijuana and “Spice[.]” Tr. p. 970.

      Eventually, the five left in a car that Pugh had borrowed. The group first drove

      to a liquor store and obtained some peach vodka, which was then consumed.

      Next, the group obtained some powdered cocaine, of which all five partook.


[4]   The group drove to another residence where “people were hanging out” and,

      after going in and having a “good time[,]” left with a sixth person, Isaiah Hill.

      Tr. p. 978. Eventually, the Defendants stopped at the House, located on 79th

      Street in Indianapolis. The Defendants walked into the garage, which had been

      left open the night before. Brown and Anthony were armed with .38 caliber

      handguns. All six of the Defendants donned gloves, and Pugh opened the door

      into the House, which had been left unlocked. Once inside, all Defendants

      went upstairs and happened to first enter C.P. and E.P.’s bedroom, Anthony

      brandishing a handgun and leading the way.


[5]   C.P. and E.P. were awakened by loud voices at 5:15 a.m. The voices instructed

      C.P. and E.P. to get up and were demanding cash, cellular telephones, and

      Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016   Page 3 of 20
      guns. C.P and E.P were also told not to look up and that, if they did, they

      would be killed. C.P. suffers from a neurological condition that requires him to

      use leg braces and a cane to walk. When C.P. stated that he needed to put his

      leg braces on, he was told to remain in bed while E.P. got up.


[6]   Meanwhile, A.P. awoke in the next bedroom when she heard screaming. A.P.

      brought her purse to her parents’ bedroom and gave it to the first Defendant she

      encountered. At some point later in the morning, one of the Defendants came

      into C.P.’s bedroom demanding the keys to the Ford Explorer in the garage.

      Although C.P. answered, the reply was not heard, and the Defendant beat C.P.

      over the head with a nightstand drawer.


[7]   Spells was told to take A.P. back to her bedroom, and, at about the same time,

      E.P. attempted to run to an office down the hallway and dial 911. Anthony

      shot E.P. in the hip as she ran and she did not make it to the telephone. When

      Spells asked Anthony why he had shot E.P., Anthony replied, “Shut up little

      Bro. It’s what you gotta do.” Tr. p. 997. Spells and Brown took A.P. back to

      her bedroom and made her lie face down on her bed. At one point, one of the

      Defendants began to touch the back of A.P.’s leg, moved up to one of the leg

      openings in A.P.’s sleep shorts, and touched her vagina on the outside.

      Somebody asked A.P. if she had any money, and she replied that she had

      $9000.00 in her bank account. This generated great excitement, and A.P. was

      taken downstairs.




      Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016   Page 4 of 20
[8]   By this time, Hill had helped E.P. downstairs. Once downstairs, some of the

      Defendants were discussing taking E.P. to an ATM and going through sets of

      keys, asking her which set went with her vehicle, a Ford Escape. The keys to

      the Escape were identified around the time that E.P. became aware that A.P.

      had also been brought downstairs by Spells and placed in a room adjacent to

      the kitchen. E.P. walked out into the garage with Anthony and attempted to

      run to the next-door neighbor’s house, but tripped and fell and was tackled by

      Anthony. Anthony dragged E.P. back into the kitchen and shot her again, this

      time in the foot. When asked by another of the Defendants why he had shot

      E.P., Anthony explained that it had been because she ran. One of the

      Defendants then kicked E.P. in the head, causing her to “really [see] stars.” Tr.

      p. 97. E.P. decided at this point that she was just going to do whatever the

      Defendants told her to.


[9]   Anthony pulled E.P. into the back seat of the Escape, and as Hill drove, E.P.

      gave directions to her bank at 91st and Meridian Streets. After a while,

      Anthony showed E.P. the ATM card they wished to use, and she noticed that it

      was A.P.’s, the pin code to which she did not know. Hill turned the Escape

      around to return to the House. On the way back, Anthony pulled down E.P.’s

      sweat pants and his own and unsuccessfully attempted to anally penetrate her

      from behind. After a short time, Anthony said, “This isn’t working. Let’s try it

      a different way.” Tr. p. 107. Anthony turned E.P. around, forced her head

      down, and forced her to fellate him. Anthony ejaculated in E.P.’s mouth and

      told E.P., “You better swallow or I’ll kill you.” Tr. p. 110. E.P. did, and


      Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016   Page 5 of 20
       Anthony looked into her mouth and wiped it out with “a sleeve or some piece

       of material.” Tr. p. 110.


[10]   Once back at the House, Hill went in and retrieved another ATM card, this

       time C.P.’s. Anthony had taken E.P. around to the driver’s seat and he sat in

       the front passenger seat. E.P. backed out and, as they drove, Anthony held a

       gun on her. When Anthony and E.P. arrived at the ATM, E.P. withdrew

       $800.00 and gave it to Anthony. Anthony told E.P. to tell “the other guys” that

       they had only withdrawn $500.00. Tr. p. 119. After an unsuccessful attempt to

       withdraw more money, the duo returned to the House.


[11]   While E.P. was being taken to withdraw money, A.P. was in the room next to

       the kitchen and was told by Spells that she was going to be shot if she opened

       her eyes. Hill, after returning from the first trip to the bank with Anthony and

       E.P., grabbed A.P. by the hair and took her into an adjacent bathroom. Hill sat

       on the toilet while Dupree sat on the sink counter. Dupree said, “I’m gonna get

       head from this … girl.” Tr. p. 191. Dupree pushed A.P.’s head down, caused

       her to fellate him, and said, “If you bit[e] me, I’ll shoot you.” Tr. p. 198. At

       the same time, Hill was attempting to have vaginal intercourse with A.P. from

       behind, but was unable to achieve full penetration. After a while, Hill led A.P.

       through a second door in the bathroom into a den.


[12]   Once in the den, Hill led A.P. to a couch where he vaginally penetrated her and

       told her to “moan bitch[.]” Tr. p. 204. After Hill finished, Dupree

       unsuccessfully attempted to anally penetrate A.P. as she stood with her back to


       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016   Page 6 of 20
       him and her hands on the couch. Dupree did manage to vaginally penetrate

       A.P. with his penis. When Dupree was finished, Brown moved A.P. to the

       floor and vaginally penetrated her with his penis. While Brown was raping

       A.P., Spells left and told Pugh that “they down there having sex with her[.]”

       Tr. p. 1026. Pugh told Spells to watch C.P., but Spells returned downstairs

       when it appeared that C.P. could not move. Spells arrived back in the den as

       Brown was finishing his rape of A.P. Brown told Spells several times, “Bro, get

       some Bro[,]” and Spells raped A.P. as well. Tr. p. 1028. Spells vaginally

       penetrated A.P. and ejaculated inside of her. Spells left A.P. on the den floor.


[13]   Meanwhile, Anthony had returned with E.P. from the second trip to the bank

       and left her on the living room floor by the front door. Anthony left with A.P.

       and the duo got into the Escape, with A.P. driving. Anthony was pointing a

       handgun at A.P. At first, A.P.’s debit card could not be located, but it was

       found in the yard, and Anthony and A.P. left. A.P., who by this time was

       wearing nothing but a t-shirt, felt her bare feet sticking in her mother’s blood on

       the floor of the Escape. As A.P. was withdrawing $800.00 from the ATM,

       Anthony touched her vagina on the outside. According to surveillance video,

       the withdrawal occurred at 7:02 a.m. Meanwhile, at around 6:50 a.m., a

       neighbor observed three vehicles leave from the victims’ driveway, with Brown

       and Dupree leaving last in A.P.’s black Mitsubishi Spyder. Once Anthony and

       A.P. returned to the House, they entered through the front door and found E.P.

       sitting at the foot of the stairs. Anthony told A.P. and E.P. to go upstairs, and

       they did. By this time, only Spells and Anthony remained at the House. Spells


       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016   Page 7 of 20
       left in a stolen Infinity sedan and Anthony left in the Ford Escape. Spells soon

       abandoned the Infinity, transferred stolen items to the Escape, and left with

       Anthony.


[14]   After a few minutes, A.P. looked outside and was unable to see any of her

       family’s vehicles or any of the Defendants. A.P. noticed the lights on at a

       neighbor’s house, ran over, and summoned help. The ordeal had lasted

       approximately two hours, with police arriving at approximately 7:30 a.m. The

       House had been thoroughly ransacked, with all of the televisions and computers

       and several pieces of jewelry loaded into the victims’ vehicles as the morning

       progressed. E.P. and A.P. were transferred to the hospital for treatment. E.P.’s

       injuries required her to be wheelchair-bound before wearing a boot and using a

       cane for an extended period.


[15]   All of the Defendants rendezvoused later, transferred the stolen goods to the

       shed behind Dupree’s mother’s house, and immediately began to sell various

       items. The Ford Escape and Mitsubishi Spyder were abandoned at a church

       one-and-a-half blocks from Dupree’s residence, and the Infinity was also

       quickly found. After a police investigation, all six Defendants were identified

       as suspects.


[16]   By August of 2014, all six Defendants had been charged with thirty-five counts,

       ranging from Class A felonies to misdemeanors: fourteen counts of criminal

       deviate conduct, four counts of rape, three counts of robbery, three counts of

       carjacking, three counts of criminal confinement, two counts of intimidation,


       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016   Page 8 of 20
       one count of aggravated battery, one count of battery by bodily waste, three

       counts of battery, and one count of burglary.


[17]   A jury trial was held over six days in March of 2015, with Spells testifying for

       the State and Dupree, Anthony, Pugh, and Brown being tried together.

       Following the presentation of evidence, the State dismissed seven of the charges

       against the Defendants, leaving twenty-eight to be submitted to the jury. The

       jury acquitted Dupree of five counts and found him guilty of twenty-three

       offenses: four counts of Class A felony rape, two counts of Class A felony

       criminal deviate conduct, two counts of Class A felony attempted criminal

       deviate conduct, two counts of Class B felony robbery, three counts of Class B

       felony carjacking, three counts of Class B felony criminal confinement, two

       counts of Class C felony intimidation, Class B felony aggravated battery, Class

       A felony robbery, two counts of Class A misdemeanor battery, and Class A

       felony burglary.


[18]   On May 1, 2015, the trial court held a sentencing hearing, at which it vacated

       or reduced various convictions on double jeopardy grounds. The trial court

       entered judgment of conviction and sentenced Dupree for a total of eleven

       charges:


                Fifty years for Count V, Class A felony criminal deviate
                 conduct
                Fifty years for Count XI, Class A felony attempted criminal
                 deviate conduct
                Fifty years for Count III, Class A felony rape
                Fifty years for Count IX, Class A felony rape

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016   Page 9 of 20
                   Fifty years for Count XXXV, Class A felony burglary
                   Fifty years for Count XVIII, Class A felony robbery
                   Twenty years for Count XIII, Class B felony robbery
                   Eight years for Count XXXIII, Class C felony robbery
                   Twenty years each for Counts XIV, XXVII, and XXXII,
                    Class B felony carjacking

[19]   The trial court ordered that the following sentences be served concurrently:

       Counts III and V (rape and criminal deviate conduct on A.P); Counts IX and

       XI (rape and attempted criminal deviate conduct on A.P.); and Counts XIV,

       XXVII, and XXXIII (carjacking). The trial court ordered that all remaining

       sentences were to be served consecutively, for an aggregate sentence of 248

       years of incarceration. The trial court found Dupree’s criminal history, history

       of substance abuse, and violation of the conditions of probation to be

       aggravating circumstances. The trial court also found the nature of the offenses

       to be “unbelievably aggravating” and an “extreme aggravator.” Tr. pp. 1429,

       1430. The trial court also noted C.P.’s infirmity, which was known to

       Defendants, and that the victims were “not just attacked, not just burglarized or

       robbed, but humiliated, literally humiliated, and treated as if they were

       nothing.” Tr. p. 1429.


[20]   Dupree argues that (1) his convictions for Class B felony robbery and three

       counts of Class B felony carjacking violate the single larceny rule, (2) the use of

       the same injury to enhance his Class A felony burglary and Class A felony

       robbery convictions violate prohibitions against double jeopardy, and (3) his

       aggregate 248-year sentence is inappropriately harsh. The State counters that

       (1) the single larceny rule does not apply to Dupree’s convictions, (2) any
       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016   Page 10 of 20
       violation of the prohibitions against double jeopardy would be cured by

       reducing Dupree’s Class A felony robbery to a Class B felony, and (3) Dupree’s

       sentence is appropriate.


                                  Discussion and Decision
                                      I. Single Larceny Rule
[21]   Dupree contends that his convictions for Class B felony robbery and three

       counts of Class B felony carjacking violate Indiana’s single larceny rule.

               The Single Larceny Rule has long been entrenched in Indiana
               law as evident by the following passage in Furnace v. State (1899),
               153 Ind. 93, 95, 54 N.E. 441, 44:
                    We recognize no good reason to depart from what may be
                    considered the great current of authority and hold the
                    pleading in question bad when it can reasonably be said
                    that it discloses that the larceny complained of was but one
                    single act or transaction in violation of the law against
                    larceny, although the property which was the subject of the
                    crime belonged to several different persons. The particular
                    ownership, as charged in the pleading, of the money stolen
                    did not give character to the act of stealing, but was merely
                    a part of the description of the particular crime charged to
                    have been committed. The information, prima facie, under
                    the circumstances, can be said to charge but one offense
                    against the State, and is not open to the objection that it is
                    bad for duplicity.
               The prevailing rule is that when several articles of property are
               taken at the same time, from the same place, belonging to the
               same person or to several persons there is but a single “larceny”,
               i.e. a single offense. Stout v. State (1985), Ind., 479 N.E.2d 563;
               Holt v. State (1978), 178 Ind. App. 631, 383 N.E.2d 467. The
               rationale behind this rule is that the taking of several articles at

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016      Page 11 of 20
               the same time from the same place is pursuant to a single intent
               and design. Holt, supra. If only one offense is committed, there
               may be but one judgment and one sentence.
       Raines v. State, 514 N.E.2d 298, 300 (Ind. 1987).


[22]   The charges at issue read as follows, first a Class B felony robbery charge

       involving A.P. and one Class B felony carjacking charge each against E.P.,

       A.P., and C.P.:


               COUNT XIII
               DEMETRE BROWN, ADRIAN ANTHONY, ALEXANDER
               DUPREE, MICHAEL PUGH, TRAE T. SPELLS AND
               ISAIAH HILL, AKA ZEKE HILL, on or about October 29,
               [2013, did knowingly, while armed with a deadly weapon, that
               is: a handgun, take from] the person or presence of [A.P.]
               property, that is: currency, and/or computer, and/or jewelry,
               and/or keys, and/or television, and/or cellular phone, by putting
               [A.P.] in fear or by using or threatening the use of force on
               [A.P.];
                                             *        *       *        *
               COUNT XIV [Class B felony carjacking]
               DEMETRE BROWN, ADRIAN ANTHONY, ALEXANDER
               DUPREE, MICHAEL PUGH, TRAE T. SPELLS AND
               ISAIAH HILL, AKA ZEKE HILL, on or about October 29,
               2013, did knowingly take from the person or presence of [A.P.] a
               motor vehicle, that is: a Mitsubishi convertible, by putting [A.P.]
               in fear or by using or threatening the use of force on [A.P.];
                                             *        *       *        *
               COUNT XXVII [Class B felony carjacking]
               DEMETRE BROWN, ADRIAN ANTHONY,
               ALEXANDER DUPREE, MICHAEL PUGH, TRAE T.
               SPELLS AND ISAIAH HILL, AKA ZEKE HILL, on or

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016   Page 12 of 20
               about October 29, 2013, did knowingly take from the person or
               presence of [E.P.] a motor vehicle, that is: a Ford Escape, by
               putting [E.P.] in fear or by using or threatening the use of force
               on [E.P.];
                                             *        *       *        *
               COUNT XXXII [Class B felony carjacking]
               DEMETRE BROWN, ADRIAN ANTHONY,
               ALEXANDER DUPREE, MICHAEL PUGH, TRAE T.
               SPELLS AND ISAIAH HILL, AKA ZEKE HILL, on or
               about October 29, 2013, did knowingly take from the person or
               presence of [C.P.] a motor vehicle, that is: an Infinity sedan, by
               putting [C.P.] in fear or by using or threatening the use of force
               on [C.P.]
       Appellant’s App. pp. 135-36, 141, 143.


[23]   As an initial matter, we have little trouble concluding that the single larceny

       rule does not apply among the three carjacking charges. The evidence at trial

       established that Dupree, along with his accomplices, collectively stole A.P.’s

       Mitsubishi Spyder, E.P.’s Ford Escape, and C.P.’s Infinity. The Indiana

       Supreme Court has squarely held that the single larceny rule “does not apply to

       the situation … where a robber has taken the individual property of separate

       individuals.” Ferguson v. State, 273 Ind. 468, 475, 405 N.E.2d 902, 906 (1980),

       see also Curtis v. State, 42 N.E.3d 529, 536 (Ind. Ct. App. 2015) (where defendant

       “first robbed Shweiki, in her capacity as an employee of CVS, of property

       belonging to the pharmacy, i.e., the Opana pills [and] then robbed Williams of

       her personal property, i.e., her car keys” that defendant’s actions did not

       constitute a single act of robbery), trans. denied.



       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016     Page 13 of 20
[24]   What remains to be discussed are Dupree’s convictions for robbing A.P. of

       various personal property and then stealing her car. At the very least, the

       robbery of A.P. of currency, accomplished by compelling her, at gunpoint, to

       drive to an ATM and withdraw money, occurred at neither the same place nor

       the same time as the taking of her vehicle. This case cannot be meaningfully

       distinguished from the Indiana Supreme Court’s holding in Bivens v. State, 642

       N.E.2d 928 (Ind. 1994). In Bivens, the defendant, inter alia, pointed a gun at a

       victim in a motel room and took his cash, credit card, and van keys, which was

       parked in the lot of the motel. Id. at 935. Bivens argued that his convictions for

       the thefts of personal property and the van should be merged pursuant to the

       single larceny rule. Id. at 944. The Indiana Supreme Court rejected this

       argument on the basis that the two thefts did not occur in the same place,

       writing, “We decline to deem the [motel] parking lot to be a part of [the

       victim’s] motel room.” Id. at 945. As the Indiana Supreme Court did in Bivens,

       we decline to conclude that the ATM where the money was taken from A.P. is

       the same place as the House, from where her vehicle was taken. We conclude

       that the single larceny rule does not require the vacation of any of Dupree’s

       convictions.1




       1
         Because we conclude that the single larceny rule does not apply due to the multiplicity of victims and/or
       locations, we need not address the State’s alternate argument that the rule does not apply as between the
       robbery and carjacking convictions because they are defined by different statutes. See, e.g., J.R. v. State, 982
       N.E.2d 1037, 1040 (Ind. Ct. App. 2013) (“We conclude that the crimes of theft and auto theft are distinct
       offenses, and J.R.’s true findings for both offenses did not violate the single larceny rule.”), trans. denied.

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016                            Page 14 of 20
                                         II. Double Jeopardy
[25]   Dupree contends, and the State concedes, that the same serious bodily injury,

       i.e., the two gunshot wounds suffered by E.P., was improperly used to enhance

       both a burglary conviction and a robbery conviction to Class A felonies. See,

       e.g., Smith v. State, 872 N.E.2d 169, 177 (Ind. Ct. App. 2007) (“[I]f the same

       bodily injury was used to enhance Smith’s conviction of burglary to a Class A

       felony as was used to enhance his conviction of robbery to a Class A felony,

       entering a judgment of conviction for both counts would be improper.”), trans.

       denied. Moreover, the parties agree that a proper remedy is to reduce Dupree’s

       Class A felony robbery conviction to a Class B felony, with a corresponding

       reduction in Dupree’s sentence. Consequently, we order the reduction of

       Dupree’s conviction under Count XVIII for Class A felony robbery to a Class B

       felony and the reduction of his sentence for that charge from fifty years of

       incarceration to twenty.2


                              III. Appropriateness of Sentence
[26]   Dupree contends that his aggregate sentence, reduced to 218 years due to our

       disposition of Issue II, is inappropriately harsh. We “may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense




       2
         Because the trial court imposed maximum sentences for all of Dupree’s eleven convictions, we are
       confident it would do the same for Count XVIII, even though it has been reduced to a Class B felony.

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016                      Page 15 of 20
       and the character of the offender.” Ind. Appellate Rule 7(B). “Although

       appellate review of sentences must give due consideration to the trial court’s

       sentence because of the special expertise of the trial bench in making sentencing

       decisions, Appellate Rule 7(B) is an authorization to revise sentences when

       certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660

       (Ind. Ct. App. 2006), trans. denied (citations and quotation marks omitted).

       “The defendant has the burden of persuading us that his sentence is

       inappropriate.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).


[27]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. Whether a sentence is inappropriate

       ultimately turns on the culpability of the defendant, the severity of the crime,

       the damage done to others, and myriad other factors that come to light in a

       given case. Id. at 1224. The trial court imposed Dupree’s sentence, which is

       now 218 years, following his convictions for Class A felony criminal deviate

       conduct, Class A felony attempted criminal deviate conduct, two counts of

       Class A felony rape, Class A felony burglary, two counts of Class B felony

       robbery, Class C felony robbery, and three counts of Class B felony carjacking.




       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016   Page 16 of 20
[28]   Dupree concedes the heinous nature of the offenses committed by him and the

       other Defendants, and it is fair to say that Dupree was highly culpable. Over

       the course of two hours, Dupree and the other Defendants terrorized an entire

       family, ransacking their home and taking anything of value they found that was

       not tied down, including three vehicles. Dupree drove the Defendants to the

       House, personally stole the Mitsubishi Spyder, and hid stolen articles at his

       residence. Far worse than the property crimes were the atrocities committed

       against the family members. All three were repeatedly threatened with death,

       C.P. was beaten with a nightstand drawer, E.P. was shot twice and kicked in

       the head, and A.P. and E.P. were forced at gunpoint to withdraw money from

       their bank accounts.


[29]   Finally, E.P. and A.P. were sexually violated in a manner that can only be

       called appalling. E.P. was forced to fellate Anthony to ejaculation after he

       unsuccessfully attempted to anally penetrate her. A.P. was first violated while

       in her bed, when one of the Defendants reached up her sleep shorts to fondle

       her vagina. Dupree was directly involved in the worst of it. After A.P. was

       brought downstairs, Dupree forced her to fellate him while Hill attempted to

       rape her from behind. Dupree told A.P. that if she bit his penis, he would shoot

       her. A.P. was then taken into the next room where she was vaginally raped by

       four of the Defendants in turn, with Dupree going second after unsuccessfully

       attempting to anally penetrate her. As if that were not enough, Anthony

       fondled A.P.’s vagina as she withdrew money from her bank account, which

       she was being forced to do at gunpoint. The nature of the offenses committed


       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016   Page 17 of 20
       by Dupree and the other Defendants is among the most heinous we have

       encountered, fully justifying extremely long sentences for all of the Defendants,

       including the 218-year sentence given to Dupree.


[30]   Dupree’s character also justifies his lengthy sentence. Dupree, twenty-three at

       the time of the instant offenses, had a violent and related criminal history. In

       2010, Dupree was convicted of two counts of Class B felony robbery and two

       counts of Class B felony criminal confinement after forcing two victims to drive

       to a bank while he was armed with a handgun. In 2013, Dupree was charged

       with methamphetamine and marijuana possession. Dupree was in re-entry

       court for the 2010 convictions and on bond for the 2013 charges when he

       committed the present offenses. Defendant’s long history of illegal substance

       abuse also reflects poorly on his character. Dupree began drinking at a young

       age, smoked marijuana daily, ingested cocaine at least once a week, and abused

       prescription drugs and Spice. Dupree has been offered treatment, even

       “successfully” completing one program in 2012, to no apparent avail.


[31]   Although Dupree expressed remorse for his crimes, the record indicates that he

       has not fully taken responsibility for them. Dupree denied participation in the

       rape of A.P. Dupree indicated that the he and the other Defendants decided to

       commit the instant offenses for money but that “stuff just got out of hand.”

       Appellant’s App. p. 363. Dupree indicated that his judgment on that morning

       had been clouded by his voluntary alcohol and drug intoxication, and that he

       did what he did because he was “‘high’” and “‘in the moment’” with his

       “‘adrenaline pumping.’” Appellant’s App. p. 363. An evaluation pursuant to

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016   Page 18 of 20
       the Indiana Risk Assessment System indicated that Dupree was in the “VERY

       HIGH risk category to reoffend.” Appellant’s App. p. 364. Dupree’s character

       also justifies his lengthy sentence.


[32]   Dupree compares his case to Corbally v. State, 5 N.E.3d 463 (Ind. Ct. App.

       2014), in which the defendant’s 270-year sentence was determined to be

       inappropriate. Id. at 471. To the extent that comparing the facts in two

       different cases, each with unique facts, is ever useful, such a comparison does

       not help Dupree here. Although Corbally involved multiple sexual offenses,

       they were all committed by one person against one victim. Id. at 466-67. Here,

       a total of six Defendants terrorized three victims for two hours, including

       numerous sexual assaults committed by five of the Defendants against mother

       and daughter. The facts of this case are not anywhere close enough to those in

       Corbally to justify applying its reasoning here.


                                                Conclusion
[33]   We conclude that the single larceny rule does not require the vacation of any of

       Dupree’s convictions. However, we agree with Dupree, as does the State, that

       prohibitions against double jeopardy require the reduction of his Class A felony

       robbery conviction to a Class B felony, with a corresponding reduction of his

       sentence for that offense from fifty to twenty years. Finally, we conclude that

       Dupree’s 218-year aggregate sentence is appropriate in light of the nature of his

       offenses and his character.




       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016   Page 19 of 20
[34]   We affirm the judgment of the trial court in part, reverse in part, and remand

       with instructions to reduce Dupree’s Class A felony robbery conviction to a

       Class B felony and reduce his aggregate sentence to 218 years of incarceration.

       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1505-CR-439 | March 24, 2016   Page 20 of 20
