                                                                        FILED
                                                                   May 09 2019, 8:59 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Bruce W. Graham                                           Curtis T. Hill, Jr.
Graham Law Firm P.C.                                      Attorney General of Indiana
Lafayette, Indiana
                                                          Ellen H. Meilaender
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Loren David Gary,                                         May 9, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2067
        v.                                                Appeal from the Tippecanoe
                                                          Circuit Court
State of Indiana,                                         The Honorable Sean M. Persin,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          79C01-1711-F1-6



May, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2067 | May 9, 2019                             Page 1 of 12
[1]   Loren David Gary appeals his convictions of Level 1 felony attempted murder, 1

      Level 5 felony intimidation, 2 and Level 6 felony intimidation. 3 He presents

      multiple issues, which we consolidate and restate as:


                 1. Whether the State presented sufficient evidence Gary
                 committed Level 1 felony attempted murder and Level 6 felony
                 intimidation, and


                 2. Whether Gary’s convictions of Level 1 felony attempted
                 murder and Level 5 felony intimidation subject him to double
                 jeopardy.


      We reverse and remand in part and affirm in part.



                               Facts and Procedural History                                4




[2]   Sometime in October 2017, Gary moved in with his nephew, Jeramy Deboise,

      Jeramy’s girlfriend, and Jeramy’s infant daughter. On the evening of

      November 4, 2017, Gary drank to intoxication. Gary was peaceful at first, but

      then left the house to go to the garage. While in the garage, he called his sister,

      Tamara Beard, who is Jeramy’s mother, and told her he was “going to shoot




      1
          Ind. Code § 35-41-5-1 (2014) (attempt); Ind. Code § 35-42-1-1 (2014) (murder).
      2
          Ind. Code § 35-45-2-1(b)(2) (2017).
      3
          Ind. Code § 35-45-2-1(b)(1) (2017).
      4
       We held oral argument in this matter on March 21, 2019, at Indiana University East in Richmond, Indiana.
      We thank University staff for their hospitality and counsel for their able presentations.

      Court of Appeals of Indiana | Opinion 18A-CR-2067 | May 9, 2019                              Page 2 of 12
      Jeramy in the shoulder and [she] can figure the rest of it out.” (Tr. Vol. II at

      97.) Tamara called Jeramy to tell him what Gary said and then she called 911.


[3]   Jeramy confronted Gary and asked him if anything was wrong. Gary replied

      “fuck yeah” and “looked quite angry.” (Id. at 106.) Gary told Jeramy that he

      “was going to grab the gun and shoot [him] in the shoulder.” (Id.) Gary then

      walked into a back room, and Jeramy heard “something that sounded like a

      gun cocking.” (Id. at 107.) Jeramy gathered his girlfriend and infant daughter,

      and they ran out of the house. Upon arriving at a neighbor’s house, Jeramy

      called Tamara and 911.


[4]   Tippecanoe County Sheriff’s Lieutenant Travis Dowell was dispatched to the

      scene and arrived in a police-issued Dodge Ram truck with Sheriff’s Office

      decals on the side. Lieutenant Dowell did not turn on the truck’s lights or siren

      because he did not “want the person in the house if they’re that agitated to get

      more agitated . . . [and also] not to alert the suspect that we were coming.” (Id.

      at 156.) Upon his arrival at the scene, Lieutenant Dowell observed Gary hiding

      behind a car. He exited his vehicle and yelled “show me your hands.” (Id. at

      157.)


[5]   Gary fired a shot that hit the front license plate holder on Lieutenant Dowell’s

      truck. Lieutenant Dowell ducked behind the truck door and then moved to the

      rear of the truck for cover. Several times Lieutenant Dowell ordered Gary to

      drop the weapon, but Gary did not do so. Instead Gary positioned himself over

      the trunk of a car with his gun pointed at Lieutenant Dowell. At some point,


      Court of Appeals of Indiana | Opinion 18A-CR-2067 | May 9, 2019           Page 3 of 12
      Gary’s gun jammed. Lieutenant Dowell then got into position to return fire,

      and Gary threw his gun on the ground and raised his arms. Other officers, who

      arrived shortly thereafter, arrested Gary. The entire incident was captured on

      Lieutenant Dowell’s dashboard camera.


[6]   The State charged Gary with Level 1 felony attempted murder, Level 5 felony

      attempted battery, 5 Level 5 felony intimidation, Level 6 felony pointing a

      firearm, 6 Level 6 felony criminal recklessness, 7 and Level 6 felony intimidation.

      The State also sought a sentencing enhancement for the use of a firearm in the

      crime. 8 Following a jury trial on all but the sentencing enhancement allegation,

      Gary was found guilty of all charges. The trial court then held a bench trial on

      the State’s request for a sentencing enhancement based on the use of a firearm

      in the crime and determined Gary had used a firearm in the commission of the

      crime. The trial court vacated the attempted battery, pointing a firearm, and

      criminal recklessness convictions on double jeopardy grounds. On August 10,

      2018, the trial court sentenced Gary to thirty-three years for attempted murder,

      four years for the Level 5 felony intimidation conviction enhanced by five years

      for the use of a firearm, and two years for the Level 6 felony intimidation

      conviction. The attempted murder and enhanced Level 5 felony intimidation




      5
          Ind. Code § 35-41-5-1 (2014) (attempt); Ind. Code § 35-42-2-1(h) (2017).
      6
          Ind. Code § 35-47-4-3(b) (2014).
      7
          Ind. Code § 35-42-2-2(b)(1) (2014).
      8
          Ind. Code § 35-50-2-11 (2016).


      Court of Appeals of Indiana | Opinion 18A-CR-2067 | May 9, 2019                Page 4 of 12
      sentences were to be served concurrently, but consecutive to the Level 6 felony

      intimidation sentence for an aggregate sentence of thirty-five years, with three

      years suspended to probation.



                                 Discussion and Decision
                                       Sufficiency of Evidence
[7]   When reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the

      credibility of the witnesses or reweigh the evidence in determining whether the

      evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

      is appropriate only when no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

      required to overcome every reasonable hypothesis of innocence and is sufficient

      if an inference reasonably may be drawn from it to support the verdict. Id. at

      147.


                                    Level 1 Felony Attempted Murder

[8]   The statutes suggest that, to prove Gary committed Level 1 felony attempted

      murder, the State had to demonstrate only that Gary “act[ed] with the

      culpability required for commission” of murder and “engag[ed] in conduct that


      Court of Appeals of Indiana | Opinion 18A-CR-2067 | May 9, 2019          Page 5 of 12
       constitute[ed] a substantial step toward commission of the crime.” See Ind.

       Code § 35-41-5-1 (2014) (elements of attempt). Murder is defined as

       “knowingly or intentionally kill[ing] another human being[.]” Ind. Code § 35-

       42-1-1(1) (2017). However, our Indiana Supreme Court long ago held that, for

       a person to be convicted of attempted murder, “the State must prove beyond a

       reasonable doubt that the defendant [acted] with intent to kill the victim.”

       Sprandlin v. State, 569 N.E.2d 948, 950 (Ind. 1991).


[9]    In Richeson v. State, 704 N.E.2d 1008, 1010 (Ind. 1998), our Indiana Supreme

       Court clarified the holding in Sprandlin:


               In many attempted murder cases, however, the victim, the result,
               or both, are more difficult to ascertain. A drive-by shooting is the
               paradigm problematic attempted murder case. In such cases it is
               often unclear whether the defendant intended to murder or to
               batter, whether he knew of a high probability of death or a
               touching, or whether he simply recklessly disregarded either.
               Such ambiguity carries with it the risk that the jury will fail to
               distinguish between levels of culpability, imposing a penalty for
               reckless actions, rather than for intentional or knowing ones. In
               order to ensure that juries sort out the higher level of culpability
               in attempted murder prosecutions, we construed the attempt
               statute in Spradlin to require proof that the defendant intended
               death.


[10]   Finally, in Ramsey v. State, 723 N.E.2d 869 (Ind. 2000), our Indiana Supreme

       Court reaffirmed the holding in Sprandlin and harkened back to an earlier

       opinion in noting:




       Court of Appeals of Indiana | Opinion 18A-CR-2067 | May 9, 2019           Page 6 of 12
               The attempt must be to effect the proscribed result and not
               merely to engage in proscribed conduct. An instruction which
               correctly sets forth the elements of attempted murder requires an
               explanation that the act must have been done with the specific
               intent to kill.


       Ramsey, 723 N.E.2d at 871 (quoting Smith v. State, 459 N.E.2d 355, 358 (Ind.

       1984)).


[11]   Gary argues the State did not present evidence he “maintained specific intent to

       kill Lieutenant Dowell.” (Br. of Appellant at 14.) Accordingly, Gary asserts,

       he could not be convicted for attempted murder. We disagree.


[12]   In Corbin v. State, 840 N.E.2d 424 (Ind. Ct. App. 2006), we summarized existing

       precedent regarding the State’s burden in presenting evidence of intent in an

       attempted murder case:


               Intent to kill may be inferred from the use of a deadly weapon in
               a manner likely to cause death or great bodily injury, in addition
               to the nature of the attack and circumstances surrounding the
               crime. Gall v. State, 811 N.E.2d 969, 975 (Ind. Ct. App. 2004). . .
               . Further, our supreme court held that discharging a weapon in
               the direction of a victim is substantial evidence from which the
               jury could infer intent to kill. Leon v. State, 525 N.E.2d 331, 332
               (Ind. 1988).


       Id. at 429. Here, Gary called his sister to tell her he intended to shoot Jeramy,

       then acted angrily and aggressively towards Jeramy to the extent that Jeramy

       fled the house with his family. When Lieutenant Dowell arrived on the scene,

       Gary was already positioned behind a car in the driveway, which indicates he


       Court of Appeals of Indiana | Opinion 18A-CR-2067 | May 9, 2019             Page 7 of 12
       was preparing for a confrontation. Gary fired a shot at Lieutenant Dowell after

       Lieutenant Dowell exited his marked police vehicle and commanded Gary to

       show him his hands. Evidence at trial indicated the bullet, had it not hit the

       license plate, likely would have struck Lieutenant Dowell. Finally, Gary did

       not surrender to Lieutenant Dowell until his gun jammed and Lieutenant

       Dowell assumed a defensive shooting stance. Considering the nature and

       circumstances surrounding the attack, along with the fact Gary fired a deadly

       weapon toward Lieutenant Dowell, we conclude the State presented sufficient

       evidence of Gary’s intent to kill. See Perez v. State, 872 N.E.2d 208, 213-4 (Ind.

       Ct. App. 2007) (discharging a weapon in the direction of the victim coupled

       with related circumstances sufficient to prove intent to kill in an attempted

       murder case), trans. denied.


                                         Level 6 Felony Intimidation

[13]   To prove Gary committed Level 6 felony intimidation against Jeramy, the State

       had to demonstrate Gary communicated a threat to commit a forcible felony

       against Jeramy with the intent that Jeramy engage in conduct against his will or

       “be placed in fear of retaliation for a prior lawful act[.]” Ind. Code § 35-45-2-

       1(b)(1) (2017). Gary concedes he threatened Jeramy but argues the State did

       not present sufficient evidence that he did so with (1) the intent to place Jeramy

       in fear of retaliation for a prior lawful act or (2) to get Jeramy to engage in

       conduct against his will.


[14]   Gary directs us to Jeramy’s testimony at trial to support his argument:


       Court of Appeals of Indiana | Opinion 18A-CR-2067 | May 9, 2019             Page 8 of 12
               [State]:     Prior to your uncle [Gary] telling you that he was
               going to shoot you in the shoulder I think you said had [sic] you
               and your uncle had any verbal altercations that evening at all?


               [Jeramy]:         No.


               [State]:          And had you made any threats against him that
               evening?


               [Jeramy]:         No.


       (Tr. Vol. II at 111.) Gary asserts that exchange indicates Jeramy “didn’t even

       know that he was being intimidated.” (Br. of Appellant at 23.)


[15]   However, the State directs us to Gary’s statements during closing argument

       wherein he admitted he committed Level 6 felony intimidation against Jeramy:


               [Defense]: Did he communicate a threat to his nephew? Yes,
               he did. Did he place him in fear? He did. Was [it] a threat to
               commit a forcible felony? Yeah, I’m going to shoot you in the
               shoulder. Okay. The state’s proved that, no defense, no dispute.
               . . . I believe that intimidation on Count 6 on Mr. Deboise has
               been proven. . . . We ask that you return a not guilty verdict on
               all counts but . . . the intimidation of Jeramy Debois [sic][.]


       (Tr. Vol. III at 22, 24.)


[16]   “Under the invited error doctrine, a party may not take advantage of an error

       that he commits, invites, or which is the natural consequence of his own neglect

       or misconduct.” Stewart v. State, 945 N.E.2d 1277, 1285 (Ind. Ct. App. 2011),

       trans. denied. Here, Gary asked the jury to return a guilty verdict on the Level 6

       Court of Appeals of Indiana | Opinion 18A-CR-2067 | May 9, 2019             Page 9 of 12
       felony intimidation charge and conceded that the State had carried its burden to

       present evidence to prove he committed the crime. Under the invited error

       doctrine, he cannot now argue the State’s evidence was insufficient. See

       Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014) (“invited error precludes relief

       from counsel’s strategic decisions gone awry”), reh’g denied, cert. denied 135 S.

       Ct. 970 (2015), reh’g denied 135 S. Ct. 1534 (2015).


                                                  Double Jeopardy
[17]   Article 1, Section 14 of the Indiana Constitution provides that “no person shall

       be put in jeopardy twice for the same offense.” Two or more offenses are the

       same 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). 9 Gary contends his

       simultaneous convictions for Level 5 felony intimidation against Lieutenant

       Dowell and Level 1 felony attempted murder of Lieutenant Dowell violate his

       right to free of double jeopardy under the actual evidence test. We agree.


[18]   Here, the State presented evidence Gary pointed his gun at Lieutenant Dowell,

       fired the gun hitting the license plate on the officer’s vehicle, and continued to

       point the gun at Lieutenant Dowell until the gun jammed and Lieutenant




       9
         The holding in Richardson was modified by Garrett v. State, 992 N.E.2d 710 (Ind. 2013). However, Garrett
       further clarified the holding in Richardson as it applied to retrial after an acquittal, which is not at issue in this
       case. Id. at 723.

       Court of Appeals of Indiana | Opinion 18A-CR-2067 | May 9, 2019                                         Page 10 of 12
       Dowell assumed a defensive stance to return fire. Because it is possible that

       some or all of that evidence could also be used to prove Gary intimidated

       Lieutenant Dowell, we conclude Gary’s convictions of both violate his right

       against double jeopardy. See Curry v. State, 740 N.E.2d 162, 166-7 (Ind. Ct.

       App. 2000) (holding violation of double jeopardy based on actual evidence test

       in an incident involving a “single incident of brutality”), trans. denied. We

       accordingly vacate Gary’s Level 5 felony conviction of intimidation of

       Lieutenant Dowell. 10



                                                 Conclusion
[19]   The State presented sufficient evidence Gary committed Level 1 felony

       attempted murder. Gary conceded at trial that he committed Level 6 felony

       intimidation, and thus any insufficiency of evidence argument is precluded by

       the invited error doctrine. However, the trial court subjected Gary to double

       jeopardy when it convicted him of both Level 1 felony attempted murder and

       Level 5 felony intimidation because the jury reasonably could have relied upon

       the same evidence to convict Gary on both counts. Therefore, we vacate

       Gary’s conviction of Level 5 felony intimidation, remand for reallocation of the




       10
         Gary also argues the State did not present sufficient evidence he committed Level 5 felony intimidation of
       Lieutenant Dowell. That issue is, however, moot because we vacate the conviction on double jeopardy
       grounds.

       Court of Appeals of Indiana | Opinion 18A-CR-2067 | May 9, 2019                                Page 11 of 12
       gun enhancement, and summarily affirm the remainder of the trial court’s

       decision.


[20]   Reversed and remanded in part; affirmed in part.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2067 | May 9, 2019     Page 12 of 12
