                                                                    Jun 17 2015, 8:12 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Leanna Weissmann                                           Gregory F. Zoeller
Lawrenceburg, Indiana                                      Attorney General of Indiana
                                                           J.T. Whitehead
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Gerald A. Kemper,                                         June 17, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          15A01-1408-CR-340
        v.                                                Appeal from the Dearborn Circuit
                                                          Court.
                                                          The Honorable James D. Humphrey,
State of Indiana,                                         Judge.
Appellee-Plaintiff                                        Cause No. 15C01-1207-FB-35




Baker, Judge.




Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015                    Page 1 of 14
[1]   Gerald Kemper appeals his convictions and sentences for Robbery Resulting in

      Bodily Injury,1 a class B felony, Conspiracy to Commit Robbery While Armed

      with a Deadly Weapon,2 a class B felony, and Unlawful Possession of a

      Firearm by a Serious Violent Felon,3 a class B felony. Finding that the State

      presented insufficient evidence from which a reasonable jury could conclude

      that Kemper and Malik Abdullah conspired to commit robbery, we reverse

      Kemper’s conviction and sentence for conspiracy to commit robbery while

      armed with a deadly weapon. In all other respects, we affirm.


                                                      Facts
[2]   On July 17, 2012, Kemper met Abdullah at the Hollywood Casino in

      Lawrenceburg. The two later drove to a bar in Abdullah’s hometown of Forest

      Park, Ohio. Abdullah went home after this, but allowed Kemper to continue to

      use his vehicle. Kemper returned to Abdullah’s house at around three o’clock

      in the morning on July 18, 2012. Although the two did not discuss where they

      were going, Kemper proceeded to drive back to Lawrenceburg.


[3]   Once back in Lawrenceburg, Kemper slowed the vehicle as he passed a BP

      station. He initially drove past the BP station and continued to drive around




      1
          Ind. Code § 35-42-5-1.
      2
          I.C. § 35-42-5-1; Ind. Code § 35-41-5-2.
      3
          Ind. Code § 35-47-4-5.


      Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015   Page 2 of 14
      the area. However, he eventually returned to the BP station and parked the

      vehicle. Kemper then tied a black t-shirt around his head and removed a gun

      from his pocket. Abdullah, who was in the passenger’s seat, “was in shock” as

      he watched Kemper exit the vehicle and proceed toward the BP station. Tr. p.

      201. Abdullah remained in the car and eventually moved to the driver’s seat,

      preparing to drive away.


[4]   Kemper entered the BP station and aimed his gun at James Lafollette, who was

      working behind the counter that morning. Kemper demanded that Lafollette

      give him the money in the register. Lafollette froze in fear and did not respond

      for a few seconds. Kemper then aimed the gun at Lafollette’s leg and shot him

      in the thigh. Kemper continued to demand money from Lafollette, who at this

      point opened the register and told Kemper to take it. Kemper took the money

      and left the BP station. Lafollette called 911.


[5]   Upon leaving the station, Kemper was spotted by Jack Morgan, a newspaper

      delivery man. Morgan watched as Kemper returned to Abdullah’s vehicle.

      Thinking Kemper looked suspicious, Morgan called 911 and followed

      Abdullah’s vehicle as it drove away. He continued to follow the vehicle as it

      went onto US 50 and accelerated to around 90 or 100 miles per hour. Morgan

      eventually saw a police vehicle approaching him and pulled over. As he pulled

      over, Morgan watched Abdullah’s vehicle continue on US 50.


[6]   Abdullah soon noticed police vehicles with their lights on headed in the

      opposite direction. He turned onto I-275 in an attempt to evade them.


      Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015   Page 3 of 14
      However, fearing an eventual shootout with the police, Abdullah quickly

      decided to drive off the road and into the woods by the side of the interstate.

      The vehicle crashed through a fence and some trees and eventually came to a

      stop. Kemper then jumped out of the vehicle and ran off into the woods.


[7]   Abdullah remained in the vehicle until sunrise. By this point, he had received

      several phone calls from Kemper telling him to get out of the area. Abdullah

      exited the vehicle and proceeded to walk toward US 50. Kemper phoned

      Abdullah again and told him to stay out of the open. Abdullah was eventually

      pulled over by police as he walked down US 50.


[8]   The State filed an initial charge on July 14, 2012, against Abdullah and “John

      Doe,” as the investigation had not yet led to Kemper. However, police later

      identified Kemper through discovery of the gun used to commit the crime and a

      search of Abdullah’s vehicle and cell phone. The State amended its initial

      charge to include Kemper, charging him with robbery resulting in bodily injury,

      robbery while armed with a deadly weapon, conspiracy to commit robbery

      while armed with a deadly weapon, aggravated battery, and unlawful

      possession of a firearm by a serious violent felon. Prior to trial, Abdullah

      entered into a plea agreement with the State in which he pleaded guilty to

      conspiracy to commit robbery.


[9]   Kemper’s jury trial began on May 7, 2014. During trial, the defense learned

      that the State had in its possession a videotaped interview with Jack Morgan in

      which Morgan identified someone other than Kemper as the robber. The


      Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015   Page 4 of 14
       defense argued that it had never been given a copy of this interview and moved

       for a mistrial. The prosecution maintained that it had sent the defense a copy.

       The trial court denied the motion, allowing the defense time to view the

       videotaped interview and use it to impeach Morgan’s testimony. The trial

       concluded on May 14, 2014, and the jury found Kemper guilty as charged.


[10]   The trial court vacated Kemper’s convictions for robbery while armed with a

       deadly weapon and aggravated battery on double jeopardy grounds. Kemper

       remained convicted of robbery resulting in bodily injury, conspiracy to commit

       robbery while armed with a deadly weapon, and unlawful possession of a

       firearm by a serious violent felon. The trial court then sentenced Kemper to

       twenty-year consecutive terms for each of these remaining convictions, resulting

       in an aggregate sentence of sixty years. Kemper now appeals.


                                     Discussion and Decision
[11]   Kemper challenges his convictions on several grounds. He argues that the trial

       court erred in denying his motion for a mistrial. He also maintains that the

       State presented insufficient evidence to sustain his convictions and that his

       convictions violate double jeopardy principles. Finally, Kemper argues that his

       sentence is inappropriate in light of the nature of the offenses and his character.


                                        I. Motion for Mistrial
[12]   During trial, Jack Morgan identified Kemper as the passenger in Abdullah’s car

       on the morning of the crime. After Morgan’s in-court identification, the

       defense became aware that the State was in possession of two videotaped

       Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015   Page 5 of 14
       interviews of Morgan. One of the interviews was conducted on the date of the

       crime and the other was conducted approximately ten days later. During the

       second interview, Morgan was shown a photo lineup and appeared to

       misidentify both the driver and the passenger of Abdullah’s vehicle on the

       morning of the robbery. Tr. p. 432. The defense argued that it had not been

       given a copy of the videotaped interviews and moved for a mistrial.


[13]   The trial court denied Kemper’s motion for mistrial, finding no intentional

       misconduct on the part of the State. The trial court allowed the defense

       additional time to review the interviews and instructed the State to make

       Morgan available for further cross-examination should the defense wish to

       question him. Kemper argues that, despite these measures, he was irreparably

       prejudiced because he was not aware of Morgan’s misidentification when

       Morgan was originally cross-examined.


[14]   The granting of a mistrial lies within the sound discretion of the trial court and

       we will reverse only upon a showing of an abuse of discretion. Lucio v. State,

       907 N.E.2d 1008, 1010 (Ind. 2009). The granting of a mistrial is an extreme

       remedy that is warranted only when no other action can be expected to remedy

       the situation. Id. at 1010-11. “The overriding concern is whether the defendant

       was so prejudiced that he was placed in a position of grave peril.” Id. at 1010

       (quotations omitted).


[15]   Here, the trial court could not determine whether the defense had in fact

       received a copy of the videotaped interviews. However, it did find that the


       Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015   Page 6 of 14
       State had not intentionally withheld the interviews. The trial court sought to

       remedy the situation by allowing the defense time to review the interviews,

       instructing the State to make Morgan available for further cross-examination,

       and allowing the defense to show the interviews to the jury—which the defense

       did. Tr. p. 539. We believe that, under these circumstances, the trial court’s

       actions served as an effective remedy and that Kemper was not placed in a

       position of grave peril. Consequently, we cannot say that the trial court abused

       its discretion in denying Kemper’s motion for mistrial.


                                II. Sufficiency of the Evidence
[16]   When reviewing the sufficiency of the evidence to support a conviction, we will

       neither reweigh the evidence nor assess the credibility of the witnesses. Moore v.

       State, 27 N.E.3d 749, 754 (Ind. 2015). We will consider only the probative

       evidence and reasonable inferences that support the verdict. Id. We will affirm

       unless no reasonable fact finder could find the elements of the crime proven

       beyond a reasonable doubt. Id.


[17]   Initially, Kemper makes several arguments that amount to no more than a

       request that we reweigh the evidence and judge the credibility of the witnesses.

       Appellant’s Br. p. 17-24. Particularly, Kemper questions the reliability and

       motivations of those who testified at trial, including Morgan and Abdullah. 4 Id.



       4
         On pages seventeen through twenty-four of his brief, Kemper questions the reliability of testimony of three
       of the State’s witnesses. Kemper presents this as a sufficiency argument related to all convictions. However,
       even if we were able to entertain such arguments, because Kemper has failed to indicate how his arguments
       relate to the sufficiency of the evidence as to the elements of any particular conviction, we find that he has

       Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015                           Page 7 of 14
       We reiterate that the jury is the sole judge of a witness’s credibility. Wright v.

       State, 12 N.E.3d 314, 319-20 (Ind. Ct. App. 2014). Consequently, we may not

       entertain such arguments on appeal.


[18]   Kemper next focuses on the sufficiency of the evidence used to prove that he

       and Abdullah conspired to commit robbery. The crime of conspiracy to

       commit a felony has three elements: (1) the intent to commit a felony, (2) an

       agreement with another person to commit a felony, and (3) an overt act in

       furtherance of the agreement, performed by either the defendant or the person

       with whom the defendant has entered into the agreement. I.C. § 35-41-5-2;

       Owens v. State, 929 N.E.2d 754, 756 (Ind. 2010). Kemper argues that the State

       presented no evidence from which the jury could conclude that he and

       Abdullah agreed to commit robbery.


[19]   To prove conspiracy, “‘there must be evidence to prove the agreement directly,

       or such a state of facts that an agreement may be legally inferred.’” Frias v.

       State, 547 N.E.2d 809, 812 (Ind. 1989) (quoting Robertson v. State, 231 Ind. 368,

       370, 108 N.E.2d 711, 712 (1952)). The State is not required to prove the

       existence of an express agreement. Porter v. State, 715 N.E.2d 868, 870 (Ind.

       1999). “‘It is sufficient if the minds of the parties meet understandably to bring




       waived such arguments for failure to adequately present the issues and support his arguments with cogent
       reasoning. Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015                         Page 8 of 14
       about an intelligent and deliberate agreement to commit the offense.’” Id. at

       870-71 (quoting Williams v. State, 274 Ind. 94, 96, 409 N.E.2d 571, 573 (1980)).


[20]   The State argues that it presented sufficient circumstantial evidence from which

       an agreement could be reasonably inferred. The State points to the fact that

       Kemper and Abdullah arrived at the BP station in the same vehicle and that

       Abdullah drove Kemper away from the scene. Appellee’s Br. p. 19. The State

       also points out that the two exchanged text messages with each other

       throughout the evening and that, after the crime was committed, Kemper

       “delivered instructions to Abdullah on how to evade capture.” Id.


[21]   We do not believe that a reasonable jury could have inferred the existence of an

       agreement from this evidence. Although the State presented evidence that the

       two exchanged text messages on the night of the robbery, these messages

       indicate nothing more than that the two planned to meet. State’s Ex. 29.

       Furthermore, Kemper’s calls to Abdullah telling him to get out of the vehicle

       after the two had crashed into the woods do not tend to indicate the existence of

       a prior agreement. If anything, the chaotic manner in which the two escaped

       indicates a lack of planning and, therefore, a lack of agreement.


[22]   We also note Abdullah’s testimony that he was not aware that Kemper planned

       on robbing the BP station until Kemper pulled a gun out of his pocket and

       exited the car. Tr. p. 201-02. This testimony was uncontradicted. The State

       argues that the jury was free to disregard this testimony. Appellee’s Br. p. 20.

       This is certainly true. However, while the jury was free to disregard any


       Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015   Page 9 of 14
       evidence pointing against the existence of an agreement, it was left with

       insufficient evidence pointing to the existence of an agreement. We find that,

       from the evidence presented, a reasonable jury could not conclude beyond a

       reasonable doubt that Kemper and Abdullah had agreed to rob the BP station.


[23]   The State next argues that the jury could infer that the two had agreed to

       commit the robbery from the fact that Abdullah pleaded guilty to the crime of

       conspiracy and testified that he had done so. In addition to Abdullah’s

       testimony, the guilty plea itself was also entered into evidence. The State

       argues that, once the jury was aware that Abdullah had pleaded guilty to

       conspiracy to commit robbery, “[a]ll that would have remained for the jury to

       answer would be the question: with whom?” Id. at 19.


[24]   This Court has previously determined that a coconspirator’s plea of guilty is not

       admissible as substantive evidence of the defendant’s guilt. This Court has

       explained:

               “From the common sense point of view a plea of guilty by an alleged
               fellow conspirator is highly relevant upon the question of the guilt of
               another alleged conspirator. If A’s admission that he conspired with B
               is believed, it is pretty hard to avoid the conclusion that B must have
               conspired with A. This is one of the cases, therefore, where evidence
               logically probative is to be excluded because of some countervailing
               policy. There are many such instances in the law. See 4 Wigmore,
               Evidence § 1171 et seq. (3d ed. 1940).
               “The foundation of the countervailing policy is the right of every
               defendant to stand or fall with the proof of the charge made against
               him, not against somebody else. Acquittal of an alleged fellow
               conspirator is not evidence for a man being tried for conspiracy. So,
               likewise, conviction of an alleged fellow conspirator after a trial is not

       Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015          Page 10 of 14
               admissible as against one now being charged. The defendant had a
               right to have his guilt or innocence determined by the evidence
               presented against him, not by what has happened with regard to a
               criminal prosecution against someone else.”

       Berridge v. State, 168 Ind. App. 22, 32, 340 N.E.2d 816, 822-23 (1976) (quoting

       U.S. v. Toner, 173 F.2d 140, 142 (3rd Cir. 1949)).


[25]   In this case, Abdullah’s guilty plea was entered into evidence and Abdullah was

       called to testify. During his testimony, Abdullah acknowledged that he had

       pleaded guilty to conspiracy. Tr. p. 178-79. However, after acknowledging his

       plea, Abdullah did not go on to testify that he was, in fact, involved in a

       conspiracy. Particularly, he did not testify that he and Kemper had agreed to

       rob the BP station. In fact, Abdullah’s testimony indicates that there was no

       such agreement. Tr. p. 201-02. Therefore, the jury was left with only

       Abdullah’s guilty plea, and his acknowledgment of that plea, from which to

       infer the existence of a conspiracy.


[26]   For the above-mentioned reasons, Abdullah’s plea of guilty cannot be

       considered as substantive evidence as to any element of the conspiracy charge

       brought against Kemper. As the remaining evidence was insufficient to allow a

       jury to conclude beyond a reasonable doubt that Kemper and Abdullah had




       Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015    Page 11 of 14
       agreed to rob the BP station, Kemper’s conviction for conspiracy to commit

       robbery while armed with a deadly weapon must be vacated.5


                             III. Appropriateness of Sentence
[27]   Kemper next challenges the appropriateness of his sentence. Under Indiana

       Appellate Rule 7(B), “[t]he Court 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 and the character

       of the offender.” The burden is on the defendant to persuade us that his

       sentence is inappropriate. Estrada v. State, 969 N.E.2d 1032, 1047 (Ind. Ct.

       App. 2012).


[28]   Kemper was convicted of robbery resulting in bodily injury, conspiracy to

       commit robbery while armed with a deadly weapon, and unlawful possession of

       a firearm by a serious violent felon. At the time Kemper committed these

       offenses, they were all class B felonies, which carry a potential sentence of six to

       twenty years, with an advisory sentence of ten years. Ind. Code § 35-50-2-5.

       Kemper was sentenced to the maximum term of twenty years on all counts and

       all sentences were ordered to be served consecutively, resulting in a total

       sentence of sixty years. Because we have determined that Kemper’s conviction




       5
        Kemper makes two double jeopardy arguments that both relate to his conspiracy conviction. Appellant’s
       Br. p. 31. Because we have determined that Kemper’s conviction for conspiracy cannot stand, we need not
       address these arguments. Nor do we need to address Kemper’s argument that the State presented insufficient
       evidence to support his conviction for aggravated battery, as the trial court has already vacated this
       conviction. Id. at 26; Appellant’s App. p. 352.

       Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015                      Page 12 of 14
       and sentence for conspiracy to commit robbery while armed with a deadly

       weapon must be vacated, we analyze the appropriateness of Kemper’s total

       sentence of forty years for his two remaining class B felony convictions.


[29]   Kemper focuses primarily on the consecutive nature of his sentences.

       Appellant’s Br. p. 35. The decision to impose consecutive sentences rests

       within the discretion of the trial court. Parks v. State, 513 N.E.2d 170, 172 (Ind.

       1987). A trial court may impose consecutive sentences if warranted by the

       aggravating circumstances. Monroe v. State, 886 N.E.2d 578, 579 (Ind. 2008).

       However, “before a trial court can impose a consecutive sentence, it must

       articulate, explain, and evaluate the aggravating circumstances that support the

       sentence.” Id. at 580.


[30]   Regarding the nature of the offense, the trial court noted that Kemper shot

       Lafollette, who had offered no resistance and was completely helpless, “within

       a few seconds after confronting him and for no apparent reason.” Appellant’s

       App. p. 348. Regarding Kemper’s character, the trial court found that, prior to

       the instant case, Kemper had at least five felony convictions, including breaking

       and entering, carrying a concealed weapon, having weapons under disability,

       and two convictions for aggravated burglary. The trial court found it significant

       that Kemper had two prior offenses involving the use or possession of firearms.

       This led it to conclude that there was a significant danger that Kemper would

       commit future crimes. The trial court found no mitigating factors and

       determined that the aggravating factors were sufficient to justify enhanced

       sentences running consecutively. Id. at 350.

       Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015   Page 13 of 14
[31]   In light of the aggravating factors present in this case, as well as the complete

       lack of mitigating factors, we do not believe that Kemper’s enhanced

       consecutive sentences for robbery resulting in bodily injury and unlawful

       possession of a firearm by a serious violent felon are inappropriate. The

       aggravating factors before the trial court were substantial and indicate a total

       lack of respect for the law on Kemper’s part. We agree with the trial court’s

       conclusion that Kemper’s history of crimes involving firearms suggests that he

       is likely to commit violent crimes in the future. Accordingly, we cannot say

       that Kemper’s total sentence of forty years is inappropriate in light of the nature

       of the offenses and his character.


[32]   The judgment of the trial court is reversed and remanded with instructions to

       vacate Kemper’s conviction and sentence for conspiracy to commit robbery

       while armed with a deadly weapon. The judgment of the trial court as to

       Kemper’s convictions and sentences for robbery resulting in bodily injury and

       unlawful possession of a firearm by a serious violent felon is affirmed.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015    Page 14 of 14
