                                                                                FILED
                                                                            Oct 11 2019, 9:13 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Darren Bedwell                                             Curtis T. Hill, Jr.
      Indianapolis, Indiana                                      Attorney General of Indiana

                                                                 Samantha M. Sumcad
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kameron Wesley Martin,                                     October 11, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-183
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Mark D. Stoner,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 49G06-1604-MR-13185



      Altice, Judge.


                                                 Case Summary


[1]   A jury found Kameron Martin guilty of, among other things, murder and

      robbery as a Level 2 felony, elevated based on the serious bodily injury

      sustained by the murder victim when he was shot and killed. To avoid a double

      Court of Appeals of Indiana | Opinion 19A-CR-183 | October 11, 2019                           Page 1 of 9
      jeopardy violation, the trial court entered the robbery conviction as a Level 3

      felony rather than a Level 2 felony. On appeal, Martin argues that the robbery

      conviction should have been reduced to a Level 5 felony because the use of a

      deadly weapon element, relied upon by the trial court as the basis for the Level

      3 felony, was not found by the jury beyond a reasonable doubt.


[2]   We vacate the sentence for Level 3 felony robbery and remand for sentencing

      on Level 5 felony robbery.


                                        Facts & Procedural History


[3]   On the evening of March 11, 2016, Martin and Anthony Breaziel planned the

      robbery of a liquor store a few blocks away from Martin’s residence in

      Indianapolis. Martin and Breaziel, both armed with handguns, left the

      residence with Corey Spurlock. An unidentified woman drove them to the

      liquor store and stayed outside waiting in the car.


[4]   The three men entered the liquor store around 1:45 a.m. on March 12, wearing

      masks and hoods, and quickly dispersed throughout the store. There were two

      employees, Walter Woods and Diana Montgomery, and the owner, Joe Klein,

      inside. Spurlock went behind the counter, while Breaziel approached

      Montgomery who was stocking shelves. He pointed his gun at her and

      requested that she open the safe. Because she could not access the safe,

      Breaziel directed her to the register to open the cash drawer.




      Court of Appeals of Indiana | Opinion 19A-CR-183 | October 11, 2019        Page 2 of 9
[5]   In the meantime, Martin went into the back office where Klein was working at

      his desk. Martin quickly pocketed a revolver that Klein had on the desk and

      then pointed his own gun at Klein, who raised his hands and stood up. Martin

      backed out of the office as Klein followed at gunpoint as directed. When he

      reached the door, however, Klein tried to close the door between him and

      Martin and reached for a shotgun that rested behind the door, but Martin fired

      two shots. One of the bullets passed through the door and into the left side of

      Klein’s chest. Klein collapsed to the floor and died at the scene.


[6]   Upon hearing the shots, Spurlock ran out of the store and, after grabbing the

      entire cash register drawer, Breaziel followed. Martin also fled. The three men

      and the woman went back to Martin’s residence and split the proceeds of the

      robbery after opening the cash register drawer with a hammer. Thereafter,

      Martin burned the clothes he had been wearing and gave away Klein’s revolver.


[7]   On April 7, 2016, the State charged Martin with four counts – murder (Count

      1), felony murder (Count 2), Level 2 felony robbery (Count 3), and Level 4

      felony unlawful possession of a firearm by a serious violent felon (Count 4). On

      June 8, 2016, the State amended the information to include a charge of Level 3

      felony conspiracy to commit robbery (Count 5). Following a three-day trial in

      early December 2018, 1 the jury found Martin guilty on all counts as charged,

      except that the bifurcated portion relating to the serious violent felon




      1
        Martin’s two prior jury trials in this case each ended in mistrial. The first was due to the malfunctioning of
      the trial court’s recording system. The second resulted in a hung jury.

      Court of Appeals of Indiana | Opinion 19A-CR-183 | October 11, 2019                                  Page 3 of 9
      determination had yet to be held. On the State’s motion, the trial court

      dismissed Count 4.


[8]   The sentencing hearing was held on December 20, 2018, at which the parties

      and the trial court discussed double jeopardy issues regarding the four

      remaining counts. Ultimately, the trial court entered judgment of conviction on

      only two counts, explaining:


              Count 1 is entered as a conviction. Count 2 is shown as – again
              proven, but not entered as a conviction for double jeopardy
              purposes. Count 3, by agreement of the parties[,] is reduced for
              double jeopardy considerations to a Level 3 felony. Count 4 was
              dismissed by the State of Indiana. Count 5, the Court finds
              merges … because the overt act for the conspiracy was in fact the
              robbery in which conviction was entered.


      Transcript Vol. 4 at 159. The trial court then sentenced Martin to consecutive

      terms of sixty-two years for murder and ten years for Level 3 felony robbery.

      On appeal, Martin challenges only his robbery conviction, arguing that it

      should have been entered as a Level 5 rather than a Level 3 felony.


                                           Discussion & Decision


[9]   There is no dispute that Martin could not be convicted of both murder and

      robbery as a Level 2 felony without violating principles of double jeopardy.

      That is because the same evidence that supported the murder conviction was

      used to elevate the robbery conviction to a Level 2 felony based on the serious

      bodily injury sustained by the murder victim. See, e.g., Logan v. State, 729


      Court of Appeals of Indiana | Opinion 19A-CR-183 | October 11, 2019         Page 4 of 9
       N.E.2d 125, 136 (Ind. 2000) (Class A felony robbery conviction could not stand

       where “[t]he serious bodily injury alleged and proven by the State in this case

       was [the victim’s] death, the same fact used to convict Logan of murder”);

       Kingery v. State, 659 N.E.2d 490, 495-96 (Ind. 1995) (“Where a single act …

       forms the basis both for the upgrade … of the robbery conviction and also the

       act element of the murder charge, a defendant cannot be twice sentenced for

       committing this single act. To do so would violate the prohibition against

       double jeopardy.”).


[10]   Of course, as Martin concedes, this did not entitle him to escape conviction and

       punishment for the robbery of which he was convicted. There are three felony

       classes of robbery that are relevant here:


               Except as provided in subsection (b), a person who knowingly or
               intentionally takes property from another person or from the
               presence of another person:

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

                        (2) by putting any person in fear;

               commits robbery, a Level 5 felony. However, the offense is a
               Level 3 felony if it is committed while armed with a deadly
               weapon or results in bodily injury to any person other than a
               defendant, and a Level 2 felony if it results in serious bodily
               injury to any person other than a defendant.




       Court of Appeals of Indiana | Opinion 19A-CR-183 | October 11, 2019            Page 5 of 9
       Ind. Code § 35-42-5-1(a). 2 Robbery as a Level 5 felony is a lesser-included

       offense of robbery as a Level 2 felony, as is robbery as a Level 3 felony when

       elevated based on bodily injury to the victim. But robbery as a Level 3 felony

       based on the use of a deadly weapon is not necessarily a lesser-included offense

       of robbery as a Level 2 felony.


[11]   Here, because the only injury alleged by the State was the gunshot wound that

       resulted in the victim’s death, the robbery conviction could not be elevated to a

       Level 3 felony based on the bodily injury suffered by the victim. See Logan, 729

       N.E.2d at 137. The trial court recognized this and, therefore, entered the

       robbery conviction as a Level 3 felony on the basis that Martin was armed with

       a deadly weapon when he committed the robbery. The fundamental problem

       with this is that the State did not allege the use of a deadly weapon as an

       enhancement of the robbery offense, and the jury was never instructed on the

       use of a deadly weapon as an enhancement of the robbery offense.3 As a result,

       reduction of the robbery conviction to a Level 5 felony was the proper remedy.

       See Spears v. State, 735 N.E.2d 1161, 1165 n.2 (Ind. 2000) (jury not instructed on

       use of a deadly weapon and thus reduction to the lowest felony robbery (then a

       Class C felony) was the proper remedy for a double jeopardy violation); Logan,




       2
         Subsection (b) of the statute addresses the robbery of a pharmacist/pharmacy and sets out different felony
       levels.
       3
         The jury instructions set forth the elements of robbery as a Level 5 felony and provided that the charge
       could be enhanced to a Level 2 felony if the State proved beyond a reasonable doubt that Martin caused
       serious bodily injury to the victim. There was no instruction on robbery as a Level 3 felony or, in particular,
       the element of use of a deadly weapon.

       Court of Appeals of Indiana | Opinion 19A-CR-183 | October 11, 2019                                  Page 6 of 9
       729 N.E.2d at 137 (Class B felony robbery was not a lesser-included offense

       where the State did not allege use of a deadly weapon as an enhancement);

       Kingery, 659 N.E.2d at 496 (“The Class B requisite element, committing

       robbery while armed with a deadly weapon, is absent from the Class A/Class C

       instruction given to the jury.”). 4


[12]   The State argues that Martin invited this error by expressly agreeing with the

       State’s suggestion at sentencing that the robbery conviction should be reduced

       to a Level 3 felony. 5 We agree with Martin, however, that the State seems to

       conflate two distinct concepts – waiver and invited error. In Batchelor v. State,

       119 N.E.3d 550, 556-59 (Ind. 2019), our Supreme Court discussed the

       distinctions between these two doctrines. The distinctions are important

       because “whereas waiver generally leaves open an appellant’s claim to

       fundamental-error review, invited error typically forecloses appellate review

       altogether.” Id. at 556.




       4
         Each of these cases involved convictions for murder and robbery with a shooting as the basis of the victim’s
       death and serious bodily injury. Yet the Indiana Supreme Court consistently held that the robbery conviction
       could not be elevated based on the defendant’s use of a deadly weapon (a firearm) unless the jury was
       specifically instructed on this element. Accordingly, we reject the State’s assertion that Level 3 felony
       robbery was a lesser-included offense “[b]ecause the jury necessarily had to find that Martin was armed with
       a deadly weapon to shoot Klein with a gun…” Appellee’s Brief at 10. We also find inapposite the cases cited
       by the State in support of this assertion because in those cases the jury was expressly instructed on the
       enhancement element. See, e.g., Robinson v. State, 775 N.E.2d 316, 320 (Ind. 2002) (“The jury was instructed
       that to convict Robinson it must find that Robinson acted ‘while armed with a deadly weapon.’ Accordingly,
       enhancement of the [robbery] offense to a B felony was proper.”).
       5
        After the State made its sentencing argument, the trial court asked defense counsel whether she agreed that
       Count 3 should be a Level 3 felony. Counsel responded, “Yes, Judge I agree.” Transcript Vol. 4 at 154.

       Court of Appeals of Indiana | Opinion 19A-CR-183 | October 11, 2019                               Page 7 of 9
[13]   The Court made clear the limited application of the invited error doctrine.


               [W]e have consistently required something more than mere
               “neglect” before applying the automatic rule of preclusion:
               evidence of counsel’s strategic maneuvering at trial. Indeed, this
               Court has long held that the “policy behind” the doctrine is to
               prohibit a party, privy to an “erroneous action of the court,” from
               alleging “prejudicial error” following an adverse decision.


               In reaffirming this precedent, we emphasize today that, to
               establish invited error, there must be some evidence that the error
               resulted from the appellant’s affirmative actions as part of a
               deliberate, “well-informed” trial strategy. A “passive lack of
               objection,” standing alone, is simply not enough. And when
               there is no evidence of counsel’s strategic maneuvering, we are
               reluctant to find invited error based on the appellant’s neglect or
               mere acquiescence to an error introduced by the court or
               opposing counsel….


               To be sure, cases often arise when either the source of the error or
               counsel’s motives at trial are less than clear. And appellate
               courts should exercise their judgment in deciding the issue. But
               when a careful reading of the record fails to disclose enough
               information, courts should resolve any doubts against a finding
               of invited error rather than engage in speculation.


       Id. at 557-58 (internal citations omitted).


[14]   Our review of the record in this case reveals that defense counsel’s

       acquiescence, though affirmatively stated, was not part of a deliberate trial

       strategy and amounted only to mere neglect. Thus, Martin’s claim on appeal is

       not foreclosed by the doctrine of invited error.



       Court of Appeals of Indiana | Opinion 19A-CR-183 | October 11, 2019           Page 8 of 9
[15]   Martin was sentenced for a crime – Level 3 Felony robbery – for which he had

       not been convicted. This amounted to fundamental error. See Kingery, 659

       N.E.2d at 496 (“A person cannot be sentenced for a crime for which that person

       has not been convicted.”). Accordingly, we vacate Martin’s sentence for Level

       3 felony robbery and remand for a new sentencing hearing on the Level 5 felony

       robbery conviction.


[16]   Judgment vacated in part and remanded for a new sentencing hearing on the

       Level 5 felony robbery conviction.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-183 | October 11, 2019   Page 9 of 9
