Loren David Gary v. State of Indiana , 124 N.E.3d 90 ( 2019 )

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