Destin Dean Jones v. State of Indiana (mem. dec.) , 75 N.E.3d 1095 ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 12 2017, 10:20 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Destin D. Jones, April 12, 2017
Appellant-Defendant, Court of Appeals Case No.
84A05-1609-CR-2065
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff Judge
Trial Court Cause No.
84D01-1504-F3-863
Baker, Judge.
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[1] Destin Jones was convicted of Level 3 Felony Attempted Armed Robbery 1 and
Level 3 Felony Conspiracy to Commit Armed Robbery. 2 He appeals, arguing
that there was insufficient evidence to sustain his convictions. Finding
sufficient evidence for Jones’s conspiracy to commit armed robbery conviction
but not for his attempted armed robbery conviction, we affirm in part and
reverse in part, and remand for resentencing.
Facts
[2] At 2:00 a.m. on April 2, 2015, the security surveillance video of a Speedway gas
station in Terre Haute captured footage of two men outside the store. The men
were wearing masks and dark hoodies, and they were carrying what appeared
to be handguns. The men eventually removed their masks and hoodies and
entered the store. They proceeded to the store’s back area and into the office,
which is not a public area; at some point, one of the men entered the restroom
in the back of the store. These two men were the only people to enter the
store’s back area during this time. Later that morning, the manager of the
Speedway went to the back office and noticed that lottery books were on the
floor and that the lottery machine safe was open. He could not find the key for
the lottery machine safe. The manager called the police.
1
Ind. Code § 35-42-5-1; Ind. Code § 35-41-5-1(a).
2
I.C. § 35-42-5-1; I.C. § 35-41-5-2(a)-(b).
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[3] The mother of Jones’s daughter became aware of the news coverage of an
attempted armed robbery at the Speedway gas station. She saw pictures on
Facebook, identified Jones, and called the police.
[4] The State charged him with multiple counts stemming from a crime spree that
took place in late March and early April 2015.3 These charges included Level 3
felony attempted armed robbery and Level 3 felony conspiracy to commit
armed robbery, both stemming from the events at the Speedway gas station. A
jury trial took place from June 13 through June 16, 2016. The jury found Jones
guilty on most of the charges, including the two relevant to this appeal. The
trial court sentenced Jones to an aggregate executed term of seventeen years.
Jones now appeals.
Discussion and Decision
[5] Jones argues that the State did not present sufficient evidence to support his
convictions for attempted armed robbery and conspiracy to commit armed
robbery. Specifically, he argues that the State failed to prove beyond a
reasonable doubt that Jones did not voluntarily abandon his attempt and
conspiracy to rob the Speedway gas station.
[6] An armed robbery occurs when a person knowingly or intentionally takes
property from another person by using or threatening the use of force on any
3
Although the State charged Jones with other crimes, we will discuss only the ones relevant to this appeal.
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person, or by putting any person in fear, while armed with a deadly weapon.
I.C. § 35-42-5-1. An attempt crime occurs when a person, acting with the
culpability required for commission of the crime, engages in conduct that
constitutes a substantial step toward commission of the crime. I.C. § 35-41-5-
1(a). A “substantial step” for purposes of the attempt statute is any overt act
beyond mere preparation and in furtherance of intent to commit an offense.
Collier v. State, 846 N.E.2d 340, 344 (Ind. Ct. App. 2006). A conspiracy occurs
when a person agrees with another person to commit a felony and either person
performs an overt act in furtherance of the agreement. I.C. § 35-41-5-2(a)-(b).
[7] With respect to a charge of attempt or conspiracy, it is a defense that the person
who engaged in the prohibited conduct voluntarily abandoned his effort to
commit the underlying crime and voluntarily prevented its commission. I.C. §
35-41-3-10. The defense of abandonment is only available in cases involving
attempted crimes; a person cannot abandon an attempt to commit an offense
after the crime has been completed. Barnes v. State, 269 Ind. 76, 83, 378 N.E.2d
839, 843 (1978). An abandonment is voluntary if it originates with the accused
and is not “the product of extrinsic factors that increase the probability of
detection or make more difficult the accomplishment of the criminal purpose.”
Smith v. State, 636 N.E.2d 124, 127 (Ind. 1994).
[8] The State does not need to disprove the defense of abandonment “unless and
until there is support for the defense in the evidence. Then it must disprove the
defense beyond a reasonable doubt.” Id. If the State must disprove the defense
of abandonment, whether it sustained its burden is a question of the sufficiency
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of the evidence. See Munford v. State, 923 N.E.2d 11, 17-18 (Ind. Ct. App.
2010). When considering a challenge to the sufficiency of the evidence, we do
not reweigh the evidence or judge the credibility of the witnesses. McHenry v.
State, 820 N.E.2d 124, 126 (Ind. 2005). We will affirm if the probative evidence
and the reasonable inferences drawn therefrom could have allowed a reasonable
jury to find the defendant guilty beyond a reasonable doubt. Id.
[9] The defense of abandonment does not apply to Jones’ conviction for conspiracy
to commit armed robbery. A conspiracy is complete when a person has the
intent to commit a felony, forms an agreement with another person to commit a
felony, and either person performs an overt act. Owens v. State, 929 N.E.2d 754,
756 (Ind. 2010). Jones does not claim that he and his companion did not intend
to rob the Speedway gas station, nor does he claim that they did not enter into
an agreement to do so. The security video shows them outside the gas station
at 2 a.m. wearing masks and hoodies and holding what appeared to be
handguns. In other words, the video showed Jones and his companion
performing an overt act, and the elements of a conspiracy were complete. As a
result, for this conviction, a defense of abandonment is unavailable.
[10] As for Jones’s conviction for attempted armed robbery, however, we find that
the State did not overcome its burden of disproving Jones’s abandonment
defense beyond a reasonable doubt. According to the State, the jury could have
reasonably inferred that Jones and his companion abandoned their plan to rob
the gas station because of the presence of customers, thereby making their
decision based on extrinsic factors rather than originating from their own
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volition. Yet the case law on the defense of abandonment turns on whether
extrinsic factors actually thwarted the person’s attempt to commit a criminal
act. See Munford, 923 N.E.2d at 18 (finding sufficient evidence to disprove
abandonment defense because the defendant, while in a store restroom,
removed liquor bottles from his coat and said, ‘“They’re on us, we need to get
out of here’”); Gravens v. State, 836 N.E.2d 490, 497 (Ind. Ct. App. 2005)
(finding sufficient evidence to disprove abandonment defense because
defendant became flustered and left the bank after the bank teller loudly
questioned him about his demand note). Here, the only interaction that the
store employee or any of the customers had with Jones or his companion was
engaging in friendly conversation, which is not an extrinsic factor that would
thwart an attempt to commit a crime. Thus, the mere presence of the store
employee and customers is not enough to establish beyond a reasonable doubt
that Jones and his companion did not voluntarily abandon their plan.
[11] Moreover, the overt act required to convict Jones of the conspiracy charge
cannot be the same act used to prove that he attempted armed robbery. A
violation of Article I, Section 14 of the Indiana Constitution, which protects a
person against double jeopardy, occurs if “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). See Bradley v. State,
867 N.E.2d 1282, 1285 (Ind. 2007) (finding that if the jury found one element of
a charge satisfied by the evidence used to establish one element of another
charge, then the double jeopardy clause was implicated). Here, a reasonable
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possibility exists that the jury used the same evidentiary fact—that Jones and
his companion were outside the gas station wearing masks and hoodies and
holding what appeared to be handguns—to prove that Jones performed an overt
act in furtherance of an agreement and that Jones took a substantial step toward
the commission of an armed robbery. If this fact was used to establish the
conspiracy, it could not be used to also establish the attempted armed robbery,
and without it, the State cannot point to an action taken by Jones that would
constitute a substantial step in his attempt to commit armed robbery.
[12] Finally, in charging Jones with attempted armed robbery, the State did not
include theft as a lesser included offense in the charge; had the State structured
its charge to encompass lesser included offenses, it seems likely that a jury
would have found him guilty of a lesser offense such as theft. But because the
State did not do so, we cannot simply reduce Jones’s attempted armed robbery
conviction to a theft conviction. For these reasons, we reverse Jones’s
conviction for attempted armed robbery and remand for resentencing.
[13] The judgment of the trial court is affirmed in part and reversed in part, and
remanded with instructions to vacate the attempted armed robbery conviction
and for resentencing.
Mathias, J., and Pyle, J., concur.
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