Court of Appeals of Indiana | Opinion 15A01-1408-CR-340 | June 17, 2015 Page 1 of 14

ATTORNEY FOR APPELLANT

Leanna Weissmann

Lawrenceburg, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Gerald A. Kemper,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

June 17, 2015

Court of Appeals Case No.

15A01-1408-CR-340

Appeal from the Dearborn Circuit 

Court.

The Honorable James D. Humphrey, 

Judge.

Cause No. 15C01-1207-FB-35

Baker, Judge.
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[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. 
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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. 
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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 
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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 
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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 
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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 
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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).
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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 
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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 
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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 
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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. 
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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. 
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[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.