Court of Appeals of In diana | Opinio n 15A01

- 1408

- CR

- 340 | June 17, 2015 Page 1 of 14

A TTORNEY FOR A PPELLANT Leanna Weissmann Lawrenceburg, Indiana A TTORNEY S FOR A PPELLEE 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 Ca se 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 .Court of Appeals of In diana | Opinio n 15A01

- 1408

- CR

- 340 | June 17, 2015 Page 2 of 14

[1] Gerald Kemper appeals his convictions and sentences for Robbery Resulting in Bodily I njury, 1 a class B felony, Conspiracy to Commit Robbery While Armed with a Deadly W eapon, 2 a class B felony, and Unlawful Possession of a Firearm by a Serious Violent F elon, 3 a c lass B felony. Finding that the State presented insufficient evidence from which a reasonable jury could conclude that Kemper and Malik Abdullah conspired to commit ro bbery, 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 d rove 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 a t around three o’clock in the morning on July 18, 2012

. Although the two di d not discuss where they were going, Kemper proceeded to drive back to Lawr enceburg.

[3] On ce back in Lawrenceburg, Kemper slowed the vehicle as he passed a BP statio n. He initially drove pas t 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 In diana | Opinio n 15A01

- 1408

- CR

- 340 | June 17, 2015 Page 3 of 14

the area. However, h e 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 procee d 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 di d 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 Lafollett e, 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 Morg an, 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

ev entually saw a police vehicle approaching him and pulled over. As he pulled over, Morgan watched Abd ullah’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 In diana | Opinio n 15A01

- 1408

- CR

- 340 | June 17, 2015 Page 4 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. Abdull ah 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 discove ry 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. TheCourt of Appeals of In diana | Opinio n 15A01

- 1408

- CR

- 340 | June 17, 2015 Page 5 of 14

defense argued th at 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 impe ach Morgan’s testimony. The trial concluded on May 14, 2014, and t he 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 doub le jeopardy grounds. Kemper remained convicted of robbery resulting in bodily injury, conspiracy to com mit 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 consecuti ve 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 m otion 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 inappropria te in light of the natur e 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 videotapedCourt of Appeals of In diana | Opinio n 15A01

- 1408

- CR

- 340 | June 17, 2015 Page 6 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 misi dentify 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 moti on 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 wi sh 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 o f 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 fa ct received a copy of the videotaped interviews. However, it did find that theCourt of Appeals of In diana | Opinio n 15A01

- 1408

- CR

- 340 | June 17, 2015 Page 7 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 Stat e 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 a nd 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.



## I I . Sufficiency of the Evidence

[16] When reviewing the sufficiency of the evidence t o 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 credib ility 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 sufficienc y argument related to all convictions . However, even if we were able to entertain s uch 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 hasCourt of Appeals of In diana | Opinio n 15A01

- 1408

- CR

- 340 | June 17, 2015 Page 8 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 us ed 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 j ury could con clude 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 (I nd. 1989) (quo ting 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 par ties meet understandably to bring

waived such arguments for failure to adequately present the issues and support his argument s with cogent reasoning. Ind. Appellate Rule 46 (A)(8)(a).Court of Appeals of In diana | Opinio n 15A01

- 1408

- CR

- 340 | June 17, 2015 Page 9 of 14

about an intelligent and deliberate a greement 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 circumstantia l 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 message s 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 reasonabl e 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 th e robbery, these messages indicate nothing more than that the two planned to meet. State’s Ex. 29. F urthermore, Kemper’s calls to Abdulla h 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 esca ped 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 uncont radicted. The State argues that the jury was free to disregard this testimony. Appellee’ s Br. p. 20. This is certainly true . H owever, while the jury wa s free to disregard anyCourt of Appeals of In diana | Opinio n 15A01

- 1408

- CR

- 340 | June 17, 2015 Page 10 of 14

evidence pointing against the existence of an agreement, it was left with ins ufficient 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, t he 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] T his Court has previously de termined 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 proba tive 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 con spiracy. So, likewise, conviction of an alleged fellow conspirator after a trial is notCourt of Appeals of In diana | Opinio n 15A01

- 1408

- CR

- 340 | June 17, 2015 Page 11 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 ha s 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 n ot go on to testify that he was, in fact, involved in a conspiracy. Particularly, h e did not testify that he and Kemper had agreed to rob the BP station. In fact, Abdullah’s testimony indicates that there was no

s uch 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 inf er the existence of a conspiracy

.

[26] For the above

- mentioned reasons, Abdullah’s plea of guilty cannot be considered as substantive evidence as to an y element of the conspiracy charge brought against Kemper

. As the remaining evidenc e wa s insufficient to allow a jury to conclude beyond a reasonable doubt that Kemper and Abdullah hadCourt of Appeals of In diana | Opinio n 15A01

- 1408

- CR

- 340 | June 17, 2015 Page 12 of 14

agreed to rob the BP station, Kemper’s conviction for conspiracy to co m mit 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 inappro priate. 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 fe lon. 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 o rdered 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 convict ion 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 In diana | Opinio n 15A01

- 1408

- CR

- 340 | June 17, 2015 Page 13 of 14

and sentence for conspiracy to commit robbery while armed with a deadly

wea pon 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 imp ose 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, th e trial court noted that Kemper shot L afollette, 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 fo und 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 signific ant 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 futur e crimes. The trial court found no mitigating factors and determined that the ag gravating factors were sufficient to justify enhanced sentences running consecutively. Id. at 350.Court of Appeals of In diana | Opinio n 15A01

- 1408

- CR

- 340 | June 17, 2015 Page 14 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

con secutive 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 o n Kemper’s part. We agree with the trial court’s conclusion that Kemper’s history of cr imes involving firearms suggest s that he is likely to commit violent crimes in the future. Accordingly, w e cannot say that Kemper’s total sentence of forty years is in appropria te 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

.