Jerome L. Williams v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 29, 2017
• Docket: 79A02-1701-CR-40
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 29 2017, 7:23 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kirk S. Freeman Curtis T. Hill, Jr. Law Office of Kirk S. Freeman Attorney General of Indiana Lafayette, IN Caryn N. Szyper Deputy Attorney General Indianapolis, IN

IN THE COURT OF APPEALS OF INDIANA

Jerome L. Williams, September 29, 2017 Appellant-Defendant, Court of Appeals Case No. 79A02-1701-CR-40 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy Williams, Appellee-Plaintiff Judge Trial Court Cause No. 79D01-1605-F3-13

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017 Page 1 of 10 Case Summary [1] Jerome Williams was convicted of robbery while armed with a deadly weapon,

robbery resulting in bodily injury, and conspiracy to commit robbery. He

appeals, arguing that the evidence is insufficient to support the convictions.

While we find sufficient evidence to convict, we also conclude, sua sponte, that

the two convictions for robbery violate double jeopardy because there was only

one robbery. We remand this matter to the trial court with instructions to

vacate one of the robbery convictions.

Facts and Procedural History [2] In early April 2016, Aiden McNeill posted online ads to sell his AR-15 rifle.

After posting the ads, a man identified later only as “Middleman” approached

McNeill outside of his home and asked if McNeill had anything for sale or

knew where he could purchase a gun. Because of the neighborhood, McNeill

did not find this conversation unusual. McNeill informed “Middleman” that

he had an AR-15 rifle for sale and gave him his cell-phone number.

[3] On April 12, “Middleman” called McNeill and inquired further about the rifle.

“Middleman” made multiple phone calls to McNeill to try to set up a buy for

later that day. McNeill eventually agreed to meet with “Middleman” and sell

the gun that day. McNeill created a bill of sale, and a man other than

“Middleman” went to McNeill’s home and signed the bill of sale as “Cashmere

Jordan.” Despite the details of the sale being prearranged, Cashmere did not

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017 Page 2 of 10 purchase the gun from McNeill but rather directed McNeill to go to the Spring

Gardens apartment complex down the road.

[4] McNeill had an uneasy feeling about going to Spring Gardens alone, so,

incredibly, he decided that his girlfriend and four-year-old son should

accompany him to the buy as his “backup.” “Middleman” directed McNeill to

the back of the apartment complex and told McNeill to park next to a white

SUV, which had been backed into its parking spot. McNeill parked and got out

of his car; three men exited the SUV, including Aaron Scott. Williams, the

driver of the SUV, remained inside.

[5] McNeill and the passengers walked to the trunk of his car to inspect the rifle.

Scott took the rifle and told McNeill to get into the SUV to get paid. Thinking

this was an odd request, McNeill grabbed an unloaded handgun out of his trunk

and shoved it into his waistband. He then got into the SUV, sitting behind

Williams, and Scott sat in the front passenger seat. Scott then immediately

drew his handgun and pointed it at McNeill. Scott told the back-seat

passengers to “get that gun off” of McNeill, referring to McNeill’s handgun.

Tr. Vol. II p. 65. A fight ensued between McNeill and the two unidentified

passengers sitting next to him. McNeill was shoved up against the car window,

with both passengers holding him against the window by his neck.

[6] While the rear passengers were trying to get McNeill’s handgun from him, Scott

alternated between pointing the gun at McNeill and at his girlfriend, who was

still sitting inside the other car. When pointing the gun at the girlfriend, Scott

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017 Page 3 of 10 leaned over Williams, placing the gun directly in front of Williams’s face.

Throughout the entire ordeal, Williams stared out the driver-side window at

McNeill’s girlfriend with a look that said, “hey don’t do anything” like call 911

or try to help McNeill. Id. at 122. Williams did not appear surprised by the

fight or the fact that Scott had pulled out a handgun.

[7] The fight lasted approximately one minute. McNeill was pulled through the

SUV and thrown to the ground. The two back-seat passengers and Scott hit

and kicked McNeill. Scott then struck McNeill on the back of the head three

times with the rifle. The three men got back into the SUV, and Williams pulled

out of the parking lot at a speed that caused the tires to squeal. As Williams

drove away, McNeill pulled out his cell phone and took a picture of the SUV.

[8] McNeill called 911, and officers from the Lafayette Police Department

responded to the scene. Officers found a cell phone in the parking spot where

the SUV had been parked and later determined that it belonged to Williams.

Officers were able to access the call log on the cell phone and discovered that

“Middleman’s” phone number was on Williams’s phone as well as McNeill’s.

Many of the calls “Middleman” placed on April 12 to Williams were made

within minutes of calls he had with McNeill, revealing a “triangle” of

communication between the three men. See Tr. Vol. III pp. 8-51; Exs. 44, 53.

Officers also obtained a copy of the photo McNeill took of the SUV. They

located the SUV in the parking lot of McNeill’s apartment complex. The SUV

was a rental and had been rented to Lolita Logan, Williams’s girlfriend.

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017 Page 4 of 10 [9] McNeill was taken to the hospital for injuries he sustained during the fight,

including a gash on his head that required seven staples to close. While at the

hospital, officers showed McNeill a series of photo arrays, and McNeill

identified Williams as the driver of the SUV and Scott as the front-seat

passenger. He was not able to identify either of the back-seat passengers.

[10] Based on the robbery of McNeill, the State charged Williams with three Level 3

felonies: robbery while armed with a deadly weapon, robbery resulting in bodily

injury, and conspiracy to commit robbery. A jury trial was held in November

2016. During the trial, the State argued that Williams was guilty as an

accomplice. The State also presented phone records between “Middleman,”

Williams, and Scott. The records indicate that “Middleman” called Williams

over 100 times between April 1 and April 12, with twenty to thirty calls placed

on the day of the robbery. Williams and Scott also talked on the phone

approximately five times before the robbery. The jury found Williams guilty on

all counts. On each count, Williams was sentenced to a term of ten years in the

Department of Correction, with one year suspended to probation. The court

ordered the sentences to run concurrently.

[11] Williams now appeals.

Discussion and Decision [12] Williams contends that the evidence is insufficient to support his convictions.

When reviewing the sufficiency of the evidence, we neither reweigh the

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017 Page 5 of 10 evidence nor determine the credibility of witnesses; that role is reserved for the

factfinder. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). “The evidence—

even if conflicting—and all reasonable inferences drawn from it are viewed in a

light most favorable to the conviction.” Id. A conviction will be affirmed “if

there is substantial evidence of probative value supporting each element of the

crime from which a reasonable trier of fact could have found the defendant

guilty beyond a reasonable doubt.” Id.

I. Robbery [13] Williams argues that the evidence is insufficient to convict him as an

accomplice for robbery while armed with a deadly weapon and robbery

resulting in bodily injury. Robbery occurs when a person “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 . . . .” Ind. Code § 35-42-5-1. Robbery, as

defined, is a Level 5 felony, but the crime is elevated to a Level 3 felony if it is

committed while armed with a deadly weapon or results in bodily injury to any

person other than the defendant. Id.

[14] “It is well settled that there is no distinction between the responsibility of a

principal and an accomplice.” Stokes v. State, 919 N.E.2d 1240, 1245 (Ind. Ct.

App. 2010), trans. denied. “A person who knowingly or intentionally aids,

induces, or causes another person to commit an offense commits that offense . .

. .” Ind. Code § 35-41-2-4. It is not necessary that the evidence show the

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017 Page 6 of 10 individual personally participated in the commission of each element of the

crime because the act of one companion is imputed to all. Griffin v. State, 16

N.E.3d 997, 1003 (Ind. Ct. App. 2014). To determine whether an individual is

an accomplice, we look at four factors: (1) presence at the scene of the crime;

(2) companionship with another engaged in the crime; (3) failure to oppose the

commission of the crime; and (4) the individual’s conduct before, during, and

after the occurrence of the crime. Id.

[15] Williams concedes that he was present at the scene of the robbery and did

nothing to contest the commission of the robbery but notes that these facts by

themselves are insufficient to establish accomplice liability. See Turner v. State,

755 N.E.2d 194, 198 (Ind. Ct. App. 2001), trans. denied. Nevertheless, the jury

may consider them in conjunction with the other two factors—companionship

and conduct—that tend to show that one acted as an accomplice to a crime.

Griffin, 16 N.E.3d at 1004.

[16] “Middleman,” who set up the “buy” with McNeill, spoke to Williams on the

phone upwards of thirty times on the day of the robbery. Most of those phone

calls were within mere minutes of “Middleman” talking to McNeill. Williams

also spoke with Scott on the phone multiple times before the robbery took

place. These phone records establish Williams’s companionship with

“Middleman” and Scott.

[17] Williams’s conduct before the robbery was such that he was in constant contact

with “Middleman,” procured his girlfriend’s rental car as the getaway car and

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017 Page 7 of 10 backed the SUV into the parking space for an easy exit. During the robbery,

Williams did not appear surprised by the fight taking place in the back seat or

the fact that Scott had pulled out a handgun. Rather, he stared out of the

driver-side window at McNeill’s girlfriend with a look that she interpreted to

mean that she could not help McNeill or call 911. Moreover, while Scott and

the other passengers were punching, kicking, and beating McNeill with the rifle,

Williams did not drive away. He waited until all three passengers were back in

the SUV before driving off at a speed that caused the tires to squeal. Williams

then abandoned the SUV in a nearby parking lot.

[18] Williams claims that his case is “directly analogous” to our Supreme Court’s

decision in Garland v. State, 719 N.E.2d 1236 (Ind. 1999). Appellant’s Br. p. 8.

In Garland, the Court found insufficient evidence was presented to convict the

defendant of murder as an accomplice for killing his father. 719 N.E.2d at

1242. The Court reached this conclusion largely because of the “absence of

evidence demonstrating that the defendant took any step to aid, induce, or

cause the crime, even though the defendant may have known that [the killer]

intended to commit murder, and took no action to prevent it.” Id. We

distinguish the case before us from the holding in Garland because Williams did

take steps to aid, induce, or cause the robbery: he obtained the SUV, backed

into the parking space to facilitate a quicker getaway, and communicated

multiple times with “Middleman” and Scott before the robbery. Having

examined the four factors for accomplice liability, we conclude that the

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017 Page 8 of 10 evidence is sufficient to support Williams’s convictions for robbery with a

deadly weapon and robbery resulting in bodily injury.

[19] Despite finding sufficient evidence, we conclude that the trial court erred when

it entered judgment of convictions for both robbery convictions. Williams does

not raise the issue of double jeopardy for our review, and we reach this

conclusion sua sponte. The State brought two separate charges of robbery

based on two separate theories of the same robbery. Williams was found guilty

under both theories, but because only one robbery occurred, the entry of

judgment on both charges violates double jeopardy. See Lane v. State, 428

N.E.2d 28, 31 (Ind. 1981) (holding that a defendant who robs one victim one

time can be convicted of only one count of robbery). We remand to the trial

court with instructions to vacate one of the robbery convictions.

II. Conspiracy [20] Williams also contends that the State presented insufficient evidence to support

his conviction for conspiracy to commit robbery. An individual conspires to

commit a felony when, with the intent to commit the felony, the individual

agrees with another person to commit the felony, and one of the parties

performs an overt act in furtherance of the agreement. Ind. Code § 35-41-5-2.

[21] Williams only argues that the State failed to prove that an agreement existed

between Williams and another individual to rob McNeill. The State is not

required to prove that an express, formal agreement existed. Guffey v. State, 42

N.E.3d 152, 164 (Ind. Ct. App. 2015), trans. denied. Proof of the conspiracy

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-40| September 29, 2017 Page 9 of 10 may rest entirely on circumstantial evidence. Id. The State introduced multiple

pages of phone records showing a “triangle” of calls between Williams,

“Middleman,” and McNeill. See Ex. 53. “Middleman” called Williams

between twenty and thirty times on the day of the robbery, the majority of

which were made within minutes of “Middleman” speaking to McNeill.

Williams also spoke with Scott on at least five different occasions leading up to

the robbery and was not surprised when Scott brandished a handgun.

[22] Williams is correct that the State did not introduce any evidence of the content

of the phone conversation. But the State was not required to do so. Based on

the evidence presented, the jury could reasonably infer that Williams and

“Middleman,” or Williams and Scott, or all three men had an agreement to rob

McNeill due to the multitude of calls placed, the timing of the calls, and

Williams’s lack of reaction to the robbery itself.

[23] Affirmed in part and remanded in part with instructions.

Mathias, J., and Crone, J., concur.

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