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Gary v. State

Court of Appeals of Indiana

May 9, 2019

Loren David Gary, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

          Appeal from the Tippecanoe Circuit Court The Honorable Sean M. Persin, Judge Trial Court Cause No. 79C01-1711-F1-6

          ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm P.C.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ellen H. Meilaender

          May, Judge.

         [¶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 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, 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 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. ...

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