Calvert v. State Of Ind.
| Decision Date | 27 July 2010 |
| Docket Number | No. 40A05-0911-CR-659.,40A05-0911-CR-659. |
| Citation | 930 N.E.2d 633 |
| Parties | David A. CALVERT, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
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R. Patrick Magrath, Alcorn Goering & Sage, LLP, Madison, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ann L. Goodwin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Following a jury trial, David Calvert was convicted of attempted robbery with a deadly weapon and possession of a firearm as a serious violent felon, both Class B felonies, and possession of a sawed-off shotgun, a Class D felony. The trial court entered judgment and imposed sentence on all three convictions, with concurrent sentences of fifteen years with three years suspended on the Class B felony convictions. Calvert now appeals, raising the following restated issues: 1) whether sufficient evidence supports his convictions; 2) whether Calvert's dual convictions of possessing a firearm as a serious violent felon and possessing a sawed-off shotgun violate double jeopardy; and 3) whether Calvert's sentence is inappropriate in light of the nature of the offenses and his character. We conclude the evidence is insufficient to support Calvert's conviction of attempted robbery because the State failed to prove a substantial step; sufficient evidence supports Calvert's conviction of possessing a firearm as a serious violent felon; Calvert's conviction of possessing a sawed-off shotgun violates double jeopardy; and Calvert's sentence is not inappropriate. We therefore affirm in part, reverse in part, and remand with instructions.
In the evening of July 26, 2007, Calvert was driving a Jeep in which his wife Tina Jewell, Joseph Cole, and seventeen-year-old J.F. were passengers. Earlier in the evening Calvert and Jewell had picked up Cole and J.F. before driving to North Vernon. Calvert was acquainted with Cole and J.F., and J.F. had previously told Calvert about one or more robberies he had attempted or completed. According to Cole's statement to police officers, after Calvert picked up Cole and J.F., J.F. said he was going to rob a liquor store by running in, demanding money, and running back out.
Calvert was driving the Jeep southbound along State Road 7 in North Vernon when he turned the Jeep into the south side parking lot of the House of Spirits liquor store. Officer Staples of the North Vernon Police Department took notice of the Jeep because he had been assigned to specially patrol the city's liquor stores, the police department having been informed by another law enforcement agency that there were heightened grounds to suspect liquor store robberies. Officer Staples observed the Jeep circle the liquor store by turning into an alley behind the store, driving back to the north side parking lot, and finally turning north on State Road 7. Officer Staples then drove his police car out of the parking lot of American Rental, a business closed at the time and on the opposite side of the road from the liquor store, and turned to follow the Jeep.
Calvert turned the Jeep into the parking lot of American Rental and stopped it near where Officer Staples had initially been parked. Officer Staples parked his car behind the Jeep, stepped out, and spoke briefly with Calvert, who was still sitting in the Jeep's driver's seat and told Officer Staples he was “just hanging out.” Transcript at 153. When other officers arrived to assist, they removed Calvert and his three passengers from the Jeep. Calvert was cooperative while one of the officers frisked his person for weapons and found none. With all the doors of the Jeep open, Officer Keith Messer saw a sawed-off shotgun lying on the floor, partially under the front passenger seat but protruding enough toward the rear seat that its handle and trigger guard were plainly visible. Officer Messer also observed what looked like a handgun, but was actually a BB pistol, lying in “plain view” on the back seat. Id. at 177. An orange ski mask was also visible in the Jeep. Subsequent searches of the Jeep uncovered another BB pistol, three pairs of sunglasses, and two more orange ski masks.
Calvert, Cole, and J.F. were arrested and interviewed at the police station. Calvert claimed that at the time Officer Staples stopped behind the Jeep, he was getting ready to drop J.F. and Cole off at American Rental but had “no clue” what they were going to do there. Id. at 370. When asked about the guns in the Jeep and who they belonged to, Calvert answered:
Id. J.F., when interviewed separately, told the detective that the sawed-off shotgun belonged to Calvert.
The State charged Calvert with Count I, attempted robbery as a Class B felony; Count II, possession of a firearm by a serious violent felon as a Class B felony; and Count III, possession of a sawed-off shotgun as a Class D felony. The case was tried to a jury, which found Calvert guilty as charged. The trial court held a sentencing hearing and in its sentencing order found:
the following aggravating factors: [Calvert] has no high school diploma or GED certificate; [Calvert] has had two (2) formal delinquency adjudications, three (3) prior felony convictions and one (1) successful probation revocation. The Court finds the following mitigating factors: [Calvert]'s young age; incarceration would be a hardship on his dependents; the crime (in part) was caused by chronic substance abuse by [Calvert] since the age of twelve (12); and [Calvert] himself had been the victim of a sex crime at age eleven (11). The Court in weighing the aggravating factors and the mitigating factors, finds the aggravating factors slightly outweigh the mitigating factors and justify the imposition of a sentence in excess of the advisory sentence[.]
Appellant's Appendix at 220. The trial court imposed the following concurrent sentences: fifteen years on Count I, with twelve years executed and three years suspended to probation; fifteen years on Count II, with twelve years executed and three years suspended to probation; and two years, suspended, on Count III. Calvert now appeals.
When reviewing the sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We neither reweigh the evidence nor assess the credibility of witnesses. Id. If there is probative evidence from which a reasonable trier of fact could find the elements of the crime proven beyond a reasonable doubt, we must affirm. Id. “Where the evidence of guilt is essentially circumstantial, the question for the reviewing court is whether reasonable minds could reach the inferences drawn by the jury; if so, there is sufficient evidence.” Whitney v. State, 726 N.E.2d 823, 825 (Ind.Ct.App.2000) (quotation omitted).
Calvert argues the evidence is insufficient to sustain his conviction of attempted robbery. To convict Calvert of attempted robbery as a Class B felony, the State must prove beyond a reasonable doubt that Calvert, either directly or as an accomplice, engaged in conduct that constituted a substantial step toward the knowing or intentional taking of property from the liquor store, by using or threatening force or placing a person in fear, and while armed with a deadly weapon. Stokes v. State, 922 N.E.2d 758, 763-64 (Ind.Ct.App.2010) trans. denied; see Ind.Code § 35-41-2-4 (aiding an offense); Ind.Code § 35-41-5-1(a) (attempt); Ind.Code § 35-42-5-1 (robbery). The State argued at trial that Calvert aided J.F. in taking a substantial step toward robbing the liquor store.2 Calvert contends the evidence is insufficient to prove a substantial step, either by him directly or as an accomplice of J.F. For the reasons stated below, we agree.
“The substantial step element of attempt requires proof of any overt act beyond mere preparation and in furtherance of the intent to commit the crime.” Jackson v. State, 683 N.E.2d 560, 566 (Ind.1997). “This requirement has been described as a minimal one,' State v. Van Cleave, 674 N.E.2d 1293, 1304 (Ind.1996) reh'g denied, but the conduct must strongly corroborate the defendant's criminal intent.” Id. A reviewing court's analysis “focuses on what has occurred and not what remains to be done.” Id. Whether a defendant's actions constitute a substantial step is generally a question for the trier of fact based on the totality of circumstances, and it “is impossible to lay down any general rule to determine what acts are too remote to constitute an attempt.” Collier v. State, 846 N.E.2d 340, 344, 345-46 (Ind.Ct.App.2006) (quotation omitted) trans. denied. Nonetheless, in some cases the defendant's conduct will fall short of a substantial step as a matter of law. See id. at 350.
In Collier, this court held the defendant's actions did not constitute a substantial step toward the murder of his estranged wife. Three times on the day of the incident, Collier told a neighbor that he was going to kill his wife and himself. Later that night, he drove to his wife's workplace while she was there, had in his car an ice pick and a box cutter, and parked in a lot with a view of the building's only after-hours exit. However, when police officers later found Collier inside his car, he was asleep or passed out. This court reasoned that despite Collier's lying in wait, reconnoitering, and possessing materials to be used in the crime, his conduct as a whole was not “ strongly corroborative of his stated intent,” id. at 348 (emphasis original), because he thereafter ceased to be awake or alert and never came close enough to his wife to...
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