Dupree v. State

• Decision Date: 24 March 2016
• Docket Number: No. 49A02–1505–CR–439.,49A02–1505–CR–439.
• Citation: 51 N.E.3d 1251
• Parties: Alexander DUPREE, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

51 N.E.3d 1251

Alexander DUPREE, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1505–CR–439.

Court of Appeals of Indiana.

March 24, 2016.

Timothy J. O'Connor, O'Connor & Auersch, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

BRADFORD, Judge.

Case Summary

[1] On October 29, 2013, Appellant–Defendant Alexander Dupree and five accomplices (collectively, “the Defendants”), after variously using marijuana and cocaine and drinking alcohol since the prior evening, entered the Indianapolis home of C.P., his wife E.P., and their daughter A.P. (“the House”). Once inside, the Defendants proceeded to ransack the House in search of valuable items to steal, frequently threatening to shoot or kill C.P., E.P., and A.P. One of the Defendants drove with E.P. so that she could withdraw money from her bank, and he forced her to fellate him in the vehicle. Back at the House, Dupree forced A.P. to fellate him before he and three other Defendants vaginally raped her. At one point, C.P., who is unable to walk without the use of leg braces and a cane, was beaten with a drawer. One of the Defendants forced A.P. to drive to the bank so that she could withdraw cash, and then the Defendants left, taking C.P.'s, E.P.'s and A.P.'s vehicles with them. The ordeal lasted approximately two hours. Dupree was charged with thirty-five offenses, and, after a jury trial, was convicted and sentenced for eleven: Class A felony criminal deviate conduct, Class A felony attempted criminal deviate conduct, two counts of Class A felony rape, Class A felony burglary, Class A felony robbery, Class B felony robbery, Class C felony robbery, and three counts of Class B felony carjacking. The trial court imposed an aggregate sentence of 248 years of incarceration.

[2] Dupree contends that (1) his convictions for Class B felony robbery of A.P. and three counts of carjacking violate Indiana's single larceny rule, (2) his convictions for Class A felony robbery and Class A felony Burglary violate prohibitions against double jeopardy because they were both enhanced by the same bodily injury, and (3) his 248–year sentence is inappropriate. While we disagree with Dupree's first and third contentions, his second is meritorious. Consequently, we affirm in part, reverse in part, and remand with instructions to reduce Dupree's Class A felony robbery conviction to a Class B felony and reduce his aggregate sentence to 218 years of incarceration.

Facts and Procedural History

[3] During the evening of October 28, 2013, Dupree, Trae Spells, Michael Pugh, Adrian Anthony, and Demetre Brown were “hanging out” at an apartment near the intersection of 38th and Meridian Streets in Indianapolis. Tr. p. 968. At the apartment, the group was “chilling, smoking, and drinking.” Tr. p. 970. Spells indicated that he personally smoked marijuana and “Spice[.]” Tr. p. 970. Eventually, the five left in a car that Pugh had borrowed. The group first drove to a liquor store and obtained some peach vodka, which was then consumed. Next, the group obtained some powdered cocaine, of which all five partook.

[4] The group drove to another residence where “people were hanging out” and, after going in and having a “good time[,]” left with a sixth person, Isaiah Hill. Tr. p. 978. Eventually, the Defendants stopped at the House, located on 79th Street in Indianapolis. The Defendants walked into the garage, which had been left open the night before. Brown and Anthony were armed with .38 caliber handguns. All six of the Defendants donned gloves, and Pugh opened the door into the House, which had been left unlocked. Once inside, all Defendants went upstairs and happened to first enter C.P. and E.P.'s bedroom, Anthony brandishing a handgun and leading the way.

[5] C.P. and E.P. were awakened by loud voices at 5:15 a.m. The voices instructed C.P. and E.P. to get up and were demanding cash, cellular telephones, and guns. C.P. and E.P. were also told not to look up and that, if they did, they would be killed. C.P. suffers from a neurological condition that requires him to use leg braces and a cane to walk. When C.P. stated that he needed to put his leg braces on, he was told to remain in bed while E.P. got up.

[6] Meanwhile, A.P. awoke in the next bedroom when she heard screaming. A.P. brought her purse to her parents' bedroom and gave it to the first Defendant she encountered. At some point later in the morning, one of the Defendants came into C.P.'s bedroom demanding the keys to the Ford Explorer in the garage. Although C.P. answered, the reply was not heard, and the Defendant beat C.P. over the head with a nightstand drawer.

[7] Spells was told to take A.P. back to her bedroom, and, at about the same time, E.P. attempted to run to an office down the hallway and dial 911. Anthony shot E.P. in the hip as she ran and she did not make it to the telephone. When Spells asked Anthony why he had shot E.P., Anthony replied, “Shut up little Bro. It's what you gotta do.” Tr. p. 997. Spells and Brown took A.P. back to her bedroom and made her lie face down on her bed. At one point, one of the Defendants began to touch the back of A.P.'s leg, moved up to one of the leg openings in A.P.'s sleep shorts, and touched her vagina on the outside. Somebody asked A.P. if she had any money, and she replied that she had $9000.00 in her bank account. This generated great excitement, and A.P. was taken downstairs.

[8] By this time, Hill had helped E.P. downstairs. Once downstairs, some of the Defendants were discussing taking E.P. to an ATM and going through sets of keys, asking her which set went with her vehicle, a Ford Escape. The keys to the Escape were identified around the time that E.P. became aware that A.P. had also been brought downstairs by Spells and placed in a room adjacent to the kitchen. E.P. walked out into the garage with Anthony and attempted to run to the next-door neighbor's house, but tripped and fell and was tackled by Anthony. Anthony dragged E.P. back into the kitchen and shot her again, this time in the foot. When asked by another of the Defendants why he had shot E.P., Anthony explained that it had been because she ran. One of the Defendants then kicked E.P. in the head, causing her to “really [see] stars.” Tr. p. 97. E.P. decided at this point that she was just going to do whatever the Defendants told her to.

[9] Anthony pulled E.P. into the back seat of the Escape, and as Hill drove, E.P. gave directions to her bank at 91st and Meridian Streets. After a while, Anthony showed E.P. the ATM card they wished to use, and she noticed that it was A.P.'s, the pin code to which she did not know. Hill turned the Escape around to return to the House. On the way back, Anthony pulled down E.P.'s sweat pants and his own and unsuccessfully attempted to anally penetrate her from behind. After a short time, Anthony said, “This isn't working. Let's try it a different way.” Tr. p. 107. Anthony turned E.P. around, forced her head down, and forced her to fellate him. Anthony ejaculated in E.P.'s mouth and told E.P., “You better swallow or I'll kill you.” Tr. p. 110. E.P. did, and Anthony looked into her mouth and wiped it out with “a sleeve or some piece of material.” Tr. p. 110.

[10] Once back at the House, Hill went in and retrieved another ATM card, this time C.P.'s. Anthony had taken E.P. around to the driver's seat and he sat in the front passenger seat. E.P. backed out and, as they drove, Anthony held a gun on her. When Anthony and E.P. arrived at the ATM, E.P. withdrew $800.00 and gave it to Anthony. Anthony told E.P. to tell “the other guys” that they had only withdrawn $500.00. Tr. p. 119. After an unsuccessful attempt to withdraw more money, the duo returned to the House.

[11] While E.P. was being taken to withdraw money, A.P. was in the room next to the kitchen and was told by Spells that she was going to be shot if she opened her eyes. Hill, after returning from the first trip to the bank with Anthony and E.P., grabbed A.P. by the hair and took her into an adjacent bathroom. Hill sat on the toilet while Dupree sat on the sink counter. Dupree said, “I'm gonna get head from this ... girl.” Tr. p. 191. Dupree pushed A.P.'s head down, caused her to fellate him, and said, “If you bit[e] me, I'll shoot you.” Tr. p. 198. At the same time, Hill was attempting to have vaginal intercourse with A.P. from behind, but was unable to achieve full penetration. After a while, Hill led A.P. through a second door in the bathroom into a den.

[12] Once in the den, Hill led A.P. to a couch where he vaginally penetrated her and told her to “moan bitch[.]” Tr. p. 204. After Hill finished, Dupree unsuccessfully attempted to anally penetrate A.P. as she stood with her back to him and her hands on the couch. Dupree did manage to vaginally penetrate A.P. with his penis. When Dupree was finished, Brown moved A.P. to the floor and vaginally penetrated her with his penis. While Brown was raping A.P., Spells left and told Pugh that “they down there having sex with her[.]” Tr. p. 1026. Pugh told Spells to watch C.P., but Spells returned downstairs when it appeared that C.P. could not move. Spells arrived back in the den as Brown was finishing his rape of A.P. Brown told Spells several times, “Bro, get some Bro[,]” and Spells raped A.P. as well. Tr. p. 1028. Spells vaginally penetrated A.P. and ejaculated inside of her. Spells left A.P. on the den floor.

[13] Meanwhile, Anthony had returned with E.P. from the second trip to the bank and left her on the living room floor by the front door. Anthony left with A.P. and the duo got into the Escape, with A.P. driving. Anthony was pointing a handgun at A.P. At first, A.P.'s debit card could not be located, but it was found in the yard, and Anthony and A.P. left. A.P., who by this time was wearing nothing but a t-shirt, felt her bare feet sticking in her mother's blood...