State v. Moore, 18A05-9506-CR-249
| Decision Date | 04 June 1996 |
| Docket Number | No. 18A05-9506-CR-249,18A05-9506-CR-249 |
| Citation | 666 N.E.2d 109 |
| Parties | STATE of Indiana, Appellant-Plaintiff, v. Doyle G. MOORE, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Pamela Carter, Attorney General, Lisa M. Paunicka, Deputy Attorney General, Indianapolis, for Appellant.
Jay L. Toney, Winchester, for Appellee.
A jury acquitted Doyle G. Moore, Jr. of conspiracy to commit robbery resulting in serious bodily injury, a Class A felony. 1 The jury could not reach a verdict on the charge of robbery resulting in serious bodily injury, a Class A felony. 2 Doyle moved to dismiss the robbery charge, arguing that double jeopardy prohibited a retrial of that charge. The trial court granted the motion to dismiss and the State appeals, raising the sole issue of whether double jeopardy bars retrial of the robbery charge. We reverse.
The charges of conspiracy to commit robbery resulting in serious bodily injury and robbery resulting in serious bodily injury arose from the shooting death of a pizza delivery man. On the evening of January 28, 1993, Moore, Dewayne McCowan, and Martez Powell were at a party at Ziggy Robinson's house. At some point, McCowan, Powell and Robinson decided to rob someone in order to get rent money. The evidence conflicts as to whether Moore was involved in the discussion to rob someone. Later in the evening, McCowan, Powell, Robinson and Moore left the party and drove around. Robinson decided he did not want to be involved and was taken home. At this point, Moore was driving the car. After taking Robinson home, Moore drove to a Village Pantry. At the Village Pantry, McCowan and Powell saw a pizza delivery person getting into his car and told Moore to follow him. There is evidence that Moore complied because McCowan threatened him with a gun. Moore followed the delivery man to an apartment complex. When the delivery man returned to his car after delivering the pizza, McCowan and Powell, both pointing guns, approached him and took his money. The evidence conflicts as to whether Moore also approached the delivery man with a gun. After the delivery man turned over his money, Powell shot him. Moore, McCowan and Powell then fled the scene.
The State argues that the trial court erroneously granted Moore's motion to dismiss because conspiracy to commit robbery and robbery are not the same offense. Double jeopardy principles prohibit, among other things, a second prosecution for the same offense after an acquittal. Buie v. State, 633 N.E.2d 250, 259 (Ind.1994), reh'g denied; see also Bryant v. State, 660 N.E.2d 290, 297 (Ind.1995). To determine whether two offenses are the same for double jeopardy purposes, we must look to see if each offense requires proof of an element that the other offense does not. If so, the offenses are not the same. Bryant, 660 N.E.2d at 298; Buie, 633 N.E.2d at 260. The offense of conspiracy to commit robbery resulting in serious injury and the offense of robbery resulting in serious injury are not the same offense. Johnson v. State, 581 N.E.2d 971, 974 (Ind.Ct.App.1991), trans. denied. The elements of conspiracy to commit robbery resulting in serious injury are 1) an intent to commit robbery resulting in serious injury, 2) an agreement with another person to commit robbery resulting in serious injury, and 3) an overt act in furtherance of the agreement. See Ind.Code § 35-41-5-2 (West 1986). The elements of robbery resulting in serious injury are 1) the knowing or intentional taking of another's property, 2) by the use of or threat of force or placing the other person in fear, and 3) resulting serious bodily injury. See Ind.Code § 35-42-5-1 (West 1986). Each offense requires proof of an element the other does not. Conspiracy requires an agreement and robbery requires the taking of property. By statute, the offenses are not the same.
This does not end our inquiry, though, because we must look beyond the statutory language to the manner in which the offenses were charged. Buie, 633 N.E.2d at 260. "If from the manner in which the offenses were actually charged it appears that one offense becomes a 'species of lesser-included offense,' then the double jeopardy principles bar a second prosecution after acquittal." Id. (quoting United States v. Dixon, 509 U.S. 688, 697, 113 S.Ct. 2849, 2857, 125 L.Ed.2d 556 (1993)). Under a double jeopardy analysis, a lesser included offense and the greater offense are the same offense. Thus, if the underlying offense is charged by the State as the overt act element of the conspiracy offense, the underlying offense is a lesser-included offense of the conspiracy offense as charged, and double jeopardy prohibits a second prosecution for the underlying offense after acquittal of the conspiracy charge. Id...
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Fields v. State, 27A02-9512-CR-736
...double jeopardy bars separate sentencing upon the lesser offense when a sentence is imposed on the greater one. State v. Moore, 666 N.E.2d 109, 110-111 (Ind.Ct.App.1996). In the instant case, Fields was convicted of criminal recklessness and possession of a handgun without a license. Pursua......
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Moore v. State
...appeals his convictions for robbery, as a Class A felony, and felony murder. The facts as found by this Court in State v. Moore, 666 N.E.2d 109, 110 (Ind.Ct.App.1996), trans. denied, are as On the evening of January 28, 1993, Moore, Dewayne McCowan, and [Martze] Powell were at a party at Zi......