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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: RUTH JOHNSON Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ANN L. GOODWIN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
LONNIE WASHINGTON, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A05-0605-CR-238

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Grant Hawkins, Judge Cause No. 49G05-0508-MR-140718

December 20, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary Lonnie Washington appeals his convictions for felony murder, Class A felony robbery, and Class B felony criminal confinement. We affirm in part, reverse in part, and remand. Issues Washington raises three issues, which we reorder and restate as: I. whether there is sufficient evidence to support the felony murder conviction; whether the trial court properly denied his motion for mistrial; and whether his convictions for felony murder and robbery violate double jeopardy. Facts In the late morning of July 4, 2005, Lewis Beverly and his friend, Jennifer Miller, were at Beverly's house when Edward Mobley stopped by looking for Beverly's roommate. Beverly's roommate was away, and Mobley talked to Miller and Beverly for about a half an hour. During that time, Mobley observed Beverly count $200 to $300. Mobley also agreed to come back around 4:00 that afternoon expecting that Beverly's roommate would be home then. After Mobley left, Miller and Beverly walked down the street to another house, where Miller visited with Demetrius Jenkins. Washington,

II.

III.

Matthew Pittman, and Mohammed Steele were also at that house. While they were all there, Miller arranged for someone else to take her to pick up food. Beverly gave Miller

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$15 to get the food. At that time, Miller observed that he had less than $500 in his pocket. Miller left, and Beverly walked back to his house. Shortly thereafter, Pittman asked Jenkins to get some tape from the house. Jenkins went inside and returned with gray tape, which he gave to Pittman. Washington, Pittman, and Steele left in the same direction as Beverly. In the meantime, Mobley returned to Beverly's house around 3:00. He talked to Beverly for approximately a half an hour and then walked out to his truck to get a pen. As he returned to Beverly's house he noticed three men, one of whom was Washington, standing at the side entrance of Beverly's house. Mobley went in using the front door, and the three men came in the side door. Beverly sat on a couch, Mobley sat on a speaker box, Washington sat in a chair, and the other two men stood behind Beverly in the kitchen. Suddenly, one of the men standing behind Beverly jumped and kicked Beverly in the face, and the same man pulled out a black semiautomatic handgun. Beverly fell to the floor. Washington remained seated in the chair. Mobley ran out of the house, and the second man ran after him. Mobley got in his truck and left to call 911. When Miller returned to the house down the street from Beverly's with the food, Jenkins told her not to go to Beverly's house. She remained on the porch with Jenkins and saw Mobley run to his truck and leave. At that point, Miller called Beverly's house and heard Beverly "hollering." Tr. p. 158. Miller also heard Beverly say, "I swear to God that's all I got" before she was disconnected. Id. at 161. Miller tried to call again but could not get through. Jenkins suggested that Miller call the police. Miller decided to go to Beverly's house. When she arrived, Beverly told her to come in. He was lying 3

on the floor and was "bloody from head to toe, his eye was hanging out, his lips [were] swollen and he had duct tape on his arms and legs . . . ." Id. at 164. Beverly told Miller he was dying. Miller called Beverly's mother and 911. Five days later, Beverly died of a gunshot wound to the head that he sustained during the incident. On August 16, 2005, the State charged Washington with murder, Class A felony robbery, and Class B felony criminal confinement. The information was later amended to include a charge of felony murder based on the alleged robbery. A jury acquitted Washington of the murder charge but found him guilty of the robbery, confinement, and felony murder charges. The trial court sentenced Washington to sixty years on the felony murder conviction and three years on the criminal confinement conviction and ordered them to be served concurrently. The trial court did not sentence Washington on the robbery conviction because of double jeopardy concerns. Washington now appeals. Analysis I. Sufficiency of the Evidence Washington argues that there is insufficient evidence to support the felony murder and robbery convictions because there is insufficient evidence to establish the robbery. When faced with a challenge to the sufficiency of evidence to support a conviction, we neither reweigh the evidence nor judge the credibility of the witnesses, and we respect the jury's exclusive province to weigh conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We must consider only the probative evidence and reasonable inferences supporting the verdict. Id. If the probative evidence and reasonable

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inferences drawn therefrom could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt, we must affirm. Id. A person who kills another human being while committing or attempting robbery commits murder. Ind. Code

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