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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: ELLEN M. O'CONNOR Marion County Public Defender Agency Indianapolis, Indiana

FILED
Jun 05 2012, 8:27 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana

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

No. 49A04-1108-CR-415

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Sheila A. Carlisle, Judge Cause No. 49G03-1003-MR-19208

June 5, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge

Case Summary and Issue Mark Shepard was convicted of conspiracy to commit robbery, a Class C felony, and felony murder. He appeals, raising the sole issue of whether Indiana's double jeopardy principles were violated by his conviction of both offenses. Concluding his convictions do not violate double jeopardy principles, we affirm. Facts and Procedural History In the early hours of March 8, 2010, Mark Shepard, Ronald More, Randall Bowles, and Nick Khanthamany arrived at the residence of John Tracey for the purpose of robbing him. They believed that Tracey was a drug dealer and had possession of $14,000, thirty pounds of marijuana, and numerous pills. More and Bowles began

discussing the robbery four to six months earlier. Approximately three to four days before March 8, More and Bowles asked Khanthamany if he would like to help with the robbery. Khanthamany declined so More and Bowles asked Shepard to participate and convince Khanthamany to help. Khanthamany did as well. On March 7, all four men came together at the shared residence of More and Bowles to discuss the details of the robbery. They possessed two guns, a .25 caliber gun belonging to Bowles and a .40 caliber gun belonging to Khanthamany. The men had ammunition for the .40 caliber handgun, but had not yet obtained ammunition for the .25 caliber gun. At approximately 10 or 11 p.m., the four men left and went to Debora Khanthamany's home. They continued discussing the robbery, focusing on the plan and how to divide anything they recovered from Tracey's home. Khanthamany agreed to bring a third gun, which was his own .25 caliber handgun, and ammunition. When the
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Shepard agreed to participate and, shortly after,

four men left Debora's home in a white Buick LeSabre, Shepard was armed with a loaded .40 caliber handgun and More and Khanthamany were armed with loaded .25 caliber handguns. The men drove to Tracey's home dressed in black and gray clothing. All covered their faces with blue bandanas and Bowles and More wore ski masks. While the four men were attempting to find a way into Tracey's residence, they noticed a white car parked outside that had not been there when they arrived. They assumed the driver would return shortly and decided to attempt to gain entry into Tracey's residence by putting a gun to the head of the driver and forcing him to take the four men into the residence. To facilitate that plan, they let the air out of the tires of the car. While Shepard, More, Bowles, and Khanthamany were flattening the tires, Seth Habig, a friend of Tracey's, came out of Tracey's apartment and saw the four men surrounding the car. Habig went back inside to warn Mark Jenkins, another friend of Tracey's, that some men were disturbing Jenkins's car. Habig, Jenkins, and Tracey armed themselves with a hammer, a hatchet, some knives, and mace, and went outside to investigate. Habig, Jenkins, and Tracey The three men

discovered the white Buick LeSabre, which belonged to Shepard.

proceeded to "slice their tire," "bash[] out their windows" and spray mace on the car. Transcript at 85. Eventually, Habig, Jenkins, and Tracey discovered Shepard, More, Bowles, and Khanthamany hiding in the bushes and said "there's the motherfuckers right there." Id. at 128. Upon hearing those words, Shepard and Khanthamany began

shooting. Tracey was shot six times and later died from his injuries. Shepard kicked Tracey in the face before the four men escaped in the white Buick LeSabre. Shepard later told his girlfriend he shot Tracey because "[h]e thought the dude had a gun because .
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. . [s]omething shiny was in his hands." Id. at 232. Shepard, More, Bowles, and Khanthamany were later arrested. The guns were never recovered. The State charged Shepard with conspiracy to commit robbery as a Class B felony, attempted robbery as a Class A felony, and felony murder. Following a bench trial, Shepard was found guilty as charged. The trial court entered the conspiracy to commit robbery as a Class C felony conviction and did not enter a conviction for attempted robbery. Shepard was sentenced to sixty years for felony murder and five years for conspiracy to commit robbery, to be served concurrently. Shepard now appeals his convictions. Discussion and Decision I. Double Jeopardy Article 1, section 14 of the Indiana Constitution provides, "No person shall be put in jeopardy twice for the same offense." "[T]wo or more offenses are the `same offense' . . . if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense." Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original, footnote omitted). To establish that "two challenged offenses constitute the `same offense' in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense." Id. at 53 (footnote omitted). The "actual evidence test `is not violated when the evidentiary facts

establishing the essential elements of one offense also establish only one or even several,
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but not all, of the essential elements of a second offense.'" James v. State, 953 N.E.2d 1191, 1194 (Ind. Ct. App. 2011) (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)). "When two convictions are found to contravene double jeopardy principles, a reviewing court may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation." Richardson, 717 N.E.2d at 54. If not, it is necessary to vacate one conviction. Id. II. Actual Evidence Shepard, making a claim only under the actual evidence test, contends "[t]he Information set forth the `substantial act' of the attempted robbery which resulted in the felony murder and the `overt act' in furtherance of the conspiracy as the same facts." Appellant's Brief at 8. Application of the actual evidence test requires the reviewing court to identify the essential elements of the challenged crimes and evaluate the evidence from the fact-finder's perspective, considering the charging information, jury instructions, and arguments of counsel where relevant. James, 953 N.E.2d at 1194. The essential elements of the conspiracy charge are that (1) Shepard (2) agreed with another person (3) to commit the crime of robbery and (4) one of the conspirators performed an overt act in furtherance of the agreement. Ind. Code

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