Opinion
24A-CR-308
09-27-2024
Labaron Ferguson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
Attorneys for Appellant Talisha R. Griffin Indianapolis, Indiana Matthew D. Anglemeyer Indianapolis, Indiana. Attorneys for Appellee Theodore E. Rokita Indiana Attorney General George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court Trial Court Cause No. 49D30-2112-F3-037107, The Honorable Cynthia L. Oetjen, Judge.
Attorneys for Appellant Talisha R. Griffin Indianapolis, Indiana Matthew D. Anglemeyer Indianapolis, Indiana.
Attorneys for Appellee Theodore E. Rokita Indiana Attorney General George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana.
Kenworthy, Judge and Riley, Senior Judge concur.
MEMORANDUM DECISION
Felix, Judge.
Statement of the Case
[¶1] Labaron Ferguson, along with four others, Gregory Clifton, Darrelle Risper Jr., Quintez Tucker, and Robdarius Williams, participated in a robbery of a local AT&T store by placing a rifle to the employee's head and threatening to kill him. Because Ferguson did not enter the store, the State charged him as an accomplice. At trial, Ferguson offered a jury instruction on accomplice liability, but the trial court denied his request. The jury found Ferguson guilty on multiple counts, including robbery, intimidation, and pointing a firearm. Ferguson appeals and presents two issues for our review:
1. Whether the trial court abused its discretion by denying Ferguson's request for a jury instruction; and
2. Whether the trial court violated protections against double jeopardy by entering convictions for robbery, intimidation, and pointing a firearm.
[¶2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[¶3] On December 3, 2021, Indianapolis Metropolitan Police detectives and officers with the FBI Violent Crimes Task Force were conducting surveillance on a Chevy Malibu that had been connected to multiple robberies. Law enforcement observed the occupants of the Malibu meet with other individuals in a Ford Focus at a public park. After a few minutes, both cars left the park simultaneously and drove towards the south side of Indianapolis using different routes. At this time, Rucker, Risper Jr. and Williams were in the Malibu. In the Focus were Ferguson and Clifton-Ferguson was driving.
[¶4] Law enforcement followed both vehicles until the Malibu and Focus met again in a furniture store parking lot on the south side of Indianapolis. Both vehicles then drove across the street to an AT&T store and circled the parking lot multiple times. The vehicles then drove to an adjacent parking lot where they had a brief meeting. After the meeting, the Malibu parked in the AT&T parking lot while Ferguson parked the Focus in an adjacent lot facing the AT&T store, positioning himself as a lookout.
[¶5] Risper Jr. and Tucker got out of the Malibu and went into the AT&T store where Nathan Ray, an AT&T employee, was the only occupant. Risper Jr. entered the store holding a rifle and pointed it at Ray. Tucker and Risper Jr. instructed Ray to take them to the safes where the cash and merchandise are stored. The two robbers proceeded to collect cash, iPhones, iPads, and Apple Watches from the safes. While they were taking the cash and merchandise, both robbers told Ray that "they would kill [him]" if he tried to call for help, Tr. Vol. II at 141, and Risper Jr. kept the rifle on Ray "the whole time," id. at 142-at one point, pressing the rifle to the back of Ray's head. After Tucker and Risper Jr. left the store with the stolen goods, they entered the Malibu. Both cars then left the scene.
[¶6] Law enforcement stopped both cars within minutes of leaving the scene. During Ferguson's arrest, law enforcement found a pistol, oxycodone, and marijuana on Ferguson's person. The State charged Ferguson with robbery as a Level 3 felony, kidnapping as Level 3 felony, intimidation as a Level 5 felony,pointing a firearm as a Level 6 felony, possession of a controlled substance as a Level 6 felony, carrying a handgun without a license as a Class A misdemeanor, and possession of marijuana as a Class B misdemeanor.
Id. § 35-42-3-2(a), (b)(3).
Id. § 35-45-2-1(a)(4), (b)(2)(A).
Id. § 35-47-4-3(b).
Id. § 35-48-4-7(a), (b).
Id. § 35-47-2-1.
Id. § 35-48-4-11(a)(1).
[¶7] At trial, the State requested the trial court give the pattern jury instructions on accomplice liability for robbery, intimidation, and pointing a firearm. Ferguson requested the trial court add the following language to the instructions: "[T]he mere presence of a person even with coupled knowledge that a person [sic], that a crime has been committed or a mere acquiescence by a person even with guilty knowledge, it's not sufficient to establish aiding, inducing or causing." Tr. Vol. III at 59. The trial court denied Ferguson's request and provided the pattern instructions to the jury.
[¶8] The jury found Ferguson guilty of robbery, intimidation, pointing a firearm, possession of a controlled substance, carrying a handgun without a license, and possession of marijuana. The trial court entered convictions on all counts. Ferguson now appeals.
Discussion and Decision
1. The Trial Court Did Not Abuse Its Discretion by Denying Ferguson's Proposed Jury Instruction
[¶9] Ferguson claims that the trial court erred when it refused to give his proffered jury instruction. We review the denial of proposed jury instructions for abuse of discretion. Owens v. State, 210 N.E.3d 256, 267 (Ind. 2023), reh'g denied (Aug. 17, 2023). To determine if the trial court's denial of a proffered instruction is an abuse of discretion we determine: "(1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions that are given." Id. at 267-68 (quoting Chambers v. State, 734 N.E.2d 578, 580 (Ind. 2000)). We will reverse "only if the appellant demonstrates that the instruction error prejudices his substantial rights." Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015) (quoting Treadway v. State, 924 N.E.2d 621, 636 (Ind. 2010)).
[¶10] Ferguson proffered the following jury instruction concerning accomplice liability: "[T]he mere presence of a person even with coupled knowledge . . . that a crime has been committed or a mere acquiescence by a person even with guilty knowledge, it's not sufficient to establish aiding, inducing or causing." Tr. Vol. III at 59. The State does not argue that Ferguson's proposed instruction incorrectly states the law or that the record lacks evidence to support the instruction. Instead, the State argues only that the substance of Ferguson's instruction was covered by the other instructions given to the jury. Thus, we must determine only whether the substance of Ferguson's proffered instruction was covered by the other instructions given to the jury. See Owens, 210 N.E.3d at 267.
[¶11] The trial court provided instructions to the jury regarding accomplice liability for robbery, intimidation, and pointing a firearm. All three instructions include the following language:
A person who, knowingly or intentionally aids another person to commit an offense commits that offense.
* * *
Before you may convict the Defendant of this crime, you must find there is evidence of the Defendant's affirmative conduct, either in the form of acts or words, from which an inference of a common design or purpose may be reasonably drawn. The Defendant's conduct must have been voluntary and in concert with the other person.
The Defendant's mere presence at the scene of the crime, or mere acquiescence in the commission of the crime, is insufficient to convict for aiding the crime charged . . . .
Appellant's App. Vol. II at 176-77, 180-81, 182. Ferguson argues that these instructions do not cover his proposed instruction because they fail to inform the jury that knowledge of the crime or acquiescence to the crime with guilty knowledge are insufficient to demonstrate accomplice liability.
[¶12] Our Supreme Court addressed the denial of an almost identical instruction in Hartman v. State, 669 N.E.2d 959, 961 (Ind. 1996). There, the trial court denied an instruction including the following language:
The mere presence of a Defendant where a crime is being committed, even coupled with knowledge by the Defendant that a crime is being committed, or the mere acquiescence by a Defendant in the criminal conduct of others, even with guilty knowledge, is not sufficient to establish aiding, inducing or causing a crime.Hartman, 669 N.E.2d at 961. The instructions that the trial court provided to the jury defined "aiding" and established that mere presence is insufficient to prove aiding. Id. The Supreme Court determined that the trial court properly refused the proposed instruction "because it addressed points of law already covered in other instructions." Id. Here, the jury instructions defined "aiding," noted that mere presence or acquiescence were insufficient to prove aiding, and established that affirmative conduct by the Defendant was necessary for a conviction. Thus, we conclude that the substance of Ferguson's proposed instruction was covered by the other instructions given to the jury. See id.
2. The Trial Court Violated Double Jeopardy Protections by Entering Convictions for Robbery, Intimidation, and Pointing a Firearm
[¶13] Ferguson argues that the trial court violated protections against double jeopardy. We review double jeopardy claims de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024). Ferguson claims that his convictions violate protections against substantive double jeopardy, meaning he is alleging that he received "multiple convictions for the same offense in a single proceeding." Id. at 1066. Specifically, Ferguson contends that the intimidation and pointing-a-firearm offenses were in furtherance of the robbery and, therefore, he should not receive multiple punishments for a single offense. We use the three-part Wadle test to review substantive double jeopardy claims. Id. Ferguson argues-and the State agrees-that step three of the Wadle test shows that his convictions violate protections against substantive double jeopardy. We agree with the parties.
[¶14] At step three of Wadle, we "probe the underlying facts-as presented in the charging instrument and adduced at trial-to determine whether a defendant's actions were 'so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.'" A.W, 229 N.E.3d at 1071 (quoting Wadle v. State, 151 N.E.3d 227, 249 (Ind. 2020)). Here, the facts at trial show that the robbery, intimidation, and pointing a firearm were all part of one continuous transaction. Ray testified that, once Risper Jr. and Tucker entered the store, Risper Jr. pointed the gun at him and kept the gun on him "the whole time." Tr. Vol. II at 142. While Ray was giving them the cash and merchandise, the robbers threatened to kill him if he did not follow their orders. Further, during sentencing, the State argued that the intimidation and pointing a firearm conviction should be merged into the robbery conviction. Thus, the robbery, intimidation, and pointing of a firearm were all part of a single transaction and Ferguson's convictions for intimidation and pointing a firearm violate double jeopardy. See A.W, 229 N.E.3d at 1071.
Conclusion
[¶15] The trial court did not abuse its discretion by refusing to give Ferguson's requested jury instruction on accomplice liability, and the trial court violated protections against substantive double jeopardy by entering convictions for robbery, intimidation, and pointing a firearm. We remand with instructions to vacate Ferguson's convictions for intimidation and pointing a firearm.
[¶16] Affirmed in part, reversed in part, and remanded with instructions.
Kenworthy, J., and Riley, Sr. J., concur.