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2 of man's convictions after botched robbery reduced due to double jeopardy violations

October 5, 2017

A man convicted on eight charges related to an attempted robbery will have his sentencing enhancement vacated and two of his convictions reduced after the Indiana Court of Appeals found multiple errors in the trial court’s handling of the case.

In Marquell M. Jackson v. State of Indiana, 82A04-1609-CR-2074, Logan Orth periodically stayed in in Jeremy Herbert’s apartment above an Evansville tavern and sold marijuana from the apartment. When Marquell Jackson and Diego Thomas learned about Orth’s marijuana, they developed a plan to rob the apartment. However, when they arrived and saw a surveillance camera above the door, the men abandoned their plan.

Jackson and Thomas then solicited the help of three friends to carry out their robbery plan, deciding to don face masks and use two firearms to get the marijuana. But when the group entered the apartment, they found Orth, Herbert and eight other people inside smoking marijuana.

A gunfight then ensued between the apartment occupants and the would-be robbers, resulting in Orth and other participants being shot. Though no one was killed in the shoot-out, the invaders eventually drove to the hospital to visit one of their wounded friends and were arrested.

While in jail, Jackson made several phone calls that were recorded, with his knowledge, in which he stated that he expected to be convicted of burglary and that he ran from the scene when the gunfire ensued. He was eventually charged with 16 offenses and a criminal gang enhancement. Three days before Jackson’s trial was scheduled to begin, the state amended the charging language related to the gang enhancement to no longer exactly track the language of the applicable statute, but Jackson did not object.

Jackson was then found guilty as charged in a bifurcated trial between the substantive offenses and the criminal gang enhancement. The jailhouse phone recordings were admitted into evidence over Jackson’s objections, and some of his accomplices testified against him.

The trial court entered judgment against Jackson for Level 1 felony burglary, Level 2 felony attempted robbery, four counts of Level 3 felony attempted robbery and two counts of level 3 felony aggravated battery, as well as the gang enhancement, and sentenced him to an aggregate of 60 years. However, the Indiana Court of Appeals reversed part of Jackson’s convictions and sentence in a Thursday opinion, finding fundamental error occurred in the case.

Specifically, Judge Edward Najam, writing for the unanimous appellate panel, noted the state’s amended language of the criminal gang enhancement omitted the mens rea language from the applicable statute, Indiana Code 35-50-2-15(b) (2015). It also added an element not within the statute – being “a known member” of a criminal gang versus “knowingly or intentionally” being in a gang, Najam wrote.

As a result, the amended charge “carries a wholly different meaning,” he wrote, so the trial court committed fundamental error by allowing the state to amend the charging information in this manner. The case was remanded on that issue with instructions for the Vanderburgh Circuit Court to vacate the enhancement and the sentence imposed in it.

The appellate panel then found two of Jackson’s convictions – robbery as a Level 2 felony and aggravated battery as a Level 3 felony – violated double jeopardy protections. That’s because each of those offenses was enhanced based upon the same bodily injury inflicted on Orth during the gunfight. Those convictions were reversed and remanded with instructions to enter judgment on lesser-included offenses of Level 5 felony robbery and Class B misdemeanor battery.

However, the appellate judges upheld the admission of the jailhouse phone calls and the trial court’s jury instruction on accomplice liability, finding no abuse of discretion on fundamental error in regard to either of those issues. Finally, Najam wrote there was sufficient evidence to support Jackson’s Level 1 felony burglary conviction.

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