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COA tosses shooter’s intimidation conviction as double jeopardy

May 9, 2019

A man’s attempted murder conviction for shooting at a sheriff’s lieutenant while drunk was upheld by the Indiana Court of Appeals, which also vacated his felony intimidation conviction as double jeopardy.

After an intoxicated and angry Loren Gary threatened to shoot his nephew Jeramy, with whom he was living, Jeramy fled to a neighbor’s house with his girlfriend and infant child, called 911 and waited for law enforcement to arrive.

Tippecanoe County Sheriff’s Lieutenant Travis Dowell arrived at the scene and found Gary hiding behind a car. When ordered to show his hands, Gary refused and proceeded to shoot directly at Dowell until his gun jammed.

More officers arrived at the scene and Gary was arrested and charged with Level 1 felony attempted murder, Level 5 felony attempted battery, Level 5 felony intimidation, Level 6 felony pointing a firearm, Level 6 felony criminal recklessness, and Level 6 felony intimidation.

Gary was later found guilty of all charges, but a jury vacated the attempted battery, pointing a firearm, and criminal recklessness convictions on double jeopardy grounds. The state also requested a sentencing enhancement based on Gary’s use of a firearm.

Gary ultimately received an aggregate 35-year sentence. On appeal, he argued that insufficient evidence existed to prove attempted murder or Level 6 felony intimidation. He also argued that the attempted murder and Level 5 felony intimidation convictions subjected him to double jeopardy.

The Indiana Court of Appeals disagreed with the first assertion, finding that the nature of the circumstances surrounding the attack, along with the fact Gary fired a deadly weapon toward Dowell offered sufficient evidence of Gary’s intent to kill.

It further concluded that Gary could not proceed with his Level 6 intimidation claim under the invited error doctrine. However, the appellate court agreed with Gary’s third claim in Loren David Gary v. State of Indiana, 18A-CR-2067.

“Here, the State presented evidence Gary pointed his gun at Lieutenant Dowell, fired the gun hitting the license plate on the officer’s vehicle, and continued to point the gun at Lieutenant Dowell until the gun jammed and Lieutenant Dowell assumed a defensive stance to return fire.

“Because it is possible that some or all of that evidence could also be used to prove Gary intimidated Lieutenant Dowell, we conclude Gary’s convictions of both violate his right against double jeopardy,” Judge Melissa May wrote for the unanimous court.

It thus vacated Gary’s Level 5 felony intimidation conviction, remanded the case for the reallocation of the gun enhancement, and summarily affirmed the remainder of the trial court’s decision.

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