Justin Cherry v. State of Indiana

Tuckerton Police officer Justin Cherry is acquitted of excessive force charges after K-9 attack

Around 4 a.m. on April 2, 2017, Terry McCarter heard a loud noise toward the

front of his house. Terry and his wife, Patsy McCarter, were in bed at the time.

Upon hearing the noise, Terry went to investigate. Terry was confronted in his

dining room by a masked man with a gun. The man ordered Terry to lay face

down on the floor.

[3] Three more men came into the house, and one of them held Terry at gunpoint.

Another man went to the bedroom, pointed a gun at Patsy, and said “we’re

going to rob you.” (Tr. Vol. II at 176.) The man stuffed all of Patsy’s jewelry

into a pillow case. He then took the jewelry and a safe he found out of the

room, before returning and ransacking the room. The man ordered Patsy out of

bed and flipped the mattress. The man found a gun on the nightstand and took

it. Because the man was covered from head to toe in black clothing, Patsy was

not able to describe any identifying characteristics of the robber, but she noticed

he was wearing unique gloves with white patterns. While Patsy was being held

in the bedroom, and Terry was being held in the dining room, the other two

men searched the rest of the house and stole everything of value. Terry heard

one of the men refer to another as “Dustin or Justin or something like that.”

(Id. at 159.)

[4] From the house, the men stole $500 from Terry’s wallet, $6,000 from the

McCarters’ small business that was stored in a desk, $200 from Patsy’s purse, a

.223 rifle, an antique musket loader, a .22 rifle, a single shot shotgun, a leaded

glass clock, multiple prescription medications, Patsy’s jewelry, the safe, and the

handgun from the bedroom. From the McCarters’ barn, the men took a

chainsaw, a tool set, and some smaller personal items. From the garage, the

men took an air compressor and some drills.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019 Page 4 of 18



[5] After about an hour, when the men had finished plundering the McCarters’

property, the men ordered Terry and Patsy into a sunroom adjoining their

bedroom. The men demanded to know where their “stash” was. (Tr. Vol. II at

143.) Then, one of the men hit Terry in the back of the head with the butt of a

rifle, knocking Terry unconscious. The men locked Terry and Patsy in the

sunroom.

[6] When Terry awoke, he and Patsy watched the four men walk to their garage

and steal their 2003 Buick Rendezvous. After the men left, Terry escaped the

sunroom through an unlocked, second entrance. He went to the garage, found

his cell phone, and drove the couple’s other car to a location with sufficient cell

service to call police. Officers responded and began their investigation. On a

ramp leading up to the garage, police found a shoe print not belonging to Terry

or Patsy.

[7] Terry was evaluated by paramedics but opted not to go to the hospital. The

back of Terry’s head turned black and blue. Three days after the robbery, Terry

began to have severe headaches that continued to worsen. A nearby hospital

diagnosed him with hemorrhaging near the brain. Terry was transferred to St.

Vincent Hospital in Indianapolis, where the doctors determined the bleeding

had stopped. Terry was told he had a large amount of blood on his brain and

would continue to have headaches. After going home, Terry’s condition

worsened. He returned to St. Vincent Hospital where the doctors discovered

the bleeding had begun again. Terry underwent surgery and spent five days in

the hospital recovering.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019 Page 5 of 18



[8] A few days after the burglary, in Indianapolis, Christina Blair noticed a

suspicious vehicle parked along the street outside her home. The driver

appeared to be waiting until nobody was watching before he exited the car.

Blair watched as the man exited the car and went to a house at 3835 Spann

Avenue, which recently had been the site of police activity. Blair walked up to

the car and noticed it had a handicapped license plate, despite the man not

appearing to be handicapped. Blair reported the vehicle to the police.

[9] The officer responding to Blair’s call ran the car’s plates. He discovered it was

the vehicle stolen from the McCarters. The officer surveilled the vehicle for a

while, and eventually he had it impounded. The vehicle was transported to the

Putnam County Sheriff’s Department, where it was searched. Police found a

receipt from a McDonald’s restaurant on Southeastern Avenue in Indianapolis,

and the receipt had a timestamp after the robbery. Deputy McFadden of the

Putnam County Sheriff’s Department travelled to Indianapolis and drove past

the home at 3835 Spann Avenue to gather information. Deputy McFadden

drove behind the home and noticed the garage partially open. A man, later

identified as Justin Cherry, came out of the garage and watched Deputy

McFadden drive by.

[10] On April 9, 2017, officers with the Indianapolis Metropolitan Police

Department (“IMPD”) executed a search warrant at 3835 Spann Avenue. In

the garage, the police discovered pill bottles with the names of Terry and Patsy

McCarter on them. Officers also seized a phone belonging to Daltyn

Randolph, one of the home’s occupants.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019 Page 6 of 18



[11] Deputy McFadden obtained his own warrant to search the 3835 Spann Avenue.

IMPD officers secured the residence and ordered everyone out. After a delay,

Daltyn Randolph, Steven Cosand, Michael Hostetler and Ronnie Sosby exited.

Thirty minutes after those four exited, Cherry surrendered. Cherry’s boots were

removed and compared to the print found at the McCarter’s home. In one of

the bedrooms, deputies found multiple pieces of mail addressed to Cherry,

along with pictures of Cherry and his daughter, and a safe containing pieces of

jewelry belonging to Patsy. In an airduct in the same bedroom, police

recovered the .38 handgun taken from the McCarter’s nightstand. Police also

recovered a cell phone belonging to Cosand while searching the house.

[12] On May 10, 2017, IMPD officers executed a search warrant on a storage unit

rented by a girlfriend of Paul Reese, who was another suspect being investigated

by police. The storage unit contained multiple items belonging to the

McCarters. Police obtained search warrants for both of the phones they found

at 3835 Spann Avenue. A search of Randolph’s phone revealed three contacts:

Justin, Paul, and Drake. There was also a web search for “Couple held at

gunpoint for an hour during home invasion.” (Tr. Vol. III at 38.) A search of

Cosand’s phone revealed the same three contacts. The contact information for

“Justin” matched a number Cherry had previously provided to a “state

government official.” (Tr. Vol. III at 134.)

[13] Using the information obtained, police secured a search warrant for cell phone

records connected to Cherry’s phone number. The information showed Cherry

travelled west on Interstate 70 on April 1 around 8:30 p.m. By 9:20 p.m.,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019 Page 7 of 18



Cherry’s phone pinged on towers near Greencastle, Indiana, until 10:00 p.m.

The information also showed Cherry was in communication with Charles

Maybaum by way of multiple text messages and phone calls on April 1.

[14] Cherry was arrested and charged with Level 2 felony burglary, Level 2 felony

conspiracy to commit burglary, Level 1 felony burglary with serious injury,

Level 3 felony conspiracy to commit armed robbery, Level 3 felony criminal

confinement, Level 6 felony theft, Level 6 felony auto theft, and two counts of

Level 3 felony armed robbery. A jury found Cherry guilty of all nine counts.

The trial court sentenced Cherry on all nine counts to an aggregate sentence of

seventy-three years in prison.

Discussion and Decision

Sufficient Evidence

[15] Cherry argues the State provided insufficient evidence to convict him of any of

his nine convictions. When considering the sufficiency of evidence, “a

reviewing court does not reweigh the evidence or judge the credibility of the

witnesses.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We must affirm

“if the probative evidence and reasonable inferences drawn from the evidence

could have allowed a reasonable trier of fact to find the defendant guilty beyond

a reasonable doubt.” Id. at 126 (internal citation omitted).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019 Page 8 of 18



Identification

[16] To convict Cherry of burglary, criminal confinement, theft, auto theft, or armed

robbery, the State had to prove Cherry was at the scene. See S.M. v. State, 74

N.E.3d 250, 254 (Ind. Ct. App. 2017) (identification of defendant established

guilt beyond reasonable doubt). Cherry contends the State had only

circumstantial evidence, and that evidence does not create a reasonable

inference that Cherry was involved in the crimes. “Where the evidence of guilt

is essentially circumstantial, the question for the reviewing court is whether

reasonable minds could reach the inferences drawn by the jury; if so, there is

sufficient evidence.” Whitney v. State, 726 N.E.2d 823, 825 (Ind. Ct. App.

2000).

[17] The State provided cellphone data showing Cherry’s locations. Prior to the

burglary, cellphone data showed Cherry traveling from Indianapolis to

Greencastle. Cherry’s phone returned to Indianapolis the next morning several

hours after the burglary. A boot print found at the scene was the same size and

bore the same characteristics as boots worn by Cherry. Patsy McCarter

identified gloves found in Cherry’s room as the gloves her captor wore. Finally,

when searching Cherry’s bedroom, police found the McCarters’ handgun, safe,

and jewelry. Despite the McCarters being unable to identify Cherry as one of

the men at the scene, it is reasonable to infer Cherry was there and involved in

the criminal acts that took place on April 2. See Parsley v. State, 119 N.E.3d 131,

140 (Ind. Ct. App. 2019) (holding circumstantial evidence was enough to find

the defendant guilty), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019 Page 9 of 18



Evidence of Conspiracy

[18] Cherry also argues the State had insufficient evidence of him being part of a

conspiracy to convict him of conspiracy to commit burglary or conspiracy to

commit armed robbery. “A person conspires to commit a felony when, with

intent to commit the felony, the person agrees with another person to commit

the felony.” Ind. Code § 35-41-5-2. In order to convict Cherry of these two

crimes, the State needed to show Cherry knowingly conspired with Charles

Maybaum, Paul Reese, and/or Daltyn Randolph to commit burglary and

armed robbery, respectively.

[19] Cherry argues the State does not have any evidence of any agreement. “The

State is not required to present evidence of an express agreement.” Drakulich v.

State, 877 N.E.2d 525, 531-32 (Ind. Ct. App. 2007), trans. denied. “An

agreement can be inferred from circumstantial evidence, which may include the

overt acts of the parties in furtherance of the criminal act.” Dickenson v. State,

835 N.E.2d 542, 552 (Ind. Ct. App. 2005), trans. denied. Cellphone data from

Cherry, Maybaum, Reese, and Randolph showed all four travelled to

Greencastle on April 1. In addition, the cellphone data showed communication

between the four of them on April 1 in the hours leading up to the burglary.

[20] Cherry argues the State failed to prove Cherry was in possession of his own

cellphone on the night in question. We have already found sufficient evidence

of Cherry being at the McCarter’s home in the early morning of April 2, 2017.

Because the cellphone data showed Cherry travelled to Greencastle on April 1

and the evidence demonstrates Cherry was at the McCarters’ home during the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019 Page 10 of 18



burglary, it reasonably can be inferred Cherry was in possession of his own

cellphone and was communicating with the others in regard to their plans to

commit burglary and armed robbery. See Meehan v. State, 7 N.E.3d 255, 259

(Ind. 2014) (evidence a jury could infer guilt from is sufficient for a conviction).

Double Jeopardy

[21] Cherry next argues his nine convictions violate his constitutional right to be free

from double jeopardy. See Ind. Const. art. 1, § 14 (“No person shall be put in

jeopardy twice for the same offense.”). Two offenses are the “same offense” in

violation of Indiana’s Double Jeopardy Clause 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. Spivey v. State, 761 N.E.2d

831, 832 (Ind. 2002). “[W]here the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied to determine

whether there are two offenses or only one, is whether each provision requires

proof of an additional fact which the other does not.” Blockburger v. United

States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932).

[22] We review de novo whether a defendant’s convictions violate this provision.

Spears v. State, 735 N.E.2d 1161, 1166 (Ind. 2000), reh’g denied. “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. If it will not,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019 Page 11 of 18



one of the convictions must be vacated.” Richardson v. State, 717 N.E.2d 32, 54

(Ind. 1999), holding modified by Garrett v. State, 992 N.E.2d 710 (Ind. 2013)

(modification as to cases involving hung jury or acquittal).

Burglary Resulting in Serious Bodily Injury and Burglary

[23] Cherry argues his convictions of both burglary counts violate the “actual

evidence” test and the Blockburger test for same offense. The actual evidence

test requires us to “determine whether each challenged offense was established

by separate and distinct facts.” Richardson, 717 N.E.2d at 53. To determine

what facts were used to convict, we consider the charging information, the final

jury instructions, the evidence, and the arguments of counsel. Davis v. State, 770

N.E.2d 319, 324 (Ind. 2002), reh’g denied.

[24] The single burglary used to satisfy both counts took place on April 2 at the

McCarter’s home. To convict Cherry of Level 2 felony burglary, the State had

to prove: (1) Cherry (2) broke and entered into a building or structure of another

person, (3) with the intent to commit a felony of theft in it (4) while armed with

a deadly weapon or resulting in serious bodily injury to any person other than

the defendant. Ind. Code § 35-43-2-1(3)(A)(B). This becomes a Level 1 felony

if the “building or structure is a dwelling; and [the crime] results in serious

bodily injury to any person other than the defendant.” Ind. Code § 35-43-2

1(4)(A)(B). The State concedes these two convictions violate double jeopardy

because the jury had to rely on the same evidence when convicting Cherry of

Level 2 felony burglary as they would for Level 1 felony burglary. See Bradley v.

State, 113 N.E.3d 742, 755 (Ind. Ct. App. 2018) (convictions reversed when

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019 Page 12 of 18



reasonably possible jury relied on the same acts for convictions). Accordingly,

we vacate Cherry’s conviction of Level 2 felony burglary.

Conspiracy to Commit Burglary and Conspiracy to Commit Armed Robbery

[25] “A person conspires to commit a felony when, with intent to commit the

felony, the person agrees with another person to commit the felony. A

conspiracy to commit a felony is a felony of the same level as the underlying

felony.” Ind. Code § 35-41-5-2(a) (2014). Cherry again argues these

convictions violate the “actual evidence” test. The State used cellphone data to

demonstrate Cherry conspired with at least one other person; however there is

no specific evidence showing which crime Cherry conspired to commit or

separate communications to demonstrate both. The State again concedes these

two convictions violate double jeopardy because the jury had to rely on the

same evidence when convicting Cherry of Level 2 conspiracy to commit

burglary as it would for Level 3 felony conspiracy to commit armed robbery.

See Bradley, 113 N.E.3d at 755 (convictions reversed when reasonably possible

jury relied on the same acts for convictions). Accordingly, we vacate Cherry’s

conviction of Level 3 felony conspiracy to commit armed robbery.

Armed Robbery and Armed Robbery

[26] Cherry next argues that, although there were two victims, there was only one

act of armed robbery. Cherry believes there was only one act of armed robbery

because both robberies occurred in the same house at the same time. “The

continuing crime doctrine essentially provides that actions that are sufficient in

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019 Page 13 of 18



themselves to constitute separate criminal offenses may be so compressed in

terms of time, place, singleness of purpose, and continuity of action as to

constitute a single transaction.” Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct.

App. 2005), trans. denied.

[27] One count of armed robbery was charged for the crime against Terry McCarter.

(App. Vol. II at 53.) When Terry went to investigate the noise he heard, he was

ordered to lay on the ground and held at gunpoint. The other count was

charged for the crime against Patsy McCarter. (App. Vol. II at 54.) Patsy was

still in bed when she was held at gunpoint while one of the men stole her

jewelry. Patsy was in a separate section of the house away from her husband,

and they were held at gunpoint by different men. While both armed robberies

did happen close together in time and in the same residence, the acts are

separate and distinct from each other. See Borum v. State, 951 N.E.2d 619, 630

(Ind. Ct. App. 2011) (continuity of defendant’s actions did not negate the fact

there were different criminal acts committed at different times). Accordingly,

Cherry could be convicted of both crimes.

Armed Robbery, Theft, and Auto Theft

[28] Cherry next argues his convictions of armed robbery, theft, and auto theft

violate double jeopardy. Cherry again argues these convictions violate the

actual evidence test. The elements of Level 3 felony armed robbery require

proof (1) the defendant; (2) knowingly or intentionally; (3) took property; (4)

from another person or from the presence of another person; (5) by using or

threatening the use of force; (6) while armed with a deadly weapon. Ind. Code

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019 Page 14 of 18



§ 35-42-5-1(a). The elements for Level 6 felony theft are: (1) the defendant; (2)

knowingly or intentionally; (3) exerted unauthorized control; (4) over the

property of another person; (5) with intent to deprive the other person of any

part of its value or use; and (6) the value of the property is at least $750 and less

than $50,000. Ind. Code § 35-43-4-2(a). The elements of auto theft include: (1)

a defendant; (2) knowingly or intentionally; (3) exerted unauthorized control;

(4) over the property of another person; (5) with intent to deprive the other

person of any part of its value or use; and (6) the property at issue is a motor

vehicle as defined under Indiana Code Section 9-13-2-105(a). Ind. Code § 35

43-4-2(a)(1)(B).

[29] In its closing argument, the State mentioned the Buick Rendezvous as fulfilling

a required element of both theft and auto theft. As to theft, the prosecutor said:

“Count 6, theft. In Indiana, theft has to be more than $750 for this count and

less than $50,000. . . . All of her jewelry, the Rendezvous was taken, the guns

were taken.” (Tr. Vol. III at 234-235.) When explaining auto theft, the

prosecutor said “obviously the Buick Rendezvous was taken . . . so we get auto

theft.” (Id. at 235.) Additionally, the jury instruction for theft did not specify

which evidence supported that conviction. Because the State argued the Buick

Rendezvous was evidence to satisfy both theft and auto-theft, it is reasonable to

believe the jury could have relied on it to support both convictions.

[30] The State argues that although the statutes for Level 6 felony theft and Level 3

felony armed robbery are similar, each crime had a separate element that

needed to be proven in order to convict Cherry. Cherry, on the other hand,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019 Page 15 of 18



argues theft “is an element of robbery, because robbery requires the taking of

property.” (Appellant Br. at 28-29.) In closing argument, the State explained,

armed robbery “is you take property by the use of force or threaten the use of

force.” (Tr. Vol. III at 234.) The State did not separate the evidence taken

during the theft from the evidence taken during the armed robbery. The State

simply asserted property was taken from the McCarters while they were held at

gunpoint. Because the statute required the same element of taking of property

and the State did not distinguish separate acts, the actual evidence test was

again violated. See Clark v. State, 732 N.E.2d 1225, 1229 (Ind. Ct. App. 2000)

(vacating two attempted arson convictions when all three convictions were

based on one act).

[31] Because the State did not distinguish the specific evidence that supported each

of the three separate charges, we must vacate the convictions of Level 6 felony

theft and Level 6 felony auto theft.

Criminal Confinement and Armed Robbery

[32] Cherry’s final argument is that convictions of both criminal confinement and

armed robbery violates double jeopardy. Cherry claims his convictions violate

the actual evidence test. The actual evidence test requires us to “determine

whether each challenged offense was established by separate and distinct facts.”

Richardson, 717 N.E.2d at 53. To determine what facts were used to convict, we

consider the charging information, the final jury instructions, the evidence, and

the arguments of counsel. Davis v. State, 770 N.E.2d 319, 324 (Ind. 2002), reh’g

denied.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019 Page 16 of 18



[33] In order to convict Cherry of criminal confinement, the State had to prove

Cherry “knowingly or intentionally confined another person without the other

person’s consent.” Ind. Code § 35-42-3-3 (2014). This becomes a Level 3

felony if it is committed with a deadly weapon. When reviewing the count of

criminal confinement at closing the prosecutor explained where and how the

McCarters were confined. “They were confined on the porch. One was on the

dining room floor, held at gunpoint, one was on the bed in the bedroom. They

were confined.” (Tr. Vol. III at 234.) The jury instruction for criminal

confinement does not inform the jury where the confinement occurred.

Instead, it states “the Defendant did knowingly or intentionally confine Terry

and Patsy McCarter without their consent, while armed with a deadly weapon,

to-wit: a firearm.” (App. Vol. II at 123.)

[34] In order to convict Cherry of armed robbery, the State presented evidence of

Terry McCarter being held at gunpoint on the dining room floor and Patsy

being held at gunpoint while she was in bed. The prosecutor explicitly told the

jury it could rely on Terry and Patsy being held at gunpoint to support both

armed robbery and criminal confinement. Although the McCarters were also

locked on their porch, neither the prosecutor nor the jury instruction singled out

that evidence as the only evidence supporting the confinement charge. As there

is a reasonable probability the jury relied on the McCarters being held at

gunpoint to find Cherry guilty of all three counts, we must vacate his

confinement conviction. See D.J. v. State, 88 N.E.3d 236, 242 (Ind. Ct. App.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019 Page 17 of 18



2017) (acts used to convict defendant of armed robbery cannot be used to

support a conviction of criminal confinement).

Double Jeopardy Conclusion

[35] Cherry’s conviction of Level 2 felony burglary must be vacated because it rested

on the same evidence as Cherry’s conviction of Level 1 felony burglary, and

Cherry’s conviction of Level 3 felony conspiracy to commit armed robbery

must be vacated because it rested on the same evidence as Cherry’s conviction

of Level 2 felony conspiracy to commit burglary. Cherry’s convictions of Level

6 felony theft and Level 6 felony auto theft must be vacated due to the State’s

failure to clarify for the jury which specific evidence supported each charge.

Finally, we must vacate Cherry’s conviction of Level 3 felony criminal

confinement because of the probability the jury relied on the same acts of

confinement to support the convictions of Level 3 felony armed robbery.

[36] Thus, Cherry remains convicted of Level 1 felony burglary, Level 2 felony

conspiracy to commit burglary, and two counts of Level 3 felony armed

robbery.

The evidence demonstrates Cherry was at the McCarters home and was

involved in the criminal acts that took place. In addition, cellphone data

revealing Cherry’s communications with a co-perpetrator leading up to the

crime support his conviction of conspiracy. Therefore, there is sufficient

evidence to find Cherry guilty on all counts.

[38] However, to avoid subjecting Cherry to double jeopardy, we must vacate his

convictions of Level 2 felony burglary, Level 3 felony conspiracy to commit

armed robbery, Level 3 felony criminal confinement, Level 6 felony theft, and

Level 6 felony auto theft. We remand for the trial court to resentence Cherry

for his remaining convictions.9



Affirmed in part, reversed in part, and remanded.