State failed to show defendant conspired to rob gas station

The Indiana Court of Appeals reversed a man’s conviction of conspiracy to commit robbery while armed with a deadly weapon because the state did not present evidence that the defendant and another man conspired ahead of time to rob a Lawrenceburg gas station.

In Gerald A. Kemper v. State of Indiana, 15A01-1408-CR-340, Gerald Kemper appealed his Class B felony conspiracy conviction, as well as Class B felony convictions of robbery resulting in bodily injury and unlawful possession of a firearm by a serious violent felon. Kemper met Malik Abdullah at a Lawrenceburg casino. The two then went to Abdullah’s home in Ohio and then later Kemper drove the two back to Lawrenceburg in Abdullah’s car. He pulled up to a gas station, put a black T-shirt around his head and went into the store. Abdullah apparently did not know Kemper planned to rob the store.

During the robbery, Kemper shot the clerk. Abdullah drove Kemper from the scene, and crashed the car following a police chase. The two were later apprehended by officers. Abdullah pleaded guilty to conspiracy to commit robbery.

Kemper argued that the state didn’t prove that he and Abdullah planned the robbery ahead of time. The Court of Appeals held that the evidence presented by the state – that they arrived at the gas station together, Abdullah drove Kemper from the scene and the two had texted throughout the evening – showed an agreement between the two. In fact, the texts exchanged on the robbery may point to no prior agreement, as Kemper texted Abdullah about how to escape from police after the two crashed in the car.

The judges also disagreed with the state that Abdullah’s guilty plea to conspiracy could show Kemper’s guilt. They ordered his conspiracy conviction reversed and vacated as well as the 20-year sentence attached to it. The judges upheld the remaining 40-year sentence for Kemper’s two other convictions.