ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. Miller Karen M. Freeman-Wilson
Marion County Public Defender Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
INDIANA SUPREME COURT
LARRY BOYCE, )
v. ) 49S00-9908-CR-446
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patricia J. Gifford, Judge
Cause No. 49G04-9802-CF-021517
On Direct Appeal
October 13, 2000
As a result his involvement in the January 3, 1998, death of Gary
Hoffman at an Indianapolis Village Pantry convenience store, the defendant, Larry A. Boyce,
was convicted of the felony murder;See footnote robbery, a class A felony;See footnote attempted robbery,
a class A felony;See footnote conspiracy to commit robbery, a class A felony;See footnote and
two counts of criminal confinement, class B felonies.See footnote In this appeal, he
claims that the evidence was insufficient to establish accomplice liability and to prove
conspiracy to commit robbery.
Larry Boyce and Stephen Wieland were tried as co-defendants in the same trial
and were each convicted of the same counts, based on their conspiracy with
and accomplice liability for the actions of Casey Priest. Wieland's appeal, which
we decide today,
Wieland v. State, ___ N.E.2d ___ (Ind. 2000), also presents
claims of insufficient evidence. We refer the reader to our opinion in
Wieland for our discussion of the standard of review, the applicable law regarding
conspiracy and accomplice liability, and our summary of the principal evidence favorable to
Boyce contends that there is insufficient evidence to show that he had an
advance knowledge of Priest's intent to rob, that he did not participate or
aid in the commission of the crime, and that he "merely had the
bad luck to be present." Brief of Appellant at 16. Acknowledging
that he knew that Priest carried a handgun and that he entered the
store with Priest and Wieland, Boyce argues that, after the three men entered
the store, Priest went to the counter but that both Boyce and Priest
went to a different area of the store. Boyce urges that, when
he heard Priest demand money from Graham, he (Boyce) backed away and left
the store, and that he was well away from the doorway where Priest
met and killed Hoffman.
Notwithstanding the testimonial evidence on which these assertions are based, the store surveillance
videotape provides clear proof to the contrary. It reveals that the three
men entered the store together, gathered store items, and were standing at the
counter area with Priest as he committed the armed confinement of Wallace and
robbery of Graham. Boyce was not elsewhere in the store. Boyce
did not withdraw and leave while the robbery was in progress. Rather
the three men left together, each exiting about two seconds after the other.
Priest, who left last, encountered, attempted to rob, and then murdered Hoffman
as the three were escaping from the store. Boyce and Wieland were
seen laughing as they ran away. As shown by other evidence, the
three then went to Boyce's father's house where they divided the proceeds of
the crimes. Boyce later fled to Illinois with Priest.
From the evidence, a reasonable trier of fact could have determined beyond a
reasonable doubt that Boyce was guilty, based upon accomplice liability, of robbery, felony
murder, attempted robbery, and two counts of confinement.
The defendant also contends that the evidence was insufficient to support his conviction
for conspiracy to commit robbery. He argues that there was no evidence
that he entered into an agreement with Priest to commit any crime.
The State responds that the trier of fact could have reasonably concluded that
Boyce heard Priest announce, as the three were crossing the Village Pantry parking
lot, "Watch my back, I'm gonna get 'em."
Record at 220.
The State argues that it was not required to believe Boyce's assertion at
trial denying that he heard Priest's statement.
Because there is evidence and reasonable resulting inferences from which the trier of
fact could have found beyond a reasonable doubt that Boyce agreed with Priest
to commit the crime of robbery while armed, and that Priest performed the
charged overt act of entering the store, we affirm Boyce's conviction for conspiracy
to commit robbery, a class A felony.
Consistent with its response in Wieland's appeal, the State concedes sua sponte that
Boyce's conviction on Count 3 (robbery of Graham) violates double jeopardy principles given
his conviction on Count 2 (felony murder of Hoffman in the course of
the robbery of Graham). The State further concedes that the enhancement of
Boyce's convictions for attempted robbery and conspiracy to commit robbery to class A
felonies based on Hoffman's murder as the serious bodily injury element required for
class A designation, violates double jeopardy in light of his conviction of the
felony murder of Hoffman. Consistent with our treatment of Wieland's claims under
the Indiana Double Jeopardy Clause, as set forth in Wieland, ___ N.E.2d at
___, we likewise vacate Boyce's convictions in Count 3 (robbery of Graham) and
Count 7 (confinement of Graham), and we revise Boyce's convictions on Counts 5
and 6 from class A to class B felonies and order presumptive sentences
of ten years as to each,
See footnote to be served concurrently with each
other and with Count 2, as ordered by the trial court. Because
the trial court at Boyce's sentencing ordered Counts 5 and 6 to be
served concurrently with Count 2, these modifications do not alter Boyce's aggregate sixty-five
We affirm Boyce's convictions on Count 2 (felony murder), Count 5 (attempted robbery
of Hoffman), Count 6 (conspiracy to commit robbery of Graham), and Count 8
(confinement of Wallace). We vacate his convictions on Count 3 (robbery of
Graham) and Count 7 (confinement of Graham). We revise his convictions on
Counts 5 and 6 from class A felonies to class B felonies and
impose a ten year sentence on each conviction, to be served concurrently with
the conviction for felony murder. In all other respects, the judgment of
the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
The trial and sentencing proceedings were conducted by the Honorable Diane
Marger Moore, Commissioner.
Ind. Code § 35-42-1-1(2); Ind. Code § 35-42-5-1.
Ind. Code § 35-42-5-1.
Ind. Code § 35-41-5-1; Ind. Code § 35-42-5-1.
Ind. Code § 35-41-5-2; Ind. Code § 35-42-5-1.
Ind. Code § 35-42-3-3.
Ind. Code § 35-50-2-5.