ROBB, J.
Calvert argues the evidence is insufficient to sustain his conviction of attempted robbery. To convict Calvert of attempted robbery as a Class B felony, the State must prove beyond a reasonable doubt that Calvert, either directly or as an accomplice, engaged in conduct that constituted a substantial step toward the knowing or intentional taking of property from the liquor store, by using or threatening force or placing a person in fear, and while armed with a deadly weapon. Stokes v. State, 922 N.E.2d 758, 763-64 (Ind. Ct. App. 2010), trans. denied; see Ind. Code § 35-41-2-4 (aiding an offense); Ind. Code § 35-41-5-1(a) (attempt); Ind. Code § 35-42-5-1 (robbery). The State argued at trial that Calvert aided J.F. in taking a substantial step toward robbing the liquor store. [Footnote omitted.] Calvert contends the evidence is insufficient to prove a substantial step, either by him directly or as an accomplice of J.F. For the reasons stated below, we agree.
“The substantial step element of attempt requires proof of any overt act beyond mere preparation and in furtherance of the intent to commit the crime.” Jackson v. State, 683 N.E.2d 560, 566 (Ind. 1997). “This requirement has been described as a ‘minimal one,’ State v. Van Cleave, 674 N.E.2d 1293, 1304 (Ind. 1996), reh’g denied, but the conduct must strongly corroborate the defendant’s criminal intent.” Id. A reviewing court’s analysis “focuses on what has occurred and not what remains to be done.” Id. Whether a defendant’ actions constitute a substantial step is generally a question for the trier of fact based on the totality of circumstances, and it “is impossible to lay down any general rule to determine what acts are too remote to constitute an attempt.” Collier v. State, 846 N.E.2d 340, 344, 345-46 (Ind. Ct. App. 2006) (quotation omitted), trans. denied. Nonetheless, in some cases the defendant’s conduct will fall short of a substantial step as a matter of law. See Id. at 350.
In Collier, this court held the defendant’s actions did not constitute a substantial step toward the murder of his estranged wife. Three times on the day of the incident, Collier told a neighbor that he was going to kill his wife and himself. Later that night, he drove to his wife’s workplace while she was there, had in his car an ice pick and a box cutter, and parked in a lot with a view of the building’s only after-hours exit. However, when police officers later found Collier inside his car, he was asleep or passed out. This court reasoned that despite Collier’s lying in wait, reconnoitering, and possessing materials to be used in the crime, his conduct as a whole was not “strongly corroborative of his stated intent,” Id. at 348 (emphasis original), because he thereafter ceased to be awake or alert and never came close enough to his wife to place her in imminent physical danger, id. at 349-50. In Hampton v. State, 468 N.E.2d 1077 (Ind. Ct. App. 1984), this court affirmed a conviction for attempted robbery of a restaurant. The defendant parked his car next to a busy highway, a potential easy escape route; he walked up to the restaurant and hid between bushes and the restaurant building in an effort to avoid car lights; and when found by police he was lying face down between bushes and the building, carrying a pistol and wearing a ski mask. Additionally, the defendant was a former employee of the restaurant, admitted his plan to rob that restaurant, and knew its assistant manager would be departing that night with a large amount of cash. Id. at 1079, 1081.
Applying Collier and Hampton to the facts of this case, we conclude Calvert’s actions, including as an accomplice through J.F., were at most mere preparation to rob the liquor store. The facts favorable to the judgment indicate J.F. told Calvert of his intent to rob a liquor store, and Calvert and J.F. drove to the liquor store with materials for committing a robbery: BB guns, a sawed-off shotgun, ski masks, and sunglasses. However, as Collier illustrates, merely driving to a location contemplated for a crime while possessing materials for use in the crime is not necessarily sufficient for a substantial step. See also State v. Kemp, 753 N.E.2d 47, 48, 51 (Ind. Ct. App. 2001) (holding no substantial step to child molesting was sufficiently alleged by allegations defendant agreed to meet purported minor girl for sex, drove to restaurant parking lot near motel, and brought condoms with him), trans. denied, superseded by statute on other grounds as stated in Aplin v State, 889 N.E.2d 882, 885 n.5 (Ind. Ct. App. 2008), trans. denied.
In Hampton, this court cited additional circumstances corroborating the defendant’s continuing intent to commit a robbery: the defendant approached on foot to just outside the building, he actively sought to conceal himself, and he was apprehended immediately outside the building while wearing a ski mask and holding a pistol. Hampton, 468 N.E.2d at 1081. Such circumstances are not present here, where Calvert and J.F. never left their vehicle or walked up to the liquor store, the vehicle was plainly visible from the highway with no evidence of attempts at concealment, and after circling the liquor store Calvert drove to a different parking lot across the highway before Officer Staples made contact with him.
We are mindful that the question of what actions constitute a substantial step is generally one for the trier of fact and that Indiana courts eschew laying down general rules in the matter. Yet it is also well settled a substantial step must go beyond mere preparation or planning to commit an offense; “[w]ere we to conclude otherwise, there would be no limit on the reach of ‘attempt’ crimes.” Kemp, 753 N.E.2d at 51. Further, we note that Hampton, though cited with approval, has been regarded by our supreme court as “flimsier” than the typical case of attempted robbery and as illustrating a minimal “threshold” for the offense. Van Cleave, 674 N.E.2d at 1304. We therefore conclude Calvert’s and J.F.’s actions, which constitute an appreciably less substantial step than Hampton illustrates, are insufficient to sustain a verdict of attempted robbery. We therefore reverse Calvert’s attempted robbery conviction.
. . . .
Here, as the State acknowledges, Calvert’s convictions for possessing a firearm as a serious violent felon and possessing a sawed-off shotgun were established by proof of one and the same act: his constructive possession of the sawed-off shotgun in the vehicle he was driving. As the dissent points out, the former conviction required an additional fact, Calvert’s status as a serious violent felon, which was of no moment to the latter. That may mean that under a strict reading of Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002) (“[T]he Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.”), the convictions do not amount to constitutional double jeopardy. But cf. Alexander, 772 N.E.2d at 478 (opinion on rehearing reasoning that under Richardson/Spivey actual evidence test, dual convictions are barred if evidentiary facts establishing one or more elements of either challenged offense also establish all elements of the other challenged offense). Even if that is the case, however, Calvert’s convictions fall under the common law category of double jeopardy clarified in Guyton: “[c]onviction and punishment for a crime which consists of the very same act as an element of another crime for which the defendant has been convicted and punished.” 771 N.E.2d at 1143 (quotation omitted). That is, given how this case was charged and proven, Calvert’s conviction of possessing a sawed-off shotgun was based on the very same act – his having the sawed-off shotgun in his vehicle – which formed an essential element of possession of a firearm by a serious violent felon.
Calvert and the State are both correct that a double jeopardy violation occurred and, therefore, Calvert’s conviction of possession of a sawed-off shotgun must be vacated.
FRIEDLANDER, J., concurs.
KIRSCH, J., concurs in part and dissents in part with separate opinion:
I fully concur in the decisions of my colleagues reversing Calvert’s conviction for attempted robbery, affirming his conviction for possession of a firearm by a serious violent felon and affirming his sentences. As to their conclusion that Calvert’s convictions for possession of a firearm by a serious violent felon and possession of a sawed-off shotgun violate double jeopardy provisions, however, I respectfully dissent.
Although the State agrees with Calvert that a double jeopardy violation occurred, I think in doing so, it misconstrues the actual evidence test set forth by our Supreme Court in Richardson v. State, 717 N.E.2d 32 (Ind.1999). In Richardson, the Court held that the double jeopardy clause is violated if there is “a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Id. at 53.
Then, the Court in Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002) held “[U]nder the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.”
In Ho v. State, 725 N.E.2d 988, 992 (Ind.Ct.App.2000), we confronted a double jeopardy claim arising from a defendant’s convictions for robbery and carrying a handgun without a license. We concluded that double jeopardy protections were not violated because “distinct evidentiary facts were used to prove that Ho committed robbery while armed with a handgun, while a lack of evidentiary facts was used to prove that Ho did not have a license to carry that handgun.” Id. at 993. We held that Ho failed to demonstrate “a reasonable possibility that the same evidentiary facts may have been used to establish the essential elements of each challenged offense.” Id. In Ho, Ho was convicted of both committing robbery while armed with a handgun and possession of an unlicensed handgun. The fact that Ho did not have a license for the handgun was irrelevant for purposes of the robbery conviction, and the fact that Ho committed a robbery while armed was irrelevant to the handgun conviction.
Similarly, in Mickens v. State, 742 N.E.2d 927, 931 (Ind. 2001), our Supreme Court noted that carrying the gun along the street was one crime and using it was another. The court held that the Richardson actual evidence test was not met and rejected Mickens’ double jeopardy claim.
Here, Calvert, a conceded serious violent felon, was convicted of possession of a firearm; the fact that the firearm was a sawed-off shotgun was of no moment to this conviction. He was also convicted of the separate offense of possession of a sawed-off shotgun; the fact that he was a serious violent felon was of no moment to this conviction. When Calvert, a serious violent felon, possessed a gun, he committed one crime; when he possessed a gun that was illegal for anyone to possess, he committed a second crime.
I would affirm Calvert’s convictions for possession of a firearm by a serious violent felon and possession of a sawed-off shotgun.