May, J.
Loren David Gary appeals his convictions of Level 1 felony attempted murder, Level 5 felony intimidation, and Level 6 felony intimidation. He presents multiple issues, which we consolidate and restate as:
1. Whether the State presented sufficient evidence Gary committed Level 1 felony attempted murder and Level 6 felony intimidation, and
2. Whether Gary’s convictions of Level 1 felony attempted murder and Level 5 felony intimidation subject him to double jeopardy.
We reverse and remand in part and affirm in part.
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Sometime in October 2017, Gary moved in with his nephew, Jeramy Deboise, Jeramy’s girlfriend, and Jeramy’s infant daughter. On the evening of November 4, 2017, Gary drank to intoxication. Gary was peaceful at first, but then left the house to go to the garage. While in the garage, he called his sister, Tamara Beard, who is Jeramy’s mother, and told her he was “going to shoot Jeramy in the shoulder and [she] can figure the rest of it out.” Tamara called Jeramy to tell him what Gary said and then she called 911.
Tippecanoe County Sheriff’s Lieutenant Travis Dowell was dispatched to the scene and arrived in a police-issued Dodge Ram truck with Sheriff’s Office decals on the side. …
Gary fired a shot that hit the front license plate holder on Lieutenant Dowell’s truck. … Several times Lieutenant Dowell ordered Gary to drop the weapon, but Gary did not do so. Instead Gary positioned himself over the trunk of a car with his gun pointed at Lieutenant Dowell. At some point, Gary’s gun jammed. Lieutenant Dowell then got into position to return fire, and Gary threw his gun on the ground and raised his arms. Other officers, who arrived shortly thereafter, arrested Gary. …
The State charged Gary 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. The State also sought a sentencing enhancement for the use of a firearm in the crime. Following a jury trial on all but the sentencing enhancement allegation, Gary was found guilty of all charges. The trial court then held a bench trial on the State’s request for a sentencing enhancement based on the use of a firearm in the crime and determined Gary had used a firearm in the commission of the crime. The trial court vacated the attempted battery, pointing a firearm, and criminal recklessness convictions on double jeopardy grounds. On August 10, 2018, the trial court sentenced Gary to thirty-three years for attempted murder, four years for the Level 5 felony intimidation conviction enhanced by five years for the use of a firearm, and two years for the Level 6 felony intimidation conviction. …
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… Considering the nature and circumstances surrounding the attack, along with the fact Gary fired a deadly weapon toward Lieutenant Dowell, we conclude the State presented sufficient evidence of Gary’s intent to kill. See Perez v. State, 872 N.E.2d 208, 213-4 (Ind. Ct. App. 2007) …
To prove Gary committed Level 6 felony intimidation against Jeramy, the State had to demonstrate Gary communicated a threat to commit a forcible felony against Jeramy with the intent that Jeramy engage in conduct against his will or “be placed in fear of retaliation for a prior lawful act[.]” Ind. Code § 35-45-21(b)(1) (2017). Gary concedes he threatened Jeramy but argues the State did not present sufficient evidence that he did so with (1) the intent to place Jeramy in fear of retaliation for a prior lawful act or (2) to get Jeramy to engage in conduct against his will.
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… Here, Gary asked the jury to return a guilty verdict on the Level 6 felony intimidation charge and conceded that the State had carried its burden to present evidence to prove he committed the crime. Under the invited error doctrine, he cannot now argue the State’s evidence was insufficient. See Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014) …
… Gary contends his simultaneous convictions for Level 5 felony intimidation against Lieutenant Dowell and Level 1 felony attempted murder of Lieutenant Dowell violate his right to free of double jeopardy under the actual evidence test. We agree.
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. See Curry v. State, 740 N.E.2d 162, 166-7 (Ind. Ct. App. 2000) (holding violation of double jeopardy based on actual evidence test in an incident involving a “single incident of brutality”), trans. denied. We accordingly vacate Gary’s Level 5 felony conviction of intimidation of Lieutenant Dowell.
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Reversed and remanded in part; affirmed in part.
Baker, J., and Riley, J., concur.