Charles A. Benson v. State of Indiana , 2017 Ind. App. LEXIS 142 ( 2017 )


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  •                                                                FILED
    Mar 30 2017, 6:22 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    Michelle F. Kraus                                         Curtis T. Hill, Jr.
    Fort Wayne, Indiana                                       Attorney General of Indiana
    Lyubov Gore
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Charles A. Benson,                                        March 30, 2017
    Appellant-Defendant,                                      Court of Appeals Case No.
    02A03-1607-CR-1660
    v.                                                Appeal from the Allen Superior
    Court
    State of Indiana,                                         The Honorable John F. Surbeck,
    Appellee-Plaintiff.                                       Jr., Judge
    Trial Court Cause No.
    02D04-1602-F1-3
    Bailey, Judge.
    Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017               Page 1 of 10
    Case Summary
    [1]   Following a jury trial, Charles A. Benson (“Benson”) was convicted of
    Attempted Murder, as a Level 1 felony;1 Resisting Law Enforcement, as a Level
    6 felony;2 and Criminal Recklessness, as a Level 6 felony,3 and was found to be
    a habitual offender.4 Benson now appeals, raising the sole issue of whether the
    trial court committed fundamental error by failing to give a specific jury
    instruction on unanimity.
    [2]   We affirm.
    Facts and Procedural History
    [3]   Around 2:00 p.m. on January 30, 2016, Officer Robert Geiger (“Officer
    Geiger”) of the Fort Wayne Police Department was driving in his marked
    squad car, in full police uniform. After seeing a vehicle make an improper turn,
    Officer Geiger initiated a traffic stop. He then approached the vehicle, and
    asked the driver for her license and registration. The driver said she did not
    have her driver’s license with her and eventually produced an identification
    card. Officer Geiger then spoke with the male passenger—later identified as
    1
    Ind. Code §§ 35-42-1-1, 35-41-5-1.
    2
    I.C. § 35-44.1-3-1.
    3
    I.C. § 35-42-2-2.
    4
    I.C. § 35-50-2-8.
    Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017   Page 2 of 10
    Benson—and Officer Geiger noticed that Benson would not make eye contact
    with him. Officer Geiger asked Benson for identification, and Benson said he
    did not have any with him. Benson identified himself as Antoine Woods.
    [4]   Officer Geiger returned to his squad car to run the information he had been
    given. While Officer Geiger was doing so, he saw Benson step out of the
    vehicle and make eye contact with him. Benson had his hands positioned in
    front of him, toward his waistband, as though he was concealing a weapon.
    Benson then began running. Officer Geiger immediately ran after Benson,
    telling Benson to stop, and using his radio to notify dispatch of the pursuit.
    [5]   Officer Geiger chased Benson, who ran by residences, a church, and an empty
    market. At times, there were bystanders in the area. At one point while
    running, Benson turned and made eye contact with Officer Geiger. Benson had
    a gun in his hand. Benson held eye contact with Officer Geiger, pointed the
    gun directly at him, and fired multiple shots. Officer Geiger dropped to the
    ground, called out “shots fired” over his radio, and continued chasing Benson.
    Officer Geiger then fired several rounds, each missing Benson.
    [6]   After running through an intersection, Benson ran around one side of a house,
    while Officer Geiger pursued Benson from the other side. When Benson came
    around the house, Benson squared up his body so that he was facing Officer
    Geiger. Benson made eye contact with Officer Geiger, raised his gun so it was
    pointed directly at Officer Geiger, and fired. Officer Geiger returned fire, and
    Benson stumbled to the ground. Benson let go of the gun, lifted his hands, and
    Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017   Page 3 of 10
    Officer Geiger kneeled on Benson to control him. Additional officers arrived,
    and Benson was arrested. No one was struck during the pursuit, which lasted
    around ninety seconds. It was later determined that Benson’s gun had jammed
    during the shooting, and the gun contained additional rounds of ammunition.
    [7]   On February 4, 2016, the State charged Benson with Count I, Attempted
    Murder; Count II, Resisting Law Enforcement; Count III, Criminal
    Recklessness; and Count IV, Unlawful Possession of a Firearm by a Serious
    Violent Felon.5 The State later added Count V, a habitual offender
    enhancement, and Count VI, a firearm enhancement.6 The trial court
    conducted a bifurcated jury trial on June 1, 2016 and June 2, 2016. During the
    guilt phase of the trial, Officer Geiger testified, and there was also testimony
    from residents who heard or saw a portion of the incident. At some point
    during the trial, Counts IV and VI were dismissed. At the conclusion of the
    guilt phase, the jury found Benson guilty of Counts I, II, and III. The trial court
    then conducted the habitual offender phase, after which the jury found Benson
    to be a habitual offender.
    [8]   On July 1, 2016, a sentencing hearing was conducted. The trial court entered
    judgment against Benson and sentenced him to consecutive sentences of 40
    years on Count I and one year on Count II. On Count III, the trial court
    5
    I.C. § 35-47-4-5.
    6
    I.C. § 35-50-2-11.
    Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017   Page 4 of 10
    sentenced Benson to 2 ½ years, with the sentence to be served consecutive to
    Count I. The sentence for Count I was enhanced by 20 years for the habitual
    offender enhancement, for an aggregate sentence length of 62 ½ years
    imprisonment.
    [9]    Benson now appeals.
    Discussion and Decision
    [10]   Benson contends that the trial court committed fundamental error when it
    failed to give a specific jury instruction on unanimity after the State produced
    evidence that Benson fired a gun on two occasions during the pursuit. At the
    outset, we note that Benson did not include the final jury instructions in the
    appellate record.7 Nonetheless, we address Benson’s argument assuming,
    arguendo, that the trial court did not give the specific unanimity instruction that
    Benson now seeks.
    [11]   Here, Benson neither objected to the trial court’s instructions nor offered his
    own unanimity instruction. In such circumstances, unless the trial court’s error
    was fundamental, Benson has waived this issue for review. See Baker v. State,
    7
    Failure to provide a proper record for appeal has been found to be grounds for waiver of any alleged error
    based upon the absent material. See, e.g., Cox v. State, 
    475 N.E.2d 664
    , 666-67 (Ind. 1985); see also Ind.
    Appellate Rule 46(A)(8)(a) (“Each contention must be supported by citations to . . . the Appendix or parts of
    the Record on Appeal relied on.”); but see App. R. 49(B) (providing that “[a]ny party’s failure to include any
    item in an Appendix shall not waive any issue or argument”). We remind counsel that the appellant “bears
    the burden of presenting a record that is complete with respect to the issues raised on appeal.” Ford v. State,
    
    704 N.E.2d 457
    , 461 (Ind. 1998).
    Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017                          Page 5 of 10
    
    948 N.E.2d 1169
    , 1178 (Ind. 2011). The fundamental error exception is
    “extremely narrow.” Mathews v. State, 
    849 N.E.2d 578
    , 587 (Ind. 2006).
    [T]o be fundamental, the error must represent a blatant violation
    of basic principles rendering the trial unfair to the defendant and
    thereby depriving the defendant of fundamental due process.
    Pope v. State, 
    737 N.E.2d 374
    , 380 (Ind. 2000). The error must be
    so prejudicial to the defendant’s rights as to make a fair trial
    impossible. 
    Id. In considering
    whether a claimed error denied
    the defendant a fair trial, we determine whether the resulting
    harm or potential for harm is substantial. 
    Id. Harm is
    not shown
    by the fact that the defendant was ultimately convicted. 
    Id. Rather, harm
    is determined by whether the defendant’s right to a
    fair trial was detrimentally affected by the denial of procedural
    opportunities for the ascertainment of truth to which he would
    have been entitled. 
    Id. Baker, 948
    N.E.2d at 1178-79.
    [12]   In Indiana, a guilty verdict in a criminal case “must be unanimous.” Fisher v.
    State, 
    291 N.E.2d 76
    , 82 (1973). We require unanimity “as to the defendant’s
    guilt” but “it is not required as to the theory of the defendant’s culpability.”
    Taylor v. State, 
    840 N.E.2d 324
    , 333 (Ind. 2006). Certain cases, however,
    present problems with jury unanimity. See 
    Baker, 948 N.E.2d at 1173-79
    . To
    address these problems, in Baker, the Indiana Supreme Court held that trial
    courts should give a specific type of unanimity instruction when the
    circumstances of the case so require. 
    Id. [13] In
    Baker, the defendant was charged with a single count of child molestation
    with respect to each victim, but the jury heard evidence of multiple distinct acts
    Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017   Page 6 of 10
    of molestation concerning each victim. 
    Id. at 1177.
    The Baker Court
    recognized that under such circumstances—where “evidence is presented of a
    greater number of separate criminal offenses than the defendant is charged
    with”—a basic unanimity instruction is insufficient. 
    Id. at 1175.
    This is
    because, absent a more particular instruction, the jury could unanimously agree
    that the defendant was guilty, yet, in doing so, rely on different acts in evidence.
    See 
    id. at 1177.
    In other words, the State could point to multiple, separate
    criminal acts and the jury could convict, despite it being divided about which
    acts occurred. To remedy this unanimity issue, the Baker Court held that:
    The State may in its discretion designate a specific act (or acts)
    on which it relies to prove a particular charge. However if the
    State decides not to so designate, then the jurors should be
    instructed that in order to convict the defendant they must either
    unanimously agree that the defendant committed the same act or
    acts or that the defendant committed all of the acts described by
    the victim and included within the time period charged.
    
    Id. [14] Here,
    Benson argues that Baker applies and that the trial court should have
    given a specific instruction on unanimity. He directs our attention to the
    evidence, which indicated that Benson fired his gun on two occasions during
    the ninety-second pursuit. Benson points out that the State did not distinguish
    between those instances in seeking an attempted murder conviction. Rather, in
    charging Benson with attempted murder, the State alleged that Benson took a
    substantial step toward committing the crime of murder “by discharging a
    Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017   Page 7 of 10
    firearm at [Officer] Geiger.” (App. Vol. II at 13.) Moreover, the State pointed
    to both instances of gunfire and generally argued that Benson “tr[ied] to kill
    Officer Geiger by pointing the gun at him and firing.” (Tr. Vol. II at 62, 75.)
    Benson contends that “[t]here is no way to know if the jury was unanimous . . .
    [as] to which act constituted the attempted murder” (Appellant’s Br. at 15) and
    that the trial court fundamentally erred by failing to give the type of unanimity
    instruction set forth in Baker.8
    [15]   Benson ultimately parses the ninety-second pursuit and would have us require
    that the jury precisely identify which moment he attempted to murder Officer
    Geiger—the first time he shot directly at him, the second time he shot directly
    at him, or both times. However, under the “continuous crime doctrine,” if the
    defendant’s acts are “so compressed in terms of time, place, singleness of
    purpose, and continuity of action as to constitute a single transaction,” the
    defendant’s conduct amounts only to a single chargeable crime. Walker v. State,
    
    932 N.E.2d 733
    , 735 (Ind. Ct. App. 2010). Where the continuous crime
    doctrine applies, the doctrine prohibits multiple convictions of the same crime
    for the same continuous offense. See Hines v. State, 
    30 N.E.3d 1216
    , 1219-20
    (Ind. 2015); Gomez v. State, 
    56 N.E.3d 697
    , 703-04 (Ind. Ct. App. 2016).
    8
    In arguing fundamental error, Benson directs us to a memorandum decision. We remind counsel that a
    memorandum decision “shall not be regarded as precedent and shall not be cited to any court,” App. R.
    65(D), except under limited circumstances that do not apply here. See 
    id. Court of
    Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017                    Page 8 of 10
    [16]   Here, the evidence indicates that, over the course of ninety seconds, Benson
    shot a gun at Officer Geiger on two occasions during the brief, continuous
    pursuit. Under these circumstances, the continuous crime doctrine applies, and
    Benson could be properly charged with only one count of attempted murder,
    not two counts. See Nunn v. State, 
    695 N.E.2d 124
    , 125 (Ind. Ct. App. 1998)
    (determining that two instances of gunfire, over a short period, constituted only
    one attempt at murder and therefore could support only one conviction).9
    Therefore, unlike in Baker, the jury was not presented with evidence “of a
    greater number of separate criminal offenses” than charged. 
    Baker, 948 N.E.2d at 1175
    . Rather, the number of charged counts of attempted murder equaled
    the number of chargeable attempted murder offenses indicated by the evidence.
    Here, the concerns in Baker are not present, and therefore the trial court did not
    err in failing to give a Baker type of jury instruction on unanimity.
    Conclusion
    [17]   The trial court did not commit fundamental error in failing to give a specific
    jury instruction on unanimity.
    9
    Benson urges that the State “argued that there were two attempts on officer Geiger’s life but only charged
    Benson with one count.” (Appellant’s Br. at 14.) To the extent Benson is suggesting that the State, through
    argument, can avoid the continuous crime doctrine, we disagree, as it is the doctrine itself that protects
    against problematic outcomes if the State could readily do so. See, e.g., 
    Nunn, 695 N.E.2d at 125
    (“Suppose
    [the defendant] had possessed an automatic weapon with a fifty round clip, and that in one burst he fully
    discharged the weapon at the officer without hitting him. Could it be seriously contended that he thereby
    committed fifty attempted murders . . . ?”).
    Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017                        Page 9 of 10
    [18]   Affirmed.
    Najam, J., and May, J., concur.
    Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017   Page 10 of 10
    

Document Info

Docket Number: Court of Appeals Case 02A03-1607-CR-1660

Citation Numbers: 73 N.E.3d 198, 2017 WL 1179570, 2017 Ind. App. LEXIS 142

Judges: Bailey, Najam

Filed Date: 3/30/2017

Precedential Status: Precedential

Modified Date: 10/19/2024