Jun 04 2015, 9:21 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ashonta Kenya Jackson, June 4, 2015
Appellant-Defendant, Court of Appeals Case No.
48A02-1409-CR-670
v.
Appeal from the Madison Circuit
Court
State of Indiana,
Appellee-Plaintiff. The Honorable David A. Happe,
Judge
Cause No. 48C04-1311-FB-2175
Najam, Judge.
Statement of the Case
[1] Ashonta Kenya Jackson appeals his convictions for three counts of robbery, as
Class B felonies; his conviction for corrupt business influence, a Class C felony;
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and his adjudication as a habitual offender following a jury trial. Jackson
presents the following issues for our review:
1. Whether the trial court erred when it denied his motion for
change of judge.
2. Whether the State presented sufficient evidence to support
his corrupt business influence conviction and his
adjudication as a habitual offender.
3. Whether the trial court abused its discretion when it
sentenced him.
[2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[3] On October 1, 2013, Jackson, Edwin Ricard, and Gerald Reed decided to rob
the Keg N Bottle liquor store in Anderson. Ricard and Reed, who had a gun,
entered the store and stole money after threatening to shoot the store’s clerk.
During the robbery, Jackson waited in a car down the street from the liquor
store. After Ricard and Reed fled the scene, they later met up with Jackson,
and they divided the stolen money three ways.
[4] On October 17, Jackson and Ricard decided to again rob the same liquor store.
Jackson gave Ricard a gun to use, and Jackson’s teenaged nephew drove Ricard
to the store. Ricard, alone, entered the store, pointed the gun at the clerk, and
ordered the clerk to give him money. Again, Jackson waited in a second car
during the robbery. Jackson and Ricard met afterwards and divided the stolen
money between the two of them.
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[5] On October 28, Jackson, Ricard, and Reed planned to rob a bank in Anderson.
Ricard and Reed arrived at the bank in one car, and Jackson waited in a second
car while the other two men went inside. Ricard and Reed were both armed
with handguns, one of which Jackson had provided. And Ricard and Reed
covered their faces with bandannas and glasses. After the two men entered the
bank, Reed approached a bank teller named Brittany Boyd and demanded
money. While Boyd was putting money in a bag, Reed told her to hurry, and
he struck her in the head with his handgun.
[6] Meanwhile, Ricard ran to another area of the bank, pointed his handgun at
another teller, Joyce Stewart, and a bank manager, Courtney Barnes, and he
demanded that they give him money. Stewart and Barnes complied and gave
Ricard money, including “bait money,” which triggers an alarm when it is
removed. Tr. at 97. Ricard and Reed then fled the scene and drove to meet
Jackson at a designated location. The men divided the stolen money three
ways.
[7] Reed had borrowed the car he and Ricard used during the bank robbery from a
woman named Dawn Flick. Ricard had covered the steering wheel and license
plate of Flick’s car with duct tape and, after the robbery, Ricard removed the
duct tape before he drove off with Reed in Jackson’s car. Reed contacted Flick
and told her where she could find her car.
[8] Mitchell Brinker was working on a house across the street from where the men
had parked Flick’s car, and he observed the men removing the duct tape and
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engaging in other suspicious behavior. Brinker called police, and officers
arrived a short time later to find Flick approaching her parked car. Officers
advised Flick that her car had been used in a bank robbery, and Flick told the
officers where they could find Reed. Officers arrested Reed and, after Brinker
identified Ricard from a photo array, Ricard was eventually arrested. After his
arrest, Ricard implicated Jackson in the robberies.
[9] The State charged Jackson with three counts of robbery, as Class B felonies,
and one count of corrupt business influence, a Class C felony, and the State
alleged that Jackson was a habitual offender. A jury found Jackson guilty as
charged and adjudicated him to be a habitual offender. The trial court entered
judgment of conviction accordingly and sentenced Jackson as follows: fifteen
years for each Class B felony conviction, with two of the terms to run
consecutively and the third to run concurrent with the others; eight years for the
Class C felony conviction to run consecutively to the other sentences; and
twenty-five years for the habitual offender enhancement, for a total aggregate
term of sixty-three years executed. This appeal ensued.
Discussion and Decision
Issue One: Motion for Change of Judge
[10] Jackson first contends that the trial court erred when it denied his motion for
change of judge. The law presumes that a judge is unbiased and unprejudiced.
Garland v. State, 788 N.E.2d 425, 433 (Ind. 2003). The ruling on a motion for
change of judge is reviewed under the clearly erroneous standard. Id. Reversal
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will require a showing which leaves us with a definite and firm conviction that a
mistake has been made. Sturgeon v. State, 719 N.E.2d 1173, 1182 (Ind. 1999).
[11] The trial judge presiding over Jackson’s trial “had appeared as prosecutor in
one of the cases relied on to establish [Jackson]’s habitual offender status.”
Appellant’s Br. at 9. Thus, Jackson alleged in his motion for change of judge
that the trial judge’s “continued involvement” in the trial “create[d] in
reasonable minds a perception that the judge’s ability to carry out its
responsibilities in this case with impartiality [wa]s impaired.” Appellant’s App.
at 42. On appeal, Jackson “acknowledges that[,] in the past[,] courts in this
state have held that recusal was not necessary under facts similar to those in this
case.” Appellant’s Br. at 14. Jackson invites us to “reconsider” those cases and
hold that the trial court erred here. Id. We reject that invitation.
[12] In Dishman v. State, 525 N.E.2d 284 (Ind. 1988), the defendant appealed his
convictions and adjudication as a habitual offender. Dishman alleged in
relevant part that the trial court erred when it denied his motion for a change of
judge because, “[i]n his capacity as prosecuting attorney, [the trial judge] had
prosecuted appellant in the two cases on which the habitual offender charge
was based.” Id. at 285. Our supreme court rejected that contention and held as
follows:
In this situation, the trial judge would have erred had there been
any factual contesting of the prior convictions. However, such
was not the case here. Once the certified convictions were
presented to the jury, the determination of the status as habitual
criminal was virtually a foregone conclusion. There is no
indication in this situation that the trial judge’s personal
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knowledge of appellant’s prior convictions in any way played a
part in the jury’s determination as to the status of habitual
offender.
Id.
[13] Here, likewise, Jackson did not contest the evidence of his prior convictions
supporting the habitual offender adjudication, including the evidence of a
perjury conviction, which is the one in which the trial judge in this case was
involved as a prosecutor. Jackson did not object to the admission of the
certified records of the prior convictions, and, in his closing argument, his trial
counsel conceded that Jackson had been convicted of the two prior felonies as
alleged. Accordingly, as in Dishman, “[t]here is no indication . . . that the trial
judge’s personal knowledge of [Jackson’s prior perjury conviction] in any way
played a part in the jury’s determination as to the status of habitual offender.”
Id. The trial court did not err when it denied Jackson’s motion for change of
judge. See also Sisson v. State, 985 N.E.2d 1, 19 (Ind. Ct. App. 2012).
Issue Two: Sufficiency of the Evidence
[14] Jackson contends that the State presented insufficient evidence to support either
his corrupt business influence conviction or his adjudication as a habitual
offender. Our standard of review for sufficiency of the evidence claims is well-
settled. Tobar v. State, 740 N.E.2d 109, 111 (Ind. 2000).
In reviewing the sufficiency of the evidence, we examine only the
probative evidence and reasonable inferences that support the
verdict. We do not assess witness credibility, nor do we reweigh
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the evidence to determine if it was sufficient to support a
conviction. Under our appellate system, those roles are reserved
for the finder of fact. Instead, we consider only the evidence
most favorable to the trial court ruling and affirm the conviction
unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.
Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations omitted)
(internal quotation marks omitted).
Corrupt Business Influence
[15] To prove corrupt business influence, the State was required to show that
Jackson, through a pattern of racketeering activity, knowingly or intentionally
acquired or maintained, either directly or indirectly, an interest in or control of
United States currency from multiple armed robberies. Ind. Code § 35-45-6-
2(2). “Racketeering activity” means, in relevant part, to commit, to attempt to
commit, to conspire to commit a violation of, or to aid and abet in a robbery.
I.C. § 35-45-6-1(e). A “pattern of racketeering” activity means engaging in at
least two incidents of racketeering activity that have the same or similar intent,
result, accomplice, victim, or method of commission, or that are otherwise
interrelated by distinguishing characteristics that are not isolated incidents. I.C.
§ 35-45-6-1(d). Further, “the incidents are a pattern of racketeering activity only
if at least one (1) of the incidents occurred after August 31, 1980, and if the last
of the incidents occurred within five (5) years after a prior incident of
racketeering activity.” Id.
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[16] Jackson contends that the State was also required to prove that his criminal acts
posed a threat of continued criminal activity, but that the State presented no
such evidence. While Indiana’s statute for corrupt business influence does not
expressly include an element of continuing the criminal conduct into the future,
the statute is patterned after the federal RICO statute, and we look to relevant
federal case law for guidance in interpreting the Indiana version of the statute.
Waldon v. State, 829 N.E.2d 168, 176 (Ind. Ct. App. 2005), trans. denied. In H.J.,
Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989), the United States
Supreme Court observed that, with respect to federal RICO law, “to prove a
pattern of racketeering activity a plaintiff or prosecutor must show that the
racketeering predicates are related, and that they amount to or pose a threat of
continued criminal activity.” (Emphasis added). And the Court explained that
“[c]ontinuity” is both a closed- and open-ended concept, referring
either to a closed period of repeated conduct, or to past conduct
that by its nature projects into the future with a threat of
repetition. See Barticheck v. Fidelity Union Bank/First National
State, 832 F.2d 36, 39 (CA3 1987). It is, in either case, centrally a
temporal concept—and particularly so in the RICO context,
where what must be continuous, RICO’s predicate acts or
offenses, and the relationship these predicates must bear one to
another, are distinct requirements. A party alleging a RICO
violation may demonstrate continuity over a closed period by
proving a series of related predicates extending over a substantial
period of time. Predicate acts extending over a few weeks or months
and threatening no future criminal conduct do not satisfy this
requirement: Congress was concerned in RICO with long-term criminal
conduct. Often a RICO action will be brought before continuity can be
established in this way. In such cases, liability depends on whether the
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threat of continuity is demonstrated.
Id. at 241-42 (emphasis added).
[17] In Waldon, the defendant was convicted of five counts of burglary, five counts
of theft, and corrupt business influence related to offenses committed “within
the span of a few days[.]” 829 N.E.2d at 175. On appeal, the defendant
contended that the State had presented insufficient evidence to support his
corrupt business influence conviction because there was no evidence that he
had planned to continue his crime spree into the future. We acknowledged the
continuity element as set out in H.J., Inc. and held as follows:
In this case, Waldon and his cohorts were apprehended before
the crime spree could cover a substantial period of time.
Nonetheless, the facts that it extended for a short time and there
was no direct evidence of planning for future crimes are not fatal.
The pattern which was developing shows regular, almost daily, attempts
at burglary. The testimony from trial reveals a plan for ongoing criminal
activity as once the conduct was set in motion, it only took a phone call to
organize the group and get them into action. From this evidence, the
jury could infer that the crimes were to continue into the future.
Id. at 177 (emphasis added).
[18] Again, there are two ways to prove the continuity requirement. The State can
show that the defendant committed a series of related predicates extending over
a substantial period of time, or the State can show that the defendant
committed a series of related predicates over the course of a few weeks or
months. H.J., Inc., 492 U.S. at 242. In the latter case, which applies here,
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“liability depends on whether the threat of continuity is demonstrated.” Id.
(emphasis original). That is, the State must demonstrate that the defendant
intended for the racketeering activity to continue into the future at the time he
was arrested. Id.
[19] Here, the State did not argue or present evidence to show that there was any
threatened future criminal conduct related to the robberies Jackson had
committed. Still, on appeal the State maintains that
the evidence in this case permits a reasonable inference that if
[Jackson] and his accomplices had not been identified and
apprehended quickly after the bank robbery, their criminal
activity threatened to continue into the future. They were a well-
organized group employing sophisticated means to regularly
perpetrate armed robberies of businesses in Anderson. As in
Waldon, the evidence was sufficient to support the jury’s
determination that [Jackson] engaged in a pattern of racketeering
activity.
Appellee’s Br. at 23.
[20] We decline the State’s invitation to analogize this case to Waldon. First, in
Waldon the defendant committed five burglaries over the course of a few days.
Here, Jackson committed three burglaries over the course of a month. Second,
and significantly, the State does not direct us to evidence in the record showing
that Jackson and his cohorts, like the defendants in Waldon, were well
organized and had any particular method to carry out the burglaries, like a
simple “phone call” to “get them into action.” Waldon, 829 N.E.2d at 177.
While the State characterizes Jackson, Ricard, and Reed as “a well-organized
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group employing sophisticated means” to commit the robberies, the State does
not point to any evidence to support that characterization. Appellee’s Br. at 23.
Indeed, under the State’s characterization of these facts, virtually any series of
robberies would constitute a pattern of racketeering activity. We hold that the
evidence is insufficient to support an inference that Jackson intended to
continue robbing businesses in Anderson into the future, and we reverse his
conviction for corrupt business influence. Cf. Kollar v. State, 556 N.E.2d 936,
941 (Ind. Ct. App. 1990) (holding evidence sufficient to support corrupt
business influence conviction given the lengthy duration of coin shop owner’s
pyramid scheme and defendant’s stated intention to continue in the coin
business), trans. denied.
[21] Finally, we reject the State’s contention that Indiana’s definition of “pattern of
racketeering activity” is significantly broader than the federal definition and
that, therefore, we should give “the language of the Indiana statute meaning
independent of Federal authority” and disregard altogether future criminality.
Appellee’s Br. at 19, 21. In support of that contention, the State cites to Keesling
v. Beegle, 880 N.E.2d 1202 (Ind. 2008). In Keesling, our supreme court
addressed whether liability under the Indiana RICO Act extends only to
persons who direct racketeering activity (the rule under the Federal RICO Act)
or extends below the managerial or supervisory level to a racketeering
enterprise’s “foot soldiers” as well. Id. at 1203.
[22] The provision of the federal Act addressed in Keesling provides in relevant part
that it shall be unlawful for any person employed by or associated with any
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enterprise to conduct or participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering activity or collection of
unlawful debt. 18 U.S.C. § 1962(c). And the Indiana statute provides in
relevant part that a person who is employed by or associated with an enterprise,
and who knowingly or intentionally conducts or otherwise participates in the
activities of that enterprise through a pattern of racketeering activity commits
corrupt business influence. I.C. § 35-45-6-2(3). In Keesling, our supreme court
stated that
[t]he most important difference between the language of these
two statutes is that the Federal Act imposes liability on a person
who “conduct[s] or participate[s] . . . in the conduct of such
enterprise’s affairs” while the Indiana Act imposes liability on a
person who “conducts or otherwise participates in the activities
of that enterprise.”
880 N.E.2d at 1206. The court stated further that,
[b]y imposing liability not just on a person who “conducts . . . the
activities” of a racketeering enterprise but also on a person who
“otherwise participates in the activities” of a racketeering
enterprise, we think it clear that scope of liability under the
Indiana Act is broader than under the Federal Act.
Id. And the court held that, “[b]ecause the Indiana Act uses language
significantly broader than that of the Federal Act, we conclude that it imposes
RICO liability both on persons at and below a racketeering enterprise’s
managerial or supervisory level.” Id. at 1203.
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[23] Here, the State maintains that Indiana’s definition of pattern of racketeering
activity uses language significantly different than that in the federal definition
and, therefore, we should not read into the Indiana statute any requirement to
prove that a defendant’s criminal acts pose a threat of continued criminal
activity. The federal statute defines “pattern of racketeering activity” as
“requir[ing] at least two acts of racketeering activity, one of which occurred
after [October 15, 1970,] and the last of which occurred within ten years
(excluding any period of imprisonment) after the commission of a prior act of
racketeering activity.” 18 U.S.C. § 1961(5). And, again, our statute provides as
follows:
“Pattern of racketeering activity” means engaging in at least two
incidents of racketeering activity that have the same or similar
intent, result, accomplice, victim, or method of commission, or
that are otherwise interrelated by distinguishing characteristics
that are not isolated incidents. However, the incidents are a
pattern of racketeering activity only if at least one of the incidents
occurred after August 31, 1980, and if the last of the incidents
occurred within five years after a prior incident of racketeering
activity.
I.C. § 35-45-6-1(d).
[24] The State contends that
[t]he plain language of the statute indicates that the Indiana
General Assembly intended for the definition of a “pattern” to
focus on the relationship between the predicate offenses
regarding the intent, methods, participants, and like
circumstances. They also set narrower temporal limitations than
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in the Federal statute, requiring the incidents of racketeering
activity occur within five rather than ten years of one another.
However, there is no indication in the statute that the General
Assembly wished to impose a separate element punishing future
criminality as the Supreme Court has read into the Federal
statute. While this Court has previously relied on the Supreme
Court’s interpretation of the Federal definition when applying the
Indiana statute, it has not addressed the differing language used
in the two statutes when doing so.
Appellee’s Br. at 21.
[25] We acknowledge that the plain language of the federal statute differs from that
of the Indiana statute to the extent that the federal statute does not explicitly
require that the predicates be related in any way. But while 18 U.S.C. Section
1961(5) does not include language requiring that the two predicates “have the
same or similar intent, result, accomplice, victim, or method of commission, or
that are otherwise interrelated by distinguishing characteristics that are not
isolated incidents,” I.C. § 35-45-6-1(d), federal case law holds that the same
factors are required under the federal statute to prove a pattern of racketeering
activity. In particular, in H.J., Inc., the Supreme Court, in defining “the element
of relatedness” between predicates in the context of the federal RICO statute,
took “guidance” from another provision of the Organized Crime Control Act of
1970 which provided that “criminal conduct forms a pattern if it embraces
criminal acts that have the same or similar purposes, results, participants,
victims, or methods of commission, or otherwise are interrelated by
distinguishing characteristics and are not isolated events.” 492 U.S. at 239-40.
Thus, while the plain text of the Indiana statute differs from that of the federal
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statute, both require proof of a relationship between the predicate offenses
regarding the intent, methods, participants, and like circumstances. And it
would appear that our legislature patterned the statutory definition of pattern of
racketeering activity after both 18 U.S.C. Section 1961(5) and the federal
Organized Crime Control Act of 1970. See id. Finally, we are not persuaded
that the five year difference in the temporal requirement of the two statutes is
significant on this question.
[26] Again, because the statute is patterned after federal law, we look to relevant
federal case law for guidance in interpreting the Indiana version of the statute.1
Waldon, 829 N.E.2d at 176. We reject the State’s invitation to disregard federal
case law on this issue, and we hold that, to prove corrupt business influence, the
State must show that the defendant’s criminal acts pose a threat of continued
criminal activity. Because the State presented insufficient evidence to prove any
such threat here, we reverse Jackson’s conviction for corrupt business
influence.2
1
We disagree with the dissent’s assertion that we are improperly engrafting new words onto the corrupt
business influence statute. Rather, again, because our statute is patterned after the federal statute, we follow
federal case law to aid in our interpretation of the Indiana statute.
2
This court has twice addressed a defendant’s challenge to the sufficiency of the evidence on the continuity
element to support corrupt business influence convictions, and in neither case is it apparent that the State
challenged the applicability of that element under Indiana law. See Waldon, 829 N.E.2d at 177; Kollar, 556
N.E.2d at 941.
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Habitual Offender Adjudication
[27] To establish that Jackson was a habitual offender, the State was required to
show that he had “accumulated two (2) prior unrelated felony convictions.”
Ind. Code § 35-50-2-8. “To be ‘unrelated,’ the defendant must have committed
the second felony after being sentenced for the first and must have been
sentenced for the second felony prior to committing the current felony . . . .”
Walker v. State, 988 N.E.2d 1181, 1186-87 (Ind. Ct. App. 2013), trans. denied.
[28] The State presented sufficient evidence to demonstrate that Jackson was a
habitual offender. In particular, the State admitted into evidence certified
records of Jackson’s prior convictions for perjury, a Class D felony, and
intimidation, as a Class C felony. Jackson did not object to the admission of
those exhibits. Still, on appeal, Jackson contends that the State failed to prove
that he was the same Ashonta Kenya Jackson identified in those records.
[29] While certified copies of judgments or commitments containing the same or
similar name as the defendant may be introduced to prove the commission of
prior felonies, there must be other supporting evidence to identify defendant as
the same person named in the documents. Baxter v. State, 522 N.E.2d 362, 365
(Ind. 1988). This proof of identity may be in the form of circumstantial
evidence. Id. A sufficient connection between the documents and the
defendant is made if the evidence yields logical and reasonable inferences from
which the trier of fact may determine it was indeed the defendant who was
convicted of the two felonies alleged. Id.
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[30] Here, the State presented the following evidence to prove that Jackson was the
same person convicted of perjury as indicated in the certified records submitted:
Jackson’s unique name, date of birth, and social security number, and the
records indicated that Jackson is a black male with black hair and brown eyes.
And the records submitted to prove the intimidation conviction included
Jackson’s unique name, date of birth, and also described Jackson as a black
male with black hair and brown eyes. Finally, and moreover, in his closing
argument, defense counsel acknowledged that Jackson had been convicted of
the two prior felonies as alleged. The State presented sufficient evidence to
support Jackson’s adjudication as a habitual offender.
Issue Three: Sentencing
[31] Jackson contends that the trial court abused its discretion when it sentenced
him. Sentencing decisions rest within the sound discretion of the trial court and
are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218
(Ind. 2007). An abuse of discretion occurs if the decision is clearly against the
logic and effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn therefrom. Id.
One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering a sentencing statement that explains reasons for
imposing a sentence—including a finding of aggravating and
mitigating factors if any—but the record does not support the
reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration,
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or the reasons given are improper as a matter of law . . . .
[However, b]ecause the trial court no longer has any obligation
to “weigh” aggravating and mitigating factors against each other
when imposing a sentence, . . . a trial court cannot now be said to
have abused its discretion in failing to “properly weigh” such
factors.
Id. at 490-91.
[32] Here, the trial court identified three aggravators, namely, “1) Serious criminal
history, 2) Engaged in a pattern of conspiracy to rob people, and 3) Violated
prior court supervision.” Appellant’s App. at 6. And the trial court imposed
enhanced sentences on each of Jackson’s convictions. Jackson contends that
the trial court abused its discretion when it identified as aggravating Jackson’s
“pattern of behavior of engaging in conspiracy to commit robberies[.]”
Appellant’s Br. at 22. Jackson maintains that that aggravator is a factor
constituting a material element of the crime of corrupt business influence and
cannot, therefore, be considered an aggravating circumstance in determining his
sentence. Id. (citing McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007)). The
State counters that that aggravator is proper because it merely describes the
“particular circumstances of the crimes that could support sentences above the
advisory.” Appellee’s Br. at 28.
[33] Generally, the “nature and circumstances” of a crime is a proper aggravating
circumstance. McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001) (quoting
Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999)). Even if the trial court relied on
an improper factor under this aggravating circumstance, the sentence may be
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upheld so long as “[t]he remaining components of that aggravator were
proper.” Id. (quoting Angleton v. State, 714 N.E.2d 156, 160 (Ind. 1999)).
[34] At sentencing, the trial court stated the following: “You engaged in a pattern
[of] behavior with your co-defendants, which was an organized conspiracy to
rob people, with firearms. That kind of behavior gets people killed. And for a
little bit of financial gain you were willing to put a lot of other people’s lives in
jeopardy.” Tr. at 690. The first sentence of the court’s statement appears to
mirror the racketeering activity element of corrupt business influence, which
requires that the defendant conspire to commit a violation of, or aiding and
abetting in a robbery. Ind. Code § 35-45-6-1(e). But, after the first sentence, the
remaining components of the aggravator are proper. Thus, the trial court did
not abuse its discretion when it identified the challenged aggravator.3 McCann,
749 N.E.2d at 1120. Finally, even if we were to disregard the challenged
aggravator, Jackson’s extensive criminal history, including probation violations,
without more, would support his enhanced sentence. See, e.g., Bacher v. State,
722 N.E.2d 799, 803 (Ind. 2000) (holding when a sentencing court improperly
applies an aggravating circumstance, but other valid aggravating circumstances
do exist, a sentence enhancement may still be upheld).
[35] Jackson also contends that the trial court abused its discretion when it did not
identify as mitigating the fact that “he spent a ‘significant amount of time as a
3
While we reverse Jackson’s corrupt business influence conviction on appeal, we note that the evidence
supports the facts and circumstances of the offenses as described by the trial court at sentencing.
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law abiding citizen[.]’” Appellant’s Br. at 22 (quoting Tr. at 687). The
determination of mitigating circumstances is within the trial court’s discretion.
Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans. denied. The trial
court is not obligated to accept the defendant’s argument as to what constitutes
a mitigating factor, and a trial court is not required to give the same weight to
proffered mitigating factors as does a defendant. Id. A trial court does not err
in failing to find a mitigating factor where that claim is highly disputable in
nature, weight, or significance. Id. An allegation that a trial court abused its
discretion by failing to identify or find a mitigating factor requires the defendant
on appeal to establish that the mitigating evidence is significant and clearly
supported by the record. Id.
[36] Considering Jackson’s criminal history and his admitted “past gang
membership,” Appellant’s App. at 95, we are not persuaded that Jackson’s
claim that he lived as a law-abiding citizen for an eight-year period leading up
to the instant offenses is significant and clearly supported by the record.
Jackson was born in 1979. His juvenile history includes five true findings,
including two batteries and one instance of resisting law enforcement. And his
criminal history includes three felony convictions, including intimidation with a
deadly weapon. We hold that the trial court did not abuse its discretion when it
sentenced Jackson.
[37] That being said, as the State points out, the trial court erred when it did not
attach Jackson’s habitual offender enhancement to one of his felony
convictions. A habitual offender finding does not constitute a separate crime
Court of Appeals of Indiana | Opinion 48A02-1409-CR-670| June 4, 2015 Page 20 of 24
nor result in a separate sentence, but rather results in a sentence enhancement
imposed upon the conviction of a subsequent felony. Greer v. State, 680 N.E.2d
526, 527 (Ind. 1997). In the event of simultaneous multiple felony convictions
and a finding of habitual offender status, trial courts must impose the resulting
penalty enhancement upon only one of the convictions and must specify the
conviction to be so enhanced. Id. Here, because the trial court did not specify
which of Jackson’s convictions was enhanced by his habitual offender
adjudication, we remand and instruct the trial court to revise the sentencing
statement to reflect which conviction is enhanced.
Conclusion
[38] The trial court did not err when it denied Jackson’s motion for change of judge.
The State presented insufficient evidence to support Jackson’s corrupt business
influence conviction, and we reverse that conviction. But the State presented
sufficient evidence to support his habitual offender adjudication. The trial court
did not abuse its discretion when it sentenced Jackson. But we remand and
instruct the trial court to revise the sentencing order to indicate which
conviction is enhanced by Jackson’s habitual offender adjudication.
[39] Affirmed in part, reversed in part, and remanded with instructions.
Friedlander, J., concurs.
Baker, J., concurs in part and dissents in part with separate opinion.
Court of Appeals of Indiana | Opinion 48A02-1409-CR-670| June 4, 2015 Page 21 of 24
IN THE
COURT OF APPEALS OF INDIANA
Ashonta Kenya Jackson, Court of Appeals Case No.
48A02-1409-CR-670
Appellant-Defendant,
v.
State of Indiana,
Appellees-Plaintiff.
Baker, Judge, concurring in part and dissenting in part.
[40] I respectfully dissent from the majority regarding the sufficiency of the evidence
supporting Jackson’s conviction for corrupt business influence. As the majority
notes, Indiana Code section 35-45-6-2(2) provides that a person commits
corrupt business influence if he, “through a pattern of racketeering activity,
knowingly or intentionally acquires or maintains, either directly or indirectly,
an interest in or control of property or an enterprise.” A pattern of racketeering
activity “means engaging in at least two (2) incidents of racketeering activity
that have the same or similar intent, result, accomplice, victim, or method of
Court of Appeals of Indiana | Opinion 48A02-1409-CR-670| June 4, 2015 Page 22 of 24
commission, or that are otherwise interrelated by distinguishing characteristics
that are not isolated incidents.” I.C. § 35-45-6-1.
[41] The majority concludes that there is insufficient evidence supporting a
conclusion that the racketeering activity amounts to or poses a threat of
continued criminal activity—an element that appears nowhere in the statute
defining the crime. As noted by the majority, however, our Supreme Court has
noted the many differences between the Indiana act and the federal act. See
Keesling, 880 N.E.2d at 1203-06 (emphasizing that the Indiana statute “uses
language significantly broader than” its federal counterpart).
[42] In writing a continuity requirement into the federal RICO statutes, the United
States Supreme Court focused heavily on legislative history and Congressional
intent. H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 238-39 (1989). There is no
such legislative history to examine in Indiana. And the General Assembly has
had the benefit of the United States Supreme Court’s opinion in H.J. for over
two decades but has never elected to adopt the continuity requirement
announced in that case.
[43] It is axiomatic that when engaging in statutory interpretation, “Courts may not
‘engraft new words’ onto a statute or add restrictions where none exist.”
Kitchell v. Franklin, 997 N.E.2d 1020, 1026 (Ind. 2013) (quoting State ex rel.
Monchecourt v. Vigo Cir. Ct., 240 Ind. 168, 162 N.E.2d 614, 615 (1959)). I believe
that to reverse a conviction for failure to prove an element that is nowhere to be
found in the statute defining the crime requires us to engraft new words onto a
Court of Appeals of Indiana | Opinion 48A02-1409-CR-670| June 4, 2015 Page 23 of 24
statute. I do not believe it is our place to do so. As a result, I would affirm
Jackson’s conviction for corrupt business influence. In all other respects, I
concur with the majority.
Court of Appeals of Indiana | Opinion 48A02-1409-CR-670| June 4, 2015 Page 24 of 24
Ashonta Kenya Jackson v. State of Indiana
Combined Opinion