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.
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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
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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.
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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).
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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
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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
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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.
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[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 . . . ?”).
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[18] Affirmed.
Najam, J., and May, J., concur.
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Charles A. Benson v. State of Indiana
Combined Opinion