ATTORNEY FOR APPELLANT
Marce Gonzalez, Jr.
Merrillville, Indiana
ATTORNEYS FOR APPELLEE
Steve Carter
Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
BEN ROBINSON, JR., )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 71S00-0102-CR-102
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable John Marnocha, Judge
Cause No. 71G02-0005-CF-22
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
September 20, 2002
BOEHM, Justice.
Ben Robinson, Jr. was convicted of murder and robbery as a B felony
and sentenced to sixty-five years in prison. In this direct appeal,
Robinson contends: (1) he was denied effective assistance of counsel when
his trial counsel failed to object to the court’s erroneous re-instruction
of the jury; (2) the convictions for murder and robbery violated the double
jeopardy clause of the Indiana Constitution; and (3) the trial court abused
its discretion by finding that the aggravating circumstances outweighed the
mitigating circumstances and imposing consecutive sentences. We affirm.
Factual and Procedural Background
On the evening of May 6, 2000, Robinson and Michael Carrico left a
party together in a Cutlass driven by Carrico, ostensibly to purchase
liquor, but did not return. Around 10 p.m., Robinson arrived at the house
of Roderick Harmon, his best friend since elementary school, and the two
left to buy some marijuana.
The next day, the police received a report of a naked body, later
identified as Harmon, floating in a pond near Lake Shore Estates. The
police recovered shell casings on the ground nearby as well as three human
teeth, a gold cross necklace, and a plastic cellphone case. Harmon had a
fractured jaw and several lacerations and blunt force injuries to his head
and face and four teeth were missing. He died from multiple gunshot
wounds. Robinson was subsequently charged with murder, felony murder, and
robbery as an A felony.
A witness testified that on the day Harmon’s body was found, Robinson
showed the witness a blood-stained $20 bill and told her it was “blood
money” and that “Mike did something to somebody.” Two other witnesses
stated that on the same day, they went to Carrico’s house and found Carrico
cleaning blood from the backseat of the Cutlass. Carrico also showed them
a gun, blood-stained money, and a human tooth.
David “Elijah” Shouse testified that on the day after Harmon’s body
was found, he drove Robinson and Carrico to a location behind an apartment
complex where Robinson and Carrico walked into the woods carrying a shovel
and a bag containing a nine-millimeter handgun and magazine, Harmon’s
cellphone, and Harmon’s shoes and sweatshirt. About fifteen minutes later,
the two came back carrying only the shovel. Robinson also asked Shouse to
give him an alibi for the night of May 6.
Police later recovered the bag and determined that the bullets
recovered from Harmon’s body had been fired from the handgun in the bag.
Carrico had shown the same gun to Shouse on May 7 and others had previously
seen it in Robinson’s possession.
Robinson told the police that he picked Harmon up around 8 or 9 p.m.
on May 6, but dropped him off at 10 or 10:30. Robinson said he was with
Shouse the rest of the night, but never mentioned being with Carrico at any
point during the evening. Later that day, Robinson was rubbing his
shoulder and Carrico’s sister jokingly asked if the police had roughed him
up during the interview. Robinson replied that he had beaten another
person on the head.
Robinson was found guilty of murder, felony murder, and robbery. The
court merged the felony murder with the murder conviction, reduced the A
felony to a B, and imposed consecutive sentences of fifty-five years for
murder and ten years for robbery.
I. Ineffective Assistance of Counsel
After the jury retired to deliberate, the jury passed a note
consisting of two questions, the second of which is at issue in this
appeal. The jury stated, “We are having a problem with the word ‘while’ in
the Fourth element. Could you explain [what] the word ‘while’ means.” The
trial court reconvened with counsel for both sides present, but outside the
presence of the jury. On the record, the court noted that it “assumed”
that the jury was looking at the fourth element in the felony murder
charge, which provided that the State must prove beyond a reasonable doubt
that Robinson killed Harmon “while committing or attempting to commit
robbery.”[1] The court also noted that in Shultz v. State, 417 N.E.2d 1127
(Ind. Ct. App. 1981), the court held that a trial judge did not commit
reversible error by sending a dictionary to the jury after the jury had
requested it, without first consulting the parties. The parties consented
to the court responding by sending a note that stated, “The American
Heritage Dictionary, Second College Edition, defines ‘while’ as follows—”
and then photocopied the dictionary’s definition of the word “while.”[2]
Robinson argues he was denied effective assistance of counsel because his
trial counsel failed to object to this supplemental instruction.
Under Strickland v. Washington, 466 U.S. 668 (1984), a claim of
ineffective assistance of counsel requires a showing that: (1) counsel’s
performance was deficient by falling below an objective standard of
reasonableness based on prevailing professional norms; and (2) counsel’s
performance so prejudiced the defendant that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694; Lowery v. State,
640 N.E.2d 1031, 1041 (Ind. 1994). “[I]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . .
that course should be followed.” Williams v. State, 706 N.E.2d 149, 154
(Ind. 1999) (quoting Strickland, 466 U.S. at 697). Robinson’s claim fails
this prong of Strickland.
In arguing his trial counsel’s performance prejudiced his defense,
Robinson cites Faceson v. State, 642 N.E.2d 985 (Ind. Ct. App. 1994), which
held that the trial court committed reversible error when it gave the jury
additional instructions on the definitions of “dealing,” “intent,”
“delivery,” and “possession.” Robinson argues that his defense was
prejudiced because courts have previously held that giving supplemental
instructions to a jury is reversible error. This claim addresses the
performance prong. But Robinson offers no explanation how the court’s
response defining the word “while” using a dictionary prejudiced his
defense. Moreover, the cited evidence of Robinson’s participation in the
murder is overwhelming, including both his own statements and physical
evidence. We find no reasonable possibility that the instruction affected
the jury’s verdict.
II. Indiana Double Jeopardy
Citing Richardson v. State, 717 N.E.2d 32 (Ind. 1999), Robinson argues
that the murder and robbery convictions are the “same offense” under the
“actual evidence” test. The elements of the charged murder were (1)
knowingly or intentionally (2) killing (3) another human being. The
elements of the B robbery were (1) knowingly or intentionally (2) taking
property (3) from another person or from the presence of another person (4)
by using or threatening the use of force on any person (5) while armed with
a deadly weapon or results in bodily injury to any person other than the
defendant. Ind. Code § 35-42-5-1 (1998). The jury was instructed that to
find Robinson guilty of murder, the State must have proved that Robinson:
(1) knowingly (2) acting alone or with an accomplice (3) killed Roderick
Harmon. The jury was also instructed that in order to find Robinson guilty
of robbery, it must find that the State had established each of the
following elements:
1. The defendant, Ben Robinson
2. knowingly
3. acting alone, or with an accomplice
4. while armed with a deadly weapon
5. took property from Roderick Harmon
6. by using force upon Roderick Harmon
7. by shooting Roderick Harmon
8. which caused serious bodily injury to Roderick Harmon.
The charging information, which was read to the jury as part of the
instructions, charged Robinson with murder “by Shooting [Harmon] with a
handgun, causing him to die.” It also charged Robinson with robbery by
knowingly taking “United States currency, from the presence of another
person by force or threat of force, to-wit: by shooting Roderick Harmon
with a handgun, which resulted in serious bodily injury to another person,
to-wit: extreme pain to Roderick Harmon.”
Robinson argues that the act necessary to prove murder, shooting
Harmon with a handgun, was the same as the force proved as an element of
the robbery. He contends his case is similar to Richardson, where
convictions for robbery and battery were at issue, and this Court vacated
the battery conviction because the force used during the robbery (the
beating of the victim) also constituted the battery. Richardson does not
bar multiple convictions when the facts establishing one crime also
establish only one or even several, but not all, of the elements of a
second offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). That is
the case here. Robinson’s knowing killing of Harmon—by shooting the
handgun—established one element of robbery (force) but not all.
Accordingly, conviction of both is consistent with Richardson.
There also is no violation under the rules of statutory construction
and common law that coexist with the constitutional test set forth in
Richardson. See Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). The
trial court reduced the robbery from an A felony to a B felony by reason of
the rule that the “harm” in this murder was the same bodily injury
inflicted in the robbery. Enhancement of one offense for the very same
harm as another is not permissible. Guyton v. State, 771 N.E.2d 1141, 1143
(Ind. 2002) (citing Richardson, 717 N.E.2d at 56 (Sullivan, J.,
concurring)). But nothing prohibits conviction and sentencing for two
crimes with a common element. Accordingly, there was no double jeopardy
violation.
Robinson also cites Logan v. State, 729 N.E.2d 125, 136-37 (Ind.
2000), where this Court held that enhancement of an offense to a B felony
by reason of bodily injury violates the double jeopardy clause when the
defendant is also convicted of murder and the bodily injury is the death of
the murder victim. This point is valid, but does not apply here.
Robinson’s robbery was not enhanced by bodily injury. The jury was
instructed that to convict Robinson it must find that Robinson acted “while
armed with a deadly weapon.” Accordingly, enhancement of the offense to a
B felony was proper.
III. Consecutive Sentences
Robinson argues that the trial court erred in imposing consecutive
sentences because neither of the aggravating circumstances identified by
the trial court was supported by the record. Robinson first argues that
the trial court erred in finding the nature and circumstance of the offense
as an aggravating factor. Relying on Morgan v. State, 675 N.E.2d 1067
(Ind. 1996), where this Court held that facts which constitute the elements
and commission of offenses may not be used to enhance a sentence, Robinson
contends that the trial court did nothing more than recount the facts of
the offenses of murder and robbery.
In sentencing both Robinson and Carrico,[3] the trial court stated,
“[T]he fact that it is a murder case, and the fact that a person died, et
cetera, is something that I cannot consider as an aggravating factor. But
nonetheless, in this particular case this murder was particularly brutal.”
Noting that the victim was shot seven or eight times the court noted,
“Essentially, what you two did individually and collectively, is empty
every single bullet that you had the opportunity to empty from that gun
into Mr. Harmon’s body.” It found “particularly troublesome” the “utter
disregard for the sanctity” of the victim’s body shown by Robinson after he
killed the victim. The trial court noted that after killing the victim,
Robinson “stripped him, robbed him, looted his body, and then dumped him in
the lake.” The trial court found that the “callousness . . . demonstrated
by those acts is just staggering.” This conclusion by the court is
sufficient to identify the “nature and circumstances” as an aggravating
factor. See Mitchem v. State, 685 N.E.2d 671, 680 (Ind. 1997) (number of
times victim shot is proper consideration under “nature and circumstances”
aggravator); Cooper v. State, 687 N.E.2d 350, 354 (Ind. 1997) (looting
victim’s body proper consideration under “nature and circumstances”
aggravator).
Robinson also contends that there were no facts to support Harmon’s
position of trust with Robinson as an aggravating factor. For the same
reasons explained in Carrico v. State, __ N.E.2d __ (Ind. 2002), where the
same issue was presented in the same sentencing hearing, we do not agree
that the trial court found a position of trust as a separate aggravating
factor.
Finally, Robinson contends the trial court erred in refusing to
accord significant mitigating value to his lack of prior criminal history.
Robinson argues that sentencing orders should distinguish between first
offenders and repeat offenders, and that Indiana’s Bill of Rights supports
the opportunity for rehabilitation. Robinson had no prior felony
convictions, one prior misdemeanor marijuana possession conviction and
several traffic infractions, most of which had been dismissed. Although
this is not a criminal history that supports a significant aggravating
factor, neither is the trial court required to give significant mitigating
weight to this record. See Bunch v. State, 697 N.E.2d 1255, 1258 (Ind.
1998) (trial court considered defendant’s lack of prior criminal history,
but properly declined to accord it significant weight).
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] Although no issue is raised on this point, the jury was also instructed
on Count III, robbery as a Class A felony, which required the State to
prove that the defendant knowingly took property by using force or shooting
Harmon which resulted in serious bodily injury to Harmon. The fourth
element in this instruction required proof beyond reasonable doubt that
Robinson committed robbery “while armed with a deadly weapon.”
[2] Specifically, while was defined as “while . . . n. 1. A period of time:
stay for a while; sang (all) the while. 2. The time, effort, or trouble
taken in doing something: wasn’t worth my while—conj. 1. As long as;
during that time that: It was lovely while it lasted. 2. Although; at the
same time that: While he loves his children, she is strict with them. 3.
Whereas: and: The soles are leather while the uppers are canvas.—tr.v.
whiled, whiling, whiles. To spend (time) idly or pleasantly: while the
hours away.
[3] Robinson and Carrico were tried separately, but sentenced at the same
sentencing hearing. See Carrico v. State, __ N.E.2d __ (Ind. 2002).