ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Thoma Jeffrey A. Modisett
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Thomas D. Perkins
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
RODNEY KINTA JENKINS, )
Defendant-Appellant, )
)
v. ) 02S00-9810-CR-538
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-9706-CF-333
_________________________________________________
On Direct Appeal
April 3, 2000
DICKSON, Justice
The defendant-appellant, Rodney Kinta Jenkins, was convicted of felony
murder for the killing of Timothy D. Thomas,[1] the robbery of Darrick C.
Lawson,[2] and two counts of criminal confinement.[3] In this direct
appeal, his arguments concern: the applicability of the felony murder
statute; sufficiency of the evidence; and double jeopardy.
The Applicability of the Felony Murder Statute
The defendant contends that his felony murder conviction should be
vacated on grounds that the felony murder statute does not impose criminal
liability for murder when the resulting death is that of a co-perpetrator.
The defendant's felony murder conviction was based on the death of Timothy
D. Thomas in the course of a robbery of Darrick C. Lawson committed by the
defendant and Thomas, during which Lawson fatally shot Thomas. The
defendant argues that he neither shot Thomas nor engaged in conduct that
caused his death. This Court has recently rejected the same argument.
Palmer v. State, 704 N.E.2d 124, 126-27 (Ind. 1999).
The felony murder language of our murder statute provides: "A person
who . . . [k]ills another human being while committing or attempting to
commit arson, burglary, child molesting, consumer product tampering,
criminal deviate conduct, kidnapping, rape, robbery, or carjacking; . . .
commits murder, a felony." Ind. Code § 35-42-1-1. In Palmer, we held that
the statutory language "kills another human being while committing" does
not restrict the felony murder provision only to instances in which the
felon is the killer, but may also apply equally when, in committing any of
the designated felonies, the felon contributes to the death of any person.
Palmer, 704 N.E.2d at 126. In Palmer, we echoed the observation of our
Court of Appeals:
[A] person who commits or attempts to commit one of the offenses
designated in the felony-murder statute is criminally responsible for
a homicide which results from the act of one who was not a participant
in the original criminal activity. Where the accused reasonably
should have . . . foreseen that the commission of or attempt to commit
the contemplated felony would likely create a situation which would
expose another to the danger of death at the hands of a nonparticipant
in the felony, and where death in fact occurs as was foreseeable, the
creation of such a dangerous situation is an intermediary, secondary,
or medium in effecting or bringing about the death of the victim.
There, the situation is a mediate contribution to the victim's
killing.
Palmer, 704 N.E.2d at 126 (quoting Sheckles v. State, 684 N.E.2d 201, 205
(Ind. Ct. App. 1997)). In deciding whether a person may be convicted of
felony murder for an allegedly indirect or remote death, we have applied
the felony murder statute when the designated felony was "the mediate or
immediate cause" of the death. Reaves v. State, 586 N.E.2d 847, 854-55
(Ind. 1992) (bed-ridden robbery victim died of a pulmonary embolism three
weeks after a robbery); Pittman v. State, 528 N.E.2d 67, 70 (Ind. 1988)
(burglary victim died from pulmonary embolism resulting from victim's
obesity and post-operative immobility following laparotomy to determine
severity of stab wound incurred in burglary); Sims v. State, 466 N.E.2d 24,
25-26 (Ind. 1984) (victim died of congestive heart failure following
surgery for fractured mandible suffered in the beating sustained during
burglary). See also Thomas v. State, 436 N.E.2d 1109, 1111-12 (Ind. 1982)
(victim died of acute cardiac arrhythmia during robbery); Booker v. State,
270 Ind. 498, 502, 386 N.E.2d 1198, 1201 (1979) (victim, age 74, died of
arrhythmia following robbery in which he was knocked to the floor and
"mauled"). In Palmer, we upheld the felony murder conviction based upon
the fatal shooting of the defendant's co-perpetrator by a correctional
officer during a kidnapping. Holding that the State need not prove intent
to kill in a felony murder, only the intent to commit the underlying
felony, we found that by engaging in kidnapping using a handgun, the
defendant had created a risk of death to persons present. Palmer, 704
N.E.2d at 126-27.
The statutory language "kills another human being while committing"
does not restrict the felony murder provision only to instances in which
the felon is the killer but also applies when, in committing any of the
designated felonies, the felon contributes to the death of any person. See
Id. at 126. We reject the defendant's claim that the felony murder statute
does not apply.
Sufficiency of the Evidence
The defendant challenges his felony murder conviction on grounds of
insufficient evidence, arguing that the State failed to prove beyond a
reasonable doubt that the defendant was the mediate or immediate cause of
the co-perpetrator's death and that the defendant was committing or
attempting to commit robbery before, during, or after the co-perpetrator's
death. The defendant also contends that his convictions should be reversed
because the jury was not presented with any substantial evidence that he
knowingly or intentionally used a firearm during the commission of the
robbery and confinements, an element that had to be proven for the
defendant to be convicted of these offenses as class B felonies.
In reviewing a claim of insufficient evidence, we will affirm the
conviction unless, considering only the evidence and reasonable inferences
favorable to the judgment, and neither reweighing the evidence nor judging
the credibility of the witnesses, we conclude that no reasonable fact-
finder could find the elements of the crime proven beyond a reasonable
doubt. Webster v. State, 699 N.E.2d 266, 268 (Ind. 1998); Hodge v. State,
688 N.E.2d 1246, 1247-48 (Ind. 1997).
The felony murder count was based on the killing of Timothy D. Thomas
while the defendant committed or attempted to commit robbery. The robbery
count charged the defendant with robbing Darrick C. Lawson while armed with
a deadly weapon, a firearm. The two confinement counts charged the
defendant with confining Darrick C. Lawson and Shalia R. Rogers while armed
with a deadly weapon.
The facts favorable to the judgment show that the defendant's co-
perpetrator, Thomas, grabbed Lawson and that the defendant held a gun to
Lawson's stomach. Thomas then told Lawson to lie on the floor and asked
the defendant for the tape in the defendant's possession. The defendant
and Thomas then taped Lawson's ankles together and his hands behind his
back. They instructed Lawson to lie on the floor on his stomach. Both the
defendant and Thomas wore gloves. The defendant retrieved Rogers, Lawson's
girlfriend, from the second level of the apartment. Rogers saw a small gun
under the defendant's jacket when he came upstairs. The defendant brought
her downstairs, where Lawson was lying on the floor. As Thomas was
standing on Lawson's back, the defendant handed the gun to Thomas, and the
defendant taped Rogers's eyes, mouth, and hands and instructed her to sit
in a chair. Thomas demanded money and drugs from Lawson, who indicated
that he did not have any. While Thomas watched the two victims, the
defendant searched the apartment, discovered Lawson's gun, and carried it
around with him. The defendant then took a spoon from a kitchen drawer and
heated it, threatening to torture the two victims. The two assailants took
the hot spoon over to Rogers, and Lawson, thinking that they were going to
burn her with it, divulged that he had money hidden under a mattress
upstairs. The defendant went upstairs, retrieved approximately $300.00,
and returned to the main floor, stating that he found some money but that
it was less than they had hoped to get. Thomas taped Lawson's mouth,
turned up the volume on the television, and said that they had to kill
Lawson. Thomas found a rope and decided to choke Lawson, rather than shoot
him. Lawson initially refused to raise his head so that Thomas could wrap
the rope around his neck, but then raised it when Thomas threatened to
shoot him. Thomas wrapped the rope twice around Lawson's neck and held an
end in each hand. As Thomas pulled the rope tight around Lawson's neck,
Lawson freed his hands and tried to get up from the floor. Thomas struck
Lawson twice on the head with the butt of a gun, but Lawson continued to
arise. As Lawson struggled with Thomas, the defendant, still carrying
Lawson's gun, took Rogers to the stairs. As the struggle continued, Lawson
noticed, on a nearby couch, the gun that Thomas and the defendant had
brought to the apartment. Lawson, expecting to be killed, grabbed the gun
and shot Thomas seven times, killing him. The defendant then fled.
The probative evidence supporting the felony murder, robbery, and
confinement convictions is substantial. The evidence and reasonable
inferences establish that the defendant and his co-perpetrator engaged in
dangerously violent and threatening conduct and that their conduct created
a situation that exposed persons present to the danger of death at the
hands of a non-participant who might resist or respond to the conduct. The
evidence and reasonable inferences also establish that Thomas's death was
foreseeable and that the defendant's role in creating this dangerous
situation, which included the use of at least two guns during the episode,
was "'an intermediary, secondary, or medium in effecting or bringing about
the death.'" See Palmer, 704 N.E.2d at 126 (quoting Sheckles, 684 N.E.2d
at 205). We find sufficient probative evidence from which a reasonable
trier of fact could have found, beyond a reasonable doubt, that the
defendant was the mediate or immediate cause of Thomas's death and that
this killing occurred during the defendant's commission or attempted
commission of robbery. We also find sufficient probative evidence from
which a reasonable trier of fact could have found, beyond a reasonable
doubt, that the defendant knowingly or intentionally used a firearm during
the commission of the offenses.
Double Jeopardy
The defendant argues, and the State concedes, that his conviction and
sentence for robbery should be vacated because his convictions for both
felony murder by robbery and robbery violate double jeopardy. We agree.
Because the statutory elements necessary to establish that the
defendant robbed Darrick C. Lawson were necessary to establish felony
murder by robbery, the defendant's conviction and sentence for both robbery
and felony murder by robbery in this case violate both the federal and the
state Double Jeopardy Clauses. See Richardson v. State, 717 N.E.2d 32, 50-
52 (Ind. 1999).
To remedy the double jeopardy violation, the defendant requests that
we vacate the felony murder conviction. When we determine that two
convictions contravene double jeopardy principles, we may eliminate the
violation by vacating either conviction, and we consider the penal
consequences that the trial court found appropriate. Richardson, 717
N.E.2d at 54. We, therefore, vacate the robbery conviction because it has
less severe penal consequences, and we leave standing the felony murder
conviction.
Conclusion
We affirm the convictions for felony murder and criminal confinement.
We vacate the conviction for robbery. This case is remanded to the trial
court to issue a corrected sentencing order.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
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[1] Ind. Code § 35-42-1-1.
[2] Ind. Code § 35-42-5-1.
[3] Ind. Code § 35-42-3-3.