ATTORNEY FOR APPELLANT
Marce Gonzalez, Jr.
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
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
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 courts 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 Harmons 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 Carricos 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 Harmons 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, Harmons cellphone, and Harmons 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 Harmons
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 Robinsons 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 Carricos 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.
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 dictionarys definition of the
Robinson argues he was denied effective assistance of counsel because
his trial counsel failed to object to this supplemental instruction.
Strickland v. Washington, 466 U.S. 668 (1984), a claim of ineffective assistance
of counsel requires a showing that: (1) counsels performance was deficient by falling
below an objective standard of reasonableness based on prevailing professional norms; and (2)
counsels performance so prejudiced the defendant that there is a reasonable probability that,
but for counsels 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). Robinsons claim fails this prong of Strickland.
In arguing his trial counsels performance prejudiced his defense, Robinson cites
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 courts response defining the word while using
a dictionary prejudiced his defense. Moreover, the cited evidence of Robinsons participation
in the murder is overwhelming, including both his own statements and physical evidence.
We find no reasonable possibility that the instruction affected the jurys 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
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. Robinsons knowing
killing of Harmonby shooting the handgunestablished 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
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.
Robinsons 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
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,
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. Harmons body.
It found particularly troublesome the utter disregard for the sanctity of the victims
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
victims body proper consideration under nature and circumstances aggravator).
Robinson also contends that there were no facts to support Harmons 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 Indianas 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 defendants lack of prior criminal history,
but properly declined to accord it significant weight).
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
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.
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: wasnt worth
my whileconj. 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.
Robinson and Carrico were tried separately, but sentenced at the same sentencing
hearing. See Carrico v. State, __ N.E.2d __ (Ind. 2002).