Charles A. Benson v. State of Indiana

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

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

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

sentenced Benson to 2 � 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 � 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,

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

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

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).





[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.