Charles Robinson v. State of Indiana , 56 N.E.3d 652 ( 2016 )

FILED
Jun 30 2016, 7:44 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amanda O. Blackketter Gregory F. Zoeller
Shelbyville, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles Robinson, June 30, 2016
Appellant-Defendant, Court of Appeals Cause No.
73A01-1506-CR-750
v. Appeal from the Shelby Superior
Court
State of Indiana, The Honorable David N. Riggins,
Appellee-Plaintiff. Judge
Trial Court Cause No.
73D02-1503-F6-64
Barnes, Judge.
Case Summary
[1] Charles Robinson appeals his conviction for Level 5 felony corrupt business
influence. We reverse and remand.
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Issues
[2] The issues we address today are:
I. whether the trial court properly denied Robinson’s
severance motion; and
II. whether there is sufficient evidence to support Robinson’s
conviction.1
Facts
[3] The evidence most favorable to the conviction is that, on January 25, 2015,
Robinson went to a Walmart in Shelbyville with his fiancée, Deborah Hill.
While in the store, Robinson went to the electronics department of the store
without Hill, after telling her that he was going to the restroom. Robinson then
placed a $299 home security system camera into his shopping cart without
hesitation or apparently considering the price. Robinson then went into the
men’s apparel department and exited that section shortly thereafter without the
camera in his cart. Robinson then met back up with Hill, who handed him a
backpack she had brought into the store with her, and the two left the store.
[4] A Walmart employee later found the camera box, opened and missing some
parts, in the men’s apparel department. Darren Koors, an asset protection
1
Because we reverse Robinson’s conviction for corrupt business influence, reinstate his two theft convictions,
and remand for resentencing, we need not address his argument that his sentence for corrupt business
influence was inappropriate.
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associate for Walmart, came to the store later that day on a personal errand and
was told of the opened camera box that was found. Koors told the employee to
place the box in a fitting room and that he would look into the matter on his
next working day, which was January 27, 2015. On that date, Koors
discovered that his manager had moved the camera box to an office. Koors
then reviewed security video footage from January 25 and observed a man,
whose identity he did not know at that time, remove the camera box from the
shelf, go into the men’s apparel department, then leave that department without
the camera box. This man was the only person on January 25 who went into
the electronics department and selected that particular item. After reviewing
the footage, Koors determined that the camera box must have been in the men’s
apparel department for approximately two hours before being discovered by the
Walmart employee.
[5] On February 17, 2015, Robinson and Hill returned to the Shelbyville Walmart.
Robinson again separated from Hill, after telling her he was going to the
restroom, went to the electronics department, again selected the same home
security camera system from the shelf, and put it into his cart. Koors was
working that day and saw Robinson in the toy department with the camera box
in his cart; Koors recognized Robinson from the security footage of the January
25, 2015 incident. Koors observed Robinson opening the box. Robinson
noticed Koors watching him, as the two made eye contact. Koors called police
and continued watching Robinson, who abandoned the cart with the box in it
in the toy department.
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[6] When Shelbyville Police Officer Shawn Bennett arrived at the Walmart, he and
Koors apprehended Robinson and Hill and brought them to an office at the
store for an interview. Koors showed Robinson a picture from the January 25,
2015 security footage, and Robinson admitted that he was in the picture.
Officer Bennett searched both Robinson and Hill, and neither had any stolen
items in their possession. Robinson did have a pocket knife. He also told
Officer Bennett that he had put the camera back that day because he was aware
Koors was “on to him.” Tr. p. 186. Robinson denied ever stealing anything
from Walmart, however. The camera box eventually was located hidden in the
toy department and the security wire that surrounded the box had been cut with
a sharp object. No items were missing from the box but the product could not
be resold because of the damage to the box.
[7] The State charged Robinson with two counts of Class A misdemeanor theft and
two counts of Level 6 felony theft; the enhanced theft charges were based on
Robinson’s prior theft convictions.2 The State also charged Robinson with one
count of Level 5 felony corrupt business influence. Robinson moved to sever
trial of the theft charges from each other; the motion was unclear as to how
Robinson believed the corrupt business influence charged should be tried. The
trial court denied the severance motion. After a jury trial, Robinson was found
guilty of the misdemeanor thefts and of corrupt business influence. Robinson
2
Although Robinson apparently was not successful in removing any property from Walmart during this
second incident, the theft charge was related to the fact that Walmart could not resell the camera because of
the damage caused to the box; Robinson was not charged with attempted theft.
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then stipulated to his prior theft convictions. The trial court merged all four
theft charges into the corrupt business influence charge and only entered
judgment of conviction on and sentenced Robinson for that charge. Robinson
now appeals.
Analysis
I. Severance
[8] We first address Robinson’s contention that the trial court should have severed
the theft charges. Indiana Code Section 35-34-1-9(a) provides:
Two (2) or more offenses may be joined in the same indictment
or information, with each offense stated in a separate count,
when the offenses:
(1) are of the same or similar character, even if not part of a
single scheme or plan; or
(2) are based on the same conduct or on a series of acts
connected together or constituting parts of a single scheme or
plan.
Indiana Code Section 35-34-1-11(a) governs severance of charges and states:
Whenever two (2) or more offenses have been joined for trial in
the same indictment or information solely on the ground that
they are of the same or similar character, the defendant shall
have a right to a severance of the offenses. In all other cases the
court, upon motion of the defendant or the prosecutor, shall
grant a severance of offenses whenever the court determines that
severance is appropriate to promote a fair determination of the
defendant’s guilt or innocence of each offense considering:
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(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish the
evidence and apply the law intelligently as to each offense.
[9] If offenses have been joined solely because they are of the same or similar
character, a defendant is entitled to severance as a matter of right, and a trial
court has no discretion to deny a severance motion. Pierce v. State, 29 N.E.3d
1258, 1264 (Ind. 2015). If, however, offenses have been joined because the
defendant’s underlying acts are connected together, we review a trial court’s
ruling on a severance motion for an abuse of discretion. Id. In other words, a
defendant is not entitled to severance as of right if multiple criminal acts fall
under Indiana Code Section 35-34-1-9(a)(2). If the operative facts establish a
pattern of activity beyond mere satisfaction of the statutory elements, such as
that multiple crimes have been committed with a common victim, modus
operandi, and motive, a defendant is not entitled to severance of charges as of
right. Id. at 1266. When reviewing discretionary denial of a motion to sever,
we must consider whether severance was required in order to promote a fair
determination of the defendant’s guilt or innocence after reviewing subsections
1-3 of Indiana Code Section 35-34-1-11(a). Ben-Yisrayl v. State, 690 N.E.2d
1141, 1145 (Ind. 1997), cert. denied. We will reverse denial of a discretionary
severance motion only for clear error. Id. at 1146.
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[10] We conclude the record establishes that Robinson was not entitled to severance
of the charges as a matter of right, but rather that the charged offenses were
“connected together or constituting parts of a single scheme or plan.” See I.C. §
35-34-1-9(a)(2). On two separate occasions less than a month apart, Robinson
went to the same Walmart in Shelbyville and stole or attempted to steal parts
from a home security camera system box, after opening the box within the
store. These two thefts had a common victim, modus operandi, and motive.
Additionally, proof regarding both thefts was necessary in order for the State to
establish the corrupt business influence charge; it would have been impossible
to prove that charge without evidence related to both thefts. Thus, Robinson
was not entitled to severance as a matter of right, and denial of that motion was
within the trial court’s discretion.
[11] We find no abuse of that discretion here. Neither the number of offenses
charged nor the complexity of the evidence weigh in favor of severance. Only
three charges were tried to the jury: the two separate theft incidents and the
corrupt business influence charge that was predicated on the two thefts. The
evidence presented in support of the charges was straightforward and
inextricably intertwined. Only three witnesses testified for the State, with most
of that testimony provided by Koors. In light of the uncomplicated nature of
the evidence, we do not believe there was a significant risk of juror confusion or
any doubt that the jurors would be able to distinguish the evidence and apply
the law intelligently to each offense. As such, we conclude the trial court did
not abuse its discretion in denying Robinson’s severance motion.
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II. Sufficiency of the Evidence
[12] We now turn our attention to whether there was sufficient evidence to support
Robinson’s corrupt business influence conviction. When reviewing a claim of
insufficient evidence, we neither reweigh the evidence nor assess the credibility
of witnesses. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015). We will affirm a
conviction if there is probative evidence and reasonable inferences drawn
therefrom from which a reasonable fact-finder could have found the defendant
guilty beyond a reasonable doubt. Id. If there is proof lacking on an element of
a crime after considering all the evidence in favor of the conviction, we will
reverse. Brown v. State, 868 N.E.2d 464, 470 (Ind. 2007).
[13] The State charged and convicted Robinson under the following provision of
Indiana’s Racketeer Influenced and Corrupt Organizations (“RICO”) Act: “A
person . . . who through a pattern of racketeering activity, knowingly or
intentionally acquires or maintains, either directly or indirectly, an interest in or
control of property or an enterprise . . . commits corrupt business influence, a
Level 5 felony.” I.C. § 35-45-6-2(2). A “pattern of racketeering activity” is
defined as “engaging in at least two (2) incidents of racketeering activity that
have the same or similar intent, result, accomplice, victim, or method of
commission, or that are otherwise interrelated by distinguishing characteristics
that are not isolated incidents.” I.C. § 35-45-6-1(d). Additionally, at least two
incidents must occur within five years of each other. Id. “Racketeering
activity” includes committing, attempting to commit, conspiring to commit, or
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aiding and abetting in the commission of theft, among other crimes. I.C. § 35-
45-6-1(e)(14).
[14] Robinson first challenges the sufficiency of the evidence that he committed theft
related to the January 25, 2015 incident, as a necessary predicate to his corrupt
business influence conviction. A theft conviction requires proof that the
defendant knowingly or intentionally exerted unauthorized control over
another person’s property, with intent to deprive the other person of any part of
its value or use. I.C. § 35-43-4-2(a). Robinson contends that because the
camera box was abandoned for at least two hours before a Walmart associate
found it, and because the box was moved from a fitting room to an office before
Koors began his investigation, there were opportunities for someone besides
Robinson to have opened the box and removed some of its contents.
[15] Robinson’s argument is a request to reweigh the evidence, which we must
decline. Koors testified that Robinson was the only customer on January 25 to
enter the electronics department and to select that particular home security
camera system from the shelf. Koors also testified that Robinson’s selection of
the item without apparently inspecting it or considering its price was consistent
with shoplifting. Robinson then went into the men’s apparel section with the
box and left without it. When the Walmart associate found the box, it had been
opened and some of its contents removed. This evidence is sufficient to support
the conclusion that Robinson opened the box and removed some of its contents,
so as to support a finding that he committed theft.
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[16] We now turn to the question of whether Robinson’s commission of theft on two
separate dates is sufficient to support his corrupt business influence conviction.
In his brief, Robinson argued that the State failed to prove there was any threat
of continued criminal activity in the future. He relied upon two cases from this
court in which, citing federal precedent under the federal RICO Act, we held
that in order to establish a “pattern of racketeering activity,” the State must
prove that a defendant’s criminal acts pose a threat of continued criminal
activity. See Waldon v. State, 829 N.E.2d 168, 177 (Ind. Ct. App. 2005), trans.
denied; Kollar v. State, 556 N.E.2d 936, 940-41 (Ind. Ct. App. 1990), trans. denied.
[17] After this case was fully briefed, our supreme court decided Jackson v. State, No.
48S02-1509-CR-554 (Ind. Mar. 2, 2016), in which it expressly overruled both
Waldon and Kollar. The court noted that there are differences between the
federal and Indiana RICO Acts, and that under the Indiana statute “the State is
not required to prove that racketeering predicates amount to or pose a threat of
continued criminal activity.” Jackson, slip op. at 5. The court also noted,
however, that the plain language of the Indiana RICO Act requires proof that
two or more predicate criminal acts were “not isolated,” and thus “continuity”
remains a relevant consideration. Id.[18] The court further explained:
In other words, the statute does not apply to sporadic or
disconnected criminal acts. Thus, although failure to prove
continuity is not necessarily fatal to a corrupt business influence
conviction—since it is not a separate element in the statute—the
State must still demonstrate that the criminal incidents were in
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fact a “pattern” and not merely “isolated” incidents. And
evidence of a degree of continuity or threat of continuity is
certainly helpful in establishing the necessary “pattern.”
In some cases, proving that two or more criminal incidents are
not isolated will be straightforward, as the very nature of the
crimes will suggest that they are not sporadic. In others, the
proof may be more elusive, perhaps indicating that the State is
overreaching in its attempt to obtain a conviction under the
Indiana RICO Act. Ultimately, we are aware that we have not
given a precise formulation on what proof will suffice, but we
believe that future case law will shape and bring clarity to the
concept of “not isolated.”
Id. at 10-11.
[19] Today, we begin the process of writing that case law attempting to bring
“clarity to the concept of ‘not isolated.’” In so doing, we conclude that the
State overreached in charging Robinson of a RICO violation.
[20] We begin by noting what Jackson did not hold; namely, that a defendant’s
commission of at least two enumerated predicate crimes can always support a
conviction for corrupt business influence under Indiana’s RICO, even crimes
that have a similar modus operandi and victim. Indeed, our supreme court
previously has held:
any danger that a racketeering conviction could result merely
from the commission of two predicate offenses within a five-year
period is obviated not only by the interrelatedness requirement . .
., but also by the requirement . . . that once a pattern of
racketeering activity has been established, it must be connected to
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an interest in or control of . . . property or an enterprise, to
constitute the offense of corrupt business influence.
Flinn v. State, 563 N.E.2d 536, 541 (Ind. 1990).3 Flinn is further support for the
notion that two predicate offenses do not necessarily add up to a RICO
conviction.
[21] The particular facts of Jackson provide a clear contrast to the present case. In
Jackson, the defendant was the mastermind of three armed robberies committed
within a one-month time span. In each case, the defendant recruited at least
two other persons to actually carry out the robberies while he waited in a car
down the street, and he would meet his accomplices later to split the proceeds
of the robbery. On at least two occasions, the defendant lent a gun to one of his
accomplices. For the third and final robbery, the defendant’s plan and target
had become riskier and more sophisticated: he targeted a bank instead of a
liquor store as in the previous two robberies, and he called in a bomb threat to a
local school in order to distract law enforcement. Our supreme court held the
fact finder could have inferred from the evidence of the nature of the crimes that
they were not isolated or sporadic. Id. at 12.
[22] Here, Robinson twice shoplifted or attempted to shoplift similar items from the
same Walmart store. Beyond that, there is no evidence of any kind of ongoing
3
At the time Flinn was decided, the Indiana RICO Act required a pattern of racketeering activity to be
connected to an interest in or control of “real” property or an enterprise. In 1991, the legislature deleted the
“real” property requirement from RICO. See P.L. 211-1991, § 9.
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criminal enterprise. There is no evidence of Robinson having acquired any
property through “racketeering activity” other than the items he stole or
attempted to steal from Walmart. There is no evidence of extensive planning or
increasing sophistication of Robinson’s crimes. There is no evidence he
enlisted any accomplices to work with him; the record does not contain any
evidence that Hall was aware of Robinson’s criminal actions, and she denied
having any knowledge of them. Robinson was not any kind of criminal
mastermind, nor did he work for one. The crimes were isolated and sporadic.
[23] We simply do not believe the commission of two acts of shoplifting of this type
is the kind of activity our legislature meant to be covered by our RICO statute.
We have previously observed that our RICO statute “was designed to address
the more sinister forms of corruption and criminal activity . . . . RICO is
structured to reach and punish these diabolical operations that are a greater
threat to society than random theft.” AGS Capital Corp. v. Prod. Action Int’l, LLC,
884 N.E.2d 294, 308 (Ind. Ct. App. 2008), trans. denied. Additionally, we have
described the intent behind RICO laws as permitting cumulative punishment
and to “‘seek eradication of organized crime . . . by strengthening the legal tools
in the evidence-gathering process, by establishing new penal prohibitions, and
by providing enhanced sanctions and new remedies to deal with the unlawful
activities of those engaged in organized crime.’” Chavez v. State, 722 N.E.2d
885, 894 (Ind. Ct. App. 2000) (quoting Dellenbach v. State, 508 N.E.2d 1309,
1315 (Ind. Ct. App. 1987) (in turn quoting Organized Control Act of 1970,
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Pub.L. No. 91–452, 84 Stat. 923 (1970))).4 RICO laws were designed “‘to
provide new weapons of unprecedented scope for an assault upon organized
crime and its economic roots.’” Mendenhall v. Goldsmith, 59 F.3d 685, 691 n.9
(7th Cir. 1995) (quoting Russello v. United States, 464 U.S. 16, 26, 104 S. Ct. 296,
302 (1983)), cert. denied.5
[24] Robinson, while no saint, does not fit the definition of someone involved with
any kind of organized crime. He is no Lucky Luciano. He is not even an
Ashonta Jackson, who organized others in the commission of escalating armed
robberies. See Jackson, slip op. at 12. The RICO statute in its Indiana form is a
powerful tool that assuredly has its value and utility, and it is a vital arrow in
law enforcement’s quiver. Here, the State is off-target both legally and
practically by attempting to elevate a two-time shoplifter to the status of a Carlo
Gambino. We decline, pursuant to Jackson’s guidance, to apply RICO here.
There are other means of prosecuting and penalizing repeat offenders such as
Robinson, such as through habitual offender or enhanced charges for certain
4
Chavez addressed and rejected a claim that it violated double jeopardy prohibitions to convict a defendant
for both a RICO violation and the predicate offenses. Chavez, 722 N.E.2d at 894-95. We have no quarrel
with Chavez’s holding on the facts of that case, but note that serious double jeopardy concerns easily could
arise if there is no evidence of a “corrupt business influence” beyond the mere fact that a defendant
committed two predicate offenses. Indeed, the trial court here evidently believed such concerns existed, as it
merged the theft convictions with the corrupt business influence conviction.
5
Although, as noted in Jackson, there are differences between the federal and Indiana RICO statutes, and
there is no legislative history in Indiana, we still believe reference to federal law is helpful in gaining a general
common sense understanding of the intent behind RICO laws.
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offenses, including theft. But not every repeat offender falls under the RICO
statute.
[25] There is insufficient evidence to support Robinson’s conviction for corrupt
business influence. There is, however, sufficient evidence to support
convictions for two counts of Level 6 felony theft. We reverse Robinson’s
corrupt business influence conviction. We remand for the trial court to enter
judgments of conviction for two counts of Level 6 felony theft of which
Robinson was found guilty and to impose sentence on those counts. See Ball v.
State, 945 N.E.2d 252, 258 (Ind. Ct. App. 2011) (remanding for imposition of
judgment on lesser-included offense after finding insufficient evidence for
greater offense), trans. denied.
Conclusion
[26] The trial court properly denied Robinson’s severance motion. There is
insufficient evidence to support his conviction for Level 5 felony corrupt
business influence, but we remand for imposition of judgments of conviction
and sentence for two counts of Level 6 felony theft.
[27] Reversed and remanded.
Robb, J., concurs.
Altice, J., concurs and dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Charles Allen Robinson, Court of Appeals Case No.
73A01-1506-CR-750
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Altice, J., concurring in part and dissenting in part.
I concur fully with my colleagues’ resolution of the severance issue, as well as
its conclusion that the State presented sufficient evidence to support Robinson’s
conviction for the January 25, 2015 theft. However, I must part ways with the
majority’s conclusion that the State presented insufficient evidence to support
Robinson’s corrupt business influence conviction. I do not take issue with the
majority’s observation that the commission of any two predicate offenses will
not necessarily support a RICO conviction. My disagreement is with the
majority’s conclusion that the specific facts of this case cannot support such a
conviction.
The majority seems to suggest that Robinson’s RICO conviction cannot stand
because the predicate offenses are simply not serious enough. Indeed, they
reason that “the commission of two acts of shoplifting of this type is [not] the
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kind of activity our legislature meant to be covered by our RICO statute.” Slip
op. at ¶ 24. I disagree. The provision of the Indiana RICO act under which
Robinson was convicted provides that a person “who through a pattern of
racketeering activity, knowingly or intentionally acquires or maintains, either
directly or indirectly, an interest in or control of property or an enterprise . . .
commits corrupt business influence, a Level 5 felony.” I.C. § 35-45-6-2. In
relevant part, the Indiana RICO Act defines “pattern of racketeering activity”
as “engaging in at least two (2) incidents of racketeering activity that have the
same or similar intent, result, accomplice, victim, or method of commission, or
that are otherwise interrelated by distinguishing characteristics that are not
isolated incidents.” I.C. § 35-45-6-1(d). “Racketeering activity” is specifically
defined to include theft. I.C. § 35-45-6-1(e).
Thus, by the plain language of the statute, two acts of theft—even shoplifting—
can support a RICO conviction. Moreover, the provision of the RICO Act
under which Robinson was charged does not require that he act in concert with
others in any sort of criminal enterprise. If the legislature wished to limit the
reach of the RICO Act to more sophisticated criminals and members of
organized crime syndicates like Lucky Luciano or Carlo Gambino, it could
easily have done so. I believe the language of the statute is a better indicator of
the legislature’s intent than this court’s decisional law. See Jackson v. State, No.
48S02-1509-CR-554, slip op. at 4 (Ind. March 2, 2016) (noting that to determine
legislative intent, “we look first to the statutory language and give effect to the
plain and ordinary meaning of statutory terms” and that “[w]here the language
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is clear and unambiguous, there is no room for judicial construction” (citation
and internal quotation marks omitted)).
I also respectfully disagree with the majority’s conclusion that Robinson’s
offenses were isolated and sporadic. As our Supreme Court noted in Jackson,
“[i]n some cases, proving that two or more criminal incidents are not isolated
will be straightforward, as the very nature of the crimes will suggest that they
are not sporadic.” Id. at 7. I believe this is such a case. The predicate offenses
were not merely similar—they were virtually identical. On two occasions less
than a month apart, Robinson stole or attempted to steal components of the
same home security system from the same store and in the same manner. In
my view, the striking similarities between the predicate offenses were sufficient
to permit a reasonable inference that the thefts were interrelated rather than
isolated acts.
For all of these reasons, I would affirm Robinson’s corrupt business influence
conviction. Because the majority reverses Robinson’s conviction, it does not
reach his sentencing argument. I will not delve into a full analysis of
Robinson’s Appellate Rule 7(B) argument because I write separately. It suffices
for these purposes to say that in light of Robinson’s criminal history, which
dates back to 1987 and includes ten felonies, I would not find the sentence
imposed inappropriate. In sum, I would affirm Robinson’s conviction and
sentence in full.
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