                                                               FILED
                                                          Mar 30 2017, 6:22 am

                                                               CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
                                                                and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michelle F. Kraus                                         Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                          Lyubov Gore
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Charles A. Benson,                                        March 30, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          02A03-1607-CR-1660
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable John F. Surbeck,
Appellee-Plaintiff.                                       Jr., Judge
                                                          Trial Court Cause No.
                                                          02D04-1602-F1-3



Bailey, Judge.




Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017               Page 1 of 10
                                               Case Summary
[1]   Following a jury trial, Charles A. Benson (“Benson”) was convicted of

      Attempted Murder, as a Level 1 felony;1 Resisting Law Enforcement, as a Level

      6 felony;2 and Criminal Recklessness, as a Level 6 felony,3 and was found to be

      a habitual offender.4 Benson now appeals, raising the sole issue of whether the

      trial court committed fundamental error by failing to give a specific jury

      instruction on unanimity.


[2]   We affirm.



                                Facts and Procedural History
[3]   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




      1
          Ind. Code §§ 35-42-1-1, 35-41-5-1.
      2
          I.C. § 35-44.1-3-1.
      3
          I.C. § 35-42-2-2.
      4
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017   Page 2 of 10
      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


      Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017   Page 3 of 10
      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




      5
          I.C. § 35-47-4-5.
      6
          I.C. § 35-50-2-11.


      Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017   Page 4 of 10
       sentenced Benson to 2 ½ 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 ½ 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,




       7
         Failure to provide a proper record for appeal has been found to be grounds for waiver of any alleged error
       based upon the absent material. See, e.g., Cox v. State, 475 N.E.2d 664, 666-67 (Ind. 1985); see also Ind.
       Appellate Rule 46(A)(8)(a) (“Each contention must be supported by citations to . . . the Appendix or parts of
       the Record on Appeal relied on.”); but see App. R. 49(B) (providing that “[a]ny party’s failure to include any
       item in an Appendix shall not waive any issue or argument”). We remind counsel that the appellant “bears
       the burden of presenting a record that is complete with respect to the issues raised on appeal.” Ford v. State,
       704 N.E.2d 457, 461 (Ind. 1998).

       Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017                          Page 5 of 10
       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

       Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017   Page 6 of 10
       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


       Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017   Page 7 of 10
       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).




       8
        In arguing fundamental error, Benson directs us to a memorandum decision. We remind counsel that a
       memorandum decision “shall not be regarded as precedent and shall not be cited to any court,” App. R.
       65(D), except under limited circumstances that do not apply here. See id.

       Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017                    Page 8 of 10
[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.



                                                  Conclusion
[17]   The trial court did not commit fundamental error in failing to give a specific

       jury instruction on unanimity.




       9
         Benson urges that the State “argued that there were two attempts on officer Geiger’s life but only charged
       Benson with one count.” (Appellant’s Br. at 14.) To the extent Benson is suggesting that the State, through
       argument, can avoid the continuous crime doctrine, we disagree, as it is the doctrine itself that protects
       against problematic outcomes if the State could readily do so. See, e.g., Nunn, 695 N.E.2d at 125 (“Suppose
       [the defendant] had possessed an automatic weapon with a fifty round clip, and that in one burst he fully
       discharged the weapon at the officer without hitting him. Could it be seriously contended that he thereby
       committed fifty attempted murders . . . ?”).

       Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017                        Page 9 of 10
[18]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 02A03-1607-CR-1660 | March 30, 2017   Page 10 of 10
