                                                                       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.



      Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016                  Page 1 of 18
                                                        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.

      Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016                           Page 2 of 18
      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.


      Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016   Page 3 of 18
[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.

      Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016                           Page 4 of 18
      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:

      Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016       Page 5 of 18
              (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.




      Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016     Page 6 of 18
[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.


       Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016   Page 7 of 18
                                       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



       Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016    Page 8 of 18
       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.



       Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016   Page 9 of 18
[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

       Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016   Page 10 of 18
               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


       Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016    Page 11 of 18
                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.

       Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016                             Page 12 of 18
       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,




       Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016   Page 13 of 18
       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.

       Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016                               Page 14 of 18
       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.




       Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016   Page 15 of 18
                                            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


Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016                Page 16 of 18
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


Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016     Page 17 of 18
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.




Court of Appeals of Indiana | Opinion 73A01-1506-CR-750 | June 30, 2016   Page 18 of 18
