Citing an issue of first impression, the majority on the Indiana Supreme Court Tuesday concluded that a man could be convicted of Class A felony conspiracy to commit robbery even though the targeted victim was not robbed or harmed in any way.
Kenyatta Erkins and Ugbe Ojile staked out an Indiana casino to find a person to rob. Erkins’ phone was being monitored by police because they believed the men had committed more than 25 robberies involving victims who had won money at a casino. Ojile went inside the casino, found a target, and called Erkins giving him updates. The man decided to stay the night at the casino, so Erkins and Ojile decide to wait until he left to rob him. They discussed over the phone their plans, which included saying the target may be a “problem” and they might “rough him up.”
The next day, police stopped them in Erkins’ car and found several items, including guns, camouflage clothing and duct tape. The two were charged with Class A felony conspiracy to commit robbery resulting in serious bodily injury and Class A felony attempt to commit robbery resulting in serious bodily injury. The men claimed the conspiracy charge cannot stand because there is insufficient evidence to support it because no actual injury to the targeted victim occurred.
The Court of Appeals affirmed, as did the majority of Justices Steven David, Mark Massa and Loretta Rush in Kenyatta Erkins v. State of Indiana, 58S01-1309-CR-586.
“It may be helpful to think of conspiracy to commit robbery resulting in serious bodily injury as consisting of effectively two ‘mini-conspiracies’ within one crime: a conspiracy to commit robbery and a conspiracy to commit serious bodily injury in the course of the robbery. Each ‘mini-conspiracy’ requires the State to establish intent, agreement, and the commission of an overt act in furtherance of the agreement,” Justice David wrote.
But in Justice Robert Rucker’s dissent – to which Chief Justice Brent Dickson joined – Rucker finds David’s view of “mini-conspiracies” to be an inappropriate analogy because it requires treating the bodily injury component as an element of the crime. But serious bodily injury is not an element of robbery and thus not an element of conspiracy, he wrote. It is a penalty enhancement that increases the class of the offense that kicks in only where the offense “results in serious bodily injury.”
“[T]he result the majority reaches today creates something of an anomaly. Codefendants who combine their efforts to rob a victim can have their sentences enhanced only upon proof beyond a reasonable doubt that their conduct resulted in bodily injury or serious bodily injury. By contrast, if those same codefendants conspire to rob a victim, and engage in the exact same conduct, their sentences may be enhanced even if bodily injury never occurs. With such a lethal weapon at its disposal why would the State ever charge a simple robbery offense? This is not a result our Legislature could have intended,” Rucker wrote.
The justices did all agree that the trial court did not err in permitting the state’s amendment to the charging information of Erkins during the second day of trial. The information originally said Erkins was conducting surveillance in the casino on the victim, but it was amended to put Ojile’s name. The particular identity of the co-conspirator performing the overt act is not essential to making a valid conspiracy charge, so the amendment was one of form and not substance, David wrote.