The Indiana Court of Appeals has affirmed a man’s attempted murder conviction after finding that the court was not required to give the jury a specific instruction on unanimity.
In Charles A. Benson v. State of Indiana, 02A03-1607-CR-1660, Fort Wayne Police Office Robert Geiger initiated a traffic stop and found Charles Benson, who identified himself as Antoine Woods, in the passenger seat. When Geiger returned to his squad car to run the information he had been given, Benson got out of the vehicle, positioned his hands as though he were concealing a weapon and began running.
Geiger pursued Benson, who opened fire against the officer. Geiger returned fire, Benson fell to the ground and officers were then able to arrest him. The state charged Benson with various offenses, including attempted murder, resisting law enforcement, criminal recklessness, and a habitual offender enhancement.
Benson was found guilty on each of those charges and was sentenced to an aggregate of 62 ½ years. On appeal, Benson argued that the trial court committed fundamental error by failing to give a specific jury instruction on unanimity after the state produced evidence that he had fired the gun on two occasions during the pursuit.
Judge L. Mark Bailey, writing for the unanimous Indiana Court of Appeals, said under the case of Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011), “courts should give a specific type of unanimity instruction when the circumstances of the case so require.” Benson argued that Baker required a specific unanimity instruction in his case because the state produced evidence that he had fired the gun twice, but Bailey wrote that “where the continuous crime doctrine applies, the doctrine prohibits multiple convictions of the same crime for the same continuous offense.”
In Benson’s case, Bailey wrote that the continuous crime doctrine applies because Benson shot the gun at Geiger “on two occasion during the brief, continuous pursuit” that lasted about 90 seconds. Thus, Benson could be charged with only one count of attempted murder, Bailey said.
“Therefore, unlike in Baker, the jury was not presented with evidence ‘of a greater number of separate criminal offenses’ than charged,” Bailey wrote. “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.”