Erkins v. State
| Decision Date | 20 June 2013 |
| Docket Number | No. 58A01–1205–CR–215.,58A01–1205–CR–215. |
| Citation | 988 N.E.2d 299 |
| Parties | Kenyatta ERKINS and Ugbe Ojile, Appellants–Defendants, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant Kenyatta Erkins.
Jeffrey E. Stratman, Aurora, IN, Attorney for Appellant Ugbe Ojile.
Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Kenyatta Erkins and Ugbe Ojile (collectively referred to as “Appellants”) spent an evening at a casino during which they were monitored by police. Ojile spent most of the night watching S.M. gamble and saw that he had about $20,000. Erkins waited outside in Ojile's girlfriend's car. Erkins and Ojile had several cell phone conversations about robbing S.M. that were recorded by the police. Eventually, S.M. reserved a room at the casino. Ojile left the casino and dropped Erkins off at his residence. On his way home, Ojile had another phone conversation with Erkins about robbing S.M. The following day, Ohio police stopped and searched Erkins's car and found dark clothing, camouflage gloves, duct tape, and a backpack containing a handgun and a bullet. Ohio police also searched Ojile's apartment and found more ammunition for the handgun found in the backpack. Ojile and Erkins were charged with and convicted of class A felony conspiracy to commit robbery resulting in serious bodily injury.
Appellants appeal their convictions arguing that (1) the trial court erred in permitting the State to amend the charging information on the second day of trial; (2) the evidence was insufficient to support their convictions for class A felony conspiracy because no actual injury to S.M. occurred, and even if actual injury is not required to sustain their convictions, there was insufficient evidence that they intended and agreed to cause S.M. serious bodily injury; (3) the trial court abused its discretion in admitting the evidence gathered after they left the casino; (4) the trial court abused its discretion in admitting testimony that interpreted the slang used in their phone conversations; and (5) the prosecutor committed misconduct resulting in fundamental error during closing argument by referring to the possible murder of S.M. because it was unsupported by the evidence. Ojile also argues that his counsel provided ineffective assistance by failing to argue the defense of abandonment.
We conclude that (1) the amendment to the charging information was one of form, not substance, and therefore the trial court did not err in permitting the amendment; (2) the evidence was sufficient to show that Appellants intended and agreed to commit a robbery of S.M. that would result in serious bodily injury, which is all that is required to obtain a conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury; (3) the trial court did not abuse its discretion in admitting evidence gathered after Appellants left the casino; (4) most of the testimony interpreting Appellants' conversation was helpful to the jury and therefore admissible, and any error in admitting inadmissible interpretations was harmless; and (5) the prosecutor did not present argument that was unsupported by the evidence and therefore did not commit misconduct let alone cause fundamental error. We also conclude that Ojile's trial counsel did not render ineffective assistance. Accordingly, we affirm Appellants' convictions.
The evidence most favorable to the convictions follows. On the evening of October 5, 2010, Ojile and Erkins were being monitored by police as they drove to and from various casinos. The police had obtained a wiretap warrant for Erkins's cell phone and a warrant to attach GPS monitors to Erkins's vehicle and Ojile's girlfriend's vehicle. That night, Ojile drove his girlfriend's Volkswagen Jetta from Erkins's residence to the Hollywood Casino in Lawrenceburg, to the Grand Victoria Casino (now Rising Sun), and then to Belterra Casino in Florence. Finally, they drove back to the Grand Victoria Casino, arriving at 12:50 a.m. Ojile went inside the casino, and Erkins stayed in the car. Ojile remained in the casino for about two and a half hours. Ojile's actions in the casino were recorded by the casino's surveillance cameras. Except for the times Ojile stepped away to make a phone call, he stood near a card table watching S.M. play cards.
During the early morning hours of October 6, 2010, Ojile and Erkins spoke on their cell phones multiple times. Around 1:00 a.m., Ojile called Erkins and told him that S.M. was playing cards and had about $600 in front of him on the table, but Ojile was going to leave. Ten minutes later, Ojile called Erkins and told him that as he was about to leave, he saw S.M. take what appeared to be at least $20,000 out of his pocket to purchase more chips. Ojile told Erkins that he did not want to waste an entire evening, but that it would be worth it to wait and see if S.M. was going to leave soon. He asked Erkins for his opinion. Erkins replied that he was in the car and would do whatever Ojile wanted. Ojile asked Erkins if he wanted to wait fifteen or twenty minutes. Erkins said that they could wait another hour.
At 2:48 a.m., Erkins called Ojile to ask what was going on. Ojile told him that he had heard S.M. turn down an offer from the casino for a room, so he knew that S.M. was not going to spend the night at the casino. Ojile told Erkins that “we should go lay on him” because S.M. just won $28,000 on the roulette machine. Tr. at 321; State's Ex. 3, 7. Ojile said, “I willing like, go all the way with this mother f* * *er.” ... I don't think we are going to see any like this like anytime soon.” Id.; State's Ex. 3, 7. Ojile told Erkins that S.M. was drunk. Ojile said that he was going to get some chips and something to eat, and Erkins said that was all right.
At 3:37 a.m., Ojile walked out of the casino. At 3:41 a.m., S.M. reserved a hotel room at the casino. At 3:49 a.m., Ojile and Erkins left Grand Victoria Casino and drove to the Hollywood Casino. They stayed there thirty minutes and then drove to Erkins's residence. Ojile dropped Erkins off and drove home. While Ojile was driving home, they had another cell phone conversation (the “Last Conversation”), in which they discussed robbing S.M. the following day and agreed that S.M. would not easily surrender his money:
Ojile: Yeah, so I take it's a wrap like that's a hot area right?
Erkins: I mean, it might not be a wrap but I'm just saying though like, like just being around there in the day time and s* *t like that going off knowing that that's a working neighborhood.
Ojile: Right.
Erkins: You know what I'm saying? Like it probably still can work [robbing S.M.] but, I just think he gonna be a problem.
Ojile: Yeah, he ain't gonna just be no smooth.
Erkins: Yeah I don't think he a be smooth.
Ojile: Especially cuz it's day, he might just ...
Erkins: Yeah that's what I'm saying like, being day time and you know whatever, whatever, you know really ain't got nobody to help, if we kind of like roughed him up and s* *t like that like. I don't know, like I said man, them mother f* * *ing arabs, be thinking like they like they, they be thinking they niggas and s* *t.
Ojile: Right.
Erkins: They not niggas, cause even a nigga could try to do mother f* * *ers be on some bulls* *t. Smack them around a little bit.
Ojile: F* *k.
Erkins: I told you man, seems like everything I told you, like when you see something, told you, mother f* * *ers be staying (laughing).
Ojile: Right.
Erkins: That's exactly what be happening, mother f* * *ers be stayin, you like all hell no. Yep, you can't put to much energy in this s* *t.
....
Ojile: Try again tomorrow or something with this s* *t.
Erkins: That's it. Yeah, but you know. Like I said, you can't be putting too much into it, you know these week, these weekdays, you know what I mean? Either, either it is or it ain't. You know what I mean. It's like s* * t, if it ain't like just keep it moving, you know cuz I mean like you know s* * t mother f* * *ers, think mother f* * *ers should put their overtime in on a mother f* *ing weekends man. Them weekdays, man, them days should kind of end earlier, like if you don't see, if you don't see nothing early it's probably just time to just keep it moving.
....
Ojile: But today was kind of true to the situation man, because like dude that got a lot of s* *t man, its pocket gonna look fat, and today was just a test[a]ment to it, you know, it ain't like, I seen it fat, I was like man that ain't no napkin, you know (laughing).
Erkins: Right, it wanted no (inaudible) sheet.
Ojile: Right, so dude had to go hard when nigga had that bulge, you know what it is (laugh).
....
Erkins: So, you at, you at the crib?
Ojile: No, I'm not. I'm a still on Colerain trying to get to 74, but I'm straight man, so yeah, you wanna stay at home with that nigga, and then uh, we will try tomorrow.
Erkins: Alright.
In the early morning hours of October 7, 2010, Erkins and Ojile drove away from the Hollywood Casino in Erkins's Dodge Magnum. At approximately 2:30 a.m., Ohio police stopped and searched Erkins's Dodge. Police seized a backpack from the floor in front of the passenger seat in which Ojile had been sitting. The backpack contained several documents with Ojile's name on them, a .40 caliber Glock handgun, a BB gun that looked like a handgun, and a .40 caliber cartridge. Police also found dark clothing, camouflage gloves, and a roll of duct tape. Ojile was still wearing the same clothes he had on the night before. Police also searched Ojile's apartment and discovered a loaded magazine for the Glock.
On March 10, 2011, Appellants were each charged with one count of class A felony conspiracy to commit robbery resulting in serious bodily injury and...
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Erkins v. State
...to obtain a conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury. Erkins & Ojile v. State, 988 N.E.2d 299, 303 (Ind.Ct.App.2013). Erkins filed a petition to transfer, which we granted, thereby vacating the opinion below, except those portions we summ......
- Erkins v. State