Erkins v. State
| Decision Date | 22 July 2014 |
| Docket Number | No. 58S01–1309–CR–586.,58S01–1309–CR–586. |
| Citation | 13 N.E.3d 400 |
| Parties | Kenyatta ERKINS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Leanna K. Weissmann, Lawrenceburg, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Brian L. Reitz, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
On Petition to Transfer from the Indiana Court of Appeals, No. 58A01–1205–CR–215
DAVID
, Justice.
Following his conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury, Kenyatta Erkins presents us with a matter of first impression: whether the State must establish the existence of serious bodily injury for his conviction to stand. Without actual serious bodily injury to his alleged victim, he reasons, there is insufficient evidence to support his conviction. However, because conspiracy is a crime consisting of intent to commit an underlying crime, an agreement between or among conspirators to commit the underlying crime, and an overt act by one of the conspirators in furtherance of the agreement, the State needed only to prove these elements beyond a reasonable doubt to support Erkins's conviction. We find that the State met its burden and affirm Erkins's conviction.
Erkins also claims that the trial court erred by permitting the State to amend the charging information on the second day of trial to reflect that a co-conspirator, and not he, committed the overt act. However, because the precise identity of the conspirator committing the overt act is not essential to the conspiracy charge, the amendment was one of form and not substance. As the amendment did not impact Erkins's ability to prepare his defense, we conclude that the trial court did not err in permitting the change.
Facts and Procedural History
On October 5, 2010, police were monitoring Kenyatta Erkins and Ugbe Ojile via a wiretap on Erkins's cell phone and GPS monitors on vehicles commonly driven by the two men.1 After driving to and from various southeastern Indiana casinos for most of the night, Erkins and Ojile arrived at the Grand Victoria Casino (now Rising Sun) in Rising Sun, Indiana, at 12:50 a.m. on October 6. Erkins stayed in the vehicle as Ojile entered the casino, where he remained for about three hours. Casino surveillance cameras recorded Ojile's subsequent actions.
Aside from the times he stepped away to phone Erkins, Ojile watched S.M. play cards at a nearby table. Around 1:00 a.m., Ojile called Erkins and told him that S.M. had about six hundred dollars in front of him on the table. Ten minutes later, Ojile placed another call and told Erkins that he witnessed S.M. take what appeared to be “at least twenty grand” out of his pocket. After discussing whether to wait and see if S.M. would soon leave the casino, the men agreed to wait another hour.
At 2:48 a.m., Erkins called Ojile for an update. Ojile explained that S.M. had just won twenty-eight thousand dollars on the roulette machine and declined the casino's offer for a room. Then Ojile suggested “we should go lay on him” and declared that he was “willing like, go all the way with this mother f* * * er” because he didn't “think [they were] going to see any like this like anytime soon.” (Tr. at 321; State's Ex. 4, 7.)
At 3:37 a.m., Ojile exited the casino. S.M. reserved a hotel room at 3:41 a.m.
Driving home after dropping Erkins off at his house, Ojile called Erkins. In that conversation, the two men discussed robbing S.M. the next day:
Early the next morning, police stopped Erkins and Ojile in Erkins's vehicle and conducted a search. Several items were seized, including dark clothing, camouflage gloves, a roll of duct tape, and a backpack containing a .40–caliber Glock handgun, a .40–caliber round of ammunition, a BB gun that resembled a handgun, and documents in Ojile's name. Police also searched Ojile's apartment and discovered a loaded magazine for the Glock.
On March 10, 2011, the State charged Erkins and Ojile each with one count of class A felony conspiracy to commit robbery resulting in serious bodily injury2 and one count of class A felony attempt to commit robbery resulting in serious bodily injury.3 Before opening arguments on the second day of the joint jury trial, the State moved to dismiss the attempt charges and amend the conspiracy charges by substituting Ojile's name for Erkins's as the person who committed the overt act of surveilling S.M. The trial court granted the State's motion to amend over Erkins's and Ojile's objections, and the jury found both men guilty as charged. Following a sentencing hearing, both were sentenced to fifty years in the Indiana Department of Correction, all executed, to be served consecutively with sentences being served in Ohio.
Each initiated separate appeals, which were consolidated by the Court of Appeals. Erkins and Ojile argued, among other things, that (1) the trial court erred by permitting the State to substantively amend the charging information on the second day of trial; and (2) the evidence was insufficient to support their convictions for class A felony conspiracy to commit robbery resulting in serious bodily injury because no actual injury to S.M. occurred.
Affirming their convictions, the Court of Appeals held that (1) because the amendment to the charging information was one of form and not substance, the trial court did not err in permitting the change; and (2) the evidence was sufficient to show that Erkins and Ojile intended and agreed to commit a robbery of S.M. that would result in serious bodily injury, and that Ojile committed an overt act in furtherance of their agreement, which is all that is required 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 summarily affirm.4
5Erkins & Ojile v. State, 993 N.E.2d 625 (Ind.2013) (table); Ind. Appellate Rule 58(A).
(Ojile's App. at 51.) On the second day of trial and over Erkins's objection, the trial court granted the State's motion to amend the information by changing the identity of the conspirator who conducted the surveillance from Erkins to Ojile. Finding the change to be “a matter of form, not substance,” the trial court reasoned that “there is no surprise involved here, based upon ... the information contained in the probable cause affidavit and the nature of the allegations here, no undue surprise or prejudice will be caused to the defendants.” (Tr. at 193.) Erkins maintains that because his defense had been based on the State's allegation that he had done the surveillance, the change was one of substance; thus, the trial court erred by permitting the amendment.
“A charging information may be amended at various stages of a prosecution, depending on whether the amendment is to the form or to the substance of the original information.” Fajardo v. State, 859 N.E.2d 1201, 1203 (Ind.2007)
. Whether an amendment to a charging information is a matter of substance or form is a question...
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