Appeal from the Henry Circuit Court, No. 33C01-0112-CF-038. The Honorable Mary G. Willis, Judge. On Petition To Transfer from the Indiana Court of Appeals, No. 33A01-0302-CR-00075.
ATTORNEY FOR APPELLANT: Leanna K. Weissmann, Lawrenceburg, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Brian L. Reitz, Deputy Attorneys General, Indianapolis, Indiana.
David, Justice. Massa and Rush, J.J., concur. Rucker, J., concurs in part and dissents in part with separate opinion in which Dickson, C.J., joins.
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. 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:
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.
Erkins: You know what I'm saying? Like, it probably still can work 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 n****s and s**t.
Erkins: They not n****s, cuz even a n***a could try to do mother f***ers be on some bulls**t. Smack them around a little bit.
. . . .
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 testament 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 n***a had that bulge, you know ...