Charles A. Benson, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Allen Superior Court Trial Court Cause No.
02D04-1602-F1-3 The Honorable John F. Surbeck, Jr., Judge
Attorney for Appellant Michelle F. Kraus Fort Wayne, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Lyubov Gore Deputy Attorney General Indianapolis,
Following a jury trial, Charles A. Benson
("Benson") was convicted of Attempted Murder, as a
Level 1 felony; Resisting Law Enforcement, as a Level 6
felony; and Criminal Recklessness, as a Level 6
felony,  and was found to be a habitual
offender. Benson now appeals, raising the sole issue
of whether the trial court committed fundamental error by
failing to give a specific jury instruction on unanimity.
and Procedural History
Around 2:00 p.m. on January 30, 2016, Officer Robert Geiger
("Officer Geiger") of the Fort Wayne Police
Department was driving in his marked squad car, in full
police uniform. After seeing a vehicle make an improper turn,
Officer Geiger initiated a traffic stop. He then approached
the vehicle, and asked the driver for her license and
registration. The driver said she did not have her
driver's license with her and eventually produced an
identification card. Officer Geiger then spoke with the male
passenger-later identified as Benson-and Officer Geiger
noticed that Benson would not make eye contact with him.
Officer Geiger asked Benson for identification, and Benson
said he did not have any with him. Benson identified himself
as Antoine Woods.
Officer Geiger returned to his squad car to run the
information he had been given. While Officer Geiger was doing
so, he saw Benson step out of the vehicle and make eye
contact with him. Benson had his hands positioned in front of
him, toward his waistband, as though he was concealing a
weapon. Benson then began running. Officer Geiger immediately
ran after Benson, telling Benson to stop, and using his radio
to notify dispatch of the pursuit.
Officer Geiger chased Benson, who ran by residences, a
church, and an empty market. At times, there were bystanders
in the area. At one point while running, Benson turned and
made eye contact with Officer Geiger. Benson had a gun in his
hand. Benson held eye contact with Officer Geiger, pointed
the gun directly at him, and fired multiple shots. Officer
Geiger dropped to the ground, called out "shots
fired" over his radio, and continued chasing Benson.
Officer Geiger then fired several rounds, each missing
After running through an intersection, Benson ran around one
side of a house, while Officer Geiger pursued Benson from the
other side. When Benson came around the house, Benson squared
up his body so that he was facing Officer Geiger. Benson made
eye contact with Officer Geiger, raised his gun so it was
pointed directly at Officer Geiger, and fired. Officer Geiger
returned fire, and Benson stumbled to the ground. Benson let
go of the gun, lifted his hands, and Officer Geiger kneeled
on Benson to control him. Additional officers arrived, and
Benson was arrested. No one was struck during the pursuit,
which lasted around ninety seconds. It was later determined
that Benson's gun had jammed during the shooting, and the
gun contained additional rounds of ammunition.
On February 4, 2016, the State charged Benson with Count I,
Attempted Murder; Count II, Resisting Law Enforcement; Count
III, Criminal Recklessness; and Count IV, Unlawful Possession
of a Firearm by a Serious Violent Felon. The State later
added Count V, a habitual offender enhancement, and Count VI,
a firearm enhancement. The trial court conducted a bifurcated
jury trial on June 1, 2016 and June 2, 2016. During the guilt
phase of the trial, Officer Geiger testified, and there was
also testimony from residents who heard or saw a portion of
the incident. At some point during the trial, Counts IV and
VI were dismissed. At the conclusion of the guilt phase, the
jury found Benson guilty of Counts I, II, and III. The trial
court then conducted the habitual offender phase, after which
the jury found Benson to be a habitual offender.
On July 1, 2016, a sentencing hearing was conducted. The
trial court entered judgment against Benson and sentenced him
to consecutive sentences of 40 years on Count I and one year
on Count II. On Count III, the trial court sentenced Benson
to 2 ½ years, with the sentence to be served
consecutive to Count I. The sentence for Count I was enhanced
by 20 ...