ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Thoma Jeffrey A. Modisett
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Thomas D. Perkins
Deputy Attorney General
INDIANA SUPREME COURT
RODNEY KINTA JENKINS, )
v. ) 02S00-9810-CR-538
STATE OF INDIANA, )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-9706-CF-333
On Direct Appeal
April 3, 2000
The defendant-appellant, Rodney Kinta Jenkins, was convicted of felony murder for the killing
of Timothy D. Thomas,
See footnote the robbery of Darrick C. Lawson,See footnote and two counts
of criminal confinement.See footnote In this direct appeal, his arguments concern: the
applicability of the felony murder statute; sufficiency of the evidence; and double jeopardy.
The Applicability of the Felony Murder Statute
The defendant contends that his felony murder conviction should be vacated on grounds
that the felony murder statute does not impose criminal liability for murder when
the resulting death is that of a co-perpetrator. The defendant's felony murder
conviction was based on the death of Timothy D. Thomas in the course
of a robbery of Darrick C. Lawson committed by the defendant and Thomas,
during which Lawson fatally shot Thomas. The defendant argues that he neither
shot Thomas nor engaged in conduct that caused his death. This Court
has recently rejected the same argument. Palmer v. State, 704 N.E.2d 124,
126-27 (Ind. 1999).
The felony murder language of our murder statute provides: "A person who
. . . [k]ills another human being while committing or attempting to commit
arson, burglary, child molesting, consumer product tampering, criminal deviate conduct, kidnapping, rape, robbery,
or carjacking; . . . commits murder, a felony." Ind. Code §
35-42-1-1. In Palmer, we held that the statutory language "kills another human
being while committing" does not restrict the felony murder provision only to instances
in which the felon is the killer, but may also apply equally when,
in committing any of the designated felonies, the felon contributes to the death
of any person. Palmer, 704 N.E.2d at 126. In Palmer, we
echoed the observation of our Court of Appeals:
[A] person who commits or attempts to commit one of the offenses designated
in the felony-murder statute is criminally responsible for a homicide which results from
the act of one who was not a participant in the original criminal
activity. Where the accused reasonably should have . . . foreseen that
the commission of or attempt to commit the contemplated felony would likely create
a situation which would expose another to the danger of death at the
hands of a nonparticipant in the felony, and where death in fact occurs
as was foreseeable, the creation of such a dangerous situation is an intermediary,
secondary, or medium in effecting or bringing about the death of the victim.
There, the situation is a mediate contribution to the victim's killing.
Palmer, 704 N.E.2d at 126 (quoting Sheckles v. State, 684 N.E.2d 201, 205
(Ind. Ct. App. 1997)). In deciding whether a person may be convicted
of felony murder for an allegedly indirect or remote death, we have applied
the felony murder statute when the designated felony was "the mediate or immediate
cause" of the death. Reaves v. State, 586 N.E.2d 847, 854-55 (Ind.
1992) (bed-ridden robbery victim died of a pulmonary embolism three weeks after a
robbery); Pittman v. State, 528 N.E.2d 67, 70 (Ind. 1988) (burglary victim died
from pulmonary embolism resulting from victim's obesity and post-operative immobility following laparotomy to
determine severity of stab wound incurred in burglary); Sims v. State, 466 N.E.2d
24, 25-26 (Ind. 1984) (victim died of congestive heart failure following surgery for
fractured mandible suffered in the beating sustained during burglary). See also Thomas
v. State, 436 N.E.2d 1109, 1111-12 (Ind. 1982) (victim died of acute cardiac
arrhythmia during robbery); Booker v. State, 270 Ind. 498, 502, 386 N.E.2d 1198,
1201 (1979) (victim, age 74, died of arrhythmia following robbery in which he
was knocked to the floor and "mauled"). In Palmer, we upheld the
felony murder conviction based upon the fatal shooting of the defendant's co-perpetrator by
a correctional officer during a kidnapping. Holding that the State need not
prove intent to kill in a felony murder, only the intent to commit
the underlying felony, we found that by engaging in kidnapping using a handgun,
the defendant had created a risk of death to persons present. Palmer,
704 N.E.2d at 126-27. Sufficiency of the Evidence
The statutory language "kills another human being while committing" does not restrict the
felony murder provision only to instances in which the felon is the killer
but also applies when, in committing any of the designated felonies, the felon
contributes to the death of any person. See Id. at 126.
We reject the defendant's claim that the felony murder statute does not apply.
The defendant challenges his felony murder conviction on grounds of insufficient evidence, arguing
that the State failed to prove beyond a reasonable doubt that the defendant
was the mediate or immediate cause of the co-perpetrator's death and that the
defendant was committing or attempting to commit robbery before, during, or after the
co-perpetrator's death. The defendant also contends that his convictions should be reversed
because the jury was not presented with any substantial evidence that he knowingly
or intentionally used a firearm during the commission of the robbery and confinements,
an element that had to be proven for the defendant to be convicted
of these offenses as class B felonies.
In reviewing a claim of insufficient evidence, we will affirm the conviction unless,
considering only the evidence and reasonable inferences favorable to the judgment, and neither
reweighing the evidence nor judging the credibility of the witnesses, we conclude that
no reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Webster v. State, 699 N.E.2d 266, 268 (Ind. 1998); Hodge
v. State, 688 N.E.2d 1246, 1247-48 (Ind. 1997).
The felony murder count was based on the killing of Timothy D. Thomas
while the defendant committed or attempted to commit robbery. The robbery count
charged the defendant with robbing Darrick C. Lawson while armed with a deadly
weapon, a firearm. The two confinement counts charged the defendant with confining
Darrick C. Lawson and Shalia R. Rogers while armed with a deadly weapon.
The facts favorable to the judgment show that the defendant's co-perpetrator, Thomas, grabbed
Lawson and that the defendant held a gun to Lawson's stomach. Thomas
then told Lawson to lie on the floor and asked the defendant for
the tape in the defendant's possession. The defendant and Thomas then taped
Lawson's ankles together and his hands behind his back. They instructed Lawson
to lie on the floor on his stomach. Both the defendant and
Thomas wore gloves. The defendant retrieved Rogers, Lawson's girlfriend, from the second
level of the apartment. Rogers saw a small gun under the defendant's
jacket when he came upstairs. The defendant brought her downstairs, where Lawson
was lying on the floor. As Thomas was standing on Lawson's back,
the defendant handed the gun to Thomas, and the defendant taped Rogers's eyes,
mouth, and hands and instructed her to sit in a chair. Thomas
demanded money and drugs from Lawson, who indicated that he did not have
any. While Thomas watched the two victims, the defendant searched the apartment,
discovered Lawson's gun, and carried it around with him. The defendant then
took a spoon from a kitchen drawer and heated it, threatening to torture
the two victims. The two assailants took the hot spoon over to
Rogers, and Lawson, thinking that they were going to burn her with it,
divulged that he had money hidden under a mattress upstairs. The defendant
went upstairs, retrieved approximately $300.00, and returned to the main floor, stating that
he found some money but that it was less than they had hoped
to get. Thomas taped Lawson's mouth, turned up the volume on the
television, and said that they had to kill Lawson. Thomas found a
rope and decided to choke Lawson, rather than shoot him. Lawson initially
refused to raise his head so that Thomas could wrap the rope around
his neck, but then raised it when Thomas threatened to shoot him.
Thomas wrapped the rope twice around Lawson's neck and held an end in
each hand. As Thomas pulled the rope tight around Lawson's neck, Lawson
freed his hands and tried to get up from the floor. Thomas
struck Lawson twice on the head with the butt of a gun, but
Lawson continued to arise. As Lawson struggled with Thomas, the defendant, still
carrying Lawson's gun, took Rogers to the stairs. As the struggle continued,
Lawson noticed, on a nearby couch, the gun that Thomas and the defendant
had brought to the apartment. Lawson, expecting to be killed, grabbed the
gun and shot Thomas seven times, killing him. The defendant then fled.
The probative evidence supporting the felony murder, robbery, and confinement convictions is substantial.
The evidence and reasonable inferences establish that the defendant and his co-perpetrator
engaged in dangerously violent and threatening conduct and that their conduct created a
situation that exposed persons present to the danger of death at the hands
of a non-participant who might resist or respond to the conduct. The
evidence and reasonable inferences also establish that Thomas's death was foreseeable and that
the defendant's role in creating this dangerous situation, which included the use of
at least two guns during the episode, was "'an intermediary, secondary, or medium
in effecting or bringing about the death.'" See Palmer, 704 N.E.2d at
126 (quoting Sheckles, 684 N.E.2d at 205). We find sufficient probative evidence
from which a reasonable trier of fact could have found, beyond a reasonable
doubt, that the defendant was the mediate or immediate cause of Thomas's death
and that this killing occurred during the defendant's commission or attempted commission of
robbery. We also find sufficient probative evidence from which a reasonable trier
of fact could have found, beyond a reasonable doubt, that the defendant knowingly
or intentionally used a firearm during the commission of the offenses.
The defendant argues, and the State concedes, that his conviction and sentence for
robbery should be vacated because his convictions for both felony murder by robbery
and robbery violate double jeopardy. We agree.
Because the statutory elements necessary to establish that the defendant robbed Darrick C.
Lawson were necessary to establish felony murder by robbery, the defendant's conviction and
sentence for both robbery and felony murder by robbery in this case violate
both the federal and the state Double Jeopardy Clauses. See Richardson v.
State, 717 N.E.2d 32, 50-52 (Ind. 1999).
To remedy the double jeopardy violation, the defendant requests that we vacate the
felony murder conviction. When we determine that two convictions contravene double jeopardy
principles, we may eliminate the violation by vacating either conviction, and we consider
the penal consequences that the trial court found appropriate. Richardson, 717 N.E.2d
at 54. We, therefore, vacate the robbery conviction because it has less
severe penal consequences, and we leave standing the felony murder conviction.
We affirm the convictions for felony murder and criminal confinement. We vacate
the conviction for robbery. This case is remanded to the trial court
to issue a corrected sentencing order.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
Ind. Code § 35-42-1-1.
Ind. Code § 35-42-5-1.
Ind. Code § 35-42-3-3.