Jennifer Nelson for www.theindianalawyer.com
The majority on a Court of Appeals panel tossed out a man’s corrupt business influence conviction after finding his criminal activity did not pose a threat of future criminal conduct. But the dissenting judge noted the majority was inserting a new element into the Indiana statute that does not exist.
Ashonta Kenya Jackson was convicted of three counts of Class B felony robbery, one count of Class C felony corrupt business influence, and found to be a habitual offender. Jackson and other men robbed the same Anderson liquor store twice and a bank in October 2013. He received a 63-year executed sentence.
He appealed, arguing insufficient evidence to support his corrupt business influence conviction and his adjudication as a habitual offender. To prove this conviction, the state had to show that Jackson, through a pattern of racketeering activity, knowingly or intentionally acquired or maintained, either directly or indirectly, an interest in or control of U.S. currency from multiple armed robberies, I.C. 35-45-6-2(2). The statute does not expressly include an element of continuing the criminal conduct in the future, which is required under the federal Racketeer Influenced and Corruption Organizations Act. But the majority, citing Waldon v. State, 829 N.E.2d 168, 176 (Ind. Ct. App. 2005), noted that the Indiana law is patterned after the federal Act.
Since the state did not prove Jackson’s criminal acts posed a threat of continued criminal activity, Judges Edward Najam and Ezra Friedlander reversed the corrupt business influence conviction.
Judge John Baker dissented on this point, noting that the Indiana General Assembly has never elected to adopt the continuity requirement announced in H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 238-39 (1989).
“I believe that to reverse a conviction for failure to prove an element that is nowhere to be found in the statute defining the crime requires us to engraft new words onto a statute. I do not believe it is our place to do so,†he wrote.
The panel unanimously affirmed the denial of Jackson’s request for a change of judge and agreed that the state presented sufficient evidence to support his habitual offender adjudication. But they sent the case back to the trial court to revise the sentencing order to indicate which conviction is enhanced by the habitual offender adjudication.
The case is Ashonta Kenya Jackson v. State of Indiana, 48A02-1409-CR-670.
