FOR PUBLICATION



ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

JEFFREY E. KIMMELL                          GREGORY F. ZOELLER
South Bend, Indiana                         Attorney General of Indiana

                                            GEORGE P. SHERMAN
                                            Deputy Attorney General
                                            Indianapolis, Indiana

                                                                  Aug 05 2014, 8:49 am

                            IN THE
                  COURT OF APPEALS OF INDIANA

DUSTIN BLYTHE,                              )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )      No. 71A03-1306-CR-228
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


              APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                   The Honorable John M. Marnocha, Judge
                       Cause No. 71D02-1204-FC-075



                                  August 5, 2014

                           OPINION - FOR PUBLICATION


BROWN, Judge
       Dustin Blythe appeals his convictions for nine counts of forgery as class C

felonies and falsely making a petition of nomination, a class D felony. Blythe raises four

issues, which we revise and restate as follows:

       I.     Whether the trial court erred in denying his motion for judgment on
              the evidence with respect to Counts I through IX based on the
              State’s evidence that he made the ballot petitions;

       II.    Whether the court erred in granting the State permission to make
              substantive amendments to the charging information.

       III.   Whether the court erred in denying his motion for judgment on the
              evidence with respect to Counts II through IX on the grounds the
              evidence does not support more than one criminal act of forgery; and

       IV.    Whether his conviction under Count X should be vacated on the
              basis that it is a lesser included offense of Counts I through IX.

We affirm in part and reverse in part.

                        FACTS AND PROCEDURAL HISTORY

       On April 2, 2012, the State filed information charging Blythe with nine counts of

forgery as class C felonies under Counts I through IX, with each count relating to a

different individual whose signature the State alleged Blythe forged, and falsely making a

petition of nomination as a class D felony under Count X. Specifically, the State alleged

under Counts I through IX that Blythe, “acting with intent to defraud, knowingly uttered

a written instrument that purported to have been made by another person or by authority

of one who did not give authority, by forging” election ballot petitions that included the

apparent signatures of nine individuals where those individuals had not signed the

petitions or given their authority for their signatures to be used on the petitions.

Appellant’s Appendix at 6-10. Under Count X, the State alleged that Blythe “knowingly


                                            2
falsely made a petition of nomination for Presidential Candidate Barack Obama.” Id. at

11.

       A jury trial was held on April 22, 2013 through April 25, 2013.1 During opening

statements, Blythe’s counsel stated to the jury that Blythe was charged under Counts I

through IX with “uttering forged documents,” provided the definition of “utter” which

meant “[t]o issue, to authenticate, to transfer, to publish, to sell, to transmit, present or

use,” and stated that the evidence would not show that Blythe “did any of those things

with any petition.” Transcript at 374. The State presented evidence and testimony that

the purported signatures of nine individuals on ballot petitions for presidential candidate

Barack Obama in St. Joseph County, Indiana, were not the signatures of the nine

individuals and that none of the nine individuals had signed the petitions or given his or

her authority for his or her signature to be used on the petitions. The State presented

further evidence that Democratic County Chairman Owen “Butch” Morgan, Blythe’s co-

defendant, instructed Blythe and other workers to copy the names and signatures

appearing on a petition for a previous gubernatorial primary candidate onto petitions for

Barack Obama, Hillary Clinton, or John Edwards.2                 The State also presented the

testimony of a handwriting expert regarding whether Blythe was the person who placed

falsified signatures on the petitions.



       1
          The State initially charged Blythe, Owen Morgan, Beverly Shelton, and Pam Brunette with
crimes in connection with the forged petitions. Blythe and Morgan were tried jointly, and Shelton and
Brunette, who pled guilty, testified at the trial of Blythe and Morgan.
       2
          One witness testified that “Morgan broke us down into teams based upon our affiliation with
each candidate. I was a Barack Obama supporter, so I was given to do Barack Obama’s. Ms. Shelton
was a Hillary Clinton supporter, so she was given Hillary Clinton’s. Mr. Blythe was an Edwards
supporter, so he was given John Edwards’.” Transcript at 386.
                                                 3
       Following the presentation of the State’s evidence, Blythe moved for judgment on

the evidence on Counts I through IX and argued that “there’s been absolutely no evidence

presented in this trial that he uttered anything” or that “he aided, induced or caused any

other person to utter a written instrument” and that “Counts I through IX are charged as

they are charged, and there’s been no evidence.” Transcript at 840. The prosecutor

argued “I think there is some evidence that [Blythe] signed those nine names . . . .” Id.

The court denied the motion and stated that “the jury is going to have to determine

whether or not that evidence is or constitute[s] uttering under the statute and in defining

uttering under the law in general.” Id. at 841. Blythe’s counsel asked the court to

reconsider its ruling, noted the definition of “utter” as it was “going to be instructed to the

jury straight from the statute,” argued that “there’s simply been no evidence of any of

those things,” and contended that “[h]ad they charged Mr. Blythe with ‘making’ it, I

wouldn’t be making this motion and your ruling would be correct.” Id. at 846. Blythe’s

counsel further argued “[w]hat [the prosecutor] said . . . in opposition to my motion, was

the argument that the State had proven its case by making a forged instrument, and that’s

not what he’s charged with. He’s charged with ‘uttering’ it, and there’s just no evidence

on any of these other things that fit the definition.” Id. at 846-847. The court indicated

that its ruling did not change. Blythe then rested.

       At a subsequent conference regarding jury instructions, Blythe’s counsel argued:

       On the definition of forgery your definition properly recites the statute, but
       I would request that you strike out the ‘make’ or ‘utter,’ because nobody is
       charged with making a forged instrument in regard to any forgery count in
       this case. All the charges against Mr. Morgan and with Mr. Blythe, speak
       to uttering. So I think since they are very distinct and separate definitions
       as to what it is to ‘make’ an instrument and what it is to ‘utter’ an

                                              4
       instrument, to put that in there would just lead to possible confusion for the
       jury where they might consider evidence of ‘making’ when they shouldn’t
       be.

Id. at 873. The court indicated it would consider the argument over the evening. The

prosecutor stated: “Judge on that point, I don’t know if this will make it more or less

confusing, but I’m going to move to amend on Counts I through IX, to conform to the

evidence, and put knowingly ‘made or uttered.’” Id. at 874. Blythe’s counsel objected

and argued: “From voir dire through opening and through all of my questioning the

defense has been to the charges. So to go back again to the case and amend them would

be incredibly prejudicial and unfair.” Id. The court took the matter under advisement.

       The following morning, the court asked whether “amending the information to

include the words ‘utter or make,’ as opposed to just ‘uttered,’ prejudice the substantial

rights of a defendant,” and Blythe’s counsel argued “it most certainly would,” that he

presented a defense, committed himself in voir dire and in his opening statement that the

State would not be able to prove that he uttered a forged document, that he “went over the

definition of what ‘uttering’ is,” that the prosecutor “is just simply wrong if my only

defense has been that [] Blythe didn’t write these,” that “I do believe that he did not write

these things,” and that he “went through with all of the people who were custodians of

these records . . . if there was any evidence of any delivery, or any of the things that

would constitute ‘uttering.’” Id. at 901-902. Blythe’s counsel argued “there has simply

not been any evidence of that and the[y] know that, so now that they’ve failed to prove

that, they want to change the entire theory of the case after we rested and they’ve rested.

It’s just simply not right to allow something like that.” Id. at 902. The court stated that


                                             5
the State’s theory has been that Blythe engaged in acts of falsely copying names onto

petitions that were later filed, and “the statute says, it is a disjunctive or alternative

allegation as to the acts, means, intents, or results charged,” and “based upon the

evidence taken as a whole and all of that, I cannot as a matter of law find that an

amendment of the charge has prejudiced the substantial rights of [] Blythe, and therefore

I’m going to grant the State’s motion to amend the charges from ‘uttered’ to ‘utter or

make.’” Id. at 909. Blythe’s counsel then moved for a mistrial and argued that the

State’s theory as he understood it throughout the case had changed and impacted the

defense. The court denied his motion.

       In addition, Blythe’s counsel made an offer of proof and offered an exhibit of a

letter from the prosecutor to Blythe’s counsel stating in part: “I am offering your client,

Dustin Blythe, the following: Plead guilty to one count, to be treated as a misdemeanor,

give a truthful statement to Indiana State Police and testify at the trials of others if

necessary.”   Defendant’s Exhibit 10.      Blythe’s counsel stated that the offer “was

considered and discussed under the belief that the charges were what they were at the

time” and argued the offer demonstrates he would be prejudiced by allowing the motion

to amend the charges. Id. at 910-911. The jury returned verdicts of guilty on all ten

counts against Blythe. On April 29, 2013, Blythe filed a motion for judgment on the

evidence with respect to Counts II through X, requesting the court to dismiss Counts II

through IX on the grounds that the evidence presented at trial could not support more

than one criminal act of forgery and requesting the court to dismiss Count X on the basis




                                            6
that it is a factually lesser included offense of the forgeries alleged in Counts I through

IX.

       At the beginning of Blythe’s sentencing hearing,3 the court denied his motion for

judgment on the evidence. The court sentenced Blythe to four years for each of his

convictions under Counts I through IX and eighteen months for his conviction under

Count X, ordered the sentences to be served concurrently, and ordered the sentences to be

suspended. The court ordered that Blythe be placed on probation for two years and that,

as a term of probation, he serve one year at DuComb Center.

                                             DISCUSSION

       We begin our analysis by addressing whether the court erred in allowing the State

to amend its charging information after its presentation of evidence. Blythe contends in

part that his substantial rights were violated when the court allowed the State to make

substantive amendments and change the theory of prosecution on Counts I through IX to

include a theory of forgery by “making” false documents after both the State and defense

had rested. Appellant’s Brief at 11. In support of his position, Blythe argues that the

amendments to the charges were not immaterial as required under Ind. Code § 35-34-1-

5(a), that he relied on the fact that he was charged with “uttering” as opposed to

“making” false instruments in formulating his opening statement, his cross-examination,

and his pre-trial preparations and negotiations, that the fact the amendments came after

the close of evidence forced him to formulate a new defense strategy with only closing

argument left at his disposal, and that “[t]he defense that he had committed himself to

during his opening statement was suddenly gone.” Id. at 12. In addition, Blythe argues
       3
           A joint sentencing hearing was held in the cases for Blythe, Morgan, Shelton, and Brunette.
                                                     7
that, aside from basing his trial strategy on the State’s inability to prove that he “uttered”

false ballot petitions, he also rejected a pre-trial plea offer that would have resulted only

in a misdemeanor conviction “[b]ecause [he] knew that he could not be found guilty of

the forgery counts as they were charged” and that “[i]t is clear that the late amendments

prejudiced [his] substantial rights in several ways, including his right to intelligently

determine whether or not he should risk going to trial or accept a plea offer.” Id. at 13-

14. Blythe requests this court to reverse his convictions on Counts I through IX and to

remand for resentencing on Count X only.

       The State asserts that the amendments to Counts I through IX were authorized by

statute and that “Blythe could not have suffered any prejudice in the preparation of his

defense because the gravamen of the offense as set forth in the charging information was

that [he] committed the charged crimes ‘by forging an election ballot petition that

included the apparent signature [of an individual][4] when [that individual][5] had not

signed that petition or given his authority for his signature to be used on that petition’”

and that, therefore, the amendments “did not alter the theory of the case or the identity of

the crime charged.” Appellee’s Brief at 8-9 (quoting Transcript at 906).

       Whether an indictment or information may be amended after the commencement

of trial depends upon whether the amendment is one of form or substance.                  An

amendment of substance is not permissible after trial has commenced. See Ind. Code §

35-34-1-5(b). After the commencement of trial, the court may “permit an amendment to

the indictment or information in respect to any defect, imperfection, or omission in form

       4
           Brackets and bracketed text is shown in the State’s brief.
       5
           Brackets and bracketed text is shown in the State’s brief.
                                                      8
which does not prejudice the substantial rights of the defendant.” Ind. Code § 35-34-1-

5(c).

        “A defendant’s substantial rights ‘include a right to sufficient notice and an

opportunity to be heard regarding the charge; and, if the amendment does not affect any

particular defense or change the positions of either of the parties, it does not violate these

rights.’” Erkins v. State, ___N.E.2d ____, ___ (Ind. July 22, 2014) (citing Gomez v.

State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009), trans. denied).            “Ultimately, the

question is whether the defendant had a reasonable opportunity to prepare for and defend

against the charges.” Id. (citing Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998),

abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1206-1207 (Ind.

2007)).

        [A]n amendment is one of form, not substance, if both (a) a defense under
        the original information would be equally available after the amendment,
        and (b) the accused’s evidence would apply equally to the information in
        either form. And an amendment is one of substance only if it is essential to
        making a valid charge of the crime.

Fajardo, 859 N.E.2d at 1207 (quoting McIntyre v. State, 717 N.E.2d 114, 125-126 (Ind.

1999)). “Whether an amendment is a matter of substance or form is a question of law,

which we review de novo.” Gibbs v. State, 952 N.E.2d 214, 221 (Ind. Ct. App. 2011),

trans. denied.

        Ind. Code § 35-43-5-2(b) provides that a person who, “with intent to defraud,

makes, utters, or possesses a written instrument in such a manner that it purports to have

been made: (1) by another person; (2) at another time; (3) with different provisions; or (4)

by authority of one who did not give authority; commits forgery, a Class C felony.” The


                                              9
original information for Counts I through IX, with the individuals whose names were

forged redacted, alleged that Blythe, “acting with intent to defraud, knowingly uttered a

written instrument that purported to have been made by another person or by authority of

one who did not give authority, by forging an election ballot petition that included the

apparent signature for [names redacted], when [he/she] had not signed that petition or

given [his/her] authority for [his/her] signature to be used on that petition.” Appellant’s

Appendix at 6-10. The counts as amended and read to the jury as part of the final jury

instructions alleged that Blythe “did knowingly make or utter a written instrument . . . .”

Transcript at 1150-1153 (words inserted pursuant to the State’s amendment emphasized).

According to Ind. Code § 35-31.5-2-345, “‘Utter’ means to issue, authenticate, transfer,

publish, deliver, sell, transmit, present, or use.”6 Ind. Code § 35-31.5-2-191 provides that

“‘Make’, for purposes of IC 35-43-5, has the meaning set forth in IC 35-43-5-1(m).” In

turn, Ind. Code § 35-43-5-1(m) provides: “‘Make’ means to draw, prepare, complete,

counterfeit, copy or otherwise reproduce, or alter any written instrument in whole or in

part.”

         Blythe’s defense throughout his trial was that he neither made nor uttered the

ballot petitions in question. Our review of the record reveals that the amendment of

Counts I through IX to include the term “make” did not alter Blythe’s defense strategy,

         6
           Blythe maintains there was no evidence offered at trial to show that he uttered a forged
instrument. The bulk of Blythe’s argument as to whether he uttered a written instrument is based on the
premise that he did not deliver or present a forged instrument to Indiana’s election division. We
recognize that past decisions have made a distinction between the acts of uttering and making a forged
instrument. See Jordan v. State, 502 N.E.2d 910, 914 (1987); Sanford v. State, 255 Ind. 542, 265 N.E.2d
701 (1971); Stroup v. State, 810 N.E.2d 355, 360 (Ind. Ct. App. 2004). However, our supreme court has
not dealt with a case that centered on whether a forged instrument was “used”—a term which may apply
to a broader range of activities than other terms within the statutory definition of “utter.” That said, the
circumstances of this case and our resolution of it do not require us to discern the meaning of “use” under
the statute defining “utter.”
                                                    10
which continued to be that he neither made nor uttered a written instrument. We observe

that Count X alleged that Blythe knowingly falsely made a petition for nomination, and

the petition referenced in Count X was based on the same act as one of the forgery

counts. In his opening statement, Blythe’s counsel stated that there would be insufficient

evidence presented at trial to prove that Blythe falsely made the petition for nomination.

Specifically, he argued that the State’s handwriting expert could not identify Blythe’s

signature on the ballots and that not a single person actually observed Blythe place any

names on any petition. During the trial, Blythe’s counsel thoroughly questioned the

State’s handwriting expert on cross-examination regarding whether Blythe was the

person who placed falsified signatures on the ballot petitions. He questioned the expert

witness regarding her findings, the relative strength of the findings, the features and

criteria she assessed when comparing the signatures at issue with a writing sample of

Blythe, the various limitations she encounters in conducting a handwriting examination,

her opinion that there was strong evidence to suggest that it was probable that Blythe was

the writer of an entry, and a study related to the likelihood of incorrect identifications.

This defense is precisely the defense that would have been presented had Counts I

through IX initially contained the charge that Blythe committed forgery by making as

well as uttering the written instruments. Based upon our review of the record, Blythe was

able to present an appropriate defense to the amended charges and in fact did so from the

commencement of his trial. See Erkins, ___N.E.2d at ___, ___ (Ind. July 22, 2014)

(holding that, based on the evidence available to the defendant before trial, it would have

come as no surprise to him that the State would attempt to prove that the defendant’s co-


                                            11
conspirator performed the alleged surveillance and not the defendant as stated in the

charging information, that the mistaken charging information would not have affected the

defendant’s ability to prepare his defense, and that the court did not err in permitting the

State’s amendment). Accordingly, his substantial rights were not prejudiced by the trial

court’s order granting the State’s motion to amend the charging information. Blythe had

“a reasonable opportunity to prepare for and defend against the charges.” See Sides, 693

N.E.2d at 1313. Because we conclude the trial court did not err in granting the State’s

motion to amend the information for Counts I through IX to include the allegation that

Blythe made the petitions at issue, we need not address whether the court erred in

denying his motion for judgment on the evidence when the State rested on the basis that

the evidence was insufficient to show that he uttered the ballot petitions.

       We next address Blythe’s argument that the trial court erred in denying his April

29, 2013 motion for judgment on the evidence with respect to Counts II through IX on

the grounds the evidence could not support more than one criminal act of forgery. In

support of his argument, Blythe cites to Wiseman v. State, in which the Indiana Supreme

Court observed that seven stolen checks were all presented to a bank at the same time, on

the same date, to the same person, and were all listed on one deposit slip and held that the

conduct of the appellant supported a single count of forgery and that the appellant was

erroneously subjected to forgery convictions on multiple counts. 521 N.E.2d 942, 946

(Ind. 1988), reh’g denied. In this case, Blythe was convicted of nine counts of forgery,

with each count related to a different falsified signature, but all sharing the common

intent to defraud, namely, to obtain the approval of the ballot petitions for a presidential


                                             12
candidate. The charging information alleged that the offenses occurred on or about

January and February 2008. The evidence reveals that the falsified signatures were

placed on the ballot petitions during a relatively short period of time in St. Joseph County

and the placement of the falsified signatures was performed for a single purpose. We

conclude that the trial court erred in finding that Blythe’s actions did not constitute a

single act of forgery. Accordingly, we remand with instructions that the trial court vacate

Blythe’s convictions for forgery under Counts II through IX. See id. at 946-947 (holding

the appellant was erroneously subjected to forgery convictions on multiple counts and

remanding to the trial court for resentencing to reflect conviction of just one count of

forgery).

       Finally, with respect to Blythe’s argument that the trial court erred in failing to

dismiss Count X on the basis that it is a factually lesser included offense of the forgeries

alleged in Counts I through IX, we observe that the State does not contest this issue. The

State provides in its brief that, “[a]s the special prosecutor pointed out to the jury, the

‘same evidence’ used to prove Blythe had committed Counts I through IX was sufficient

to establish Count X” and that “[t]herefore, because Blythe’s conviction on Count X was

based on the same act as one of the forgery counts, the State does not contest Blythe’s

challenge to his conviction on Count X.” Appellee’s Brief at 10-11. We remand with

instructions to vacate Blythe’s conviction for falsely making a petition of nomination

under Count X.

                                     CONCLUSION




                                            13
      For the foregoing reasons, we affirm Blythe’s conviction under Count I and

remand with instructions to vacate his convictions under Counts II through X.

      Affirmed in part, reversed in part, and remanded.

ROBB, J., and BRADFORD, J., concur.




                                           14
