MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    Jan 22 2016, 7:36 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew J. Baldwin                                        Gregory F. Zoeller
Baldwin Kyle & Kamish, P.C.                              Attorney General of Indiana
Franklin, Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Scott Winingear,                                         January 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A02-1502-CR-123
        v.                                               Appeal from the Delaware County
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas A.
Appellee-Plaintiff.                                      Cannon, Jr., Judge
                                                         Trial Court Cause No.
                                                         18C05-1411-FC-22



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1502-CR-123 | January 22, 2016          Page 1 of 7
[1]   Scott Winingear appeals the denial of his motion to dismiss the Class C felony

      intimidation charge against him. 1 As he was not prejudiced by the State’s

      dismissal and refiling of an amended charge, we affirm. 2


                                        Facts and Procedural History
[2]   On December 18, 2012, Winingear was charged with Class C felony

      intimidation in cause number 18C05-1212-FC-34 (FC-34). The charging

      information alleged:


                 Winingear did communicate a threat to Gary McCreery, another
                 person, with the intent that said other person engage in conduct
                 against the will of said other person and in committing said act
                 the defendant drew or used a deadly weapon, to wit: Knife,
                 contrary to the form of the statutes in such cases made and
                 provided by I.C. 35-45-2-1(a)(1) and I.C. 35-45-2-1(b)(2)[.]


      (App. at 20.)


[3]   After Winingear’s trial, the jury deadlocked. The State announced it would

      retry Winingear, and the second trial was scheduled for July 8, 2014.


[4]   The State asked to amend the information to “Attempted Intimidation,” (id. at

      37), and the trial court granted that request. The State’s amended information

      alleged:




      1
          Ind. Code 35-45-2-1 (2006).
      2
        Winingear also asserts the State should not be permitted to revive the original charge. As his substantial
      rights have not been violated by the filing of the amended charge, we need not address this issue.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1502-CR-123 | January 22, 2016              Page 2 of 7
                  [Winingear] did communicate a threat to Gary D. McCreery,
                  another person, with the intent that said other person be placed
                  in fear for a prior lawful act to-wit: driving on public roadways;
                  and while committing said act, the person used a deadly weapon,
                  to-wit: a knife, contrary to the form of the statutes in such cases
                  made and provided by I.C. 35-45-2-1(a)(2) and I.C. 35-45-2-
                  1(b)(2)(A)[.]


      (Id. at 42.) Thus, the amended charge was not “Attempted Intimidation”;

      rather, the State charged Winingear under a definition of intimidation from a

      different subsection of the statute. Winingear objected to the amendment and

      the trial court sustained his objection.


[5]   The State then moved to dismiss the case without prejudice in order to refile the

      case “under I.C. 35-45-2-1(a)(2) 3 under a new cause number.” (Id. at 43)

      (footnote added). The court granted the State’s motion, and the new charge

      was filed under cause number 18C05-1411-FC-22 (FC-22). The information for

      the new charge was essentially the same as the amended charge requested in

      FC-34.




      3
          Ind. Code 35-45-2-1 (2006) says, in pertinent part:

                  (a) A person who communicates a threat to another person, with the intent:
                       (1) that the other person engage in conduct against the other’s will; [or]
                       (2) that the person be placed in fear of retaliation for a prior lawful act;
                           *****
                  commits intimidation, a Class A misdemeanor.
          Thus, the difference in the State’s filing is from subsection (a)(1) to subsection (a)(2).

      Court of Appeals of Indiana | Memorandum Decision 18A02-1502-CR-123 | January 22, 2016           Page 3 of 7
[6]   Winingear moved to dismiss the new charge. The trial court denied

      Winingear’s motion and set FC-22 for trial. We accepted Winingear’s

      interlocutory appeal.


                                     Discussion and Decision
[7]   Winingear argues the trial court violated his substantial rights by allowing the

      State to dismiss the charges brought in FC-34 and refile the amended charge

      that the court had prohibited the State from belatedly adding in FC-34 under a

      new cause number, FC-22. “It is well established that a trial court’s denial of a

      motion to dismiss is reviewed only for an abuse of discretion.” Study v. State, 24

      N.E.3d 947, 950 (Ind. 2015), cert. denied.


[8]   Ind. Code § 35-34-1-13 allows the prosecutor to dismiss an information any

      time prior to sentencing as long as the prosecutor gives a reason for the

      dismissal. Such a dismissal does not necessarily bar refiling. Davenport v. State,

      689 N.E.2d 1226, 1229 (Ind. 1997), on reh’g in part, 696 N.E.2d 870 (Ind. 1998).

      But the State “may not refile if doing so will prejudice the substantial rights of

      the defendant.” Id.


[9]   Such substantial rights have not been specifically defined, id., but some

      situations that do not prejudice a defendant’s substantial rights have been

      addressed. Id. For example, the State may dismiss a charge because it is not

      ready to prosecute and it may then refile the same charge. Id. Dismissing

      charges and refiling an amended information does not necessarily prejudice a

      defendant’s substantial rights. See Willoughby v. State, 660 N.E.2d 570, 576-78

      Court of Appeals of Indiana | Memorandum Decision 18A02-1502-CR-123 | January 22, 2016   Page 4 of 7
       (Ind. 1996) (amended information filed expanding the time span of the charged

       conspiracy); see also Maxey v. State, 265 Ind. 244, 353 N.E.2d 457, 460-61 (1976)

       (amended information changed the date of the offense to avoid the defendant’s

       alibi defense). “The defendant’s substantial rights are not prejudiced in these

       situations primarily because the defendant can receive a fair trial on the same

       facts and employ the same defense in the second trial as in the first.” Davenport,

       689 N.E.2d at 1229.


[10]   In Davenport, the State moved to amend the information four days before trial

       by adding three charges to the original charge of murder. When its request was

       denied, the State dismissed the original cause and refiled the murder charge

       together with the proposed additional charges. The State also requested a

       change of venue. Our Indiana Supreme Court noted the State “crossed over the

       boundary of fair play [and] prejudiced the substantial rights of the defendant”

       by attempting to escape the ruling of the trial court and pursue extra charges.

       Id. at 1230.


[11]   In Johnson v. State, 740 N.E.2d 118 (Ind. 2001), the State, attempting to

       circumvent an adverse evidentiary ruling, dismissed the original charge of

       sexual misconduct with a minor and then refiled it, adding ten more charges

       that involved the witnesses who had been disallowed by the adverse evidentiary

       ruling. As no new evidence was discovered prior to refiling, our Indiana

       Supreme Court found the “State exceeded the boundaries of fair play” and

       “impermissibly impinged the defendant’s exercise of his substantial procedural



       Court of Appeals of Indiana | Memorandum Decision 18A02-1502-CR-123 | January 22, 2016   Page 5 of 7
       rights.” Id. at 121. The court held the State could “forego the original charge

       and pursue another charge carrying a similar potential penalty[.]” Id.


[12]   When deciding whether to dismiss the amended charge against Winingear, the

       trial court noted the new charge

               doesn’t really change the witnesses, the witnesses are the same,
               the events are the same, the events that occurred are the same,
               and the defendant’s defense by the Court’s analysis would be the
               same, his defense in the first case was that he didn’t do this, so I
               mean he’s not being misled by the amended information[.]


       (Tr. at 87.) The trial court went on to state: “I think that the defense will have a

       fair opportunity to prepare for seemingly the same witnesses that were

       presented the last time and that is not a reason to grant your motion to

       dismiss[.]” (Id. at 87-8.) The trial court stated its ruling disallowing the earlier

       amendment “was more on the basis that it was an . . . eleventh hour action and

       [the defense] didn’t want to continue the case[.]” (Id. at 84.) It concluded the

       State could dismiss and refile because jeopardy had not attached and

       Winingear’s speedy trial rights had not been violated.


[13]   In this case, the State dismissed the original charge of intimidation premised on

       Winingear’s threat to Gary McCreery with the intent that McCreery engage in

       conduct against his will and in so doing Winingear drew or used a deadly




       Court of Appeals of Indiana | Memorandum Decision 18A02-1502-CR-123 | January 22, 2016   Page 6 of 7
       weapon. The State then refiled in the same court 4 a charge of intimidation

       premised on Winingear’s threat to McCreery with the intent that McCreery

       would be placed in fear for his lawful act of driving on public roadways, and in

       doing so, Winingear used a deadly weapon. Although the newly filed charge is

       based on a different statutory definition of intimidation, we cannot say the trial

       court abused its discretion in determining the facts, witnesses, and defense

       would remain the same. As the underlying offense and the potential penalty

       remain the same, Winingear’s substantial rights have not been violated. See

       Johnson, 740 N.E.2d at 121 (“State may forego the original charge and pursue

       another charge carrying a similar potential penalty”).


                                                   Conclusion
[14]   As the State’s refiling of charges against Winingear did not prejudice his

       substantial rights, we affirm the denial of his motion to dismiss the charges.


[15]   Affirmed.


       Najam, J., and Riley, J., concur.




       4
         Because the State dismissed and refiled the charges, in the same court and with the court’s permission, we
       find no basis for Winingear’s allegations of prosecutorial “sleight of hand” or “bad faith in the manner in
       which she prosecuted this case[.]” (Appellant’s Br. at 14.) In Davenport, our Indiana Supreme Court held the
       State had used “sleight of hand” when it dismissed charges and refiled them, together with additional
       charges, and then requested transfer to a different court. Davenport, 689 N.E.2d at 1230. This is not that
       situation.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1502-CR-123 | January 22, 2016           Page 7 of 7
