MEMORANDUM DECISION                                                                FILED
                                                                               Apr 19 2016, 7:20 am
Pursuant to Ind. Appellate Rule 65(D), this                                        CLERK
Memorandum Decision shall not be regarded as                                   Indiana Supreme Court
                                                                                  Court of Appeals
precedent or cited before any court except for the                                  and Tax Court

purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Timothy P. Broden                                         Gregory F. Zoeller
Lafayette, Indiana                                        Attorney General of Indiana
                                                          Angela N. Sanchez
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Jason Morehouse,                                          April 19, 2016

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          79A05-1508-CR-1304
        v.                                                Appeal from the Tippecanoe
                                                          Superior Court.
                                                          The Honorable Steven P. Meyer,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Cause No. 79D02-1503-FC-1




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016              Page 1 of 8
                                          Statement of the Case
                                                                                              1
[1]   Jason Morehouse appeals his conviction of Forgery, a Class C felony. We

      affirm.


                                                    Issues
[2]   Morehouse raises two issues, which we restate as:

                 I.       Whether the trial court erred in allowing the State to
                          amend the charging information.
                 II.      Whether the trial court erred in denying Morehouse’s
                          motion to continue the trial after allowing the State to
                          amend the charging information.

                                   Facts and Procedural History
[3]   On the morning of March 23, 2014, Shirley Puterbaugh woke to discover

      someone had stolen several jackets and purses from her home. One of the

      purses contained her Discover credit card. After speaking with the police,

      Puterbaugh called her credit card company to notify it of the theft. The

      company’s representative told her the card had already been used that day at a

      Sears store to purchase tires.


[4]   Meanwhile, that same morning a man later identified as Morehouse arrived at a

      Sears store in Tippecanoe County. He purchased four tires for $578.76, paying

      with Puterbaugh’s Discover card. Morehouse told a Sears employee his name




      1
          Ind. Code § 35-43-5-2 (2006).



      Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016       Page 2 of 8
      was “James Puterbaugh” and provided a fake address and phone number.

      State’s Ex. 3. There is no James Puterbaugh in Shirley Puterbaugh’s family.


[5]   On March 17, 2015, the State filed an affidavit of probable cause, asserting

      Morehouse had used “Shirley Puterbaugh’s Discover card” to buy tires at Sears.

      Appellant’s App. p. 107. The State charged Morehouse with Count I, forgery,

      alleging he had “used a Discover card belonging to James Puterbaugh, in such a

      manner that the written instrument was purportedly used by James Puterbaugh,

      and/or was purportedly used with the authority of James Puterbaugh, who did

      not give such authority.” Id. at 104. The State also filed Count II, theft,

      alleging Morehouse had “knowingly or intentionally exert[ed] unauthorized

      control over property, to wit: a Discover card, of another person, to wit: James

      Puterbaugh.” Id. at 103. For Count III, theft, the State alleged Morehouse had

      stolen the tires from Sears. The State also filed a notice of intent to file an

      habitual offender enhancement.


[6]   At his March 20, 2015 initial hearing, the trial court scheduled a jury trial for

      June 23, 2015. On April 20, 2015, the State filed amended charges I and II. In

      amended charge I, the State replaced two references to James Puterbaugh with

      Dennis Puterbaugh, Shirley Puterbaugh’s husband, although the amended

      charge still asserted the credit card belonged to “James Puterbaugh.” Id. at 93.

      In amended charge II, the State asserted Dennis Puterbaugh owned the credit

      card. The trial court held an initial hearing on the charges as amended.




      Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016   Page 3 of 8
[7]   On June 5, 2015, the State moved to amend the charging information to add an

      habitual offender enhancement. Morehouse objected. On June 11, 2015, the

      court held a hearing on the State’s motion and subsequently denied it,

      concluding “there has been no good cause shown to justify the late filing.” Id.

      at 79.


[8]   Meanwhile, the State learned Dennis Puterbaugh was not an owner of the

      Discover card and was not authorized to use it. On June 12, 2015, the State

      moved to amend counts I and II to replace all references to Dennis Puterbaugh

      and James Puterbaugh with Shirley Puterbaugh. Morehouse objected. On

      June 19, 2015, the court held a hearing on the State’s motion and granted it.

      Morehouse requested a continuance of the trial, and the court denied his

      motion. Later that same day, the magistrate held an initial hearing on the

      amended charges. Morehouse renewed his objection to the amended charges

      and renewed his request for a continuance of the trial. The magistrate declined

      to change the trial court’s decisions.


[9]   The case was tried to a jury on June 23 and 24, 2015. After the State presented

      its case, Morehouse declined to present any evidence. The jury determined

      Morehouse was guilty as charged. The court imposed a sentence, and this

      appeal followed.




      Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016   Page 4 of 8
                                    Discussion and Decision
                          I. Amendment of Charging Information
[10]   Morehouse appeals his forgery conviction, arguing the trial court erred by

       allowing the State to amend the charging information eleven days before trial to

       allege Shirley Puterbaugh owned the credit card.


[11]   The State may amend a charging information as to matters of substance at any

       time prior to trial if the State provides written notice to the defendant and the

       amendment “does not prejudice the substantial rights of the defendant.” Ind.

       Code § 35-34-1-5(b) (2007). In addition, the court may, upon motion of the

       State, allow amendments to the information before, during, or after a trial to

       correct “any defect, imperfection, or omission in form which does not prejudice

       the substantial rights of the defendant.” Ind. Code § 35-34-1-5(c). Thus, when

       the State moves to amend a charging information prior to trial, regardless of

       whether the amendment is as to substance or as to form the key inquiry is

       whether the defendant’s substantial rights have been prejudiced.


[12]   In reviewing the trial court’s decision to permit an amendment to a charge, we

       must consider whether the defendant had a reasonable opportunity to prepare

       for and defend against the charges. Gaby v. State, 949 N.E.2d 870, 874 (Ind. Ct.

       App. 2011). The substantial rights of the defendant are not prejudiced by an

       amendment if: (1) a defense under the original information would be equally

       available after the amendment; and (2) the defendant’s evidence would apply

       equally to the information in either form. Id.


       Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016   Page 5 of 8
[13]   Morehouse argues the amending of the forgery charge to substitute Shirley

       Puterbaugh for James Puterbaugh and Dennis Puterbaugh prejudiced his

       defense because he had planned to argue that James Puterbaugh, the person

       who had been identified in the charge as the owner of the card, did not exist,

       and the amendment deprived him of that defense. In response, the State claims

       Morehouse was neither surprised nor prejudiced by the State’s proposed

       amendment because the original probable cause affidavit had correctly

       identified Shirley Puterbaugh as the owner of the credit card.


[14]   We conclude the amendment did not prejudice Morehouse’s substantial rights.

       The essence of the forgery charge was that Morehouse used a credit card he did

       not own in order to purchase tires. He was aware the State had alleged from

       the beginning of the criminal case that Shirley Puterbaugh had an ownership

       interest in the Discover card and had ample opportunity to investigate the

       nature of her interest. Morehouse acknowledged at the hearing on the State’s

       motion to amend that James Puterbaugh was not “a real person.” Tr. p. 33.


[15]   In addition, Morehouse’s defense that he was not the person who used the

       credit card to buy the tires was equally available before and after the State

       sought to amend the charging information. Whatever evidence he would have

       presented would have applied in either circumstance. Finally, after the trial

       court granted the State’s motion to amend, Morehouse had eleven days to

       pursue additional discovery and to prepare additional defenses. Under these

       circumstances, the trial court did not err by granting the State’s motion to

       amend the charging information. See Erkins v. State, 13 N.E.3d 400, 406 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016   Page 6 of 8
       2014) (no error in amending charging information where the State corrected the

       mistaken placement of defendant’s name on the charging information;

       defendant knew of the mistake well in advance of trial).


                                     II. Denial of Continuance
[16]   Morehouse presents an alternative argument: even if the trial court did not err

       by permitting the State to amend its charging information, the court should

       have granted his motion to continue the trial.


[17]   The governing statute provides, in relevant part:

               Before amendment of any indictment or information other than
               amendment as provided in subsection (b), the court shall give all
               parties adequate notice of the intended amendment and an
               opportunity to be heard. Upon permitting such amendment, the
               court shall, upon motion by the defendant, order any
               continuance of the proceedings which may be necessary to
               accord the defendant adequate opportunity to prepare the
               defendant’s defense.
       Ind. Code § 35-34-1-5(d).


[18]   Morehouse did not explain to the trial court, and fails to explain on appeal,

       how a continuance was necessary to allow him to adequately prepare for trial.

       He had been aware since the date the State filed the probable cause affidavit

       that the State believed Shirley Puterbaugh had an ownership interest in the

       credit card. Morehouse did not claim additional discovery was needed or

       express a need to investigate previously unidentified defenses. Instead,

       Morehouse told the trial court he requested a continuance “to preserve the issue

       for appeal.” Tr. p. 34. Morehouse failed to demonstrate a continuance was

       Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016   Page 7 of 8
       necessary per Indiana Code § 35-34-1-5(d), and the trial court did not err in

       denying his motion for a continuance. See Wilkinson v. State, 670 N.E.2d 47, 49

       (Ind. Ct. App. 1996) (no error in denying motion to continue after State

       amended charges where defendant failed to establish the amendment affected

       his defense), trans. denied.


                                                Conclusion
[19]   For the foregoing reasons, we affirm the judgment of the trial court.


[20]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016   Page 8 of 8
