MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                       FILED
court except for the purpose of establishing                       Jul 31 2017, 6:16 am

the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer L. Koethe                                       Curtis T. Hill, Jr.
La Porte, Indiana                                        Attorney General of Indiana

                                                         Ian McLean
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
      COURT OF APPEALS OF INDIANA

Brian Taylor,                                            July 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A05-1608-CR-1938
        v.                                               Appeal from the LaPorte Superior
                                                         Court
State of Indiana,                                        The Honorable Michael S. Bergerson,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         46D01-1510-F1-904



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A05-1608-CR-1938 | July 31, 2017       Page 1 of 11
                                             Case Summary
[1]   Following a jury trial, Brian Jordan Taylor appeals his convictions and sentence

      for level 5 felony criminal recklessness and level 6 felony criminal recklessness.

      He asserts that the trial court erred in allowing the State to file an amended

      charging information during trial, claiming that it was a substantive amendment

      and therefore untimely. He also contends that the trial court abused its

      discretion in considering certain aggravating factors at sentencing. Finding the

      amended charging information to be an amendment to form and timely filed,

      and that the trial court did not abuse its discretion at sentencing, we affirm.


                                  Facts and Procedural History
[2]   On the afternoon of October 22, 2015, Timothy Montson, Dwan Davis,

      Armanhi Jackson, and a companion walked to a convenience store on the west

      side of Michigan City. After making their purchases, the four men gathered

      outside to talk when Montson noticed a silver four-door vehicle drive by them.

      Montson pointed the vehicle out to his companions, saying, “[H]ey, that’s

      them. There they go again and again and again.” Tr. Vol. 2 at 196. Taylor,

      Martineze Smallwood, and a companion were passengers in the vehicle, and

      Cameo Crawford was the driver. Montson and his companions went across the

      street, near the corner of 10th Street and Tennessee Street, to greet a mutual

      friend. Shortly thereafter, Smallwood exited the vehicle, which had circled

      back around, and approached Montson and his companions.




      Court of Appeals of Indiana | Memorandum Decision 46A05-1608-CR-1938 | July 31, 2017   Page 2 of 11
[3]   Smallwood was angry about a number of social media postings directed at him

      by Davis. Smallwood threw a punch, and a fistfight ensued between them on

      the sidewalk. The fight spilled into the intersection of 10th Street and

      Tennessee Street while Montson and others observed. Davis eventually gained

      the upper hand in the fight. Taylor then exited the vehicle, brandished a

      handgun, and warned Montson and his companions not to intervene in the

      fight, saying, “None of you mother f**kers move.” Tr. Vol. 3 at 231. Taylor

      placed the gun in his waistband and began to beat and stomp on Davis.

      Montson took a .380-caliber semiautomatic handgun from Jackson and began

      walking toward the fight. As Montson walked on the sidewalk, he fired two

      shots in the air as a diversion.


[4]   Taylor pointed his gun at Montson and fired a shot in retaliation, narrowly

      missing his head. Montson and his companion sought cover behind a nearby

      parked truck on 10th Street and a tree. More shots were fired by Taylor as well

      as by Crawford, who was firing his .40-caliber semiautomatic handgun from the

      vehicle. Taylor, Crawford, Smallwood, and their companion fled the scene.

      Taylor and Crawford evaded the police, but were arrested the following day

      after another attempt to flee. Upon investigation, one bullet from a nine-

      millimeter Luger semiautomatic handgun and two bullet holes consistent with

      that caliber handgun were found at the convenience store. Several bullets from

      a .40-caliber handgun were extracted from the residence at 916 Tennessee

      Street.




      Court of Appeals of Indiana | Memorandum Decision 46A05-1608-CR-1938 | July 31, 2017   Page 3 of 11
[5]   The State charged Taylor with level 1 felony attempted murder against

      Montson. During the jury trial, the State notified the trial court and Taylor that

      it would offer an amended charging information adding two counts of level 5

      felony criminal recklessness based on Taylor shooting a firearm into a residence

      at 916 Tennessee Street and into the convenience store. Taylor raised an

      objection to both counts but failed to move for a continuance. The trial court

      overruled the objection and allowed the State to file the amended charging

      information. The trial court instructed the jury about the lesser included offense

      of level 6 felony criminal recklessness. The jury acquitted Taylor of the

      attempted murder charge and found him guilty of level 5 felony criminal

      recklessness as to the convenience store and level 6 felony criminal recklessness

      as to the residence at 916 Tennessee Street. The trial court sentenced Taylor to

      a five-year term with one year suspended for the level 5 felony criminal

      recklessness conviction and a concurrent year-and-a-half term for the level 6

      felony criminal recklessness conviction. Taylor now appeals.


                                     Discussion and Decision

             Section 1- The amended charging information was an
               amendment to form and timely filed by the State.
[6]   Taylor contends that the trial court erred in granting the State’s motion to

      amend the charging information. Amendments to a charging information are

      governed by Indiana Code Article 35-34-1-5, which reads in relevant part as

      follows:



      Court of Appeals of Indiana | Memorandum Decision 46A05-1608-CR-1938 | July 31, 2017   Page 4 of 11
        (a) An indictment or information which charges the commission
            of an offense may not be dismissed but may be amended on
            motion by the prosecuting attorney at any time because of any
            immaterial defect, including:


            (1) any miswriting, misspelling, or grammatical error;


            (2) any misjoinder of parties defendant or offenses charged;


            …


            (9) any other defect which does not prejudice the substantial
                rights of the defendant.


        (b) The indictment or information may be amended in matters of
            substance and the names of material witnesses may be added,
            by the prosecuting attorney, upon giving written notice to the
            defendant at any time:


            (1) up to:


                 (A) thirty (30) days if the defendant is charged with a
                    felony; or


                 (B) fifteen (15) days if the defendant is charged only with
                     one (1) or more misdemeanors;


        before the omnibus date; or


            (2) before the commencement of trial;




Court of Appeals of Indiana | Memorandum Decision 46A05-1608-CR-1938 | July 31, 2017   Page 5 of 11
               if the amendment does not prejudice the substantial rights of the
               defendant. . . . .


               (c) Upon motion of the prosecuting attorney, the court may, at
                   any time before, during, or after the trial, permit an
                   amendment to the indictment or information in respect to any
                   defect, imperfection, or omission in form which does not
                   prejudice the substantial rights of the defendant.


               (d) 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.


[7]   Specifically, Taylor claims that the additional charges of criminal recklessness

      “changed the focus of the crime charged from a person [Montson] to two

      locations,” and therefore were amendments of substance and untimely filed.1

      Appellant’s Br. at 17-18. Whether an amendment to a charging information or

      indictment is a matter of substance or form is a question of law, which we



      1
        Taylor concedes that he did not seek a continuance. The State argues that Taylor’s failure to move for a
      continuance results in waiver of his argument, citing Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind. 1996),
      Brown v. State, 912 N.E.2d 881, 890 (Ind. Ct. App. 2009), trans. denied, and Wilson v. State, 931 N.E.2d 914,
      917-18 (Ind. Ct. App. 2010), trans. denied. However, these cases involved an amendment to include a
      habitual offender charge and substantive amendments, respectively. Our review of the case law did not
      reveal any authority on point for an amendment to form during trial. Because amendments to form can
      occur at any time so long as the defendant’s substantial rights are not prejudiced, it appears to us that failure
      to move for a continuance regarding an amendment to form would result in waiver since the defendant
      proceeded to defend his case, after being duly notified and heard by the trial court, to his own possible
      detriment. Ind. Code § 35-34-1-5(d). Notwithstanding any waiver, we address the merits of Taylor’s
      argument.

      Court of Appeals of Indiana | Memorandum Decision 46A05-1608-CR-1938 | July 31, 2017                 Page 6 of 11
      review de novo. Gibbs v. State, 952 N.E.2d 214, 221 (Ind. Ct. App. 2011), trans.

      denied (2012). As detailed above, substantive amendments are allowed only

      “before the commencement of trial,” while amendments to form may occur at

      any time, so long as the substantial rights of the defendant are not prejudiced.

      Ind. Code § 35-34-1-5(b), -(c). This Court has explained that “an 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.” Gibbs, 952 N.E.2d at

      221.


[8]   The original charging information alleged that on or about October 22, 2015, at

      or about 10th and Tennessee Streets, in Michigan City, Taylor “did attempt to

      commit the crime of murder by intentionally shooting at [Montson] with a

      handgun, which conduct constituted a substantial step toward the commission

      of the crime of murder.” Appellant’s App. Vol. 2 at 13. Counts 2 and 3 of the

      amended charging information alleged that on or about October 22, 2015, at or

      about 10th and Tennessee Streets, in Michigan City, Taylor “did recklessly,

      knowingly, or intentionally perform an act that created a substantial risk of

      bodily injury to another person by shooting a firearm into an inhabited

      dwelling,” i.e., the residence at 916 Tennessee Street, and “into a building,” i.e.,

      the convenience store. Id. at 149.


[9]   Taylor’s defense to the attempted murder charge was that he did not shoot a

      firearm during the altercation and that he did not intend to kill Montson. See

      Tr. Vol. 2 at 69-72; Tr. Vol. 6 at 50-51. Similarly, Taylor’s defense to the

      Court of Appeals of Indiana | Memorandum Decision 46A05-1608-CR-1938 | July 31, 2017   Page 7 of 11
       criminal recklessness charges was that he did not shoot a firearm and that he

       did not intend to shoot into a dwelling or building. See Tr. Vol. 6 at 67-71. In

       sum, Taylor argued that the State failed to present sufficient evidence,

       particularly physical evidence, to convict him of any of the charges. The State

       argued that sufficient evidence was presented, specifically, the testimony of

       eyewitnesses stating that Taylor pointed the firearm at Montson and fired

       several shots, the directionality of the bullets, and the nine-millimeter Luger

       bullet indicative of a third firearm, which could be attributed to Taylor.2 See id.

       at 77-82.


[10]   Our review of the record leads us to conclude that Taylor’s defense was

       “equally available after the amendment” to the charging information and the

       evidence applies “equally to the information in either form.” Gibbs, 952 N.E.2d

       at 221. The evidence that Taylor possessed a firearm, pointed the firearm at

       Montson, and fired several shots, including a nine-millimeter Luger bullet

       recovered at the convenience store, applies equally to both the original and

       amended charging information. All three counts charged that Taylor’s criminal

       conduct took place “at or about at 10th and Tennessee Streets.” See Appellant’s

       App. Vol. 2 at 149. Notably, during trial, defense counsel acknowledged that

       “yes, there has been evidence of [criminal recklessness] in the case . . . .” Tr.



       2
         Taylor argues that his rights were substantially prejudiced by the presentation into evidence of a bullet taken
       out of the residence at 916 Tennessee Street, which was not provided to him prior to trial. Appellant’s Br. at
       20. Expert testimony stated that the bullet was fired from the .40-caliber handgun attributed to Crawford.
       Taylor mistakenly asserts that this evidence was used by the State to bring forth the additional charges of
       criminal recklessness. However, it is immaterial to the charges brought against Taylor and could not have
       prejudiced him in any way.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1608-CR-1938 | July 31, 2017                Page 8 of 11
       Vol. 4. at 183. Therefore, we hold that the amendment to the charging

       information was an amendment to form and not substance. The State’s

       amended charging information was not untimely and Taylor’s substantial rights

       were not prejudiced. Accordingly, we affirm his convictions.


            Section 2 – The trial court did not abuse its discretion at
                                   sentencing.
[11]   Next, Taylor contends that the trial court erred in considering certain

       aggravating factors at sentencing. Sentencing decisions are within the purview

       of the trial court’s sound discretion and are reviewed on appeal only for an

       abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified

       on reh’g, 875 N.E.2d 218. An abuse of discretion occurs when the sentencing

       decision is “clearly against the logic and effect of the facts and circumstances

       before the court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.” Id. There are several ways a trial court may abuse its discretion.

       For example, a trial court can abuse its discretion by failing to enter a

       sentencing statement at all, by articulating reasons in a sentencing statement

       that are not supported by the record, by omitting reasons in a sentencing

       statement that are clearly supported by the record, or by articulating reasons

       that are improper as a matter of law. Id. at 490-91.


[12]   Taylor argues that the trial court abused its discretion in finding as an

       aggravating circumstance that his initial response was to reach for a loaded

       firearm and shoot in the direction of Montson and others. He contends that his

       response should not be considered an aggravating factor because it is also an

       Court of Appeals of Indiana | Memorandum Decision 46A05-1608-CR-1938 | July 31, 2017   Page 9 of 11
       essential element of the criminal recklessness charge. However, Taylor reads

       too much into the trial court’s sentencing statement. The court merely faulted

       Taylor for using violent instead of nonviolent means to resolve the dispute

       between Smallwood and Davis. Thus, we find no abuse of discretion.


[13]   The trial court also found as an aggravating factor that Taylor committed these

       crimes while released on a pending murder charge. While he concedes this is a

       valid aggravating factor, Taylor argues that the aggravator should be considered

       in the light of his presumption of innocence, minimal criminal history, and his

       active dispute of the charge. In short, this is an invitation for this Court to

       reassess the weight or value assigned by the trial court to the reasons put forth

       in its sentencing decision. We cannot do so since “the relative weight or value

       assign[ed] to reasons properly found . . . is not subject to review for abuse.”

       Anglemyer, 868 N.E.2d at 491. Moreover, a trial court does not have an

       obligation to “weigh” aggravating and mitigating factors against each other

       when imposing a sentence and, therefore, it cannot abuse its discretion for

       failing to “properly weigh” such factors. Id. Having found no abuse of

       discretion, we affirm Taylor’s sentence.3




       3
         Taylor cites Appellate Rule 7(B) as a basis for appellate review. Appellant’s Br. at 21. However, Taylor
       fails to make a specific argument regarding the appropriateness of the sentence in light of the nature of his
       offenses and his character. This failure results in waiver of any such claim on appeal. Williams v. State, 891
       N.E.2d 621, 633 (Ind. Ct. App. 2008).

       Court of Appeals of Indiana | Memorandum Decision 46A05-1608-CR-1938 | July 31, 2017              Page 10 of 11
[14]   Affirmed.


       Mathias, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A05-1608-CR-1938 | July 31, 2017   Page 11 of 11
