Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,                     FILED
collateral estoppel, or the law of the                     Jan 20 2012, 9:26 am
case.
                                                                   CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

CHARLES W. LAHEY                                GREGORY F. ZOELLER
South Bend, Indiana                             Attorney General of Indiana

                                                MICHAEL GENE WORDEN
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

LEONARD T. MARSHALL,                            )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 71A05-1103-CR-103
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                        The Honorable Jane Woodward Miller, Judge
                              Cause No. 71D01-1010-FA-40


                                     January 20, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge

                                 STATEMENT OF THE CASE

          Leonard T. Marshall appeals his convictions of rape, a class A felony; 1 criminal

confinement, a class C felony;2 intimidation, a class D felony;3 strangulation, a class D

felony;4 residential entry, a class D felony;5 resisting law enforcement, a class A

misdemeanor;6 and false informing, a class B misdemeanor.7

          We affirm.

                                            ISSUES

          1.       Whether the trial court erred in permitting the State to amend the
                   charging information on the day of trial.

          2.       Whether the trial court abused its discretion in admitting into
                   evidence a knife recovered from Marshall.

                                             FACTS

          On the morning of October 8, 2010, K.M. was attacked in her bedroom by

Marshall. Marshall held a knife to K.M.’s throat with one hand, choked her with his


1
    Ind. Code § 35-42-4-1.
2
    I.C. § 35-42-3-3.
3
    I.C. § 35-45-2-1.
4
    I.C. § 35-42-2-9.
5
    I.C. § 35-43-2-1.5.
6
    I.C. § 35-44-3-3.
7
    I.C. § 35-44-2-2.
                                                2
other hand, and told her that he would kill her if she did not follow his instructions. At

one point, Marshall dropped the knife and choked K.M. with both hands until she could

not breathe. Marshall then forced the struggling K.M. from her bedroom to the kitchen,

where K.M. grabbed a burner from the stove and hit Marshall over the head, causing him

to bleed. Marshall became enraged and more violent, beating K.M.’s face and choking

her. K.M. stopped struggling, resigned herself to being raped, and tried to survive.

       Marshall dragged K.M. into the basement, where he forced her to perform oral sex

on him. He then raped her. Marshall then showed K.M. her son’s school identification

card and told her that if she reported the rape, he would kill her, her son (J.M.), and her

other children.

       K.M. managed to escape from Marshall, and she ran to the neighbors for help. A

neighbor immediately called the police, and after obtaining a description of Marshall, the

police began searching for him. Marshall twice ran from the police, but the police, with

the aid of a police dog, eventually apprehended him. Marshall refused to cooperate with

the officers, and an officer had to taze him to handcuff him. The officers found a knife

and J.M.’s identification card on Marshall’s person. Marshall originally gave a false

name to the arresting officers.

       Marshall claimed that he had consensual sex with K.M. on a number of occasions.

Marshall also claimed that after having sex with K.M. on October 8, 2010, he told her




                                             3
that he was moving to Chicago, that she became upset and hit him over the head, and that

he choked her in response.

       Marshall was charged with and convicted of the offenses listed above. In addition,

he was charged with attempted robbery, a class B felony, and intimidation, a class C

felony. These charges arose from J.M.’s claim that Marshall had entered K.M.’s home

before her return on October 8, 2010, had threatened J.M. with a knife, had demanded

valuables, and had taken a hoody belonging to J.M.’s brother. The jury found Marshall

not guilty of these charges.

                                      DISCUSSION

1.     Amendment to Charges

       Marshall contends that the trial court erred in allowing the State to amend the

charging informations on the day of trial.        He argues that the amendments were

substantive and that he was prejudiced by them.

       In general, Indiana Code section 35-34-1-5(b) permits the State “to amend a

charging information even in matters of substance at any time before the commencement

of trial so long as the amendment does not prejudice the defendant’s substantial rights.”

Gaby v. State, 949 N.E.2d 870, 874 (Ind. Ct. App. 2011). The “substantial rights” of a

defendant include a right to sufficient notice and an opportunity to be heard regarding the

charge.   Id.   “Ultimately, the question is whether the defendant had a reasonable

opportunity to prepare for and defend against the charges.” Id. The substantial rights of

                                            4
the defendant are not prejudiced 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.

       Our review of the transcript discloses that Marshall did not request a continuance

after the trial court granted the State’s motion to amend. When a trial court permits an

amendment to the charging information, “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 his defense.” I.C. § 35-34-1-5(d). “If a court

overrules a defendant’s objection to a late amendment, a defendant must request a

continuance to preserve any argument that he was prejudiced by the late amendment.”

Suding v. State, 945 N.E.2d 731, 735 (Ind. Ct. App. 2011), trans. denied. Failure to

request a continuance results in waiver of the issue on appeal. Id. Thus, Marshall has

waived this issue.

       Waiver notwithstanding, Marshall cannot prevail. The amendments were made to

render the charges more consistent with statutory language. Marshall did not argue

below, and does not argue on appeal, that the amendments had any effect upon his

defense of consent. Furthermore, there is no indication that the amendments had any

effect upon the presentation of the evidence. The same evidence noted in the original

charges was presented at trial. Marshall’s substantial rights were not prejudiced by the




                                             5
amendments. Accordingly, the trial court did not err in overruling Marshall’s objections

to the State’s amendments.8

2.      Admission of Evidence

        Marshall contends that the trial court abused its discretion in overruling his

objection and admitting a blue razor flip knife into evidence. He argues that the flip knife

was not the one used to threaten K.M., and even though it was in his pocket at the time of

the rape, it was not relevant to the State’s case. He also argues that the sole purpose of

the introduction was to show that he was a dangerous man who carried a weapon. He

further argues that he was prejudiced by admission of the blue razor flip knife because

“the mere possession of this unrelated tool casts Marshall’s character in a bad light when

viewed along with the totality of the circumstances.” Marshall’s Br. at 9.

        Trial courts are accorded broad discretion in determining whether to admit or

exclude evidence, and we review evidentiary determinations for an abuse of that

discretion. Conrad v. State, 938 N.E.2d 852, 855 (Ind. Ct. App. 2010). An abuse of

discretion occurs when the trial court’s ruling is clearly against the logic, facts, and

circumstances presented. Id. A trial court’s evidentiary ruling will be sustained on any

legal ground apparent in the record. Jester v. State, 724 N.E.2d 235, 240 (Ind. 2000).




8
  Our review of this issue is hampered by appellate counsel’s failure to include the original and amended
charges in Marshall’s appendix. We have examined the transcript containing the objections to ascertain
that the amendments did not affect Marshall’s defense or the presentation of the evidence.
                                                   6
       Rape occurs when a person knowingly or intentionally has sexual intercourse with

a member of the opposite sex when the other person is compelled by force or imminent

threat of force. I.C. § 35-42-4-1(a). The offense is a class A felony if, among other

things, it is committed by using or threatening the use of deadly force or while the

offender is armed with a deadly weapon. I.C. 35-42-4-1(b).

       Our examination of the transcript discloses that Captain Mark Reihl of the St.

Joseph County Police Department testified without objection that Marshall showed the

flip knife to K.M. In addition, it appears that Marshall admitted on cross-examination to

showing the flip knife to K.M. Accordingly, even though Marshall apparently was armed

with a fixed-handle knife during the actual commission of the rape, the flip knife was

relevant as a threat of deadly force as K.M. knew it was being carried by Marshall during

the rape.

       Furthermore, before the admission of the flip knife, an officer testified without

objection about the knife and a photograph of the knife was admitted without objection.

Accordingly, the admission of the actual knife was merely cumulative of other evidence,

and it is apparent that admission of the actual knife, even if error, was harmless. See

West v. State, 755 N.E.2d 173, 183 (Ind. 2001) (holding that a defendant “could hardly

have been greatly prejudiced by admission of [a] knife when two witnesses had already

testified to the knife’s existence”).

       Affirmed.

                                           7
BAKER, J., and BAILEY, J., concur.




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