MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                     Mar 09 2015, 9:25 am
Memorandum Decision shall not be 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
Darren Bedwell                                           Gregory F. Zoeller
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Brian Reitz
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Amanda Choban,                                           March 9, 2015

Appellant-Defendant,                                     Court of Appeals Case No. 49A02-
                                                         1406-CR-400
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        Cause No. 49F15-1208-FD-51160
Appellee-Plaintiff.
                                                         The Honorable James B. Osborn,
                                                         Judge




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-400 | March 9, 2015    Page 1 of 10
[1]   Amanda Choban (“Choban”) appeals her conviction for theft as a class D

      felony. Choban raises one issue which we revise and restate as whether the

      charging information and lack of a jury instruction requiring unanimity resulted

      in fundamental error. We affirm.


                                             Facts and Procedural History

[2]   In the beginning of 2012, Choban’s aunt, Christina Choban (“Christina”),1

      resided on Shelbyville Road in Marion County and offered to let Choban come

      and stay with her because Choban did not have a place to live. Choban, her

      four children, her boyfriend Daniel Matthews, and her three dogs moved into

      Christina’s residence, which was a house she rented from Chris Harrison. At

      the time that Choban moved in to Christina’s house, Harrison was using the

      detached garage as an office space. Christina traveled for work and was home

      on the weekends. When she returned home or was not traveling, there were

      problems. In early June, the house “was kind of tore up,” “there were no

      dishes that were clean,” there was food in the microwave that had been sitting

      there for awhile, Choban’s children were breaking things, and Choban and

      Matthews were not keeping up the house. Transcript at 44.


[3]   After a fight ensued, Christina told Choban that she needed to “get out of [her]

      house.” Id. at 45. Christina spoke with Harrison about the problems, and

      Harrison suggested the detached garage, which was about ten feet from




      1
          Christina is referred to as Christie and Christi in the record.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-400 | March 9, 2015   Page 2 of 10
      Christina’s residence, as a place for Choban. Choban made an arrangement

      with Harrison, and Choban and Matthews moved into the garage, but they still

      had access to Christina’s house because there was no running water in the

      garage. Christina thought that with more space, “it might have gotten better,”

      but “it got worse.” Id. at 46. Christina’s things “were still getting broken,” and

      her things were being taken without her permission. Id. Choban found her

      silverware in the trash can and found her pizza pan outside, and observed that

      her good cookware was used to feed the dogs and then left outside.


[4]   Choban and Matthews lived in the garage less than a month before moving out

      on July 1. On the night of their move, “they confirmed they were going to be

      out of the house, and that they were going to take [Christina’s] things and wash

      them, and bring them back,” and Christina said: “No, just leave them all on the

      couch, and I’d take care of cleaning them.” Id. at 49-50. On the morning after

      the move, Christina found that her trash can was full of her own belongings.

      She found her pizza pan, a microwave plate, cups, towels, forks, DVDs, a hair

      clip, a glass, a candle jar, a plate, toothpaste, a coffee mug, and cups in the trash

      can. She noticed that fifty to one hundred pieces of clothing were missing and

      discovered “a lot of it” in the trash can. Id. at 48. She also discovered that one

      of her bed sheets had been hammered to a wall to make a door cover in the

      garage. Choban and Matthews never brought items back to Christina.


[5]   At some point, Choban asked her grandmother, Christina’s mother, if she could

      have a garage sale at her house, and her grandmother said yes. Choban and

      Matthews had access to a shed on the grandmother’s property and placed a

      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-400 | March 9, 2015   Page 3 of 10
      padlock on it during the garage sale. A garage sale took place, and Choban’s

      uncle, Doug Choban (“Doug”), observed swords, some drills, and towels.

      Doug learned that items were missing from Harrison’s garage, took a

      photograph of one of the items that Harrison described as missing, and sent it to

      him. When the garage sale was over, Doug replaced the padlock with a key

      lock.


[6]   Doug called Christina and asked her to come over to her mother’s house.

      When she arrived, Doug showed her the shed behind the house and a tarp over

      her blankets and “just a pile of stuff.” Id. at 62. Christina found several of her

      items in the pile under the tarp or in the shed including towels, washrags, a

      voice changer from a Halloween costume, a blanket, and DVDs. Christina also

      observed a “walkie talkie system,” a tool, and a sword that belonged to

      Harrison in the shed or under the tarp. Id. at 67. Indianapolis Police Detective

      Kurt Rincker arrived at the scene, and Christina identified her items as being

      stolen. Detective Rincker spoke with Harrison and took control of one or two

      swords and walkie talkies that belonged to Harrison. The next day, Harrison

      identified the items that belonged to him.


[7]   On August 7, 2012, the State charged Choban and Matthews with theft as a

      class D felony. Specifically, the State alleged that Choban “on or about July 1,

      2012, did knowingly exert unauthorized control over the property, that is:

      sword(s) and/or radio(s) and/or a computer and/or household item(s), of

      Christi[na] Choban and/or Chris Harrison, with intent to deprive Christi[na]

      Choban and/or Chris Harrison of any part of the value or use of said property .

      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-400 | March 9, 2015   Page 4 of 10
       . . .” Appellant’s Appendix at 24. On August 15, 2012, the State filed an

       amended information to add a date range of April 8, 2012 to July 3, 2012, and

       to add Doug as a victim. On March 22, 2013, Choban filed a motion to sever

       her trial from the trial of Matthews. On March 27, 2013, the court granted

       Choban’s motion to sever.


[8]    A few months later, Christina saw Choban, and Choban called her a f------ b----.

       On January 2, 2013, Choban gave three swords that had been hanging in the

       garage when Christina moved into Harrison’s rental property to the police, the

       police gave the swords to Christina, and Christina gave them to Harrison.


[9]    On March 19, 2014, the court held a jury trial. Before the trial, the prosecutor

       stated: “I was not aware that [another prosecutor] had added um, Mr. Choban

       as a main victim. Um, the things weren’t his, so I guess the State would request

       that we remove his name from the charging information.” Transcript at 4.

       Choban’s counsel did not object, and the court allowed the State to amend the

       charging information to delete Doug’s name from the information.


[10]   At trial, Christina, Doug, and Detective Rincker testified to the foregoing.

       Choban testified that she did not take anything belonging to Christina or

       Harrison, that she was under the impression that the swords belonged to

       Matthews, and that she did not put anything in the trash can. When asked by

       the prosecutor whether some of the items that Christina let her use were the

       items that ended up in the trash, Choban testified: “Most of the items that I saw




       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-400 | March 9, 2015   Page 5 of 10
       today belonged to me.” Id. at 144. She also testified that she was “quite upset

       about that.” Id.


[11]   Preliminary Instruction No. 4 states:

               In this case, the State of Indiana has charged the Defendant with
               Theft, a Class D Felony. The charge reads as follows:
               Count I
               On or about or between April 8, 2012 and July 3, 2012, in Marion
               County, State of Indiana, the following named defendant, Amanda
               Choban, did knowingly exert unauthorized control over the property,
               to wit: sword(s) and/or radio(s) and/or a computer(s) and/or
               household item(s), of another person, to wit: Christi[na] Choban
               and/or Chris Harrison, with the intent to deprive the person of any
               part of its value or use.



       Appellant’s Appendix at 45. Preliminary Instruction No. 6 states in part:

               Before you may convict the Defendant, the State must have proved
               each of the following beyond a reasonable doubt:
               The Defendant
               knowingly
               exerted unauthorized control
               over the property of Christi[na] Choban and/or Chris Harrison
               with intent to deprive Christi[na] Choban and/or Chris Harrison of
               any part of its value or use.
               If the State failed to prove each of these elements beyond a reasonable
               doubt, you must find the Defendant not guilty of theft, a Class D
               felony, as charged in Count I.


       Id. at 47.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-400 | March 9, 2015   Page 6 of 10
[12]   The jury found Choban guilty as charged. At the sentencing, Choban made a

       statement, and the court stated: “[N]othing that I heard you say I find

       believable. I – you don’t come across as credible. The jurors didn’t find you

       credible when you testified.” Id. at 195. The court sentenced Choban to 365

       days with 180 days served on Community Corrections Home Detention with

       GPS monitoring and 185 days suspended to probation.


                                                   Discussion

[13]   The issue is whether the charging information and lack of a jury instruction

       requiring unanimity resulted in fundamental error. Choban argues that the

       charging information as amended alleged at least two crimes in a single count,

       and that Preliminary Jury Instruction #4 alleged two separate thefts of

       numerous unrelated items from two unrelated people over a period of months.

       She asserts that she did not object to the duplicity in the charging information,

       but the cumulative impact of this and other errors was fundamental error,

       including that the jury was not instructed that it must unanimously agree on a

       theft before convicting her. Choban argues that one juror could have believed

       that she threw away some of her aunt’s dishes out of spite, but knew nothing

       about the swords and another juror could have believed that the household

       items removed from the garage belonged to Choban but that she helped

       Matthews steal the swords. She claims that the cumulative impact of these

       errors made a fair trial impossible.


[14]   The State maintains that Choban has not demonstrated fundamental error, and

       that her counsel may very well have made a strategic decision to waive the issue
       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-400 | March 9, 2015   Page 7 of 10
       at trial because, if her counsel had objected to the charging information and the

       State had chosen to separate the offense into separate counts, then Choban’s

       sentence may have been longer or more severe. The State also argues that her

       claims of error fail both individually and cumulatively. It contends that the

       facts do not constitute separate offenses requiring more than one charged count

       of theft and that “[b]ecause the State only charged and convicted Choban on

       one offense, the theft of items from Christina’s residence during the period

       Choban resided there, this instruction is not required.” Appellee’s Brief at 9.

       The State also points to other jury instructions that were given including that

       the State must prove each element beyond a reasonable doubt, and that “[t]o

       return a verdict, each of you must agree to it.” Appellant’s Appendix at 68.

       The State contends that Choban is requesting that we reweigh the evidence and

       points out that the trial court stated that Choban was not credible and that the

       jurors did not find her credible.


[15]   As Choban acknowledges, she did not object at trial to the charging

       information, the instructions, or to the lack of a jury instruction on unanimity.

       To circumvent waiver, Choban contends that the court permitted the trial to

       proceed on two separate thefts charged in a single count and failed to provide

       an instruction on unanimity and this resulted in fundamental error.

       Fundamental error is an extremely narrow exception that allows a defendant to

       avoid waiver of an issue. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). It is

       error that makes “a fair trial impossible or constitute[s] clearly blatant violations

       of basic and elementary principles of due process . . . present[ing] an undeniable


       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-400 | March 9, 2015   Page 8 of 10
       and substantial potential for harm.” Id. “This exception is available only in

       ‘egregious circumstances.’” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)

       (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)), reh’g denied.

       “Fundamental error is meant to permit appellate courts a means to correct the

       most egregious and blatant trial errors that otherwise would have been

       procedurally barred, not to provide a second bite at the apple for defense

       counsel who ignorantly, carelessly, or strategically fail to preserve an error.”

       Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh’g denied.


[16]   As pointed out by the State, Choban’s attorney may have made a strategic

       decision to waive the issue of the charging information because separate counts

       may have resulted in a longer sentence. The State charged Choban with theft

       occurring between April 8, 2012, and July 3, 2012, and the record reveals that

       items belonging to Christina and Harrison were stolen during the period

       alleged. Based upon the allegations in the charging information, the State could

       have charged Choban with two separate offenses resulting in two separate

       convictions. Even assuming error, the State presented evidence that Choban

       had access to the stolen items, that items were in her possession, that she took

       the items without permission, and that she attempted to sell or otherwise

       dispose of the items. The only issue was the credibility of the alleged victims

       and Choban, and the jury resolved the basic credibility dispute against the

       defendant. Indeed, the trial court noted at the sentencing hearing: “[N]othing

       that I heard you say I find believable. I – you don’t come across as credible.

       The jurors didn’t find you credible when you testified.” Transcript at 195.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-400 | March 9, 2015   Page 9 of 10
       Additionally, an instruction was given directing the jury that to return a verdict

       they must all agree to it. We cannot say that Choban has demonstrated that

       any error so prejudiced her that she was denied a fair trial.


                                                   Conclusion

[17]   For the foregoing reasons, we affirm Choban’s conviction.


[18]   Affirmed.


       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-400 | March 9, 2015   Page 10 of 10
