MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Feb 26 2020, 7:29 am
regarded as precedent or cited before any                                CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Bruce E. Andis                                          Curtis T. Hill, Jr.
Lawrence County Public Defender                         Attorney General of Indiana
Agency
                                                        Lauren A. Jacobsen
Bedford, Indiana                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

William A. Brock,                                       February 26, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1530
        v.                                              Appeal from the Lawrence
                                                        Superior Court
State of Indiana,                                       The Honorable William G. Sleva,
Appellee-Plaintiff,                                     Judge
                                                        Trial Court Cause No.
                                                        47D02-1805-F5-772



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1530 | February 26, 2020            Page 1 of 9
                                Case Summary and Issue
[1]   William Brock was convicted of failing to register as a sex or violent offender as

      a Level 5 felony. He appeals his conviction, raising one issue for our review:

      whether the State proved the offense by sufficient evidence. Concluding the

      State proved that Brock knowingly failed to register when required to do so, we

      affirm.



                            Facts and Procedural History
[2]   Brock was convicted of child molesting as a Class C felony in 2000. The parties

      stipulated at trial that Brock is an offender required to register under Indiana

      Code section 11-8-8-7 because his previous conviction is for a crime listed under

      Indiana Code section 11-8-8-5. Exhibit Index, Volume 1 at 4.


[3]   On April 26, 2018, Brock was released from the Lawrence County Jail on an

      unrelated matter. He went to the Lawrence County Sheriff’s Department that

      day to register as required. There, he received a registration form that notified

      him of his obligations pursuant to Indiana Code chapter 11-8-8, including that if

      he was homeless, he was required to register in person at the sheriff’s

      department at least once every seven days until he found a permanent address.

      See id. at 6, ¶ 7. The form also notified him that knowingly or intentionally

      failing to register as required is a felony. See id. at 7, ¶ 17. Brock initialed each

      page of the form and signed the last page, attesting that he understood his duties

      and obligations. See id. at 6-8. Brock also signed a form specifically for


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1530 | February 26, 2020   Page 2 of 9
      offenders who are homeless or have a temporary residence and indicated that

      he was homeless. See id. at 9. This form also notified Brock that he was

      required to register in person at least once every seven days until he finds a

      permanent address. See id.


[4]   Brock should have returned to the sheriff’s department to re-register by May 3.1

      However, he did not return until May 11, at which time he registered with

      Lawrence County but also informed the offender coordinator that he was going

      to move to Orange County and register there. Brock did in fact register in

      Orange County for the first time on May 11. He re-registered in Orange

      County on May 17.


[5]   On May 21, 2018, the Lawrence County Prosecutor’s Office charged Brock

      with failure to register as a sex or violent offender for knowingly failing to

      register as required by law between May 3, 2018 and May 11, 2018, and also

      gave notice of its intent to seek an enhanced penalty due to a prior conviction

      for failure to register. See Appellant’s Appendix, Volume Two at 10, 12. On

      August 1, 2018, the State moved to amend the information to allege that Brock

      knowingly failed to register between May 3, 2018 and May 10, 2018. The trial




      1
        The Lawrence County offender coordinator testified that at this time, he was the only coordinator and he
      was off on Tuesdays and Wednesdays. If an offender came in on one of those days, the offender would fill
      out a form to indicate he had appeared in person at the office and the coordinator would contact them when
      he returned to work. May 3, 2018 was a Thursday and the coordinator testified that Brock did not come in to
      register or otherwise contact the coordinator on that day or any day thereafter until May 11, a Friday. The
      coordinator completed a report on May 11 describing his interactions with Brock and forwarded a copy of his
      report to the Lawrence County Prosecutor’s Office.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1530 | February 26, 2020               Page 3 of 9
      court granted the motion to amend. The State filed a second amended

      information shortly before trial alleging only that Brock was “an offender”

      rather than a “sex or violent offender” in response to various pre-trial rulings,

      but again alleged that he knowingly failed to register as required by law between

      May 3, 2018 and May 11, 2018. See id. at 73. The second amended information

      was read to the jury at trial. See Transcript of Evidence, Volume 2 at 11

      (preliminary instructions) and 73 (final instructions).


[6]   After the State rested its case in chief, Brock moved for a directed verdict

      because “[t]he charge alleges a specific date range between May 3 and May 11.

      The evidence that’s been presented is that on May 11, not only did [Brock]

      register in Lawrence County, he also registered in Orange County. So based on

      that, . . . I don’t think the State has provided sufficient evidence to sustain a

      conviction[.]” Id. at 42. The State responded that it did not think it was

      “necessary in this case [to] allege any other date beyond May 3, because the

      second [Brock] failed to register on May 3 . . . he was guilty of the alleged

      offense.” Id. The State also noted that it was merely a scrivener’s error: “The

      original information alleged that date, May 3 to May 11. The State amended

      that date to be May 3 to May 10, and then through a typo, when the State

      moved to amend the newest information to take out prejudicial information . . .

      the original information was accidentally used instead of the newest amended

      information.” Id. at 42-43. Brock responded that the State was “bound by their

      charging information” and expressed that “this is some sort of trial strategy on




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1530 | February 26, 2020   Page 4 of 9
      behalf of the State that is extremely prejudicial to [Brock].” Id. at 43. The trial

      court denied Brock’s motion.


[7]   The jury found Brock guilty of failing to register as a Level 6 felony. Brock then

      waived a jury trial for the enhancement phase and the trial court found that he

      had a prior unrelated conviction for failing to register. The trial court therefore

      entered judgment of conviction for failure to register as a Level 5 felony and

      sentenced Brock to 365 days in the Department of Correction, with 278 days

      credit and the remaining 87 days suspended to probation. Brock now appeals

      his conviction.



                                Discussion and Decision
                                     I. Standard of Review
[8]   Our standard of review for sufficiency of the evidence claims is well settled.

      D.J. v. State, 88 N.E.3d 236, 241 (Ind. Ct. App. 2017). Upon review, we do not

      reweigh the evidence or judge the credibility of the witnesses. Purvis v. State, 87

      N.E.3d 1119, 1124 (Ind. Ct. App. 2017). We consider only the evidence most

      favorable to the verdict and the reasonable inferences drawn therefrom. Id. We

      will affirm a defendant’s conviction if “there is substantial evidence of probative

      value supporting each element of the crime from which a reasonable trier of fact

      could have found the defendant guilty beyond a reasonable doubt.” Stewart v.

      State, 866 N.E.2d 858, 862 (Ind. Ct. App. 2007).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1530 | February 26, 2020   Page 5 of 9
                                  II. Sufficiency of Evidence
[9]    As noted above, the parties stipulated that Brock was required to register under

       Indiana Code section 11-8-8-7. Brock did appear in Lawrence County as

       required on April 26, 2018, and registered as “homeless.” Indiana Code section

       11-8-8-12(c) states that offenders who do not have a permanent address or

       temporary residence “shall report in person to the local law enforcement

       authority in the county where [they] reside[] at least once every seven (7) days

       to report an address for the location where [they] will stay during the time in

       which [they] lack[] a principal address or temporary residence.” Therefore,

       Brock was required to return to the Lawrence County Sheriff’s Department by

       at least May 3, 2018, to re-register. The forms he signed on April 26 indicate he

       was informed and aware of this requirement. After registering on April 26,

       Brock did not return to the Sheriff’s Department until May 11.


[10]   The offense of failure to register is proven by evidence the offender “knowingly

       or intentionally . . . fail[ed] to register when required to register[.]” Ind. Code §

       11-8-8-17(a)(1). Brock does not challenge the State’s evidence that he knew he

       was required to report to the Sheriff’s Department to re-register by May 3 or

       that he did not report on that day. Instead, emphasizing the word “when” in

       the statute defining the crime of failure to register, Brock claims that “time is a

       critical element of the statutory framework governing registration,” and because

       the State failed to prove that he “did not register on a date specifically alleged in

       the Second Amended Charging Information[,]” the State failed to prove he

       committed the offense of failure to register. Brief of Defendant-Appellant at 6-

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1530 | February 26, 2020   Page 6 of 9
       7. In other words, Brock claims that because the charging information read to

       the jury alleged he failed to register between May 3 and May 11, 2018, the State

       was required to prove that he did not register on any date between and including

       May 3 and May 11. It is uncontested that Brock did report and re-register in

       Lawrence County on May 11.


[11]   We disagree with Brock’s premise for two reasons. One, time is of the essence

       to this offense only in the sense that it cannot be charged until the statutory

       amount of time (here, seven days) has passed without registration. The length

       of time Brock remained unregistered thereafter is irrelevant, because the crime

       of failure to register was complete when Brock failed to report in person to the

       Lawrence County Sheriff’s Department within seven days of April 26 to re-

       register. Essentially, if the State were so inclined, it could charge an offender on

       the eighth day with failure to register. Further, a variance between the date

       alleged and the State’s proof at trial does not generally mandate acquittal or

       reversal. Sangsland v. State, 715 N.E.2d 875, 879 (Ind. Ct. App. 1999), trans.

       denied. A variance is only fatal if it misleads the defendant in the preparation of

       his defense or subjects him to the likelihood of another prosecution for the same

       offense. Reinhardt v. State, 881 N.E.2d 15, 17 (Ind. Ct. App. 2008). Brock does

       not allege he was misled in the preparation of his defense by the alleged

       variance. And the alleged variance does not leave him vulnerable to double

       jeopardy as it covers every day that he remained unregistered.


[12]   Two, semantically speaking, “between May 3, 2018 and May 11, 2018” does

       not include May 11. “If an act is to be done ‘between’ two certain days, it must

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1530 | February 26, 2020   Page 7 of 9
       be performed before the commencement of the latter day.”

       https://thelawdictionary.org/between/ [https://perma.cc/U2J6-5QKM]; see

       also Fry v. Hoffman, 54 Ind. App. 434, 102 N.E. 167, 168 (1913) (noting that the

       word “between” “when used to define a period of time bounded by two other

       periods, such as between two named days, excludes the days specified at the

       beginning and at the ending of the period”). To illustrate this point, Brock

       could have registered at any time up to and including May 3 and he would not

       have been guilty of this offense. Thus, he did not become guilty of failure to

       register until May 4 when he remained unregistered. And indeed, the charging

       information alleges Brock failed to register between May 3 and May 11. Brock’s

       argument is inherently contradictory because he challenges only the inclusion

       of May 11 as problematic when, if his logic applied, the inclusion of May 3

       would also be in error.


[13]   The State proved that Brock knew of his obligations to register and the time

       frames for doing so. The State further proved that Brock failed to register in a

       timely fashion. The State therefore proved that Brock was guilty of failure to

       register.



                                               Conclusion
[14]   That State proved by sufficient evidence that Brock knowingly failed to register

       when he was required to register. Accordingly, his conviction is affirmed.


[15]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1530 | February 26, 2020   Page 8 of 9
Bradford, C.J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1530 | February 26, 2020   Page 9 of 9
