                                                                                 FILED
                                                                            Mar 12 2020, 10:38 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Daniel A. Moon                                            Curtis T. Hill, Jr.
      Daniel Moon Law Offices, LLC                              Attorney General of Indiana
      Princeton, Indiana
                                                                George P. Sherman
      Steven L. Whitehead
                                                                Deputy Attorney General
      Steven Whitehead, Attorney at Law
                                                                Indianapolis, Indiana
      Princeton, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      David A. Tyrie,                                           March 12, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-692
              v.                                                Appeal from the Gibson Circuit
                                                                Court
      State of Indiana,                                         The Honorable Jeffrey F. Meade,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                26C01-1703-F4-220
                                                                26C01-1812-F4-1338



      May, Judge.



[1]   In this interlocutory appeal, David A. Tyrie appeals the trial court’s denial of

      his motion to dismiss the charges against him. He presents two issues for our

      review, one of which we find dispositive – whether the trial court abused its

      Court of Appeals of Indiana | Opinion 19A-CR-692 | March 12, 2020                              Page 1 of 10
      discretion when it allowed the State to refile charges against Tyrie. 1 We affirm

      and remand.



                                Facts and Procedural History
[2]   On March 7, 2017, the State charged Tyrie with Level 4 felony sexual

      misconduct with a minor 2 under cause number 26C01-1703-F4-220 (“Cause

      220”), based on a report that he engaged in a sexual act with J.S., who was

      between the ages of fourteen and sixteen. The charging information alleged

      Tyrie committed the crime “on or about December 18, 2016[.]” (App. Vol. II

      at 17.) Police arrested Tyrie on March 10, 2017, and he appeared with counsel

      the same day for arraignment. The trial court set an omnibus date of May 22,

      2017, and a pretrial conference for June 7, 2017. On Tyrie’s motion, the

      pretrial conference was rescheduled for August 24, 2017.


[3]   At the pretrial conference, the trial court set a trial date of February 26-28,

      2018, and scheduled a final pretrial conference for January 24, 2018. On

      August 29, 2017, Tyrie filed a notice of alibi. On October 7, 2017, the State

      filed an amended charging information, alleging Tyrie committed the crime “on




      1
        Tyrie also challenges numerous trial court rulings in Cause 26C01-1703-F4-220. However, as the trial court
      dismissed that cause on January 30, 2019, those arguments are moot. See Bell v. State, 1 N.E.3d 190, 191
      (Ind. Ct. App. 2013) (issue is moot when the appellate court is unable to provide effective relief on the issue);
      see also Parrish v. State, 459 N.E.2d 391, 393 n.1 (Ind. Ct. App. 1984) (argument regarding constitutionality of
      a statute moot because the charge governed by the statute was dismissed).
      2
          Ind. Code § 35-42-4-9(a)(1) (2014).


      Court of Appeals of Indiana | Opinion 19A-CR-692 | March 12, 2020                                   Page 2 of 10
      or between November 1, 2016 and December 23, 2016[.]” (Id. at 22) (emphasis

      in original omitted).


[4]   On February 20, 2018, six days prior to trial, the State filed a second amended

      charging information, alleging Tyrie committed the crime “on or between

      September 1, 2016 and December 31, 2016[.]” (Id. at 23) (emphasis in original

      omitted). On the same day, Tyrie filed an amended notice of alibi giving more

      details regarding his whereabouts on December 18, 2016, and a motion to

      continue his trial based on the State’s second amended charging information.

      The trial court granted Tyrie’s motion to continue and rescheduled the trial for

      April 9-11, 2018. On March 22, 2018, Tyrie filed a motion to continue the

      April trial date in order to conduct further discovery. The trial court granted his

      motion and rescheduled the trial for September 24-26, 2018.


[5]   On August 20, 2018, Tyrie filed a “Motion for State to Elect Specific Act for

      Which State of Indiana Intends to Seek Conviction[.]” (Id. at 10.) On August

      24, 2018, the trial court held a pretrial conference. On that date, the trial court

      scheduled a hearing on Tyrie’s August 20 motion for September 25, 2018, and

      vacated the September trial dates. The trial court set Tyrie’s trial for December

      17-19, 2018, with a final pre-trial conference to be held on December 6, 2018.


[6]   On September 25, 2018, the trial court held a hearing on Tyrie’s motion. At

      that hearing, the State told the trial court:


              [T]he State doesn’t dispute what [Tyrie] has said in his motion as
              far as what the State’s required to do. We don’t really dispute
              what he’s argued this morning. I think the State’s intention at
      Court of Appeals of Indiana | Opinion 19A-CR-692 | March 12, 2020          Page 3 of 10
              this point is to refile this under a new cause number. We’ll make
              three separate counts. We’re going to supplement the original
              affidavit. We won’t be changing anything in it, but we will be
              supplementing the original affidavit.


              And we will be asking the Court to then find probable cause
              based on that, which we would expect that would happen since
              probable cause was found originally. We’re just going to – I
              think [Tyrie’s] right. The word – I don’t want to use the word
              sloppy, but that’s the word that in my head, so I guess that’s what
              I’ll say. The charging information was less than on point, so we
              will try to tidy all that up and make specific allegations in each of
              the individual three counts.


      (Tr. Vol. II at 5-6.) The trial court granted Tyrie’s motion.


[7]   On December 6, 2018, the State charged Tyrie with three counts of Level 4

      felony sexual misconduct with a minor, alleging he committed those crimes “on

      or about October, 2016,” “on or about November, 2016,” and “on or about

      December, 2016,” (App. Vol. II at 29-31), under cause number 26C01-1812-F4-

      1338 (“Cause 1338”). On the same day, the trial court held what should have

      been the final pre-trial hearing in Cause 220. At that hearing, the State and

      Tyrie informed the trial court of the new filing under Cause 1338. The State

      indicated it had not filed a probable cause affidavit in Cause 1338 and asked the

      trial court to set a probable cause hearing. Tyrie requested time to file

      “responsive documents” to the charging information under Cause 1338. (Tr.

      Vol. II at 14.) The trial court set a probable cause hearing for Cause 1338 for

      January 30, 2019.



      Court of Appeals of Indiana | Opinion 19A-CR-692 | March 12, 2020           Page 4 of 10
[8]    On December 19, 2018, Tyrie filed a motion to dismiss the counts under Cause

       1338. On January 30, 2019, the trial court did not hold a probable cause

       hearing. Instead it heard argument on Tyrie’s motion to dismiss. During that

       hearing, the trial court denied Tyrie’s motion to dismiss Cause 1338 and sua

       sponte dismissed Cause 220. Following the trial court’s decision, Tyrie

       indicated he needed to “think about . . . whether or not this may be something

       that we may want to consider as interlocutory.” (Id. at 23.)


[9]    On February 27, 2019, Tyrie filed a motion asking the trial court to certify its

       denial of his motion to dismiss in Cause 1338 for interlocutory appeal. The

       trial court certified the matter for interlocutory appeal, and we accepted

       jurisdiction on April 25, 2019.



                                  Discussion and Decision
[10]   “[W]e review a trial court’s denial of a motion to dismiss for an abuse of

       discretion. An abuse of discretion occurs where the decision is clearly against

       the logic and effect of the facts and circumstances or when the trial court has

       misinterpreted the law.” Haywood v. State, 875 N.E.2d 770, 772 (Ind. Ct. App.

       2007) (internal citations omitted). Tyrie argues that the trial court abused its

       discretion when it denied his motion to dismiss the charges in Cause 1338

       because the State should not have been permitted to refile charges against him.


[11]   Tyrie relies on our Indiana Supreme Court’s decision in Davenport v. State, 689

       N.E.2d 1226 (Ind. 1997), affirmed on reh’g 696 N.E.2d 870 (Ind. 1998). In


       Court of Appeals of Indiana | Opinion 19A-CR-692 | March 12, 2020         Page 5 of 10
       Davenport, the State charged Davenport with murder on July 14, 1994, in

       Marion Superior Court, Criminal Division 5. Id. at 1228-9. On February 2,

       1995, four days before Davenport’s jury trial was to commence, the State filed a

       motion to amend the charging information to add charges of felony murder,

       attempted robbery, and auto theft. Id. at 1229. The trial court denied the

       State’s motion.


[12]   On February 6, 1995, the State dismissed the murder charge against Davenport

       and refiled it, along with the three other charges of felony murder, attempted

       robbery and auto theft. The State then transferred the case to Marion Superior

       Court, Criminal Division 1. Id. Davenport filed a motion to dismiss the new

       charges, which the trial court denied. The case went to a jury trial, Davenport

       was convicted on all counts, and sentenced to an aggregate sentence of eighty-

       eight years. Id. at 1228.


[13]   Davenport appealed, arguing in part that the trial court erred when it denied his

       motion to dismiss because “it allowed the State to abuse its power to his

       prejudice.” Id. at 1229. The court set forth the law concerning the dismissal

       and refiling of charging information:


               Under the authority of Ind. Code § 35-34-1-13, the prosecuting
               attorney may move for the dismissal of the information at any
               time prior to sentencing. Ind. Code § 35-34-1-13(a) (1993). So
               long as the motion states a reason for the dismissal, the trial court
               must grant the motion. See Ind. Code § 35-34-1-13(a); Burdine v.
               State, 515 N.E.2d 1085, 1089 (Ind. 1987).



       Court of Appeals of Indiana | Opinion 19A-CR-692 | March 12, 2020           Page 6 of 10
        The dismissal of an information under Ind. Code § 35-34-1-13 is
        not necessarily a bar to refiling. See Joyner v. State, 678 N.E.2d
        386, 393 (Ind. 1997). Once an information has been dismissed
        by the State under Ind. Code § 35-34-1-13, the State may refile an
        information against the defendant, subject to certain restrictions.
        For example, Indiana courts have long held that the State may
        refile for the same offense so long as jeopardy has not already
        attached. See Joyner, 678 N.E.2d at 393; Willoughby v. State, 660
        N.E.2d 570, 577 (Ind. 1996); Burdine, 515 N.E.2d at 1089-90;
        Johnson v. State, 252 Ind. 79, 246 N.E.2d 181, 184 (1969); Winters
        v. State, 200 Ind. 48, 50-51, 160 N.E. 294, 294-95 (1928). Indiana
        courts have also long held that the State’s power to dismiss and
        refile may not be used to evade the defendant’s speedy trial
        rights. See Burdine, 515 N.E.2d at 1090; Maxey v. State, 265 Ind.
        244, 353 N.E.2d 457, 461 (1976); Dennis v. State, 412 N.E.2d 303,
        304 (Ind. Ct. App. 1980).


        The State may not refile if doing so will prejudice the substantial
        rights of the defendant. See Joyner, 678 N.E.2d at 394;
        Willoughby, 660 N.E.2d at 578; Dennis, 412 N.E.2d at 304.
        Speedy trial and jeopardy rights are two specific examples of
        substantial rights which cannot be prejudiced. While we have
        not specifically defined what a substantial right is in other
        contexts, it is relatively clear what situations do not necessarily
        prejudice a defendant’s substantial rights. For example, the State
        does not necessarily prejudice a defendant’s substantial rights if it
        dismisses the charge because it is not ready to prosecute and then
        refiles an information for the same offense. See Johnson, 246
        N.E.2d at 183-84; Dennis, 412 N.E.2d at 304-05. Also, the State
        does not necessarily prejudice a defendant’s substantial rights by
        dismissing an information in order to avoid an adverse
        evidentiary ruling and then refiling an information for the same
        offense. See Joyner, 678 N.E.2d at 392-94. Furthermore, the
        State does not necessarily prejudice a defendant’s substantial
        rights when, on the refiled information, it amends the original
        information but charges the same offense. See Willoughby, 660

Court of Appeals of Indiana | Opinion 19A-CR-692 | March 12, 2020           Page 7 of 10
        N.E.2d at 576-78; Maxey, 353 N.E.2d at 460-61. The defendant’s
        substantial rights are not prejudiced in these situations primarily
        because the defendant can receive a fair trial on the same facts
        and employ the same defense in the second trial as in the first. See
        Willoughby, 660 N.E.2d at 578; Maxey, 353 N.E.2d at 461; State v.
        Joyner, 482 N.E.2d 1377, 1379 (Ind. Ct. App. 1985). Public
        policy favors the prosecution of persons accused of criminal
        offenses when a fair trial is available. See Gregor v. State, 646
        N.E.2d 52, 54 (Ind. Ct. App. 1994).


Id. at 1229-30. Considering those factors, our Indiana Supreme Court held:


        In the present case, the State received an adverse ruling in the
        original trial court on its motion to amend the information. As a
        result, defendant had to defend against one count of murder. In
        response, the State dismissed the case and filed a second
        information which contained four counts: the original murder
        count plus the felony murder, attempted robbery, and auto theft
        counts. Then, for no apparent reason other than because the
        State knew that the court had already ruled that the State could
        not include those additional three counts in the information, the
        State moved for and was granted transfer to a different court. By
        doing so, the State not only crossed over the boundary of fair
        play but also prejudiced the substantial rights of the defendant.
        Because of a sleight of hand, the State was able to escape the
        ruling of the original court and pursue the case on the charges the
        State had sought to add belatedly. This is significantly different
        than what has been permitted in the past. Therefore, the trial
        court erred in denying defendant’s motion to dismiss the felony
        murder, attempted robbery, and auto theft charges. We reverse
        the convictions on those charges.


Id. at 1230. Davenport is distinguishable from the case at bar.




Court of Appeals of Indiana | Opinion 19A-CR-692 | March 12, 2020         Page 8 of 10
[14]   Here, the State was permitted on October 7, 2017, and February 20, 2018, to

       amend its charging information to expand the possible dates on which the

       single charged crime allegedly occurred. Then at the September 25, 2018,

       hearing on Tyrie’s motion to require the State to indicate the specific act with

       which he was charged, the State admitted the charging information was

       unclear, the prosecutor’s handling of the case had been “sloppy[,]” and the

       State intended to refile the case with three separate charges to “tidy” the record.

       (Tr. Vol. II at 5-6). On December 6, 2018, under a separate cause number, the

       State refiled the original charge and filed two additional charges of Level 4

       felony sexual misconduct with a minor. Both Cause 220 and Cause 1338 were

       filed in the same court with the same judge.


[15]   The procedural posture in the case at bar is different. Unlike the defendant in

       Davenport, Tyrie has not gone to trial. Because Tyrie has brought an

       interlocutory appeal, the trial court has not yet set a trial date, so the refiling of

       charges has not prejudiced Tyrie’s ability to defend himself against the original

       or additional charges. Additionally, the charges against Tyrie in Cause 1338

       involve the same alleged victim and roughly the same time frame. Based

       thereon, we conclude the trial court did not abuse its discretion when it denied

       Tyrie’s motion to dismiss the charges in Cause 1338. See Hollowell v. State, 773

       N.E.2d 326, 331 (Ind. Ct. App. 2002) (affirming denial of Hollowell’s motion to

       dismiss because State’s refiling and addition of charges was not prompted by an

       adverse ruling and Hollowell was “not forced to discard his prior preparation

       for trial and begin all over with different charges, strategies, and defenses”).


       Court of Appeals of Indiana | Opinion 19A-CR-692 | March 12, 2020            Page 9 of 10
                                                Conclusion
[16]   The trial court did not abuse its discretion when it denied Tyrie’s motion to

       dismiss the charges under Cause 1338. Accordingly, we affirm and remand.


[17]   Affirmed and remanded.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-692 | March 12, 2020      Page 10 of 10
