                                                                               FILED
                                                                           Apr 30 2019, 9:32 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Andrew Bernlohr                                             Curtis T. Hill, Jr.
      Indianapolis, Indiana                                       Attorney General of Indiana

                                                                  Monika Prekopa Talbot
                                                                  Supervising Deputy Attorney
                                                                  General
                                                                  Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Levern Nicole Howard,                                       April 30, 2019
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  18A-CR-1830
              v.                                                  Appeal from the Marion Superior
                                                                  Court
      State of Indiana,                                           The Honorable Alicia A. Gooden,
      Appellee-Plaintiff.                                         Judge
                                                                  Trial Court Cause No.
                                                                  49G21-1609-F2-38048



      Najam, Judge.


                                         Statement of the Case
[1]   Under Indiana Code Section 35-34-1-5(b)(2) (2018), a trial court may permit the

      State to amend a charging information in matters of substance “at any

      time . . . before the commencement of trial[] if the amendment does not
      Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019                           Page 1 of 24
      prejudice the substantial rights of the defendant.” Here, two business days

      before the commencement of Levern Howard’s trial on thirteen counts relating

      to dealing in and possession of illicit substances, the State moved to add four

      new counts of neglect of a dependent based on the manner in which Howard

      had stored firearms at her residence. Over Howard’s objection at the beginning

      of her trial, the court permitted the State to amend the information and to

      immediately present its evidence on all counts. The court informed Howard

      that she could recall the State’s witnesses for cross-examination on the four new

      counts on the second day of her trial, which had been set for eleven calendar

      days after the first day.


[2]   We hold that the trial court abused its discretion when it permitted the State to

      amend the information without giving Howard a reasonable opportunity to

      prepare for and defend against the new counts. Accordingly, we reverse her

      convictions on those counts. As to Howard’s additional argument on appeal

      that the trial court abused its discretion when it admitted into evidence certain

      photographs that the State had failed to produce to her during discovery, we

      hold that any error in the court’s admission of those photographs was harmless

      as they were merely cumulative of other evidence. Thus, we affirm in part,

      reverse in part, and remand with instructions.


                                   Facts and Procedural History
[3]   In September of 2016, Indianapolis Metropolitan Police Department (“IMPD”)

      officers obtained a search warrant for 1208 King Avenue in Indianapolis. As

      officers were preparing to execute that warrant on September 23, they observed
      Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019       Page 2 of 24
      Howard’s husband leave the house in a vehicle with a child in the front

      passenger seat. Officers attempted to initiate a traffic stop of that vehicle shortly

      thereafter, but Howard’s husband drove away at a high rate of speed, and

      officers chose not to pursue so as to not further endanger the child.


[4]   Shortly after Howard’s husband had sped away, officers at the residence

      observed Howard hurriedly exit the front door while talking on a phone.

      Howard placed some items in the trunk of a vehicle, entered the vehicle, and

      drove away from the residence. The officers initiated a traffic stop of Howard’s

      vehicle and asked her to exit the vehicle several times. Howard refused to exit

      the vehicle. Officers then pulled her out of the vehicle. Howard forcefully tried

      to pull away from the officers and refused to let go of a purse she was holding.


[5]   Once officers subdued Howard, they searched her purse and vehicle. In her

      purse, the officers discovered heroin, cocaine, and $3,440 in cash, mostly in

      fives, tens, and twenties. In the trunk of the car, they discovered a digital scale,

      a bag of “green leafy vegetation,” 1 two loaded handguns, and a loaded rifle. Tr.

      Vol. II at 55.


[6]   Officers then executed the search warrant for the residence. There, they found

      three unattended children between the ages of five and nine in the family room

      on the first floor of the home. From that room, the officers observed in plain

      view green plastic baggies containing a synthetic cannabinoid, which appeared




      1
          The actual identity of this substance was never clearly established at trial. See Tr. Vol. II at 58, 213.

      Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019                                      Page 3 of 24
      to be packaged for individual sale. Next to the baggies was a digital scale. In

      the upstairs master bedroom, officers found a baggie of cocaine in a closet along

      with multiple large trash bags of synthetic cannabinoid.


[7]   Officers seized five firearms from the residence while executing the warrant. In

      particular, officers seized a loaded handgun from between the mattress and box

      spring of a king-sized bed in the upstairs master bedroom; a loaded handgun

      that was inside a red plastic bag and behind the headboard of the bed in the

      master bedroom; an unloaded handgun and an unloaded rifle that were on top

      of a kitchen cabinet; and a handgun 2 that was on top of a different kitchen

      cabinet. During the searches of Howard’s car and house, officers photographed

      all seized items near the locations the officers had found them prior to their

      seizure.


[8]   On September 27, the State charged Howard with the following thirteen counts 3

      (“the original counts”):


            1.   dealing in cocaine, as a Level 2 felony;
            2.   possession of cocaine, as a Level 4 felony;
            3.   dealing in a narcotic drug (heroin), as a Level 3 felony;
            4.   possession of a narcotic drug (heroin), as a Level 5 felony;
            5.   neglect of a dependent (Child 1 4), as a Level 5 felony;
            6.   neglect of a dependent (Child 2), as a Level 5 felony;



      2
          It is not clear if this handgun was found loaded or unloaded. See id. at 102.
      3
       The State’s original and amended charging informations used Roman numerals to enumerate the charges.
      For ease of readability, we use Arabic numerals to refer to the same-numbered charges.
      4
          The children named in Counts 5 and 6 share the same initials, as do the children named in Counts 7 and 8.

      Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019                               Page 4 of 24
            7. neglect of a dependent (Child 3), as a Level 5 felony;
            8. neglect of a dependent (Child 4 5), as a Level 5 felony;
            9. maintaining a common nuisance, as a Level 6 felony;
            10. dealing in a synthetic drug lookalike substance, as a Level 6 felony;
            11. possession of a synthetic drug lookalike substance, as a Class A
                misdemeanor;
            12. carrying a handgun without a license, as a Class A misdemeanor; and
            13. resisting law enforcement, as a Class A misdemeanor.

      Counts 1 through 4 each alleged that, in the commission of those offenses,

      Howard “was in possession of a firearm.” Appellant’s App. Vol. II at 27-28.

      And Counts 5 through 8 were premised on Howard “dealing out of the house,”

      Tr. Vol. II at 215, and thus having “left [illicit substances] where [they] could be

      accessed by” the child specified in each count, Appellant’s App. Vol. II at 28-

      29.


[9]   On Wednesday, May 2, 2018, more than nineteen months after it had filed the

      original counts, more than sixteen months after the omnibus date, 6 and just two

      business days before the commencement of Howard’s bench trial, the State

      moved to amend the charging information to allege the following four new

      counts (“the amended counts”):


            14. neglect of a dependent (Child 1), as a Level 6 felony;
            15. neglect of a dependent (Child 2), as a Level 6 felony;
            16. neglect of a dependent (Child 3), as a Level 6 felony; and
            17. neglect of a dependent (Child 4), as a Level 6 felony.



      5
        At closing argument, the State identified this child as the child in the vehicle with Howard’s husband. Id.
      at 215.
      6
          The trial court had set the omnibus date for November 28, 2016.

      Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019                                Page 5 of 24
       Each of the amended counts was premised on Howard having allegedly

       “endangered the dependent’s life or health” by having “left firearms unsecured

       that could be accessed by” the child named in each count. Id. at 113. The next

       day, the trial court took the State’s motion to amend under advisement and

       informed the parties that it would hear argument on the State’s motion at the

       commencement of Howard’s trial.


[10]   At the commencement of Howard’s trial on Monday, May 7, the court asked

       the State to support its motion to amend. The State responded that the

       amended counts “do[] not add any new evidence” or “any new witnesses[;] the

       guns are in the [probable cause affidavit and] they’ve been known since the

       beginning.” Tr. Vol. II at 4. Based on that, the State asserted that Howard

       would not be “prejudice[d] in anyway” by the amendment. Id.


[11]   Howard responded that the “theory” of the amended counts was “completely

       different” from the original counts and that having just “two business days

       before a court trial doesn’t give [the] defense ample time to prepare.” Id. at 5.

       Howard added:


               the probable cause affidavit says . . . that several firearms were
               located at the scene . . . and were recovered. That doesn’t tell us
               anything—where they [were] recovered, whe[ther] they . . . were
               improperly stored . . . , and that hardly puts us on notice that
               there’s a neglect charge especially under the fact that[,] as
               opposed to drugs[,] firearms in the home . . . are legal.


       Id. at 5-6.


       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019        Page 6 of 24
[12]   The trial court granted the State’s motion to amend. In granting the motion,

       the court informed Howard that, “to be courteous” to her, it would “bifurcate”

       the proceedings. Id. at 13-14. In particular, the court stated that it would allow

       the State to present its evidence in support of both the original counts and the

       amended counts immediately and that it would allow Howard to recall and

       cross-examine the State’s witnesses on the amended counts on the second day

       of trial, which the court had scheduled to begin on May 18, eleven calendar

       days after the first day of trial. 7 Id. at 13-14, 203-05. The court had previously

       determined that a second day of trial would be necessary anyway due to the

       unavailability of a forensic expert for the State.


[13]   Howard objected to the trial court’s proposed procedure as “not sufficient to

       allow a fair trial.” Id. at 14. In particular, she stated:


                it’s not fair for [the State] to put on [its] case and then make me
                come back weeks later after the [evidence] has been set in the
                court’s mind and [then] do my cross examination. So, that
                whole issue . . . about the guns ha[s] to be separated out because
                you cannot . . . unbuckle the possession of guns, the location of
                the guns from the issue of the new charge[s] . . . .


       Id. at 13. The trial court overruled Howard’s objection.




       7
          On appeal, the State parrots the trial court’s use of the term “bifurcate” and refers to the two different days
       of trial as two different “phases” of trial. Appellee’s Br. at 11-12. We reject those characterizations. The
       trial court did not hold one distinct fact-finding phase of trial followed by a separate and distinct fact-finding
       phase, such as when a jury finds a defendant guilty of an offense and the court, thereafter, finds the defendant
       to be a habitual offender. Rather, the court here simply held one trial over two days.

       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019                                   Page 7 of 24
[14]   During the ensuing two-day trial, the State substantially relied on the testimony

       of the various IMPD officers involved in the search of Howard’s vehicle and

       residence and the seizure of the evidence from those locations. The State’s

       “physical” evidence consisted almost exclusively of photographs of the illicit

       substances and firearms taken at the two scenes. Howard objected to the State’s

       admission of some of those photographs on the ground that the State had not

       produced them during discovery, and at the start of the second day of trial she

       also renewed her objection to the amended counts. The court overruled those

       objections.


[15]   Howard’s apparent defense strategy at trial was to hold the State to its burden

       of proof, especially through cross-examination of the State’s witnesses. As to

       the amended counts, on the second day of trial Howard cross-examined

       IMPD’s lead investigator 8 as follows:


                 Q       So you found some firearms in the kitchen . . . ?


                 A       Yes.


                 Q     Okay. And you found a firearm . . . in an adult’s
                 bedroom?


                 A       I believe so, yes.




       8
           Howard did not cross-examine any other witnesses on the amended counts.

       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019            Page 8 of 24
        Q    And one firearm was in a plastic bag hidden behind a
        headboard of the king size bed?


        A        That’s possible. I don’t recall that one, but, yes.


        Q     And the other firearm you found inside the home was
        underneath the mattress of the king size bed?


        A        I believe there was one found there as well.


        Q     So you didn’t find any guns that were sitting out in the
        open, correct?


        A     I don’t recall. I don’t recall where each firearm . . . [was]
        located, sir.


        Q     You didn’t find any firearms where those children were
        located, right?


        A        I don’t recall finding one in their immediate vicinity, no.


        Q     So as best to your recollection there w[ere] no firearms
        within the reach of those children?


        A        To the best of my recollection, no.


        Q     There were no firearms around open, anywhere in the
        house, to the best of your recollection?


        A        . . . I don’t recall where each firearm was located, sir . . . .


        Q        And you [have] served other search warrants?

Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019                  Page 9 of 24
        A        Yes.


        Q        And you’ve gone into other homes and located firearms?


        A        Yes.


        Q      And is that unusual . . . to find . . . a firearm out in the
        open . . . ?


        A        No.


        Q        That’s not unusual, right?


        A        No, it’s not.


                                                  ***


        Q      There is no requirement . . . to keep [a] gun in a gun safe,
        right?


        A        No.


        Q     And you have a constitutional right to self-defense,
        including the right to have a weapon in your home unless you’re
        excluded by law, right?


        A        Yes.


        Q      Okay. And you’re also allowed, as a constitutional right,
        to defend yourself, to have ready access to a weapon, right?


        A        Yes.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019            Page 10 of 24
       Id. at 207-11.


[16]   Following the bench trial, the court found Howard guilty on all counts except

       Count 3. The court then entered judgment of conviction against Howard on all

       counts except Count 2 and Count 11. The court sentenced Howard to an

       aggregate term of twenty years, with twelve years executed and eight years

       suspended. This appeal ensued.


                                       Discussion and Decision
                      Issue One: Motion to Amend the Charging Information

[17]   Howard first appeals the trial court’s decision to permit the State to amend the

       charging information. We generally review the trial court’s decision on

       whether the permit an amendment to a charging information for an abuse of

       discretion. Ramon v. State, 888 N.E.2d 244, 252 (Ind. Ct. App. 2008); see also

       State v. Thakar, 82 N.E.3d 257, 259 (Ind. 2017) (reviewing the trial court’s order

       to dismiss an information for an abuse of discretion). An abuse of discretion

       occurs when the trial court’s judgment is “clearly against the logic and effect of

       the facts and circumstances before it or is contrary to law.” Waterfield v.

       Waterfield, 61 N.E.3d 314, 323 (Ind. Ct. App. 2016), trans. denied. But, insofar

       as Howard’s argument on appeal is that the amendment to the charging

       information violated her constitutional rights to due process, that argument

       presents a question of law that we review de novo. E.g., Thomas v. State, 81

       N.E.3d 621, 624 (Ind. 2017).




       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019       Page 11 of 24
[18]   Under Indiana Code Section 35-34-1-5(b)(1), the default timeframe for the State

       to seek to amend a charging information in a matter of substance is up to

       “thirty (30) days . . . before the omnibus date” 9 if “the defendant is charged with

       a felony.” The State properly does not suggest on appeal that the amended

       counts here were anything other than amendments of substance. See, e.g., Mays

       v. State, ___ N.E.3d ___, No. 18A-PC-2071, 2019 WL 1217757, at *7 (Ind. Ct.

       App. Mar. 15, 2019) (stating that adding “an entirely new charge to the

       charging information . . . is patently [an amendment] of substance”), not yet

       certified. While the original neglect counts and the amended neglect counts

       were derived from the same statute, that does not mean that the amended

       counts were merely amendments in form to the original counts. 10 Rather, the

       amended counts added four wholly new offenses based on facts and evidence

       other than that underlying the original counts.


[19]   In any event, as the State’s motion to amend the information here was nowhere

       close to the omnibus date, the State moved to amend the information not under

       Indiana Code Section 35-34-1-5(b)(1) but instead under Indiana Code Section

       35-34-1-5(b)(2). Under that provision, the trial court may permit the State,

       following the State’s written notice to the defendant, to make a late amendment


       9
         For felony criminal cases with no speedy-trial issues, the trial court, at the initial hearing, must set an
       “omnibus date” that is “no earlier than forty-five (45) days and no later than seventy-five (75) days after the
       completion of the initial hearing,” unless the parties agree to a different date. I.C. § 35-36-8-1(a). “The
       purpose of the omnibus date is to establish a point in time from which various deadlines . . . are established.”
       I.C. § 35-36-8-1(b). “Once the omnibus date is set,” it generally “remains the omnibus date . . . until final
       disposition . . . .” I.C. § 35-36-8-1(d).
       10
         Indeed, had the State thought this an even viable argument in the trial court, it would have moved to
       amend the information under Indiana Code Section 35-34-1-5(c), not Indiana Code Section 35-34-1-5(b).

       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019                                Page 12 of 24
       to an information in a matter of substance “at any time . . . before the

       commencement of trial[] if the amendment does not prejudice the substantial

       rights of the defendant. . . .” I.C. § 35-34-1-5(b)(2).


[20]   As the Indiana Supreme Court has explained:


                A defendant’s substantial rights include a right to sufficient notice
                and an opportunity to be heard regarding the charge; and, if the
                amendment does not affect any particular defense or change the
                positions of either of the parties, it does not violate these rights.
                Ultimately, the question is whether the defendant had a reasonable
                opportunity to prepare for and defend against the charges.


       Erkins v. State, 13 N.E.3d 400, 405-06 (Ind. 2014) (emphasis added; citations

       and quotation marks omitted). The right to a reasonable opportunity to prepare

       for and defend against the charges is a hallmark of “[t]he right of an

       accused . . . to due process.” Saylor v. State, 559 N.E.2d 332, 335 (Ind. Ct. App.

       1990) (citing Chambers v. Mississippi, 410 U.S. 284, 295 (1973)), trans. denied.

       And that right implicates a criminal defendant’s Sixth Amendment right to

       effective assistance of counsel—a counsel who is not provided with sufficient

       time to give “effective aid in the preparation and trial of the case” is

       constructively no counsel at all. 11 Powell v. Alabama, 287 U.S. 45, 71-72 (1932).


[21]   That said, there is no fixed “minimum period of time which must be allowed by

       the court in every case” for the preparation of the defense. Lloyd v. State, 241



       11
          The actual or constructive denial of counsel is structural error. See Leach v. State, 699 N.E.2d 641, 643 n.2
       (Ind. 1998) (citing Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)).

       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019                                 Page 13 of 24
       Ind. 192, 199, 170 N.E.2d 904, 907 (1960); see also Avery v. Alabama, 308 U.S.

       444, 446 (1940). Rather, “[t]he adequacy of time allowed for preparation must

       be determined on a case by case basis[] considering the totality of the

       circumstances, including the complexity of the issues, the necessity for pre-trial

       motions, the necessity to interview witnesses[,] and whether the defendant is

       available to assist in the preparation of [the] defense.” Jones v. State, 175 Ind.

       App. 343, 346, 371 N.E.2d 1314, 1316 (1978). “The spirit of these

       constitutional provisions requires that an accused must have something more

       than a perfunctory representation.” Wilson v. State, 222 Ind. 63, 80, 51 N.E.2d

       848, 855 (1943).


[22]   Recent examples from our Court provide representative circumstances in which

       we have affirmed pretrial, but post-omnibus-date, amendments of substance to

       an information. In particular, we have held such amendments permissible in

       the following contexts:


           • where the State’s notice of the proposed amendment was given to the
             defendant nearly four months prior to trial and the anticipated defense
             was an equally available alibi defense, Mays, ___ N.E.3d ___, 2019 WL
             1217757, at *8-9;
           • where the amendment to the information was “two months before the
             commencement of the trial and three months before the defense
             presented its case in chief”; the State added to a count of battery a count
             of burglary and a count of intimidation, which additional counts arose
             from the same “time [and] place” as the original count; and the defense
             strategy was to argue that the victim, which was the same for all counts,
             had invited the defendant into her residence and sustained her injuries
             when she tripped over a dog, which argument “was equally applicable”



       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019         Page 14 of 24
             to the original and the amended counts, Barnett v. State, 83 N.E.3d 93,
             102 (Ind. Ct. App. 2017), trans. denied;
           • where the amendment elevated an aggravated battery offense to murder
             following the victim’s death, the trial did not begin until more than two
             months after the amendment, and the defendant’s defense that “he was
             not at the scene and did not participate in [the] beating” would “not
             change,” Shaw v. State, 82 N.E.3d 886, 897 (Ind. Ct. App. 2017), trans.
             denied;
           • where the State filed its motion to amend more than eight months before
             the beginning of the trial, which we recognized as “a significant amount
             of time to prepare a defense,” Mannix v. State, 54 N.E.3d 1002, 1010 (Ind.
             Ct. App. 2016); and
           • where the State moved to amend the charging information one week
             before trial to correct an error in the date of an alleged molestation
             offense, which “did not deprive [the defendant] of” his defense of
             challenging the victim’s recollection of the alleged event, Gaby v. State,
             949 N.E.2d 870, 875 (Ind. Ct. App. 2011).

[23]   Nothing about the instant case is analogous to cases in which we have affirmed

       the trial court’s decision to allow a post-omnibus-date amendment of substance

       to an information. Counting from the day of the State’s notice to Howard’s

       first opportunity to cross-examine the State’s witnesses on the amended counts,

       the totality of time Howard had to prepare for and then execute her defense on

       the amended counts was a total of sixteen calendar days. That is well short of

       the more common scenario of two or more months; it certainly is not long

       enough to presume, as we did in Mannix and other cases, that the defendant had

       ample time to prepare her defense to the amended counts. And the sixteen days

       here are one day more than half the time Indiana Code Section 35-34-1-5(b)(1)

       requires the State to provide to the defendant prior to the omnibus date, which

       of course often results in far more time before trial.

       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019     Page 15 of 24
[24]   Further, while the amended counts arose out of the same time and place as the

       original counts, we are not persuaded that the amended counts were premised

       on the same underlying facts as the original counts. Rather, the original counts

       nearly all related to Howard’s alleged dealing in and possession of illicit

       substances, 12 and the firearms were only relevant to the original counts as either

       enhancing facts (under Counts 1 through 4) or to her alleged carrying without a

       license (under Count 12). At no point prior to the State’s motion to amend the

       information did Howard have any reason to think that the State would seek to

       use the firearms in any other way or in support of any other possible offenses.

       That is, nothing about the facts underlying the original counts would have

       impelled a reasonable defense attorney to investigate further the facts on which

       the amended counts were premised. Indeed, the explicitly limited use of the

       firearms in the original counts may well have led Howard to conclude that the

       State had decided not to pursue any other firearm-related offenses and, thus,

       that there was no further preparation or defense to be had for any such

       hypothetical offenses.


[25]   Significantly, Howard’s apparent defense strategy was not, as in some cases

       where we have affirmed late amendments to an information, a defense that had

       its own factual basis, such as an alibi defense or a claim of self-defense. Neither

       was her defense strategy to make a specific challenge to a specific witness’s




       12
          Indeed, and again, the original neglect counts were explicitly premised on Howard having “left [illicit
       substances] where [they] could be accessed by” the child specified in each count. Appellant’s App. Vol. II at
       28-29.

       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019                              Page 16 of 24
       testimony, such as the victim’s recollection, which defense would have been

       equally applicable to both the original counts and the amended counts. Rather,

       her apparent defense strategy was to hold the State to its burden of proof,

       especially through cross-examination of the State’s witnesses.


[26]   As the amended counts were not based on the same underlying facts as the

       original counts, the late amendment substantially affected her defense in that

       she had no reasonable time to engage in pretrial investigation of the amended

       counts in order to effectively prepare for cross-examining the State’s witnesses

       on them. We recognize that, on the second day of her trial, Howard asked

       IMPD’s lead investigator the basic and obvious questions of whether the

       firearms were “within the reach of th[e] children” during the search and

       whether the investigator knew of a requirement to keep lawfully held firearms

       in a gun safe. Tr. Vol. II at 208. But that limited inquiry alone does not

       demonstrate that Howard received all the representation and process that she

       was due. See Wilson, 51 N.E.2d at 855.


[27]   Indeed, as Howard argued to the trial court, the timing of the State’s motion to

       amend prevented her from investigating prior to trial any number of possible

       lines of inquiry that might have been relevant to her defense against the

       amended counts, such as: whether the children knew of any firearms in the

       residence; whether the children were ever in the master bedroom, where the

       only known loaded firearms were found; whether the children were capable of

       lifting a king-sized mattress to access one of those loaded firearms or either

       moving or getting behind the headboard of that bed to access the other; whether

       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019       Page 17 of 24
       any of the children had a propensity or history of climbing on the kitchen

       cabinets, where the other firearms were found; whether the children had any

       training or instruction in the safe handling of firearms; whether the children

       knew how to load an unloaded firearm; whether the firearms had any safety

       features and whether those features were engaged at the time of their seizure;

       whether the firearms inside the house were even operable; or where the firearms

       inside the house were located at the time Child 4 had left the residence.

       Howard also had no reasonable opportunity to investigate whether state or

       federal legal authority might support her opposition to the amended counts.


[28]   Nonetheless, both the State and the dissent contend that Howard should have

       seen the amended counts coming because she knew from the beginning that the

       firearms were in the residence with the children. We reject that argument. 13

       The mere fact that firearms were present in her residence did not put Howard

       on permanent notice of any possible firearms-related offenses the State might

       have charged. To the contrary, again, the State’s explicitly limited

       identification of the firearms to unrelated offenses under the original counts

       likely dispelled any concern Howard would have had of disparate, other

       charges that the State might have brought based on the firearms. And insofar as

       the State argues on appeal that sixteen (or fewer) days was enough by itself to

       presume that Howard would have sufficient time to prepare her defense to the




       13
          The State’s argument that Howard should have seen the amended counts coming cuts both ways—the
       State too had the probable cause affidavit from the beginning of the case yet waited until two business days
       before the commencement of Howard’s trial to include the amended counts in the information.

       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019                               Page 18 of 24
       amended counts, as explained above that argument is not at all consistent with

       our case law.


[29]   Finally, although not required of the State under Indiana Code Section 35-34-1-

       5(b)(2), we nonetheless note that the State had no good cause for having waited

       until nearly the last minute to move to amend the information. There were no

       ongoing plea negotiations; there was no pending investigation; and there was

       no newly discovered evidence. Indiana Code Section 35-34-1-5(b) contemplates

       that amendments to an information will be thirty days prior to the omnibus

       date, but the statute permits late deviations when they do not prejudice the

       substantial rights of the defendant. Such late deviations are the exception, not

       the rule. And here, again, the information had been pending for sixteen months

       after the omnibus date before the State moved to amend the information two

       business days before the start of Howard’s trial. The State’s inability to identify

       a good cause for its late amendment request reeks of surprise and

       gamesmanship, which tactics our Supreme Court has emphasized “no longer

       have any place in our system of justice.” Wright v. Miller, 989 N.E.2d 324, 327

       (Ind. 2013) (quoting Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012)).


[30]   The default deadline that amendments to an information be made no later than

       thirty days prior to the omnibus date is there for a reason, which is illustrated by

       this case: to assure that a defendant’s rights to a fair trial are not impaired. The

       defendant’s rights include adequate time to prepare a defense. An exception to

       the statutory deadline is permissible only where the State, which bears the

       burden of proof on its motion to amend, can demonstrate that a late

       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019        Page 19 of 24
       amendment does not compromise the defendant’s rights. Here, however, the

       facts stand in stark contrast to those cases in which we have allowed the State to

       proceed with an amendment of substance to a charging information after the

       statutory deadline. The State’s motion to amend sought to add counts that

       were factually distinct from the original counts and gave Howard only sixteen

       calendar days to fully investigate and to prepare her defense against the

       amended counts. And Howard’s apparent defense strategy of holding the State

       to its burden of proof, especially through cross-examination, was substantially

       impaired by the timing of the State’s amendment. We hold that the trial court

       abused its discretion when it permitted the State to amend the charging

       information, and we reverse Howard’s convictions under the amended counts.


                                   Issue Two: Discovery of Photographs

[31]   Howard also contends on appeal that her convictions on the original counts

       must be reversed because the trial court abused its discretion when it admitted

       certain photographs into evidence that the State had failed to produce to

       Howard during discovery. We review the trial court’s decision to admit or

       exclude evidence for an abuse of discretion. Hall v. State, 36 N.E.3d 459, 466

       (Ind. 2015). However, the erroneous admission of evidence that is merely

       cumulative of other evidence is harmless error. Pierce v. State, 29 N.E.3d 1258,

       1268 (Ind. 2015).


[32]   As an initial matter, Howard frames this issue around Brady v. Maryland, 373

       U.S. 83, 87 (1963), in which the Supreme Court of the United States held that

       “the suppression by the prosecution of evidence favorable to the accused upon
       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019      Page 20 of 24
       request violates due process where the evidence is material either to guilt or to

       punishment . . . .” (Emphasis added.) Thus, in order to prevail on a Brady

       claim, the defendant must establish, among other things, that the evidence “was

       favorable to the defense.” Stephenson v. State, 864 N.E.2d 1022, 1056-57 (Ind.

       2007). The photographs Howard complains of were not favorable to her.

       Thus, there is no Brady issue in this appeal.


[33]   In any event, the complained-of photographs were merely cumulative of other

       evidence presented by the State. Indeed, the State established its case through

       the testimony of several officers and their personal observations at the scenes of

       Howard’s vehicle and the house. The photographs were merely cumulative of

       those personal observations. Accordingly, any error in their admission was

       harmless, and we affirm Howard’s convictions on the original counts.


                                                     Conclusion

[34]   In sum, while we affirm Howard’s convictions on the original counts, we hold

       that the trial court abused its discretion when it permitted the State to add

       entirely new and unrelated offenses to the information at the commencement of

       Howard’s trial. Thus, we reverse her convictions on the amended counts,

       Counts 14 through 17, and we remand with instructions for the trial court to

       vacate those convictions and the corresponding sentences. 14




       14
          As Howard’s sentences on the amended counts were ordered to run concurrently with her other sentences,
       her aggregate sentence is not affected by our disposition.

       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019                          Page 21 of 24
[35]   Affirmed in part, reversed in part, and remanded with instructions.


       Pyle, J., concurs.


       Altice, J., concurs in part and dissents in part with separate opinion.




       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019        Page 22 of 24
                                                    IN THE
           COURT OF APPEALS OF INDIANA

       Levern Nicole Howard,                                       Court of Appeals Case No.
                                                                   18A-CR-1830
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Altice, Judge, concurring in part and dissenting in part.


[36]   I agree with the majority that admission of the photographs was cumulative of

       other evidence, and therefore harmless. I respectfully dissent, however, from

       the majority’s determination that the trial court abused its discretion in

       permitting the State to amend the charging information. The amended

       charging information added four new charges of neglect of a dependent that

       mirrored the four original neglect charges except for the fact that the new

       charges alleged the presence and accessibility of unsecured firearms, as opposed

       to illicit drugs. Given the other charges Howard faced—especially the fact that

       the presence of firearms was used to enhance certain offenses—she cannot now

       claim she was surprised by the new charges or the evidence giving rise thereto.

       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019                      Page 23 of 24
[37]   Moreover, as the majority notes, Howard’s “apparent defense strategy was to

       hold the State to its burden of proof, especially through cross-examination of

       the State’s witnesses.” Id. at 17. Under these circumstances, I think sixteen

       days was more than sufficient time for counsel to prepare a defense to the new

       charges. Indeed, Howard’s defense to the separate groups of neglect charges

       was essentially the same. There was no new evidence required and no need for

       additional witnesses to support or defend against the new charges. To that end,

       I am not persuaded that the late amendment substantially affected Howard’s

       defense. See Gaby v. State, 949 N.E.2d 870, 875 (Ind. Ct. App. 2011) (holding

       that trial court did not abuse its discretion in permitting the State to amend the

       charging information one week before trial to correct an error in the date of an

       alleged molestation offense because such “did not deprive [the] defendant of”

       his defense of challenging the victim’s recollection of the alleged offense). I

       would affirm Howard’s convictions in their entirety.




       Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019       Page 24 of 24
