MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                May 14 2018, 10:54 am

court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Anthony C. Lawrence                                     Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Warren V. Pierce,                                       May 14, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        48A02-1708-CR-1807
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Angela Warner
Appellee-Plaintiff                                      Sims, Judge
                                                        Trial Court Cause Nos.
                                                        48C01-1605-FC-940
                                                        48C01-1509-FA-1536



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018                Page 1 of 8
[1]   Warren Pierce appeals his convictions for Class A Felony Child Molesting1 and

      Class C Felony Child Molesting,2 arguing that the trial court erred by allowing

      an amendment to the charging information. He also argues that his sentence is

      inappropriate in light of the nature of the offenses and his character. Finding

      no error and that his sentence is not inappropriate, we affirm.


                                                    Facts
[2]   Before 2013, K.L. and H.L. lived with their mother and Pierce, their stepfather.

      During this time, while K.L. was between six and eight years old, Pierce forced

      K.L. to perform oral sex on him numerous times. Pierce threatened to kill K.L.

      if she ever told anyone about these acts. Eventually, K.L. told her father and

      stepmother about Pierce’s actions, and they notified the police.


[3]   Also during this time, beginning when H.L. was three years old and lasting

      through December 2012, Pierce made H.L. put on his mother’s panties and

      touched H.L.’s penis and testicles on numerous occasions. Pierce would

      physically abuse H.L. when he refused to do as Pierce said. Both Pierce and

      the children’s mother told H.L. not to tell anyone about the abuse. After the

      children’s father obtained custody of the children, H.L. reported the sexual and

      physical abuse.




      1
          Ind. Code § 35-42-4-3(a)(1).
      2
          I.C. § 35-42-4-3(b).


      Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018   Page 2 of 8
[4]   On September 18, 2015, the State charged Pierce in Cause Number 48C01-

      1509-FA-1536 (Cause Number 1536) with Class A felony child molesting for

      offenses against K.L. On May 12, 2016, the State charged Pierce in Cause

      Number 48C01-1605-FC-940 (Cause Number 940) with Class C felony child

      molesting for offenses against H.L. On August 21, 2016, the State moved to

      join the two causes, and on September 26, 2016, the trial court granted the

      motion. On February 27, 2017, the trial court scheduled a jury trial for June 20,

      2017.


[5]   A jury trial began on June 20, 2017. On June 22, 2017, the State filed a request

      to amend the information for Cause Number 1536, seeking to extend the date

      range of the offense by one year, replacing the start date of 2012 with a start

      date of 2011. Pierce objected to the amendment because the request to amend

      was made during the trial. The trial court granted the motion that same day.

      Also on June 22, 2017, the jury found Pierce guilty as charged. On July 10,

      2017, the trial court sentenced Pierce to forty-five years for the Class A felony

      child molesting conviction and to seven years for the Class C felony conviction,

      to be served consecutively, for an aggregate sentence of fifty-two years. The

      trial court also found that Pierce is a sexually violent predator. Pierce now

      appeals.


                                   Discussion and Decision
[6]   Pierce makes two arguments on appeal: that the trial court erred by allowing

      the State to amend the charging information in Cause Number 1536 and that


      Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018   Page 3 of 8
      his sentence is inappropriate in light of the nature of the offenses and his

      character.


                                           I. Amendment
[7]   Pierce argues that the trial court erred by allowing the State to amend the

      charging information in Cause Number 1536. Specifically, he argues that,

      because the amendment was made during trial, he did not have a reasonable

      opportunity to investigate the prejudicial impact the amendment would have on

      his defense.


[8]   Indiana Code section 35-34-1-5 governs amendments to an information and

      distinguishes between amendments to form and substantive amendments. “The

      indictment or information may be amended in matters of substance . . . before

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

      substantial rights of the defendant.” I.C. § 35-34-1-5(b). The trial court “may,

      at any time before, during, or after the trial, permit an amendment to the

      indictment or information in respect to any defect, imperfection, or omission in

      form which does not prejudice the substantial rights of the defendant.” I.C. §

      35-34-1-5(c).


[9]   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.” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014)

      (quotation marks and citation omitted). “Ultimately, the question is whether

      Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018   Page 4 of 8
       the defendant had a reasonable opportunity to prepare for and defend against

       the charges.” Id. at 405-06 (quotation marks and citation omitted). An

       “amendment is one of form and not substance if a defense under the original

       information would be equally available after the amendment and the accused’s

       evidence would apply equally to the information in either form. Further, an

       amendment is of substance only if it is essential to making a valid charge of the

       crime.” Id. (citation omitted).


[10]   When the trial court granted the State’s motion to amend the information in

       Cause Number 1536 during trial, Pierce did not request a continuance.

       Initially, we note that a defendant’s failure to request a continuance following

       the granting of a late amendment to the charging information waives the issue

       for appeal. Gaby v. State, 949 N.E.2d 870, 874 (Ind. Ct. App. 2011). Moreover,

       Pierce only objected to the amendment on the grounds that it was untimely.

       Now, on appeal, he argues that the amendment prejudiced his substantial rights

       because it deprived him of the opportunity to investigate and present alibi

       evidence. When a defendant raises grounds for objection on appeal that are

       substantially different than those raised at trial, the issue is waived for appeal.

       Griffin v. State, 16 N.E.3d 997, 1005 (Ind. Ct. App. 2014). Therefore, Pierce’s

       argument is waived.


[11]   Waiver notwithstanding, the amendment to the information was of form, not

       substance, because it was not essential to making a valid charge of the crime.

       Time is not an element of the crime charged, see I.C. § 35-42-4-3(a)(1), and it is

       well established that time is not of the essence in a child molesting case. E.g.,

       Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018   Page 5 of 8
       Barber v. State, 870 N.E.2d 486, 492 (Ind. Ct. App. 2007). The amendment to

       the charging information extended the start time for the offense by one year,

       from May 2012 to May 2011, thereby conforming to K.L.’s testimony about

       when she was molested. See Bennett v. State, 5 N.E.3d 498, 514 (Ind. Ct. App.

       2014) (finding that amendment made at trial was one of form and not of

       substance when change in date of offense to conform to trial evidence was not

       essential to charge because time was not of the essence for the offense).


[12]   In addition, the amendment did not prejudice Pierce’s substantial rights because

       it did not affect any defense available to him. Although Pierce argues that he

       could have developed an alibi defense for the expanded date range, had an alibi

       defense been available, he would have been immediately aware of it and could

       have asked for a continuance to develop it. Moreover, Pierce argues that his

       alibi defense would have relied on the fact that the children were rarely at his

       home after their father obtained custody. But the children’s father obtained

       custody in January 2013, whereas the amendment modified the start date of the

       offense from 2012 to 2011. Pierce makes no argument on appeal that he had an

       alibi defense, or any other defense, for that earlier time period. In short, Pierce

       fails to demonstrate that the amendment affected his substantial rights, and his

       argument regarding the amendment to Cause Number 1536 is unavailing. The

       trial court did not err by allowing the State to amend the charging information.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018   Page 6 of 8
                                               II. Sentence
[13]   Pierce asserts that his sentence is inappropriate in light of the nature of the

       offenses and his character pursuant to Indiana Appellate Rule 7(B). In

       considering an argument under Rule 7(B), we must “conduct [this] review with

       substantial deference and give ‘due consideration’ to the trial court's decision—

       since the ‘principal role of [our] review is to attempt to leaven the outliers,’ and

       not to achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d

       1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.

       2013)) (internal citations omitted).


[14]   Pierce was convicted of Class A felony child molesting. For this conviction, he

       faced a sentence of twenty to fifty years, with an advisory term of thirty years.

       Ind. Code § 35-50-2-4(a). The trial court imposed a sentence of forty-five years.

       Pierce was also convicted of Class C felony child molesting. For this

       conviction, he faced a sentence of two to eight years, with an advisory term of

       four years. I.C. § 35-50-2-6(a). The trial court imposed a sentence of seven

       years. The trial court ordered the sentences to run consecutively for an

       aggregate term of fifty-two years. Had the trial court imposed the maximum

       sentence, Pierce would have received a sentence of fifty-eight years.


[15]   With respect to the nature of the offenses, Pierce took advantage of a position of

       trust when he sexually molested his two young stepchildren numerous times

       over several years. Pierce forced K.L. to perform oral sex on him numerous

       times, beginning when she was just six years old. Pierce touched H.L.’s


       Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018   Page 7 of 8
       genitals in a sexual manner numerous times, beginning when he was just three

       years old. When H.L. tried to refuse Pierce’s demands, Pierce physically

       abused him. Further, Pierce threatened the children to prevent them from

       telling anyone about the abuse.


[16]   With respect to Pierce’s character, we note that, although these convictions are

       his first felony convictions, he has a criminal history that includes

       misdemeanors for driving without a license in possession and resisting law

       enforcement. He was charged with other misdemeanors, including criminal

       mischief, disorderly conduct, and being a minor in possession, that were

       dismissed. Although Pierce points out that he has been gainfully employed

       despite being disabled, because many people are gainfully employed,

       employment does not necessarily reflect on his character. Pierce also argues

       that he suffered a troubled childhood, but he fails to show how that reflects on

       his character, justifies his actions, or negates the harm he caused his

       stepchildren. In short, Pierce fails to point to anything in his character that

       mitigates the egregious actions he took against his stepchildren.


[17]   Under these circumstances, we find that the sentence imposed by the trial court

       is not inappropriate in light of the nature of the offenses and Pierce’s character.


[18]   The judgment of the trial court is affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018   Page 8 of 8
