MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    FILED
court except for the purpose of establishing                             Dec 07 2017, 9:03 am
the defense of res judicata, collateral                                      CLERK
estoppel, or the law of the case.                                        Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                      Curtis T. Hill, Jr.
Kokomo, Indiana                                         Attorney General of Indiana

                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher Davis,                                      December 7, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A02-1704-CR-903
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable William C.
Appellee-Plaintiff                                      Menges, Judge
                                                        Trial Court Cause No.
                                                        34D01-1605-F2-485



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-903 | December 7, 2017           Page 1 of 6
[1]   Christopher Davis appeals his conviction of Level 5 felony possession of

      cocaine. 1 He presents two issues on appeal, one of which we find dispositive:

      whether the trial court abused its discretion when it denied Davis’ motion to

      continue. 2 We reverse and remand.



                                Facts and Procedural History
[2]   On May 25, 2016, the police conducted an investigation at Davis’ house. On

      May 26, 2016, the police arrested Davis in a different location. During a search

      incident to his arrest, police found cocaine in Davis’ pocket. On May 27, 2016,

      based on the evidence found during the May 25 investigation at Davis’ house,

      the State charged Davis with Level 2 felony dealing in cocaine, 3 Level 4 felony

      unlawful possession of a firearm by a serious violent offender, 4 and Level 3

      felony possession of cocaine. 5


[3]   On January 26, 2017, the day before Davis’ jury trial, the State filed a fourth

      count against Davis, Level 5 felony possession of cocaine (hereinafter, “Count




      1
          Ind. Code § 35-48-4-6(b) (2014).
      2
        Davis also argues the trial court abused its discretion when it admitted certain evidence. However, since we
      hold he is entitled to a new trial, we need not address those issues. See Miller v. State, 72 N.E.3d 502, 518
      (Ind. Ct. App. 2017) (holding the trial court judge must, during a retrial, “distanc[e] himself from the
      evidence already considered and consider[] the case entirely anew, as we believe must be done in a criminal
      case”), trans. granted, Court of Appeals opinion summarily affirmed, 77 N.E.3d 1196, 1197 (Ind. 2017).
      3
          Ind. Code § 35-48-4-1(e) (2014).
      4
          Ind. Code § 35-47-4-5(c) (2014).
      5
          Ind. Code § 35-48-4-6(d) (2014).


      Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-903 | December 7, 2017             Page 2 of 6
      Four”), based on the cocaine found in Davis’ pocket during the search incident

      to his arrest on May 26. However, the State indicated the wrong date and

      address on its original filing of Count Four, so one day later on January 27,

      2017, the day of Davis’ jury trial, the State amended that charge to reflect the

      correct date and location of the arrest. Davis filed a motion to dismiss Count

      Four, and the trial court denied that motion. Davis subsequently filed a motion

      to continue, motion to sever, and motion to bifurcate Count Four, which were

      also denied.


[4]   The jury trial proceeded as scheduled. The jury acquitted Davis of the original

      three charges, but found him guilty of Count Four.



                                Discussion and Decision
[5]   We review the trial court’s decision regarding a motion to continue under the

      abuse of discretion standard. Rowlett v. Vanderburgh Cty. Office of Family &

      Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied. “An abuse of

      discretion may be found in the denial of a motion for a continuance when the

      moving party has shown good cause for granting the motion.” Id. However,

      “no abuse of discretion will be found when the moving party has not

      demonstrated that he or she was prejudiced by the denial.” Id. Continuances

      to allow more time for preparation are generally disfavored in criminal cases.

      Risner v. State, 604 N.E.2d 13, 14 (Ind. Ct. App. 1992), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-903 | December 7, 2017   Page 3 of 6
[6]   Amendments to a charging information are governed by Indiana Code section

      35-34-1-5:


              Subsection [Ind. Code § 35-34-1-5](b) provides, in pertinent part,
              that “[t]he 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.” Subsection [Ind. Code § 35-34-1-5](c) provides that
              “[u]pon motion of the prosecuting attorney, the 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.”


      Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014), reh’g denied. Our Indiana

      Supreme Court set forth a test for determining whether an amendment to a

      charging information is one of form or substance:


              [A]n amendment is one of form, not substance, if both (a) a
              defense under the original information would be equally
              available after the amendment, and (b) the accused’s evidence
              would apply equally to the information in either form. And an
              amendment is one of substance only if it is essential to making a
              valid charge of the crime.


      Fajardo v. State, 859 N.E.2d 1201, 1207 (Ind. 2007), abrogated by statute on other

      grounds as stated in Shaw v. State, 82 N.E.3d 886, 895 (Ind. Ct. App. 2017).

      Whether an amendment to a charging information is one of substance or of

      form is a question of law, which we review de novo. Erkins, 13 N.E.3d at 405.




      Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-903 | December 7, 2017   Page 4 of 6
[7]   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 parties, it does not

      violate these rights.” Gomez v. State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009),

      trans. denied. “Ultimately, the question is whether the defendant had a

      reasonable opportunity to prepare for and defend against the charges.” Sides v.

      State, 693 N.E.2d 1310, 1313 (Ind. 1998), abrogated on other grounds by Fajardo,

      859 N.E.2d at 1206-7.


[8]   The State argues the amendment of Davis’ charging information was one of

      form because it “simply changed the date and location of the offense” and

      “certainly Defendant was well aware of the charges against him since he was

      present at the time the police arrested him, and found cocaine on his person.”

      (Br. of Appellee at 13) (internal citations to the record omitted). However, the

      State’s argument ignores the fact Count Four was filed the day before Davis’

      jury trial was to commence, over six months after his arrest occurred.


[9]   In addition, Count Four was based on cocaine seized from Davis as a result of a

      search incident to his arrest on the day after police searched Davis’ house. The

      arrest did not occur at Davis’ house, where the other charged offenses were

      alleged to have occurred. As Davis argues on appeal:


              [T]he facts relating to [Count Four] are dramatically different. . .
              . The facts around the arrest would be critical in determining if
              that warrantless arrest was legal or illegal, which would be
              critical to determining whether .3 gm of cocaine, not found


      Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-903 | December 7, 2017   Page 5 of 6
               during an initial pat down, but found only after a detailed search,
               could legally be admitted into evidence.


       (Br. of Appellant at 12.)


[10]   The addition of Count Four – based on facts occurring at a different location,

       on a different day, and under different circumstances than the original charges --

       one day before trial, did not give Davis sufficient notice of the charge against

       him such that he could formulate a defense. We therefore conclude the trial

       court abused its discretion when it denied Davis’ motion to continue based on

       the State’s late amendment to the charges against Davis. We reverse and

       remand for a new trial on Count Four. Contra Shaw, 82 N.E.3d at 897 (Shaw

       was not prejudiced by State’s addition of charge two weeks before trial because

       facts supporting new charge were the same as original charge and the trial court

       granted Shaw’s motion to continue which afforded an extra two months to

       prepare for trial).


[11]   Reversed and remanded for new trial.


       Barnes, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-903 | December 7, 2017   Page 6 of 6
