MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               Jun 14 2019, 9:18 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Rodney T. Sarkovics                                      Curtis T. Hill, Jr.
Carmel, Indiana                                          Attorney General of Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Steven Williams, Jr.,                            June 14, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1808
        v.                                               Appeal from the Hamilton Circuit
                                                         Court
State of Indiana,                                        The Honorable Paul A. Felix,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         29C01-1802-F3-768



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019                     Page 1 of 27
                                             Case Summary
[1]   Anthony Steven Williams, Jr., appeals from his convictions and sentences for

      criminal confinement, a Level 3 felony; battery causing moderate bodily injury

      and pointing a firearm, Level 6 felonies; battery with a deadly weapon, a Level

      5 felony; and dealing in marijuana and possession of a controlled substance,

      Class A misdemeanors. We affirm in part, reverse in part, and remand for

      entry of a revised sentencing order.


                                                    Issues
[2]   Williams raises six issues on appeal, which we restate as follows:


              I.      Whether sufficient evidence exists to support Williams’
                      conviction for criminal confinement.


              II.     Whether Williams’ convictions run afoul of double
                      jeopardy principles.


              III.    Whether the trial court erred in permitting the State to
                      amend the habitual offender information after the
                      commencement of trial.


              IV.     Whether the trial court improperly instructed jurors
                      regarding the habitual offender enhancement.


              V.      Whether the trial court’s treatment of Williams’ habitual
                      offender adjudication improperly resulted in a consecutive
                      sentence.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 2 of 27
                                                     Facts
[3]   The facts most favorable to the judgment are as follows: From January 28 to

      30, 2018, Eric Johnson stayed at the Fishers, Indiana, home of his long-time

      friend, Ashley Jensen (“Ashley”). Williams was Ashley’s live-in boyfriend. On

      January 29, Ashley and Johnson “got into a verbal altercation” during which

      Johnson called Ashley “[a] wh*** and a c***.” Tr. Vol. II pp. 140, 144.


[4]   On the evening of January 30, which was to be Johnson’s last night in town,

      Johnson and Ashley planned to go out for drinks and to play pool with Ashley’s

      friend, Kristen. Johnson was scheduled to fly home to Florida the following

      morning. Around midnight, as Ashley, Kristen, and Johnson were “literally

      getting ready to walk out the door,” Williams came home, accompanied by Jeff

      Davis. Id. at 144. Johnson observed that Williams had a gun.


[5]   Williams asked Ashley for a ride for his friends. Johnson objected and told

      Williams that “it was unfair that [Williams] wanted to come in at midnight and

      just expect [Ashley] to drop what she was doing to cater to [Williams] when

      [Johnson] was leaving the next morning[.]” Id. Williams mentioned Johnson’s

      “verbal altercation” with Ashley the night prior and said that “he was about

      tired of [Johnson] being disrespectful.” Id. The men argued, and Williams

      “came at [Johnson] and swung [at]” Johnson, missed, and grabbed Johnson

      around his torso. Id. at 145. Johnson dropped to the kitchen floor, and

      Williams “put[ ] him in a chokehold.” Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 3 of 27
[6]   Davis “put his knee on [Johnson’s] chest, and Williams and Davis began

      kicking, “swinging [and] throwing punches” at Johnson’s face and chest. Id. at

      146. Williams hit the side of Johnson’s head with a gun. Id. Williams and

      Davis ignored Johnson’s pleas “to be let up and to be let go.” Id. at 147.

      “[T]hree or four minutes” later, Williams pressed his gun into Johnson’s back,

      walked Johnson to the entrance of Ashley’s housing complex, and ordered

      Johnson “to never come back.” Id. A bloodied Johnson flagged down a

      passerby who called 911.


[7]   Sergeant Joseph Wright of the Fishers Police Department responded to the

      dispatch and encountered Johnson “scared, disoriented, and confused”;

      Johnson was “bleeding severely from his face.” Id. at 199-200. Although it was

      extremely cold, Johnson was not wearing a coat. Sergeant Wright called for

      ambulance transport, and Johnson was taken to the hospital.


[8]   Police investigators applied for a search warrant for Ashley’s house, but,

      investigators, who went to the house, found no one at home. The investigators

      remained on site and waited until Williams returned to the house; he was then

      transported to Fishers Police headquarters, where Johnson identified Williams

      in a lineup.


[9]   Detective Robbie Ruble interviewed Williams and videotaped his statement.

      Williams claimed to have acted in self-defense after Johnson called him a

      “punk b****” and hit Williams in the back of his head. Tr. Vol. II p. 134.

      Williams told Detective Ruble that his backpack was at Ashley’s house; he


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 4 of 27
       admitted owning the backpack’s contents. A subsequent search of Ashley’s

       garage yielded Williams’ backpack, which contained mail addressed to

       Williams; white, blood-spattered sneakers; a gun; a quantity of loose leaf as

       well as individually-bagged marijuana; and tramadol, a controlled substance.


[10]   On February 2, 2018, the State charged Williams with armed robbery and

       criminal confinement, Level 3 felonies; battery resulting in moderate bodily

       injury and pointing a firearm, Level 6 felonies; battery with a deadly weapon, a

       Level 5 felony; and theft, dealing in marijuana, and possession of a controlled

       substance, Class A misdemeanors. In a separate information, the State alleged

       that Williams was a habitual offender.


[11]   Williams was tried by a jury from April 16-18, 2018. The jury acquitted

       Williams on the armed robbery and theft charges and found him guilty of the

       remaining charges. In the habitual offender phase of the trial, the State

       moved—over Williams’ objection—to amend the habitual offender information

       to reflect that Williams had two—not three—prior unrelated felony convictions,

       as the initial habitual offender information incorrectly provided. 1 In instructing

       the jury, the trial court neglected to advise that, according to statute, of the two

       prior unrelated felony convictions required for a habitual offender finding, one




       1
        On September 18, 2008, Williams was convicted of auto theft, a Class C felony; and on November 21,
       2016, Williams was convicted of fraud, a Level 6 felony.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019                Page 5 of 27
       must not be a Level 6 or Class D felony conviction. The jury subsequently

       found that Williams was a habitual offender.


[12]   At Williams’ sentencing hearing on July 5, 2018, the deputy prosecutor stated

       the following in his closing remarks, “I do believe some of the counts do need

       to be dismissed [for] double jeopardy purposes. We would ask that the Battery

       Resulting in Bodily Injury and the Pointing of a Firearm both be dismissed for

       double jeopardy purposes.” Tr. Vol. III p. 198. Defense counsel objected in the

       following colloquy with the trial court:


               THE COURT: All right. I will turn the floor back over to you,
               [defense counsel], but before I do that it seems to me that the
               State has asked to dismiss Count 5, Pointing a Firearm, due to
               double jeopardy concerns, I suppose in relation to Count 2. And
               also asked to dismiss Count 4 due to double jeopardy concerns in
               regards to Count 3.


               [State]: Yes.


               THE COURT: I’m sure, [defense counsel], you don’t have any
               objection to that?


               [DEFENSE COUNSEL]: Well, actually, Judge, I do have an
               objection. I’m not familiar under the law how the State can
               dismiss counts that they have obtained a conviction on. It seems
               to me like the horse has left the barn on that issue.


               THE COURT: Well, the Court of Appeals is going to suggest
               that I should not accept or enter a judgment against Mr.
               Williams for offenses that would be a double jeopardy concern
               for another offense for which he was convicted of.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 6 of 27
               [DEFENSE COUNSEL]: Understood.


               THE COURT: But if you want me -- it seems to me based on the
               history of this case that the Court of Appeals will be looking at
               this case in some point in time, so if you want the Court of
               Appeals to have the full range of counts that he was convicted of,
               ultimately I think the Court of Appeals will sua sponte remove
               those counts on their own based upon double jeopardy issues.


               [DEFENSE COUNSEL]: That may very well be, Your Honor,
               but I don’t think the State has the ability to dismiss at this
               morning’s hearing.


               THE COURT: Okay, well, because of -- once again, because the
               State’s asking for the sentences to be concurrent I don’t think
               that’s going to affect the total sentence at all but, once again, I
               think the Court of Appeals will get rid of those counts.


       Id. at 198-99.


[13]   The trial court then sentenced Williams as follows: for criminal confinement,

       fifteen years, enhanced by ten years for the habitual offender finding, for an

       aggregate sentence of twenty-five years, of which the court ordered that twenty

       years should be executed in the Department of Correction, and five years

       suspended to probation. As to the remaining convictions 2, the trial court

       sentenced Williams as follows: battery with a deadly weapon, a Level 5 felony,

       six years executed; battery resulting in moderate bodily injury, a Level 6 felony,



       2
        The trial court entered judgment of conviction as to all offenses, notwithstanding double jeopardy
       considerations.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019                     Page 7 of 27
       two and one-half years executed; pointing a firearm, a Level 6 felony, two and

       one-half years executed; dealing in marijuana, a Class A misdemeanor, one

       year executed; and possession of a controlled substance, a Class A

       misdemeanor, one year executed. The court ordered the latter sentences to be

       served concurrently with Williams’ enhanced, aggregate twenty-five-year

       sentence for criminal confinement.


[14]   Specifically, as to Williams’ conviction for criminal confinement and the

       habitual offender finding, the trial court’s sentencing order provides:


               Count 2: Criminal Confinement, a Level 3 Felony, and Habitual
               Offender Finding
               Total sentence: 15 years in the Indiana Department of
               Correction. This sentence is further enhanced by 10 years for the
               Defendant being a Habitual Offender for a total of 25 years as to Count
               2. . . .


       Appellant’s App. Vol. II p. 57 (emphasis added). Williams now appeals.


                                                   Analysis
                                       I.      Sufficiency of the Evidence

[15]   First, Williams argues that the evidence is not sufficient to support his

       conviction of criminal confinement with a deadly weapon, a Level 3 felony.

       When there is a challenge to the sufficiency of the evidence, “[w]e neither

       reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204,

       210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert.

       denied), cert. denied. Instead, “we ‘consider only that evidence most favorable to

       the judgment together with all reasonable inferences drawn therefrom.’” Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 8 of 27
       (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is

       supported by ‘substantial evidence of probative value even if there is some

       conflict in that evidence.’” Id.; see also McCallister v. State, 91 N.E.3d 554, 558

       (Ind. 2018) (holding that, even though there was conflicting evidence, it was

       “beside the point” because that argument “misapprehend[s] our limited role as

       a reviewing court”). Further, “[w]e will affirm the conviction unless no

       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007)).


[16]   Williams argues that “the jury was specifically informed that it could factually

       find [Williams] guilty of confinement based upon an act which constituted

       release.” Appellant’s Br. p. 19. Williams argues further that “releasing

       Johnson was not an act of confinement as defined by law because the act was

       not interfering with Johnson’s liberty.” Id.


[17]   To convict Williams of criminal confinement, a Level 3 felony, the State was

       required to prove that Williams knowingly or intentionally confined Johnson

       without Johnson’s consent, while Williams was armed with a deadly weapon.

       See Ind. Code § 35-42-3-3. The word “confine” is defined to mean to

       “substantially interfere with the liberty of a person.” Ind. Code § 35-42-3-1.


[18]   Here, the State presented evidence that Williams walked Johnson to the

       entrance of Ashley’s subdivision with Williams’ gun pressed into Johnson’s

       back and ordered Johnson to leave and never come back. It was the forced


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 9 of 27
       march at gunpoint that interfered with Johnson’s liberty, not Williams’ act of

       releasing Johnson. Moreover, logically, a release follows a period of

       confinement. That Williams ultimately released Johnson does not absolve him

       of the confinement. Sufficient evidence exists to support Williams’ conviction

       for criminal confinement with a deadly weapon.


                                             II.      Double Jeopardy

[19]   Article 1, Section 14 of the Indiana Constitution provides, “No person shall be

       put in jeopardy twice for the same offense.” Two or more offenses are the

       “same offense” in violation of the Indiana Double Jeopardy Clause if, “‘with

       respect to either the statutory elements of the challenged crimes or the actual

       evidence used to convict, the essential elements of one challenged offense also

       establish the essential elements of another challenged offense.’” Sistrunk v.

       State, 36 N.E.3d 1051, 1053 (Ind. 2015) (quoting Richardson v. State, 717

       N.E.2d 32, 49 (Ind. 1999)). The Richardson “actual evidence” test is not

       violated if the evidentiary facts used to establish the essential elements of one

       offense establish only one or even several, but not all, of the essential elements

       of a second offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).


                              A. Enhancement for Use of a Deadly Weapon

[20]   First, we address Williams’ argument that his use of a handgun was improperly

       permitted to enhance both his convictions for criminal confinement and battery

       with a deadly weapon, even though he “did not use the weapon repeatedly or

       more than once.” Appellant’s Br. pp. 13-14.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 10 of 27
[21]   We initially note that Williams has waived this issue by his failure to present a

       cogent argument. See Ind. Appellate R. 46(A)(8)(a); see also Basic v. Amouri, 58

       N.E.3d 980, 983-84 (Ind. Ct. App. 2016) (internal quotations and citations

       omitted), reh’g denied. Waiver notwithstanding, we will address the merits of

       Williams’ claim.


[22]   Our Supreme Court has long adhered to the rule that precludes a “[c]onviction

       and punishment for an enhancement of a crime where the enhancement is

       imposed for the very same behavior or harm as another crime for which the

       defendant has been convicted and punished.” Sistrunk, 36 N.E.3d at 1054

       (quoting Richardson, 717 N.E.2d at 56). “[C]ommitting two or more separate

       offenses each while armed with a deadly weapon—even the same weapon—is

       not[,] [however] within the category of rules precluding the enhancement of

       each offense based on ‘the very same behavior.’” Sistrunk, 36 N.E.3d at 1054.

       Stated differently, use of a single deadly weapon during the commission of

       separate offenses may enhance the level of each offense without running afoul

       of the prohibition against double jeopardy. Id.


[23]   Here, Williams threatened Johnson with harm from the gun during his

       commission of the battery with a deadly weapon and criminal confinement

       offenses. In each instance, the threat from the gun was distinct. For the

       criminal confinement offense, Williams pressed the gun into Johnson’s back

       and forced Johnson to walk at gunpoint out of Ashley’s housing complex. For

       the battery with a deadly weapon offense, Williams struck Johnson’s head with

       the gun during the altercation in Ashley’s kitchen. See Gates v. State, 759 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 11 of 27
       631, 633 n.2 (Ind. 2001) (affirming judgment wherein defendant’s convictions

       for rape, criminal deviate conduct, and criminal confinement were all enhanced

       to Class B felonies for defendant’s use of the same knife); see also Miller v. State,

       790 N.E.2d 437, 439 (Ind. 2003). We conclude that the trial court did not run

       afoul of double jeopardy principles by enhancing Williams’ convictions for

       criminal confinement and battery with a deadly weapon for his use of the same

       deadly weapon.


                                   B. Alleged Double Jeopardy Violations

[24]   Next, Williams argues that his convictions for criminal confinement, battery by

       means of a deadly weapon, battery resulting in moderate bodily injury, and

       pointing a firearm violate the prohibition against double jeopardy. He argues

       that “[t]he same facts used to convict [him] of criminal confinement were also

       used to convict him of Battery by Means of a Deadly Weapon, Battery

       Resulting in Moderate Bodily Injury[,] and Pointing a Firearm.” Appellant’s

       Br. p. 10.


                             1. Battery Resulting in Moderate Bodily Injury
                                          and Pointing a Firearm
[25]   In addition to the constitutional test prescribed by Richardson, Indiana courts

       adhere to rules of statutory construction and common law that prohibit multiple

       convictions, as delineated in Justice Sullivan’s concurring opinion in

       Richardson. Sistrunk, 36 N.E.3d at 1053-54. One of those rules prohibits

       “[c]onviction and punishment for a crime which consists of the very same act as

       an element of another crime for which the defendant has been convicted and

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 12 of 27
       punished.” Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring). An

       example of that rule’s application is Wethington v. State, 560 N.E.2d 496, 508

       (Ind. 1990), in which our Supreme Court vacated a confinement conviction

       because the confinement was coextensive with the behavior or harm necessary

       to establish an element of the defendant’s robbery conviction. Id.


[26]   We initially note that, at Williams’ sentencing hearing, the deputy prosecutor

       moved to vacate Williams’ convictions for pointing a firearm and battery

       resulting in moderate bodily injury. Defense counsel objected, and the trial

       court indicated that the court was agreeable to vacating the convictions on

       double jeopardy grounds. Ultimately, the trial court entered judgments of

       conviction on “the full range of counts [Williams] was convicted of,”

       acknowledging that “the Court of Appeals will sua sponte remove those counts

       on [its] own based upon double jeopardy issues.” Tr. Vol. III p. 199.


[27]   To the extent that Williams now alleges double jeopardy violations from the

       trial court’s entry of judgments of conviction on his convictions, we agree with

       the State that these claims are precluded by the invited error doctrine; however,

       as our Supreme Court has determined, “a double jeopardy violation, if shown,

       implicates fundamental rights and the invited error doctrine must ‘yield to the

       constitution.’” See Roach v. State, 695 N.E.2d 934, 942 (Ind. 1998); see Cuto v.

       State, 709 N.E.2d 356, 361 (Ind. Ct. App. 1999). We must, therefore, decline

       the State’s invitation that we should allow convictions that violate double

       jeopardy principles to stand. Because we find that there is a reasonable

       possibility that the jury used the same evidentiary facts to establish the offenses

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 13 of 27
       of pointing a firearm and battery resulting in moderate bodily injury as it used

       to establish battery with a deadly weapon and criminal confinement, we now

       vacate Williams’ convictions for battery resulting in moderate bodily injury and

       pointing a firearm on double jeopardy grounds as the trial court anticipated,

       and we remand for entry of a revised sentencing order.


                       2. Criminal Confinement with a Deadly Weapon and
                                 Battery with a Deadly Weapon
[28]   Having vacated Williams’ convictions for battery resulting in moderate bodily

       injury and pointing a firearm on double jeopardy grounds, we proceed to

       Williams’ contention that “the same facts used to convict [Williams] of criminal

       confinement were also used to convict him of Battery by Means of a Deadly

       Weapon[.]” Appellant’s Br. p. 10. As stated above, the Richardson “actual

       evidence” test is not violated if the evidentiary facts used to establish the

       essential elements of one offense establish only one or even several, but not all,

       of the essential elements of a second offense. Spivey, 761 N.E.2d at 833.


[29]   To convict Williams of criminal confinement, the State was required to prove

       that Williams, while armed with a deadly weapon, knowingly or intentionally

       confined Johnson without Johnson’s consent. To prove that Williams

       committed battery by means of a deadly weapon, the State was required to

       prove that Williams knowingly or intentionally touched Johnson by punching,

       kicking, and striking Johnson with a handgun—a deadly weapon.


[30]   The Richardson “actual evidence” test is not violated here. The State presented

       evidence of two separate incidents of criminal confinement. The first incident
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 14 of 27
       occurred in Ashley’s kitchen and involved Williams forcing Johnson to the

       floor; hitting and kicking Johnson; hitting Johnson with a gun; and refusing to

       let Johnson up or leave, as Davis held Johnson down. The second incident

       occurred when Williams walked Johnson from Ashley’s house, at gunpoint, to

       the entrance of Ashley’s housing complex and ordered Johnson to leave and

       never return. We conclude there is no reasonable possibility that the jury used

       the same evidentiary facts to establish the essential elements of the offense of

       battery with a deadly weapon as it used to establish criminal confinement with

       a deadly weapon. Williams’ convictions for criminal confinement, a Level 3

       felony, and battery with a deadly weapon do not run afoul of double jeopardy.


                                    III.    Habitual Offender Amendment

[31]   Williams argues that the trial court erred in allowing the State to amend the

       habitual offender information after the jury was impaneled and his jury trial had

       commenced. Specifically, Williams argues that “[the] amendment was

       improper because the [habitual offender] information was not amended at least

       30 days prior to trial, or in the alternative[,] [the] request was not made prior to

       the commencement of trial.” Appellant’s Br. p. 14. The State counters that it

       did not amend the habitual offender information but, rather, corrected a

       scrivener’s error to comport with the applicable statute.


[32]   Indiana Code Section 35-50-2-8(a) provides that “[t]he State may seek to have a

       person sentenced as a habitual offender for a felony by alleging, on one (1) or

       more pages separate from the rest of the charging instrument, that the person

       has accumulated the required number of prior unrelated felony convictions in
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 15 of 27
       accordance with this section.” Also, Indiana Code Section 35-50-2-8(b)

       provides:


               (a) A person convicted of murder or of a Level 1 through Level 4
               felony is a habitual offender if the state proves beyond a
               reasonable doubt that:


                       (1) the person has been convicted of two (2) prior
                       unrelated felonies; and


                       (2) at least one (1) of the prior unrelated felonies is not a
                       Level 6 felony or a Class D felony.


       Here, Williams was convicted of criminal confinement, a Level 3 felony.


[33]   Indiana Code Section 35-34-1-5, governing, amendment of charges inter alia,

       provides, in pertinent part, as follows:


               (a) An indictment or information which charges the commission
               of an offense may not be dismissed but may be amended on
               motion by the prosecuting attorney at any time because of any
               immaterial defect, including:


                       (1) any miswriting, misspelling, or grammatical error;


                       ...


                       (6) any mistake in the name of the court or county in the
                       title of the action, or the statutory provision alleged to
                       have been violated;


                       ...

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019    Page 16 of 27
                           (9) any other defect which does not prejudice the
                           substantial rights of the defendant.


                                                          *****


                  (c) Upon 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[3] of the defendant.


       I.C. § 35-34-1-5 (emphasis added).


[34]   The first step in evaluating the permissibility of amending an information is to

       determine whether the amendment was addressed to a matter of substance or

       one of form or immaterial defect. Fajardo v. State, 859 N.E.2d 1201, 1207 (Ind.

       2007), superseded in part on other grounds, Ind. Code § 35-34-1-5, effective May 7,

       2007. If the amendment was one of substance, the trial court was not permitted

       to allow it, regardless of prejudice or lack thereof, because it occurred after the

       trial started. See Ind. Code § 35-34-1-5(b)(2). “[A]n amendment is one of form,




       3
           As we have previously stated:

                  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.

       Gomez v. State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009) (citations and internal quotations
       omitted), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019                         Page 17 of 27
       not substance, if both (a) a defense under the original information would be

       equally available under the amendment, and (b) the accused’s evidence would

       apply equally to the information in either form.” Fajardo, 859 N.E.2d at 1207.

       Even if the above two criteria are satisfied, however, the amendment may yet

       be one of form, because “an amendment is one of substance only if it is

       essential to making a valid charge of the crime.” Id.


[35]   In support of his position, Williams relies upon Nunley v. State, 995 N.E.2d 718,

       724-726 (Ind. Ct. App. 2013), clarified on reh’g, 4 N.E.3d 669 (Ind. Ct. App.

       2013); however, Nunley is distinguishable from the instant facts. In Nunley, the

       State’s original habitual offender information identified Nunley’s prior

       convictions for theft and possession of cocaine as predicate offenses for

       enhancing Nunley’s sentence. By application of an exception enumerated in

       Indiana Code Section 35-50-2-8(d)(3), Nunley’s conviction for possession of

       cocaine did not qualify for purposes of the habitual offender statute. The day

       after a jury was impaneled for Nunley’s jury trial, the State sought leave to

       amend the habitual offender information to delete the possession offense and

       “to add additional theft charges that would go to a[] habitual offender

       allegation.” Id. at 722. The trial court permitted the State’s amendment and

       postponed the start of the trial to allow the defense to prepare.


[36]   On appeal of this issue, a panel of this court reversed the trial court’s judgment

       and concluded that, “[b]ecause the amendment was essential to the allegation

       of Nunley being a[] habitual offender, and because Nunley’s defense under the

       original information[,] [namely, that the State could not establish that he was a

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 18 of 27
       habitual offender based on the information as alleged] evaporated under the

       amendment, the amendment was one of substance rather than form and was

       not allowed under subsection (c).” Id. at 724. In Nunley, of the two predicate

       offenses asserted by the State, one was excepted and, but for the substantive

       amendment improperly permitted by the trial court, the State could not have

       established that Nunley was a habitual offender.


[37]   Here, the State’s original habitual offender information alleged that Williams

       had three prior, unrelated felony convictions. To prove that Williams was a

       habitual offender, the State was required to prove that Williams—if he was

       convicted of a Level 3 felony—had two prior unrelated felony convictions of

       which “at least one . . . [was] not a Level 6 felony or a Class D felony.” See I.C.

       § 35-50-2-8(b).


[38]   By asserting three predicate offenses, the State included one more predicate

       offense than was required under the statute. While this may be overkill, it did

       not prejudice Williams. Unlike Nunley, Williams was not, thereby, stripped of

       an available defense; nor was a predicate felony attributed to Williams that was

       explicitly exempted from habitual offender consideration. Williams could

       proceed with the same defense before and after the State’s amendment.

       Moreover, the amendment was not “essential to making a valid charge” that

       Williams was a habitual offender. See Fajardo, 859 N.E.3d at 1207. We,

       therefore, conclude that the amendment was one of form that corrected an

       immaterial defect; and because amendments of form may be made “at any

       time,” we find that Williams suffered no prejudice to his substantial rights from

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 19 of 27
       the amendment of the habitual offender information after the commencement

       of trial. See I.C. § 35-34-1-5(c).


                                    IV.      Habitual Offender Instruction

[39]   Next, Williams alleges fundamental error regarding the trial court’s instruction

       to the jury. Williams concedes that he did not object at trial; however, he

       argues that the trial court improperly instructed the jury regarding the habitual

       offender enhancement by failing to instruct the jury that “at least 1 of the prior

       unrelated felony convictions [may] not [be] a level 6 or Class D felony

       conviction.” Appellant’s App. p. 16.


[40]   “Failure to object to a jury instruction results in waiver on appeal, unless giving

       the instruction was fundamental error.” Wright v. State, 730 N.E.2d 713, 716

       (Ind. 2000). An error may be fundamental and, thus, not subject to waiver, if it

       is a “substantial blatant violation of basic principles.” Moreland v. State, 701

       N.E.2d 288, 294 (Ind. Ct. App. 1998) (internal quotation omitted). “This

       exception to the general rule requiring a contemporaneous objection is narrow,

       providing relief only in ‘egregious circumstances’ that made a fair trial

       impossible.” Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016).


[41]   In considering a claim of fundamental error with respect to jury instructions, we

       look to the instructions as a whole to determine if they were adequate. Munford

       v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010). “When determining whether a

       defendant suffered a due process violation based on an incorrect jury

       instruction, we look not to the erroneous instruction in isolation, but in the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 20 of 27
       context of all relevant information given to the jury, including closing

       argument, and other instructions.” Boesch v. State, 778 N.E.2d 1276, 1279 (Ind.

       2002) (internal citations omitted). When all information, as a whole, does not

       mislead the jury as to the correct understanding of the law, there is no due

       process violation. Id.


[42]   As noted above, Indiana Code Section 35-50-2-8 provides that a person

       convicted of a Level 3 felony, as Williams was, is a habitual offender if the State

       proves: “(1) the person has been convicted of two (2) prior unrelated felonies;

       and (2) at least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D

       felony.” I.C. § 35-50-2-8 (emphasis added).


[43]   In instructing the jury regarding the habitual offender enhancement, the trial

       court stated:


               In this case, the State of Indiana has charged the Defendant with
               an additional count of the Information in this case that charges
               the Defendant with being a[] habitual offender. This Count reads
               as follows:


               The charge, omitting formal parts, reads as follows:


               That on or about January 31, 2018, in the County of Hamilton,
               State of Indiana, Anthony Steven Williams, Jr. was a habitual
               offender in that he accumulated two prior unrelated felony
               convictions; to-wit:


               One, the Defendant was convicted of and sentenced for Auto
               Theft, a Class C felony, on or about September 18, 2008 in Cause


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019       Page 21 of 27
        Number 29D01-0804-FC-25 in the Hamilton County Superior
        Court 1, Hamilton County, Indiana.


        Thereafter, the Defendant committed Fraud, a Level 6 felony, on
        or about June 28, 2016 and was convicted and sentenced for that
        offense on or about November 21, 2016 in Cause Number
        29D05-1607-F6-5369 in the Hamilton County Superior Court 5,
        Hamilton County, Indiana; and


        All of which is contrary to the form of the statute in such case
        made and provided, and against the peace and dignity of the
        State of Indiana.


        The State may seek to have a person sentenced as a[] habitual
        offender for a Level 3 felony by proving that the person has
        accumulated two prior unrelated felony convictions.


        The Court instructs you that Auto Theft and Fraud are both
        felonies.


You may find the Defendant to be a habitual offender only if the State
has proven each of the following facts beyond a reasonable doubt: one,
the Defendant; two, committed and was convicted and sentenced for
Auto Theft, a Class C felony, and; three, later committed and was
convicted and sentenced for Fraud, a Level 6 felony, and; four, later
committed Count 2, Criminal Confinement, a Level 3 felony.


If the State failed to prove each of these facts beyond a reasonable
doubt, you must find the Defendant is not a habitual offender.


Tr. Vol. III pp. 178-79.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 22 of 27
[44]   Williams takes issue with the trial court’s failure to instruct jurors that, in order

       to arrive upon a habitual offender finding, “at least one (1) of the prior unrelated

       felonies [may] not [be] a Level 6 felony or a Class D felony.” I.C. § 35-50-2-8

       (emphasis added). While we agree with Williams that the trial court did not

       include the above-emphasized statutory provision in its jury instruction, the

       omission does not constitute fundamental error as alleged. First, the issue of

       whether “at least one (1) of the prior unrelated felonies [may] not [be] a Level 6

       felony or a Class D felony” is a question of law for the trial court to determine;

       and, accordingly, no jury instruction was required.


[45]   Moreover, the jury instruction at issue appears to be based on the Indiana

       Pattern Jury instructions. See Santiago v. State, 985 N.E.2d 760, 763 (Ind. Ct.

       App. 2013) (“The preferred practice in Indiana is to use pattern jury

       instructions.”). Pattern Instruction 15.1240, regarding the elements for a

       habitual offender adjudication where the defendant faces a Level 1, 2, 3, or 4

       felony as the principal charge, provides:


               The State may seek to have a person sentenced as a habitual
               offender for a Level [1] [2] [3] [4] felony by proving that the
               person has accumulated two (2) prior unrelated felony
               convictions.


                The Court instructs you that [name first alleged prior, e.g.
               “burglary”] and [name second alleged prior] are both felonies.


               You may find the Defendant to be a habitual offender only if the
               State has proven each of the following facts beyond a reasonable
               doubt:

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 23 of 27
                       1. The Defendant:


                       2. committed and was convicted and sentenced for [name
                       alleged felony, e.g. “““““burglary”], and;


                       3. later committed and was convicted and sentenced for
                       [name alleged second felony], and;


                       4. later committed Count ____________ [and/or Count
                       ____________ (name felony(s) of which Defendant was
                       convicted in Phase I), a Level [1] [2] [3] [4] felony.


                If the State failed to prove each of these facts beyond a
               reasonable doubt, you must find the Defendant is not a habitual
               offender.


[46]   The trial court’s habitual offender instruction here mirrored Pattern Instruction

       15.1240 and properly conveyed the law to the jury; thus, we conclude that the

       trial court did not err in instructing the jury.


                                    V.      Abuse of Sentencing Discretion

[47]   Lastly, Williams argues that the trial court erred because it “did not attach the

       habitual offender enhancement to [Williams’] level 3 felony conviction but

       rather improperly ordered that his habitual offender enhancement be imposed

       as a consecutive sentence.” Appellant’s Br. p. 20. He argues, “It cannot be said

       that [Williams’] habitual offender enhancement is anything other than a

       consecutive sentence if he received a 25-year sentence for a crime which [ha]s a

       16-year maximum.” We reject this tortured argument, which reflects a

       misreading of the pertinent statute.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 24 of 27
[48]   Indiana Code Section 35-50-2-8 provides that “[t]he court shall sentence a

       person found to be a habitual offender to an additional fixed term that is between

       six (6) and twenty (20) years, for a person convicted of murder or a Level 1

       through Level 4 felony. . . .” 4 I.C. § 35-50-2-8(i) (emphasis added). Indiana

       Code Section 35-50-2-8 further provides:


                  Habitual offender is a status that results in an enhanced sentence.
                  It is not a separate crime and does not result in a consecutive sentence.
                  The court shall attach the habitual offender enhancement to the
                  felony conviction with the highest sentence imposed and specify
                  which felony count is being enhanced. If the felony enhanced by
                  the habitual offender determination is set aside or vacated, the
                  court shall resentence the person and apply the habitual offender
                  enhancement to the felony conviction with the next highest
                  sentence in the underlying cause, if any.


       I.C. § 35-50-2-8(j) (emphasis added).


[49]   In sentencing Williams, the trial court stated, in pertinent part, the following:


                  THE COURT: [ ] You were convicted of Count 2 in this case.
                  The matter of Criminal Confinement as a Level 3 felony. A
                  Level 6 felony carries with it a sentence between 3 to 16 years
                  with an advisory sentence of 9 years. The Court has reviewed
                  with you numerous aggravating and mitigating circumstances.
                  Based upon the aggravating circumstances, which I do believe
                  outweigh the mitigating circumstances, the Court believes that a




       4
           Here, Williams was convicted of a Level 3 felony.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019      Page 25 of 27
               15[-]year sentence is appropriate in regards to Level 3, or in
               regards to Count 2.


               The Habitual Offender Enhancement will add ten years to that
               sentence, making Count 2 a 25[-]year sentence. Of the 25 years,
               I will order that 20 years are to be executed and 5 years
               suspended. Of the 20 years that are executed, I will order that all
               20 years are to be served in the Department of Correction[].


       Tr. Vol. III p. 209.


[50]   Thus, as explicitly prescribed by Indiana Code Section 35-50-2-8(j), the trial

       court affixed the ten-year habitual offender enhancement to Williams’ felony

       conviction with the highest sentence imposed—criminal confinement, a Level 3

       felony—and specified which felony count the trial court intended to enhance.

       The record establishes that the trial court enhanced Williams’ felony conviction

       with the highest sentence and did not impose a consecutive sentence. We find

       no abuse of the trial court’s sentencing discretion.


                                                 Conclusion
[51]   Williams’ convictions for criminal confinement, a Level 3 felony, and battery

       with a deadly weapon, a Level 5 felony, do not violate the prohibition against

       double jeopardy; however, his convictions for battery resulting in moderate

       bodily injury and pointing a firearm, Level 6 felonies, violate double jeopardy

       principles. Accordingly, we vacate Williams’ convictions for battery resulting

       in moderate bodily injury and pointing a firearm, Level 6 felonies, and we

       remand for entry of a revised sentencing order.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 26 of 27
[52]   The trial court did not err in enhancing two of Williams’ convictions for his use

       of the same deadly weapon. Nor did the trial court err in allowing the State to

       amend the habitual offender information after the commencement of trial to

       correct a scrivener’s error. No fundamental error arose from the trial court’s

       instructions to the jury regarding the habitual offender enhancement. Sufficient

       evidence exists to support Williams’ conviction for criminal confinement. The

       trial court did not improperly impose consecutive sentences when it sentenced

       Williams on the habitual offender adjudication. We affirm in part, reverse in

       part, and remand for entry of a revised sentencing order.


[53]   Affirmed in part, reversed in part, and remanded.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1808| June 14, 2019   Page 27 of 27
