Pursuant to Ind. Appellate Rule 65(D),                                           Sep 24 2013, 5:31 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

JACOB R. TAULMAN                                   GREGORY F. ZOELLER
Kentland, Indiana                                  Attorney General of Indiana

                                                   KATHERINE MODESITT COOPER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JOHN E. WALL,                                      )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 56A03-1211-CR-508
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE NEWTON SUPERIOR COURT
                          The Honorable Daniel J. Molter, Judge
                              Cause No. 56D01-1101-FC-2



                                       September 24, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
        John E. Wall (“Wall”) appeals his conviction of nonsupport of a dependent1 as a

Class C felony. On appeal, Wall raises the following consolidated and restated issue:

whether the trial court erred in allowing the State to prosecute him for Class C felony

nonsupport of a dependent where the criminal information failed to allege a support

delinquency for one or more children of at least $15,000.00.

        We affirm.

                            FACTS AND PROCEDURAL HISTORY

        Three children were born to the marriage of Wall and Dianna Lynn Wall

(“Dianna”), M.M.W., K.J.W., and J.E.W. (“the children”). On July 15, 1999, under

Cause No. 56C01-9904-DR-24, the Newton Circuit Court dissolved the couple’s

marriage. In the final decree, Dianna was granted sole custody of the children, and Wall

was ordered to pay child support for the three children in the aggregate amount of

$232.36 per week.2

        On January 24, 2011, the State charged Wall with three counts of non-support of a

dependent child. Indiana Code section 35-46-1-5(a) provides: “A person who knowingly

or intentionally fails to provide support to the person’s dependent child commits

nonsupport of a child, a Class D felony. However, the offense is a Class C felony if the

total amount of unpaid support that is due and owing for one (1) or more children is at

least fifteen thousand dollars ($15,000[.00]).”


        1
            See Ind. Code § 35-46-1-5.
        2
         At the time of the dissolution, Wall was also ordered to pay an additional $67.64 per week until
such time as his accumulated support arrearage of $1,341.00 was paid in full. State’s Ex. 1.


                                                   2
       In the heading of each count, the State included language stating that Wall was

being charged with “Non-Support of a Dependent Child, a Class C felony”; however, the

language in the body of each count alleged only that “on or about the time period

including April, 2006 through June, 2007, [Wall] did knowingly or intentionally fail to

provide support to his dependent child in violation of terms ordered under Cause No.

56C01-9904-DR-24 in violation of Indiana Code 35-46-1-5 . . . .” Appellant’s App. at 13,

14, 15. Together with the information, the State filed an affidavit for probable cause,

signed by Jill M. Cahill, which provided:

       1.        I am a IV-D caseworker in the Child Support Division of the
                 Newton County Prosecutor’s Office.
       2.        That [Wall] is the father of the following children: [M.M.W.]
                 (11/27/1987), [K.J.W.] (3/15/1990), and [J.E.W.] (7/25/1991).
       3.        Based upon child support records . . . [Wall] . . . was ordered to pay
                 child support under Cause No. 56C01-9904-DR-24.
       4.        [Wall] has knowingly failed to pay child support as required by
                 Court Order.
       5.        [Wall] is currently in arrearage on said child support in the amount
                 of $130,502.28 as of December 31, 2010.

Appellee’s App. at 1.

       Prior to trial, Wall filed a motion in limine3 to exclude the introduction of evidence

pertaining to his nonsupport arrearage that accrued outside the time period set forth in the

charging information, i.e., April 2006 through June 2007. The trial court addressed this

motion at the commencement of trial, and also considered Wall’s argument that the

charging information was deficient because “it fails to allege that there were arrears due

and owing at the time of the offense.” Tr. at 5. Wall did not move to dismiss the


       3
           The motion in limine is not in the record before us.

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“deficient” information; in fact, defense counsel made the following comments:

      I would like to state the Defense is not moving for a motion to dismiss. The
      Defense is saying, you know, as the Court stated: [the State’s] limited from
      the time periods alleged. And the State is stating correctly—if the charges
      were put forth correctly and stated that at the time that this offense was
      alleged arrears were due and owing, yes, you could get into that evidence.
      But the problem here is that was not alleged in the charging information.
      And therefore, when the Defendant was read the charging information and
      was told this is what you have been charged with, he was not informed that
      that was a part of the offense. And now they are trying to bring in basically
      uncharged acts into evidence and this is a distinctly different situation and I
      believe it’s strictly prohibited because it simply wasn’t charged.

Tr. at 7 (emphasis added).

      Following argument, the trial court determined that the State could introduce

evidence that “the children were owed fifteen thousand dollars or more within [the

alleged] time period” and denied Wall’s motion in limine. Id. at 8. Noting that the

admission of evidence of arrears “effectively amend[ed] [the State’s] charging

information,” Wall requested a continuance. When the trial court asked the grounds for

Wall’s continuance, Wall did not contend that he needed time to prepare his defense, but

instead, responded, “To preserve the record, your Honor.” Id. at 9.

      On the morning of trial, the trial court granted the State’s motion to dismiss two of

the three counts. During trial, Jenna Ownby, the “IV-D Administrator” for the Newton

County Prosecuting Attorney’s Office, testified that, as of the end of June 2007, Wall

owed child support in the amount $47,927.00.          Id. at 30.   Finding that Wall did

knowingly or intentionally fail to provide support to his dependent children and had

unpaid support of at least $15,000.00, the jury found Wall guilty of nonsupport of a

dependent child as a Class C felony. The trial court sentenced Wall to six years executed

                                            4
in the Department of Correction. Wall now appeals. Additional facts will be added

where necessary.

                           DISCUSSION AND DECISION

      Wall contends that his Class C felony conviction should be overturned because the

charging information did not sufficiently inform him of the elements of the Class C

felony, and therefore, he could not prepare a proper defense regarding his nonsupport

arrearage.

      We first address the State’s contention that Wall has waived for appellate review

the issue regarding the sufficiency of the charging information. We agree with the State.

The information in this case alleged that “on or about the time period including April,

2006 through June, 2007, [Wall] did knowingly or intentionally fail to provide support to

his dependent child in violation of terms ordered under Cause No. 56C01-9904-DR-24 in

violation of Indiana Code 35-46-1-5 . . . .”     Appellant’s App. at 13, 14, 15.      The

information cited to Indiana Code section 35-46-1-5, the nonsupport statute.         Wall

contends that he was unaware that he was being charged with a Class C felony; however,

the charging information itself specifically stated that Wall was being charged with a

Class C felony. “It has long been the law that any challenge to the sufficiency of the

information must be made by motion to dismiss prior to the arraignment or it is waived.”

Lawrence v. State, 665 N.E.2d 589, 592 (Ind. Ct. App. 1996); see Neff v. State, 915

N.E.2d 1026, 1031 (Ind. Ct. App. 2009) (“Generally, a failure to challenge a defective

charging information by way of a motion to dismiss prior to trial waives that issue for

appellate review.”), trans. denied. Here, Wall noted from the face of the information that

                                            5
there was a discrepancy in the charging information; however, he specifically stated that

he was not filing a motion to dismiss the charging information.

       Wall failed to challenge the form of the information. Instead, he sought to keep

the information as is, and moved to keep out the evidence that he owed at least

$15,000.00 in child support, evidence that was necessary to prove the Class C felony.

Under the facts before us, we find that Wall’s failure to move to dismiss the information

has waived any argument regarding the sufficiency of the information.

       Waiver notwithstanding, we find that Wall was sufficiently apprised that the crime

against which he would have to defend was Class C felony nonsupport of a dependent.

Our court recently recognized that, “Since the charging information and probable-cause

affidavit are filed together, they should be viewed in tandem to determine if they satisfy

the goal of putting the defendant on notice of the crimes with which [he] is charged

during the applicable statute of limitations period so that [he] can prepare an appropriate

defense.” Woods v. State, 980 N.E.2d 439, 443 (Ind. Ct. App. 2012).

       Here, the face of the criminal information specifically stated that Wall was being

charged with Class C felony nonsupport. The information alleged that “on or about the

time period including April, 2006 through June, 2007, [Wall] did knowingly or

intentionally fail to provide support to his dependent child in violation of terms ordered

under Cause No. 56C01-9904-DR-24 in violation of Indiana Code 35-46-1-5.”

Appellant’s App. at 13, 14, 15.       Indiana Code section 35-46-1-5(a) provides that

nonsupport of a dependent is “a Class C felony if the total amount of unpaid support that

is due and owing for one (1) or more children is at least fifteen thousand dollars

                                            6
($15,000[.00]).”   The probable cause affidavit, which was filed together with the

information, provided that arrearage on Wall’s child support was “$130,502.28 as of

December 31, 2010.” Appellee’s App. at 1. We recognize that the figure of $130,502.28

was as of December 31, 2010; however, we find that dollar amount was sufficient to alert

Wall that the State was charging him with Class C felony child support during the time

period from April 2006 through and including June 2007. There are approximately 183

weeks in the time period from June 2007 through December 2010, and Wall’s child

support was $232.36 per week.           Even if Wall had failed to pay any child support

payments during those 183 weeks, his arrearage could not have increased by more than

$115,000.00 (183 x $232.36=$42,521.88). Wall had to know that during the time period

from April 2006 through June 2007, he owed more than $15,000.00 in unpaid child

support.

       Wall was charged with Class C felony nonsupport of a dependent on January 24,

2011. He was not tried until more than a year and a half later. Accordingly, we find that

Wall was apprised that the charge against him was Class C felony nonsupport and had

sufficient time to prepare a defense.

       Affirmed.

VAIDIK, J, and PYLE, J., concur.




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