      MEMORANDUM DECISION
                                                                      Aug 26 2015, 9:36 am
      Pursuant to Ind. Appellate Rule 65(D), 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
      Cara Schaefer Wieneke                                     Gregory F. Zoeller
      Wieneke Law Office, LLC                                   Attorney General of Indiana
      Plainfield, Indiana
                                                                Jesse R. Drum
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Malcolm M. Pettis,                                       August 26, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               84A01-1412-CR-555
              v.                                               Appeal from the Vigo Superior
                                                               Court
      State of Indiana,                                        The Honorable David R. Bolk,
      Appellee-Plaintiff.                                      Judge

                                                               Cause No. 84D03-1405-FA-1190




      Najam, Judge.


                                         Statement of the Case
[1]   Malcolm Pettis appeals his convictions for three counts of dealing in cocaine, as

      Class A felonies; dealing in marijuana, as a Class C felony; maintaining a


      Court of Appeals of Indiana | Memorandum Decision 84A01-1412-CR-555 | August 26, 2015    Page 1 of 6
      common nuisance, a Class D felony; and two counts of operating a motor

      vehicle while privileges are suspended, Class D felonies; following a jury trial.

      Pettis presents a single issue for our review, namely, whether the trial court

      erred when it allowed the State to amend the charging information five days

      before trial. We affirm.


                                   Facts and Procedural History
[2]   On February 27, 2014, and on March 4, 6, and 18, 2014, officers with the Terre

      Haute Police Department conducted controlled drug buys whereby a

      confidential informant (“CI”) arranged to buy marijuana and cocaine from

      Pettis. On May 5, Detective Martin Dooley, Jr. with the Vigo County Drug

      Task Force filed a probable cause affidavit describing those controlled buys.

      Also on May 5, the State charged Pettis with three counts of dealing in cocaine,

      as Class A felonies; three counts of possession of cocaine, as Class C felonies;

      dealing in marijuana, as a Class C felony; three counts of maintaining a

      common nuisance, Class D felonies; and two counts of operating a motor

      vehicle while privileges are suspended, Class D felonies.


[3]   On October 23, 2014, five days before Pettis’ scheduled trial, the trial court held

      a final pre-trial conference, and the State moved to amend the charging

      information and separately to dismiss five of his charges.1 In support of its




      1
        The State moved to dismiss all three possession of cocaine charges and two of the three maintaining a
      common nuisance charges.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1412-CR-555 | August 26, 2015            Page 2 of 6
      motion to amend the charging information, the State pointed out that, while the

      probable cause affidavit contained the correct dates of the alleged offenses, the

      charging information contained “scrivener’s errors” misstating the dates of two

      of the charged offenses. Appellant’s App. at 76. In particular, the charging

      information erroneously stated that the offenses alleged in Counts 3 and 6

      occurred on March 20, 2014, when they actually occurred on March 18, 2014.

      And the charging information erroneously stated that the offense alleged in

      Count 7 occurred on March 20, 2014, when it actually occurred on February

      27, 2014.


[4]   Pettis objected to the proposed amendment as follows: “I would object. We’re

      five days before trial and he’s amending the charging information, changing the

      dates and it’s just kind of a major thing, major part of the charging information,

      the date on which the alleged incidents occurred.” Pre-Trial Hearing Tr. at 6.

      But Pettis did not request a continuance. The trial court granted the State’s

      motion to amend the information. Following the trial on October 28-29, a jury

      found Pettis guilty as charged. The trial court entered judgment and sentence

      accordingly. This appeal ensued.


                                     Discussion and Decision
[5]   Pettis contends that the trial court erred when it allowed the State to amend the

      charging information five days before trial. In particular, Pettis maintains that

      “the date upon which each transaction occurred was of utmost importance” to

      his defense, and the late amendment prejudiced his substantial rights.

      Appellant’s Br. at 4. We cannot agree.
      Court of Appeals of Indiana | Memorandum Decision 84A01-1412-CR-555 | August 26, 2015   Page 3 of 6
[6]   Indiana Code Section 35-34-1-5 provides in relevant part that a charging

      information may be amended on motion by the prosecuting attorney “at any

      time because of any immaterial defect,” including the failure to state the time or

      place at which the offense was committed where the time or place is not of the

      essence of the offense.


[7]   In Bennett v. State, 5 N.E.3d 498 (Ind. Ct. App. 2014), the defendant argued that

      the trial court should have disallowed the State’s amendment to the charging

      information, during trial, to change the date of an alleged offense. We disagreed

      and held as follows:

              “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.” McIntyre v. State, 717 N.E.2d
              114, 125 (Ind. 1999). “Further, an amendment is of substance
              only if it is essential to making a valid charge of the crime.” Id.
              at 125-26. Furthermore, “[w]hen time is not an element of the
              crime charged, or ‘of the essence of the offense,’ the State is only
              required to prove that the offense occurred at any time within the
              statutory period of limitations; the State is not required to prove
              the offense occurred on the precise date alleged.” Poe v. State,
              775 N.E.2d 681, 686 (Ind. Ct. App. 2002).

              In the instant matter, . . . [t]he charging information originally
              alleged that Bennett committed the charged crimes “on or about
              December 7, 2011.” The State requested permission to amend
              the charging information to allege that Bennett committed the
              charged crimes “on or about December 6, 2011,” after it became
              clear from the State’s evidence that Bennett sold the cocaine in
              question to Sugarman during the late evening hours of December
              6, 2011. The amendment requested by the State was not a

      Court of Appeals of Indiana | Memorandum Decision 84A01-1412-CR-555 | August 26, 2015   Page 4 of 6
              change to the substance of the charging information as time is
              not an element of any of the crimes charged. See Ind. Code §§
              35-48-4-1(a)(1), 35-48-4-6(a), 35-48-4-13(b)(1), and 35-48-4-
              11(1).[2] Further, under Indiana law, the allegation that Bennett
              committed the charged crimes “on or about December 7, 2011”
              clearly did not limit the State only to the events of December 7,
              2011, especially in light of the fact that time is not an element of
              any of the crimes charged. See Poe, 775 N.E.2d at 686-87. As
              such, we conclude that time was not “of the essence,” and, as a
              result, the State was not required to prove that the offenses
              occurred on the precise dates alleged.

              Because time was not of the essence, we conclude that the
              requested amendment falls under Indiana Code section 35-34-1-
              5(a)(7), which again provides that a charging information “may
              be amended . . . at any time because of any immaterial defect,
              including: . . . (7) the failure to state the time or place at which the
              offense was committed where the time or place is not of the essence of the
              offense.” (Emphases added).


      Id. at 514.


[8]   Likewise, here, the State sought to amend Pettis’ dealing in cocaine and dealing

      in marijuana charges by changing the dates of the alleged offenses, and time is

      not an element of either of those offenses.3 I.C. §§ 35-48-4-1 and 35-48-4-10.

      The amendments were designed to fix immaterial defects, and the trial court did

      not err when it allowed the amendment five days before Pettis’ trial. I.C. § 35-




      2
        Respectively: dealing in cocaine, possession of cocaine, maintaining a common nuisance, and possession
      of marijuana.
      3
        In the charging information, Count 6, one of the possession of cocaine charges, also included the wrong
      date, but the trial court dismissed that charge on the State’s motion.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1412-CR-555 | August 26, 2015            Page 5 of 6
      34-1-5; Bennett, 5 N.E.3d at 514. Moreover, even if it were error to allow the

      amendment, Pettis waived that issue when he did not move for a continuance

      in conjunction with his objection. Wilson v. State, 931 N.E.2d 914, 918 (Ind. Ct.

      App. 2010), trans. denied.


[9]   Affirmed.


      Kirsch, J., and Barnes, J., concur.




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