MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                        Oct 23 2018, 7:56 am
regarded as precedent or cited before any                                        CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nicholas Carter,                                         October 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         12A02-1711-CR-2770
        v.                                               Appeal from the Clinton Superior
                                                         Court
State of Indiana,                                        The Honorable Justin Hunter,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         12D01-1612-F6-1119



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2770 | October 23, 2018          Page 1 of 12
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Nicholas Carter (Carter), appeals his convictions for two

      counts of domestic battery, both as Level 6 felonies, Ind. Code §§ 35-42-2-

      1.3(a)(1), (b)(1)-(2); and criminal trespass, a Class A misdemeanor, Ind. Code §

      35-43-2-2(b)(2).


[2]   We affirm.


                                                   ISSUES
[3]   Carter presents us with three issues on appeal which we consolidate and restate

      as:


            (1) Whether his substantial rights were prejudiced when the trial court

               permitted the State to file additional charges after a mistrial; and

            (2) Whether the State produced sufficient evidence to sustain his

               convictions.


                      FACTS AND PROCEDURAL HISTORY
[4]   Carter and his wife (Mother) have two minor children (the children), who were

      seven and eight years old in December of 2016. On December 24, 2016, the

      children were at the home of Mother’s aunt (Aunt) in Fickle, Indiana, preparing

      for a family holiday party which was to start around 3:00 p.m. Also present in

      the home was Mother’s eighty-seven-year-old grandmother (Grandmother).

      Carter and Mother arrived to retrieve the children around 2:00 p.m. Mother

      went into Aunt’s home, and Carter stayed in their car outside.

      Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2770 | October 23, 2018   Page 2 of 12
[5]   The children had made a gingerbread house with Aunt the previous evening,

      and one of the children went outside to bring Carter in to see it. Aunt heard

      Carter’s voice and wondered why he was there because Aunt did not want

      Carter in her home. Aunt went into the living room and asked Mother why

      Carter was there. Carter heard their conversation, became irate, and told Aunt

      that, if he were not allowed to be there, no one could stay.


[6]   Carter went to the dining room and picked up the gingerbread house. Aunt

      would not allow Carter to take the gingerbread house and removed it from his

      hands. Carter then struck Aunt’s arm with his hand. The children were

      watching when this occurred but sometime thereafter locked themselves in the

      bathroom, which was approximately six feet away. Aunt told Carter to “get

      out of [her] house” three times. (Transcript Trial II Vol. I, p. 192). Carter

      screamed at Aunt while standing close to her face, and Aunt shoved Carter.

      Carter grabbed Aunt by the throat and shoved her from the dining room to the

      living room. Carter held Aunt with one hand by her throat on the living room

      sofa and hit her with his other hand on her chest and head with a closed fist.


[7]   Aunt freed herself from Carter and attempted to call 9-1-1. She misdialed and

      instead telephoned her son (Son), who lived next door. Mother and Carter

      went out the front door onto the porch. Aunt stood in the doorway and stated

      that she was calling 9-1-1 and child protective services. Carter grabbed Aunt,

      pulled her onto the porch and repeatedly struck her head as she was pinned

      against the porch railing. Carter left the porch as Son arrived from next door.

      Carter asked Son, “you want a piece of me?” (Tr. Trial II Vol. I, p. 81). Carter

      Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2770 | October 23, 2018   Page 3 of 12
      attempted to strike Son but fell on the ground. Son tackled Carter and held him

      until Carter ceased struggling. Shortly thereafter, law enforcement arrived.

      One of the children told an investigating officer that she saw Carter “on” Aunt

      and “Daddy get Aunt.” (Tr. Trial II Vol. I, p. 162). Aunt refused treatment

      that afternoon. Carter was transported to the hospital for injuries he sustained

      while tussling with Son. By the next day, Aunt had developed several bumps

      on her head and bruises on her throat, head, arms, and hands.


[8]   On December 27, 2016, the State filed an information charging Carter with

      domestic battery as a Level 6 felony and criminal confinement as a Level 6

      felony. On August 9, 2017, a jury found Carter not guilty of criminal

      confinement, but the jury could not reach a verdict as to the domestic battery

      charge. The trial court declared a mistrial. On August 11, 2017, the State

      sought and was granted leave to file additional counts against Carter for a

      second count of domestic battery, a Level 6 felony 1; strangulation, a Level 6

      felony; and criminal trespass, a Class A misdemeanor. Carter sought the

      dismissal of these charges, arguing in a pre-trial motion that amendments of

      substance were not permissible after trial commenced and that to “allow for

      amendment after a partial verdict and placing [Carter] in jeopardy would

      prejudice [Carter’s] substantial rights and protections under the United States

      and Indiana Constitutions.” (Appellant’s App. Vol. II, p. 35). The trial court

      denied this pre-trial dismissal motion as well as Carter’s motions for rehearing



      1
          The State subsequently filed an information alleging that Carter had a previous conviction for battery.


      Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2770 | October 23, 2018             Page 4 of 12
       and directed verdict based upon similar arguments. Carter’s second jury trial

       took place on October 31 and November 1, 2017. Prior to the jury rendering its

       verdicts, Carter admitted that he had a prior battery conviction. The jury

       acquitted Carter of strangulation but found him guilty of the remaining charges.

       On November 27, 2017, the trial court sentenced Carter to two concurrent

       terms of eighteen months for the domestic battery convictions 2 and to sixty days

       for the criminal trespass conviction, also to be served concurrently. The trial

       court suspended one year of Carter’s aggregate eighteen-month sentence to

       probation.


[9]    Carter now appeals. Additional facts will be provided as necessary.


                                 DISCUSSION AND DECISION
                                     I. Amendment of Charging Information

[10]   Carter contends that the trial court erred when it allowed the State to amend the

       charging information to add three new charges after his first trial ended in a

       mistrial because these were substantive amendments that prejudiced his

       substantial rights. The State conceded at trial and concedes on appeal that the

       amendments were indeed substantive, but it argues that trial court properly




       2
         The trial court “merged” the conviction on the newer domestic battery charge with the conviction for
       domestic battery that had been filed initially. (Appellant’s App. Vol. III, p. 8). However, the trial court
       entered judgment of conviction for both batteries, and the abstract of judgment reflects that Carter was
       sentenced for both batteries.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2770 | October 23, 2018             Page 5 of 12
       allowed the amendments because Carter’s substantial rights were not

       prejudiced.


[11]   Charging informations may be amended as to matters of substance at any time

       before the commencement of trial as long as the defendant’s substantial rights

       are not prejudiced. Ind. Code § 35-34-1-5(b). “A defendant’s substantial rights

       include a right to sufficient notice and an opportunity to be heard regarding the

       charge.” Mannix v. State, 54 N.E.3d 1002, 1009-10 (Ind. Ct. App. 2016)

       (quotation omitted). “Ultimately, the question is whether the defendant had

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


[12]   The State filed its motion to amend the information on August 11, 2017, and

       Carter’s second jury trial took place approximately two and one-half months

       later. Although the period between the amendment of the information and trial

       was not an especially long one, Carter does not claim that he had inadequate

       notice of the new charges or that the preparation of his defense was prejudiced

       by the timing of the amendment. Rather, he asserts that his substantial rights

       were prejudiced because the trial court erred as a matter of law by allowing the

       addition of new charges after a mistrial and because the amendments violated

       state 3 constitutional protections against double jeopardy.




       3
         Although he mentions the Fifth Amendment, Carter fails to develop a separate federal double jeopardy
       analysis with cogent legal authority or citations to the record, and, thus, he has waived that claim. Indiana
       Appellate Rule 46(A)(8); see also Simms v. State, 791 N.E.2d 225, 231 n.2 (Ind. Ct. App. 2003) (finding Simms’
       vague Fifth Amendment double jeopardy claim waived for failure to make a cogent argument).

       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2770 | October 23, 2018          Page 6 of 12
[13]   We find Carter’s claim of prejudice as a matter of law to be unavailing. To

       support his claim, Carter relies upon Warner v. State, 773 N.E.2d 239 (Ind.

       2002). Warner faced a murder charge and successfully moved for mistrial after

       potentially exculpatory evidence was late-disclosed by the State during trial. Id.

       at 242. The State then sought to file additional felony murder and attempted

       robbery charges against him based upon spurious claims of newly found

       evidence. Id. at 242-43. Our supreme court held that, in the absence of newly

       found evidence, the State may not bring new charges against a defendant who

       successfully moves for a mistrial because “the potential for prosecutorial

       vindictiveness is too great . . .” Id. at 243. Warner’s holding has not been

       extended to the filing of additional charges after mistrial has been declared

       simply because a jury has been unable to reach a verdict, and we see no reason

       to do so.


[14]   Carter’s claims pertaining to double jeopardy, whether brought as a claim of

       prejudice as the result of the amendment of the charging information or

       whether brought as a freestanding claim challenging his convictions, are equally

       unavailing. At the outset we note that Carter claims in his Statement of the

       Issues and in the heading of this section of his argument that he was acquitted

       of strangulation at his first trial. This is factually incorrect, as he was not

       charged with strangulation in the first set of charges. Carter provides us with

       some substantive law pertaining to an “actual evidence” analysis under Article

       I, Section 14, of the Indiana Constitution. However, the lion’s share of his

       argument pertains to addressing the trial court’s findings regarding the filing of


       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2770 | October 23, 2018   Page 7 of 12
       the strangulation charge for the second trial, which, as noted by the State, is a

       moot issue since Carter was acquitted of that charge at his second trial. See

       Jones v. State, 847 N.E. 2d 190, 200 (Ind. Ct. App. 2006) (holding that a case is

       moot when a court is unable to render effective relief to a party), trans. denied.


[15]   The only other argument Carter offers on this issue is that “[t]he evidence upon

       which the jury relied, or could have relied, in the second trial as to Battery was

       the same evidence as that upon which the first jury had acquitted Carter for

       confinement.” (Appellant’s Br. p. 20). We find this argument to be

       unpersuasive for at least two reasons. It is unclear to us if Carter challenges

       both of his battery convictions or simply the conviction resulting from the

       newer battery charge. More importantly, it was Carter’s burden to develop his

       “actual evidence” double jeopardy argument. See Richardson v. State, 717

       N.E.2d 32, 53 (Ind. 1999) (“[A] defendant must demonstrate a reasonable

       possibility that the evidentiary facts used by the fact-finder to establish the

       essential elements of one offense may also have been used to establish the

       essential elements of a second challenged offense.”) (emphasis added). This

       necessitates an examination of the evidence actually presented at trial. Id. In

       addition, a defendant may develop his “actual evidence” argument by

       referencing the charging informations, any instructions provided to the jury,

       and the arguments of counsel. Hunter v. State, 72 N.E.3d 928, 934 (Ind. Ct.

       App. 2017), trans. denied. Here, Carter failed to substantiate his “actual

       evidence” argument as it pertained to his battery conviction(s) with any

       reference to the evidence actually presented at either of his trials, the charging

       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2770 | October 23, 2018   Page 8 of 12
       informations, jury instructions, or argument of counsel before the jury.

       Therefore, Carter has failed to demonstrate that he was prejudiced by the filing

       of additional charges or that any of his convictions violated double jeopardy

       prohibitions.


                                         II. Sufficiency of the Evidence

[16]   Carter contends that the State failed to prove beyond a reasonable doubt that

       Aunt excluded him from her property to sustain his conviction for criminal

       trespass or that one of the children was where she could see or hear the offenses

       to sustain one of his battery convictions. It is well-settled that


               [w]hen an appeal raises a sufficiency of evidence challenge, we
               do not reweigh the evidence or judge the credibility of the
               witnesses, and we respect a fact-finder’s exclusive province to
               weigh conflicting evidence. We consider only the probative
               evidence and the reasonable inferences that support the verdict.
               We will affirm if the probative evidence and reasonable
               inferences drawn from the evidence could have allowed a
               reasonable trier of fact to find the defendant guilty beyond a
               reasonable doubt.


       Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018) (citations and quotations

       omitted).


                                               A. Criminal Trespass

[17]   The State charged Carter with criminal trespass in relevant part as follows:

               [O]n or about December 24, 2016 in Clinton County, State of
               Indiana, [Carter], not having a contractual interest in the
               property, did knowingly or intentionally refuse to leave the real


       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2770 | October 23, 2018   Page 9 of 12
               property of [Aunt], after having been asked to leave by [Aunt] or
               [h]er agent.


       (Appellant’s App. Vol. II, p. 33). Thus, the State was required to prove

       that Carter refused to leave Aunt’s property after Aunt or her agent

       asked Carter to leave. Aunt testified at trial that, after Carter initially

       struck her, she told him to “get out of [her] house” three times. (Tr.

       Trial II Vol. I, p. 192). Carter then yelled at Aunt, struck Aunt in the

       living room and on the porch, and engaged Son in a physical

       confrontation in the yard of Aunt’s home. Based on this evidence, we

       conclude that the State proved beyond a reasonable doubt that Carter

       refused to leave Aunt’s home after she asked him to do so.



                                                     B. Battery

[18]   The State charged Carter with battery in relevant part as follows:


               [O]n or about December 24, 2016 in Clinton County, State of
               Indiana, [Carter] did knowingly or intentionally touch [Aunt], a
               family or household member in a rude, insolent, or angry manner
               by punching and choking; [Carter] committed said offense in the
               presence of a child less than 16 years of age, [one of the children],
               knowing that the child was present and might be able to see or
               hear the offense.


       (Appellant’s App. Vol. II, p. 12). Carter only challenges the sufficiency of the

       evidence supporting the jury’s conclusion that he committed the battery in the

       presence of one of the children. For purposes of the battery statute, ‘presence’ is

       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2770 | October 23, 2018   Page 10 of 12
       defined as “knowingly being within either the possible sight or hearing of a

       child.” True v. State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011) (emphasis

       omitted). No child actually has to perceive the battery for the State to prove the

       offense; it is only necessary that there was the possibility that a child might see

       or hear it. Id.


[19]   Here, the evidence revealed that the children, who had just been showing

       Carter the gingerbread house, were present and watching when Carter initially

       struck Aunt on the arm in the dining room. The children then locked

       themselves in the bathroom, which was located six feet away from the dining

       room of Aunt’s home, which Grandmother characterized at trial as “not very

       big.” (Tr. Trial II Vol. I, p. 112). The dining room and living room were not

       separated. One of the children reported that “Daddy got Aunt,” and that she

       saw Carter “on” Aunt. (Tr. Trial II Vol. I, p. 162). We conclude that this

       evidence supports a reasonable inference that one of the children actually

       witnessed Carter batter Aunt in the dining room and that it was also possible

       that one of the children heard Carter continue to batter Aunt in the living room

       after the child locked herself in the bathroom. Carter merely directs us to

       evidence in the record that does not support the jury’s conclusion, which is

       unpersuasive given our standard of review. Phipps, 90 N.E.3d at 1195. The

       State produced sufficient evidence to support Carter’s convictions for criminal

       trespass and domestic battery beyond a reasonable doubt.




       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2770 | October 23, 2018   Page 11 of 12
                                             CONCLUSION
[20]   Based on the foregoing, we conclude that Carter’s substantial rights were not

       prejudiced by the addition of charges after his first trial resulted in a mistrial due

       to a hung jury and that the State produced sufficient evidence to support his

       convictions for criminal trespass and domestic battery in the presence of a child.


[21]   Affirmed.


[22]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 12A02-1711-CR-2770 | October 23, 2018   Page 12 of 12
