MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Dec 08 2016, 9:10 am

regarded as precedent or cited before any                               CLERK
                                                                    Indiana Supreme Court
court except for the purpose of establishing                           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
Megan Shipley                                           Gregory F. Zoeller
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Justin F. Roebel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Joshua Thompson,                                        December 8, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1605-CR-1082
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark Stoner,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G06-1510-F3-36806



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016     Page 1 of 14
                                          Case Summary
[1]   Joshua Thompson (“Thompson”) was convicted after a jury trial of Armed

      Robbery, as a Level 3 felony,1 and two counts of Resisting Law Enforcement,

      one as a Level 6 felony and one as a Class A misdemeanor. 2 He now appeals.


[2]   We affirm in part, reverse in part, and remand.



                                                   Issues
[3]   Thompson raises two issues for our review, which we restate as

                    I.     Whether the trial court erred when it permitted the State to
                           amend the charging information after the first day of trial,
                           after evidence had been heard by the jury; and


                   II.     Whether one of Thompson’s convictions for Resisting
                           Law Enforcement is barred under double jeopardy
                           principles.


                                 Facts and Procedural History
[4]   On July 10, 2015, Nemecio Hernandez-Acevedo (“Hernandez-Acevedo”) had

      borrowed a Chrysler 200, a car belonging to his cousin, Juan Noyoal-Rodriguez

      (“Noyoal-Rodriguez”), to drive to work. After work, Hernandez-Acevedo

      drove to a liquor store in Indianapolis. While in the parking lot of the store,



      1
          Ind. Code § 35-42-5-1(1).
      2
          I.C. § 35-44.1-3-1(a)(3).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016   Page 2 of 14
      Thompson and a companion approached the car. Thompson and his

      companion, using an airsoft pellet gun3 that was cosmetically identical to a

      standard firearm, held Hernandez-Acevedo at gunpoint and forced him to drive

      them to a number of locations on Indianapolis’s east side. The pair eventually

      left Hernandez-Acevedo at the side of a road and drove away in Noyoal-

      Rodriguez’s car.


[5]   Hernandez-Acevedo, with help from people at a nearby gas station, called

      police, who responded and took a report. He then took a taxi cab home. When

      he arrived at home, Hernandez-Acevedo told Noyoal-Rodriguez what had

      happened. They called police and reported the car stolen. As a result of the

      theft, a GPS device was activated on the car that allowed police to track it.


[6]   A few days later, on July 13, 2015, Officer Charles King (“Officer King”) of the

      Indianapolis Metropolitan Police Department was dispatched to investigate a

      location where GPS systems indicated Noyoal-Rodriguez’s Chrysler might be.

      Officer King saw the vehicle at the intersection of Falls Church Drive and Peter

      Court in Indianapolis. Officer King saw Thompson driving the car and made

      eye contact with Thompson; Officer King then activated the patrol car’s lights

      to conduct a traffic stop, but Thompson drove away. Officer King pursued

      Thompson a short distance down Peter Court, which ended in a cul-de-sac.




      3
          An airsoft gun uses compressed air to propel round plastic pellets, rather than metal pellets or BBs.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016               Page 3 of 14
      Thompson drove the car into the yard of one of the houses on the cul-de-sac,

      and then fled on foot.


[7]   The Peter Court area backed up against Interstate 70. Thompson fled, climbed

      over a fence separating the neighborhood from the highway, and ran across the

      interstate highway. Officer King notified other officers of Thompson’s route,

      and Thompson was eventually apprehended.


[8]   After Thompson abandoned the car, Officer King began to search the vehicle

      and saw the grip of a pistol jutting out from a map pocket on the driver’s door.

      Officer King called for an evidence technician to photograph the scene and for a

      gun liaison to retrieve the weapon. The gun liaison determined that the pistol

      was an airsoft gun that was visually identical to a standard firearm, but that was

      much lighter in weight and was capable of firing pellets or BBs.


[9]   On October 16, 2015, Thompson was charged with four counts of Kidnapping,

      as Level 3 felonies;4 two counts of Armed Robbery, as Level 3 felonies; one

      count of Criminal Confinement, as a Level 3 felony;5 and two counts of

      Resisting Law Enforcement, one as a Level 6 felony, and one as a Class A

      misdemeanor. The charges for Armed Robbery differed as to the property

      identified as having been taken by force from Hernandez-Acevedo. Both

      charges shared language alleging that the charged offenses were committed “by




      4
          I.C. § 35-42-3-2(a).
      5
          I.C. § 35-42-3-3(a).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016   Page 4 of 14
       use of force or by threatening the use of force, to-wit: by demanding said items

       while having brandished a handgun; said act being committed while the

       defendant was armed with a deadly weapon, to-wit: said handgun.” (App’x at

       40.)


[10]   A jury trial was conducted on April 11 and 12, 2016. At the beginning of the

       trial, the jury was instructed on Armed Robbery and all the other charges as per

       the charging information. After the first day of the trial, the State moved to

       amend the charging information so that it would allege that Thompson had

       committed Armed Robbery using a deadly weapon, but would omit language

       related to the use of a handgun. Thompson objected to the amendment as

       untimely and as prejudicial to his defense. The trial court granted the State’s

       motion to amend the charging information. When final instructions were

       issued to the jury, they reflected the charges as amended and omitted any

       mention of a handgun.


[11]   At the close of the trial, the jury found Thompson guilty of one count of Armed

       Robbery and both counts of Resisting Law Enforcement. The jury returned not

       guilty verdicts on all other offenses except for Criminal Confinement, on which

       the jury was hung. On April 29, a sentencing hearing was conducted, during

       which the trial court entered judgment on the Armed Robbery and Resisting

       Law Enforcement guilty verdicts, and the State moved to dismiss the Criminal

       Confinement charge. At the conclusion of the hearing, the court sentenced

       Thompson to nine years imprisonment for Armed Robbery, with one year to be

       served in community corrections; two years imprisonment for Resisting Law

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016   Page 5 of 14
       Enforcement, as a Level 6 felony, to be served in community corrections

       consecutive to the sentence for Armed Robbery; and one year imprisonment for

       Resisting Law Enforcement, as a Class A misdemeanor, with the sentence

       running concurrent with the sentence for the felony-level charge of Resisting

       Law Enforcement.


[12]   This appeal ensued.



                                 Discussion and Decision
                     Amendment of the Charging Information
[13]   Thompson’s appeal first challenges the trial court’s decision granting the State’s

       motion to amend the charging information after the first day of trial, because

       the amendment was one of substance that impaired Thompson’s defense and

       thus prejudiced his rights. The Indiana Code provides, “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 of the defendant.” I.C. § 35-34-1-5(c). The Indiana Supreme

       Court has set forth the test for determining whether an amendment to the

       charging information was one of form or of substance:


               …an amendment is one of form, not substance, if both (a) a
               defense under the original information would be equally
               available after the amendment, and (b) the accused’s evidence
               would apply equally to the information in either form. And an


       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016   Page 6 of 14
               amendment is one of substance only if it is essential to making a
               valid charge of the crime.


       Fajardo v. State, 859 N.E.2d 1201, 1207 (Ind. 2007).


[14]   Even if an amendment is one of form, it must not prejudice a defendant’s

       substantial rights. I.C. § 35-34-1-5(c) (“permit[ting] an amendment … in form

       which does not prejudice the substantial rights of the defendant.”). Among a

       defendant’s substantial rights are notice and an opportunity to be heard

       regarding the charge. Nunley v. State, 995 N.E.2d 718, 723 (Ind. Ct. App. 2013)

       (citing Gomez v. State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009), trans. denied),

       clarified on reh’g, 4 N.E.2d 669, trans. denied. If an amendment does not affect

       any particular defense or change the positions of either of the parties, it does not

       violate the defendant’s substantial rights. Erkins v. State, 13 N.E.3d 400, 405

       (Ind. 2014). “‘An amendment is of substance only if it is essential to making a

       valid charge of the crime.’” Id. at 406 (quoting Fajardo, 859 N.E.2d at 1205).

       “‘Ultimately, the question is whether the defendant had a reasonable

       opportunity to prepare for and defend against the charges.’” Id. at 406 (quoting

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

       Fajardo, 859 N.E.2d at 1206-07).


[15]   As the case proceeded through the first day of trial, Officer King testified that

       the weapon found in the car Thompson had been driving on the day of his

       arrest was an airsoft gun that fired “steel” or “plastic bb’s.” (Tr. at 97.) Officer

       King further testified that the airsoft gun used compressed air to fire the

       projectiles and that those projectiles could seriously injure an individual’s eye.
       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016   Page 7 of 14
       Hernandez-Acevedo, upon being shown the airsoft gun, testified that

       Thompson and his accomplice had used the gun to commit the robbery.


[16]   After the jury had been dismissed for the day, the State moved to amend the

       charging information, seeking to remove the language related to the use of a

       handgun. Thompson opposed this, arguing that the defense he had prepared

       for trial was premised on the distinction between a handgun and an airsoft gun.

       Thompson argued that the use of the handgun language, incorporated into the

       charging information as part of the deadly weapon element to be proved by the

       State, meant the difference between a Level 3 felony and a Level 5 felony for

       committing robbery while not armed with a deadly weapon. The State

       conceded that Thompson’s position that the airsoft gun was not a handgun was

       correct, but that the amendments posed no prejudice to Thompson’s defense.

       The trial court agreed with the State and granted the motion to amend the

       charges.


[17]   Turning to the nature of the charges and Thompson’s defense, the charging

       statute that defines the offense of Armed Robbery provides:

               A person who knowingly or intentionally takes property from
               another person or from the presence of another person:


               (1) by using or threatening the use of force on any person; or


               (2) by putting any person in fear;




       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016   Page 8 of 14
               commits robbery, a Level 5 felony. However, the offense is a
               Level 3 felony if it is committed while armed with a deadly
               weapon or results in bodily injury to any person other than a
               defendant, and a Level 2 felony if it results in seriously bodily
               injury to any person other than a defendant.


       I.C. § 35-42-5-1.


[18]   Prior to trial, the State had charged Thompson with two counts of Armed

       Robbery. Each included allegations that Thompson had committed the

       offenses “by use of force or by threatening the use of force, to-wit: by

       demanding said items while having brandished a handgun; said act being

       committed while the defendant was armed with a deadly weapon, to-wit: said

       handgun.” (App’x at 40.) The court issued preliminary jury instructions based

       upon this charge:

               To convict the defendant, the State must prove each of the
               following elements:


               ***


               4. by using force or by threatening the use of force, to-wit: by
               ordering [Hernandez-Acevedo] to exit said vehicle, leaving the
               keys in said vehicle,


               5. while armed with a deadly weapon, to-wit, a handgun.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016   Page 9 of 14
       (App’x at 53.)6 The preliminary instructions also defined the term “deadly

       weapon”:


               The term “deadly weapon” is defined by law as meaning:


               1. a loaded or unloaded firearm;


               2. or a weapon, device, taser or electronic stun weapon,
               equipment, chemical substance, or other material that in the
               manner it is used, or could ordinarily be used, is readily capable
               of causing serious bodily injury.


       (App’x at 46.)


[19]   As amended, the portions of the charges related to use of a deadly weapon for

       Armed Robbery alleged that Thompson took property from Hernandez-

       Acevedo, “by using force or by threatening the use of force, to-wit: by

       demanding said items while having brandished a deadly weapon; said act being

       committed while the defendant was armed with a deadly weapon.” (App’x at

       69.) The trial court’s final instructions to the jury informed the jury of the

       nature of the changes to the charging information, and for each count of Armed

       Robbery stated that the State was required to prove each of the elements of the

       charged offenses, including that Thompson “took property … from another

       person … by using force or by threatening the use of force, to-wit: by




       6
        Both Armed Robbery charges were presented in the preliminary instructions; they differ only in the
       property specified as having been taken by force.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016       Page 10 of 14
       demanding said items while having brandished a deadly weapon.” (App’x at

       84.)7 With respect to all the charged offenses involving use of a deadly weapon,

       the jury ultimately found Thompson not guilty of all the Kidnapping and

       Armed Robbery charges but one—that involving theft of the car Hernandez-

       Acevedo had been driving.8


[20]   Here, Thompson argues that the late-amended charging information impaired

       his defense. Specifically, Thompson argues that the trial court’s decision

       granting the State’s motion to amend the charging information was prejudicial

       to his defense because Thompson’s theory of defense was that the airsoft gun

       was not a firearm under Indiana law, and therefore did not constitute a

       handgun as alleged in the charging information. Thompson relied on several

       Indiana cases for this proposition, notably Miller v. State, in which this Court

       held that a “CO2 gas powered .177 caliber pellet gun which looks exactly like a

       Model 92 Beretta 9mm semiautomatic pistol” was not a handgun as that term

       was defined in the Indiana Code, because such a weapon was not a firearm.

       616 N.E.2d 750, 751 (Ind. Ct. App. 1990). The Miller Court reviewed this issue

       sua sponte as a sufficiency-of-the-evidence issue, and vacated Miller’s conviction

       because Miller’s pellet gun did not fit the definition of a handgun. Id. Citing

       the Miller Court as authority, Thompson contends that the handgun terms of




       7
        The final instructions also set forth the lesser-included offense of Robbery as a Level 5 felony, to be
       considered if the State failed to prove the deadly weapon element of Armed Robbery, as charged.
       8
         The jury was hung on the allegation of Criminal Confinement, and the State ultimately moved to dismiss
       that charge.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016            Page 11 of 14
       the charges against him were essential elements of the charged offenses and that

       his defense was impaired as a result of the amendment to the charging

       information.


[21]   We disagree. Use in the original charging information and the preliminary jury

       instructions of the term “handgun” was not necessary under the charging

       statute to establish a violation of Indiana Code section 35-42-5-1, which

       provides that a Level 3 felony conviction for Robbery may be proved when the

       defendant is “armed with a deadly weapon,” but does not by its terms require

       proof of the use of a handgun. Revision of the charging information here to

       delete the use of “handgun” does not change the fundamental charge or

       statutory elements needed to prove the charged offense of Armed Robbery. See

       Erkins, 13 N.E.3d at 406 (quoting Fajardo for the proposition that “‘[a]n

       amendment is of substance only if it is essential to making a valid charge of the

       crime’”). And while Thompson went into trial expecting to defend against a

       handgun-related charge, he was aware before trial of the nature of the weapon

       he was accused of having used in the charged offenses. He thus cannot claim to

       have been deprived of notice of the evidence against him or of the charges. See

       id. (reiterating Fajardo, “‘[u]ltimately, the question is whether the defendant had

       a reasonable opportunity to prepare for and defend against the charges’”).


[22]   We accordingly find no error on the part of the trial court in granting the State’s

       motion to amend the charging information, and we affirm Thompson’s

       conviction for Armed Robbery, as a Level 3 felony.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016   Page 12 of 14
                                           Double Jeopardy
[23]   Thompson’s other contention on appeal is that the trial court’s entry of

       judgment on both felony- and misdemeanor-level charges of Resisting Law

       Enforcement violates double jeopardy principles—specifically, Indiana’s

       continuing crime doctrine—and that the misdemeanor conviction should be

       vacated. The State, while not conceding the point, seems implicitly to agree.


[24]   The continuing crime doctrine “‘reflects a category of Indiana’s prohibition

       against double jeopardy.’” Chavez v. State, 988 N.E.2d 1226, 1228 (Ind. Ct.

       App. 2013) (quoting Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010)),

       trans. denied. The double jeopardy clause of the Indiana Constitution has been

       interpreted to prohibit a defendant from being convicted multiple times for a

       single continuous offense, rather than to reconcile the implications of two

       separately chargeable offenses. Id. (citing Boyd v. State, 766 N.E.2d 396, 400

       (Ind. Ct. App. 2000)).


[25]   This Court has on several occasions expressly held that where a single episode

       of flight from police involves a defendant’s use of a vehicle, abandonment of the

       vehicle, and immediate and continued flight from police on foot, the

       continuous crime doctrine operates to vitiate the lesser misdemeanor charge.

       Lewis v. State, 43 N.E.2d 689, 691 (Ind. Ct. App. 2015) (citing Arthur v. State,

       824 N.E.2d 383, 385 (Ind. Ct. App. 2005), disagreed with on other grounds, Brock

       v. State, 955 N.E.2d 195 (Ind. 2011)). The facts here are on all-fours with those

       cases: Thompson was pursued by police while driving the stolen Chrysler,


       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016   Page 13 of 14
       abandoned the vehicle, continued his flight on foot, and was soon thereafter

       apprehended by other officers during the same pursuit. We accordingly agree

       with Thompson that his Class A misdemeanor conviction for Resisting Law

       Enforcement must be vacated. We leave undisturbed his conviction for

       Resisting Law Enforcement, as a Level 6 felony, and remand this case to the

       trial court to correct its records.



                                               Conclusion
[26]   The trial court did not err when it granted the State’s motion to amend the

       charging information after the first day of the trial. Thompson’s conviction for

       two counts of Resisting Law Enforcement is contrary to double jeopardy

       principles, and we vacate his conviction for Resisting Law Enforcement, as a

       Class A Misdemeanor, leaving his Level 6 felony conviction undisturbed. We

       remand to the trial court for purposes of correcting its record.


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


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016   Page 14 of 14
