MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Nov 20 2018, 6:35 am
regarded as precedent or cited before any                                       CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                      Curtis T. Hill, Jr.
Kokomo, Indiana                                         Attorney General of Indiana
                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael S. Robinson,                                    November 20, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1013
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable Brant J. Parry,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        34D02-1612-F3-342



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1013 | November 20, 2018                   Page 1 of 11
[1]   Michael S. Robinson appeals and raises one issue which we revise and restate

      as whether the trial court erred in allowing the State to amend the charging

      information related to Counts I and XIII. We affirm.


                                      Facts and Procedural History

[2]   On December 16, 2016, the State charged Robinson with Count I, kidnapping

      as a level 3 felony alleging that Robinson did “knowingly or intentionally

      remove another person, to-wit: Matthew W. Caine and Bryan Hill; by fraud,

      enticement, force, or threat of force, from one place to another, while armed

      with a deadly weapon, to-wit: Michael Robinson’s hands and feet.”

      Appellant’s Appendix Volume II at 20. The State also charged him with Count

      II, criminal confinement of Caine and Hill as a level 3 felony; Count III,

      aggravated battery of Caine as a level 3 felony; and Count IV, criminal

      recklessness as a level 6 felony. On December 27, 2016, the court set an

      omnibus date of March 3, 2017.


[3]   On January 23, 2017, the State filed Count V, conspiracy to commit murder of

      Caine as a level 2 felony; Count VI, conspiracy to commit murder of Hill as a

      level 2 felony; and Count VII, auto theft as a level 6 felony. On February 28,

      2017, the State alleged that Robinson was an habitual offender as Count VIII.


[4]   On November 15, 2017, the State charged Robinson with Count IX, robbery

      resulting in serious bodily injury of Caine as a level 2 felony; Count X, robbery

      resulting in serious bodily injury of Hill as a level 2 felony; Count XI, robbery of

      Caine as a level 3 felony; and Count XII, robbery of Hill as a level 3 felony. On


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1013 | November 20, 2018   Page 2 of 11
      November 17, 2017, the court granted a motion by the State to dismiss Count

      VIII.


[5]   On February 15, 2018, the State filed an amended charging information for

      Counts I, II, and III. Specifically, the State alleged in Count I, kidnapping as a

      level 3 felony, that Robinson “while armed with a deadly weapon, to-wit: a gun

      and/or a knife did knowingly or intentionally remove Matthew Caine by fraud,

      enticement, force, or threat of force from one place to another place . . . .”

      Appellant’s Appendix Volume III at 19. That same day, the State also charged

      Robinson with Count XIII, criminal confinement as a level 3 felony, alleging

      that Robinson “did knowingly or intentionally confine Bryan Hill without the

      consent of Matthew Caine, and Michael S. Robinson being armed with a

      deadly weapon, to wit: baseball bat and a gun . . . .” Id. at 29. The State also

      charged him with Count XIV, aggravated battery of Hill as a level 3 felony, and

      Count XV, kidnapping of Hill as a level 3 felony.


[6]   On February 20, 2018, the parties conducted voir dire and a jury was sworn,

      admonished, and released to reappear on the following day. Outside of the

      presence of the jury, Robinson’s counsel objected to amended Count I and

      argued that the change from a deadly weapon being Robinson’s hands and feet

      as alleged in the original Count I to a deadly weapon being a gun or knife in the

      amended Count I information constituted an alteration as to substance. The

      prosecutor stated that the facts “while they are substantive in nature, come as

      no surprise to the defense,” and asserted that he did not “have to list [the

      weapon] under the to-wit portion.” Transcript Volume II at 4-5. The

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1013 | November 20, 2018   Page 3 of 11
      prosecutor also indicated that the information was contained in the case reports

      and depositions of the victims. The court stated in part: “In November 15 there

      were charges filed about the use of a hand gun and, you know, in my view, I

      understand what you’re saying [Robinson’s counsel], but I also believe that it

      was, in essence, a somewhat of a scrivener’s error of saying a deadly weapon

      was someone’s hands.” Id. at 7. The court allowed the amendment for Count

      I. Upon the State’s request, the court dismissed Count IV.


[7]   On February 21, 2018, the State filed an amended information for Count XIII,

      criminal confinement as a level 3 felony, and alleged that Robinson “did

      knowingly or intentionally confine Bryan Hill without the consent of Bryan

      Hill, said [Robinson] being armed with a deadly weapon, to wit: baseball bat

      and a gun . . . .” Appellant’s Appendix Volume III at 55. That same day, the

      jury heard opening statements. The court conducted a jury trial on February

      21, 22, and 23.


[8]   On February 22, 2018, the court discussed amended Count XIII with the

      parties’ counsel. Robinson’s counsel objected and argued that jeopardy had

      already attached and asserted that the amended count changed the character of

      the original charge. The court indicated that it would make a decision prior to

      the reading of the final instructions. Later, Robinson’s counsel argued that the

      amended information would confuse the jury and that he intended to move for

      a directed verdict on Count XIII at the close of the State’s evidence. The

      prosecutor asserted that it was a scrivener’s error and it was not confusing to the



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1013 | November 20, 2018   Page 4 of 11
       jury. The court stated that the change was “as to form, not substance,” and did

       not affect any defense. Transcript Volume III at 48.


[9]    On February 23, 2018, the jury found Robinson guilty of amended Count I,

       amended Count II, amended Count III, Count VII, Count IX, Count X, Count

       XI, Count XII, amended Count XIII, Count XIV, and Count XV. The court

       entered judgments of conviction on these counts. The jury found Robinson not

       guilty of Counts V and VI. The court found that Count XI and amended Count

       III merged with Count IX, Counts XII and XIV merged with Count X, Count

       II merged with Count I, and Count XIII merged with Count XV for sentencing

       purposes.


                                                      Discussion

[10]   The issue is whether the trial court erred in allowing the State to amend the

       charging information for Counts I and XIII.1 Robinson argues that the

       amended information for Count I was filed five days before trial, that the State

       acknowledged that the amendment was substantive in nature, and that his

       substantial rights were prejudiced. He asserts that his trial preparation under

       Count I “would have been nil because dismissal was a ‘slam dunk’ as soon as

       the State rested.” Appellant’s Brief at 12. He also argues that the amendment

       of Count XIII prejudiced his substantial rights. The State argues that the



       1
        In his summary of the argument, Robinson asserts that the trial court committed error “in overruling [his]
       objections to the State’s filing of Amended Informations for Counts 1 and 3.” Appellant’s Brief at 10.
       However, his argument section focuses on Counts I and XIII and does not mention Count III. In his
       conclusion, he also refers to only Counts I and XIII.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1013 | November 20, 2018                Page 5 of 11
       amendments in Counts I and XIII corrected immaterial defects or miswritings

       and, if the amendments did not correct miswritings, the amendments corrected

       mere defects, imperfections, or omissions in form which did not prejudice

       Robinson’s substantial rights.


[11]   Ind. Code § 35-34-1-5 governs amendment of charges and provides in part:


               (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;

                       (2) any misjoinder of parties defendant or offenses
                       charged;

                       (3) the presence of any unnecessary repugnant allegation;

                       (4) the failure to negate any exception, excuse, or
                       provision contained in the statute defining the offense;

                       (5) the use of alternative or disjunctive allegations as to the
                       acts, means, intents, or results charged;

                       (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;

                       (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;

                       (8) the failure to state an amount of value or price of any
                       matter where that value or price is not of the essence of the
                       offense; or


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1013 | November 20, 2018   Page 6 of 11
                (9) any other defect which does not prejudice the
                substantial rights of the defendant.

        (b) The indictment or information may be amended in matters of
        substance and the names of material witnesses may be added, by
        the prosecuting attorney, upon giving written notice to the
        defendant at any time:

                (1) up to:

                         (A) thirty (30) days if the defendant is charged with
                         a felony; or

                         (B) fifteen (15) days if the defendant is charged only
                         with one (1) or more misdemeanors;

                before the omnibus date; or

                (2) before the commencement of trial;

        if the amendment does not prejudice the substantial rights of the
        defendant. When the information or indictment is amended, it
        shall be signed by the prosecuting attorney or a deputy
        prosecuting attorney.

        (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 of the defendant.

        (d) Before amendment of any indictment or information other
        than amendment as provided in subsection (b), the court shall
        give all parties adequate notice of the intended amendment and
        an opportunity to be heard. Upon permitting such amendment,
        the court shall, upon motion by the defendant, order any
        continuance of the proceedings which may be necessary to
        accord the defendant adequate opportunity to prepare the
        defendant’s defense.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1013 | November 20, 2018   Page 7 of 11
[12]   “A charging information may be amended at various stages of a prosecution,

       depending on whether the amendment is to the form or to the substance of the

       original information.” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014) (quoting

       Fajardo v. State, 859 N.E.2d 1201, 1203 (Ind. 2007)), reh’g denied, cert. denied, 135

       S. Ct. 967 (2015). 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:


               [A]n 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. Further, 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 (quoting McIntyre v. State, 717

       N.E.2d 114, 125-126 (Ind. 1999), reh’g denied). “Whether an amendment to a

       charging information is a matter of substance or form is a question of law.” Id.

       at 405. We review questions of law de novo. Id.


[13]   “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.’” Id. (quoting Gomez v. State, 907 N.E.2d 607, 611

       (Ind. Ct. App. 2009), trans. denied). “Ultimately, the question is whether the

       defendant had a reasonable opportunity to prepare for and defend against the



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1013 | November 20, 2018   Page 8 of 11
       charges.” Id. at 405-406 (quoting Sides v. State, 693 N.E.2d 1310, 1313 (Ind.

       1998), abrogated on other grounds by Fajardo, 859 N.E.2d. at 1206-1207).


[14]   The original charging information for Count I alleged that Robinson did

       “[k]nowingly or intentionally remove another person, to-wit: Matthew W.

       Caine and Bryan Hill; by fraud, enticement, force, or threat of force, from one

       place to another, while armed with a deadly weapon, to-wit: Michael

       Robinson’s hands and feet . . . .” Appellant’s Appendix Volume II at 20. The

       amended information for Count I filed on February 15, 2018, alleged that

       Robinson “while armed with a deadly weapon, to-wit: a gun and/or a knife did

       knowingly or intentionally remove Matthew Caine by fraud, enticement, force

       or threat of force from one place to another place . . . .” Appellant’s Appendix

       Volume III at 19.


[15]   Both the original and amended counts referenced Ind. Code § 35-42-3-2, which

       provides in part that “[a] person who knowingly or intentionally removes

       another person, by fraud, enticement, force, or threat of force, from one place to

       another commits kidnapping” and that the offense is a level 3 felony if it “is

       committed while armed with a deadly weapon.”


[16]   The reference in the original charging information to any specific deadly

       weapon was not necessary under the charging statute to establish a violation of

       Ind. Code § 35-42-3-2, which provides that a level 3 felony conviction for

       kidnapping may be proved when the defendant is “armed with a deadly

       weapon.” Revision of the charging information does not change the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1013 | November 20, 2018   Page 9 of 11
fundamental charge or statutory elements needed to prove the charged offense

of kidnapping as a level 3 felony. 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’”). Robinson does not argue that he was

not provided with Patrol Officer E. Fogg’s Incident Report or Detective Brent

Wines’s statement which were included as part of the affidavit of probable

cause. Officer Fogg’s report included the allegation Robinson told Caine and

Hill “to get a t-shirt on before ordering them into Hill’s truck outside,” that Hill

and Caine “were placed in the front seat while [Robinson] drove and [Marcus

Robinson] was in the back seat armed with a gun,” and that Hill reported that

“they told him they were going to kill them.” Appellant’s Appendix Volume II

at 34. Detective Wines’s statement includes the allegation that Caine advised

him that he and Hill “were escorted at gun point to the truck.” Id. at 40. Based

on the evidence available to Robinson before the beginning of his trial, it would

have come as no surprise to him that the State would attempt to prove that the

deadly weapon was a gun. Robinson was not deprived of notice of the evidence

against him or of the charges. See Erkins, 13 N.E.3d at 406 (reiterating Fajardo,

“‘[u]ltimately, the question is whether the defendant had a reasonable

opportunity to prepare for and defend against the charges’”). Under these

circumstances, we cannot say that reversal is warranted. See id. (addressing an

amended information which changed the identity of a co-conspirator and

holding that the particular identity of the co-conspirator performing the overt

act was not essential to making a valid conspiracy charge, that it would have

come as no surprise to the defendant that the State would attempt to prove that
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1013 | November 20, 2018   Page 10 of 11
       it was in fact a certain individual who performed an overt act, that the

       defendant’s ability to prepare his defense was not affected, that the amendment

       was one of form, and that the trial court did not err in permitting it).


[17]   With respect to Count XIII, the original information alleged that Robinson “did

       knowingly or intentionally confine Bryan Hill without the consent of Matthew

       Caine, and [Robinson] being armed with a deadly weapon, to wit: baseball bat

       and a gun . . . .” Appellant’s Appendix Volume III at 29. The amended

       information for Count XIII alleged that Robinson “did knowingly or

       intentionally confine Bryan Hill without the consent of Bryan Hill, said

       [Robinson] being armed with a deadly weapon, to wit: baseball bat and a gun . .

       . .” Id. at 55. Based on the evidence available to Robinson before the beginning

       of his trial, he was not deprived of notice of the evidence against him or of the

       amended charge. We conclude that this amendment corrected an immaterial

       defect or a defect, imperfection, or omission in form which did not prejudice

       Robinson’s substantial rights. We cannot say that reversal is required.




                                                   Conclusion

[18]   For the foregoing reasons, we affirm the trial court.


[19]   Affirmed.


       Altice, J., and Tavitas, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1013 | November 20, 2018   Page 11 of 11
