MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        May 10 2017, 7:43 am
court except for the purpose of establishing
                                                                      CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                     Curtis T. Hill, Jr.
Elkhart, Indiana                                        Attorney General of Indiana

                                                        Ian McLean
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Bradley A. Bible,                                       May 10, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A03-1608-CR-1897
        v.                                              Appeal from the Elkhart Superior
                                                        Court
State of Indiana,                                       The Honorable David C.
Appellee-Plaintiff.                                     Bonfiglio, Judge
                                                        Trial Court Cause No.
                                                        20D06-1503-F6-210



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-1897 | May 10, 2017       Page 1 of 13
[1]   Bradley A. Bible appeals his conviction for operating a vehicle while

      intoxicated as a level 6 felony. Bible raises three issues which we revise and

      restate as:


          I.        Whether the trial court erred in allowing the State to amend the
                    charging information;

          II.       Whether the trial court erred in submitting a verdict form to the jury;
                    and

          III.      Whether he was denied the effective assistance of trial counsel.

      We affirm.


                                      Facts and Procedural History

[2]   On January 26, 2015, Daniel Drake was traveling on Lincoln Way in Elkhart

      County and observed a traffic accident involving a moped driven by Bible and

      called 911. Elkhart County Sheriff’s Deputy Matt Newman responded to the

      scene, spoke with Bible, and noticed that he had the odor of alcoholic beverages

      on his breath. Bible said that he had consumed alcoholic beverages that

      evening. Deputy Newman was unable to perform any field sobriety tests

      because Bible was being treated for injuries and prepared to be transported to

      the hospital. Deputy Newman gave Bible a preliminary breath test, and the test

      was positive for alcohol.


[3]   At the hospital, Deputy Newman administered the horizontal gaze nystagmus

      test, which Bible failed. Deputy Newman read Bible his Miranda rights, and

      Bible said that he drank a malt beer at approximately 3:00 that day. Deputy

      Newman then read Bible an implied consent advisement, and Bible submitted

      Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-1897 | May 10, 2017   Page 2 of 13
      to a blood draw which was later tested and indicated that his blood exceeded

      .08 grams of alcohol per one hundred milliliters of blood.


[4]   On March 6, 2015, the State charged Bible with operating a vehicle while

      intoxicated as a class A misdemeanor and operating a vehicle while intoxicated

      with a prior conviction as a level 6 felony. On November 9, 2015, the trial

      court scheduled a jury trial for March 21, 2016.


[5]   On March 21, 2016, the State filed an amended information in open court

      charging Bible with operating a vehicle with an alcohol concentration

      equivalent to at least 0.08 grams of alcohol per 100 milliliters of the person’s

      blood as a class C misdemeanor.1


[6]   During the jury trial, Drake and Deputy Newman testified. During the

      testimony of Deputy Newman, the prosecutor introduced and the court

      admitted a stipulation regarding the toxicology report. The stipulation stated in

      part that Bible’s blood was drawn at 9:17 p.m. on January 26, 2015, and that

      the blood exceeded .08 grams of alcohol per one hundred milliliters of blood.

      Bible testified that he was struck by another vehicle, had a problem with

      consciousness after the collision, told Deputy Newman that he had consumed

      alcohol, and did not feel that he was impaired when he was operating the




      1
       Bible observes that the file stamp on the copy of the amended information states March 22, 2016, but
      “presumes that the March 22, 2016 date was an error and defers to the transcript of proceedings.”
      Appellant’s Brief at 6 n.1.



      Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-1897 | May 10, 2017             Page 3 of 13
      moped. He indicated that he was not disputing the blood alcohol level and that

      “[t]he night before I did drink, and I have been known to drink heavily. So I

      might have had some hangover alcohol in my system, or something.”

      Transcript at 74.


[7]   After the presentation of the evidence, the court stated: “Just for the record. At

      the – before the – we started in the courtroom this morning, counsel for the

      state did move to amend the charging information from the Class A

      Misdemeanor to Class C Misdemeanor. And defendant had no objection to

      that.” Id. at 77. The court then instructed the jury with respect to the offense of

      operating a vehicle with a specified amount of alcohol as a class C

      misdemeanor. Specifically, the court instructed the jury:

              Indiana Code § 9-30-5-1(a)(1) defines Operating a Vehicle with
              Specified Amount of Alcohol as follows: a person who operates a
              vehicle with an alcohol concentration equivalent to at least .08
              grams of alcohol but less than .15 grams of alcohol per one
              hundred milliliters of the person’s blood commits Operating a
              Vehicle with Specified Amount of Alcohol, a Class C
              Misdemeanor.


              To convict the defendant, the state must prove each of the
              following elements: 1. the defendant; 2. Operated a vehicle; 3.
              with an alcohol concentration equivalent to at least .08 grams of
              alcohol but less than .15 grams of alcohol per one hundred
              milliliters of the person’s blood.


              If the state fails to prove each of these elements beyond a
              reasonable doubt, you must find the defendant not guilty of



      Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-1897 | May 10, 2017   Page 4 of 13
               Operating a Vehicle with Specified Amount of Alcohol, a Class
               C Misdemeanor.


       Id. at 82.


[8]    The jury found Bible guilty of operating a vehicle with the specified amount of

       alcohol as a class C misdemeanor. The verdict form signed by the foreperson

       states: “We, the jury, find the Defendant, BRADLEY A. BIBLE guilty of:

       Operating a Vehicle with Specified Amount of Alcohol, a class C

       misdemeanor.” Appellant’s Appendix Volume II at 161.


[9]    The court then held an enhancement phase addressing the enhanced charge of

       operating while intoxicated as a level 6 felony. The jury found Bible guilty of

       operating while intoxicated as a level 6 felony.


[10]   On June 22, 2016, the court held a sentencing hearing. The prosecutor argued

       that Bible had not taken responsibility, and his counsel stated:

               [A]s far as, not taking, taking responsibility I would agree we had
               a trial, but the only reason we had a trial is because it was
               charged as an A Misdemeanor and there was no endangerment
               that you could show.


               [The prosecutor], and she had a right to do this, I’m not saying
               this, but she amended it to, basically, Driving with Over the
               Legal Limit which we understand. He would have pled to that.
               Okay. He would have pled to that. He just would not have pled
               to endangerment, because there was no evidence that he was
               driving while endangering the public. He was on a moped
               preceding [sic] in his lane and got ran off the road or got hit and


       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-1897 | May 10, 2017   Page 5 of 13
                that’s – at trial I had tried to get him to plead, but we were
                already there for trial.


       Transcript at 111-112. The prosecutor then stated: “So he didn’t plead

       though?” Id. at 112. Defense counsel answered: “No. But he would have to

       over the legal limit which is what was proved.” Id.


[11]   The court merged the conviction for operating a vehicle with a BAC of .08 or

       more into his conviction for operating a vehicle while intoxicated and sentenced

       him to 540 days.


                                                   Discussion

                                                         I.


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

       charging information. Bible argues that the amended charging information

       substantially changed the elements the State was required to prove to find him

       guilty and substantially prejudiced his ability to present a defense. The State

       argues that Bible does not cite to authority that a trial court must sua sponte

       make, and sustain, an objection to an amended information. It also contends

       that Bible does not raise fundamental error and that fundamental error does not

       exist.


[13]   Bible’s failure to object to the trial court’s pretrial grant of the amended

       charging information and failure to move for a continuance waived his right to

       challenge the amendment. See Wilson v. State, 931 N.E.2d 914, 918 (Ind. Ct.

       App. 2010) (holding that a defendant’s failure to request a continuance after a
       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-1897 | May 10, 2017   Page 6 of 13
       trial court allows a pretrial substantive amendment to the charging information

       over defendant’s objection results in waiver), trans. denied. However, we will

       address Bible’s claim in the context of whether he was denied the effective

       assistance of trial counsel in Issue III.


                                                        II.


[14]   The next issue is whether the trial court erred in submitting a verdict form to the

       jury. Bible appears to argue that the verdict form incorrectly stated the elements

       necessary to find him guilty and confused the jury to the extent that it made the

       jury verdict unreliable. The State contends that the final instructions properly

       instructed the jury on the elements of the class C misdemeanor charge in terms

       identical to those used on the verdict form and that the verdict form is not

       deficient or fundamentally unfair because it identifies the offense but does not

       also recite the elements of the offense.


[15]   The verdict form signed by the foreperson states: “We, the jury, find the

       Defendant, BRADLEY A. BIBLE guilty of: Operating a Vehicle with Specified

       Amount of Alcohol, a class C misdemeanor.” Appellant’s Appendix Volume II

       at 161. The court instructed the jury with respect to the offense of operating a

       vehicle with a specified amount of alcohol as a class C misdemeanor including

       the elements the State was required to prove. We cannot say that the language

       of the verdict form requires reversal.


[16]   To the extent Bible cites Womack v. State, 738 N.E.2d 320 (Ind. Ct. App. 2000),

       trans. denied, for the proposition that where a verdict form provides information

       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-1897 | May 10, 2017   Page 7 of 13
       that is not the same as the offense charged, reversal is warranted under Article

       1, Section 19 of the Indiana Constitution, we do not find Womack instructive.

       In Womack, we addressed a verdict form that “effectively mandated a

       conviction of class D felony Possession upon the finding of a prior marijuana

       conviction.” 738 N.E.2d at 328. We cannot say the verdict form Bible

       challenges mandated a conviction or warrants reversal. See Rowan v. State, 431

       N.E.2d 805, 819 (Ind. 1982) (holding that a jury in a criminal proceeding may

       return a general verdict, that there is no requirement that the verdict must recite

       the entire charge, and that the verdict was consistent with the crime charged).


                                                        III.


[17]   The next issue is whether Bible was denied the effective assistance of trial

       counsel. Bible argues that he received ineffective assistance of counsel when

       defense counsel failed to object to the State’s amendment of the charging

       information, when counsel stipulated to the blood draw test results, and when

       counsel failed to object to the verdict form that was submitted to the jury. Bible

       argues that stipulating to the blood alcohol level eliminated that State’s

       requirement to call witnesses to prove statutory elements and allowed defense

       counsel to proceed with trial without putting on any evidence to contradict the

       blood alcohol content findings or cross-examining the accuracy of the results.

       The State argues that, on the present record, defense counsel and the State had

       no occasion to recite prior understandings or agreement for the trial court and

       that Bible failed to prove deficient performance merely because his trial counsel



       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-1897 | May 10, 2017   Page 8 of 13
       did not insist on an earlier motion whose conclusion was certain or because

       counsel did not renege on a mutual agreement.


[18]   Generally, to prevail on a claim of ineffective assistance of counsel, a petitioner

       must demonstrate both that his counsel’s performance was deficient and that

       the petitioner was prejudiced by the deficient performance. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104

       S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms. Id. To meet the appropriate test for prejudice, the petitioner must show

       that there is a reasonable probability that, but for counsel’s unprofessional

       errors, the result of the proceeding would have been different. Id. A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.

       Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). “[L]ogic dictates that ‘a verdict

       or conclusion only weakly supported by the record is more likely to have been

       affected by errors than one with overwhelming record support.’” Hilliard v.

       State, 609 N.E.2d 1167, 1169-1170 (Ind. Ct. App. 1993) (quoting Strickland, 466

       U.S. at 696, 104 S. Ct. at 2069)). Failure to satisfy either prong will cause the

       claim to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel

       claims can be resolved by a prejudice inquiry alone. Id.


[19]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-1897 | May 10, 2017   Page 9 of 13
       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly

       speculate as to what may or may not have been an advantageous trial strategy

       as counsel should be given deference in choosing a trial strategy which, at the

       time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d

       40, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to

       the failure to object, the defendant must show a reasonable probability that the

       objection would have been sustained if made. Passwater v. State, 989 N.E.2d

       766, 772 (Ind. 2013) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001),

       cert. denied, 535 U.S. 1019, 122 S. Ct. 1610 (2002)).


[20]   As for Bible’s argument that his trial counsel failed to object to the verdict form,

       we cannot say that the verdict form warranted reversal or that his trial counsel

       was ineffective on this basis. As to the stipulation to the blood test, we observe

       that Bible does not point to any deficiency in the blood test or test result to

       which his trial counsel should have pointed.


[21]   With respect to Bible’s claim that his trial counsel failed to object to or move for

       a continuance following the amended charging information, Ind. Code § 35-34-

       1-5 governs amendment of charges and provides:

       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-1897 | May 10, 2017   Page 10 of 13
               (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.


[22]   “A defendant’s substantial rights include a right to sufficient notice and an

       opportunity to be heard regarding the charge.” Brown v. State, 912 N.E.2d 881,

       890 (Ind. Ct. App. 2009) (quoting Ramon v. State, 888 N.E.2d 244, 252 (Ind. Ct.

       App. 2008)), trans. denied. “Ultimately, the question is whether the defendant

       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-1897 | May 10, 2017   Page 11 of 13
       had a reasonable opportunity to prepare for and defend against the charges.”

       Erkins v. State, 13 N.E.3d 400, 405-406 (Ind. 2014) (quoting Sides v. State, 693

       N.E.2d 1310, 1313 (Ind. 1998), abrogated on other grounds by Fajardo v. State, 859

       N.E.2d. 1201, 1206-1207 (Ind. 2007)), reh’g denied, cert. denied, 135 S. Ct. 967

       (2015). 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. Id. at

       406. An amendment is of substance only if it is essential to making a valid

       charge of the crime. Id.


[23]   Even assuming that the amendment was one of substance, we cannot say that

       reversal is warranted or that Ind. Code § 35-34-1-5 necessarily required

       dismissal of the amended charge had Bible’s counsel objected, as the trial court

       could have continued the trial. See Keller v. State, 987 N.E.2d 1099, 1109 (Ind.

       Ct. App. 2013) (observing that the trial court explained that a continuance

       alleviated its concerns of prejudice because it allowed the defendant time to

       prepare a defense to the new charges), affirmed on reh’g, 989 N.E.2d 1283, trans.

       denied. Bible also does not explain how a continuance would have benefitted

       his position. Further, at the sentencing hearing, his counsel stated: “at trial I

       had tried to get him to plead, but we were already there for trial.” Transcript at

       112. The record does not provide further detail regarding any discussion

       between Bible and his trial counsel regarding the amended information.


[24]   We observe that Bible is raising a claim of ineffective assistance of counsel on

       direct appeal. A post-conviction hearing is normally the preferred forum to

       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-1897 | May 10, 2017   Page 12 of 13
       adjudicate an ineffectiveness claim. Lewis v. State, 929 N.E.2d 261, 263 (Ind.

       Ct. App. 2010) (citing Woods v. State, 701 N.E.2d 1208, 1219 (Ind. 1998), reh’g

       denied, cert. denied, 528 U.S. 861, 120 S. Ct. 150 (1999)). This is because

       presenting such a claim often requires the development of new facts not present

       in the trial record, and the assessment of such a claim requires a court to

       consider the overall performance of counsel and the reasonable probability that

       the alleged error affected the outcome. McIntire v. State, 717 N.E.2d 96, 101

       (Ind. 1999).


[25]   As noted, Bible does not point to any deficiency in the blood test procedure, the

       test result, or the chain of custody which his trial counsel should have raised

       before the trial court or could have pointed to had he requested a continuance.

       The record indicates that Bible’s trial counsel “tried to get [Bible] to plead,” but

       does not indicate any further detail. The record does not include any evidence

       showing there is a reasonable probability that, but for counsel’s unprofessional

       errors, the result of the proceeding would have been different. Under the

       circumstances, we cannot say that Bible has demonstrated prejudice or

       ineffective assistance of counsel.


                                                   Conclusion

[26]   For the foregoing reasons, we affirm Bible’s conviction.


[27]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1608-CR-1897 | May 10, 2017   Page 13 of 13
