MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Dec 28 2015, 8:18 am
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
Scott L. Barnhart                                       Gregory F. Zoeller
Brooke Smith                                            Attorney General
Keffer Barnhart LLP
Indianapolis, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

James Eric Hill,                                        December 28, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        82A01-1505-CR-420
        v.                                              Appeal from the Vanderburgh
                                                        Circuit Court
State of Indiana,                                       The Honorable David D. Kiely
Appellee-Plaintiff                                      Trial Court Cause No.
                                                        82C01-1410-F6-4360



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015   Page 1 of 11
                                          Case Summary
[1]   After being released from incarceration in July 2014, Hill registered his

      principal residence address in Vanderburgh County, but on July 24 moved to a

      new residence and failed to report the address change. His registration

      violation was discovered months later by detectives performing a verification

      check. Hill was charged with failing to register as a Level 6 felony, and the

      charging information stated that “on or about July 23, 2014,” Hill was not

      residing at his registered address. Hill was convicted and sentenced for failing

      to register.

[2]   On appeal, Hill contends that there was a fatal material variance in the State’s

      charging information because Hill was not in violation on July 23, and the

      evidence is insufficient to prove that Hill knowingly or intentionally failed to

      register as required by statute. Hill also contends that his sentence is

      inappropriate. Finding no material variance and sufficient evidence, we affirm

      his conviction; finding that the sentence was not inappropriate in light of the

      nature of the offense and character of the offender, we likewise affirm Hill’s

      sentence.



                            Facts and Procedural History
[3]   In July 2014, James Eric Hill was released from incarceration at the Indiana

      Department of Correction, where he had been serving a sentence for child

      molesting. On July 11, before his release, Hill signed a State of Indiana Sex or


      Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015   Page 2 of 11
      Violent Offender Registration Form, which listed his post-release registration

      obligations as a sex offender. Specifically, the form stated that he was required

      to register his “principal address” with the Sheriff’s Department in the county in

      which he was residing and also provided that if there was a change in address or

      the other required information, Hill was required to report in person and submit

      the new information to the local law enforcement authority having jurisdiction

      over his principal address not later than seventy-two hours after the change. See

      Ex. 1; see also Tr. p. 56-59. Hill signed this form below a line stating that he had

      read and received a copy of the above information and understood his duties

      and obligations to register. See Ex. 1. Additionally, before his release Hill had

      taken a class that covered registration requirements and parole rules, and Hill’s

      parole officer discussed the registration requirements at their initial interview.

[4]   On July 18, Hill registered with the Vanderburgh County Sheriff’s Department

      by submitting a Sex or Violent Offender Registration Form.1 On this

      document, Hill stated that he would be living on Fares Avenue in Evansville.

      Hill never submitted a change of address form to the Vanderburgh County

      Sheriff’s Department after this initial form. Tr. p. 63.

[5]   On October 14, Detective Mike Robinson of the Vanderburgh County Sheriff’s

      Department, who acts as the coordinator for the sex and violent offender




      1
        This document, which was admitted into evidence as Exhibit 2, does not appear to have been included in
      the exhibits on appeal, but is referred to repeatedly throughout other parts of the record, such as the transcript
      and briefs.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015              Page 3 of 11
      registry, asked two other detectives to conduct a verification check on Hill. The

      detectives went to the last-reported address and did not locate Hill. They then

      consulted the Sheriff’s Department’s Record Management System, which had a

      different address listed for Hill—the Wood Creek Inn in Evansville.

[6]   At the Wood Creek Inn, the detectives located Hill living in a hotel room with

      his brother and mother. Hill’s parole officer and hotel records indicate that he

      had moved there on July 24, 2014. Ex. 3; Tr. p. 109. When asked by the

      detectives about his address registration, Hill told the detectives that he “meant

      to have [his parole officer] take care of that.” Tr. p. 80. Hill’s parole officer had

      already explained to Hill, however, that he was a “separate entity” from the

      Sheriff’s Department and “c[ouldn]’t save him should he have a registry

      violation.” Id. at 107. The detectives ultimately did not arrest Hill due to his

      health problems and upcoming medical appointments, and because Hill was

      being monitored by a GPS unit on his ankle and did not pose an immediate

      threat. See id. at 75-76.


[7]   The State charged Hill with failing to register as a Level 6 felony, and the

      charging information stated that “on or about July 23, 2014,” Hill was not

      residing at his registered address.2 See Appellant’s App. p. 11. Following a one-

      day trial, the jury found Hill guilty. The trial court sentenced Hill to two-and-a-




      2
       The State also charged Hill with a second count, failure to possess identification as a Class A misdemeanor,
      because Hill had not obtained and could not produce a valid driver’s license or state-issued identification card
      containing a current address and physical description. See Ex. 1; Tr. p. 72. Hill does not challenge this
      conviction, however, so we do not include this information in the facts.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015            Page 4 of 11
      half years on the failure-to-register conviction, with 188 days credit for time

      spent incarcerated. See id. at 24-25; see also Sent. Tr. p. 155-56. Hill now

      appeals his conviction and sentence.



                                Discussion and Decision
[8]   Hill presents three arguments on appeal. First, he alleges that there was a fatal

      material variance between the crime charged and the evidence presented;

      specifically, the State’s information charged that Hill was not residing at his

      registered address “on or about July 23, 2014,” but the evidence at trial showed

      that he actually moved the next day. Second, Hill contends that the evidence is

      insufficient to prove that he knowingly or intentionally failed to register.

      Finally, Hill argues that his sentence is inappropriate in light of the nature of

      the offense and the character of the offender. Finding no merit to these

      arguments, we affirm Hill’s conviction and sentence.


                                   1. Charging Information
[9]   First, Hill alleges that the State’s information—which charged that Hill moved

      “on or about July 23, 2014,” when in fact he had moved on July 24—was not

      sufficiently particular and the incorrect date was a material variance from the

      crime as charged. “A variance is an essential difference between proof and

      pleading.” Neff v. State, 915 N.E.2d 1026, 1031 (Ind. Ct. App. 2009) (quoting

      Reinhardt v. State, 881 N.E.2d 15, 17 (Ind. Ct. App. 2008)), trans. denied. A

      variance is fatal if the defendant is misled by the charge in the preparation and

      maintenance of his or her defense and was harmed or prejudiced as a result,
      Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015   Page 5 of 11
       and conviction in light of the variance would raise future double jeopardy

       concerns. Daniels v. State, 957 N.E.2d 1025, 1030 (Ind. Ct. App. 2011). As a

       general rule, failure to make a specific objection at trial waives any material

       variance issue. Neff, 915 N.E.2d at 1031. In this case, Hill referred briefly to

       the date discrepancy in his closing argument but did not object to it before or

       during the trial. As such, we find he has waived review of this argument.

[10]   Waiver notwithstanding, we find no merit to Hill’s variance argument because

       here there was no variance between “proof and pleading,” see Neff, 915 N.E.2d

       at 1031—the charging information read “on or about July 23,” which would

       certainly include July 24. See Appellant’s App. p. 11. Even if we were to find a

       variance here, Hill has not shown how he was misled by the charging

       information in preparing his defense and harmed or prejudiced as a result. See

       Daniels, 957 N.E.2d at 1030. Essentially he argues that timing is essential to the

       State’s charge because under Indiana Code section 11-8-8-11 he was required to

       update his address not more than seventy-two hours after the change in

       residence, and he had not even moved on July 23. But Hill cannot now argue

       the critical importance of a three-day timing requirement when Hill still had not

       updated his address information on October 14, months past the seventy-two-

       hour window; indeed, Hill never updated his address information at all. We

       find no fatal variance in the State’s charging information.


[11]   Hill additionally contends, however, that the charging information subjects him

       to double jeopardy because the State could file charges against him for failing to

       register on dates spanning to October 14—a time period not covered by the

       Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015   Page 6 of 11
       charging information. Presumably he is arguing that the State should have

       stated in the charging information that Hill was in violation of registration

       requirements for this entire time period. We find no merit to Hill’s double-

       jeopardy argument because the duty to register is a continuous one, and Hill’s

       failure to register was one continuing crime. As such, the State may not

       arbitrarily divide the offenses into separate time periods in order to prosecute

       Hill again for failure to register. See Porter v. State, 935 N.E.2d 1228, 1232 (Ind.

       Ct. App. 2010) (stating that the duty to support one’s child is a continuous one,

       and a parent who fails to support a child commits a continuing crime, but the

       State may not arbitrarily divide the offenses into separate time periods in order

       to multiply the penalties). Therefore, Hill is not subject to double jeopardy for

       failing to register during this time period.


                               2. Sufficiency of the Evidence
[12]   Next Hill contends that the evidence is insufficient to sustain his failure-to-

       register conviction because the State failed to establish that he knowingly or

       intentionally failed to register. When reviewing the sufficiency of evidence

       supporting a conviction, we will not reweigh the evidence or judge the

       credibility of witnesses. Stewart v. State, 866 N.E.2d 858, 862 (Ind. Ct. App.

       2007). We look to the evidence most favorable to the conviction together with

       all reasonable inferences to be drawn from that evidence. Id. We will affirm a

       conviction if there is substantial evidence of probative value supporting each

       element of the crime from which a reasonable trier of fact could have found the

       defendant guilty beyond a reasonable doubt. Id.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015   Page 7 of 11
[13]   In order to convict Hill of failing to register under Indiana Code section 11-8-8-

       17, the State was required to prove beyond a reasonable doubt that Hill, a sex

       offender, knowingly or intentionally did not live at the address at which he was

       registered as required by statute. See Ind. Code § 11-8-8-17(a)(5). A person

       engages in conduct “intentionally” if, when he engages in the conduct, it is his

       conscious objective to do so. Ind. Code § 35-41-2-2(a). A person engages in

       conduct “knowingly” if, when he engages in that conduct, he is aware of a high

       probability that he is doing so. I.C. § 35-41-2-2(b).

[14]   In this case, Hill does not dispute that he was required to register; instead, his

       challenge centers on whether the evidence proved that he had the requisite

       knowledge or intent. Specifically, Hill contends in his brief that “[i]t can be

       reasonably inferred that Hill presumed he met his registration requirement by

       reporting his change of address to his parole officer[.]” Appellant’s Br. p. 11.

       The evidence shows, however, that Hill was aware he was required to report

       any changes in information, including his address, to the Sheriff’s Department.

       Specifically, the record shows that Hill signed two separate registration forms—

       the State Registration Form and the Vanderburgh County Registration Form—

       acknowledging his statutory duty to register his principal address with the

       Sheriff’s Department in the county where he was residing, and to report any

       changes in person to the “local law enforcement authority having jurisdiction

       over [Hill’s] principal address” within seventy-two hours. Ex. 1; Tr. p. 60-62.

       Further, his parole officer testified at trial that in addition to his reminding Hill

       at his initial interview of the registration requirements, Hill had also taken a


       Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015   Page 8 of 11
       class before he was released that covered registration requirements and parole

       rules. Tr. p. 106. With regard to Hill’s knowledge that notifying his parole

       officer rather than the Sheriff’s Department of a change in address was

       insufficient to satisfy the registration requirements, the following testimony

       occurred at trial:

               [The State]: During your meetings with Mr. Hill did you ever
               speak with him about what his duties were in regards to changing
               his address?


               [Hill’s Parole Officer]: Yeah, . . . we talk about it at length
               because of the difference with it being a separate entity and I let
               them know that just because I’m his parole officer I can’t save
               him should he have a registry violation. I have no control over
               what the Sheriff’s Office says and does so to speak.


       Tr. p. 107-08. We find the evidence is sufficient to show that Hill knowingly or

       intentionally did not reside at the address at which he was registered as required

       by statute. See I.C. § 11-8-8-17(a)(5).


                                   3. Inappropriate Sentence
[15]   Finally, Hill argues that his sentence is inappropriate in light of the nature of

       the offense and his character. Although a trial court may have acted within its

       lawful discretion in imposing a sentence, Article VII, Sections 4 and 6 of the

       Indiana Constitution authorize independent appellate review and revision of

       sentences through Appellate Rule 7(B), which provides that a court “may revise

       a sentence authorized by statute if, after due consideration of the trial court’s

       decision, the Court finds that the sentence is inappropriate in light of the nature
       Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015   Page 9 of 11
       of the offense and the character of the offender.” King v. State, 894 N.E.2d 265,

       267 (Ind. Ct. App. 2008). This Court does not substitute its opinion for that of

       the trial court, but instead attempts to “leaven the outliers.” Cardwell v. State,

       895 N.E.2d 1219, 1225 (Ind. 2008). The defendant has the burden of

       persuading us that his sentence is inappropriate. King, 894 N.E.2d at 267. The

       sentencing range for a Level 6 felony is six months to two and one-half years.

       Ind. Code § 35-50-2-7(b). The trial court sentenced Hill to two and one-half

       years, with 188 days credit for time spent incarcerated.

[16]   Here, the nature of the offense is that Hill, while on parole, failed to satisfy the

       statutory sex-offender registration requirement of reporting his address change,

       despite repeatedly acknowledging this requirement in forms he signed, taking a

       class on registration requirements, and being reminded by his parole officer of

       the requirement to do so. Hill moved from his registered principal address to a

       different address in late July and still had not updated his address information

       in mid-October, when he was found living at the unreported address. Hill’s

       argument on appeal that this offense was a nominal violation that did not pose

       an immediate threat to the safety of “himself or other citizens” is unavailing.

       Appellant’s Br. p. 12. We find that the nature of the offense does not warrant

       revision of Hill’s sentence.


[17]   As to the character of the offender, we observe that Hill has an extensive

       criminal history: four prior felony convictions and eight prior misdemeanors.

       Again, he was on parole when he committed the instant offense. Hill asserts

       that he obtained an associate degree in 2012 and has significant medical issues,

       Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015   Page 10 of 11
       including stage 4 liver fibrosis, chronic hepatitis C, and hypertension, among

       other ailments. See Appellant’s Br. p. 12. Hill presents no argument, however,

       as to why his associate degree or medical problems should play any role in our

       consideration of his sentence. As articulated by the State, “While his health

       problems may be significant, there is no showing that the Department of

       Correction will be unable to provide for his needs or that his problems will be

       unduly exacerbated by his sentence.” Appellee’s Br. p. 17-18. Hill has failed to

       meet his burden of persuading us that his sentence is inappropriate in light of

       the nature of the offense and character of the offender. See King, 894 N.E.2d at

       267. We affirm Hill’s sentence.


[18]   Affirmed.

       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015   Page 11 of 11
