      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                       FILED
      this Memorandum Decision shall not be                                   Sep 07 2018, 9:13 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
      Michael P. Quirk                                         Curtis T. Hill, Jr.
      Quirk & Hunter, P.C.                                     Attorney General of Indiana
      Muncie, Indiana
                                                               Ian McLean
                                                               Supervising Deputy Attorney
                                                               General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Robert J. Adkins,                                        September 7, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A04-1711-CR-2643
              v.                                               Appeal from the Delaware Circuit
                                                               Court
      State of Indiana,                                        The Honorable Marianne L.
      Appellee-Plaintiff.                                      Vorhees, Judge
                                                               Trial Court Cause No.
                                                               18C01-1704-FA-3



      Mathias, Judge.


[1]   Following a jury trial in Delaware Circuit Court, Robert J. Adkins (“Adkins”)

      was convicted of two counts of Class A felony child molesting and one count of

      Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018         Page 1 of 17
      Class D felony disseminating matter harmful to minors. The trial court

      sentenced Adkins to an aggregate term of forty-two years of incarceration.

      Adkins appeals and presents three issues, which we restate as:


            I.    Whether the trial court erred by permitting the prosecuting attorney to
                  refer to Adkins’s taped statement to the police, in which he admitted
                  to molesting the victim, as a confession;
           II.    Whether the trial court erred by not declaring a mistrial because a
                  portion of Adkins’s taped statement to the police contained a
                  reference to a polygraph examination; and
          III.    Whether the trial court erred by permitting the State to amend the
                  information charging Adkins with dissemination of matter harmful to
                  minors during trial.

[2]   We affirm.


                                 Facts and Procedural History
[3]   At the time relevant to this appeal, A.N., who was born in October 2002, was

      close with her maternal aunt, April (“April”), and her aunt’s husband, the

      defendant Adkins. In 2011, when A.N. was nine years old, she visited Adkins’s

      home on one particular occasion. Adkins showed A.N. a pornographic video

      on his laptop computer of a man and a woman engaged in sexual intercourse.

      Adkins then fondled A.N.’s breasts and genital area, inserted his fingers into her

      vagina, and licked her vagina. He also showed A.N. his penis.


[4]   Some time after this incident, Adkins and his wife moved to a different house,

      which A.N. did not visit very often. But when the Adkinses moved yet again,

      A.N. resumed her almost weekly visits. Adkins began to tell A.N. that she was

      “getting so beautiful” and “growing into [her] body[.]” Tr. Vol. 3, pp. 99–100.

      Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018   Page 2 of 17
      He also asked A.N. if she was still a virgin and offered her alcohol. He again

      showed A.N. a pornographic video, this time of two women engaged in sexual

      activities, on his laptop. On one occasion, A.N. was in her cousin’s room

      watching a movie when Adkins came in and placed his hands on A.N.’s

      breasts, inserted his finger into her vagina, and licked her vagina.


[5]   On another occasion, Adkins offered A.N. alcohol and money in exchange for

      sex. Adkins told A.N. that he had previously paid another woman for sex. He

      also told A.N. that if she knew of anyone her age that would be willing to have

      sex with him in exchange for money, “he could make something happen.” Id.

      at 109. When Adkins and his wife moved to another house, A.N. continued to

      visit. At this house, Adkins again molested A.N. when she was approximately

      eleven or twelve years old by placing his fingers on and in her vagina.


[6]   In March 2017, A.N. wrote a letter to her girlfriend, who apparently had a bad

      experience with her own uncle. Regarding this, A.N. wrote:


              I wish i had advice for the stuff going on w/ your uncle but my
              mind is honestly completely blank baby. Im so sorry! Like i got
              raped when I was twelve by my uncle but i never said anything
              because i didn’t want every one to hate me. 💔


      Ex. Vol., Defendant’s Ex. A, p. 5 (typographic errors in original). Somehow,

      this note was misplaced and found by a school guidance counselor, who

      confronted A.N. regarding the accusations about her uncle. This counselor

      informed A.N. that the molestation needed to be reported, so A.N. wrote a



      Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018   Page 3 of 17
      letter to her mother describing what Adkins had done to her. A.N.’s mother

      then informed the police.


[7]   On April 10, 2017, the police interviewed Adkins. The interrogating officer read

      Adkins his Miranda rights, and Adkins signed a waiver of his rights. The officer

      confronted Adkins with A.N.’s accusations, which Adkins initially denied.

      Adkins admitted that he may have brushed against A.N.’s breasts while

      wrestling with her. Eventually, however, after several hours of interrogation,

      Adkins admitted to placing his fingers inside A.N.’s vagina, fondling her

      breasts, performing oral sex on her, and showing her pornography.


[8]   On April 17, 2017, the State charged Adkins with two counts of Class A felony

      child molesting and one count of Class D felony disseminating of matter

      harmful to minors.1 At a pre-trial hearing held on September 18, 2017, the trial

      court heard arguments on the State’s motions in limine. At this same hearing,

      Adkins made an oral motion in limine seeking to prohibit the State from

      referring to Adkins’s taped statement to the police as a “confession or

      admission,” except during closing argument. Tr. Vol. 2, p. 6. The prosecuting

      attorney indicated that the State had no objection. Accordingly, the following

      day, the trial court entered an order that granted the State’s motions and also

      granted Adkins’s oral motion regarding the statement to the police, stating in

      relevant part: “The Court now GRANTS the Defendant’s oral Motion in



      1
        The State also charged Adkins with one count of Class D felony dissemination of matter harmful to minors
      regarding A.N.’s brother. The jury acquitted Adkins on this charge.

      Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018       Page 4 of 17
       Limine as to referring to the Defendant’s statement as a ‘confession’ or

       ‘admissions’ except as to characterizations that the State may make in closing

       argument.” Appellant’s App. Vol. 2, p. 59.


[9]    A jury trial began on September 25, 2017. At the conclusion of the State’s

       evidence, Adkins moved for a directed verdict on all counts. With regard to the

       charge of dissemination of matter harmful to minors, Adkins argued that

       showing pornography on his computer to A.N. did not constitute

       “disseminating” as set forth in the charging information and the statute it was

       based on. Tr. Vol. 3, pp. 209–10. The State argued that it had met this

       definition, but nevertheless moved to amend the information to conform with

       the evidence, i.e., to allege that instead of “disseminat[ing] matter harmful to

       minors” under Indiana Code section 35-49-3-3(a)(1), Adkins instead

       “display[ed] matter that is harmful to minors in an area to which minors have

       visual, auditory, or physical access,” under section 35-49-3-3(a)(2). Tr. Vol. 3,

       pp. 213–14. Adkins objected, claiming that he had based his defense on the

       original language of the charging information. The trial court took the matter

       under advisement. The State then filed a written motion to amend the language

       of the information charging Adkins with dissemination of matter harmful to

       minors the following day, the last day of trial, which motion the trial court

       granted.


[10]   At the conclusion of the trial, the jury found Adkins guilty of Class A felony

       child molesting and of Class D felony disseminating matter harmful to a



       Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018   Page 5 of 17
       minor.2 On November 1, 2017, the trial court sentenced Adkins to concurrent

       terms of forty years on the Class A felony convictions and to a consecutive term

       of two years on the Class D felony conviction. Adkins now appeals.


                           I. Alleged Violations of the Motion in Limine

[11]   Adkins first contends that the State repeatedly violated the trial court’s motion

       in limine and that he was prejudiced by this violation. As noted above, the trial

       court granted Adkins’s oral motion in limine prohibiting the State from

       referring to Adkins’s taped statement to the police as a “confession” or

       “admission” except in closing argument. Appellant’s App. Vol. 2, p. 59. On

       appeal, Adkins claims that the State violated this order “30 times.” Appellant’s

       Br. at 10. Adkins, however, fails to cite to any portion of the transcript in which

       the State or the State’s witnesses refer to Adkins’s statement as a “confession”

       or “admission.” It is not our role to scour the transcript in search of these

       alleged violations. See Myers v. State, 33 N.E.3d 1077, 1105 n.8 (Ind. Ct. App.

       2015) (noting that the court on appeal would not scour the voluminous record

       to search for support of appellant’s contentions), trans. denied.


[12]   Our review of the transcript finds little support for Adkins’s contentions. To the

       contrary, our search of the transcript indicates that the only times the words

       “confession” or “admission” were used were during Adkins’s own counsel’s

       questions regarding false confessions and the witnesses’ answers in response to



       2
         As noted above, the jury acquitted Adkins on the charge of disseminating matter harmful to a minor with
       regard to A.N.’s brother.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018       Page 6 of 17
these questions. See, e.g., Tr. Vol. 3, p. 20 (testimony of interrogating officer

responding to defense counsel’s cross-examination regarding why police did not

investigate another individual, “He [Adkins] admitted to the crime, and I had

no reason to go talk to [the other individual].”); Id. at 74 (testimony of

interrogating officer responding to defense counsel’s questions suggesting that

officer had already informed Adkins of the substance of the accusations against

him, claiming that he had not informed Adkins of specific details, “so if he

confess[es] and give[s] me specific details, then he’s recalling an incident and

not something I told him.”); Id. at 81–82 (defense counsel questioning

interrogating officer, “In any of your training, did they talk to you about the

dangers of false confessions?” and “you don’t recall anything about dangers of

false confessions during any of [your] trainings[?]” and “So they sent you to a

school and they didn’t bring anything up about the dangers of false

confessions?” and “Are you aware that people falsely confess to things?”); Id. at

82 (interrogating officer’s testimony that he was not trained on false confessions

and that he tries not to tell suspects specific details “so when they do confess,

they - they’re not just saying yes or no, they’re - they’re explaining an actual

narrative of an event.”).3




3
 The word “admit” was used by both defense counsel and the interrogating officer during cross-examination.
See id. at 55 (defense counsel asked the interrogating officer whether Adkins, during the interrogation, “did
admit that there was pornography on [his computer?]” to which the officer replied, “He did – he did admit to
viewing pornography on there.”); Id. at 61 (defense counsel asked the officer, “Did it ever dawn on you that
he didn't know? He actually is innocent? Or did you at that point think this guy’s guilty?” to which the officer
answered, “He had already admitted there was something that he didn't want to talk to me about because he
didn't want to go to jail.”); Id. at 67 (defense counsel asked the officer, “At the 2:39 mark, you cut [Adkins]
off and you said, I can get you charged. It doesn’t matter what you tell me or not. Was that a true

Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018           Page 7 of 17
[13]   It appears that neither the prosecuting attorney nor the State’s witnesses

       otherwise mentioned the word “confession” or “admission” until the State’s

       closing argument, which was permitted under the trial court’s order on Adkins’s

       motion in limine. Adkins’s claim that the State repeatedly violated the court’s

       order on his motion in limine is meritless.4


                                II. Reference to Polygraph Examination

[14]   Adkins next argues that the trial court erred by admitting into evidence a

       portion of his statement to the police which appears to reference hooking

       Adkins up to a polygraph machine. Questions regarding the admission of

       evidence are entrusted to the sound discretion of the trial court. Harrison v. State,




       statement?” and the officer responded, “I felt like I had enough since he had already admitted there was
       something that he didn’t want to tell me about because he didn’t want to go to jail. I felt that was enough that
       I could – I could pursue with a probable cause affidavit for his arrest.”); Id. at 80 (testimony of interrogating
       officer during cross-examination that Adkins “admitted” to having an extra-marital affair after initially
       denying it). Again, all of these questions came during cross-examination by defense counsel.
       4
         And even if the State or the State’s witnesses had referred to Adkins’s statement to the police as a
       “confession” or “admission,” we fail to see how he would have been harmed thereby. The jury heard the
       admitted portions of the statement, including Adkins’s initial, repeated denials, but also his eventual
       admission to molesting A.N. and showing her pornography. Referring to the statement as a “confession” or
       “admission” would not have been inaccurate. See Opper v. United States, 348 U.S. 84, 91 n.7 (1954) (“A
       confession is an acknowledgment in express words, by the accused in a criminal case, of the truth of the
       guilty fact charged or of some essential part of it.”). Nor do we believe it would have been reversible error to
       refer to Adkins’s statement as a confession or admission. See United States v. Hicks, 393 Fed. Appx. 201, 204
       (5th Cir. 2010) (holding that no error occurred where prosecutor did not characterize the defendant’s
       statements generally as a confession or admission of guilt on a particular charge but instead referred to
       specific admissions of fact the defendant made to the police, and it was defendant’s own counsel who
       extensively questioned the police about recording “confessions” by witnesses); United States v. Goodlow, 105
       F.3d 1203, 1207 (8th Cir. 1997) (holding that prosecutor’s reference to defendant’s statement to the police as
       a “confession” was not misconduct where, even though defendant denied use of force or threat of force
       element, he admitted to the remaining elements of the crime for which he was convicted). Cf. United States v.
       Morsley, 64 F.3d 907, 912–13 (4th Cir. 1995) (holding that prosecutor’s reference to defendant’s statement, in
       which he admitted to several aspects of his involvement in a conspiracy but did not formally confess his guilt,
       was improper).

       Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018            Page 8 of 17
       32 N.E.3d 240, 250 (Ind. Ct. App. 2015), trans. denied. We therefore review the

       court’s decision on appeal only for an abuse of that discretion. Id. The trial

       court abuses its discretion only if its decision regarding the admission of

       evidence is clearly against the logic and effect of the facts and circumstances

       before it, or if the court has misinterpreted the law. Id.


[15]   The portion of Adkins’s recorded statement at issue is the interrogating officer’s

       statement: “Okay. So is there anything else you think we need to talk about

       before we hook you up to this machine and go from there?” Tr. Vol. 2, p. 181

       (emphasis added). Adkins claims that this was an impermissible reference to a

       polygraph test and that the trial court should therefore have declared a mistrial.


[16]   As this court summarized in Shriner v. State:


               In general, a reference to a polygraph examination without an
               agreement by both parties is inadmissible and grounds for error.
               Proof of the fact that a polygraph examination was taken or
               refused is, in the absence of waiver or stipulation, inadmissible in
               a criminal prosecution. A defendant is prohibited from stating he
               offered to take a polygraph test[,] and the State is equally
               prohibited from referring to such a test.


       829 N.E.2d 612, 618 (Ind. Ct. App. 2005) (citation and internal quotation

       marks omitted).


[17]   “‘A mistrial should be granted where the accused, under all the circumstances,

       has by such trial proof been placed in a position of grave peril to which he

       should not have been subjected.’” Id. (quoting Conn v. State, 535 N.E.2d 1176,


       Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018   Page 9 of 17
       1180 (Ind. 1989)). But “[a] mistrial is an extreme remedy and should only be

       used when no other curative measure will rectify a situation.” Id. We afford

       great deference to the trial court’s decision on whether to grant a mistrial

       because the trial judge is in the best position to gauge the surrounding

       circumstances of an event and its impact on the jury, and, on appeal, we review

       the trial court’s decision only for an abuse of this discretion. Id.


[18]   Although Adkins claims that the trial court should have declared a mistrial, our

       review of the record reveals that Adkins never requested a mistrial. When the

       above-quoted portion of Adkins’s recorded statement to the police was played

       for the jury, Adkins requested that the jury be excused from the courtroom.

       Adkins’s counsel stated, “I’m extremely concerned about what he just said. I

       thought that was to be taken out.” Tr. Vol. 2, p. 182. The prosecuting attorney

       responded, “Judge, I thought they were all removed. In fact, I didn’t hear that

       listening to it.” Id. The trial court then ordered the recorded statement to be

       replayed, which it was. The trial court asked Adkins’s counsel, “So what’s the

       remedy? Do you want me to tell the jury to disregard and not to consider or do

       you want a mistrial? Do you want some time to think about it and to talk to

       your client[?]” Id. at 183. Adkins’s counsel stated that he would like to take

       some time to speak with Adkins, and the trial court took a brief recess. When

       the trial resumed, the trial court resumed playing the recording without

       objection, and an no further point did Adkins request a mistrial.


[19]   Adkins has accordingly forfeited this issue by failing to request a mistrial. See

       Sherwood v. State, 702 N.E.2d 694, 697 (Ind. 1998) (holding that defendant

       Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018   Page 10 of 17
       waived appellate argument that reference to polygraph required mistrial where

       defendant failed to request a mistrial at trial). Nor does Adkins argue that this

       brief reference to “hooking” him up to a “machine” constituted fundamental

       error. And even if he did, we fail to see how this brief reference constituted

       fundamental error. The State did not refer to a polygraph or otherwise mention

       the reference to hooking Adkins up to a machine, nor was the matter ever

       brought up again. See Lay v. State, 659 N.E.2d 1005, 1013 (Ind. 1995) (holding

       that evidence that witness had agreed to take a polygraph examination as a

       condition of his plea agreement did not constitute fundamental error because

       the testimony did not imply that the witness had taken a polygraph test, did not

       reveal any results of a polygraph, and therefore generated minimal prejudice).

       We therefore reject Adkins’s claim that this brief reference requires reversal of

       his convictions.


                            III. Amendments to Charging Information

[20]   Lastly, Adkins argues that the trial court erred by permitting the State to amend

       the language of the charging information with regard to the charges5 of

       disseminating matter harmful to a minor. The State charged Adkins with this

       crime as follows: “Robert J. Adkins did knowingly disseminate matter to A.N.,

       a minor, that is harmful to minors, to-wit: Pornography[.]” Appellant’s App.

       Vol. 2, p. 21. As set forth above, at the conclusion of the State’s evidence,



       5
        As previously noted, the State charged Adkins with two counts of disseminating matter harmful to minors,
       one involving A.N. and the other involving A.N.’s brother. Because the jury acquitted Adkins on the latter
       charge, we limit our discussion to the amendment to the former charge.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018      Page 11 of 17
       Adkins moved for a directed verdict on all counts. With regard to the charge of

       disseminating matter harmful to a minor, Adkins alleged that the evidence

       adduced by the State—that he showed pornographic videos to A.N.—did not

       constitute dissemination. Ultimately, the State moved to amend the charge to

       allege that Adkins “displayed” pornography to A.N. instead of “disseminated”

       it to her. The trial court granted this motion to amend, and the jury was

       ultimately instructed that, to convict Adkins of disseminating matter harmful to

       a minor, the State had to prove that he knowingly “displayed matter to A.N., a

       minor . . . that is harmful to minors, to-wit, pornography . . . in an area to

       which minors have visual, auditory, or physical access.” Id. at 111.


[21]   Adkins argues that the trial court erred in permitting the State to amend the

       charging information at this late stage. He maintains that there was no evidence

       that he “disseminated” pornography to A.N. and that he was therefore

       prejudiced when the State was allowed the amend the charging information to

       allege that he “displayed” pornography to A.N.


[22]   We conclude that Adkins has forfeited this argument. If a defendant believes

       that an amendment to the charging information is prejudicial, he must request a

       continuance to further evaluate and prepare his case in light of the amendment.

       Miller v. State, 753 N.E.2d 1284, 1288 (Ind. 2001); Wright v. State, 690 N.E.2d

       1098, 1104 (Ind. 1997); Haak v. State, 695 N.E.2d 944, 951 n.5 (Ind. 1998).

       Failing to request a continuance results in waiver of the issue on appeal. Wright,

       690 N.E.2d at 1104 (citing Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind.

       1996); Daniel v. State, 526 N.E.2d 1157, 1162 (Ind. 1988)). Although Adkins did

       Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018   Page 12 of 17
       object to the State’s motion to amend the charging information, he did not seek

       a continuance and therefore failed to preserve this claim of error.


[23]   Waiver notwithstanding, Adkins would still not prevail. “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). Indiana Code

       section 35-34-1-5(a) provides that an information “may be amended on motion

       by the prosecuting attorney at any time because of any immaterial defect[.]”

       Immaterial defects include spelling and grammatical errors, the misjoinder of

       parties, the failure to state the time or place of the offense where such

       information is not of the essence of the offense, or “any other defect which does

       not prejudice the substantial rights of the defendant.” I.C. § 35-34-1-5(a)(1), (2),

       (7), (9).


[24]   In opposition to amendments of form, an information “may be amended in

       matters of substance . . . by the prosecuting attorney, upon giving written notice

       to the defendant at any time” up to thirty days prior to the omnibus date where

       the defendant is charged with a felony or “before the commencement of trial”

       “if the amendment does not prejudice the substantial rights of the defendant.”

       I.C. § 35-34-1-5(b)(1) – (2).


[25]   The amendment statute further provides, “[u]pon motion of the prosecuting

       attorney, the court may, at any time before, during, or after the trial, permit an

       amendment to the . . . information in respect to any defect, imperfection, or


       Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018   Page 13 of 17
       omission in form which does not prejudice the substantial rights of the

       defendant.” I.C. § 35-34-1-5(c). Thus, “[a]n amendment of substance is not

       permissible after trial has commenced,” and after trial has begun, only

       amendments to fix defects, imperfections, or omission in form are permitted, so

       long as the substantial rights of the defendant are not prejudiced. Blythe v. State,

       14 N.E.3d 823, 828 (Ind. Ct. App. 2014); see also Rita v. State, 663 N.E.2d 1201,

       1205 (Ind. Ct. App. 1996) (holding that an information may be amended at any

       time, before, during, or after trial, so long as the amendment does not prejudice

       the substantial rights of the defendant), trans. granted, summarily aff’d in relevant

       part, 674 N.E.2d 968 (Ind. 1996).


[26]   Whether an amendment to a charging information is a matter of substance or

       form is a question of law, which we review de novo. Erkins, 13 N.E.3d at 405.

       “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

       charges. Id. at 405–06. 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. Bennett v. State, 5 N.E.3d 498, 514 (Ind. Ct. App. 2014), trans.




       Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018   Page 14 of 17
       denied. And an amendment is one of substance only if it is essential to making a

       valid charge of the crime. Id.


[27]   Here, Adkins insists that the amendment was one of substance because, under

       the original language of the information, he had a defense that was not

       available to him under the amended information, i.e., that he did not

       “disseminate” pornography to A.N. The statute under which Adkins was

       charged provides in relevant part:


               (a) Except as provided in subsection (b), a person who knowingly
               or intentionally:

                    (1) disseminates matter to minors that is harmful to minors;

                    (2) displays matter that is harmful to minors in an area to
                    which minors have visual, auditory, or physical access, unless
                    each minor is accompanied by the minor’s parent or guardian;

                                                         ***

               commits a Class D felony.


       Ind. Code § 35-49-3-3(a) (2006).6 Thus, the amendment changed the subsection

       under which Adkins was charged from 3(a)(1) to 3(a)(2). Adkins argues that, by

       amending the charging information to allege that he displayed, as opposed to




       6
        This statute was amended effective July 1, 2014 to provide the crime is now a Level 6 felony. We cite to the
       version of the statute that was in effect at the time Adkins committed the crime.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018        Page 15 of 17
       disseminated, the pornographic video, the State made a substantive change to

       the charge. We disagree.


[28]   Under the original charge, Adkins was alleged to have disseminated

       pornography to A.N. The probable cause affidavit supporting Adkins’s arrest

       and charges set forth the factual basis of this charge, i.e., that Adkins showed

       pornographic videos to A.N. Under the amended information, the factual basis

       for the charge remained the same—that Adkins showed pornographic videos to

       A.N. Thus, any defense Adkins had to the original charge was equally available

       under the amended charging information.7 Indeed, Adkins’s defense at trial was

       to argue that he did not show A.N. pornography, and this defense was still

       available to him after the amendment to the charging information. Therefore,

       the amendment was not one of substance, and could be made at any time.




       7
         Adkins claims that the amended information deprived him of his defense that showing a pornographic
       video does not constitute “dissemination.” But if this tautology were the rule, then any amendment would
       necessarily constitute a substantive change. For example, in Jones v. State, 863 N.E.2d 333, 338 (Ind. Ct. App.
       2007), we held that the State’s amendment of a charging information one week before trial was one of form,
       and not of substance, even though the amendment altered the identity of the substance the defendant was
       alleged to have possessed from cocaine to heroin. The defendant in Jones had a “defense” under the original
       charging information that was taken away by the change only in the sense that he could no longer argue that
       the substance he possessed was heroin and not cocaine as originally alleged. But we still held that the State’s
       late amendment did not cause Jones to lose any potential defenses or affect the application of his evidence to
       the crime charged. Id. Indeed, the discovery provided to Jones made it clear that the substance he was
       charged with possessing was heroin, not cocaine. Id. at 338–39; see also Owens v. State, 263 Ind. 487, 497–98,
       333 N.E.2d 745, 750 (1975) (holding that amendment of charging information on day of trial to allege that
       defendant shot victim with a revolver instead of a shotgun was one of form, not substance, even though
       defendant would have had a technical defense to original charge in that he did not use a shotgun); Markoff v.
       State, 553 N.E.2d 194, 195 (Ind. Ct. App. 1990) (holding that amendment on the day of trial to change the
       name of the owner of the building in which a burglary occurred was one of form, not substance, even though
       defendant would have had a technical defense to the original charge in that the building was not owned by
       the person alleged in the original information).

       Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018         Page 16 of 17
                                                 Conclusion
[29]   No reversible error occurred when witnesses referred to Adkins’s taped

       statement to the police as a “confession.” Not only was this description

       accurate, most of it was elicited by Adkins’s own counsel. The trial court also

       did not err by failing to declare a mistrial when a portion of Adkins’s recorded

       statement to the police referenced “hooking” Adkins up to “this machine.”

       Adkins did not request a mistrial, and this brief reference did not require a

       mistrial or otherwise constitute fundamental error. Lastly, the trial court did not

       err in permitting the State to amend the information charging Adkins with

       disseminating matter harmful to a minor because the amendment was not one

       of substance and could therefore by made at any time. Accordingly, we affirm

       the judgment of the trial court.


[30]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018   Page 17 of 17
