Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be 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:

JOHN ANDREW GOODRIDGE                            GREGORY F. ZOELLER
Evansville, Indiana                              Attorney General of Indiana

                                                 AARON J. SPOLARICH
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                               FILED
                                                                           Feb 20 2013, 9:32 am

                              IN THE
                                                                                   CLERK
                    COURT OF APPEALS OF INDIANA                                  of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




JEANNIE A. DICKMAN ,                             )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 82A01-1205-CR-202
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                       The Honorable Wayne S. Trockman, Judge
                            Cause No. 82D02-0909-FD-917




                                     February 20, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                Case Summary and Issue

       Jeannie Dickman appeals her conviction for conversion as a Class A

misdemeanor. Dickman raises one consolidated issue on appeal: whether there was a

material variance in the charging information and the evidence presented. Concluding

that the variance was not material, we affirm.

                              Facts and Procedural History

       On September 28, 2009, the State filed an information charging Dickman with

theft as a Class D felony. The information alleged that Dickman “did knowingly exert

unauthorized control over the property of Suzanne Bowling and/or Skin Solutions, to-wit:

lawful United States currency, with the intent to deprive the said Suzanne Bowling and/or

Skin Solutions of the value and use thereof . . . .” Appellant’s Appendix at 32. The

charge was related to checks that had been written by clients directly to Dickman when

Dickman was employed as an aesthetician at Bowling’s Skin Solutions business.

Additionally, Dickman had used Bowling’s credit card for personal purchases.

       Dickman waived her right to a jury trial, and a bench trial commenced on May 11,

2011. After several continuances, the trial concluded on February 3, 2012. The court

found Dickman guilty of the lesser included charge of conversion, as a Class A

misdemeanor. The court sentenced Dickman to one year in jail but suspended the

sentence to non-reporting probation. This appeal followed. Additional facts will be

supplied as necessary.




                                             2
                                 Discussion and Decision

                                I. Final Appealable Order

       As a threshold issue, the State argues that this appeal should be dismissed for lack

of a final appealable judgment, because the docket for this case indicates that the trial

court took the issue of restitution under advisement. Dickman also raised an issue in her

appeal regarding the jurisdiction of the court to delay its ruling on restitution. Because of

our resolution of the court’s sentencing order here, we do not reach Dickman’s argument

on that issue.

       The parties point out that there is a difference between the trial court’s remarks at

oral sentencing and the written docket. The docket sheet for the case notes that on April

5, 2012:

       AFTER HAVING THIS MATTER UNDER ADVISEMENT AND
       AFTER HAVING HAD AN OPPORTUNITY TO REVIEW ALL OF THE
       EXHIBITS AND THE COURT’S NOTES TAKEN DURING THE TRIAL
       OF THIS CAUSE, NOW FINDS THE DEFT, JEANNIE A. DICKMAN,
       GUILTY OF THE LESSER INCLUDED OFFENSE OF CONVERSION,
       A CLASS A MISDEMEANOR, AND ENTERS FINAL JUDGMENT OF
       CONVICTION ACCORDINGLY. PARTIES WAIVE PSI. AFTER
       HEARING COMMENTS OF COUNSEL AND THE VICTIM IN THIS
       CAUSE, THE COURT NOW SENTENCES THE DEFT AS FOLLOWS:
       TO THE VANDERBURGH COUNTY JAIL FOR A PERIOD OF 1
       YEAR, SUSPENDED TO NON-REPORTING PROBATION. THE
       COURT TAKES THE ISSUE OF RESTITUTION UNDER
       ADVISEMENT, COURT NOTING THERE IS A PENDING CIVIL
       MATTER UNDER CAUSE NO. 82D03-0907-PL-3772. COSTS OF THIS
       ACTION ARE ASSESSED AGAINST THE DEFT.


Id. at 5. However, at sentencing, the court said several times that it was declining to issue

an order on restitution because that was more appropriate for the court in the pending

civil matter. At the beginning of the sentencing hearing the court said:

                                             3
         The Court declines to make an order on restitution and the Court declines to
         make that order on restitution for the reason that there is a pending civil
         matter that encompasses all of these issues and that restitution, the Court
         believes that restitution should more properly be determined in that
         proceeding.

Id. at 97. The court then discussed pre-sentence, and took comments from the parties and

the victim. The court then sentenced Dickman and said:

         The court sentences you, Ms Dickman, to the Vanderburgh County Jail for
         a period of 1 year, suspended to non-reporting probation. You do not have
         to report to the Probation Office or probation officer, but you are on
         probation for 1 year. The restitution will be resolved in the civil matter.
         Was there a bond posted?

Id. at 99.

         The record makes it clear that the court had no intention of taking restitution under

advisement and was going to leave the determination of restitution to the court handling

the civil matter.1 While we recognize that the trial court’s chronological case summary

(CCS) is the court’s official record, and that the trial court speaks through its docket,

there is precedent for disregarding a CCS entry if it is shown to be factually inaccurate.

Ind. Trial Rule 77(B); Henderson v. State, 769 N.E.2d 172, 175 n.4 (Ind. 2002); Whatley

v. State, 685 N.E.2d 48, 50 (Ind. 1997); Gibson v. State, 910 N.E.2d 263, 267 (Ind. Ct.

App. 2009); Young v. State, 765 N.E.2d 673, 678 (Ind. Ct. App. 2002). We therefore

conclude that the entry in the docket regarding taking restitution under advisement was

entered in error. The court’s sentence was for one year, suspended to non-reporting

probation, and that was a final appealable order. The matter is therefore now properly

before us.


         1
              At the same hearing, the court advised the parties that it would recuse itself from the civil matter, and so
it is clear that the court intended to have no hand in deciding restitution.
                                                            4
            II. Variance between the Charging Information and the Evidence

                                 A. Standard of Review

       When a defendant claims there is a variance between the charging information and

the evidence at trial, we must determine whether the variance is material. A material

variance is one that misleads the defendant in the preparation of the defense or presents

the risk of double jeopardy, and it therefore requires reversal of a conviction.

McCullough v. State, 672 N.E.2d 445, 448 (Ind. Ct. App. 1996), trans. denied. However,

if the variance does not harm the defendant, then no reversal is required. Id. The test for

whether a variance is material requires us to determine (1) whether the defendant was

misled by the variance in the preparation and maintenance of his defense, and was he

harmed or prejudiced thereby; and (2) whether the defendant will be protected in a future

criminal proceeding covering the same event, facts, and evidence against double

jeopardy. Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999).

                                B. Materiality of Variance

       In the present case, there was a variance between the charging information, which

alleged that Dickman had exerted unauthorized control over “lawful United States

currency,” and the evidence at trial, which included checks and credit card statements,

but not cash. Appellant’s App. at 32. Dickman does not argue that she was misled by the

variance in the preparation of her defense, but rather argues that the variance is material

because it will potentially subject her to double jeopardy in the future. We disagree.

       Dickman claims that she is “at risk for subsequent prosecutions for theft with the

basis of these subsequent charges being the alleged credit card transactions and the

alleged checks solicited from patients and deposit[ed] into her checking account. . . .
                                             5
because the checks and credit card transactions were not charged.” Appellant’s Brief at

14. Our supreme court has established a two-part test for analyzing double jeopardy

claims in which

        two or more offenses are the “same offense” in violation of Article I,
        Section 14 of the Indiana Constitution, if, with respect to either the
        statutory elements of the challenged crimes or the actual evidence used to
        convict, the essential elements of one challenged offense also establish the
        essential elements of another challenged offense.

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original). The statutory

elements and actual evidence are two separate considerations such that even if two

offenses are capable of being committed by different acts, a violation of double jeopardy

may nonetheless occur where “the actual evidence presented at trial demonstrates that

each offense was not established by separate and distinct facts.” Montgomery v. State,

804 N.E.2d 1217, 1224 (Ind. Ct. App. 2004), trans. denied. Here, if Dickman were to be

charged again with theft predicated on the same checks and credit card transactions that

underlie this case, a conviction would violate double jeopardy based on the actual

evidence part of the Richardson test. Even though those checks and transactions were not

charged in the current case, they were the actual evidence used to convict Dickman and

so she could not be convicted again using that same actual evidence.2




        2
          We recognize that Dickman was convicted of the lesser included charge of conversion, and not of theft.
However, the United States Supreme Court has noted that “the Fifth Amendment forbids successive prosecution and
cumulative punishment for a greater and lesser included offense,” and so the actual evidence that was used here
would not be available to the State for future theft charges against Dickman. Brown v. Ohio, 432 U.S. 161, 169
(1977).

                                                       6
                                       Conclusion

      Concluding that the variance between the charging information and the actual

evidence presented at trial was not material because Dickman was not misled and is not

left open to double jeopardy, we affirm.

      Affirmed.

MAY, J., and PYLE, J., concur.




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