Amending the Charging Instrument
• “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.”
• Therefore, the first step in evaluating the permissibility of amending an indictment or information is to determine whether the amendment is addressed to a matter of substance or one of form or immaterial defect.
Interpretation of “form” and “substance”
• “[A]n amendment is one of form and not substance if a defense under the original information would be equally available after the amendment and the accused’s evidence would apply equally to the information in either form. Further, an amendment is of substance only if it is essential to making a valid charge of the crime.”
See Blythe v. State, 14 N.E.3d 823, 829 (Ind. Ct. App. 2014)(quoting Fajardo v. State, 859 N.E.2d 1201, 1207 (Ind. 2007))(“‘[A]n amendment is one of form, not substance, if both (a) a defense under the original information would be equally available after the amendment, and (b) the accused’s evidence would apply equally to the information in either form. And an amendment is one of substance only if it is essential to making a valid charge of the crime.’”\
Amendments to immaterial defects
• An indictment or information which charges the commission of an offense . . . may be amended on motion by the prosecuting attorney at any time because of any immaterial defect, including:
(1) any miswriting, misspelling, or grammatical error;
(2) any misjoinder of parties defendant or offenses charged;
(3) the presence of any unnecessary repugnant allegation;
(4) the failure to negate any exception, excuse, or provision contained in the statute defining the offense;
(5) the use of alternative or disjunctive allegations as to the acts, means, intents, or results charged;
(6) any mistake in the name of the court or county in the title of the action, or the statutory provision alleged to have been violated;
(7) the failure to state the time or place at which the offense was committed where the time or place is not of the essence of the offense;
(8) the failure to state an amount of value or price of any matter where that value or price is not of the essence of the offense; or
(9) any other defect which does not prejudice the substantial rights of the defendant.
• An information may be amended at any time because of an immaterial defect such as a miswriting or misspelling.
Amendments to matters of form
• 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.
Amendments to matters of substance: Before the commencement of trial
• 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.
• In general, Indiana Code section 35-34-1-5(b) permits the State to amend a charging information even in matters of substance at any time before the commencement of trial so long as the amendment does not prejudice the defendant’s substantial rights.
See Ramon v. State, 888 N.E.2d 244, 250 (Ind. Ct. App. 2008)(“Under the revised subsection (b), the State can make an amendment to a matter of substance at any time before the commencement of trial so long as the amendment does not prejudice the defendant’s substantial rights.”)
• An amended information need not be signed by the same person who signed the original information.
See Malone v. State, 100 N.E. 567, 569 (Ind. 1913)
See also Tow v. State, 151 N.E. 697, 698 (Ind. 1926)(citing Malone v. State, 100 N.E. 567, 569 (Ind. 1913))
• The requirement that an amended information contain the signature of the prosecuting attorney or a deputy prosecuting attorney does not apply when the information is amended during trial.
See also Studio Art Theatre of Evansville, Inc. v. State, 530 N.E.2d 750, 754 (Ind. Ct. App. 1988), reh’g denied(“In McCloud, an unsigned amended information filed during a trial was held to be valid.”)
Amendments to matters of substance: After the commencement of trial
• Whether an indictment or information may be amended after the commencement of trial depends upon whether the amendment is one of form or substance. An amendment of substance is not permissible after trial has commenced.
• A jury trial commences with voir dire for purposes of determining whether the State may make a substantive amendment to a charging instrument.
See Gibbs v. State, 952 N.E.2d 214, 221-22 (Ind. Ct. App. 2011)(“Our research does not reveal any cases in Indiana that have explicitly clarified when a jury trial has ‘commenced’ for the purposes of this provision. Our review of other states, however, indicates that it is a widely accepted rule that a jury trial commences with voir dire. . . . Because [the defendant’s] trial commenced with voir dire, we conclude that the trial court erred in allowing the State to amend his Information after that point.")
Interpretations of “prejudice the defendant’s substantial rights”
• 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.”
See Stafford v. State, 890 N.E.2d 744, 752 (Ind. Ct. App. 2008)(citing Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1206-07 (Ind. 2007))(“These 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.”)
• “Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges.”
Stafford v. State, 890 N.E.2d 744, 752 (Ind. Ct. App. 2008)(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, 1206-07 (Ind. 2007))
See Suding v. State, 945 N.E.2d 731, 735-36 (Ind. Ct. App. 2011)(“For the amendment to affect [the defendant’s] substantial rights, he must prove he was denied ‘a reasonable opportunity to prepare for and defend against the charges.’”)
Amending the charging instrument after a mistrial
• [U]nless there is new evidence or information discovered to warrant additional charges, the potential for prosecutorial vindictiveness is too great for courts to allow the State to bring additional charges against a defendant who successfully moves for a mistrial.
• [F]undamental fairness precludes a requirement that Defendant show vindictive motivation or that the State be permitted to show its absence. Were we to hold otherwise, an accused in Defendant’s predicament would be required to elect whether he would submit to a trial had without due process of law or to a trial wherein there was a potential for a much more severe penalty. Our concept of justice simply will not sanction an implicit form of bargaining where the accused must purchase due process of law.
• New evidence will permit the State to amend its charging information in an appropriate circumstance. . . . It is central to the theory in Murphy that if new evidence is discovered, it contribute to the State’s case against the defendant.
• The rationale . . . [i]s that an accused should not be faced with the prospect of retaliation if he exercises his legal right to a fair trial . . . .
Amending the charging instrument to include a habitual offender charge
• An amendment of an indictment or information to include a habitual offender charge under IC 35-50-2-8 must be made at least thirty (30) days before the commencement of trial. However, upon a showing of good cause, the court may permit the filing of a habitual offender charge at any time before the commencement of the trial if the amendment does not prejudice the substantial rights of the defendant. If the court permits the filing of a habitual offender charge less than thirty (30) days before the commencement of trial, the court shall grant a continuance at the request of the:
(1) state, for good cause shown; or
(2) defendant, for any reason.
• This section applies when the State seeks to add a habitual offender charge. In this case, the State filed the habitual offender information on . . . the same day that the State filed the information for dealing in cocaine. The challenged amendment is merely an amendment to the already existing habitual offender information, rather than an addition of a habitual offender charge, as contemplated by IC 35-34-1-5(e).
See Nunley v. State, 995 N.E.2d 718, 725 (Ind. Ct. App. 2013)(citing Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind.1996))(“[T]his subsection applies to amendments ‘to include’ a habitual offender charge, whereas here, the amendment was to an existing habitual offender charge.”)
• “By permitting the State to file the habitual offender count, the trial court impliedly found good cause.”
• But once a defendant requests a continuance, the burden lies with the State to make a showing of good cause to the trial court, and such a showing should be reflected in the record.
• Before amendment of any indictment or information other than amendment as provided in subsection (b), the court shall give all parties adequate notice of the intended amendment and an opportunity to be heard.
• An “opportunity to be heard” is not equivalent to a hearing. Rather, the requirement of an “opportunity to be heard” is satisfied when the defendant is given adequate time to object and request a hearing after proper notice.
See Ramon v. State, 888 N.E.2d 244, 253 (Ind. Ct. App. 2008)(quoting Tripp v. State, 729 N.E.2d 1061, 1065 (Ind. Ct. App. 2000), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1206 n. 9 (Ind. 2007))(some quotation marks omitted)(“A trial court need not ‘set a hearing in every instance that an information is sought to be amended after . . . the omnibus date. . . . Rather, the requirement of an ‘opportunity to be heard’ is satisfied when the defendant is given adequate time to object and request a hearing after proper notice.’”)
• Upon permitting such amendment, the court shall, upon motion by the defendant, order any continuance of the proceedings which may be necessary to accord the defendant adequate opportunity to prepare the defendant’s defense.
• When the court permits an amendment to the charging information, “the court shall, upon motion by the defendant, order any continuance of the proceedings which may be necessary to accord the defendant adequate opportunity to prepare [the defendant’s] defense.”
• [The defendant] contends that the word ‘shall’ . . . makes it mandatory, upon defendant’s motion, that the trial court order a continuance. It is our view, however, that the implementation of the word ‘shall’ is contingent upon a determination that such continuation is ‘necessary’. Further, it is our view that the integrity of the trial process demands that the trial judge, not a defendant, be the arbiter of what constitutes necessity. It is therefore incumbent upon a defendant to demonstrate to the satisfaction of the trial judge that a continuance is necessary . . . .
See Stanger v. State, 545 N.E.2d 1105, 1116 (Ind. Ct. App. 1989), overruled on other grounds, Smith v. State, 689 N.E.2d 1238, 1246 n. 11 (Ind. 1997)(citations omitted)(“The granting of a continuance requested pursuant to this section is not mandatory but contingent upon a determination that a continuation of the proceedings is necessary to enable counsel to adequately prepare a defense. It is therefore incumbent upon the movant to demonstrate to the satisfaction of the trial judge that a continuance is necessary.”)
Preserving the issue for appeal: In general
• If a court overrules a defendant’s objection to a late amendment, a defendant must request a continuance to preserve any argument that he was prejudiced by the late amendment.
• [G]enerally a defendant’s failure to request a continuance after a trial court allows a pre-trial substantive amendment to the charging information results in waiver.
See Wilson v. State, 931 N.E.2d 914, 918 (Ind. Ct. App. 2010)(“We further conclude that under the amended version of Indiana Code section 35-34-1-5, a defendant’s failure to request a continuance after a trial court allows a pre-trial substantive amendment to the charging information over defendant’s objection results in waiver.”)
• To the extent that [the defendant] argues that he was excused from filing a continuance because he had previously requested a speedy trial, we note that the fact that a defendant has requested a speedy trial does not negate waiver.
Preserving the issue for appeal: Amending the charging instrument to include a habitual offender charge
• This Court’s precedent has consistently held that a defendant must request a continuance after a trial court permits a tardy habitual-offender filing to preserve the issue for appeal.
See White v. State, 963 N.E.2d 511, 518 (Ind. 2012)(“Ultimately, to preserve this issue for appeal, a defendant must request a continuance after a trial court permits a tardy habitual-offender filing.”)
• Since defendant had the opportunity to request a continuance and chose not to, defendant has waived this issue for appeal.
• Once defendant’s objection had been overruled, he should have requested a continuance . . . . According to trial counsel, the defendant did not do so because he had filed a speedy trial motion and wanted his trial to proceed as scheduled, but this fact does not negate waiver.
See Kidd v. State, 738 N.E.2d 1039, 1042 (Ind. 2000)(citing Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind.1996))(“There is no exception to this rule even where a defendant has asked for a speedy trial.”)
• The State argues that [the defendant’s] challenge to the amendment has been waived by his failure to request a continuance. . . . [W]e note that after resuming court, following a recess to allow the parties to research the law regarding amendments, the court here allowed each side to present its argument about the proposed amendment. The judge then said, “[h]ere’s what we’re going to do, okay, I’m going to allow the amendment, but I’m going to grant your motion to continue . . . .” While no such actual motion is in the record, it does not appear that the court gave [the defendant] a chance to request such a continuance, following the court’s grant of the motion to amend, before granting a continuance. In effect, [the defendant] never had a chance to request a continuance and should not be penalized for the court’s decision to give the parties more time to prepare in light of the amendment.
Examples of amendments to immaterial defects and matters of form
• The State was permitted to amend the information which read, “Jefferson, Missouri” to read “Jefferson City, Missouri.” [The defendant] alleges that this amendment made a significant difference in location and in the State’s proof and thereby prejudiced him. We disagree. . . . Here, Jefferson City, Missouri, stated the location of the State Department of Corrections of the State of Missouri and was the situs of [the defendant’s] incarceration rather than the situs of any offenses committed by him. This clearly is an immaterial defect and we fail to see how [the defendant] was prejudiced by the allowing of this amendment.
• The initial information misspelled the substance found in [the defendant’s] possession as diazepan. The prosecutor filed an amended information twelve days prior to trial correcting the error by spelling the substance with an m; that is, diazepam. The defendant argues that the amendment was improper and therefore had no effect. He concludes that his conviction for possession of diazepan, a substance which does not exist, was a nullity. . . . . In Henderson v. State, 403 N.E.2d 1088, 1093 (Ind. 1980), the court held that an amended information correcting the misspelling of the victim’s name was immaterial and therefore proper. Likewise, in the present case the amended spelling of diazepam was properly allowed and the defendant’s conviction was not a nullity.
• [I]t is immaterial in the case of robbery to establish the exact amount of money taken. The fact that anything of value was taken from the victim in armed robbery is sufficient to establish the offense. . . . [The defendant] urges that the court erred in permitting an amendment to the affidavit by interlineation to conform to the testimony as to the amount of money taken. The affidavit alleged that $300 had been taken. The court permitted the amendment to show that $160 had been taken. For the reasons above stated[,] the making of this amendment made no change in the nature of the crime charged and therefore was permissible . . . . There was, therefore, no error in permitting the amendment.
• Thus, in this case the State could have proceeded to trial under the original information, alleging that [the defendant] committed Class B felony child molesting as a principal, yet obtained her conviction under an accomplice liability theory. The amended information here, explicitly stating that [the defendant] was an accomplice, was not necessary to obtain [the defendant’s] conviction for Class B felony child molesting and, therefore, was not substantive. . . . The amendment was one of form or immaterial defect only, and the State was entitled to make the amendment at any time, provided [the defendant’s] substantial rights were not violated.
• The alteration of the generic name “Preludin” to “phenmetrazine” was a change in form only, not substance. The essence of the facts and of the offense did not change—the Schedule II drug remained the same. Nor has Hudson shown that the amendment rendered any of Hudson’s defenses or evidence inapplicable.
• [The defendant] argues that the amendment was one of substance and that his substantial rights were prejudiced in that the addition of the intent language hampered his ability to present a defense. The charge before and after the amendment was possession of child pornography, and the essential elements of the crime remain unchanged. By adding the intent language, the State made the charging information conform to the statutory language defining sexual conduct in the context of the possession of child pornography statute and essentially increased its burden by adding an additional element to be proved by the State. We agree with the trial court’s assessment that the amendment adding the intent language did not “materially change the substance of the offense” and did not affect the presentation of [the defendant’s] defense.
• [The defendant] next claims the trial court erroneously allowed the State to amend its information after the close of all the evidence. The trial court granted the State permission to delete, “Lawful United States Currency in the form” from each of the seven theft counts, which left the words, “of a check.” According to IC 35-34-1-5(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.” The original information notified [the defendant] that a check was involved with each theft count. The same is true of the amended information. [The defendant’s] argument that the amendment deprived him of a defense is not persuasive. The deleted phrases amounted to mere surplusage in the information, and the amendment did not prejudice [the defendant’s] substantial rights.
Examples of amendments to matters of substance
• The State initially filed charges against [the defendant] on June 16, 2006. Counts 1, 2, and 3 were filed as class B felonies. Shortly after the initial charges against [the defendant] were filed, the trial court set the omnibus date for the case as August 21, 2006. On that day, the State filed a motion for leave to amend Counts 1, 2, and 3 by enhancing each of those counts to class A felonies. . . . The trial court found and the parties agree that the State’s amendments to Counts 1, 2, and 3 were amendments to matters of substance.
• The original charging information alleged [the defendant] committed class A child molesting by performing sexual intercourse upon his five-year-old daughter, J.L. The amended information added one count of class A child molesting alleging [the defendant] performed sexual deviate conduct on J.L. by placing his mouth on the sex organ of J.L., and one count of class C felony child molesting by alleging [the defendant] fondled or touched J.L. with the intent to arouse or satisfy his sexual desires. Applying the rule for distinguishing between amendments to matters of form and those of substance, we conclude that the addition of counts two and three, charging [the defendant] with two new and separate offenses, constituted an amendment to substance.
• The State requested leave to amend the habitual offender charge the day after the jury was empaneled in order to remove the possession of cocaine charge and add additional theft charges that would go to a habitual offender allegation. . . . [W]e doubt that the proposed amendment was “immaterial,” and moreover, we conclude that [the defendant’s] substantial rights were prejudiced by the amendment. . . . Because the amendment was essential to the allegation of [the defendant] being a habitual offender, and because [the defendant’s] defense under the original information evaporated under the amendment, the amendment was one of substance rather than form . . . .
Examples of amendments that did not prejudice defendants’ substantial rights
• [T]he amendment in this case, which was filed four days before the trial, added Robinson as a victim to the charge of theft as a class D felony, while Randy Schuck remained listed as a victim in both informations. The State filed its witness list, which included Robinson, on November 30, 2007, eleven days before the trial. The amendment did not add another charge. The date of the offense, the items stolen, and the location of the offense remained the same. [The defendant] objected to the second amended information at the initial hearing, and the trial court found that the amended information did not prejudice [the defendant’s] rights. On the facts and circumstances before us, we conclude that the second amended information did not prejudice [the defendant’s] substantial rights, and [the defendant] had a reasonable opportunity to prepare for and defend against the charge against him.
• The amendment was to change the last digit of the allegedly altered or defaced VIN number (from 2FBP22R7EB202070 to 2FABP22R7EB202079). The probable cause affidavit filed in conjunction with the information had listed the correct VIN. All pretrial discovery disclosed to [the defendant] correctly referenced the altered VIN number. . . . We are satisfied that the amendment was simply to correct a typographical error. Therefore, we cannot imagine how [the defendant] was prejudiced by the amendment and we find no error.
• Defendant next contends the trial court erred in permitting the state to amend the Information for Count I at trial. The state sought and was granted permission to amend what it called a typographical error. Defendant objected and moved for a continuance which was denied. The amendment changed the section of the Indiana Code from § 35-42-4-2 to § 35-42-4-3 (Burns 1979). The former section prohibits unlawful deviate conduct while the latter prohibits child molesting. The substance of the charge remained unchanged and contained allegations of acts which constitute child molesting. . . . Defendant now argues that the correction by amendment completely changed the nature of the crime, the substance of the crime, and her available defenses. We find this contention untenable. Upon examining the charge in the Information, we find that defendant knew or should have known she was being charged with child molesting. . . . [W]e find that defendant was adequately apprised of the charge of child molesting and was not substantially prejudiced by the amendment needed to correct a typographical error.
• In Jones v. State, 863 N.E.2d 333, 338–39 (Ind. Ct. App. 2007), we held [the defendant’s] substantial rights were not violated by a late amendment to his charging information that changed the drug he was accused of possessing from cocaine to heroin. We noted [the defendant] could have anticipated the amendment to the charging information, as he was privy to the same laboratory report the State used to determine the substance in his possession was heroin and not cocaine. The same reasoning applies to the amendments herein. During a hearing on January 8, 2010, the State explained the late amendments were due to additional evidence obtained during depositions taken in November or December 2009. As [the defendant’s] counsel was present during those depositions, we presume she was aware of the new evidence; thus she should have anticipated the amendments based on the new evidence. [The defendant] has not demonstrated he was prejudiced by the amendments.