Sufficiency of the Charging Instrument
• “The purpose of the charging information is to provide a defendant with notice of the crime of which he is charged so that he is able to prepare a defense.”
See Wilhoite v. State, 7 N.E.3d 350, 353 (Ind. Ct. App. 2014)(citing Gilliland v. State, 979 N.E.2d 1049, 1060 (Ind. Ct. App. 2012))(“The purpose of a charging information is to provide a defendant with notice of the crime so that he can prepare a defense.”)
• The defendant must be given sufficient information to enable him to prepare his defense and to assure that he will not twice be put in jeopardy for the same crime.
See Ralston v. State, 412 N.E.2d 239, 248 (Ind. Ct. App. 1980), reh’g denied(quoting Blackburn v. State, 291 N.E.2d 686, 690 (Ind. 1973))(“Article 1, § 13, of the Constitution of Indiana requires that a ‘defendant . . . be given sufficient information to enable him to prepare his defense and to assure that he will not twice be put in jeopardy for the same crime.’”)
• Absent sufficient notice that a particular offense is charged, a defendant cannot be convicted of that crime.
Cf. Addis v. State, 404 N.E.2d 59, 63 (Ind. Ct. App. 1980), reh’g denied(quoting Thompson v. City of Louisville, 362 U.S. 199, 206 (1960))(“To permit a ‘conviction upon a charge not made would be sheer denial of due process.’”)
• “Generally, the sufficiency of an information is tested by taking the facts alleged therein as true.”
See State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind. Ct. App. 2003)(citing State v. Houser, 622 N.E.2d 987, 988 (Ind. Ct. App. 1993), reh’g denied, trans. denied)(“As a general rule, the sufficiency of an information is tested by this court by taking the facts alleged in the information as true.”)
• The words used in an indictment or information shall be construed using their ordinary and common meaning, except words and phrases defined by law, which are to be construed according to their legal meaning.
See Dudley v. State, 480 N.E.2d 881, 906 (Ind. 1985)(citing Williams v. State, 395 N.E.2d 239, 246 (Ind. 1979))(“In reviewing a charging instrument, the language is construed in light of its common acceptance and understanding.”)
• If there is a reasonable doubt as to what offenses are charged, the doubt should be resolved in favor of the defendant.
See also Moran v. State, 477 N.E.2d 100, 103-104 (Ind. Ct. App. 1985)(citing Garcia v. State, 433 N.E.2d 1207, 1209 (Ind. Ct. App. 1982))(“Any reasonable doubt as to the offense charged must be resolved in favor of the accused.”)
Completeness of each count
• It is elementary that each count of an indictment must be complete within itself and must state a public offense.
See Stillson v. State, 184 N.E. 260, 264 (Ind. 1933)(citation omitted)(“An affidavit charging a criminal offense must allege, not only the particular acts which are deemed to constitute a criminal offense, but must also allege that such acts are unlawful . . . .”)
• We know of no rule whereby the court is authorized to look beyond the count to determine its sufficiency, or whereby apparent errors and discrepancies in a count may be corrected or supplied by reference to another count in order to make it charge a crime.
Pagotis v. State, 17 N.E.2d 830, 831 (Ind. 1938)
• The indictment or information shall be in writing and allege the commission of an offense by:
(1) stating the title of the action and the name of the court in which the indictment or information is filed;
(2) stating the name of the offense in the words of the statute or any other words conveying the same meaning;
(3) citing the statutory provision alleged to have been violated, except that any failure to include such a citation or any error in such a citation does not constitute grounds for reversal of a conviction where the defendant was not otherwise misled as to the nature of the charges against the defendant;
(4) setting forth the nature and elements of the offense charged in plain and concise language without unnecessary repetition;
(5) stating the date of the offense with sufficient particularity to show that the offense was committed within the period of limitations applicable to that offense;
(6) stating the time of the offense as definitely as can be done if time is of the essence of the offense;
(7) stating the place of the offense with sufficient particularity to show that the offense was committed within the jurisdiction of the court where the charge is to be filed;
(8) stating the place of the offense as definitely as can be done if the place is of the essence of the offense; and
(9) stating the name of every defendant, if known, and if not known, by designating the defendant by any name or description by which he can be identified with reasonable certainty.
• [T]o be sufficient, a charging information generally needs only contain a statement of the “essential facts constituting the offense charged,” as well as the statutory citation, the time and place of the commission of the offense, the identity of the victim (if any), and the weapon used (if any).
Cf. Jones v. State, 863 N.E.2d 333, 336 (Ind. Ct. App. 2007)(quoting Tripp v. State, 729 N.E.2d 1061, 1064 (Ind. Ct. App. 2000)(internal citations omitted), abrogated by Fajardo v. State, 859 N.E.2d 1201, 1206 n. 9 (Ind. 2007))(“‘The charging information must state with particularity the date and location of the alleged offense as well as set forth the specific name of that offense, a citation to the statutory provision alleged to have been violated, and the elements of the offense charged.’”)
Content requirements: Name, nature, and elements of the offense
• Among other requirements, an information must state “the name of the offense in the words of the statute or any other words conveying the same meaning” and must set forth “the nature and elements of the offense charged in plain and concise language without unnecessary repetition.”
See Elvers v. State, 22 N.E.3d 824, 832 (Ind. Ct. App. 2014)(quoting IC 35-34-1-2(a)(2), (4))(“The information must, in part, ‘stat[e] the name of the offense in the words of the statute or any other words conveying the same meaning’ and explain ‘the nature and elements of the offense charged in plain and concise language without unnecessary repetition.’”)
See also Addis v. State, 404 N.E.2d 59, 63 (Ind. Ct. App. 1980), reh’g denied(quotation marks and citation omitted)(“It is a fundamental tenet of pleading criminal causes that the Information must set forth the nature and the elements of the offense charged in plain and concise language . . . .”)
• It is well settled that an information must state the crime in words of the statute or words that convey a similar meaning. However, the exact words of the statute need not be employed.
See Bei Bei Shuai v. State, 966 N.E.2d 619, 626 (Ind. Ct. App. 2012)(citing Smith v. State, 465 N.E.2d 702, 704 (Ind. 1984), reh’g denied)(“The charging information should state the accusations against the defendant in the language of the statute or in words that convey a similar meaning.”)
See also Kerlin v. State, 573 N.E.2d 445, 448 (Ind. Ct. App. 1991), reh’g denied(citing Malone v. State, 547 N.E.2d 1101, 1103 (Ind. Ct. App. 1989), trans. denied)(“Usually, if an information tracks the language of the statute defining the offense, the information is sufficient.”)
Cf. Kerlin v. State, 573 N.E.2d 445, 448 (Ind. Ct. App. 1991), reh’g denied(citing Davis v. State, 476 N.E.2d 127, 132 (Ind. Ct. App. 1985))(“When the statutory language enumerates the specific acts which constitute the crime, an indictment paralleling the words of the statute is sufficient.”)
• Although the informations here do not state that [the defendant] compelled the victim “by force or imminent threat of force” as defined by the statute, the informations cite I.C. § 35-42-4-2(a). Because the informations specifically direct [the defendant] to the statutory offense in addition to describing the particular facts of this case, they are not deficient and could not have misled him of the charges against him. [The defendant] was adequately advised of the crimes charged.
• A charging instrument must allege each essential element of the charge.
See McNamara v. State, 181 N.E. 512, 515 (Ind. 1932)(“The essential elements which go to make up a crime must be definitely pleaded.”)
Cf. Embry v. State, 96 N.E.2d 274, 275 (Ind. 1951)(citing State v. Bridgewater, 85 N.E. 715, 718 (Ind. 1908))(emphasis omitted)(“When a statute makes knowledge, or scienter, an essential element of an offense, such knowledge on the part of the accused must be charged in the indictment or affidavit.”)
• “In a criminal action, the facts upon which the action is claimed to exist are those facts which constitute the essential elements of the crime charged. These elements and the nature of the offense must be set out in the information.”
• An indictment must contain all of the essential elements of the crime charged, but other details may be omitted and a motion to [dismiss] properly denied unless the indictment is so uncertain and indefinite that the nature of the charge cannot be ascertained.
• For more information on motions to dismiss by the defendant, please review Motions to Dismiss by the Defendant.
• For more information on uncertainty and indefiniteness, please review Vagueness.
Content requirements: Date and time of the offense
• Indiana courts have consistently held that where time is not of the essence of the offense, it is sufficient to allege time specifically enough to establish that the offense was committed within the period of limitations.
• Our statutes provide that the precise time of the commission of an offense need not be stated in the indictment or affidavit, and that it is sufficient if the offense is shown to have been committed within the statute of limitations, except where time is an indispensable ingredient in the offense. This court has held many times that time is not of the essence of criminal offenses, except where the offense is in doing the thing charged upon a certain date. Ordinarily it is enough to show that the offense was committed before the affidavit was filed and within the statute of limitations.
Dixon v. State, 62 N.E.2d 629, 630 (Ind. 1945)(citations omitted)(emphasis added)
Platt v. State, 288 N.E.2d 591, 607 (Ind. Ct. App. 1972), reh’g denied(quoting Dixon v. State, 62 N.E.2d 629, 630 (Ind. 1945))(“In Dixon v. State, the court discussed when time is of the essence . . . .”)
• An information alleging a time outside the statute of limitations which does not allege facts sufficient to constitute an exception to the statute is subject to a motion to dismiss.
• For more information on motions to dismiss by the defendant, please review Motions to Dismiss by the Defendant.
Content requirements: Place of the offense
• It is true that an information alleging the commission of a criminal offense must state the place of the offense with sufficient particularity to show that the offense was committed within the jurisdiction of the court where the charge is to be filed.
See Wurster v. State, 708 N.E.2d 587, 599 (Ind. Ct. App. 1999)(citing Benham v. State, 637 N.E.2d 133, 138 (Ind. 1994))(“Our supreme court has also held that a charging instrument must state the place of the offense with specific particularity to show that the offense was committed within the jurisdiction of the court where the charge is to be filed.”)
• The words ‘at and in said county,’ has always been held to be a sufficient allegation in charging an offense.
E.g., Poindexter v. State, 374 N.E.2d 509, 512 (Ind. 1978)(“The defendant next argues that the place of the crime should have been alleged more specifically in the information. The information stated that the crime took place “at and in the County of Marion in the State of Indiana” . . . The defendant has failed to show how the lack of a more specific address has mislead or prejudiced him.”)
See Vail v. State, 536 N.E.2d 302, 303 (Ind. Ct. App. 1989)(citing State v. Schell, 224 N.E.2d 49, 54 (Ind. 1967), reh’g denied)(“[A]n allegation that the offense occurred within a particular county is adequate.”)
Cf. Robbins v. State, 241 N.E.2d 148, 152 (Ind. 1968), reh’g denied(“The indictment in plain and concise language charges that the appellant did ‘feloniously and forcibly carry away and kidnap * * * Ellen Wright, from a place within the city of Indianapolis, in the county of Marion and State of Indiana * * *’ This was a sufficient allegation . . . . The specific location in the indictment is surplusage. The appellant has not shown that he was misled or prejudiced in preparing or maintaining his defense . . . .”)
• [“Place” cannot be “of the essence” of an offense, if] said act does not make any particular locality or place an ingredient of the offense . . . .
Donovan v. State, 83 N.E. 744, 745 (Ind. 1908)
Content requirements: Name of the defendant
• IC 35-34-1-2(a) requires that the information set forth the defendant’s name. An information which fails to do so is defective, and the court may, upon timely motion of the defendant, dismiss the information.
• For more information about motions to dismiss by the defendant, please review Motions to Dismiss by the Defendant.
Content requirements: Names of other persons
• “While the names of third persons only collaterally or incidentally related to the offense charged may be omitted from an information or indictment, the names of those whose identities are essential to a proper description of the offense charged must be alleged if known.”
See Fadell v. State, 450 N.E.2d 109, 116 (Ind. Ct. App. 1983), reh’g denied, trans. denied(citing Robinson v. State, 112 N.E.2d 861, 862 (Ind. 1953))(“[A]lthough a person collaterally connected with the crime charged need not be named, an indictment must allege the name of persons whose identity ‘is essential to a proper description of the offense charged . . . .’”)
See also Robinson v. State, 112 N.E.2d 861, 862 (Ind. 1953)(citations omitted)(“The names of third persons who are only incidentally or collaterally connected with the offense charged against an accused need not be stated in an affidavit or indictment. But as a general rule the name of one injured in his person or property, by the act of the accused, or the name of one whose identity is essential to a proper description of the offense charged should be alleged if known, and if unknown that fact should be alleged.”)
• The State concedes that in order to clearly apprise a defendant of the charge against him and to enable him to prepare a defense, the name of the victim must be alleged.
• [Regarding the necessity of alleging the victim’s name], we hold that the State may not supplement the information by extraneous matter attached thereto.
Content requirements: Ownership, possession, or custody of property
• The indictment or information for an offense which was committed upon or in relation to any property belonging to partners, or to several joint owners, or property which, when the offense was committed, was in possession of a bailee or tenant, is sufficient if it alleges the ownership of the property to be in the name of:
(1) the partnership or any partner;
(2) an owner;
(3) a bailor;
(4) a bailee; or
(5) a tenant.
• When an offense is committed in relation to property which, when the offense was committed, was in the possession of a bailee, the indictment may allege the ownership to be in either the bailee or bailor.
Greer v. State, 168 N.E. 458, 459 (Ind. 1929)(citing Edson v. State, 47 N.E. 625, 625 (Ind. 1897))
• An indictment shall be signed by:
(1) the foreman or five (5) members of the grand jury; and
(2) the prosecuting attorney or his deputy.
An information shall be signed by the prosecuting attorney or his deputy and sworn to or affirmed by him or any other person.
Signature requirements: Rationale
• We believe that the purpose of requiring the signature of the prosecuting attorney or his deputy to an information . . . is the same as under the former law, that is, to assure that such prosecutions have been investigated by and approved by the only officer authorized to initiate criminal prosecutions, namely, the prosecuting attorney.
See Clark v. State, 561 N.E.2d 759, 765 (Ind. 1990)(citing Brown v. State, 403 N.E.2d 901, 910 (Ind. Ct. App. 1980), reh’g denied)(“The purpose of such a signature is to insure that prosecutions have been investigated and approved by the prosecutor’s office, the only officer authorized to initiate criminal prosecutions.”)
• Unlike a prosecutor’s signature of approval, which is necessary because he is the only officer authorized to initiate a criminal prosecution on behalf of the State, a prosecuting witness’ signature [under IC 35-34-1-2(b)] serves simply to foreclose the filing of frivolous charges by imposing the penalties of perjury upon the prosecuting witness.
Signature requirements: Who may sign the charging instrument
• [The defendant] argues that the four count indictment was defective because it was signed by a special prosecutor without authority. … [W]e hold that the special prosecutor had the required authority, and, thus, the indictment was not defective.
• 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))
Signature requirements: Who may affirm an information
• While it may be more common to have a law enforcement officer or prosecutor affirm the information, it is not required by the plain language of the statute, nor by any case law that we can find or that the parties cite. The Indiana code requires that an information “be signed by the prosecuting attorney or his deputy and sworn to or affirmed by him or any other person.” The plain language of this statute does not place a limit on who may affirm the information, and what case law can be found also does not indicate a limit.
See Alstott v. State, 185 N.E. 896, 898 (Ind. 1933)(“Any person may swear to an affidavit charging a criminal offense . . . .”)
Signature requirements: Form of the signature
• It is a well recognized part of the law that a signing may be in a number of different fashions.
• The principle running through all these cases is that if the person intended the mark or the name, printed or written, when it is imprinted upon the document, to be his signature and he so adopts it as his act and intends to be bound thereby, it meets the requirements of the law.
Brewer v. State, 605 N.E.2d 181, 183 (Ind. 1993)(citing State v. Schell, 224 N.E.2d 49, 53 (Ind. 1967), reh’g denied)(“When a person intends for the mark or name to represent his signature on a document, it meets the requirements of the law.”)
• An indictment or information shall have stated upon it the names of all the material witnesses. Other witnesses may afterwards be subpoenaed by the state, but unless the name of a witness is stated on the indictment or information, no continuance shall be granted to the state due to the absence of the witness.
• It is correct . . . that our statute provides that the state shall list the names of all material witnesses on the indictment or information.
• [T]he [defendant] first contends . . . [t]hat the indictment was fatally defective because the names of the material witnesses were not endorsed on the affidavit. . . . As the [defendant] was promptly supplied with a list of material witnesses on request, the possibility of any prejudice to the [defendant] was thereby eliminated and the allegation is without merit.
Witnesses requirement: Rationale
• The purpose of . . . the statute requiring witnesses to be listed is to enhance the accuracy and efficiency of the fact-finding process.
• The purpose of the statute requiring that witnesses be listed is to inform the defendant of the witnesses against him and serves as a method of discovery.
Witnesses requirement: Remedy for noncompliance
• We can only gather that counsel believes that the statute requires dismissal of an indictment which names the witnesses on a separate page. He is mistaken.
• Failure to fully comply with IC 35-34-1-2(c) does not necessarily warrant dismissal. . . . The effect of not complying with the statute is to prevent the State from obtaining a continuance due to the absence of an unlisted witness.
See Hansen v. State, 106 N.E.2d 226, 228 (Ind. 1952)(citations omitted)(“The only effect of the omission of the witness’s name from the indictment was that the state could not have obtained a continuance because of his absence from the trial.”)
• [O]ur supreme court has held that the State’s failure to list potential witnesses on a charging information does not prejudice a defendant who was well aware of that person’s identity and status as a potential State’s witness.
E.g., Johnson v. State, 446 N.E.2d 1307, 1309 (Ind. 1983)(“Defendant next contends that the trial court erred in allowing one of the victims, Arthur Jackson, to testify when his name was not listed on the state’s charging information. . . . We find no prejudice to defendant in this case as he acknowledges the prosecutor’s office extended an ‘open file’ policy to his counsel prior to trial. The names of all the victims were in the police report and subpoenas were issued to all of them.”)
E.g. Fortson v. State, 379 N.E.2d 147, 168 (Ind. 1979), reh’g denied(“Thus, [the defendant] was well aware of Lewis’ identity and status as a potential state’s witness and cannot reasonably claim to have been prejudiced by the state’s failure, if any, to list Lewis as a witness on the information.”)
Essential facts requirement
• The indictment or information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It need not contain a formal commencement, a formal conclusion, or any other matter not necessary to the statement. Presumptions of law and matters of which judicial notice is taken need not be stated.
• Moreover, “[a]n information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged, and must be sufficiently specific to apprise the defendant of the crime for which he is charged and to enable him to prepare a defense.”
• When a statute defines an offense in general terms, the information must specify the facts and circumstances which inform the accused of the particular offense coming under the general description with which he is charged.
• The State cannot be compelled and should not be forced to set out evidence in a criminal charge, but the ultimate facts only are to be alleged, with sufficient certainty . . . .
Essential facts requirement: Level of detail required
• “Although the State may choose to do so, it is not required to include detailed factual allegations in the charging instrument.”
Pavlovich v. State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014)(quoting Laney v. State, 868 N.E.2d 561, 566–567 (Ind. Ct. App. 2007))(“‘The State is not required to include detailed factual allegations in a charging information.’”)
• “[W]here a charging instrument ... lack[s] appropriate factual detail, additional materials such as the probable cause affidavit supporting the charging instrument may be taken into account in assessing whether a defendant has been apprised of the charges against him.”
E.g., Patterson v. State, 495 N.E.2d 714, 719 (Ind. 1986)(internal citation omitted)(“The key issue is whether [the defendant] was sufficiently apprised of the charges against her that she could prepare her defense. The probable cause affidavit supporting the information stated the cause of death as a beating, which was the offense for which [the defendant] was under investigation twenty years earlier. Furthermore, the motion to dismiss the information was not filed until after one trial ended in mistrial, so that the parties had already engaged in discovery, pretrial investigation, and trial itself. Clearly, [the defendant] was aware that she was charged with murder by beating.”)
• “Absence of detail in an information is fatal only if the phraseology misleads the defendant or fails to give him notice of the charges against him.”