• Because the charging information advises a defendant of the accusations against him, the allegations in the pleading and the evidence used at trial must be consistent with one another.
See Mathews v. State, 978 N.E.2d 438, 445 (Ind. Ct. App. 2012)(quoting Simmons v. State, 585 N.E.2d 1341, 1344 (Ind. Ct. App. 1992))(“‘A criminal defendant has the right to be advised of the nature and cause of the accusation against him. There must be consistency between the allegations charged and the proof adduced . . . .’”)
See also Hayden v. State, 19 N.E.3d 831, 840 (Ind. Ct. App. 2014), reh'g denied(quoting Myers v. State, 510 N.E.2d 1360, 1367 (Ind. 1987))(“‘Consistency between the allegations charged and the proof adduced is required out of deference for the accused's constitutional right to be informed of the nature and cause of the accusation in sufficient detail to enable her to prepare her defense, to protect her in the event of double jeopardy, and to define the issues so that the court will be able to determine what evidence is admissible and to pronounce judgment.’”)
• A variance is an essential difference between the two.
See Tipton v. State, 981 N.E.2d 103, 111 (Ind. Ct. App. 2012)(quoting Bayes v. State, 779 N.E.2d 77, 80 (Ind. Ct. App. 2002), trans. denied)(“‘A variance is an essential difference between the charging instrument and the proof presented at trial.’”)
Determining whether a variance is fatal to a case
• Not all variances are material—or “fatal”—and thus not all variances require reversal.
• The test to determine whether a variance is fatal is: (1) was the defendant mislead by the variance in the evidence from the allegations and specifications in the charge in the preparation and maintenance of his defense, and was he harmed or prejudiced thereby; (2) will the defendant be protected in [a] future criminal proceeding covering the same event, facts, and evidence against double jeopardy?
Mathews v. State, 978 N.E.2d 438, 445 (Ind. Ct. App. 2012)(quoting Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997))(“The test to determine whether a variance between the proof at trial and a charging information or indictment is fatal is as follows . . . .”)
Cf. Rupert v. State, 717 N.E.2d 1209, 1211-12 (Ind. Ct. App. 1999)(citing McCullough v. State, 672 N.E.2d 445, 448 (Ind. Ct. App. 1996), trans. denied)(“When a defendant claims there is a variance between the information and the evidence, we must determine whether the variance is material. A material variance requires reversal of a conviction, because such a variance misleads the defendant in the preparation of his defense and presents the risk of double jeopardy.”)
• Put another way, if the variance either misleads the defendant in the preparation of his defense resulting in prejudice or leaves the defendant vulnerable to double jeopardy in a future criminal proceeding covering the same event and evidence, then the variance is fatal.
See Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014)(citing Winn v. State, 748 N.E.2d 352, 356 (Ind. 2001))(“Relief is required only if the variance (1) misled the defendant in preparing a defense, resulting in prejudice, or (2) leaves the defendant vulnerable to future prosecution under the same evidence.”)
Cf. Robinson v. State, 634 N.E.2d 1367, 1372 (Ind. Ct. App. 1994)(citations omitted)(“A variance will require reversal only if the variance is material. A variance is material only if it misleads the defendant in the preparation of his defense or if it subjects him to the likelihood of another prosecution for the same offense.”)
• Unnecessary surplusage in a charging document is descriptive material or allegations that are not essential to a charge and that may be entirely omitted without affecting the sufficiency of the charge.
See Jones v. State, 938 N.E.2d 1248, 1252 (Ind. Ct. App. 2010)(quoting Bonner v. State, 789 N.E.2d 491, 493 (Ind. Ct. App. 2003))(“Facts that ‘may be omitted from an information without affecting the sufficiency of the charge against the defendant are mere surplusage and do not need to be proved.’”)
See also Winn v. State, 748 N.E.2d 352, 356 (Ind. 2001)(citing Mitchem v. State, 685 N.E.2d 671, 676 (Ind. 1997))(“While this is an essential difference between the proof and pleading, we find that the specific facts alleged were surplusage and as such could have been ‘entirely omitted without affecting the sufficiency of the charge against the defendant.’”)
• When the factual allegations in the charge are not necessary to the sufficiency of the charge, a greater variance between the allegations and the proof is tolerated before finding the variance material or fatal.
• [A] particular allegation which is surplusage might nevertheless be so substantial as to mislead the defendant in the preparation of his defense.
• Technical and trifling errors in spelling causing a slight variance in names, places, time, values, etc., are usually not sufficient to invalidate criminal proceedings.
E.g., Woodfork v. State, 594 N.E.2d 468, 471 (Ind. Ct. App. 1992)(citation to the record omitted)(“This is an obvious clerical error, however, and does not nullify [the defendant’s] conviction under the forgery count.”)
E.g., Denton v. State, 203 N.E.2d 539, 540 (Ind. 1965)(“[I]n view of the minor nature thereof, it is our conclusion the same was purely typographical and clerical, and not sufficiently material to cause a reversal of the judgment.”)
Variance in the name of the defendant or other persons
• If the stated name of the defendant in the indictment or information is incorrect . . . any variance between the allegations and the proof of the defendant's name shall not be considered material.
• The rule, as we conceive it to be, is that an indictment is not bad which gives a popular or commonly used abbreviation of a . . . name, as distinguished from a proper or true name, and that it is sufficient to sustain an averment of a particular name that the party is usually or popularly known by such name, or a common abbreviation is used, which is accepted by the party.
State v. Whiteneck, 96 N.E. 156, 158 (Ind. 1911)
See State v. Whiteneck, 96 N.E. 156, 158 (Ind. 1911)(holding that there was no fatal variance where the charging instrument alleged alteration of a receipt executed by “Jos.” H.R. but proof showed that the receipt was executed by “Joseph” H.R.)
See also Bynum v. State, 118 N.E.2d 898, 900 (Ind. 1954)(holding that the charging instrument listing the defendant's given name as “Thomas,” but proof referring to the defendant as “Tommie” and “Tommy,” did not constitute a fatal variance)
• When there is a single charge of resisting law enforcement, an error by the State in the officer's name is not fatal to a conviction.
E.g., Parahams v. State, 908 N.E.2d 689, 693 (Ind. Ct. App. 2009)(citations to the record omitted)(“[I]n the case before us, [the defendant] was charged with one act of resisting law enforcement. Specifically, [the defendant] was charged with knowingly fleeing from Officer Leszczynski “by running away, after Officer Leszczynski had identified himself by visible and audible means, to-wit: full uniform and a marked squad car and ordered” [the defendant] to stop. Yet, the evidence at trial revealed that it was actually Officer Cichowicz who told [the defendant] to stop running. [The defendant] does not argue that the variance between the charging information and the proof at trial misled him in the preparation of his defense. Moreover, on the record before us, we cannot conclude that the variance prejudiced [the defendant]. [The defendant’s] one charged act of resisting was fleeing from a police officer after he was told to stop. The probable cause affidavit attached to the charging information listed the five officers that were present at the scene. The State proved that one of those officers, Officer Chicowicz, ordered [the defendant] to stop when he began to flee. For all of these reasons, we cannot conclude that the variance was fatal to the State's case.”)
• We conclude that convicting a defendant of battering a person who was not the victim alleged in the charging information constitutes a material variance . . . .
• To be clear, not all variances involving a victim’s identity are fatal.
• [The defendant identifies] a variance between the allegation of the affidavit and the proof, in that the affidavit refers to the dwelling house of ‘Arthur Overbay’ as having been burglarized, whereas the evidence shows it to have been that of ‘Arthur Overbay, Jr.’ We do not regard this as a material variance.
See Estep v. State, 486 N.E.2d 492, 494 (Ind. 1985)(quoting Geraghty v. State, 11 N.E. 1, 2 (Ind. 1887))(“It has long been held that the addition of the word ‘Senior’ or ‘Junior’ to the name of a person referred to in a charging instrument is a ‘mere matter of description, constituting no part of the name, and need not be proved.’”)
Variance in the date and time of the offense
• Generally, a variance between the date alleged and the State's proof at trial does not mandate acquittal or reversal.
E.g., Johnson v. State, 734 N.E.2d 530, 532 (Ind. 2000)(“[T]he State argued that the crime occurred in the early morning hours of April 23, 1998. This variance from the charging information, which alleged that the crime occurred ‘on or about’ April 22, 1998, is not material.”)
• Furthermore, “[w]hen time is not an element of the crime charged, or ‘of the essence of the offense,’ the State is only required to prove that the offense occurred at any time within the statutory period of limitations; the State is not required to prove the offense occurred on the precise date alleged.”
See Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014)(citing Neff v. State, 915 N.E.2d 1026, 1032 (Ind. Ct. App. 2009), adhered to on reh'g, 922 N.E.2d44 (Ind. Ct. App. 2010))(“Where, as here, time is not an element of the offense, the State is not required to prove the offense occurred on the precise date alleged, and its presentation of evidence is not limited to events on that date.”)
See also Neff v. State, 915 N.E.2d 1026, 1032 (Ind. Ct. App. 2009), adhered to on reh'g, 922 N.E.2d44 (Ind. Ct. App. 2010))(“When an information alleges that an offense occurred ‘on or about’ a certain date, the State is not limited to presenting evidence of events that occurred on that particular date when time is not an element of the offense.”)
See also Herman v. State, 210 N.E.2d 249, 255 (Ind. 1965), reh’g denied(“[W]here time is not of the essence of the offense, under an allegation of a specific date, the offense may ordinarily be proved as having occurred at any date preceding the filing of the affidavit or indictment which is within the statute of limitations.”)
• [I]t 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 . . . .”)
• For information on how the alibi defense relates to variance, please review Reply by the Prosecutor.
• A variance between the date alleged in a charging information and the evidence at trial is not fatal unless it misleads the defendant in the preparation of his defense or when it subjects him to the likelihood of another prosecution for the same offense.
Variance in the specific location of the charged offense
• The variance between the street where the offense was alleged to have occurred and the proof at trial of a different location was not fatal.
• The State . . . intended to prove that the crime occurred at the Greyhound Bus Station which was right across the street from the Vendome Hotel. However, the State's proof indicated that the actual robbery took place on the outside steps of the Vendome Hotel. The [defendant] urges that this variance is fatal because he was misled in preparing his defense. We do not agree. The first contact between the victim and the [defendant] was outside the Greyhound Bus Terminal and the victim's testimony was that they walked across the street to the Vendome Hotel where he was struck and robbed. The [defendant], by placing himself so near the alleged scene of the robbery essentially had no alibi defense at all, and to now claim that the State's variance in proof was a fatal variance is to no avail. Such a variance, if indeed it is a variance at all, is certainly not fatal in the sense of requiring a new trial.
• Count I of the indictment, charging the [defendant] with the crime of kidnapping, reads in pertinent part: "That James Robbins on or about the 25th day of December, A.D. 1966, at and in the County of Marion and in the State of Indiana, did then and there feloniously and forcibly carry away and kidnap the following person, namely: [the victim], from a place within the City of Indianapolis, in the County of Marion and State of Indiana, to wit: the 2500 block of North Sharon Avenue in the said county and state . . . ." [The defendant] contends that there was a fatal variance between the indictment and the evidence in that the testimony of the victim shows that, while she was en route to the 2500 block of North Sharon Avenue, she had not arrived at that address when her car was forced off the street by her assailant . . . . The specific location in the indictment is surplusage. The [defendant] has not shown that he was misled or prejudiced in preparing or maintaining his defense; therefore, we hold that the variance is not fatal and did not constitute grounds for reversing [defendant’s] conviction on Count One.
• Where the charging instrument did not give any address for the tavern at which an alleged armed robbery occurred other than that it was in Marion County, Indiana; where the only variance was as to the location of the tavern at “418 East 26th Street” in the prosecuting attorney's statement and “418 East 22nd Street” in testimony offered by the State; and where no showing was made by the defendant as to how or in what respect he was misled in preparing or maintaining his defense or that he might be placed in double jeopardy as result of such variance, the variance was not fatal.
Variance in the method or means of committing the offense
• The dispositive element here is whether the State proved [the defendant] . . . confined [the victim] “while armed with a deadly weapon, namely, a handgun.” . . . By inserting the phrase “namely, a handgun” in the information, the State chose to limit the charges against [the defendant] to the illegal use of a firearm. . . . The State clearly established, through the uncontroverted testimony of Deputy Click, that [the defendant’s] pellet gun was not a handgun. Thus, there was a variance between the information . . . and the proof produced at trial. . . . It is clear from the record that [the defendant’s] counsel based her primary defense on the information, i.e., that [the defendant] was charged with using a firearm in committing the crime charged.
See Madison v. State, 130 N.E.2d 35, 44-45 (Ind. 1955)(“If the state had charged the decedent was killed by a gun loaded with gunpowder and metal bullets, it would be a fatal variance to permit a conviction to stand when the evidence showed he was killed by a blow-gun, or an air rifle, or a bow and arrow, although each weapon throws missiles that could cause death.”)
• The facts of this case are different from Miller. The State [in this case] charged defendant with use of a handgun and shotgun, while proof at trial showed defendant used a rifle. Following the rationale in Miller, the State's charge of the use of a handgun and a shotgun only limited the charge to the use of a firearm, not to the use of those precise weapons.
• A certain degree of flexibility is necessary when an indictment alleges the use of a deadly weapon and the state is not required to identify the exact firearm or caliber of bullets.
• [In Miller, the] State specified the use of a handgun, thereby limiting the charge to the illegal use of a firearm. Because the proof showed that the defendant used a weapon that was not a firearm, the Miller court held that there was a material variance. The same is true here. The State charged [the defendant] with criminal deviate conduct involving his sex organ. The State's physician testified at trial that the “injury [was] an injury of forcible sexual assault caused by a forcible penetration into the anus [by] a blunt object.” . . . Because the State limited the charge to a sex organ, rather than employing the broader “object” language in the information, [the defendant] could be recharged and tried again on the same facts and evidence, in fact, for the same event.
See Oberst v. State, 748 N.E.2d 870, 875-77 (Ind. Ct. App. 2001), trans. denied(citations omitted)(“Here, [the defendant] was charged with two counts of sexual misconduct with a minor as class B felonies by ‘perform[ing] sexual intercourse with [the victim].’ Therefore, in order to convict [the defendant] on both counts, the State was required to prove that on two separate occasions [the defendant] had sexual intercourse with [the victim]. . . . [However,] testimony established only one incidence of sexual intercourse. . . . [T]he State could have proven that [the defendant] committed sexual misconduct with a minor by showing that [the defendant] either: 1) had sexual intercourse with [the victim]; or 2) committed deviate sexual conduct with [the victim]. However, the State limited its charge to sexual intercourse. However, the State limited its charge to sexual intercourse. As was the case in Allen, such limitation could result in [the defendant] being recharged and tried again on the same facts and evidence, and we therefore hold that the variance between the charging information and the proof adduced at trial is material.”)
Variance in the description, quantity, or value of property
• Generally, when property is the subject or object of criminal activity, the State must describe the property with exactitude in the affidavit or indictment.
• The Wilson court reversed the defendant's conviction, because the State had charged the defendant with taking money from a gas station, while the evidence showed the defendant took only gasoline. In Wilson, the risk of prejudice to the defendant was clear, because the allegations gave the defendant no notice that the evidence centered on stealing gasoline. In contrast, here the Information fully informed [the defendant] of the charge that he took [the victim’s] money unlawfully. Although the Information described [the victim’s] money as “United States currency” rather than a check, the distinction did not mislead [the defendant].
• [A]ny variance in the amount taken is not material and not grounds for reversal.
Variance in the ownership, possession, or custody of property
• [The defendants] claim that there was a variance between the allegations in the indictment and proof of ownership of the Tavern. The indictment alleges joint ownership, while the proof indicates ownership by only one person . . . . There is no evidence that this variance tended to prejudice the substantial rights of [the defendants] on the merits of this case such as to cause reversible error.
• This court has held on numerous occasions that in a charge of burglary merevariance [sic] as to ownership as between husband and wife is not such a fatal variance as to be prejudicial.
Principals and accessories
• It is well settled that a defendant may be convicted as an accessory even while charged only as a principal.
See also Coleman v. State, 952 N.E.2d 377, 382 (Ind. Ct. App. 2011)(citing Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006))(“One may be charged as a principal in committing a crime, but be convicted upon evidence that he or she aided or abetted the actual perpetrator.”)