Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 1 of 21

MEMORANDUM DECISION

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

Nancy A. McCaslin

McCaslin & McCaslin

Elkhart, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Angela N. Sanchez

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kevin Lavell Curry,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 3, 2015

Court of Appeals Case No.

20A03-1405-CR-172

Appeal from the Elkhart Superior 

Court

The Honorable Stephen R. Bowers, 

Judge

Cause No. 20D02-0907-FC-96

Brown, Judge.
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[1] Kevin Lavell Curry appeals the habitual criminal offender enhancement to his 

sentence. He raises four issues which we revise and restate as:

I. Whether the trial court abused its discretion when it admitted certain 

evidence of Curry’s prior convictions for purposes of the habitual 

offender enhancement;

II. Whether the State presented sufficient evidence that Curry is an habitual 

offender; and

III. Whether the trial court committed fundamental error when it allowed the 

State to add the habitual offender enhancement after the omnibus date. 

[2] We affirm.

Facts and Procedural History

[3] On July 1, 2009, the State charged Curry with one count of corrupt business 

influence as a class C felony and fifteen counts of forgery as class C felonies. 

Curry v. State (Curry I), No. 20A03-1008-CR-454, slip op. at 4 (Ind. Ct. App. 

May 31, 2011), trans. denied. The omnibus date was September 21, 2009. Id. 

On January 27, 2010, the State filed an amended information, alleging that 

Curry was an habitual offender. Id. at 4-5. Specifically, the State alleged that 

Curry had prior felony convictions for forgery in 2007 in Indiana and for 

aggravated kidnapping in 1990 in Texas. On June 24, 2010, a jury found Curry 

guilty as charged and found him to be an habitual offender. Id. at 5, 9-11. 

[4] In his direct appeal, Curry raised several issues including: (1) the denial of his 

motion for a directed verdict; (2) the sufficiency of the evidence; (3) the belated 

amendment of the charging information to include an habitual offender 

enhancement; and (4) the appropriateness of his sentence. Id. at 5, 9-12. We 
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remanded for clarification of his sentence but affirmed in all other respects. Id. 

at 2, 15-16. With respect to the amendment of the charging information, we 

held that Curry “failed to establish that the amendment prejudiced him in the 

preparation and presentation of his defense.” Id. at 12. 

[5] In April 2012, Curry filed a petition for post-conviction relief and raised three 

issues: (1) ineffective assistance of trial counsel; (2) ineffective assistance of 

appellate counsel; and (3) prosecutorial misconduct. On December 19, 2013, 

the post-conviction court denied Curry’s petition except with respect to his 

ineffective assistance of appellate counsel argument regarding his habitual 

offender enhancement and ordered a new trial regarding the habitual offender 

enhancement. 

[6] Curry appealed the post-conviction court’s order with regard to whether his trial 

counsel was ineffective. Curry v. State (Curry II), No. 20A03-1312-PC-513, slip 

op. at 2 (Ind. Ct. App. August 11, 2014), reh’g denied, trans. denied. We affirmed 

the denial of his petition for post-conviction relief and noted that Curry was not 

prejudiced by the belated filing of the habitual offender allegation, which 

prevented him from succeeding on his claim of ineffective assistance of trial 

counsel for failure to challenge the belated amendment. Id. at 10.

[7] On March 21, 2014, Curry filed a motion to exclude evidence, in which he 

argued that a certified booking photograph the State sought to use to prove the 

September 13, 1990 conviction for aggravated kidnapping in Texas was actually 

a booking photograph from a November 19, 2001 arrest. Curry argued that this 
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evidence was inadmissible because it had been provided to him after the 

discovery deadline had passed and that it would unfairly prejudice his ability to 

present a defense, that it was not relevant under Ind. Evidence Rule 401, and 

that the probative value of the evidence was substantially outweighed by the 

danger of unfair prejudice because the photograph did not pertain to the alleged 

conviction the State was required to prove. The court entered an order, and as 

to the certified booking photograph, stated that it would “exclude any reference 

to anything other than the certified copy and the Court will not allow the 

certified copy to come in unless some other independent means of connecting 

the identifiers in the booking photo to the Kevin L. Curry on trial is made.” 

Appellant’s Appendix at 496. 

[8] On March 25, 2014, Curry’s trial on the habitual offender enhancement began. 

At the trial, the court heard testimony from former Elkhart County Deputy 

Prosecuting Attorney Kristine Osterday (“DPA Osterday”), who was involved 

in the initial prosecution of Curry on the corrupt business influence charge 

underlying the retrial on the habitual offender enhancement. 

[9] The court heard argument as to State’s Exhibit 1, a certified copy of the 2007 

Indiana conviction from Curry’s guilty plea to counterfeiting as a Class D 

felony in the Elkhart Superior Court in cause number 22D02-0606-FC-221, 

which included an entry in the chronological case summary (“CCS”) indicating 

that the instant case was a probation violation under Curry’s 2007 Indiana 

conviction. State’s Exhibit 1 contained an “Affidavit to Show Probable Cause” 

in the 2007 Indiana conviction for “Kevin L. Curry DOB: 03-10-64,” an 
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“Information Charging Forgery A Class C Felony, I.C. 35-43-5-2(a)(1)(A)” 

including a copy of a check with Curry’s signature, a copy of a “Motion to 

Withdraw Plea of Not Guilty and Enter Pleas of Guilty, Plea Agreement, and 

Disclosure” including Curry’s initials, “KC,” next to each line of the plea 

agreement, an order noting that Curry “entere[ed] a plea of guilty to: 

COUNTERFEITING D FELONY,” a sentencing order, and a twelve-page 

CCS for the 2007 Indiana conviction that included an entry stating that Curry 

had violated his probation in the 2007 Indiana conviction by committing the 

instant offense. State’s Exhibit 1. 

[10] Defense counsel objected to the admission of State’s Exhibit 1, arguing that 

evidence of a probation violation was not relevant under Ind. Evidence Rule 

401 and that “it would not withstand a balancing test under Indiana Rule[] of 

Evidence 403” because State’s Exhibit 1 contained references to Curry’s 

criminal history that were “unduly prejudicial and not probative, could mislead

the jury and cause confusion of the issues.” Transcript at 16. The court 

overruled the objection, stating that caselaw supported the proposition that it is 

“not prejudicial to include evidence of a probation violation directly related to 

the habitual proceedings” and that the information in the exhibit was “relevant 

and it does not appear to the court to be counterbalanced by any significant 

prejudice.” Id. at 17. Defense counsel also objected to sentencing information 

being included in State’s Exhibit 1. The court struck the inclusion of the exact 

sentence length from the 2007 Indiana conviction. The court removed eleven 

pages of the CCS from the 2007 Indiana conviction but allowed the CCS entry 
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showing the probation violation to remain in the exhibit, and published the 

exhibit to the jury as State’s Exhibit 1A. 

[11] The court heard argument as to State’s Exhibit 3,1 which contained a certified 

copy of a plea agreement from an August 29, 1990 offense in Texas for 

aggravated kidnapping, stamped “FELONY INFORMATION” at the top of 

the page, and dated September 13, 1990, the date of conviction for the offense, 

and included the length of Curry’s sentence for that offense, which was seven 

years of probation, the conditions of probation for “Kevin Lavell Curry,” and a 

reference that Curry violated his probation and was sentenced to five years in 

the Texas Department of Criminal Justice, institutional division, on July 14, 

1993, as a result of the probation violation. State’s Exhibit 3. The exhibit also 

contained prints of Curry’s right thumb and right index finger, a signature for 

Kevin Curry, as well as his date of birth of 3-10-64, race, and sex. The portion 

of State’s Exhibit 3 containing Curry’s guilty plea agreement and conditions of 

probation was stamped with a Recorder’s Memorandum, which states: “At the 

time of recordation this instrument was found to be inadequate for the best 

photographic recordation because of illegibility, carbon or photo copy, 

discolored paper, etc. All blockouts, additions, and changes were present at the 

time the instrument was filed and recorded.”2 State’s Exhibit 3. On the portion 

 

1 Curry does not challenge the admission of State’s Exhibit 2, which is a certified booking photograph from 

the instant case. 

2 The Recorder’s Memorandum, stamped on the second page of Curry’s plea agreement for aggravated 

kidnapping, contains substantially similar language. 
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of the exhibit dealing with the July 14, 1993 probation violation, the Recorder’s 

Memorandum states: “This instrument is of poor quality and not satisfactory 

for photographic recordation; and/or alterations were present at the time of 

filming.” Id. 

[12] Defense counsel objected to the admission of State’s Exhibit 3 on grounds that 

the exhibit was “not relevant . . . prejudicial, [and] would not withstand [an] 

Indiana Rules of Evidence 403 balancing test . . . .” Transcript at 17. Defense 

counsel also objected to the inclusion of the sentencing information in the 

exhibit. Defense counsel additionally objected that State’s Exhibit 3 was of 

“poor quality” and that a recorder’s stamp on various pages of the document 

indicated that the documents were “not as they were originally created” and 

that the exhibit “draw[s] into questions of authenticity about a witness.” Id. at 

51-52. 

[13] The court overruled the objection to including the reference to a probation 

violation but, although it redacted a specific reference to “the South Carolina 

charges which were quite serious in nature and which could be quite highly 

prejudicial” to Curry, it did not redact the general reference to the probation 

violation from State’s Exhibit 3. Id. at 18. It also allowed the inclusion of the 

sentencing information because the charge in the Texas case was “already fully 

resolved.” Id. at 20. The court also added that the exhibit did not appear to 

contain “any obvious alteration of the document and given the certification 

which is also provided . . . the quality problems go to the [exhibit’s] weight 

rather than admissibility.” Id. at 53. The court redacted the specific reference 
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to the reason Curry’s probation was revoked in the Texas case and published 

the exhibit as State’s Exhibit 3A to the jury. 

[14] The court next heard argument as to State’s Exhibit 4, which contained an 

affidavit of the Chairman of Classification and Records for the Texas 

Department of Criminal Justice – Correctional Institutions Division, stating 

that the “attached information provided on inmate CURRY, KEVIN, 

TDCJ/BPP# 653544, cause# 573683, are true and correct copies of the original 

records now on file in my office maintained in the regular course of business 

within the Classification and Records Office of the Texas Department of 

Criminal Justice – Correctional Institutions Division.” State’s Exhibit 4. The 

exhibit also contained a certified booking photograph of Curry, a copy of the 

July 14, 1993 probation violation, and a fingerprint sheet with a signature of 

Kevin Lavell Curry. Defense counsel repeated the objections it raised as to 

State’s Exhibit 3 and further asserted that the State’s witness had no personal 

knowledge of the content of the documents, the State lacked a foundation for 

the exhibit’s admissibility, and the exhibit had the same reference to a probation 

violation as in State’s Exhibit 3. As to the objection that DPA Osterday lacked 

personal knowledge of the contents of State’s Exhibit 4, the court noted that 

State’s Exhibit 4 was a certified copy and that it “comes in independent” of 

DPA Osterday and that defense counsel “might keep in mind that you may 

have an objection as to whether she has personal knowledge.” Id. at 54. The 

court redacted the specific reference to the reason Curry’s probation was 
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revoked in the Texas case and published the exhibit as State’s Exhibit 4A to the 

jury. 

[15] DPA Osterday testified that she was familiar with Curry from her work as a 

prosecutor and was able to provide the court with his birthdate, which is March 

10, 1964. She identified Curry in the courtroom and testified that, as to the 

2007 Indiana conviction and the instant case, Curry was “one in the same.” Id. 

at 46. On cross-examination, DPA Osterday testified that she was not licensed 

to practice law in Texas, did not request DNA comparisons between the 

Indiana defendant and the Texas defendant, did not request fingerprint 

comparisons, “could not recall” whether she had requested a certified booking 

photograph from Texas, and was not an expert regarding handwriting samples. 

Id. at 69. On redirect, DPA Osterday testified that she believed she had 

obtained sufficient documentation “based upon the name matching Kevin 

Lavell Curry, the date of birth, March 10th 1964, as well as the signature” to 

prove Curry’s identity. Id. at 70. 

[16] Defense counsel moved for a directed verdict, arguing that a name and date of 

birth is not enough to adjudicate an individual as an habitual offender. Defense 

counsel contended that, as to identity, the State introduced “a photograph with 

regard to the Texas conviction that depicts a black male with no physical 

characteristics identified” and “a fingerprint card without analysis,” which 

taken together, “is insufficient as a matter of law to substantiate or support two 

prior unrelated felony convictions.” Id. at 78. The court denied Curry’s 

motion, finding “the State has at least met its minimum burden to get this case 
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to the jury,” reasoning that “we do have a name, we have the date of birth, we 

have the race and gender related to the Texas conviction” as well as a signature 

and photographs of Curry. Id. at 80. 

[17] On March 26, 2014, the jury found that Curry was an habitual offender. On 

May 12, 2014, the trial court enhanced the underlying charge of corrupt 

business influence by twelve years due to Curry’s status as an habitual offender. 

Discussion

I.

[18] The first issue is whether the trial court abused its discretion when it admitted 

certain evidence of Curry’s prior convictions for purposes of the habitual 

offender enhancement. Admission of evidence is within the sound discretion of 

the trial court. Davis v. State, 907 N.E.2d 1043, 1053 (Ind. Ct. App. 2009). We 

will reverse a trial court’s decision to admit evidence only if there is an abuse of 

discretion. Id. An abuse of discretion occurs if the trial court’s decision is 

against the logic and effect of the facts and circumstances before the court. Id.

[19] Curry contends that admitting evidence of probation violations, which were 

present in State’s Exhibits 1A, 3A, and 4A, were not relevant because they did 

not tend to show that he had been convicted of two prior unrelated felonies. He 

argues that evidence of probation revocations in State’s Exhibits 1A and 3A 

was prejudicial to him because such evidence could have misled the jury, was 

not probative, and that there was no statement or instruction to downplay the 

significance or disregard the information. He also contends that including the 
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seven-year sentence he received in the Texas case was prejudicial because 

State’s Exhibit 3A clearly designated that the offense was a felony. Curry 

asserts that State’s Exhibit 3A was not a properly authenticated document and

argues that the State’s witness, DPA Osterday, lacked personal knowledge of 

the extent to which alterations may have been made to the information in 

State’s Exhibit 3A and whether the information in the exhibit related to the 

Curry named in the instant case. Finally, Curry argues that DPA Osterday did 

not provide testimony that could link the Kevin Lavell Curry standing trial for 

the habitual criminal offender enhancement with the photograph or fingerprints 

in State’s Exhibit 4A. 

[20] The State asserts that the Indiana Supreme Court has allowed the admission of 

prior convictions that contain revocations of probation. The State also notes 

that the court removed eleven pages of the CCS in State’s Exhibit 1A but

allowed the entry noting Curry violated his probation in that case by 

committing the instant offense, and notes that the trial court also redacted the 

revocations of probation in State’s Exhibits 3A and 4A, to limit any prejudice 

Curry might face by admitting those documents into evidence. As to the 

authenticity of State’s Exhibit 3A, the State maintains that the documents 

contained in the exhibit are copies of properly certified records that are 

admissible as such and that no evidence was presented that the documents were 

anything other than accurate and certified copies of official records. The State 

also contends that State’s Exhibit 4A, which was properly certified, contained a 

booking photograph and signed fingerprint card which supported the jury’s 
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determination that Curry was the same person convicted in Texas and in 

Indiana. 

[21] Ind. Evidence Rule 401 provides that evidence is relevant if “it has any 

tendency to make a fact more or less probable than it would be without the 

evidence; and the fact is of consequence in determining the action.” “Relevant 

evidence is admissible unless any of the following provides otherwise: the 

United States Constitution; the Indiana constitution; a statute not in conflict 

with these rules; these rules; or other rules applicable in the courts of this state. 

Irrelevant evidence is not admissible.” Ind. Evidence Rule 402. “The court 

may exclude relevant evidence if its probative value is substantially outweighed 

by a danger of one or more of the following: unfair prejudice, confusing the 

issues, misleading the jury, undue delay, or needlessly presenting cumulative 

evidence.” Ind. Evidence Rule 403. Ind. Evidence Rule 901(a) provides that 

“[t]o satisfy the requirement of authenticating or identifying an item of 

evidence, the proponent must produce evidence sufficient to support a finding 

that the item is what the proponent claims it is.” Where the document at issue 

is a certified copy of a public record, the document is self-authenticating and no 

extrinsic evidence is necessary for its admission. Ind. Evidence Rule 902.

[22] In Maisonet v. State, defendant Parnel Maisonet was convicted by a jury of theft, 

a class D felony, and of being an habitual offender. 448 N.E.2d 1052, 1053 

(Ind. 1983). Maisonet argued that the trial court erred by admitting into 

evidence certain exhibits offered by the State during the habitual offender 

portion of his trial. Id. He alleged that three exhibits contained unnecessary 
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information which prejudiced the jury. Id. at 1055. One of the exhibits was the 

charging information and guilty plea to a charge of assault and battery with 

intent to kill, another exhibit contained admission documents from the Indiana 

Department of Correction for the assault and battery charge, and a third exhibit 

was the guilty plea to a second offense of entering with intent to commit a 

felony. Id. The Indiana Supreme court noted that the “documents were all 

sufficiently connected to defendant to establish their relevancy” and that 

“relevant information connected with [two prior unrelated felony convictions] 

is not generally considered to be prejudicial to defendant.” Id. at 1055-1056. 

See also Allen v. State, 439 N.E.2d 615, 619 (Ind. 1982) (finding that documents 

relating to the defendant’s prior Ohio convictions that referenced two separate 

aggravated assault charges and a probation violation were probative and 

relevant to the State’s proof of the habitual offender charges, and noting that the 

inclusion of “a probation violation on a document was not prejudicial to a 

defendant during the habitual offender phase of his trial”) (citing Taylor v. State, 

420 N.E.2d 1231, 1234 (Ind. 1981)); Short v. State, 443 N.E.2d 298, 305 (Ind. 

1982) (observing that “evidence of the revocation of probation imposed after 

conviction for a felony, that felony being one of those supporting the habitual 

offender allegation, is admissible”).

[23] We note that State’s Exhibits 1A, 3A, and 4A were relevant because they 

revealed that Curry had been convicted of two prior felonies, which the State 

was required to show in order to establish that Curry was an habitual offender, 

and they identified him as the defendant in each of the two prior convictions. 
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As to the prejudicial effect of the reference to a probation violation in State’s 

Exhibits 1A, 3A, and 4A, the trial court limited the reference to Curry’s 

probation violation to a one-line entry in the CCS of the 2007 Indiana 

conviction before it was published to the jury as State’s Exhibit 1A, and 

redacted the specific reason Curry violated his probation in the Texas case to a 

one-line entry in each exhibit before those exhibits were published to the jury as 

State’s Exhibits 3A and 4A. As to Curry’s arguments regarding the authenticity 

of State’s Exhibit 3A and the lack of foundation for State’s Exhibit 4A, we note 

that State’s Exhibits 3A and 4A were properly certified records from Curry’s 

1990 felony conviction for aggravated kidnapping. We do not find that the 

prejudicial effect of the references to probation violations outweighed the 

probative value of State’s Exhibits 1A, 3A, and 4A, all of which were certified, 

and referenced Curry’s two prior unrelated felony convictions as well as 

provided a basis for the jury to establish Curry’s identity. We cannot say that 

the trial court abused its discretion when it admitted State’s Exhibit 1A, 3A, 

and 4A into evidence. 

II.

[24] The next issue is whether the evidence is sufficient to sustain the court’s finding 

that Curry is an habitual offender. Upon a challenge to an habitual offender 

finding this court does not reweigh the evidence but rather looks at the evidence 

in the light most favorable to the verdict. White v. State, 963 N.E.2d 511, 518 

(Ind. 2012) (citing Toney v. State, 715 N.E.2d 367, 369 (Ind. 1999)). If an 

appellate court deems the evidence insufficient, then an habitual offender 
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classification must be vacated. Id. In proving an habitual offender 

classification, “the State must introduce into evidence proper certified and 

authenticated records of the defendant’s prior felony convictions in order to 

prove beyond a reasonable doubt the existence of those prior 

convictions.” Dexter v. State, 959 N.E.2d 235, 238 (Ind. 2012). “A person is a 

habitual offender if the jury . . . finds that the state has proved beyond a 

reasonable doubt that the person had accumulated two (2) prior unrelated 

felony convictions.” Ind. Code § 35-50-2-8(g) (Supp. 2009).3

[25] Curry argues that the State did not present sufficient evidence to link the 

information from the Texas documents, State’s Exhibits 3A and 4A, to the 

individual, who was charged as a habitual criminal offender in Indiana. He 

further contends that the State’s witness, DPA Osterday, was not involved in 

the Texas case, not licensed to practice law in Texas, and was unfamiliar with 

the Texas case and records submitted by the State of Texas to link him to that

case. Finally, Curry asserts that the State failed to present evidence of 

identifying physical characteristics and that the record does not show that the 

State requested DNA, fingerprint comparisons, or handwriting analysis to link 

him with the individual involved in the Texas offense. 

[26] The State asserts that it provided sufficient circumstantial evidence of Curry’s 

identity through the exhibits that it presented as evidence demonstrating that 

 

3

Subsequently amended by Pub. L. No. 158-2013, § 661 (eff. July 1, 2014); Pub. L. No. 168-2014, § 118 (eff. 

July 1, 2014).
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Curry had two prior felony convictions, and that DPA Osterday identified 

Curry in court as the defendant in the 2007 Indiana conviction. Further, the 

State maintains that booking photographs from both the Indiana case and the 

Texas case permitted the jury to compare Curry’s appearance in the courtroom 

with the individual found in the photographs and that, although no expert 

handwriting analysis was presented, the State presented evidence, including his 

signature and initials from the Texas and Indiana convictions, that allowed the 

jury to conclude the same person signed the Texas and Indiana documents. 

The State contends that evidence, including his name, birth date, physical 

identifiers, signatures, and photographs on the exhibits provided sufficient 

evidence for the jury’s determination that Curry is the same person identified in 

the Texas and Indiana documents. 

[27] “If the evidence yields logical and reasonable inferences from which the finder 

of fact may determine beyond a reasonable doubt that it was a defendant who 

was convicted of the prior felony, then a sufficient connection has been 

shown.” Tyson v. State, 766 N.E.2d 715, 718 (Ind. 2002) (citing Pointer v. 

State, 499 N.E.2d 1087, 1089 (Ind. 1986)). “Certified copies of judgments or 

commitments containing a defendant’s name or a similar name may be 

introduced to prove the commission of prior felonies.” Hernandez v. State, 716 

N.E.2d 948, 953 (Ind. 1999), reh’g denied. However, there must be other 

supporting evidence to identify the defendant as being the same person named 

in the documents. Coker v. State, 455 N.E.2d 319, 322 (Ind. 1983). Identity may 

be proven by circumstantial evidence. Id. 
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[28] As previously noted in Part I, the State admitted certified copies of Curry’s two 

prior felony convictions, the 2007 Indiana conviction and the 1990 Texas 

conviction for aggravated kidnapping. As to identity, the State presented 

evidence that contained Curry’s name, date of birth, fingerprints, and certified 

booking photographs, which enabled the jury to determine Curry’s identity as 

the same person involved in the instant case, the 2007 Indiana case, and the 

Texas case. DPA Osterday also identified Curry in court, testified to his 

conviction in the 2007 Indiana case, and had requested certain records 

stemming from his 1990 Texas conviction in his first trial on the habitual 

offender charge. The photographs also provided the jury with a basis to 

compare the more recent photograph of Curry in State’s Exhibit 2, which 

related to his conviction in the instant case, and notes his sex, race, hair color, 

eye color, height, weight, date of birth, and age with the booking photograph in 

State’s Exhibit 4A from Kevin Lavell Curry’s 1990 Texas conviction, and the 

jury could observe Curry as he appeared in the courtroom. Moreover, the 

records from the 2007 Indiana conviction and the 1990 Texas conviction 

include both Curry’s full name, Kevin Lavell Curry, a date of birth of 3-10-64, 

as well as Curry’s race, sex, and signature, which provided the jury with 

circumstantial evidence of Curry’s identity. We conclude the State presented 

evidence of probative value from which the jury could have found Curry to be 

an habitual offender beyond a reasonable doubt. See Heyen v. State, 936 N.E.2d 

294, 302-303 (Ind. Ct. App. 2010) (finding that if the evidence yields logical and 

reasonable inferences from which the finder of fact may determine beyond a 

reasonable doubt that it was the defendant who was convicted of the prior 
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felony, then a sufficient connection has been shown, and affirming the 

defendant’s status as an habitual offender), trans. denied.

4

III.

[29] The next issue is whether the trial court committed fundamental error when it 

allowed the State to add the habitual offender enhancement after the omnibus 

date. Curry asserts that the State did not timely file the habitual criminal 

offender enhancement, and contends that the record does not reveal that the 

prosecutor argued there was good cause for filing the enhancement after the 

statutory deadline, which, he argues, was fundamental error. 

[30] The State observes that Curry has previously unsuccessfully litigated this claim

and asserts that it is barred by the law of the case doctrine. In support, the State 

notes that Curry first raised this claim in his direct appeal, where this court held 

that Curry was unable show he was prejudiced by the amendment to add the 

habitual offender allegation. The State further notes that Curry advanced a 

similar claim in his post-conviction appeal, and was again unable to show 

prejudice from the failure to object to the late filed amendment. Finally, the 

State contends that the relevant facts have not changed since the issue was 

 

4 Curry also argues that the trial court abused its discretion in denying his motion for directed verdict. 

Because we find that the evidence is sufficient to sustain Curry’s status as an habitual offender, we do not 

address his argument on this issue. See Huber v. State, 805 N.E.2d 887, 890 (Ind. Ct. App. 2004) (explaining 

that “if the evidence is sufficient to support a conviction on appeal, then the trial court’s denial of a Motion 

for a Directed Verdict cannot be in error”).
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resolved on direct appeal and that Curry cannot show that he was prejudiced by 

the late filing of the habitual offender allegation. 

[31] The fundamental error exception is “extremely narrow, and applies only when 

the error constitutes a blatant violation of basic principles, the harm or potential 

for harm is substantial, and the resulting error denies the defendant 

fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). 

The error claimed must either “make a fair trial impossible” or constitute 

“clearly blatant violations of basic and elementary principles of due 

process.” Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009), reh’g denied. This 

exception is available only in “egregious circumstances.” Brown v. State, 799 

N.E.2d 1064, 1068 (Ind. 2003). 

[32] “The law of the case doctrine mandates that an appellate court’s determination 

of a legal issue binds the trial court and ordinarily restricts the court on appeal 

in any subsequent appeal involving the same case and relevantly similar facts.” 

Hopkins v. State, 782 N.E.2d 988, 990 (Ind. 2003). The law of the case doctrine 

is “a discretionary tool by which appellate courts decline to revisit legal issues 

already determined on appeal in the same case and on substantially the same 

facts.” Cutter v. State, 725 N.E.2d 401, 405 (Ind. 2000), reh’g denied. 

[33] Curry argued in his first direct appeal that the trial court erred when it allowed 

the State to amend the charging information to include the habitual criminal 
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offender enhancement after the period provided by statute.5 This court held 

that “Curry failed to establish that the amendment prejudiced him in the 

preparation and presentation of his defense.” Curry I, slip op. at 12. He also 

raised a similar claim regarding the effectiveness of his trial counsel’s failure to 

object to the late filing of the habitual offender enhancement in his postconviction appeal, and this court observed that “[g]iven the holding on direct 

appeal of no prejudice from the belated amendment, Curry cannot show that he 

was prejudiced by his trial counsel’s failure to challenge the belated 

amendment.” Curry II, slip. op. at 10. The Indiana Supreme Court has 

observed that “fundamental error requires a showing of at least as much 

prejudice to the defendant as a claim of ineffective assistance of counsel,” and 

so “finding that [a d]efendant was not denied the effective assistance of counsel 

also establishes that the alleged error was not so prejudicial as to constitute 

fundamental error.” Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014), reh’g 

denied, cert. denied, 135 S. Ct. 970 (2015). In his direct appeal and in his postconviction appeal, Curry had not demonstrated that he was prejudiced by the 

decision to allow the State to amend the charging information after the 

statutory period, and even assuming the law of the case does not bar Curry 

 

5 At the time of Curry’s first trial, Ind. Code § 35-34-1-5(e) provided: 

“[a]n amendment of an indictment or information to include a habitual offender charge . . . 

must be made not later than ten (10) days after the omnibus date. 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.”

(Subsequently amended by Pub L. No. 24-2013, § 1 (eff. July 1, 2013); Pub. L. No. 158-2013, § 389 (eff. July 

1, 2014)).
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from litigating this claim, we cannot say that he has demonstrated fundamental 

error. 

Conclusion

[34] For the foregoing reasons, we affirm Curry’s adjudication and sentence as an 

habitual offender.

[35] Affirmed.

Bailey, J., and Robb, J., concur.