Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 1 of 24

ATTORNEY FOR APPELLANT

Andrew Bernlohr

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Monika Prekopa Talbot

Supervising Deputy Attorney 

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Levern Nicole Howard,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 30, 2019

Court of Appeals Case No.

18A-CR-1830

Appeal from the Marion Superior 

Court

The Honorable Alicia A. Gooden, 

Judge

Trial Court Cause No.

49G21-1609-F2-38048

Najam, Judge.

Statement of the Case

[1] Under Indiana Code Section 35-34-1-5(b)(2) (2018), a trial court may permit the 

State to amend a charging information in matters of substance “at any 

time . . . before the commencement of trial[] if the amendment does not 
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prejudice the substantial rights of the defendant.” Here, two business days 

before the commencement of Levern Howard’s trial on thirteen counts relating 

to dealing in and possession of illicit substances, the State moved to add four 

new counts of neglect of a dependent based on the manner in which Howard

had stored firearms at her residence. Over Howard’s objection at the beginning 

of her trial, the court permitted the State to amend the information and to 

immediately present its evidence on all counts. The court informed Howard 

that she could recall the State’s witnesses for cross-examination on the four new 

counts on the second day of her trial, which had been set for eleven calendar 

days after the first day.

[2] We hold that the trial court abused its discretion when it permitted the State to 

amend the information without giving Howard a reasonable opportunity to 

prepare for and defend against the new counts. Accordingly, we reverse her 

convictions on those counts. As to Howard’s additional argument on appeal 

that the trial court abused its discretion when it admitted into evidence certain 

photographs that the State had failed to produce to her during discovery, we 

hold that any error in the court’s admission of those photographs was harmless 

as they were merely cumulative of other evidence. Thus, we affirm in part, 

reverse in part, and remand with instructions.

Facts and Procedural History

[3] In September of 2016, Indianapolis Metropolitan Police Department (“IMPD”) 

officers obtained a search warrant for 1208 King Avenue in Indianapolis. As 

officers were preparing to execute that warrant on September 23, they observed
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Howard’s husband leave the house in a vehicle with a child in the front 

passenger seat. Officers attempted to initiate a traffic stop of that vehicle shortly 

thereafter, but Howard’s husband drove away at a high rate of speed, and 

officers chose not to pursue so as to not further endanger the child.

[4] Shortly after Howard’s husband had sped away, officers at the residence 

observed Howard hurriedly exit the front door while talking on a phone. 

Howard placed some items in the trunk of a vehicle, entered the vehicle, and 

drove away from the residence. The officers initiated a traffic stop of Howard’s 

vehicle and asked her to exit the vehicle several times. Howard refused to exit 

the vehicle. Officers then pulled her out of the vehicle. Howard forcefully tried 

to pull away from the officers and refused to let go of a purse she was holding.

[5] Once officers subdued Howard, they searched her purse and vehicle. In her 

purse, the officers discovered heroin, cocaine, and $3,440 in cash, mostly in 

fives, tens, and twenties. In the trunk of the car, they discovered a digital scale,

a bag of “green leafy vegetation,”1 two loaded handguns, and a loaded rifle. Tr.

Vol. II at 55.

[6] Officers then executed the search warrant for the residence. There, they found 

three unattended children between the ages of five and nine in the family room

on the first floor of the home. From that room, the officers observed in plain 

view green plastic baggies containing a synthetic cannabinoid, which appeared 

 

1

 The actual identity of this substance was never clearly established at trial. See Tr. Vol. II at 58, 213.
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to be packaged for individual sale. Next to the baggies was a digital scale. In 

the upstairs master bedroom, officers found a baggie of cocaine in a closet along 

with multiple large trash bags of synthetic cannabinoid. 

[7] Officers seized five firearms from the residence while executing the warrant. In 

particular, officers seized a loaded handgun from between the mattress and box 

spring of a king-sized bed in the upstairs master bedroom; a loaded handgun 

that was inside a red plastic bag and behind the headboard of the bed in the 

master bedroom; an unloaded handgun and an unloaded rifle that were on top 

of a kitchen cabinet; and a handgun2 that was on top of a different kitchen 

cabinet. During the searches of Howard’s car and house, officers photographed 

all seized items near the locations the officers had found them prior to their 

seizure.

[8] On September 27, the State charged Howard with the following thirteen counts3

(“the original counts”):

1. dealing in cocaine, as a Level 2 felony;

2. possession of cocaine, as a Level 4 felony;

3. dealing in a narcotic drug (heroin), as a Level 3 felony;

4. possession of a narcotic drug (heroin), as a Level 5 felony;

5. neglect of a dependent (Child 14

), as a Level 5 felony;

6. neglect of a dependent (Child 2), as a Level 5 felony;

 

2

 It is not clear if this handgun was found loaded or unloaded. See id. at 102.

3

 The State’s original and amended charging informations used Roman numerals to enumerate the charges. 

For ease of readability, we use Arabic numerals to refer to the same-numbered charges.

4

 The children named in Counts 5 and 6 share the same initials, as do the children named in Counts 7 and 8.
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7. neglect of a dependent (Child 3), as a Level 5 felony;

8. neglect of a dependent (Child 45

), as a Level 5 felony;

9. maintaining a common nuisance, as a Level 6 felony;

10.dealing in a synthetic drug lookalike substance, as a Level 6 felony;

11.possession of a synthetic drug lookalike substance, as a Class A 

misdemeanor;

12.carrying a handgun without a license, as a Class A misdemeanor; and

13.resisting law enforcement, as a Class A misdemeanor.

Counts 1 through 4 each alleged that, in the commission of those offenses, 

Howard “was in possession of a firearm.” Appellant’s App. Vol. II at 27-28. 

And Counts 5 through 8 were premised on Howard “dealing out of the house,”

Tr. Vol. II at 215, and thus having “left [illicit substances] where [they] could be 

accessed by” the child specified in each count, Appellant’s App. Vol. II at 28-

29.

[9] On Wednesday, May 2, 2018, more than nineteen months after it had filed the 

original counts, more than sixteen months after the omnibus date,6 and just two 

business days before the commencement of Howard’s bench trial, the State 

moved to amend the charging information to allege the following four new 

counts (“the amended counts”):

14.neglect of a dependent (Child 1), as a Level 6 felony;

15.neglect of a dependent (Child 2), as a Level 6 felony;

16.neglect of a dependent (Child 3), as a Level 6 felony; and

17.neglect of a dependent (Child 4), as a Level 6 felony.

 

5

 At closing argument, the State identified this child as the child in the vehicle with Howard’s husband. Id.

at 215.

6

 The trial court had set the omnibus date for November 28, 2016.
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Each of the amended counts was premised on Howard having allegedly 

“endangered the dependent’s life or health” by having “left firearms unsecured 

that could be accessed by” the child named in each count. Id. at 113. The next 

day, the trial court took the State’s motion to amend under advisement and 

informed the parties that it would hear argument on the State’s motion at the 

commencement of Howard’s trial.

[10] At the commencement of Howard’s trial on Monday, May 7, the court asked 

the State to support its motion to amend. The State responded that the 

amended counts “do[] not add any new evidence” or “any new witnesses[;] the 

guns are in the [probable cause affidavit and] they’ve been known since the 

beginning.” Tr. Vol. II at 4. Based on that, the State asserted that Howard 

would not be “prejudice[d] in anyway” by the amendment. Id.

[11] Howard responded that the “theory” of the amended counts was “completely 

different” from the original counts and that having just “two business days 

before a court trial doesn’t give [the] defense ample time to prepare.” Id. at 5. 

Howard added:

the probable cause affidavit says . . . that several firearms were 

located at the scene . . . and were recovered. That doesn’t tell us 

anything—where they [were] recovered, whe[ther] they . . . were 

improperly stored . . . , and that hardly puts us on notice that 

there’s a neglect charge especially under the fact that[,] as 

opposed to drugs[,] firearms in the home . . . are legal.

Id. at 5-6. 
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[12] The trial court granted the State’s motion to amend. In granting the motion, 

the court informed Howard that, “to be courteous” to her, it would “bifurcate” 

the proceedings. Id. at 13-14. In particular, the court stated that it would allow

the State to present its evidence in support of both the original counts and the 

amended counts immediately and that it would allow Howard to recall and 

cross-examine the State’s witnesses on the amended counts on the second day 

of trial, which the court had scheduled to begin on May 18, eleven calendar

days after the first day of trial.

7

 Id. at 13-14, 203-05. The court had previously 

determined that a second day of trial would be necessary anyway due to the 

unavailability of a forensic expert for the State.

[13] Howard objected to the trial court’s proposed procedure as “not sufficient to 

allow a fair trial.” Id. at 14. In particular, she stated:

it’s not fair for [the State] to put on [its] case and then make me 

come back weeks later after the [evidence] has been set in the 

court’s mind and [then] do my cross examination. So, that 

whole issue . . . about the guns ha[s] to be separated out because 

you cannot . . . unbuckle the possession of guns, the location of 

the guns from the issue of the new charge[s] . . . .

Id. at 13. The trial court overruled Howard’s objection. 

 

7

 On appeal, the State parrots the trial court’s use of the term “bifurcate” and refers to the two different days 

of trial as two different “phases” of trial. Appellee’s Br. at 11-12. We reject those characterizations. The 

trial court did not hold one distinct fact-finding phase of trial followed by a separate and distinct fact-finding 

phase, such as when a jury finds a defendant guilty of an offense and the court, thereafter, finds the defendant 

to be a habitual offender. Rather, the court here simply held one trial over two days.
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[14] During the ensuing two-day trial, the State substantially relied on the testimony 

of the various IMPD officers involved in the search of Howard’s vehicle and 

residence and the seizure of the evidence from those locations. The State’s 

“physical” evidence consisted almost exclusively of photographs of the illicit 

substances and firearms taken at the two scenes. Howard objected to the State’s 

admission of some of those photographs on the ground that the State had not 

produced them during discovery, and at the start of the second day of trial she 

also renewed her objection to the amended counts. The court overruled those 

objections. 

[15] Howard’s apparent defense strategy at trial was to hold the State to its burden 

of proof, especially through cross-examination of the State’s witnesses. As to 

the amended counts, on the second day of trial Howard cross-examined 

IMPD’s lead investigator8 as follows:

Q So you found some firearms in the kitchen . . . ?

A Yes.

Q Okay. And you found a firearm . . . in an adult’s 

bedroom?

A I believe so, yes.

 

8

 Howard did not cross-examine any other witnesses on the amended counts.
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Q And one firearm was in a plastic bag hidden behind a 

headboard of the king size bed?

A That’s possible. I don’t recall that one, but, yes.

Q And the other firearm you found inside the home was 

underneath the mattress of the king size bed?

A I believe there was one found there as well.

Q So you didn’t find any guns that were sitting out in the 

open, correct?

A I don’t recall. I don’t recall where each firearm . . . [was] 

located, sir.

Q You didn’t find any firearms where those children were 

located, right?

A I don’t recall finding one in their immediate vicinity, no.

Q So as best to your recollection there w[ere] no firearms 

within the reach of those children?

A To the best of my recollection, no.

Q There were no firearms around open, anywhere in the 

house, to the best of your recollection?

A . . . I don’t recall where each firearm was located, sir . . . .

Q And you [have] served other search warrants?
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A Yes.

Q And you’ve gone into other homes and located firearms?

A Yes.

Q And is that unusual . . . to find . . . a firearm out in the 

open . . . ?

A No.

Q That’s not unusual, right?

A No, it’s not.

* * *

Q There is no requirement . . . to keep [a] gun in a gun safe, 

right?

A No.

Q And you have a constitutional right to self-defense, 

including the right to have a weapon in your home unless you’re 

excluded by law, right?

A Yes.

Q Okay. And you’re also allowed, as a constitutional right, 

to defend yourself, to have ready access to a weapon, right?

A Yes.
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Id. at 207-11.

[16] Following the bench trial, the court found Howard guilty on all counts except 

Count 3. The court then entered judgment of conviction against Howard on all 

counts except Count 2 and Count 11. The court sentenced Howard to an 

aggregate term of twenty years, with twelve years executed and eight years 

suspended. This appeal ensued.

Discussion and Decision

Issue One: Motion to Amend the Charging Information

[17] Howard first appeals the trial court’s decision to permit the State to amend the 

charging information. We generally review the trial court’s decision on 

whether the permit an amendment to a charging information for an abuse of 

discretion. Ramon v. State, 888 N.E.2d 244, 252 (Ind. Ct. App. 2008); see also 

State v. Thakar, 82 N.E.3d 257, 259 (Ind. 2017) (reviewing the trial court’s order 

to dismiss an information for an abuse of discretion). An abuse of discretion 

occurs when the trial court’s judgment is “clearly against the logic and effect of 

the facts and circumstances before it or is contrary to law.” Waterfield v. 

Waterfield, 61 N.E.3d 314, 323 (Ind. Ct. App. 2016), trans. denied. But, insofar

as Howard’s argument on appeal is that the amendment to the charging 

information violated her constitutional rights to due process, that argument

presents a question of law that we review de novo. E.g., Thomas v. State, 81 

N.E.3d 621, 624 (Ind. 2017).
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[18] Under Indiana Code Section 35-34-1-5(b)(1), the default timeframe for the State 

to seek to amend a charging information in a matter of substance is up to 

“thirty (30) days . . . before the omnibus date”9 if “the defendant is charged with 

a felony.” The State properly does not suggest on appeal that the amended 

counts here were anything other than amendments of substance. See, e.g., Mays 

v. State, ___ N.E.3d ___, No. 18A-PC-2071, 2019 WL 1217757, at *7 (Ind. Ct. 

App. Mar. 15, 2019) (stating that adding “an entirely new charge to the 

charging information . . . is patently [an amendment] of substance”), not yet 

certified. While the original neglect counts and the amended neglect counts 

were derived from the same statute, that does not mean that the amended 

counts were merely amendments in form to the original counts.

10 Rather, the 

amended counts added four wholly new offenses based on facts and evidence 

other than that underlying the original counts.

[19] In any event, as the State’s motion to amend the information here was nowhere 

close to the omnibus date, the State moved to amend the information not under 

Indiana Code Section 35-34-1-5(b)(1) but instead under Indiana Code Section 

35-34-1-5(b)(2). Under that provision, the trial court may permit the State, 

following the State’s written notice to the defendant, to make a late amendment 

 

9

 For felony criminal cases with no speedy-trial issues, the trial court, at the initial hearing, must set an 

“omnibus date” that is “no earlier than forty-five (45) days and no later than seventy-five (75) days after the 

completion of the initial hearing,” unless the parties agree to a different date. I.C. § 35-36-8-1(a). “The 

purpose of the omnibus date is to establish a point in time from which various deadlines . . . are established.” 

I.C. § 35-36-8-1(b). “Once the omnibus date is set,” it generally “remains the omnibus date . . . until final 

disposition . . . .” I.C. § 35-36-8-1(d).

10 Indeed, had the State thought this an even viable argument in the trial court, it would have moved to 

amend the information under Indiana Code Section 35-34-1-5(c), not Indiana Code Section 35-34-1-5(b).
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to an information in a matter of substance “at any time . . . before the 

commencement of trial[] if the amendment does not prejudice the substantial 

rights of the defendant. . . .” I.C. § 35-34-1-5(b)(2).

[20] As the Indiana Supreme Court has explained:

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. 

Ultimately, the question is whether the defendant had a reasonable 

opportunity to prepare for and defend against the charges.

Erkins v. State, 13 N.E.3d 400, 405-06 (Ind. 2014) (emphasis added; citations 

and quotation marks omitted). The right to a reasonable opportunity to prepare 

for and defend against the charges is a hallmark of “[t]he right of an 

accused . . . to due process.” Saylor v. State, 559 N.E.2d 332, 335 (Ind. Ct. App. 

1990) (citing Chambers v. Mississippi, 410 U.S. 284, 295 (1973)), trans. denied. 

And that right implicates a criminal defendant’s Sixth Amendment right to 

effective assistance of counsel—a counsel who is not provided with sufficient 

time to give “effective aid in the preparation and trial of the case” is

constructively no counsel at all.11 Powell v. Alabama, 287 U.S. 45, 71-72 (1932).

[21] That said, there is no fixed “minimum period of time which must be allowed by 

the court in every case” for the preparation of the defense. Lloyd v. State, 241 

 

11 The actual or constructive denial of counsel is structural error. See Leach v. State, 699 N.E.2d 641, 643 n.2 

(Ind. 1998) (citing Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)).
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Ind. 192, 199, 170 N.E.2d 904, 907 (1960); see also Avery v. Alabama, 308 U.S. 

444, 446 (1940). Rather, “[t]he adequacy of time allowed for preparation must 

be determined on a case by case basis[] considering the totality of the 

circumstances, including the complexity of the issues, the necessity for pre-trial 

motions, the necessity to interview witnesses[,] and whether the defendant is 

available to assist in the preparation of [the] defense.” Jones v. State, 175 Ind. 

App. 343, 346, 371 N.E.2d 1314, 1316 (1978). “The spirit of these 

constitutional provisions requires that an accused must have something more 

than a perfunctory representation.” Wilson v. State, 222 Ind. 63, 80, 51 N.E.2d 

848, 855 (1943).

[22] Recent examples from our Court provide representative circumstances in which 

we have affirmed pretrial, but post-omnibus-date, amendments of substance to 

an information. In particular, we have held such amendments permissible in 

the following contexts:

• where the State’s notice of the proposed amendment was given to the 

defendant nearly four months prior to trial and the anticipated defense 

was an equally available alibi defense, Mays, ___ N.E.3d ___, 2019 WL 

1217757, at *8-9;

• where the amendment to the information was “two months before the 

commencement of the trial and three months before the defense 

presented its case in chief”; the State added to a count of battery a count 

of burglary and a count of intimidation, which additional counts arose 

from the same “time [and] place” as the original count; and the defense 

strategy was to argue that the victim, which was the same for all counts, 

had invited the defendant into her residence and sustained her injuries 

when she tripped over a dog, which argument “was equally applicable” 
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to the original and the amended counts, Barnett v. State, 83 N.E.3d 93, 

102 (Ind. Ct. App. 2017), trans. denied;

• where the amendment elevated an aggravated battery offense to murder 

following the victim’s death, the trial did not begin until more than two 

months after the amendment, and the defendant’s defense that “he was 

not at the scene and did not participate in [the] beating” would “not 

change,” Shaw v. State, 82 N.E.3d 886, 897 (Ind. Ct. App. 2017), trans. 

denied;

• where the State filed its motion to amend more than eight months before 

the beginning of the trial, which we recognized as “a significant amount 

of time to prepare a defense,” Mannix v. State, 54 N.E.3d 1002, 1010 (Ind. 

Ct. App. 2016); and

• where the State moved to amend the charging information one week 

before trial to correct an error in the date of an alleged molestation 

offense, which “did not deprive [the defendant] of” his defense of 

challenging the victim’s recollection of the alleged event, Gaby v. State, 

949 N.E.2d 870, 875 (Ind. Ct. App. 2011).

[23] Nothing about the instant case is analogous to cases in which we have affirmed 

the trial court’s decision to allow a post-omnibus-date amendment of substance 

to an information. Counting from the day of the State’s notice to Howard’s

first opportunity to cross-examine the State’s witnesses on the amended counts, 

the totality of time Howard had to prepare for and then execute her defense on 

the amended counts was a total of sixteen calendar days. That is well short of 

the more common scenario of two or more months; it certainly is not long 

enough to presume, as we did in Mannix and other cases, that the defendant had 

ample time to prepare her defense to the amended counts. And the sixteen days 

here are one day more than half the time Indiana Code Section 35-34-1-5(b)(1)

requires the State to provide to the defendant prior to the omnibus date, which 

of course often results in far more time before trial.
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[24] Further, while the amended counts arose out of the same time and place as the 

original counts, we are not persuaded that the amended counts were premised 

on the same underlying facts as the original counts. Rather, the original counts 

nearly all related to Howard’s alleged dealing in and possession of illicit 

substances,12 and the firearms were only relevant to the original counts as either 

enhancing facts (under Counts 1 through 4) or to her alleged carrying without a 

license (under Count 12). At no point prior to the State’s motion to amend the 

information did Howard have any reason to think that the State would seek to 

use the firearms in any other way or in support of any other possible offenses. 

That is, nothing about the facts underlying the original counts would have 

impelled a reasonable defense attorney to investigate further the facts on which 

the amended counts were premised. Indeed, the explicitly limited use of the 

firearms in the original counts may well have led Howard to conclude that the 

State had decided not to pursue any other firearm-related offenses and, thus, 

that there was no further preparation or defense to be had for any such 

hypothetical offenses.

[25] Significantly, Howard’s apparent defense strategy was not, as in some cases 

where we have affirmed late amendments to an information, a defense that had 

its own factual basis, such as an alibi defense or a claim of self-defense. Neither 

was her defense strategy to make a specific challenge to a specific witness’s 

 

12 Indeed, and again, the original neglect counts were explicitly premised on Howard having “left [illicit 

substances] where [they] could be accessed by” the child specified in each count. Appellant’s App. Vol. II at 

28-29.
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testimony, such as the victim’s recollection, which defense would have been 

equally applicable to both the original counts and the amended counts. Rather, 

her apparent defense strategy was to hold the State to its burden of proof, 

especially through cross-examination of the State’s witnesses. 

[26] As the amended counts were not based on the same underlying facts as the 

original counts, the late amendment substantially affected her defense in that 

she had no reasonable time to engage in pretrial investigation of the amended

counts in order to effectively prepare for cross-examining the State’s witnesses

on them. We recognize that, on the second day of her trial, Howard asked 

IMPD’s lead investigator the basic and obvious questions of whether the 

firearms were “within the reach of th[e] children” during the search and 

whether the investigator knew of a requirement to keep lawfully held firearms 

in a gun safe. Tr. Vol. II at 208. But that limited inquiry alone does not 

demonstrate that Howard received all the representation and process that she 

was due. See Wilson, 51 N.E.2d at 855. 

[27] Indeed, as Howard argued to the trial court, the timing of the State’s motion to 

amend prevented her from investigating prior to trial any number of possible 

lines of inquiry that might have been relevant to her defense against the 

amended counts, such as: whether the children knew of any firearms in the 

residence; whether the children were ever in the master bedroom, where the 

only known loaded firearms were found; whether the children were capable of 

lifting a king-sized mattress to access one of those loaded firearms or either 

moving or getting behind the headboard of that bed to access the other; whether 
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any of the children had a propensity or history of climbing on the kitchen 

cabinets, where the other firearms were found; whether the children had any 

training or instruction in the safe handling of firearms; whether the children 

knew how to load an unloaded firearm; whether the firearms had any safety 

features and whether those features were engaged at the time of their seizure;

whether the firearms inside the house were even operable; or where the firearms

inside the house were located at the time Child 4 had left the residence. 

Howard also had no reasonable opportunity to investigate whether state or 

federal legal authority might support her opposition to the amended counts. 

[28] Nonetheless, both the State and the dissent contend that Howard should have 

seen the amended counts coming because she knew from the beginning that the 

firearms were in the residence with the children. We reject that argument.13 

The mere fact that firearms were present in her residence did not put Howard 

on permanent notice of any possible firearms-related offenses the State might 

have charged. To the contrary, again, the State’s explicitly limited 

identification of the firearms to unrelated offenses under the original counts 

likely dispelled any concern Howard would have had of disparate, other 

charges that the State might have brought based on the firearms. And insofar as 

the State argues on appeal that sixteen (or fewer) days was enough by itself to 

presume that Howard would have sufficient time to prepare her defense to the 

 

13 The State’s argument that Howard should have seen the amended counts coming cuts both ways—the 

State too had the probable cause affidavit from the beginning of the case yet waited until two business days 

before the commencement of Howard’s trial to include the amended counts in the information.
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amended counts, as explained above that argument is not at all consistent with 

our case law.

[29] Finally, although not required of the State under Indiana Code Section 35-34-1-

5(b)(2), we nonetheless note that the State had no good cause for having waited 

until nearly the last minute to move to amend the information. There were no 

ongoing plea negotiations; there was no pending investigation; and there was 

no newly discovered evidence. Indiana Code Section 35-34-1-5(b) contemplates 

that amendments to an information will be thirty days prior to the omnibus 

date, but the statute permits late deviations when they do not prejudice the 

substantial rights of the defendant. Such late deviations are the exception, not 

the rule. And here, again, the information had been pending for sixteen months 

after the omnibus date before the State moved to amend the information two 

business days before the start of Howard’s trial. The State’s inability to identify 

a good cause for its late amendment request reeks of surprise and

gamesmanship, which tactics our Supreme Court has emphasized “no longer 

have any place in our system of justice.” Wright v. Miller, 989 N.E.2d 324, 327 

(Ind. 2013) (quoting Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012)).

[30] The default deadline that amendments to an information be made no later than 

thirty days prior to the omnibus date is there for a reason, which is illustrated by 

this case: to assure that a defendant’s rights to a fair trial are not impaired. The 

defendant’s rights include adequate time to prepare a defense. An exception to 

the statutory deadline is permissible only where the State, which bears the 

burden of proof on its motion to amend, can demonstrate that a late 
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amendment does not compromise the defendant’s rights. Here, however, the 

facts stand in stark contrast to those cases in which we have allowed the State to 

proceed with an amendment of substance to a charging information after the 

statutory deadline. The State’s motion to amend sought to add counts that 

were factually distinct from the original counts and gave Howard only sixteen 

calendar days to fully investigate and to prepare her defense against the 

amended counts. And Howard’s apparent defense strategy of holding the State 

to its burden of proof, especially through cross-examination, was substantially 

impaired by the timing of the State’s amendment. We hold that the trial court 

abused its discretion when it permitted the State to amend the charging 

information, and we reverse Howard’s convictions under the amended counts.

Issue Two: Discovery of Photographs

[31] Howard also contends on appeal that her convictions on the original counts 

must be reversed because the trial court abused its discretion when it admitted 

certain photographs into evidence that the State had failed to produce to 

Howard during discovery. We review the trial court’s decision to admit or 

exclude evidence for an abuse of discretion. Hall v. State, 36 N.E.3d 459, 466 

(Ind. 2015). However, the erroneous admission of evidence that is merely 

cumulative of other evidence is harmless error. Pierce v. State, 29 N.E.3d 1258, 

1268 (Ind. 2015).

[32] As an initial matter, Howard frames this issue around Brady v. Maryland, 373 

U.S. 83, 87 (1963), in which the Supreme Court of the United States held that 

“the suppression by the prosecution of evidence favorable to the accused upon 
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 21 of 24

request violates due process where the evidence is material either to guilt or to 

punishment . . . .” (Emphasis added.) Thus, in order to prevail on a Brady

claim, the defendant must establish, among other things, that the evidence “was 

favorable to the defense.” Stephenson v. State, 864 N.E.2d 1022, 1056-57 (Ind. 

2007). The photographs Howard complains of were not favorable to her. 

Thus, there is no Brady issue in this appeal.

[33] In any event, the complained-of photographs were merely cumulative of other 

evidence presented by the State. Indeed, the State established its case through 

the testimony of several officers and their personal observations at the scenes of

Howard’s vehicle and the house. The photographs were merely cumulative of

those personal observations. Accordingly, any error in their admission was 

harmless, and we affirm Howard’s convictions on the original counts.

Conclusion

[34] In sum, while we affirm Howard’s convictions on the original counts, we hold 

that the trial court abused its discretion when it permitted the State to add 

entirely new and unrelated offenses to the information at the commencement of 

Howard’s trial. Thus, we reverse her convictions on the amended counts, 

Counts 14 through 17, and we remand with instructions for the trial court to 

vacate those convictions and the corresponding sentences.

14

 

14 As Howard’s sentences on the amended counts were ordered to run concurrently with her other sentences, 

her aggregate sentence is not affected by our disposition.
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[35] Affirmed in part, reversed in part, and remanded with instructions.

Pyle, J., concurs.

Altice, J., concurs in part and dissents in part with separate opinion.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 23 of 24

IN THE

COURT OF APPEALS OF INDIANA

Levern Nicole Howard,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

Court of Appeals Case No.

18A-CR-1830

Altice, Judge, concurring in part and dissenting in part.

[36] I agree with the majority that admission of the photographs was cumulative of 

other evidence, and therefore harmless. I respectfully dissent, however, from 

the majority’s determination that the trial court abused its discretion in 

permitting the State to amend the charging information. The amended 

charging information added four new charges of neglect of a dependent that

mirrored the four original neglect charges except for the fact that the new 

charges alleged the presence and accessibility of unsecured firearms, as opposed 

to illicit drugs. Given the other charges Howard faced—especially the fact that 

the presence of firearms was used to enhance certain offenses—she cannot now

claim she was surprised by the new charges or the evidence giving rise thereto. 
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 24 of 24

[37] Moreover, as the majority notes, Howard’s “apparent defense strategy was to 

hold the State to its burden of proof, especially through cross-examination of 

the State’s witnesses.” Id. at 17. Under these circumstances, I think sixteen 

days was more than sufficient time for counsel to prepare a defense to the new 

charges. Indeed, Howard’s defense to the separate groups of neglect charges 

was essentially the same. There was no new evidence required and no need for 

additional witnesses to support or defend against the new charges. To that end, 

I am not persuaded that the late amendment substantially affected Howard’s 

defense. See Gaby v. State, 949 N.E.2d 870, 875 (Ind. Ct. App. 2011) (holding 

that trial court did not abuse its discretion in permitting the State to amend the

charging information one week before trial to correct an error in the date of an 

alleged molestation offense because such “did not deprive [the] defendant of” 

his defense of challenging the victim’s recollection of the alleged offense). I 

would affirm Howard’s convictions in their entirety.