Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 1 of 24 A TTORNEY FOR A PPELLANT Andrew Bernlohr Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIA NA

L e vern Nicole Howard , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. April 30 , 2019 Court of Appeals Case No. 18A

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- 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 notCourt of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 2 of 24 prejudice the substantial rights of the defendant.” Here, two business days before the commencement of Levern Howard’s trial on thirteen counts relating

to d ealing in and pos session 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 eleve n 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 r everse 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 a ny error in the court’s admission of those photographs was harmless as the y were merely cumulative of other evidence. Thus , we affirm in part, reverse in part, and remand with instructions. 

### Facts and Procedural History

[3] I n 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 observedCourt of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 3 of 24 Howard’s husband leave the house in a ve hicle 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 c hild.

[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, enter ed the vehicle, and dr o ve 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 hand guns, 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 bag gie s containing a synthetic cannabinoid , which appeared

1 T he actual identity of this substance was n ever clearly established at trial. See Tr. Vol. II at 58, 213.Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 4 of 24 to be packaged for individual sale. Next to the bag gie s 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] O fficers 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 ; a n unloaded handgun and a n unloaded rifle that were on top of a kitchen cabinet ; and a handgun 2 that was on top of a different kitchen cabinet

. During the search es of Howard’s car and house, officers photographed all seized ite ms near the locations the officers had found them prior to their seizure.

[8] On September 27, the State charged Howard with the following thirteen counts 3 (“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 1 4 ) , 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

- n umbered charges.
4 The children named in Counts 5 and 6 share the same initials, as do the children named in Counts 7 and 8.Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 5 of 24 7. neglect of a dependent (Child 3) , as a Level 5 felony; 8. neglect of a dependent (Child 4 5 ) , 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 looka like 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 pos session of a firearm.” Appellant’s App. Vol. II at 27

- 28

. And Counts 5 through 8 were premised on Howar d “ 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, m ore than nineteen months after it had filed the original counts , more than sixteen months after the omnibus da te, 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. neglec t 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 tri al court had set the omnibus date for November 28, 2016.Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 6 of 24 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 he ar argument on the State’s motion a t 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 ev idence ” 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] Howa rd 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 a mple 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.Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 7 of 24 [12] T he 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 c ounts 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 cour t 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

. I n 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] t o be separated out because you cannot

. . . unbuckle the possession of guns, the location of the guns from the issue of the new c harge[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 th ose 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.Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 8 of 24 [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 pho tographs 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, o n the second day of trial Howard cross

- examined IMPD’s lead investigator 8 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.Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 9 of 24 Q And one firearm was in a plastic bag hidden b ehind 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 fir earms where those children were located, right?

A I don’t recall finding one in their immediate vicinity, no.
Q So a s 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?Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 10 of 24 A Yes.
Q And you’ve gone into other homes and located firear ms?

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.Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 11 of 24 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 C ount 2 and Count 11. The court sentenced Howard to an aggregat e 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 ci rcumstances 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 right s to due process , t hat argumen t presents a question of law that we review de novo

. E.g. , Thomas v. State , 81 N.E.3d 621, 624 (Ind. 2017).Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 12 of 24 [18] Under Indiana Code Section 35

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- 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 .” T he 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

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- 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 tha t 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 informa tion not under Indiana Code Section 35

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

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- 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 amend ment

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

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- 5(c), not Indiana Code Section 35

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- 5(b).Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 13 of 24 to an information in a matter of substance “ at any time . . . before the

commencement o f trial[] if the amendment does not prejudice the substantial rights of the defendant. . . .” I.C. § 35

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- 5(b)(2).

[20] As the Indiana Supreme Court has explained :

A defend ant’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 righ ts. 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 r easonable 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 th at 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 pre paration 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))

.Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 14 of 24 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 comple xity 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. 2 d 848, 855 (1943).

[22] R ecent examples from our Court provide representative circums tances 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 month s 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”Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 15 of 24 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 prepar e 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 da y more than half the time Indiana Code Section 35

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- 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.Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 16 of 24 [24] Further, while t he 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 f acts as the original counts . R ather, the original counts nearly all related to Howard’s alleged dealing in and possession o f illicit substances, 12 and the firearms were only relevant to the original counts as either enhancing fact s ( 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 info rmation 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 defen se attorney to investigate further the facts on which the amended counts were premised. Indeed, the explicit ly 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] S ignificantly, 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 orig inal 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.Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 17 of 24 t estimony , 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] A s the amended counts were not based on the same underlying f acts 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 - exami ning 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 obvio us 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 resi dence; 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 th os e loaded firearms or either moving or getting behind the h eadboard of that bed to access the other; whetherCourt of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 18 of 24 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 firearm s; 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 th at argument. 13
T he 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 t o 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 w as enough by itself to
presume that Howard would have sufficient time to prepare her defense to the

13 T he 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.Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 19 of 24 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 def endant. 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 bus i ness days before the start of Howard’s trial . T he 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 ha ve 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 right s 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 motio n to amend, can demonstrate that a lateCourt of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 20 of 24 amendment does not compromise the defendant’s rights. Here, however, the fact s stand in stark contrast to those cases in which we have allowed the State to proceed with an amendment of substance to a charging inform ation after the statutory deadline. T he 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 count s . And Howard ’ s apparent defense strategy of holding the State to its burden of proof, especially through cross

- examination, was substantially impaired by th e 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 app eal that her convictions on the original counts must be reversed because th e 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 Br ady 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 uponCourt 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 phot ographs 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 throu gh 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 a bused 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 instruct ions 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.Court of Appeals of Indiana | Opinion 18A

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- 1830 | April 30, 2019 Page 22 of 24 [35] Affirmed in part, reversed in part, and remanded with instructions.

Pyle, J., concurs.
Altice, J., concurs in part and dissents i n part with s eparate opinion

.Court of Appeals of Indiana | Opinion 18A

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- 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 Ca se No. 18A

- CR

- 1830

A ltice , Judge , concurring in part and dissenting in part
.

[36] I agree with the majority that admission of the photogr aphs 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

. T h e amended charging i nformation added four new charges of neglect of a dependent that mirrored th e 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 e vidence giving rise thereto

.Court of Appeals of Indiana | Opinion 18A

- CR

- 1830 | April 30, 2019 Page 24 of 24 [37] Moreover, a s t he 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 witnesse s
. ” Id

. at 1 7

. Under the se circumstances, I think sixteen d ays was more than sufficient time for counsel to prepare a de fense 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 chargi ng 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 t heir entirety.