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: ATTORNEYS FOR APPELLEE:

JOHN ANDREW GOODRIDGE GREGORY F. ZOELLER

Evansville, Indiana Attorney General of Indiana 

AARON J. SPOLARICH

Deputy Attorney General 

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

JEANNIE A. DICKMAN , )

)

Appellant-Defendant, )

)

vs. ) No. 82A01-1205-CR-202

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE VANDERBURGH SUPERIOR COURT

The Honorable Wayne S. Trockman, Judge

Cause No. 82D02-0909-FD-917

February 20, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge
2

Case Summary and Issue

Jeannie Dickman appeals her conviction for conversion as a Class A 

misdemeanor. Dickman raises one consolidated issue on appeal: whether there was a 

material variance in the charging information and the evidence presented. Concluding 

that the variance was not material, we affirm. 

Facts and Procedural History

On September 28, 2009, the State filed an information charging Dickman with 

theft as a Class D felony. The information alleged that Dickman “did knowingly exert 

unauthorized control over the property of Suzanne Bowling and/or Skin Solutions, to-wit: 

lawful United States currency, with the intent to deprive the said Suzanne Bowling and/or 

Skin Solutions of the value and use thereof . . . .” Appellant’s Appendix at 32. The 

charge was related to checks that had been written by clients directly to Dickman when 

Dickman was employed as an aesthetician at Bowling’s Skin Solutions business. 

Additionally, Dickman had used Bowling’s credit card for personal purchases. 

Dickman waived her right to a jury trial, and a bench trial commenced on May 11, 

2011. After several continuances, the trial concluded on February 3, 2012. The court 

found Dickman guilty of the lesser included charge of conversion, as a Class A 

misdemeanor. The court sentenced Dickman to one year in jail but suspended the 

sentence to non-reporting probation. This appeal followed. Additional facts will be 

supplied as necessary. 
3

Discussion and Decision

I. Final Appealable Order

As a threshold issue, the State argues that this appeal should be dismissed for lack 

of a final appealable judgment, because the docket for this case indicates that the trial 

court took the issue of restitution under advisement. Dickman also raised an issue in her 

appeal regarding the jurisdiction of the court to delay its ruling on restitution. Because of 

our resolution of the court’s sentencing order here, we do not reach Dickman’s argument 

on that issue.

The parties point out that there is a difference between the trial court’s remarks at 

oral sentencing and the written docket. The docket sheet for the case notes that on April 

5, 2012:

AFTER HAVING THIS MATTER UNDER ADVISEMENT AND 

AFTER HAVING HAD AN OPPORTUNITY TO REVIEW ALL OF THE 

EXHIBITS AND THE COURT’S NOTES TAKEN DURING THE TRIAL 

OF THIS CAUSE, NOW FINDS THE DEFT, JEANNIE A. DICKMAN, 

GUILTY OF THE LESSER INCLUDED OFFENSE OF CONVERSION, 

A CLASS A MISDEMEANOR, AND ENTERS FINAL JUDGMENT OF 

CONVICTION ACCORDINGLY. PARTIES WAIVE PSI. AFTER 

HEARING COMMENTS OF COUNSEL AND THE VICTIM IN THIS 

CAUSE, THE COURT NOW SENTENCES THE DEFT AS FOLLOWS: 

TO THE VANDERBURGH COUNTY JAIL FOR A PERIOD OF 1 

YEAR, SUSPENDED TO NON-REPORTING PROBATION. THE 

COURT TAKES THE ISSUE OF RESTITUTION UNDER 

ADVISEMENT, COURT NOTING THERE IS A PENDING CIVIL 

MATTER UNDER CAUSE NO. 82D03-0907-PL-3772. COSTS OF THIS 

ACTION ARE ASSESSED AGAINST THE DEFT. 

Id. at 5. However, at sentencing, the court said several times that it was declining to issue 

an order on restitution because that was more appropriate for the court in the pending 

civil matter. At the beginning of the sentencing hearing the court said:
4

The Court declines to make an order on restitution and the Court declines to 

make that order on restitution for the reason that there is a pending civil 

matter that encompasses all of these issues and that restitution, the Court 

believes that restitution should more properly be determined in that 

proceeding.

Id. at 97. The court then discussed pre-sentence, and took comments from the parties and 

the victim. The court then sentenced Dickman and said:

The court sentences you, Ms Dickman, to the Vanderburgh County Jail for 

a period of 1 year, suspended to non-reporting probation. You do not have 

to report to the Probation Office or probation officer, but you are on 

probation for 1 year. The restitution will be resolved in the civil matter. 

Was there a bond posted?

Id. at 99.

The record makes it clear that the court had no intention of taking restitution under 

advisement and was going to leave the determination of restitution to the court handling 

the civil matter.1 While we recognize that the trial court’s chronological case summary 

(CCS) is the court’s official record, and that the trial court speaks through its docket, 

there is precedent for disregarding a CCS entry if it is shown to be factually inaccurate. 

Ind. Trial Rule 77(B); Henderson v. State, 769 N.E.2d 172, 175 n.4 (Ind. 2002); Whatley 

v. State, 685 N.E.2d 48, 50 (Ind. 1997); Gibson v. State, 910 N.E.2d 263, 267 (Ind. Ct. 

App. 2009); Young v. State, 765 N.E.2d 673, 678 (Ind. Ct. App. 2002). We therefore 

conclude that the entry in the docket regarding taking restitution under advisement was 

entered in error. The court’s sentence was for one year, suspended to non-reporting 

probation, and that was a final appealable order. The matter is therefore now properly 

before us.

 

1

 At the same hearing, the court advised the parties that it would recuse itself from the civil matter, and so 

it is clear that the court intended to have no hand in deciding restitution.
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II. Variance between the Charging Information and the Evidence 

A. Standard of Review

When a defendant claims there is a variance between the charging information and 

the evidence at trial, we must determine whether the variance is material. A material 

variance is one that misleads the defendant in the preparation of the defense or presents 

the risk of double jeopardy, and it therefore requires reversal of a conviction. 

McCullough v. State, 672 N.E.2d 445, 448 (Ind. Ct. App. 1996), trans. denied. However, 

if the variance does not harm the defendant, then no reversal is required. Id. The test for 

whether a variance is material requires us to determine (1) whether the defendant was 

misled by the variance in the preparation and maintenance of his defense, and was he 

harmed or prejudiced thereby; and (2) whether the defendant will be protected in a future 

criminal proceeding covering the same event, facts, and evidence against double 

jeopardy. Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999).

B. Materiality of Variance

In the present case, there was a variance between the charging information, which 

alleged that Dickman had exerted unauthorized control over “lawful United States 

currency,” and the evidence at trial, which included checks and credit card statements, 

but not cash. Appellant’s App. at 32. Dickman does not argue that she was misled by the 

variance in the preparation of her defense, but rather argues that the variance is material 

because it will potentially subject her to double jeopardy in the future. We disagree. 

Dickman claims that she is “at risk for subsequent prosecutions for theft with the 

basis of these subsequent charges being the alleged credit card transactions and the 

alleged checks solicited from patients and deposit[ed] into her checking account. . . . 
6

because the checks and credit card transactions were not charged.” Appellant’s Brief at 

14. Our supreme court has established a two-part test for analyzing double jeopardy 

claims in which

two or more offenses are the “same offense” in violation of Article I, 

Section 14 of the Indiana Constitution, if, with respect to either the 

statutory elements of the challenged crimes or the actual evidence used to 

convict, the essential elements of one challenged offense also establish the 

essential elements of another challenged offense.

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original). The statutory 

elements and actual evidence are two separate considerations such that even if two 

offenses are capable of being committed by different acts, a violation of double jeopardy 

may nonetheless occur where “the actual evidence presented at trial demonstrates that 

each offense was not established by separate and distinct facts.” Montgomery v. State, 

804 N.E.2d 1217, 1224 (Ind. Ct. App. 2004), trans. denied. Here, if Dickman were to be 

charged again with theft predicated on the same checks and credit card transactions that 

underlie this case, a conviction would violate double jeopardy based on the actual 

evidence part of the Richardson test. Even though those checks and transactions were not 

charged in the current case, they were the actual evidence used to convict Dickman and 

so she could not be convicted again using that same actual evidence.2

 

2

 We recognize that Dickman was convicted of the lesser included charge of conversion, and not of theft. 

However, the United States Supreme Court has noted that “the Fifth Amendment forbids successive prosecution and 

cumulative punishment for a greater and lesser included offense,” and so the actual evidence that was used here 

would not be available to the State for future theft charges against Dickman. Brown v. Ohio, 432 U.S. 161, 169 

(1977).
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Conclusion

Concluding that the variance between the charging information and the actual 

evidence presented at trial was not material because Dickman was not misled and is not 

left open to double jeopardy, we affirm.

Affirmed.

MAY, J., and PYLE, J., concur.