Joshua Thompson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 08 2016, 9:10 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Megan Shipley Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joshua Thompson, December 8, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1605-CR-1082 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark Stoner, Appellee-Plaintiff. Judge Trial Court Cause No. 49G06-1510-F3-36806

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 1 of 14

Case Summary [1] Joshua Thompson (“Thompson”) was convicted after a jury trial of Armed

Robbery, as a Level 3 felony,1 and two counts of Resisting Law Enforcement,

one as a Level 6 felony and one as a Class A misdemeanor. 2 He now appeals. [2] We affirm in part, reverse in part, and remand.

Issues [3] Thompson raises two issues for our review, which we restate as

I. Whether the trial court erred when it permitted the State to amend the charging information after the first day of trial, after evidence had been heard by the jury; and

II. Whether one of Thompson’s convictions for Resisting Law Enforcement is barred under double jeopardy principles.

Facts and Procedural History [4] On July 10, 2015, Nemecio Hernandez-Acevedo (“Hernandez-Acevedo”) had

borrowed a Chrysler 200, a car belonging to his cousin, Juan Noyoal-Rodriguez

(“Noyoal-Rodriguez”), to drive to work. After work, Hernandez-Acevedo

drove to a liquor store in Indianapolis. While in the parking lot of the store,

1 Ind. Code § 35-42-5-1(1). 2 I.C. § 35-44.1-3-1(a)(3).

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Thompson and a companion approached the car. Thompson and his

companion, using an airsoft pellet gun3 that was cosmetically identical to a

standard firearm, held Hernandez-Acevedo at gunpoint and forced him to drive

them to a number of locations on Indianapolis’s east side. The pair eventually

left Hernandez-Acevedo at the side of a road and drove away in Noyoal-

Rodriguez’s car. [5] Hernandez-Acevedo, with help from people at a nearby gas station, called

police, who responded and took a report. He then took a taxi cab home. When

he arrived at home, Hernandez-Acevedo told Noyoal-Rodriguez what had

happened. They called police and reported the car stolen. As a result of the

theft, a GPS device was activated on the car that allowed police to track it. [6] A few days later, on July 13, 2015, Officer Charles King (“Officer King”) of the

Indianapolis Metropolitan Police Department was dispatched to investigate a

location where GPS systems indicated Noyoal-Rodriguez’s Chrysler might be.

Officer King saw the vehicle at the intersection of Falls Church Drive and Peter

Court in Indianapolis. Officer King saw Thompson driving the car and made

eye contact with Thompson; Officer King then activated the patrol car’s lights

to conduct a traffic stop, but Thompson drove away. Officer King pursued

Thompson a short distance down Peter Court, which ended in a cul-de-sac.

3 An airsoft gun uses compressed air to propel round plastic pellets, rather than metal pellets or BBs.

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Thompson drove the car into the yard of one of the houses on the cul-de-sac,

and then fled on foot. [7] The Peter Court area backed up against Interstate 70. Thompson fled, climbed

over a fence separating the neighborhood from the highway, and ran across the

interstate highway. Officer King notified other officers of Thompson’s route,

and Thompson was eventually apprehended. [8] After Thompson abandoned the car, Officer King began to search the vehicle

and saw the grip of a pistol jutting out from a map pocket on the driver’s door.

Officer King called for an evidence technician to photograph the scene and for a

gun liaison to retrieve the weapon. The gun liaison determined that the pistol

was an airsoft gun that was visually identical to a standard firearm, but that was

much lighter in weight and was capable of firing pellets or BBs. [9] On October 16, 2015, Thompson was charged with four counts of Kidnapping,

as Level 3 felonies;4 two counts of Armed Robbery, as Level 3 felonies; one

count of Criminal Confinement, as a Level 3 felony;5 and two counts of

Resisting Law Enforcement, one as a Level 6 felony, and one as a Class A

misdemeanor. The charges for Armed Robbery differed as to the property

identified as having been taken by force from Hernandez-Acevedo. Both

charges shared language alleging that the charged offenses were committed “by

4 I.C. § 35-42-3-2(a). 5 I.C. § 35-42-3-3(a).

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use of force or by threatening the use of force, to-wit: by demanding said items

while having brandished a handgun; said act being committed while the

defendant was armed with a deadly weapon, to-wit: said handgun.” (App’x at

40.) [10] A jury trial was conducted on April 11 and 12, 2016. At the beginning of the

trial, the jury was instructed on Armed Robbery and all the other charges as per

the charging information. After the first day of the trial, the State moved to

amend the charging information so that it would allege that Thompson had

committed Armed Robbery using a deadly weapon, but would omit language

related to the use of a handgun. Thompson objected to the amendment as

untimely and as prejudicial to his defense. The trial court granted the State’s

motion to amend the charging information. When final instructions were

issued to the jury, they reflected the charges as amended and omitted any

mention of a handgun. [11] At the close of the trial, the jury found Thompson guilty of one count of Armed

Robbery and both counts of Resisting Law Enforcement. The jury returned not

guilty verdicts on all other offenses except for Criminal Confinement, on which

the jury was hung. On April 29, a sentencing hearing was conducted, during

which the trial court entered judgment on the Armed Robbery and Resisting

Law Enforcement guilty verdicts, and the State moved to dismiss the Criminal

Confinement charge. At the conclusion of the hearing, the court sentenced

Thompson to nine years imprisonment for Armed Robbery, with one year to be

served in community corrections; two years imprisonment for Resisting Law

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Enforcement, as a Level 6 felony, to be served in community corrections

consecutive to the sentence for Armed Robbery; and one year imprisonment for

Resisting Law Enforcement, as a Class A misdemeanor, with the sentence

running concurrent with the sentence for the felony-level charge of Resisting

Law Enforcement. [12] This appeal ensued.

Discussion and Decision Amendment of the Charging Information [13] Thompson’s appeal first challenges the trial court’s decision granting the State’s

motion to amend the charging information after the first day of trial, because

the amendment was one of substance that impaired Thompson’s defense and

thus prejudiced his rights. The Indiana Code provides, “Upon motion of the

prosecuting attorney, the court may, at any time before, during, or after the

trial, permit an amendment to the indictment or information in respect to any

defect, imperfection, or omission in form which does not prejudice the

substantial rights of the defendant.” I.C. § 35-34-1-5(c). The Indiana Supreme

Court has set forth the test for determining whether an amendment to the

charging information was one of form or of substance:

…an amendment is one of form, not substance, if both (a) a defense under the original information would be equally available after the amendment, and (b) the accused’s evidence would apply equally to the information in either form. And an

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amendment is one of substance only if it is essential to making a valid charge of the crime.

Fajardo v. State, 859 N.E.2d 1201, 1207 (Ind. 2007). [14] Even if an amendment is one of form, it must not prejudice a defendant’s

substantial rights. I.C. § 35-34-1-5(c) (“permit[ting] an amendment … in form

which does not prejudice the substantial rights of the defendant.”). Among a

defendant’s substantial rights are notice and an opportunity to be heard

regarding the charge. Nunley v. State, 995 N.E.2d 718, 723 (Ind. Ct. App. 2013)

(citing Gomez v. State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009), trans. denied),

clarified on reh’g, 4 N.E.2d 669, trans. denied. If an amendment does not affect

any particular defense or change the positions of either of the parties, it does not

violate the defendant’s substantial rights. Erkins v. State, 13 N.E.3d 400, 405

(Ind. 2014). “‘An amendment is of substance only if it is essential to making a

valid charge of the crime.’” Id. at 406 (quoting Fajardo, 859 N.E.2d at 1205).

“‘Ultimately, the question is whether the defendant had a reasonable

opportunity to prepare for and defend against the charges.’” Id. at 406 (quoting

Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998), abrogated on other grounds by

Fajardo, 859 N.E.2d at 1206-07). [15] As the case proceeded through the first day of trial, Officer King testified that

the weapon found in the car Thompson had been driving on the day of his

arrest was an airsoft gun that fired “steel” or “plastic bb’s.” (Tr. at 97.) Officer

King further testified that the airsoft gun used compressed air to fire the

projectiles and that those projectiles could seriously injure an individual’s eye. Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 7 of 14

Hernandez-Acevedo, upon being shown the airsoft gun, testified that

Thompson and his accomplice had used the gun to commit the robbery. [16] After the jury had been dismissed for the day, the State moved to amend the

charging information, seeking to remove the language related to the use of a

handgun. Thompson opposed this, arguing that the defense he had prepared

for trial was premised on the distinction between a handgun and an airsoft gun.

Thompson argued that the use of the handgun language, incorporated into the

charging information as part of the deadly weapon element to be proved by the

State, meant the difference between a Level 3 felony and a Level 5 felony for

committing robbery while not armed with a deadly weapon. The State

conceded that Thompson’s position that the airsoft gun was not a handgun was

correct, but that the amendments posed no prejudice to Thompson’s defense.

The trial court agreed with the State and granted the motion to amend the

charges. [17] Turning to the nature of the charges and Thompson’s defense, the charging

statute that defines the offense of Armed Robbery provides:

A person who knowingly or intentionally takes property from another person or from the presence of another person:

(1) by using or threatening the use of force on any person; or

(2) by putting any person in fear;

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commits robbery, a Level 5 felony. However, the offense is a Level 3 felony if it is committed while armed with a deadly weapon or results in bodily injury to any person other than a defendant, and a Level 2 felony if it results in seriously bodily injury to any person other than a defendant.

I.C. § 35-42-5-1. [18] Prior to trial, the State had charged Thompson with two counts of Armed

Robbery. Each included allegations that Thompson had committed the

offenses “by use of force or by threatening the use of force, to-wit: by

demanding said items while having brandished a handgun; said act being

committed while the defendant was armed with a deadly weapon, to-wit: said

handgun.” (App’x at 40.) The court issued preliminary jury instructions based

upon this charge:

To convict the defendant, the State must prove each of the following elements:

***

4. by using force or by threatening the use of force, to-wit: by ordering [Hernandez-Acevedo] to exit said vehicle, leaving the keys in said vehicle,

5. while armed with a deadly weapon, to-wit, a handgun.

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(App’x at 53.)6 The preliminary instructions also defined the term “deadly

weapon”:

The term “deadly weapon” is defined by law as meaning:

1. a loaded or unloaded firearm;

2. or a weapon, device, taser or electronic stun weapon, equipment, chemical substance, or other material that in the manner it is used, or could ordinarily be used, is readily capable of causing serious bodily injury.

(App’x at 46.) [19] As amended, the portions of the charges related to use of a deadly weapon for

Armed Robbery alleged that Thompson took property from Hernandez-

Acevedo, “by using force or by threatening the use of force, to-wit: by

demanding said items while having brandished a deadly weapon; said act being

committed while the defendant was armed with a deadly weapon.” (App’x at

69.) The trial court’s final instructions to the jury informed the jury of the

nature of the changes to the charging information, and for each count of Armed

Robbery stated that the State was required to prove each of the elements of the

charged offenses, including that Thompson “took property … from another

person … by using force or by threatening the use of force, to-wit: by

6 Both Armed Robbery charges were presented in the preliminary instructions; they differ only in the property specified as having been taken by force.

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demanding said items while having brandished a deadly weapon.” (App’x at

84.)7 With respect to all the charged offenses involving use of a deadly weapon,

the jury ultimately found Thompson not guilty of all the Kidnapping and

Armed Robbery charges but one—that involving theft of the car Hernandez-

Acevedo had been driving.8 [20] Here, Thompson argues that the late-amended charging information impaired

his defense. Specifically, Thompson argues that the trial court’s decision

granting the State’s motion to amend the charging information was prejudicial

to his defense because Thompson’s theory of defense was that the airsoft gun

was not a firearm under Indiana law, and therefore did not constitute a

handgun as alleged in the charging information. Thompson relied on several

Indiana cases for this proposition, notably Miller v. State, in which this Court

held that a “CO2 gas powered .177 caliber pellet gun which looks exactly like a

Model 92 Beretta 9mm semiautomatic pistol” was not a handgun as that term

was defined in the Indiana Code, because such a weapon was not a firearm.

616 N.E.2d 750, 751 (Ind. Ct. App. 1990). The Miller Court reviewed this issue

sua sponte as a sufficiency-of-the-evidence issue, and vacated Miller’s conviction

because Miller’s pellet gun did not fit the definition of a handgun. Id. Citing

the Miller Court as authority, Thompson contends that the handgun terms of

7 The final instructions also set forth the lesser-included offense of Robbery as a Level 5 felony, to be considered if the State failed to prove the deadly weapon element of Armed Robbery, as charged. 8 The jury was hung on the allegation of Criminal Confinement, and the State ultimately moved to dismiss that charge.

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the charges against him were essential elements of the charged offenses and that

his defense was impaired as a result of the amendment to the charging

information. [21] We disagree. Use in the original charging information and the preliminary jury

instructions of the term “handgun” was not necessary under the charging

statute to establish a violation of Indiana Code section 35-42-5-1, which

provides that a Level 3 felony conviction for Robbery may be proved when the

defendant is “armed with a deadly weapon,” but does not by its terms require

proof of the use of a handgun. Revision of the charging information here to

delete the use of “handgun” does not change the fundamental charge or

statutory elements needed to prove the charged offense of Armed Robbery. See

Erkins, 13 N.E.3d at 406 (quoting Fajardo for the proposition that “‘[a]n

amendment is of substance only if it is essential to making a valid charge of the

crime’”). And while Thompson went into trial expecting to defend against a

handgun-related charge, he was aware before trial of the nature of the weapon

he was accused of having used in the charged offenses. He thus cannot claim to

have been deprived of notice of the evidence against him or of the charges. See

id. (reiterating Fajardo, “‘[u]ltimately, the question is whether the defendant had

a reasonable opportunity to prepare for and defend against the charges’”). [22] We accordingly find no error on the part of the trial court in granting the State’s

motion to amend the charging information, and we affirm Thompson’s

conviction for Armed Robbery, as a Level 3 felony.

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Double Jeopardy [23] Thompson’s other contention on appeal is that the trial court’s entry of

judgment on both felony- and misdemeanor-level charges of Resisting Law

Enforcement violates double jeopardy principles—specifically, Indiana’s

continuing crime doctrine—and that the misdemeanor conviction should be

vacated. The State, while not conceding the point, seems implicitly to agree. [24] The continuing crime doctrine “‘reflects a category of Indiana’s prohibition

against double jeopardy.’” Chavez v. State, 988 N.E.2d 1226, 1228 (Ind. Ct.

App. 2013) (quoting Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010)),

trans. denied. The double jeopardy clause of the Indiana Constitution has been

interpreted to prohibit a defendant from being convicted multiple times for a

single continuous offense, rather than to reconcile the implications of two

separately chargeable offenses. Id. (citing Boyd v. State, 766 N.E.2d 396, 400

(Ind. Ct. App. 2000)). [25] This Court has on several occasions expressly held that where a single episode

of flight from police involves a defendant’s use of a vehicle, abandonment of the

vehicle, and immediate and continued flight from police on foot, the

continuous crime doctrine operates to vitiate the lesser misdemeanor charge.

Lewis v. State, 43 N.E.2d 689, 691 (Ind. Ct. App. 2015) (citing Arthur v. State,

824 N.E.2d 383, 385 (Ind. Ct. App. 2005), disagreed with on other grounds, Brock

v. State, 955 N.E.2d 195 (Ind. 2011)). The facts here are on all-fours with those

cases: Thompson was pursued by police while driving the stolen Chrysler,

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abandoned the vehicle, continued his flight on foot, and was soon thereafter

apprehended by other officers during the same pursuit. We accordingly agree

with Thompson that his Class A misdemeanor conviction for Resisting Law

Enforcement must be vacated. We leave undisturbed his conviction for

Resisting Law Enforcement, as a Level 6 felony, and remand this case to the

trial court to correct its records.

Conclusion [26] The trial court did not err when it granted the State’s motion to amend the

charging information after the first day of the trial. Thompson’s conviction for

two counts of Resisting Law Enforcement is contrary to double jeopardy

principles, and we vacate his conviction for Resisting Law Enforcement, as a

Class A Misdemeanor, leaving his Level 6 felony conviction undisturbed. We

remand to the trial court for purposes of correcting its record. [27] Affirmed in part, reversed in part, and remanded.

Najam, J., and May, J., concur.

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