from the Marion Superior Court The Honorable Alicia A.
Gooden, Judge Trial Court Cause No. 49G21-1609-F2-38048
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
of the Case
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 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.
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.
and Procedural History
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 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.
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.
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,
" two loaded handguns, and a loaded rifle.
Tr. Vol. II at 55.
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 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.
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 handgun 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.
On September 27, the State charged Howard with the following
thirteen counts("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
5. neglect of a dependent (Child 1), as a Level 5 felony;
6. neglect of a dependent (Child 2), as a Level 5 felony;
7. neglect of a dependent (Child 3), as a Level 5 felony;
8. neglect of a dependent (Child 4), 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
13.resisting law enforcement, as a Class A misdemeanor.
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
On Wednesday, May 2, 2018, more than nineteen months after it
had filed the original counts, more than sixteen months after
the omnibus date,  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.
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.
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.
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 ...