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Howard v. State

Court of Appeals of Indiana

April 30, 2019

Levern Nicole Howard, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal 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

          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 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 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 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 handgun[2] 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 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;
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 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.

         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 ...

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