Hancock v. State

• Decision Date: 29 November 2001
• Docket Number: No. 47A01-0102-CR-63.,47A01-0102-CR-63.
• Citation: 758 N.E.2d 995
• Parties: Joseph N. HANCOCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

758 N.E.2d 995

Joseph N. HANCOCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 47A01-0102-CR-63.

Court of Appeals of Indiana.

November 29, 2001.

David J. Colman, Elizabeth Ann Cure, Bloomington, Indiana, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Joseph Hancock ("Hancock") was convicted of Rape and Criminal Deviate Conduct, both Class A felonies. He was sentenced to consecutive terms of fifty years for both the Rape charge and the Criminal Deviate Conduct charge, less credit time given for the 437 days actually served while awaiting trial and sentencing. In this appeal Hancock raises four issues, which we restate as follows:

I. Whether the trial court properly granted the State's Motion to Amend the Charging Information;

II. Whether there was sufficient evidence to support Hancock's convictions for Rape and Criminal Deviate Conduct;

III. Whether his dual convictions for Rape and Criminal Deviate Conduct violate the Indiana Double Jeopardy Clause; and

IV. Whether the trial court properly used aggravating and mitigating circumstances to enhance Hancock's sentence.

We affirm.

Facts and Procedural History

The evidence most favorable to the verdict reveals that on August 10, 1999, Hancock met the victim, T.J., as she was riding her bicycle to work. Hancock stopped T.J. and asked her if she wanted to go out to eat with him and his girlfriend, Jessica Gotwals ("Gotwals"), later that evening. T.J. agreed and met Hancock and Gotwals at approximately 7:30 p.m. at the house of Hancock's friend. T.J., Hancock, Gotwals, and Gotwals' two small children went out for pizza and then proceeded to Hancock's house in Mitchell, Indiana, arriving at approximately 9:00 p.m. Once arriving at Hancock's house, Gotwals put her children to bed, and T.J. and Gotwals began talking. While T.J. and Gotwals were talking, Hancock gave T.J. a potato chip with some ham salad on it, which, according to T.J. "tasted bitter" and made her feel "sick to her stomach." R. at 562. According to Gotwals, Hancock told her that he put eight blue Xanax ("Alprazolam")¹ tablets in the ham salad he gave to T.J. R. at 635. T.J. soon began nodding her head and acting very tired. Hancock lifted T.J.'s shirt and starting touching her breasts. The testimony revealed that Hancock then proceeded to engage in oral sex with T.J. Hancock next engaged in sexual intercourse with T.J., and then induced T.J. to perform oral sex on him. T.J. did not consent to any of this sexual activity.

While Hancock was engaging in sexual intercourse with T.J., Gotwals left Hancock's house to make arrangements for transportation to leave. Upon returning, Gotwals asked T.J. if she wanted to go home, and after T.J. responded affirmatively, Gotwals helped T.J. out to the car. Concerned that T.J. had "O.D.'d or something," Gotwals drove T.J. to the hospital. R. at 645. After both T.J. and Gotwals informed hospital staff and police about the incident with Hancock, police arrested Hancock and charged him with three counts of Rape, and five counts of Criminal Deviate Conduct, all Class A felonies.

On February 24, 2000, one week before the eventual jury was selected and sworn,² and after conducting a hearing on the matter, the trial court allowed the State to amend Hancock's charging information. On March 3, 2000, the jury returned guilty verdicts on two counts of Rape³ and two counts of Criminal Deviate Conduct.⁴ The jury acquitted Hancock with respect to all Rape and Criminal Deviate Conduct counts alleging use of force⁵ and both counts of Criminal Deviate Conduct alleging Hancock's performance of oral sex on T.J.⁶ On May 8, 2000 the trial court sentenced Hancock to an aggregate, enhanced sentence of 100 years. Hancock appeals both his conviction and his sentence.

Discussion and Decision

I. Amendment of Charging Information

Hancock first contends that the trial court erred by allowing the State to amend the original charging information. In addition to arguing that the amendment was untimely, he argues that the State's amendment effectively altered the Indiana Code, thereby changing the theory of its case and eliminating one of his defenses.

The original charging information⁷ reads as follows:

COUNT I

On or about August 10, 1999, in Lawrence County, State of Indiana, Joseph N. Hancock did knowingly have sexual intercourse with T.J., a person of the opposite sex, when she was so mentally disabled or deficient that consent to sexual intercourse could not be given, and the commission of the offense was facilitated by Joseph N. Hancock's furnishing T.J. Xanax without her knowledge.

...

COUNT IV

On or about August 10, 1999, in Lawrence County, State of Indiana, Joseph N. Hancock did knowingly cause T.J. to perform deviate sexual conduct to wit: Joseph N. Hancock placed his penis in the mouth of T.J. when she (sic) so mentally disabled or deficient that consent to said conduct could not be given, and the commission of the offense was facilitated by Joseph N. Hancock's furnishing T.J. Xanax without her knowledge.

R. at 68-69.

The amended charging information, at issue in this appeal,⁸ reads as follows:

COUNT I

On or about August 10, 1999, in Lawrence County, State of Indiana, Joseph N. Hancock did knowingly have sexual intercourse with T.J., a person of the opposite sex, when she was so mentally disabled or deficient, by reason of ingesting Xanax, that consent to sexual intercourse could not be given, and the commission of the offense was facilitated by Joseph N. Hancock's knowing that T .J. had been furnished with Xanax without her knowledge.

...

COUNT IV

On or about August 10, 1999, in Lawrence County, State of Indiana, Joseph N. Hancock did knowingly cause T.J. to perform deviate sexual conduct to wit: Joseph N. Hancock placed his penis in the mouth of T.J. when she (sic) so mentally disabled or deficient, by reason of ingesting Xanax, that consent to said conduct could not be given, and the commission of the offense was facilitated by Joseph N. Hancock's knowing that T.J. had been furnished Xanax without her knowledge.

R. at 71-72 (emphasis added).⁹

The purpose of the charging information is to ensure that the accused is afforded certain protections, and to apprise him of the nature of the accusation made, so that preparations for mounting a defense can be made. Tripp v. State, 729 N.E.2d 1061, 1064 (Ind.Ct.App.2000) (citing Wine v. State, 637 N.E.2d 1369, 1375 (Ind.Ct.App.1994) trans. denied). Accordingly, the charging information must state with particularity the date and location of the alleged offense as well as set forth the specific name of that offense, a citation to the statutory provision alleged to have been violated, and the elements of the offense charged. Ind.Code § 35-34-1-2 (1998); Tripp, 729 N.E.2d at 1064. Although the information must be particular, it is well settled that an information need not contain the exact wording of a statute. Smith v. State, 465 N.E.2d 702, 704 (Ind. 1984). Minor variances from the wording of a statute do not make an information defective, so long as the words, construed according to their common usage, do not mislead the accused or do not omit an essential element of the crime. Id.

Amendments to the charging information are governed by Indiana Code section 35-34-1-5, which provides in relevant part:

(a) An indictment or information which charges the commission of an offense may not be dismissed but may be amended on motion by the prosecuting attorney at any time because of any immaterial defect, including: ...

(b) The indictment or information may be amended in matters of substance or form, and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant, at any time up to:

(1) thirty (30) days if the defendant is charged with a felony; or

(2) fifteen (15) days if the defendant is charged with one (1) or more misdemeanors;

before the omnibus date. When the information or indictment is amended, it shall be signed by the prosecuting attorney.

(c) 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.

(d) Before amendment of any indictment or information other than amendment as provided in subsection (b) of this section, the court shall give all parties adequate notice of the intended amendment and an opportunity to be heard. Upon permitting such amendment, the court shall, upon motion by the defendant, order any continuance of the proceedings which may be necessary to accord the defendant adequate opportunity to prepare his defense.

Ind.Code § 35-34-1-5 (1998).

To avail himself of the remedies provided by the statute, Hancock could have requested a continuance as soon as the trial court overruled his objection to the State's amendment. Ind.Code § 35-34-1-5(d) (1998); Wright v. State, 690 N.E.2d 1098, 1104 (Ind.1997); Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind.1996). By failing to avail himself of the remedy found in Indiana Code section 35-34-1-5(d), Hancock has waived this issue for appeal. A.E.B. v. State, 756 N.E.2d 536 (Ind.Ct.App.2001). According to Hancock, he chose not to follow Indiana Code section 35-34-1-5(d) because he had filed a speedy trial motion, and such action would amount to an election of his rights. Brief of Appellant at 10-11. However, this fact does not negate waiver. Hancock could have requested a continuance and then re-filed for a speedy trial contemporaneously with a motion for continuance. Miller v. State, 563 N.E.2d 578, 582 (Ind.1990). Hancock chose not to pursue the remedy provided him under the statute and, therefore, he has waived this issue for...