Carson v. State

• Decision Date: 05 July 1979
• Docket Number: No. 779S177,779S177
• Citation: 271 Ind. 203,391 N.E.2d 600
• Parties: Wyvonia CARSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 600

391 N.E.2d 600

271 Ind. 203

Wyvonia CARSON, Appellant, v. STATE of Indiana, Appellee.

No. 779S177.

Supreme Court of Indiana.

July 5, 1979.

Bobby Jay Small, Indianapolis, Daniel W. Meehan, Cincinnati, Ohio, for appellant

Theodore L. Sendak, Atty. Gen., Victoria R. Van Duren, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION TO TRANSFER

GIVAN, Chief Justice.

Appellant was convicted of cruelty to children under IC § 35-14-1-4 (repealed by Acts 1976, P.L. 148, § 24, effective October 1, 1977) and was sentenced to three months' imprisonment. The Court of Appeals reversed and remanded the cause for a new trial on the ground that the trial court permitted the State to amend the information during voir dire to the substantial prejudice of appellant's rights. Carson v. State (1979) Ind.App., 384 N.E.2d 620. We find no reversible error in that issue but we do find other error in the record requiring the remand of the case. We therefore grant the State's petition to transfer.

The charging information alleged that appellant "did unlawfully, feloniously and wilfully abuse said child in that she severely beat said child about the shoulders and back." During voir dire examination, the prosecutor was permitted to amend the information by substituting the words "be cruel to" for the word "abuse". The Court of Appeals held that the amendment violated IC § 35-3.1-1-5(e) (Burns 1979). That section prohibits the State from amending an indictment or information to change the theory of the prosecution as originally stated. The reason for this holding was that under IC § 35-14-1-4, "abuse" of a child includes such acts as employing a child in an occupation dangerous to the health or morals of the child, the habitual use of obscene language or the performance of immoral acts in the presence of the child, and the disposal of the custody of the child contrary to law. The section of the statute defining cruelty, however, generally covers physical acts upon the child. Such acts as inflicting severe corporal punishment, suffering or pain upon a child, habitually tormenting a child and exposing a child to unnecessary hardship, fatigue or mental or physical strains are proscribed. The Court of Appeals reasoned that since "abuse" was charged in the information, the amendment to "be cruel to" was a change in substance rather than form. Hence, it was held the amendment prejudiced the substantial rights of appellant and compelled a reversal. 384 N.E.2d 623.

We cannot agree. An information need only state the crime charged in the language of the statute or in words which convey a similar meaning. In reviewing charging instruments, this Court will construe the language used in light of its common acceptance and understanding. Heflin v. State (1977) Ind., 370 N.E.2d 895. Here, the original information alleged that appellant "severely beat said child about the shoulders and back." The affidavit for probable cause alleged that appellant had beaten the child with the end of a fishing rod and that it had caused "welt-like markings on the upper back and on the arms and legs" of the child. It is clear that the theory of the prosecution has never changed from the outset. Appellant was charged with and was being prosecuted for physical cruelty to this child. Whether the word "abuse", "cruelty", "torture" or "torment" is used is immaterial; all of them can be taken to mean physical cruelty to a child within the meaning of the statute. The words the legislature chose are not words of art to be given strict connotations within the narrow parameters of the statutory definitions of the crimes. The information in the case at bar adequately informed appellant that she had violated the cruelty statute by physically beating the child. The amendment to bring it into conformity with the precise language of the statute was therefore one of form and not of substance. The trial court did not err in permitting the amendment.

Appellant further argues that the court erred in denying her motion to dismiss the amended information for failure to allege the element of "unnecessarily severe corporal punishment." This element is only one of several grounds for the offense of cruelty to a child under IC § 35-14-1-2. As stated above, the information need not specifically recite the precise words of the statute so long as it adequately conveys to the defendant the conduct which allegedly has violated the statute. The charging instrument in the case at bar adequately accomplishes this. The trial court therefore did not err in overruling appellant's motion to dismiss.

Appellant next argues the trial court erred in refusing to exclude certain photographs from evidence or, in the alternative, to grant a continuance. Defense counsel had obtained a discovery order compelling the prosecutor to provide copies of photographs taken of the victim shortly after the crime if the prosecutor intended to use them as evidence at trial. The photographs were not provided. When the prosecution moved their admission in evidence at trial, defense counsel objected and requested their exclusion. The court overruled the motion. Defense counsel then moved for a continuance to allow an expert to examine the photos to determine if they had been retouched. The court again overruled the motion.

It is within the inherent power of the trial court to guide and control the proceedings and to order the State to disclose such evidence as is properly discoverable. Johns v. State (1968) 251 Ind. 172, 240 N.E.2d 60. When the State violates a proper discovery order, a trial court has wide discretion to remedy the transgression.

"Obviously, the trial judge is usually in the best position to determine what harm, if any, evolved from a violation, whether or not such harm can be eliminated or satisfactorily alleviated and the dictates of fundamental fairness. Absent clear error in his decision it should not be overturned." Reid v. State (1978) Ind., 372 N.E.2d 1149, 1155.

In general, a defendant has two remedies when faced with a blatant violation of a discovery order. He can move for exclusion of the offered evidence if the State's action is so misleading or in such bad faith that the only way to avoid a denial of a defendant's fair trial rights is to exclude such evidence. Reid v. State, supra. The remedy used most often, however, is to obtain a continuance or a recess until such time as the defendant has been afforded an opportunity to examine the evidence or witness. Morris v. State (1979) Ind., 384 N.E.2d 1022; Reid v. State, supra; Gregory v....