Carson v. State, No. 1-478A102

• Docket Nº: No. 1-478A102
• Citation: 179 Ind.App. 87, 384 N.E.2d 620
• Case Date: January 16, 1979
• Court: Court of Appeals of Indiana

Page 620

384 N.E.2d 620 179 Ind.App. 87 Wyvonia CARSON, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 1-478A102. Court of Appeals of Indiana, First District. Jan. 16, 1979.

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

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

ROBERTSON, Judge.

Defendant-appellant Wyvonia Carson (Carson) appeals her conviction of cruelty and neglect of children ¹ based on the following issues:

(1) Whether the trial court erred in allowing the State to amend the information during Voir dire.

(2) Whether or not the trial court erred in denying defendant's Motion to Dismiss the amended information.

(3) Whether the trial court erred in failing to exclude certain photographs not disclosed as required by a pre-trial discovery order.

Because of our disposition of the first issue, we need not address the other allegations of error.

The original information charged the following:

". . . did unlawfully, feloniously and wilfully Abuse said child in that she severely beat said child about the shoulders and back . . ." (Our emphasis).

On the day of trial, during voir dire examination, the State moved to amend the information by substituting the words "be cruel to" in place of "abuse". The trial court allowed such amendment over Carson's objection and motion to dismiss. Carson contends that this amendment was a material alteration which prejudiced her substantial rights. Therefore, it is argued that the trial court should have either not allowed the amendment or, alternatively, granted defendant's motion to dismiss. The State responds that the original information adequately identified the specific illegal act with which defendant was charged, and, therefore, exhibits no element of surprise and no prejudice to the defendant.

The circumstances under which an information may be amended are delineated in Indiana Code 35-3.1-1-5 (Supp.1977):

"Amendment of charge. (a) An indictment or information which charges the commission of a crime shall not be dismissed but may be amended on motion by the prosecutor at any time because of any immaterial defect, including:

(1) Any miswriting, misspelling or grammatical error;

(2) Any misjoinder of parties defendant or crimes charged;

(3) The presence or absence of any unnecessary or repugnant allegation;

(4) The failure to negative any exception, any excuse or proviso contained in the statute defining the crime;

(5) The use of alternative or disjunctive allegations as to the acts, means, intents or results charged;

(6) Any mistake in the name of the court or county in the title of the action, or the statutory provision alleged to have been violated;

(7) The failure to state the time or place at which the crime was committed where time or place is not of the essence of the crime;

(8) The failure to state an amount of value or price of any matter where such value or price is not of the essence of the crime;

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(9) Any other defect which does not prejudice the substantial rights of the defendant.

(b) The indictment or information may be amended in matters of substance or form by the prosecutor upon giving notice to the defendant and with the consent of the court, at any...