Clifford v. State

Decision Date22 February 1985
Docket NumberNo. 1282S511,1282S511
Citation474 N.E.2d 963
PartiesJackson A. CLIFFORD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

James G. McDonald, Jr., Princeton, for appellant (defendant below).

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

PRENTICE, Justice.

Following a trial by jury, Defendant (Appellant) was convicted of Criminal Deviate Conduct, a class B felony, Ind.Code Sec. 35-42-4-2 (Burns 1979) and was sentenced to twelve (12) years imprisonment. His direct appeal presents fourteen (14) issues for our review, one of which compels us to reverse his conviction.

The record discloses that on December 22, 1981, the Defendant and his wife reported to the police that their twelve (12) year old daughter, R.C., was missing. Subsequently, at approximately 9:30 that evening, Police Officer Dennis McGraw received a dispatch which informed him of R.C.'s whereabouts. When Officer McGraw located R.C., she told him that she would not go home to a father who abused her sexually and a mother who hated her.

At the police station McGraw spoke with the Defendant and his wife, and it was determined that R.C. would go home with her parents. McGraw then prepared his report which was forwarded to the county welfare department. Thereafter, on February 24, 1982, McGraw, Captain George Ballard, and Debra Corn of the welfare department met with R.C. and took a taped statement from her. R.C. told them that the Defendant, her father, had inserted his finger into her vagina a few days before she had run away from home on December 22. She further detailed a two to three year history of sexual abuse of her by her father. Specifically, she described incidents when he had shown her sexually explicit movies and magazines and had inserted sexual devices into her vagina. Upon receiving this information, Officer Ballard sought a search warrant which was issued on March 2, 1982. As a result of the search, police officers seized sexually explicit books, magazines, films, rubber sexual devices, and other sexual paraphernalia.

On March 3, 1982, the State filed its information, charging the Defendant with child molesting, a class D felony, Ind.Code Sec. 35-42-4-3, as follows:

"On or about the 21st day of December 1981, at the County of Gibson, in the State of Indiana. (sic) Jackson A Clifford Jr. being at least 16 years of age, did perform fondling and touching with [R.C.] twelve (12) years of age, by inserting his finger into her vagina with intent to arouse or to satisfy the sexual desires of Jackson A. Clifford, Jr."

After the Defendant had been arraigned and had pled not guilty, the State amended its information, charging Defendant with unlawful deviate conduct, a class B felony, Ind.Code Sec. 35-42-4-2, as follows:

"On or about the 21st day of December 1981, at the County of Gibson, in the State of Indiana, Jackson A. Clifford, Jr. knowingly and intentionally cause (sic) penetration, by his finger, of the sex organ of [R.C.], a child of twelve (12) years of age and being so mentally deficient, by reason of her age, that she could not consent to such conduct."

Defendant argues that the amendment was prohibited by Ind.Code Sec. 35-3.1-1-5(e) (Burns 1979) (since repealed) which provides:

"Notwithstanding any other provision in this section, an indictment or information shall not be amended in any respect which changes the theory or theories of the prosecution as originally stated, or changes the identity of the offense charged; nor may an indictment or information be amended after arraignment for the purpose of curing a failure to charge or state an offense or legal insufficiency of the factual allegations."

Defendant argues that the amendment was prohibited by the above statute because it altered the potential penalty and claimed a separate and distinct statutory We agree with the State that Defendant was aware of the facts upon which he was charged; however, we find that the dispositive issue is whether a change in the potential penalty upon conviction of the crime charged changes the theory of the case or the identity of the offense charged.

violation. The State, on the other hand, argues that the Defendant "was apprised at all times that he was accused of inserting his finger into the vagina of the twelve-year-old [R.C.] on or about December 21, 1981."

Defendant was initially charged with child molesting, a class D felony. The penalty upon conviction of a class D felony is imprisonment for two years with not more than two years added for aggravating circumstances and a potential fine of not more than $10,000. The court also has the alternative of entering judgment of conviction of a class A misdemeanor and sentencing accordingly. Ind.Code Sec. 35-50-2-7 (Burns 1979). When the information was amended, Defendant was charged with criminal deviate conduct, a class B felony, the penalty for which is ten years imprisonment with not more than ten years added for aggravating circumstances nor more than four years subtracted for mitigating circumstances and a possible fine of not more than $10,000. Ind.Code Sec. 35-50-2-5 (Burns 1979). Hence, while the factual allegations underlying the two informations in the case at bar were the same, the potential penalties were not.

In Marts v. State, (1982) Ind., 432 N.E.2d 18, this Court held that a post arraignment amendment of the information did not violate Ind.Code Sec. 35-3.1-1-5, noting, "Both before and after the amendment Defendant was charged with the delivery of cocaine in the amount of three grams or more. The amendment did not alter the potential penalty, the offense charged, or the available defenses, and the trial court committed no error in allowing it." Id. at 20-21. (emphasis added). In Trotter v. State, (1981) Ind., 429 N.E.2d 637, 640, we held that amending an information for a class B robbery to a class A robbery after arraignment was improper inasmuch as to do so changed the theory of the prosecution. In Tolbert v. State, (1982) Ind.App., 442 N.E.2d 718, 720, a second amendment of the charging information was held not improper inasmuch as it merely returned the information to its original form. The court therein, however, noted that the first amendment, changing the charge from a class B robbery to a class C robbery, did change the theory of the case from that originally charged. We find these cases to be persuasive and hold that changing the potential penalty by amending the charging information constituted a change in the theory of the case and in the identity of the offense. See also Gillie v. State, (1984) Ind., 465 N.E.2d 1380.

The cases cited by the State in support of its position are distinguishable from the case at bar. In Carson v. State, (1979) 271 Ind. 203, 205, 391 N.E.2d 600, 602, we held that the trial court did not err in permitting the information which alleged that the appellant "did unlawfully, feloniously and wilfully abuse" a child to be amended to substitute the words "be cruel to" for the word "abuse" to bring the information into conformity with the precise language of the statute under which the appellant was charged. In Buttram v. State, (1978) 269 Ind. 598, 601, 382 N.E.2d 166, 169, we found no error in allowing an amendment to an indictment to substitute for the words "do on" the words "touch one." In neither of those cases, however, was there a change in the potential penalty. Moreover, the State's reliance upon Buck v. State, (1983) Ind., 453 N.E.2d 993, is misplaced. As the Defendant points out in his reply brief, the Court considered an amendment to the charging information which changed the section of the Code under which appellant was charged from Sec. 35-42-4-2 (unlawful deviate conduct) to Sec. 35-42-4-3 (child molesting) to be proper because the incorrect statutory citation on one part of the information was the result of a typographical error and the change did not substantially impair the appellant's rights.

We are compelled to hold that the trial court erred in permitting the amendment and that the Defendant was convicted of a crime for which he was not properly charged. His conviction is reversed.

To guide the trial court upon retrial, we address the following issues, which we have renumbered and consolidated, as follows:

(1) Whether items seized from the Defendant's home pursuant to a search warrant should have been suppressed because

(a) the search warrant failed to describe particularly the items to be seized (Defendant's Issue II);

(b) the items seized were not properly seizable (Defendant's Issue X);

(c) the affidavit upon which the court based its determination of probable cause did not establish the credibility of the source of the information (Defendant's Issue XII);

(d) no probable cause existed for the issuance of the warrant (Defendant's Issues XI and XIII);

(2) Whether testimony regarding items seized pursuant to the search warrant was relevant;

(3) Whether the State's response to the Defendant's notice of alibi was proper;

(4) Whether the trial court erred in allowing the victim to give testimony regarding a prior sexual incident with the Defendant;

(5) Whether the trial court erred in denying the Defendant's motion for a court appointed psychiatrist to examine the prosecuting witness;

(6) Whether the trial court erred in allowing the jury to view a particular film;

(7) Whether the trial court erred in its voir dire examination of potential jurors.

ISSUE I

Following a hearing, Defendant's motion to suppress from evidence items of sexual paraphernalia seized pursuant to a search warrant was denied. Defendant assigns such ruling as reversible error.

The search warrant authorized officers to search for "movies depicting obscene sexual conduct, magazines depicting obscene sexual conduct, movie projector and rubber sexual devises (sic)" and was issued by the Gibson Circuit Court upon the...

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