Fajardo v. State, No. 32S01-0606-CR-237.

Docket NºNo. 32S01-0606-CR-237.
Citation859 N.E.2d 1201
Case DateJanuary 16, 2007
CourtSupreme Court of Indiana

Page 1201

859 N.E.2d 1201
Eligio C. FAJARDO, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 32S01-0606-CR-237.
Supreme Court of Indiana.
January 16, 2007.

Page 1202

Paula M. Sauer, Danville, IN, Attorney for Appellant.

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

On Petition To Transfer from the Indiana Court of Appeals, No. 32A01-0501-CR-6

DICKSON, Justice.


The defendant, Eligio C. Fajardo, appeals his convictions on each of two counts of Child Molesting, one as a class C felony1 and the other as a class A felony.2 The trial court ordered concurrent sentences of two years and twenty years, respectively. The Court of Appeals, in a memorandum decision, affirmed the convictions. We granted transfer and now affirm the defendant's conviction for class C felony Child Molesting, but we reverse the class A felony conviction.

In this appeal, the defendant asserts two claims: (1) that the trial court erred by permitting the State to untimely amend the information charging Child Molesting as a class C felony to add a second count charging Child Molesting as a class A felony, and (2) that the evidence presented by the State was insufficient to support a conviction on either count.

1. Amendment of Charging Information

The defendant first asserts that the trial court erroneously permitted the State

Page 1203

to amend the initial class C felony Child Molesting charge by belatedly adding the additional count charging class A felony Child Molesting. Citing Indiana Code § 35-34-1-5, the defendant presents two alternative arguments: (1) if the amendment related to an immaterial defect or one of form, it was improper because it was prejudicial to his substantial rights, particularly the right to a speedy trial; or (2) if the amendment related to a matter of substance, it was untimely because it was not filed more than thirty days before the omnibus date.

On February 13, 2004, the State charged the defendant with a single count of Child Molesting as a class C felony.3 At the initial hearing, the trial court set the pre-trial conference and omnibus date4 for May 5, 2004, and scheduled jury trial for May 19, 2004. The May 5 conference occurred as scheduled. The State deposed the alleged victim the next day, and on May 12, one week after the omnibus date and one week before the scheduled trial, the State moved to add a second count, additionally charging the defendant with Child Molesting as a class A felony,5 asserting that the child's deposition had disclosed a second separate incident of the defendant molesting the same child.6 On May 17, 2004, two days before the scheduled start of the trial, over the defendant's objection, and after a hearing, the trial court permitted the State to add Count 2, charging Child Molesting as a class A felony. Appellant's App'x. at 111. The case eventually was tried by jury on October 27-29, 2004.

A charging information may be amended at various stages of a prosecution, depending on whether the amendment is to the form or to the substance of the original information. Such amendments are governed by Indiana Code § 35-34-1-5.7

Page 1204

Subsection (a) permits an amendment at any time "because of any immaterial defect," and it lists nine examples, including "(9) any other defect which does not prejudice the substantial rights of the defendant." Similarly, subsection (c) permits "at any time before, during, or after the trial, . . . 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." Id. (emphasis added). In contrast, subsection (b) expressly limits the time for certain other amendments:

(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 only with one (1) or more misdemeanors;

before the omnibus date. . . .

Ind.Code § 35-34-1-5(b) (emphasis added).

This statutory language thus conditions the permissibility for amending a charging information upon whether the amendment falls into one of three classifications: (1) amendments correcting an immaterial defect, which may be made at any time, and

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in the case of an unenumerated immaterial defect, only if it does not prejudice the defendant's substantial rights; (2) amendments to matters of form, for which the statute is inconsistent, subsection (b) permitting them only prior to a prescribed period before the omnibus date, and subsection (c) permitting them at any time but requiring that they do not prejudice the substantial rights of the defendant; and (3) amendments to matters of substance, which are permitted only if made more than thirty days before the omnibus date for felonies, and more than fifteen days in advance for misdemeanors. See Haak v. State, 695 N.E.2d 944, 951 (Ind.1998).

In its memorandum decision, the Court of Appeals correctly noted that amendments of substance pursuant to subsection 5(b) may not occur after specified times in advance of the omnibus date, and it expressly found that the challenged amendment here was one of substance rather than one of form. But the court failed to apply the 5(b) prohibition upon amendments to substance after the omnibus date, believing that the ultimate question was whether or not the defendant had a reasonable opportunity to prepare for and defend against the charges such that his substantial rights were not affected.

Indiana criminal procedure has long distinguished between amendments to matters of substance and those to matters of form, the former historically prohibited after the defendant had entered a plea. See, e.g., State ex rel Kaufman v. Gould, 229 Ind. 288, 290-91, 98 N.E.2d 184, 185 (1951). To determine whether an amendment related to a matter of substance or form, the rule applied was:

If a defense under the affidavit [now, the information] as it originally stood would be equally available after the amendment is made, and if any evidence the accused might have would be equally applicable to the affidavit [information] in one form as in the other, then the amendment is one of form and not of substance.

Id. at 291, 98 N.E.2d at 185. This definition of "substance" was expanded by another 1951 opinion, Souerdike v. State, 230 Ind. 192, 196, 102 N.E.2d 367, 368 (1951), which added: "If the amendment is such that it is not essential to the charging of a crime, then it is not one of substance but one of form." These two definitional components have been combined, applied in numerous cases, and survive to the present time:

An amendment is one of form and not substance if a defense under the original information would be equally available after the amendment and the accused's evidence would apply equally to the information in either form. Further, an amendment is of substance only if it is essential to making a valid charge of the crime.

McIntyre v. State, 717 N.E.2d 114, 125-26 (Ind.1999) (citations omitted); accord Haak, 695 N.E.2d at 951; Sharp v. State, 534 N.E.2d 708, 714 (Ind.1989), cert. denied, 494 U.S. 1031, 110 S.Ct. 1481, 108 L.Ed.2d 617 (1990); Graves v. State, 496 N.E.2d 383, 387 (Ind.1986); Gibbs v. State, 460 N.E.2d 1217, 1221 (Ind.1984); Owens v. State, 263 Ind. 487, 497, 333 N.E.2d 745, 750 (1975).

Although the distinction between matters of substance and those of form has long been a crucial factor in determining whether charging informations may be amended, the application of this distinction has varied. As noted above, for many years, amendments to substance were completely prohibited after a defendant had entered a plea. By 1973, the Indiana statutory provisions governing the amendment of an indictment or information distinguished between amendments in matters

Page 1206

of form and those of substance by permitting an amendment in matters of substance only upon notice to the defendant and consent of the court "at any time before arraignment," and permitting an amendment "in respect to any defect, imperfection or omission in form" only if it "does not prejudice the substantial rights of the defendant." Acts 1973, Pub.L. No. 325, § 3, which was codified at Ind.Code § 35-3.1-1-5(b) and (c). The statute also contained a further limitation on all amendments regardless of whether they related to substance or form, as follows:

(e) 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 crime charged; nor may an indictment or information be amended after arraignment for the purpose of curing a failure to charge or state a crime or legal insufficiency of the factual allegations.

Acts 1973, Pub.L. No. 325, § 3, which was codified at Ind.Code § 35-3.1.1.5(e).

In 1982, the arraignment deadline for filing substantive amendments was changed when the legislature repealed subsections 5(b) and 5(e) and added a new subsection 5(b) limiting amendments "in matters of substance or form" to "any time up to thirty (30) days before the omnibus date." Acts 1981, Pub.L. No. 298, § 3.8 Ensuing case law, however, has been inconsistent and conflicting, often reflecting the practice and procedure under prior statutes, or imprecisely disregarding the subsection 5(b) timeliness requirement for amendments to substance in favor of the absence of prejudice requirement that subsections 5(a)(9) and 5(c) apply only to amendments of form.

Several cases have permitted amendments related to matters of substance simply on grounds that the changes did not prejudice the substantial...

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183 practice notes
  • Shaw v. Wilson, No. 12–1628.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 28, 2013
    ...Shaw lost his direct appeal, the Indiana Supreme Court revisited the issue of untimely amendments of substance in Fajardo v. Indiana, 859 N.E.2d 1201 (Ind.2007). The trial court in that case had allowed the prosecution to add a second count of child molestation to the information after it c......
  • Jones v. Zatecky, No. 17-2606
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 28, 2019
    ...another defendant who did object to an untimely amendment had his conviction reversed by the Indiana Supreme Court in Fajardo v. State , 859 N.E.2d 1201, 1202 (Ind. 2007). Jones argues, in essence, that his case should have been Fajardo , and would have been if counsel had lodged a timely o......
  • In Re Subpoena To Crisis Connection Inc.State Of Indiana, No. 19A05-0910-CR-602.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 15, 2010
    ...interest in nondisclosure. Kindred v. State (1989), Ind., 540 N.E.2d 1161, 1174 [ ( abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind.2007)) ]. Id. at 917. Kindred did not state that this analysis applies only to nonpriviledged information, and neither Jorgensen nor Pelle......
  • Brown v. State, No. 15A01-0812-CR-566.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 10, 2009
    ...890 defendant were not prejudiced, regardless of whether the amendments were untimely under I.C. § 35-34-1-5(b). See Fajardo v. State, 859 N.E.2d 1201 (listing numerous Supreme Court and Court of Appeals cases). On January 16, 2007, our Supreme Court changed course and held that the statute......
  • Request a trial to view additional results
183 cases
  • Shaw v. Wilson, No. 12–1628.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 28, 2013
    ...Shaw lost his direct appeal, the Indiana Supreme Court revisited the issue of untimely amendments of substance in Fajardo v. Indiana, 859 N.E.2d 1201 (Ind.2007). The trial court in that case had allowed the prosecution to add a second count of child molestation to the information after it c......
  • Jones v. Zatecky, No. 17-2606
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 28, 2019
    ...another defendant who did object to an untimely amendment had his conviction reversed by the Indiana Supreme Court in Fajardo v. State , 859 N.E.2d 1201, 1202 (Ind. 2007). Jones argues, in essence, that his case should have been Fajardo , and would have been if counsel had lodged a timely o......
  • In Re Subpoena To Crisis Connection Inc.State Of Indiana, No. 19A05-0910-CR-602.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 15, 2010
    ...interest in nondisclosure. Kindred v. State (1989), Ind., 540 N.E.2d 1161, 1174 [ ( abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind.2007)) ]. Id. at 917. Kindred did not state that this analysis applies only to nonpriviledged information, and neither Jorgensen nor Pelle......
  • Brown v. State, No. 15A01-0812-CR-566.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 10, 2009
    ...890 defendant were not prejudiced, regardless of whether the amendments were untimely under I.C. § 35-34-1-5(b). See Fajardo v. State, 859 N.E.2d 1201 (listing numerous Supreme Court and Court of Appeals cases). On January 16, 2007, our Supreme Court changed course and held that the statute......
  • Request a trial to view additional results

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