Gaby v. State

• Decision Date: 07 June 2011
• Docket Number: No. 79A02–1006–CR–804.,79A02–1006–CR–804.
• Citation: 949 N.E.2d 870
• Parties: Michael Joseph GABY, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

949 N.E.2d 870

Michael Joseph GABY, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 79A02–1006–CR–804.

Court of Appeals of Indiana.

June 7, 2011.

Mark S. Fryman, Jr., Starr Austen & Miller, LLP, Logansport, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Joby D. Jerrells, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Michael Joseph Gaby (“Gaby”) was convicted in Tippecanoe Superior Court of Class A felony child molesting. Gaby appeals and presents three issues for our review, which we renumber and restate as:

I. Whether the trial court erred in allowing the State to amend the charging information;

II. Whether the trial court abused its discretion in permitting the State to refresh the recollection of the victim when the victim did not evidence a lack of recollection;

III. Whether the State's arguments constituted prosecutorial misconduct; and

IV. Whether the trial court erred in ordering Gaby to serve his sentence as a credit restricted felon.

We reverse Gaby's conviction and remand for retrial.

Facts and Procedural History

Sometime in 1995 or 1996, P.C. and her four daughters lived in the same apartment complex as did Gaby and his daughter. Gaby's daughter was approximately the same age as P.C.'s daughter M.C., who was born in 1993. On one occasion, P.C. asked Gaby to watch M.C. for the day while she went to work. Only Gaby and M.C. were in the apartment. Gaby told M.C. to try on some clothes that his daughter had outgrown, and M.C. undressed. Gaby told M.C. to sit down, then put a blanket over her and inserted his fingers into her vagina. After this incident, M.C. did not go to Gaby's apartment alone. Gaby and his daughter moved out of the apartment complex when M.C. was between the second and third grade.¹

Several years later, Gaby asked P.C. to drive him and his daughter to church. When an opportunity arose that day, Gaby asked M.C. if she had ever told anyone about what he had done to her. She told Gaby that she had not. Years later, on April 20, 2009, when M.C. was approximately fifteen years old, she told her teacher what Gaby had done to her. M.C.'s teacher contacted the police, who interviewed her.

On May 6, 2009, Lafayette Police Detective Joseph Clyde interviewed Gaby. Gaby initially denied ever having been alone with M.C., but later claimed that he had been alone with the child once when she had thrown up on her clothes. Gaby claimed, however, that he had not helped M.C. change her clothes. Gaby then admitted that he did help M.C. change her clothes and may have unintentionally fondled her. The next day, Gaby spoke with Detective Scott Galloway and denied having inserted his finger into M.C.'s vagina. Gaby did ask, however, if the police could “help him remember if he had molested [M.C.]” Tr. p. 183.

On June 10, 2009, the State charged Gaby with Class A felony child molesting. The State moved to amend the charging information on March 29, 2010, and Gaby filed an objection thereto the following day. On March 31, 2010, the trial court granted the State's motion to amend. A two-day jury trial commenced on April 6, 2010, at the conclusion of which the jury found Gaby guilty as charged. At a sentencing hearing held on May 26, 2010, the trial court sentenced Gaby to twenty years and ordered him to serve his sentence as a credit restricted felon. Gaby now appeals.²

I. Charging Information

Gaby first claims that the trial court erred in allowing the State to amend the charging information a week before trial.³ The original charging information, filed on July 10, 2009, alleged that Gaby molested M.C. on one occasion between 1997 and 1998 when M.C. was ten to eleven years old. This was impossible, as M.C. was born in 1993 and would have been between four and five years old at that time. The State filed a motion to amend the charging information on March 29, 2010, seven days before the scheduled trial date. The State's proposed amended charging information changed the alleged date range of the molestation to 1997 to 2002, when M.C. was between four and eight years old. Gaby objected to the proposed amendment, but the trial court granted the State's motion to amend, concluding:

The Court ... finds that the Amended Information does not prevent the defendant from presenting a defense, because the specific occasion is one where the defendant was babysitting for the complaining witness, after which the complaining witness never returned to the defendant's apartment alone. While the date range is broad, the details of the occasion in question are not.Appellant's App. p. 11.

A. Amendment of the Charging Information

In general, Indiana Code section 35–34–1–5(b) permits the State to amend a charging information even in matters of substance at any time before the commencement of trial so long as the amendment does not prejudice the defendant's substantial rights. See Brown v. State, 912 N.E.2d 881, 890 (Ind.Ct.App.2009), trans. denied. The “substantial rights” of a defendant include a right to sufficient notice and an opportunity to be heard regarding the charge. Id. “ ‘Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges.’ ” Id. (quoting Sides v. State, 693 N.E.2d 1310, 1313 (Ind.1998), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind.2007)). The substantial rights of the defendant are not prejudiced if: (1) a defense under the original information would be equally available after the amendment, and (2) the defendant's evidence would apply equally to the information in either form. Id. Our supreme court has also explained that “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); accord Brown, 912 N.E.2d at 890.

We first observe that there is no indication that Gaby requested a continuance after the trial court granted the State's motion to amend. The failure to request a continuance after the trial court allows a pre-trial substantive amendment to the charging information over defendant's objection results in waiver of the issue on appeal. Wilson v. State, 931 N.E.2d 914, 918 (Ind.Ct.App.2010), trans. denied.

As such, Gaby's argument regarding the amendment of the charging information is waived. Waiver notwithstanding, Gaby would still not prevail.

Gaby claims that his defense strategy was to argue that M.C.'s accusations should be particularly scrutinized because she was only three years old at the time and could not accurately remember the events. He further claims that, under the amended information, the State was able to argue that M.C. could have been several years older than even she remembered. This, Gaby claims, “foreclosed” his defense. We disagree. Even under the amended information, Gaby was able to argue that M.C. was, as she testified, only three years old at the time of the molestation and that her recollection of events at that time should therefore be suspect. The amended information did not deprive Gaby of this defense. Moreover, the State could have argued that M.C. was five years old, and not three years old as she testified even under the original information. In other words, this defense was not foreclosed by the amended information. Thus, even if Gaby had properly preserved this issue for appeal, he would not prevail.

B. Specificity of the Amendment

Gaby also claims that the amended charging information was not specific enough to give him sufficient notice of the allegations. The State responds by arguing that Gaby waived this argument by failing to challenge the sufficiency of the charging information by way of a motion to dismiss prior to arraignment. See Vaillancourt v. State, 695 N.E.2d 606, 610 (Ind.Ct.App.1998) (“The proper time for raising the insufficiency of the charging information is prior to arraignment.”). Here, however, Gaby's claim goes to the sufficiency of the amended charging information, which was amended only seven days before trial. Gaby could not have moved to dismiss this amended information before arraignment, and we decline to hold that his failure to do so waived appellate consideration of his argument.

Gaby did file a motion to dismiss and a motion for a more definite statement on August 20, 2009. But this was before the State amended the charging information. And Gaby did not include a copy of these motions, or the trial court's rulings thereon, in his appendix. Still, Gaby should have filed a motion to dismiss after the State amended the charging information. This is especially true where Gaby's complaint is directed at the charging information as amended. This would have given the trial court the opportunity to rule on the issue before the case was brought to trial. See GKC Ind. Theatres, Inc. v. Elk Retail Invs., LLC., 764 N.E.2d 647, 651 (Ind.Ct.App.2002) (noting that the waiver rule protects the integrity of the trial court because it cannot be found to have erred as to an issue that it never had an opportunity to consider). Again, however, even if we were to conclude that Gaby did not waive his appellate argument, he would not prevail on the merits.

The contents of a charging information are governed by Indiana Code section 35–34–1–2 (2004 & Supp.2005), which provides in relevant part:

(a) The indictment or information shall be in writing and allege the commission of an offense by:

* * *

(5) stating the date of the offense with sufficient particularity to show that the offense was committed within the period of limitations applicable to that offense;

(6) stating the time of the offense as definitely as can be done if time is of the essence of the offense[.]

As explained in Garner v. State, 754 N.E.2d 984, 990 (Ind.Ct.App.2001), summarily aff'd in relevant part, 777 N.E.2d 721 (Ind.2002), “[a]n information that enables ‘the accused, the court, and the jury to determine...