Hurst v. State, No. 64A03-0710-CR-490.
| Citation | 890 N.E.2d 88 |
| Decision Date | 17 July 2008 |
| Docket Number | No. 64A03-0710-CR-490. |
| Parties | Mark HURST, Appellant, v. STATE of Indiana, Appellee. |
| Court | Court of Appeals of Indiana |
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Mark Hurst appeals his conviction and sentence for Battery Resulting in Serious Bodily Injury,1 a class C felony. He presents the following restated issues for review:
1. Did the trial court properly allow the State to amend the charging information fifteen months after the original omnibus date?
2. Did the State present sufficient evidence of serious bodily injury to support the class C felony battery conviction?
3. Did the trial court properly sentence Hurst?
We affirm.
Hurst and Rebecca Senovitz had been in a relationship and had lived together on and off for approximately five years. They had a son together, who was born on January 4, 2002. Their relationship was tumultuous, to say the least, with a history of domestic violence and restraining orders placed against both parties. In fact, less than two weeks before the instant offense Hurst had been arrested for violating a restraining order placed against him by Senovitz. Further, he was already on probation and serving weekends in jail for a similar violation committed the month before.
On the evening of July 22, 2005, Senovitz arranged for her twelve-year-old brother to babysit for her son while she went to the Junkyard Bar with a friend. Hurst had left the home earlier that day to serve his weekend jail time. He was released around 8:00 that night due to the jail being overcrowded. While Senovitz was preparing to enter the bar, Hurst unexpectedly appeared. They were eventually allowed to enter the bar together after Senovitz proved to the bouncer that the restraining order against Hurst had been lifted. After a couple hours, a disagreement arose between Hurst and Senovitz resulting in Senovitz smacking Hurst in the face. She then left and was given a ride to another bar. Hurst stayed at the Junkyard Bar until closing. Senovitz also left the other bar at closing, getting a ride home with a man whom she had met at the bar. Senovitz had the man drop her off about a block from her home. As Senovitz walked home, Hurst ran after the man's truck, said something to the man, and then punched him. The man drove off. Senovitz went into her home, apparently unaware of the altercation outside.
Soon thereafter, Hurst arrived at the home and kicked in the back door to gain entry. Hurst struck Senovitz in the back of her head, and she fell to the ground. As Hurst regained consciousness, she recalled being punched and kicked multiple times and screamed at by Hurst. She was kicked in the head, stomach, and ribs. Senovitz lost consciousness several times during the attack. Hurst ripped her clothing, including her underwear, and poured dish soap on her. Hurst called her many vulgar names and accused her of being "dirty" because he believed she had just had sex with the man that dropped her off. Transcript at 497. Hurst put the dish soap into Senovitz's vagina, as she screamed for him to stop and told him it burned. By Hurst's own admission at trial, he kicked Senovitz two or three times and hit her harder than he ever had in the past.
At some point during the attack, Senovitz's brother attempted to call 911 with his cell phone, but Hurst broke the phone in half. As she pleaded for Hurst to stop, Senovitz directed her brother to take her three-year-old son into the bedroom. Senovitz's brother beat on the walls of the duplex for help, to no avail. After a couple hours, Hurst threw a blanket over Senovitz's half-naked body as she lay on the floor in the kitchen. He gave Senovitz's brother twenty dollars to not tell anyone what had happened and then left the home.2 Senovitz attempted to go to a neighbor for help but lost consciousness on her front lawn. Her brother then went to the neighbor's house and called police.
When the police arrived, Senovitz had severe swelling and redness to her face. She was taken to the hospital by ambulance, where she reported "intolerable" pain to the sexual assault nurse. Id. at 208. She had multiple abrasions, contusions, and tenderness over her entire body (including her thighs, ribs, back, stomach, face, and head). While Senovitz hurt all over, her main complaints to the nurse of "severe pain" concerned the injuries to her head and ribs. Id. at 213. Over the course of a few hours, Senovitz was given three doses of Morphine and then a dose of Dilaudid, a "very strong, quick-acting pain medication". Id. at 209. She was released from the hospital that day with a prescription for Darvocet to treat her pain. Senovitz's pain lasted for days.3
The State charged Hurst with class B felony rape (Count I), class D felony residential entry (Count II), class A misdemeanor domestic battery (Count III), and class A misdemeanor interference with reporting a crime (Count IV). The original omnibus date was set for and the hearing held on October 7, 2005. Thereafter, the scheduled jury trial was continued numerous times on Hurst's motion.
On January 12, 2007, the State amended the information, changing the charge in Count II to class B felony burglary and the charge in Count III to a class C felony battery. Thereafter, on January 25, 2007, the State amended the information once again. Under the amended information, Hurst was charged with class A felony rape, class B felony burglary, class C felony battery, class D felony theft, and class A misdemeanor interference with reporting a crime.
On April 12, 2007, Hurst filed a motion to dismiss the amended charges because they were not filed at least thirty days before the omnibus date. The motion was based upon our Supreme Court's recent decision in Fajardo v. State, 859 N.E.2d 1201 (Ind.2007). The trial court denied Hurst's motion the following day. On May 14, Hurst petitioned the court to have the issue certified for interlocutory appeal. The trial court, on May 25, denied the petition for certification for interlocutory appeal. In doing so, the court noted that effective May 8, 2007, the Indiana General Assembly amended Ind.Code Ann. § 35-34-1-5 (West, PREMISE though 2007 1st Regular Sess.), the statute that governs amendments to a charging information. Under the amended statute, the State's proposed amendments were not untimely.
Hurst's jury trial began on July 30, 2007. The jury ultimately found him guilty of class C felony battery and class A misdemeanor interfering with reporting a crime, but acquitted him of the rape, burglary, and theft charges. On August 31, 2007, the trial court sentenced Hurst to eight years in prison for the battery conviction and a consecutive one-year term in the Porter County Jail for the misdemeanor conviction. On appeal, Hurst challenges only his conviction and sentence for battery.
Once again relying upon Fajardo, Hurst argues that the trial court erroneously denied his motion to dismiss the amended charges that were filed after the omnibus date. Hurst acknowledges that the legislature amended I.C. § 35-34-1-5 in response to Fajardo, but he asserts we must apply the version of the statute in effect at the time of the instant crime. The State, on the other hand, argues that we should apply the statute in effect at the time of trial.
At the time Hurst committed the instant offenses, I.C. § 35-34-1-5(a) permitted an amendment to the charging information at any time "because of any immaterial defect," and listed nine examples. Similarly, subsection (c) permitted "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." Subsection (b), however, expressly limited the time for certain other amendments as follows:
(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.
In January 2007, our Supreme Court handed down its opinion in Fajardo. In that case, the court interpreted I.C. § 35-34-1-5(b) and held that when an individual is charged with a felony, amendments to matters of substance are permissible only if made more than thirty days before the omnibus date, regardless of whether the defendant's substantial rights were prejudiced. Fajardo v. State, 859 N.E.2d 1201. The legislature quickly responded to Fajardo by revising I.C. § 35-34-1-5. Subsection (b) of that statute now reads as follows:
(b) The indictment or information may be amended in matters of substance and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant at any time:
(1) up to:
(A) thirty (30) days if the defendant is charged with a felony; or
(B) fifteen (15) days if the defendant is charged only with one (1) or more misdemeanors;
before the omnibus date; or
(2) before commencement of trial;
if the amendment does not prejudice the substantial rights of the defendant....
I.C. § 35-34-1-5(b). Under the revised subsection (b), the State can make an amendment to a matter of substance at any time before the commencement of trial so long as the amendment does not prejudice the defendant's substantial rights. The revised I.C. § 35-34-1-5 became effective on May 8, 2007.
As set forth above, the parties disagree on which version of the statute applies here — the former version of the statute as interpreted by Fajardo or the...
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