Johnson v. State, No. 49S05-0008-CR-506.

Docket NºNo. 49S05-0008-CR-506.
Citation740 N.E.2d 118
Case DateJanuary 03, 2001
CourtSupreme Court of Indiana

740 N.E.2d 118

Henry JOHNSON, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below)

No. 49S05-0008-CR-506.

Supreme Court of Indiana.

January 3, 2001.


740 N.E.2d 119
Patricia Caress McMath, Indianapolis, Indiana, Attorney for Appellant

Karen M. Freeman-Wilson, Attorney General of Indiana, Christopher L. Lafuse,

Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

SHEPARD, Chief Justice.

This interlocutory appeal arose when a prosecutor missed a deadline for notifying the defendant of the State's intent to use Indiana Rule 404(b) evidence in a molestation case. The trial court excluded the evidence, then dismissed the charge at the State's request, over the defendant's objection. Nine days later, the prosecutor refiled the original sexual misconduct charge along with ten additional charges that partially encompassed the evidence the court had excluded. The Court of Appeals held that the refiling was proper. Johnson v. State, 732 N.E.2d 259 (Ind.Ct.App.2000).

Under the facts of this case, we conclude the trial court abused its discretion by allowing the prosecutor to dismiss and refile as a tactic to circumvent a proper evidentiary ruling, and to punish the defendant for exercising his procedural rights by piling on additional charges. Accordingly, we reverse and remand.

Facts and Procedural History

Defendant Johnson worked as an adolescent guidance specialist in alcohol and drug treatment at Fairbanks Hospital. On or about February 10, 1998, Johnson allegedly had sexual intercourse with a sixteen-year-old detainee during routine room checks. On August 26, 1998, the State charged Johnson with sexual misconduct, a class D felony.

On September 9, 1998, the trial court entered an initial hearing discovery order requiring the State to give thirty days notice of intent to present any evidence of prior misconduct under Rule 404(b).1 The State gave such notice on April 23, 1999,

740 N.E.2d 120
when it filed its final witness and exhibit list, including as witnesses four other female Fairbanks Hospital patients. Although the State had listed all four as potential witnesses in the original charging document, Johnson filed a motion in limine on April 26, 1999, asserting that the State had failed to give formal 404(b) notice disclosing the nature of the testimony to be offered by these witnesses

The trial court granted the motion in limine and excluded the 404(b) evidence. The prosecutor responded with a motion to dismiss the charge, which the court also granted. Johnson immediately objected in writing, stating that he was ready to proceed to trial and arguing that, based upon the State's declared intent to refile the case, the dismissal should be with prejudice.2

On May 5, 1999, the State refiled the original charge and added ten more counts: rape and criminal deviate conduct related to the original victim; rape, criminal deviate conduct, sexual misconduct, criminal confinement and intimidation related to one excluded witness; battery and sexual battery of another excluded witness; and attempted promotion of prostitution of both excluded witnesses. Johnson moved for dismissal of all charges, the trial court denied the motion, and this appeal ensued.

Refiling as a Tactic

This Court discussed dismissal and refiling of charges as a prosecutorial tactic in Davenport v. State, 689 N.E.2d 1226 (Ind. 1997), modified on reh'g, 696 N.E.2d 870 (Ind.1998). In Davenport, the State originally charged a defendant with murder. 689 N.E.2d at 1229, 696 N.E.2d at 871. Four days before trial, the State sought to add charges of felony murder, attempted robbery, and auto theft. The prosecutor requested dismissal after he was denied permission to amend the information, and immediately refiled all four charges. Id.

This Court held that "[w]hile courts have allowed the State significant latitude in filing a second information, the State cannot go so far as to abuse its power and prejudice a defendant's...

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7 practice notes
  • State v. Al-Sayagh, No. S-03-906.
    • United States
    • Supreme Court of Nebraska
    • 10 Diciembre 2004
    ...had been prejudiced and reversed the convictions on the subsequently added charges. A similar issue was presented in Johnson v. State, 740 N.E.2d 118 (Ind.2001). There, the defendant was charged with sexual misconduct. When the trial court ruled that certain evidence offered by the state sh......
  • State v. Al-Sayagh, 268 Neb. 913 (NE 4/10/2004), No. S-03-906.
    • United States
    • Supreme Court of Nebraska
    • 10 Abril 2004
    ...had been prejudiced and reversed the convictions on the subsequently added charges. A similar issue was presented in Johnson v. State, 740 N.E.2d 118 (Ind. 2001). There, the defendant was charged with sexual misconduct. When the trial court ruled that certain evidence offered by the state s......
  • Howell v. State, No. 46A05–1409–CR–446.
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Junio 2015
    ...). “The question of substantial prejudice is a fact-sensitive inquiry, not readily amenable to bright-line rules.” Johnson v. State, 740 N.E.2d 118, 120 n. 3 (Ind.2001).[23] Howell argues that “[c]learly, dismissing the prior cause and adding Count III to the underlying cause was an attempt......
  • Myers v. State, No. 09A02-1105-CR-598
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 Abril 2012
    ...1998). The State may not re-file if doing so will prejudice the substantial rights of the defendant. Id.; see also Johnson v. State, 740 N.E.2d 118, 121 (Ind. 2001) (State may not circumvent adverse court order or prejudice defendant's substantial rights). Here, Myers argues that "[t]h......
  • Request a trial to view additional results
7 cases
  • State v. Al-Sayagh, No. S-03-906.
    • United States
    • Supreme Court of Nebraska
    • 10 Diciembre 2004
    ...had been prejudiced and reversed the convictions on the subsequently added charges. A similar issue was presented in Johnson v. State, 740 N.E.2d 118 (Ind.2001). There, the defendant was charged with sexual misconduct. When the trial court ruled that certain evidence offered by the state sh......
  • State v. Al-Sayagh, 268 Neb. 913 (NE 4/10/2004), No. S-03-906.
    • United States
    • Supreme Court of Nebraska
    • 10 Abril 2004
    ...had been prejudiced and reversed the convictions on the subsequently added charges. A similar issue was presented in Johnson v. State, 740 N.E.2d 118 (Ind. 2001). There, the defendant was charged with sexual misconduct. When the trial court ruled that certain evidence offered by the state s......
  • Howell v. State, No. 46A05–1409–CR–446.
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Junio 2015
    ...). “The question of substantial prejudice is a fact-sensitive inquiry, not readily amenable to bright-line rules.” Johnson v. State, 740 N.E.2d 118, 120 n. 3 (Ind.2001).[23] Howell argues that “[c]learly, dismissing the prior cause and adding Count III to the underlying cause was an attempt......
  • Myers v. State, No. 09A02-1105-CR-598
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 Abril 2012
    ...1998). The State may not re-file if doing so will prejudice the substantial rights of the defendant. Id.; see also Johnson v. State, 740 N.E.2d 118, 121 (Ind. 2001) (State may not circumvent adverse court order or prejudice defendant's substantial rights). Here, Myers argues that "[t]h......
  • Request a trial to view additional results

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