Laney v. State
| Decision Date | 22 June 2007 |
| Docket Number | No. 49A05-0607-CR-369.,49A05-0607-CR-369. |
| Parties | Samantha LANEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Susan Rayl, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Samantha Laney appeals her conviction and sentence for Class B felony child molesting. We affirm.
We state the issues before us as:
I. whether the trial court properly allowed the State to amend the charging information nine days before trial;
II. whether the trial court properly denied Laney's motion to dismiss the amended charging information;
III. whether there is sufficient evidence to support Laney's conviction; and
IV. whether the trial court properly ruled that Laney's sentence was partially non-suspendable.
The evidence most favorable to the conviction reveals that nineteen-year-old Laney worked at a home daycare run by Patsy Carey called Nana's Place. Twelve-year-old K.F. regularly went to Nana's Place after school. One day in April 2005, Carey left the daycare with K.F.'s mother, Susan Arnold. Laney was left in charge of the children, with K.F. helping watch the younger children.
After Carey and Arnold left, Laney spoke with someone on the phone. After hanging up, Laney told K.F. that Harley Plummer, who was eighteen years old, and some of his friends were coming over. Laney also told K.F. that she told Plummer that K.F. was fifteen years old, and that they "were going to have a threesome." Tr. p. 68. Laney then applied makeup to K.F.; although Laney had applied makeup to K.F. on previous occasions for school, she applied more on this occasion than before. Also, it was Laney's idea to apply the makeup.
Plummer and a male friend then arrived. Plummer and Laney then went into a bedroom while K.F. stayed in the kitchen with the friend. The younger children were watching TV in the living room. After a little while, Plummer called his friend from his cell phone and told the friend to tell K.F. that she was wanted in the bedroom.
K.F. went to the bedroom and saw Laney lying on covers and pillows on the floor, naked from the waist down. Plummer was standing up and also was naked from the waist down. K.F. sat down on the covers and began taking her pants off while Laney put on her pants. Laney then left the bedroom. After she left, Plummer had sexual intercourse with K.F.
After Plummer and K.F. had intercourse, Laney yelled that Arnold had returned. Plummer and his friend tried to exit quickly through the back of the house but could not climb the back fence. They then came back through the house and met Carey and Arnold. Arnold initially was not suspicious of Plummer being there because Laney often had friends visit her at Nana's Place, although she did notice that K.F.'s makeup was done differently than it had been done on other occasions. Later that evening, however, Arnold heard from Carey that something might have happened to K.F. that day. Arnold then spoke to Laney, who admitted that something had happened but that she didn't know why Arnold would be mad at her, because K.F. "wanted to do it." Id. at 115.
On August 3, 2005, the State charged Laney and Plummer jointly with one count of Class B felony child molesting. The charging information read:
On or between April 1, 2005 and April 30, 2005, Harley Plummer and Samantha Laney, being at least eighteen (18) years of age, did perform or submit to sexual intercourse with [K.F.], a child who was then under the age of fourteen (14), that is twelve (12) years of age. . . .
App. p. 27. The omnibus date was October 19, 2005, with a jury trial originally set for October 24, 2005. After several continuances, trial finally was set for May 17, 2006.
On May 5, 2006, the State filed a motion to amend the charging information so that it read as follows:
On or between April 1, 2005 and April 30, 2005 Samantha Laney, being at least eighteen (18) years of age did knowingly or intentionally aid, induce or cause Harley Plummer, being at least eighteen (18) years of age, to commit the crime of child molesting that is: Samantha Laney presented [K.F.], a child whom Samantha Laney knew to be under the age of fourteen (14) years of age, that is twelve (12) years of age, so that Harley Plummer could have sexual intercourse with [K.F.].
Id. at 60. Laney objected to the proposed amendment. However, on May 8, 2006, the trial court permitted the State to make the amendment. On May 12, 2006, Laney moved to dismiss the amended information, which motion the trial court denied.
On May 17, 2006, a jury found Laney guilty of Class B felony child molesting. After hearing the argument of counsel, the trial court concluded that Laney's sentence could not be entirely suspended, pursuant to Indiana Code Section 35-50-2-2's limitation on suspension of sentences for certain crimes, including Class B felony child molesting. It then proceeded to sentence Laney to a term of ten years with four years suspended. Laney now appeals.
Laney first contends the trial court improperly allowed the State to make an untimely, substantive amendment to the charging information shortly before trial and well beyond the omnibus date. Amendments to a charging information are governed by Indiana Code Section 35-34-1-5. See Fajardo v. State, 859 N.E.2d 1201, 1203 (Ind.2007). Our supreme court recently clarified that the version of this statute in effect at the time of Laney's trial categorically prohibited "any amendment as to matters of substance unless made thirty days before the omnibus date for felonies and fifteen days before the omnibus date for misdemeanors." See id. at 1207 (citing Ind.Code § 35-34-1-5(b) (2006)). As for immaterial defects or matters of form, the statute permitted amendment of an information at any time before, during, or after trial, so long as such amendment did not prejudice the substantial rights of the defendant. See id. at 1207 n. 11 (citing I.C. § 35-34-1-5(c)).1
Our supreme court has explained:
[A]n amendment is one of form, not substance, if both (a) a defense under the original information would be equally available after the amendment, and (b) the accused's evidence would apply equally to the information in either form. And an amendment is one of substance only if it is essential to making a valid charge of the crime.
Id. at 1207.2 The court went on to hold in that case that adding a charge of Class A felony child molesting to an information that previously had alleged only one count of Class C felony child molesting clearly was an amendment of substance that had to be, but was not, made thirty days before the omnibus date. See id. at 1207-08.
Laney asserts that the amendment of the information to change the alleged basis of her liability from that of a principal to that of an accessory was a substantive amendment. She claims she was prepared to defend the charge against her by evidence that she did not personally molest K.F. in any way, but such defense was lost when she was alleged only to have aided Plummer in his molesting of K.F. Thus, Laney argues that the State's attempt to amend the information on May 5, 2006, which fell well past the omnibus date of October 19, 2005, was absolutely prohibited by Fajardo's interpretation of Indiana Code Section 35-34-1-5.
However, we conclude that the amended information was not necessary to make a valid charge of a crime and, therefore, was not substantive. See id. at 1207. This is because it is axiomatic in Indiana that one may be charged as a principal yet convicted on proof that he or she aided another in the commission of a crime. Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006). Even where a defendant is charged as a principal, the jury may be instructed on accessory liability where the evidence presented at trial supports such an instruction. See Wright v. State, 690 N.E.2d 1098, 1104 (Ind.1997).
Thus, in this case the State could have proceeded to trial under the original information, alleging that Laney committed Class B felony child molesting as a principal, yet obtained her conviction under an accomplice liability theory. The amended information here, explicitly stating that Laney was an accomplice, was not necessary to obtain Laney's conviction for Class B felony child molesting and, therefore, was not substantive. The amendment was not governed by the time limit for substantive amendments.
The amendment was one of form or immaterial defect only, and the State was entitled to make the amendment at any time, provided Laney's substantial rights were not violated. See Fajardo, 859 N.E.2d at 1207. On this point, we observe that our supreme court has held that due process does not require the State to give a defendant notice that it intends to try him or her as an accomplice rather than a principal. See Taylor, 840 N.E.2d at 338. Even if some notice was necessary, it is clear from the probable cause affidavit attached to the charging information that Laney's alleged involvement in this case was at most aiding and abetting Plummer's molestation of K.F., not molesting K.F. herself, which is consistent with the evidence eventually presented at trial. We cannot say Laney's substantial rights were prejudiced by the State's amendment of the charging information shortly before trial.
Laney contends that even if the information was properly amended, the trial court should have granted her motion to dismiss the amended information. She specifically contends the amended information failed to state the offense with sufficient certainty or failed to state an offense altogether, which are grounds for dismissal under Indiana Code Section 35-34-1-4(a)(4) and (5). The amended information stated:
[I]n Marion County, Indiana . . . On or...
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