Miller v. State

• Decision Date: 26 April 1994
• Docket Number: No. 05A02-9308-CR-442,05A02-9308-CR-442
• Citation: 634 N.E.2d 57
• Parties: Michael MILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 57

634 N.E.2d 57

Michael MILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 05A02-9308-CR-442.

Court of Appeals of Indiana,

Second District.

April 26, 1994.

Thomas A. Brown, Hartford City, for appellant.

Pamela Carter, Atty. Gen., and Deana McIntire Smith, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

KIRSCH, Judge.

STATEMENT OF THE CASE

Michael Miller was convicted of Residential Entry, ¹ Battery, ² Reckless Driving, ³ Criminal Mischief, ⁴ Resisting Law Enforcement, ⁵ and Criminal Recklessness ⁶ following a bench trial. He now appeals his convictions and sentences for Resisting Law Enforcement and Criminal Recklessness.

We affirm.

ISSUES

We restate the issues for our review as:

1. Whether defects in the charging informations constitute reversible error.

2. Whether there was sufficient evidence to sustain Miller's convictions.

3. Whether the trial court erred in imposing consecutive sentences.

4. Whether the trial court failed to consider mitigating circumstances in determining Miller's sentence.

FACTS

The facts most favorable to the judgments of conviction establish that shortly before midnight on January 4, 1993, Miller went to Bryan Hardy's trailer, forced his way in and assaulted Hardy. After a struggle, in which Miller damaged some of Hardy's personal property, Hardy escaped and called for a friend to summon the police. The city and county police were advised of the disturbance at Hardy's trailer and that Miller was involved. When the police arrived at Hardy's trailer, Miller had already left. Later, Hartford City Police Officer Dennis Nottingham observed Miller's car and signalled with his lights and siren for Miller to stop. Miller increased his speed, ran several stop signs and almost collided with Blackford County Deputy Sheriff Joseph Jenkinson. Miller arrived at his house with the police in pursuit and went into the house. The police followed Miller into his house and, after a struggle, subdued and arrested him. Additional facts are supplied where necessary.

DISCUSSION AND DECISION

ISSUE ONE: DEFECTS IN THE CHARGING INFORMATIONS

Miller first contends that omission of the word "forcibly" from the Resisting Law Enforcement information rendered it inadequate. The information charging Miller, in its essential parts, alleged:

"That on or about the 5th day of January, 1993, in Blackford County, State of Indiana, Michael Miller, did knowingly or intentionally resist, obstruct or interfere with a law enforcement officer or a person assisting the officer, to-wit: Dennis Nottingham, law enforcement officers were lawfully engaged in the execution of their duties as officers; and did thereby commit Resisting Law Enforcement, a Class "A" Misdemeanor.

All of which is contrary to the form of the statute in such cases made and provided, to-wit: I.C. 35-44-3-3, and against the peace and dignity of the State of Indiana."

Record at 11.

The statute under which Miller was convicted provides, in part, that: "A person who knowingly or intentionally: (1) forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of his duties as an officer; .... commits resisting law enforcement, a Class A misdemeanor...." IC 35-44-3-3(a) (1988 Ed.) (emphasis added). The forcible nature of the resistance, obstruction or interference is an essential element of the offense which the state is required to prove at trial. Spangler v. State (1993), Ind., 607 N.E.2d 720, 723.

Both the Sixth Amendment to the United States Constitution and Article I, § 13 of the Indiana Constitution require that a defendant be informed of the nature and cause of the accusation against him. This mandate is given effect through IC 35-34-1-2(a)(4) which requires that the information be in writing "setting forth the nature and elements of the offense charged in plain and concise language without unnecessary repetition...." The information should state the offense in the language of the statute or in words that convey a similar meaning. Smith v. State (1984), Ind., 465 N.E.2d 702, 704. Minor variances from the language of the statute do not make an information defective, so long as the defendant is not misled or an essential element of the crime is not omitted. Id. The information charging Miller with Resisting Law Enforcement was defective for not alleging the forcible nature of the act, an essential element of the crime; however, Miller did not challenge this defect until appeal.

The proper method to challenge deficiencies in a charging information is to file a motion to dismiss the information, no later than twenty days before the omnibus date. IC 35-34-1-4(b)(1) (1988 Ed.); Zavesky v. State (1990), Ind.App., 558 N.E.2d 1124, 1126. Failure to timely challenge the omission ordinarily would result in waiver of the issue, Zavesky, 558 N.E.2d at 1126, unless the omission was so prejudicial to Miller's rights that fundamental error resulted. Marshall v. State (1992), Ind.App., 602 N.E.2d 144, 147, trans. denied.

For omission of the word "forcibly" from the information to constitute fundamental error, it must mislead the defendant or fail to give him notice of the charges against him so that he is unable to prepare a defense to the accusation. Myers v. State (1987), Ind., 510 N.E.2d 1360, 1367. In this case, the information specified the date of the offense, the officer Miller resisted, and the statute which made that resistance a crime. At trial, Miller did not object to testimony by the state that his resistance was forcible; instead, he contended that he had not resisted at all. On appeal, Miller has not demonstrated that he was misled or unable to prepare a defense. Miller was aware of the events constituting the crime and was able to defend against the accusation. Therefore, although an essential element of the crime was omitted from the information, we conclude that omission did not prevent Miller from presenting a defense to the charge and was not fundamental error.

Miller also contends that use of the wrong date in the information charging him with Criminal Recklessness requires reversal of that conviction. That information specified that the events occurred on or about January 5, 1992, while at trial it was shown that the events upon which the charge was based occurred on January 4 and 5, 1993. The use of the date 1992, instead of the correct date 1993, is clearly the result of a typographical error: the common error of continuing to use the previous year's date for the first week or two in January. Our supreme court has held that such a typographical error cannot be the basis of reversing a criminal conviction. See Trout v. State (1886), 107 Ind. 578, 8 N.E. 618 (error in date in information is mere clerical error and is not available on appeal in absence of motion to quash for uncertainty). We reach the same result today.

The purpose of the information was to advise Miller of the crime with which he was charged so that he could prepare his defense. See Myers, 510 N.E.2d at 1366. The specific date on which the offense occurred was not an essential element of that offense. Miller's testimony at trial shows that he understood that the charge of Criminal Recklessness was based upon the events of the evening of January 4-5, 1993, which events also formed the basis of the other charges brought against him. By failing to object during the trial to the variance in proof, Miller waived any error in the variance between the date of the offense as charged in the information and as proved at trial. See Hobson v. State (1986), Ind.App., 495 N.E.2d 741, 746 (failure to object to one to two year variance between date of offense as charged in information and proved at trial waives issue). Miller has not shown that the preparation of his defense was impeded, nor has he demonstrated how he was otherwise prejudiced by the variance between the dates of the offense as charged and as proved. He has, therefore, failed to show that the variance was fundamental error and has waived the issue on appeal. Id.

ISSUE TWO: SUFFICIENCY OF THE EVIDENCE

I Resisting Law Enforcement

Miller contends that the State failed to prove him guilty of Resisting Law Enforcement because it failed to show a forceful act committed in resisting the police officers. We agree with Miller that the State was required to prove a forcible act to convict Miller of resisting law enforcement. See Spangler, 607 N.E.2d at 723. The fatal flaw in Miller's argument is his insistence that this Court recognize only those factors which support his innocence and ignore the evidence which supports his conviction.

The State must prove the accused guilty of each element of the crime beyond a reasonable doubt at trial. Matthew v. State (1972), 154 Ind.App. 182, 289 N.E.2d 336, 340. When we review the sufficiency of the evidence supporting a conviction, we may not reweigh the evidence or judge the credibility of the witnesses. Webb v. State (1991), Ind.App., 575 N.E.2d 1066, 1071, trans. denied. Where the evidence is in conflict, we are bound to consider only that evidence which is most favorable to the judgment of the trial court. Id. If there is substantial evidence of probative value supporting the conviction, we must affirm. Adams v. State (1989), Ind.App., 542 N.E.2d 1362, 1366.

The arresting officers testified that Miller resisted being handcuffed, that he fought being put into the police car and that during the entire episode he tried to head-butt and kick the officers. This evidence together with the officers' further testimony that Miller continued to struggle and fight until he was put into a cell is sufficient evidence of forcible resistance to support his conviction. See Gamble v. State (1992), Ind.App., 591 N.E.2d 142, 145 (conviction for resisting law enforcement upheld when defendant refused to let police handcuff him and struggled...