Mitchell v. State
| Decision Date | 10 June 1999 |
| Docket Number | No. 41A01-9805-CR-189.,41A01-9805-CR-189. |
| Parties | Jeffrey MITCHELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Peter D. Nugent, Indianapolis, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Stephen K. Tesmer, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
In March of 1997, the State charged Jeffrey Mitchell with Residential Entry, a Class D felony.1 Following an initial hearing, the trial court scheduled a jury trial for July 22, 1997. Eleven days before trial, the State filed a motion to amend the information to include an Habitual Offender charge, which the trial court granted. Following a jury trial, Mitchell was found guilty of residential entry and was determined to be an habitual offender. The trial court sentenced Mitchell to serve two years for the residential entry conviction, enhanced by three years for the habitual offender finding, for a total of five years. Mitchell now appeals.
We affirm.
Mitchell raises three issues for review:
1. Whether the trial court erred when it allowed the State to amend the information to include an habitual offender charge eleven days before trial.
2. Whether the trial court committed fundamental error when it failed to instruct the jury on the meaning of "prior unrelated felony."
3. Whether the State presented evidence sufficient to sustain Mitchell's residential entry conviction.
In December of 1996, Robin Thrasher lived in a mobile home she owned and which was titled solely in her name. Mitchell, who was dating Thrasher, also lived in the mobile home with Thrasher's permission. Mitchell and Thrasher began having problems in their relationship, and Mitchell moved in and out of the mobile home on several occasions. On March 14, 1997, while Mitchell was staying in the mobile home, the two argued and Mitchell left. Thrasher then packed Mitchell's clothes in a duffle bag and placed a note on the bag instructing him to stay out of the house. Thrasher placed the bag outside, locked the door and left. Thrasher returned to her home the following day to find the house unlocked and Mitchell's bag inside. As a result, she called the police. Police arrived and determined that a window in the home had been opened. Thrasher discovered a note from Mitchell inside her house. She then locked the door and left to stay with her mother.
On March 24, 1997, Thrasher again returned to her home, and Mitchell opened the door from the inside as she began to unlock it. The two argued about Mitchell's presence, and Thrasher agreed to drive Mitchell to Indianapolis. Thrasher did not return to her home that day, but when she called her house the following day to check her telephone messages, Mitchell answered. Thrasher then called the police to report Mitchell's presence in her home without her consent.
When police arrived, they discovered Mitchell walking outside and an open window in the back of Thrasher's home. Mitchell was arrested and charged with residential entry.
Mitchell first argues that the trial court erred when it granted the State's motion to amend the information to include an habitual offender charge eleven days before trial. The State counters that Mitchell's failure to seek a continuance once the court allowed the new charge results in waiver and that it met its burden of showing good cause for the belated charge.
Indiana Code Section 35-34-1-5(e) provides:
An amendment of an indictment or information to include a habitual offender charge under IC XX-XX-X-X must be made not later than ten (10) days after the omnibus date. However, upon a showing of good cause, the court may permit the filing of a habitual offender charge at any time before the commencement of the trial.
In Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind.1996), the State filed an amendment to the habitual offender charge on the eve of trial, and the defendant objected pursuant to Indiana Code Section 35-34-1-5(e). In deciding the issue on appeal, our supreme court first noted that Indiana Code Section 35-34-1-5(e) did not govern because that section "applies when the State seeks to add an habitual offender charge." Id. Instead, the court determined that Indiana Code Section 35-34-1-5(c),2 which allows the prosecutor to amend an information absent prejudice to the defendant's substantial rights, controlled. Id. After finding that the defendant did not show prejudice, the court stated that "even if § 35-34-1-5(e) were to apply, defendant has waived this issue for appeal" because he had failed to seek a continuance once the court allowed the State to file the amendment. Id.
Recently, in Attebury v. State, 703 N.E.2d 175, 180 (Ind.Ct.App.1998), this court interpreted Haymaker to mean that if Indiana Code Section 35-34-1-5(e) applied to amendments to habitual offender charges, the defendant would be required to seek a continuance to preserve the error for appeal. It follows from the majority opinion in Attebury that, if the State files a new belated habitual offender charge, the defendant need not move for a continuance to preserve the alleged error for appeal.
In his dissent, however, Judge Kirsch disagreed with the majority's narrow interpretation of Haymaker. Id. at 181 (Kirsch, J., dissenting). According to the dissent, the supreme court in Haymaker expressly rejected the contention that a defendant is relieved from his obligation to seek a continuance when the State files a new habitual offender charge when it stated "`even if XX-XX-X-X(e) were to apply, defendant has waived this issue for appeal.'" Id. (quoting Haymaker, 667 N.E.2d at 1114). We agree with Judge Kirsch's opinion and believe that the majority in Attebury misinterpreted our supreme court's ruling in Haymaker.3 We read Haymaker to hold that once the trial court allows either an amendment to an habitual offender charge under subsection (c), or the addition of an habitual offender charge under subsection (e), the defendant must seek a continuance to preserve the alleged error for appeal. In this case, Mitchell failed to do so. Thus, we conclude that Mitchell waived the issue for appeal.
Next, Mitchell claims that the trial court erred when it failed to provide the jury with a definition of "prior unrelated felony." A party cannot complain of incomplete or omitted instructions when he failed to tender any instruction on the point of law. Gonzales v. State, 642 N.E.2d 216, 217 (Ind.1994). Additionally, the defendant's failure to object to allegedly erroneous instructions results in waiver. Burton v. State, 526 N.E.2d 1163, 1165 (Ind.1988). Mitchell neither objected to the instructions given at trial, nor did he tender his own instruction.
Mitchell attempts to circumvent waiver by arguing that the court's failure to give the omitted instruction sua sponte constitutes fundamental error. An error may be fundamental and, thus, not subject to waiver if it is a "substantial blatant violation of basic principles." Winegeart v. State, 665 N.E.2d 893, 896 (Ind.1996). Fundamental error is that which, if not corrected, would deny the defendant fundamental due process. Brown v. State, 691 N.E.2d 438, 444 (Ind.1998). The error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. Id.
In this case, Final Instruction # 5 provided:
Additionally, Final Instruction # 5 stated:
Jury instructions are to be considered as a whole and in reference to each other. Edgecomb v. State, 673 N.E.2d 1185, 1186 (Ind.1996). Despite Mitchell's contention, the absence of a jury instruction which specifically defined "prior unrelated felony" does not constitute fundamental error because the court's instructions contained an adequate explanation of that term. Specifically, Final Instruction # 4 and Final Instruction # 5, when read together, instructed the jury on the meaning of "prior unrelated felony."4
In addition, in Lyons v. State, 600 N.E.2d 560, 567 (Ind.Ct.App.1992), we held that when the evidence at trial clearly establishes that the felonies committed by the defendant occurred in the proper sequence, no fundamental error results from the absence of an instruction defining "prior unrelated felony." He...
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