Phillips v. State
| Decision Date | 13 November 1986 |
| Docket Number | No. 49A02-8604-CR-134,49A02-8604-CR-134 |
| Citation | 499 N.E.2d 803 |
| Parties | Francis E. PHILLIPS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Sheila Suess Kennedy, Mears, Crawford, Kennedy & Eichholtz, Indianapolis, for defendant-appellant.
Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Defendant/appellant Francis E. Phillips was charged by information with two counts of child molesting pursuant to IND.CODE Sec. 35-42-4-3(c) and (d) (1982). The acts comprising the charges were alleged to have occurred on or about June 1, 1985. The defendant entered a notice of alibi defense pertaining to June 1, 1985. The trial court then granted a motion by the State to amend the information and the State added Count III which charged child molesting, a Class C felony, pursuant to IND.CODE Sec. 35-42-4-3(c) occurring between February 15 and March 1, 1985.
The defendant was found guilty of Count III only after a bench trial and was sentenced to five years imprisonment, plus costs. Phillips appeals this determination alleging the trial court erred in permitting the amendment to the information, failing to mitigate the sentence and finding sufficient evidence to support the judgment.
Phillips urges that the amended information was too vague in that the acts are alleged to have occurred "between February 15, 1985 and March 1, 1985."
IND.CODE Sec. 35-34-1-2(a)(5) and (6) (1982) provide:
"(a) The indictment or information shall be in writing and allege the commission of an offense by:
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(5) stating the date of the offense with sufficient particularity to show that the offense was committed within the period of limitations applicable to that offense;
(6) stating the time of the offense as definitely as can be done if time is of the essence of the offense[.]"
In addition, case law has established the standard for substantial compliance with these statutory requirements:
McCune v. State (1986), Ind., 491 N.E.2d 993, 994.
Phillips was charged with child molesting. The time of the offense is not of the essence and therefore did not have to be specifically alleged pursuant to the statute. The information only had to "state the time 'with sufficient particularity to show that the offense was committed within the statute of limitations.' " Kelsie v. State (1976), 265 Ind. 363, 354 N.E.2d 219, 223, cert. denied, 429 U.S. 1094, 97 S.Ct. 1108, 51 L.Ed.2d 541. Such a determination of the case at bar is consistent with that of Merry v. State (1975), 166 Ind.App. 199, 335 N.E.2d 249, trans. denied, wherein this Court found legally sufficient an information charging incestuous sexual intercourse " 'on or about the fifth day of December, 1970 to on or about the fifth day of September, 1973 ...,' " Id., 335 N.E.2d at 256 (), against a challenge by the defendant that the information was insufficient to inform the accused of the charge against him.
Phillips avers, however, that because of the nonspecific date of the acts, he is subjected to the possibility of subsequent prosecutions for the same acts within the same time frame in violation of his right to be free from double jeopardy. Initially it should be noted that it is the record, not just the indictment or information, which provides protection from subsequent prosecutions for the same offense, U.S. v. Roman (7th Cir.1984) 728 F.2d 846, cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832, Russell v. U.S. (1962) 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240, as it is the imposition of two sentences for the same injury to the same victim inflicted by the same act of the defendant which violates the federal and state prohibitions against double jeopardy. Hansford v. State (1986), Ind., 490 N.E.2d 1083, 1089.
As the plea of double jeopardy is an affirmative defense, the burden is on the defendant to establish the fact both prosecutions are for the same offense. U.S. v. Roman, supra. The defendant must establish that the offenses charged require proof of the same facts. If one charge requires proof of an additional fact that the other does not, the offenses are not the same and the defendant is not twice put in jeopardy. Smith v. State (1985), Ind., 477 N.E.2d 857. Thus the determination focuses on whether or not the offenses are the same, not whether they arose from the same acts or circumstances. Id.
These rules as to pleading and proving double jeopardy will apply to the defendant in exactly the same way they apply to all other defendants if he is subsequently charged with an offense, and any offense covered by the present conviction could not be the subject of a subsequent conviction. Therefore there is no double jeopardy problem created by the amended information.
In addition, Phillips argues the amendment to the information was erroneously allowed because the addition of Count III was simply to avoid Phillips' alibi defense to Counts I and II. The amendment, however, was accomplished within the requirements of IND.CODE Sec. 35-34-1-5 and was therefore properly granted. The defendant's original defense, i.e. alibi for June 1, 1985, was equally available after the amendment and the defendant offered no defense which was precluded by the amendment. Therefore there...
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...of all occurrences, [they] gave testimony indicating approximate time frames by reference to other activities." Phillips v. State (1986), Ind.App., 499 N.E.2d 803, 806. Contrary to Andrews's contention, the testimony of the victims was not uncorroborated; indeed, the testimony of each daugh......
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...that the crime occurred within the statute of limitations or at any time prior to the filing of the information. See Phillips v. State (1986), Ind.App., 499 N.E.2d 803. The State proved that the offense against L.R. occurred in May of 1982. As this was within the statutory time period, (see......
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...which provides protection from subsequent prosecutions for the same offense. Buzzard, 712 N.E.2d at 551-52 (citing Phillips v. State, 499 N.E.2d 803, 805 (Ind.Ct.App.1986)). Here, a review of the Record would clearly disclose the offense for which Garner is currently being punished and adeq......
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