Prewitt v. State
| Decision Date | 14 January 2002 |
| Docket Number | No. 10A05-0106-CR-256.,10A05-0106-CR-256. |
| Citation | 761 N.E.2d 862 |
| Parties | Russell Lee PREWITT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Jeffrey D. Stonebraker, Chief Public Defender, Jeffersonville, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Nandita G. Shepherd, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Russell Lee Prewitt was found guilty by a jury of conspiracy to possess cocaine, a Class B felony, and attempted possession of cocaine, a Class C felony. He was convicted and sentenced to sixteen years incarceration for the attempted possession count.1 He now appeals. We affirm.
Prewitt raises five issues for our review, which we restate as follows:
1. Whether the trial court properly allowed the State to amend the charging information eight months after the omnibus date;
2. Whether the trial court properly admitted evidence of prior uncharged misconduct;
3. Whether the trial court properly allowed police testimony regarding why they were undercover at the location where Prewitt was arrested;
4. Whether Prewitt was properly charged with attempted possession as a Class B felony for being within 1,000 feet of a family housing complex when the offense occurred; and
5. Whether there was sufficient evidence to convict Prewitt of attempted possession of cocaine.
Late one evening, Prewitt and his brother's fiancée, Charlotte Cooper, loaded Cooper's van with steaks and cigarettes that they hoped to trade for drugs. They drove to the Greenwood Apartments, a public housing complex in Jeffersonville, Indiana. There, they saw a man standing in the doorway of an apartment. The man was an undercover police officer, Trooper Shaun Hannon. Cooper parked the van and Prewitt walked to the apartment and spoke to Hannon, asking if he could trade merchandise for crack cocaine. Hannon went into the apartment alone, and told Sergeant Myron Wilkerson and Detective Leslie Kavanaugh, who were inside, that a man was outside asking for cocaine. Wilkerson and Kavanaugh went to the door, where Prewitt indicated that he wanted to trade meat and cigarettes for cocaine. The two followed Prewitt back to the van, and when Cooper began showing them the merchandise, Kavanaugh identified himself and arrested both Cooper and Prewitt.
Prewitt was originally charged with conspiracy to possess cocaine, a Class C felony. The information was eventually amended to include two counts: one count of conspiracy to possess cocaine as a Class B felony for being within 1,000 feet of a family housing unit, and one count of attempted possession of cocaine as a Class B felony, also for being within 1,000 feet of a family housing unit. A jury found Prewitt guilty of both charges; however, the conspiracy verdict was later vacated by the trial court. Prewitt now appeals. Additional facts will be provided as necessary.
Prewitt contends that the trial court erred when it allowed the State to amend the charging information to add an additional count eight months after the omnibus date and two weeks prior to a scheduled trial date.
Prewitt was charged with conspiracy to possess cocaine as a Class C felony on January 25, 2000. On January 26, 2000, an initial hearing was held and a jury trial was scheduled for May 23, 2000. March 14, 2000, was set as the omnibus date. Prewitt's trial was twice continued and eventually set for November 28, 2000. On November 15, 2000, the State filed a motion to amend the information, seeking to add Count II, attempted possession of cocaine as a Class C felony pursuant to Indiana Code section 35-34-1-5(c). A hearing on the State's motion was held on November 22, 2000, at the conclusion of which, the State's motion was granted, the amended information was filed, and an initial hearing was held on Count II. On November 27, 2000, the parties met for a final pre-trial conference and the State orally moved to again amend the information. The substance of the charges was not changed by this second amendment; however, the charges were elevated from Class C felonies to Class B felonies due to the proximity to a family housing unit. The trial scheduled for the next day was continued at Prewitt's request. A hearing was held on December 6, 2000 on the State's request to amend the charges. Prewitt objected. After several more continuances, Prewitt's trial on the two Class B felony counts commenced on January 16, 2001.
At the hearing on November 27, 2000,2 the State summarized its motion as follows:
The original Information had been a Conspiracy to Possess Cocaine as a Class D3 Felony. The Amendment if the Court allows it will be based upon the very same fact circumstances. We're not alleging new facts. We are simply alleging that as an alternative [to] the Conspiracy conviction ... the Jury could also find that it legally fits the definition of an Attempt crime under the Indiana Statute.
[November 27, 2000] Hearing Transcript at 2. Prewitt objected to the filing of the Amended Information Id. at 3. Prewitt did concede that Count II alleged "the same set of facts." Id. at 3-4. The Court allowed the amendment.
Indiana Code section 35-34-1-5 governs the amendment of informations. In relevant part, the statute provides as follows:
An information may be amended pursuant to this section as to matters of both form and substance. Tripp v. State, 729 N.E.2d 1061, 1064 (Ind.Ct.App.2000). As a general rule, an information may not be amended to change the theory of the case or the identity of the charged offense. Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998). However, an amendment that does not prejudice the defendant's substantial rights, including the right to notice and an opportunity to be heard, is permissible. Tripp, 729 N.E.2d at 1064.
In Tripp v. State, the defendant was charged with operating a motor vehicle with a blood alcohol content greater than.10%. After the omnibus date and twenty-eight days before trial, the State moved to amend the charging information to add a count of operating a motor vehicle while intoxicated. The trial court granted the State's motion and the defendant was notified of the amendment. This court held that the amendment was proper. 729 N.E.2d at 1064-65. The trial court invited the parties to submit briefs and it heard argument regarding the amendment. Thus, the defendant was notified of the amended information and given an opportunity to challenge the amendment. Moreover, the trial court continued the trial at the defendant's request in order to give him adequate time to prepare his defense to the newly added charge. Accordingly, the defendant failed to meet his burden of proving that his substantial rights were prejudiced by the late amendment. Id. at 1065.
Tripp is similar to the case herein. Here, Prewitt was afforded notice of the proposed amendment and an opportunity to be heard at a hearing prior to the trial court allowing the amendment. At the hearing, Prewitt conceded that the facts supporting the new charge were the same facts supporting the original charge. Although he noted the short time between the proposed amendment and the date for trial, he did not move for a continuance4 at that time5 or allege in any way that he would be unable to prepare an adequate defense to the additional charge within the allotted time. Ultimately, the trial was continued for other reasons, and Prewitt was afforded nearly two more months to prepare. Under these circumstances, we hold that Prewitt has failed to demonstrate that his substantial rights were affected. The trial court did not err in allowing the State to amend the charging information to include Count II, attempted possession of cocaine.
Our standard of review in this area is well-settled. The admission of evidence is within the sound discretion of the trial court, and the decision whether to admit evidence will not be reversed absent a showing of manifest abuse of the trial court's discretion resulting in the denial of a fair trial. Berry v. State, 725 N.E.2d 939, 942 (Ind.Ct.App.2000). An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Gibson v. State, 733 N.E.2d 945, 951 (Ind.Ct.App. 2000). In determining the admissibility of evidence, the reviewing court will only consider the evidence in favor of the trial court's ruling and any unrefuted evidence in the defendant's favor. Berry, 725 N.E.2d at 942.
Prewitt contends that the trial court erred in allowing...
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