Reinhardt v. State, 29A02-0708-CR-676.

• Docket Nº: No. 29A02-0708-CR-676.
• Citation: 881 N.E.2d 15
• Case Date: February 15, 2008
• Court: Court of Appeals of Indiana

881 N.E.2d 15 Andrew REINHARDT, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff. No. 29A02-0708-CR-676. Court of Appeals of Indiana. February 15, 2008.

[881 N.E.2d 16]

S. Neal Ziliak, Noblesville, IN, Attorney for Appellant

Stephen R. Carter, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Senior Judge.

Andrew Reinhardt (Reinhardt) was charged with Dealing Cocaine as a Class A felony alleging that he "did knowingly deliver cocaine to a confidential informant in

881 N.E.2d 17

an amount greater than three (3) grams." Appellant's App. at 10. (Emphasis Supplied). The evidence reflected that Reinhardt delivered cocaine to John May who in turn, and not in Reinhardt's presence, delivered the cocaine to a confidential informant.

It is Reinhardt's appellate contention that there is a fatal variance between the charge and the evidence in that he did not deliver the cocaine to the confidential informant.¹ As a corollary, he also argues that the variance constitutes fundamental error and therefore the issue was not waived by failure of counsel to object at trial.²

I. Variance

A variance is an essential difference between proof and pleading. Childers v. State, 813 N.E.2d 432 (Ind.Ct.App. 2004). Not all variances, however, require reversal and as a general, proposition, failure to make a specific objection at trial waives any material variance issue. Hall v. State, 791 N.E.2d 257 (Ind.Ct.App.2003). Nevertheless, a variance is deemed fatal if the defendant is misled by the charge in the "preparation and maintenance of his defense, [and if he was] harmed or prejudiced thereby." Childers, id. at 436.

We first observe that Reinhardt was charged with actual delivery of the cocaine not merely possession with intent to deliver. The controlling statute, Ind. Code § 35-48-4-1, specifies that either of such conduct constitutes the crime of "dealing in cocaine." It is our holding that as charged the State was obligated to prove actual delivery of cocaine by Reinhardt. The record shows that the State did so but that the direct delivery was to a person other than as alleged in the charge.

Reinhardt asserts that the variance "related to a specific element of the offense of Dealing in Cocaine, namely a recipient of the delivery." Appellant's Brief at 10. To be sure, the State did allege a specific recipient. However the statute does not set forth that the identity of the recipient must be alleged. We therefore conclude that it is not an essential element of the crime. The act which is criminalized is the act of delivering cocaine. It applies to the deliverer or transferor and not to the recipient and therefore "the latter's identity is not an essential element of the offense." See 28 C.J.S. Drugs and Narcotics, § 158 at p. 750. The State must prove that a delivery took place to someone but not to any particular person.³

This case is not substantially dissimilar to. Hall, in which one of two co-defendants was charged with mutilating an animal by firing "thirty projectiles from a shotgun." 791 N.E.2d at 260. The proof was that the

881 N.E.2d 18

particular defendant used a rifle whereas the other co-defendant was armed with a shotgun. This court noted that the "means used to commit animal cruelty is not an element of the crime," and therefore held there was not a fatal variance. Id. at 261.

Ind.Code § 35-34-1-2 requires the charging information or indictment to "set forth the nature and elements of the offense charged in plain and concise language without unnecessary repetition." (Emphasis supplied). Citing Richardson v. State, 717 N.E.2d 32, 51 (Ind.1999), this court in Bayes v. State, 779 N.E.2d 77, 80 (Ind.Ct.App.2002), repeated the principle that the State is not required to "include detailed factual allegations in the charging instrument" but may nevertheless "choose to do so." We deem the State's phrasing of this charge to be just such a choice. Accordingly, the unnecessary allegation as to the identity of the ultimate recipient of the cocaine is considered surplusage.⁴

Importantly and recently, our Supreme Court discussed the matter of variance, surplusage, and when a conviction must be reversed under allegations of fatal and material variance. In Winn v. State, 748 N.E.2d 352, 356 (Ind.2001) (quoting Mitchem v. State, 685 N.E.2d 671, 676...