Todd v. State

Decision Date29 January 1991
Docket NumberNo. 71A03-9007-CR-302,71A03-9007-CR-302
PartiesToby D. TODD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Edward C. Hilgendorf, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Toby Todd appeals from his convictions for operating a motor vehicle while intoxicated 1 and for reckless driving, 2 and also challenges the finding that he refused a chemical breath test. 3 He presents the following three issues for our review:

1. Whether the trial court erred by allowing the State to amend Count I, changing the charge from refusing a chemical test to operating a motor vehicle while intoxicated.

2. Whether the arresting officer adequately advised Todd of the consequences of refusing the chemical test.

3. Whether the finding of reckless driving was supported by sufficient evidence.

Affirmed in part; vacated in part.

The facts most favorable to the judgment indicate that on June 19, 1989, at 2:00 a.m., Mishawaka Police Officer Scott Parker was conducting a traffic stop at the entrance to a shopping center when he heard the squealing tires of an automobile. Parker then observed a pick-up truck, its rear end "fish-tailing," turn into the shopping center parking lot. Parker later testified that he felt endangered by the truck, which passed within eight feet of him at a speed (thirty miles per hour) double that posted in the parking lot.

Police Officer Eugene Heyse, acting as Parker's backup on the traffic stop, stopped the truck after a brief pursuit through the parking lot. After approaching the truck and asking the driver, Todd, to produce his license and registration, Heyse noted that Todd's speech was slurred, his eyes were glassy, and the odor of alcohol was on his breath. Heyse then asked Todd to exit the truck, which Todd did with some difficulty, swaying and hanging on to the truck for support.

Officer Heyse next informed Todd of the Implied Consent Statute, advising Todd that his license to drive may be suspended if he refused to take the test. Todd refused to submit to the test, and was then placed under arrest.

I. Amendment of the Information

Count I of the information against Todd initially charged him with refusing the implied consent test. Trial commenced on September 11, 1989, where the State moved orally to amend Count I to operating a motor vehicle while intoxicated and refusing a chemical test. Over Todd's objection, the trial court allowed the amendment, and on its own motion continued trial to October 20, 1989. Trial eventually commenced October 30, 1989.

Todd asserts that the trial court erred by allowing the amendment on the morning of trial, contending that the State failed to comply with statutory requirements for amending charges. This statute provides in part:

(b) The indictment or information may be amended in matters of substance or form, and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant, at any time up to:

* * * * * *

(2) Fifteen days if the defendant is charged only with one or more misdemeanors; before the omnibus date. When the information or indictment is amended, it shall be signed by the prosecuting attorney.

IC 35-34-1-5.

We agree with Todd that the amendment in the instant case changed the theory upon which the case would be prosecuted. In this regard, Todd cites Owens v. State (1975), 263 Ind. 487, 333 N.E.2d 745, where our supreme court allowed an amendment because the theory of the case was unchanged and the defendants failed to show that their substantial rights were in any way prejudiced. However, Owens was decided when our legislature prohibited the amendment of information which changed the legal theory or theories of the prosecution. This legislation was repealed shortly after the supreme court questioned the prohibition in Trotter v. State (1981), Ind., 429 N.E.2d 637. The court commented that:

The purpose of an indictment or information is first to inform the court of the facts alleged, so that it may decide whether or not they are sufficient in law to support a conviction, and second, to furnish the accused with such a description of the charge against him as will enable him to make his defense and avail of his conviction or acquittal for protection against further prosecution for the same offense. State v. Allen, (1895) 12 Ind.App. 528, 40 N.E. 705.

In view of the above stated purpose, we are at a loss to understand why the State should not be entitled to amend charges, even as to theory and identity, as we understand such terms, when it can be done without prejudicing the substantial rights of the accused.

Id. at 640-41.

While repealing the section prohibiting amendments resulting in a change in the prosecution's theory of the case, the legislature left intact the following provisions:

(c) Upon motion of the prosecuting attorney, the court may, at any time before, during, or after the trial, permit an amendment to the indictment or information in respect to any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant.

(d) Before amendment of any indictment or information other than amendment as provided in subsection (b) of this section, the court shall give all parties adequate notice of the intended amendment and an opportunity to be heard. Upon permitting such amendment, the court shall, upon motion by the defendant, order any continuance of the proceedings which may be necessary to accord the defendant adequate opportunity to prepare his defense.

IC 35-34-1-5.

This issue was addressed in State v. Gullion (1989), Ind.App., 546 N.E.2d 121, where the court observed:

Reading [IC 35-34-1-5] and considering its history, we believe the legislative intent was to allow the amendment of a criminal charge when, in the trial court's discretion, the amendment could be permitted under such terms that would accord the defendant adequate opportunity to prepare his defense.

To hold that this statute does not permit charges to be amended for other than form anytime after 30 days prior to the omnibus date would make subsection d superfluous. The question raised by the Supreme Court in Trotter would still be unanswered.

Requiring the State to dismiss and refile a new charge would exalt form over substance. Such a requirement would cause additional and unnecessary preparation of pleadings and court hearings, possibly resulting in further delay of the trial. It might cause additional inconvenience and expense for the defendant such as reposting of bond, added attorney's fees and more publicity.

Id. at 123.

We agree, and find that the trial court may properly allow an amendment of a substantive character under such terms as would preserve the defendant's basic rights to reasonable notice, and an opportunity to be heard and contest the charges. Oyler v. Boles (1962), 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446.

The record indicates that Todd's substantial rights were not prejudiced. The trial court asked Todd's counsel how much time would be required to prepare for the defense of the amended charge, to which counsel responded "three weeks." The court further asked defense counsel whether he wished to request a continuance, and counsel declined. On its own motion, the trial court continued...

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17 cases
  • State v. Legg
    • United States
    • West Virginia Supreme Court
    • 21 Noviembre 2005
    ...be granted in order to allow the defendant to tailor his defense to meet the State's amended theory. Id. at 973. See also, Todd v. State, 566 N.E.2d 67 (Ind.App.1991) (a pre-trial amendment did not cause prejudice where the trial court issued a five week continuance); State v. Purdom, 106 W......
  • Singleton v. State, 45A03-0712-PC-551.
    • United States
    • Indiana Appellate Court
    • 26 Junio 2008
    ...56, 67 (Ind.Ct.App. 1997), trans. denied; Hart v. State, 671 N.E.2d 420, 427 (Ind.Ct.App.1996), trans. not sought; Todd v. State, 566 N.E.2d 67, 69 (Ind.Ct.App.1991), trans. not sought; State v. Gullion, 546 N.E.2d 121, 122-23 (Ind.Ct.App.1989), trans. not Again, the relevant inquiry when d......
  • Rita v. State
    • United States
    • Indiana Appellate Court
    • 18 Abril 1996
    ...would appear to be consistent with the legislative intent. Id. at 123 (emphasis added). This view was adopted in Todd v. State, 566 N.E.2d 67 (Ind.Ct.App.1991), where the original information charging a refusal of the implied consent chemical test was amended on the morning of trial to add ......
  • Fajardo v. State
    • United States
    • Indiana Supreme Court
    • 16 Enero 2007
    ...95 (Ind.Ct.App.2001), trans. not sought; Tripp v. State, 729 N.E.2d 1061, 1064-65 (Ind.Ct.App.2000), trans. not sought; Todd v. State, 566 N.E.2d 67, 69 (Ind.Ct.App.1991), trans. not sought; State v. Gullion, 546 N.E.2d 121, 122-23 (Ind.Ct.App. 1989), trans. not sought; and the memorandum o......
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