Wilkinson v. State
| Citation | 670 N.E.2d 47 |
| Decision Date | 19 August 1996 |
| Docket Number | No. 48A04-9603-CR-88,48A04-9603-CR-88 |
| Parties | Richard WILKINSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Richard Wilkinson appeals his conviction of Attempted Child Molesting, a class C felony, Ind.Code 35-41-5-1(a). 1 We affirm.
Wilkinson raises four issues on appeal, which we consolidate and restate as:
I. Whether the trial court properly allowed an amendment to Wilkinson's charging information on the day of trial, changing the charge against him from Child Molesting to Attempted Child Molesting; and,
II. Whether the evidence was sufficient to support Wilkinson's conviction.
The facts most favorable to the judgment indicate that at about 12:30 A.M. on July 24, 1994, Wilkinson entered the home of his next door neighbor, Rita Harder. Wilkinson had been drinking at a nearby bar for about two hours. Harder was working late that night, and her 13 year old daughter Helena was home by herself. Wilkinson entered the room where Helena was sleeping, woke her by shaking her foot, and asked her if she knew she was alone and where other members of her family were. Helena was only half awake, and fell back to sleep.
Shortly after 2 A.M., Helena was awakened again when Wilkinson fell onto the bed beside her. Helena was sleeping on her stomach, and Wilkinson put his hand up the back of her shirt. He tried to move his hand to the front, but could not because Helena pressed her arms tightly against her body. Wilkinson also slid his hand into the waistband of her shorts, but could not move it further because the waistband was too tight. He asked Helena to move her leg if she was awake, but she remained still. He then tried to move her leg himself. After a few minutes, Wilkinson stopped touching Helena and went to sleep. Helena then left the house and waited in the family truck for her mother to return home. When Harder returned home, she summoned her father, who roused Wilkinson and removed him from the house. Wilkinson walked back to his own home.
Wilkinson was charged with child molesting, a class C felony. On the morning of his bench trial, the State amended the charge to attempted child molesting, a class C felony. Wilkinson requested a continuance in order to evaluate the amended charge, but the continuance was denied. Wilkinson's defense at trial was that he passed out and did not remember engaging in the actions he was accused of. If any touching occurred, Wilkinson argued, it thus could not have been done with the intent to gratify the sexual desires of either the defendant or the victim, as the child molesting statute requires.
Wilkinson appeals the trial court's granting of the State's motion to amend the information against him. The amended information, by itself, is not grounds for reversal. The State may amend an information at any time before, during or after the trial "in respect to any defect, imperfection or omission in form which does not prejudice the substantial rights of the defendant." I.C. 35-34-1-5(c). Such an amendment may not be allowed if it would substantially prejudice a defendant in terms of his opportunity to prepare his defense. Todd v. State, 566 N.E.2d 67, 69 (Ind.Ct.App.1991). The test of whether the State should be allowed to amend an information is whether the amendment affects the availability of a defense or the applicability of evidence which existed under the original information. Sharp v. State, 534 N.E.2d 708, (Ind.1989), reh. denied, cert. denied, 494 U.S. 1031, 110 S.Ct. 1481, 108 L.Ed.2d 617 (1990) (emphasis added). Additionally, the prosecution may not amend the charging information in a manner which materially changes the factual allegations which form the basis of the prosecution's theory. Kelly v. State, 586 N.E.2d 927 (Ind.Ct.App.1992), trans. denied.
Wilkinson also appeals the denial of his motion to continue because the amendment of the child molesting charge to the attempted child molesting charge affected his defense at trial. However, the defenses available to Wilkinson under the original information charge remained available to him under the amended information charge. Our supreme court held in Sharp that an amendment is not prejudicial if the defenses available under the original information are available to a defendant under the amended information. Wilkinson's defense was that he was intoxicated and had passed out and, thus, that he did not possess the requisite intent to commit either child molesting or attempted child molesting.
Wilkinson did not lose any defenses as a result of the amended information. Rather, he gained one defense, and that was the defense of abandonment. The issue becomes whether the amended information, with the newly available defense of abandonment, materially changed the factual allegations which formed the basis of the prosecution's theory. It did not. The same facts were alleged by the prosecutor under both charging informations. Wilkinson was aware before the trial even began what facts were going to be alleged at trial by the prosecutor. His defense of abandonment did not require him to gather witnesses and collect additional evidence. He merely had to argue factually that defense at trial. Instead, he chose to argue that he was intoxicated and did not remember the facts surrounding the allegations posed by the prosecutor.
In essence, he argued that he could not have completed a substantial step toward the commission of the crime because he was too intoxicated. To that extent, Wilkinson was able to defend against the new information as charged. That the trial court did not accept his version of the facts is not grounds for reversal. Additionally, Wilkinson has never demonstrated that the denial of his continuance in any way affected his ability to prepare his defense. He has not even proved that he would have relied on the defense of abandonment, even though it was available to him. That he was intoxicated does not support a defense of abandonment. Abandonment that is a product of extrinsic factors is not voluntary. Babin v. State, 609 N.E.2d 3 (Ind.Ct.App.1993), reh. denied, trans. denied. Passing out from intoxication is not a voluntary abandonment of an attempted crime.
Common sense dictates that Wilkinson's conviction should be affirmed. Here is a man who drank too much, entered his neighbor's home while a young girl slept alone, climbed into bed with her, and placed his hand up the back of her shirt, slid his hand into the waistband of her shorts, and tried to move her legs. He testified that he remembered being in the room with the girl at 2:13 a.m. and the girl testified that he was touching her at 2:16 a.m. Witnesses removed Wilkinson from the bed shortly thereafter. He was charged with child molesting and was given much time to prepare his defense. The information amended on the day of trial to attempted child molesting did not remove any of Wilkinson's original defenses, and nor did it change any of the factual allegations made by the prosecutor. The only person who could testify as to his purported abandonment of the crime was Wilkinson. He could have so testified but chose instead to rely on a defense of intoxication in refutation of the substantial step requirement.
Wilkinson also argues that there is insufficient evidence to support his conviction. The standard of review for this type of challenge is well-settled. In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the witnesses' credibility. Jones v. State, 589 N.E.2d 241, 242 (Ind.1992). The State correctly argues that Wilkinson cannot avail himself of the abandonment defense because the evidence he presented at trial would not support that defense and Wilkinson cannot raise a defense on appeal which he did not raise at trial. There was therefore no evidence presented at trial to support Wilkinson's claim of abandonment. We look instead to the evidence as it relates to the elements of the crime as charged. Wilkinson drank too much, entered his neighbor's home while a young girl slept alone, climbed into bed with her, and placed his hand up the back of her shirt, slid his hand into the waistband of her shorts, and tried to move her legs. He testified that he remembered being in the room with the girl at 2:13 a.m. and the girl testified that he was touching her at 2:16 a.m. Witnesses removed Wilkinson from the bed shortly thereafter. The evidence is clearly sufficient to support Wilkinson's conviction.
Affirmed.
The majority, relying on Sharp v. State, 2 holds that the State may amend an information on the day of trial as long as the amendment does not affect a defense which was already available to the defendant under the original information. I do not believe the Sharp test for determining prejudice from a last-minute amendment of the charges is so limited. A defendant's ability to defend himself may also be substantially prejudiced where, as here, the State amends the charges to give rise to a potential defense the defendant could not have been prepared to pursue. For that reason, I must dissent.
When an amendment of an indictment gives rise to a possible defense which the defendant has no opportunity to pursue, it is prejudicial to allow the amendment at the outset of the trial. Molina v. State, 561 So.2d 425, 426 (Fla.Dist.Ct.App.1990). In Molina, the defendant was charged with Disorderly Intoxication, in violation of a state statute. On the day of trial, the information was amended to charge him with Disorderly Conduct, in...
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