Robert J. Adkins v. State of Indiana (mem. dec.) , 111 N.E.3d 258 ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 07 2018, 9:13 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael P. Quirk Curtis T. Hill, Jr.
Quirk & Hunter, P.C. Attorney General of Indiana
Muncie, Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert J. Adkins, September 7, 2018
Appellant-Defendant, Court of Appeals Case No.
18A04-1711-CR-2643
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Marianne L.
Appellee-Plaintiff. Vorhees, Judge
Trial Court Cause No.
18C01-1704-FA-3
Mathias, Judge.
[1] Following a jury trial in Delaware Circuit Court, Robert J. Adkins (“Adkins”)
was convicted of two counts of Class A felony child molesting and one count of
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Class D felony disseminating matter harmful to minors. The trial court
sentenced Adkins to an aggregate term of forty-two years of incarceration.
Adkins appeals and presents three issues, which we restate as:
I. Whether the trial court erred by permitting the prosecuting attorney to
refer to Adkins’s taped statement to the police, in which he admitted
to molesting the victim, as a confession;
II. Whether the trial court erred by not declaring a mistrial because a
portion of Adkins’s taped statement to the police contained a
reference to a polygraph examination; and
III. Whether the trial court erred by permitting the State to amend the
information charging Adkins with dissemination of matter harmful to
minors during trial.
[2] We affirm.
Facts and Procedural History
[3] At the time relevant to this appeal, A.N., who was born in October 2002, was
close with her maternal aunt, April (“April”), and her aunt’s husband, the
defendant Adkins. In 2011, when A.N. was nine years old, she visited Adkins’s
home on one particular occasion. Adkins showed A.N. a pornographic video
on his laptop computer of a man and a woman engaged in sexual intercourse.
Adkins then fondled A.N.’s breasts and genital area, inserted his fingers into her
vagina, and licked her vagina. He also showed A.N. his penis.
[4] Some time after this incident, Adkins and his wife moved to a different house,
which A.N. did not visit very often. But when the Adkinses moved yet again,
A.N. resumed her almost weekly visits. Adkins began to tell A.N. that she was
“getting so beautiful” and “growing into [her] body[.]” Tr. Vol. 3, pp. 99–100.
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He also asked A.N. if she was still a virgin and offered her alcohol. He again
showed A.N. a pornographic video, this time of two women engaged in sexual
activities, on his laptop. On one occasion, A.N. was in her cousin’s room
watching a movie when Adkins came in and placed his hands on A.N.’s
breasts, inserted his finger into her vagina, and licked her vagina.
[5] On another occasion, Adkins offered A.N. alcohol and money in exchange for
sex. Adkins told A.N. that he had previously paid another woman for sex. He
also told A.N. that if she knew of anyone her age that would be willing to have
sex with him in exchange for money, “he could make something happen.” Id.
at 109. When Adkins and his wife moved to another house, A.N. continued to
visit. At this house, Adkins again molested A.N. when she was approximately
eleven or twelve years old by placing his fingers on and in her vagina.
[6] In March 2017, A.N. wrote a letter to her girlfriend, who apparently had a bad
experience with her own uncle. Regarding this, A.N. wrote:
I wish i had advice for the stuff going on w/ your uncle but my
mind is honestly completely blank baby. Im so sorry! Like i got
raped when I was twelve by my uncle but i never said anything
because i didn’t want every one to hate me. 💔
Ex. Vol., Defendant’s Ex. A, p. 5 (typographic errors in original). Somehow,
this note was misplaced and found by a school guidance counselor, who
confronted A.N. regarding the accusations about her uncle. This counselor
informed A.N. that the molestation needed to be reported, so A.N. wrote a
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letter to her mother describing what Adkins had done to her. A.N.’s mother
then informed the police.
[7] On April 10, 2017, the police interviewed Adkins. The interrogating officer read
Adkins his Miranda rights, and Adkins signed a waiver of his rights. The officer
confronted Adkins with A.N.’s accusations, which Adkins initially denied.
Adkins admitted that he may have brushed against A.N.’s breasts while
wrestling with her. Eventually, however, after several hours of interrogation,
Adkins admitted to placing his fingers inside A.N.’s vagina, fondling her
breasts, performing oral sex on her, and showing her pornography.
[8] On April 17, 2017, the State charged Adkins with two counts of Class A felony
child molesting and one count of Class D felony disseminating of matter
harmful to minors.1 At a pre-trial hearing held on September 18, 2017, the trial
court heard arguments on the State’s motions in limine. At this same hearing,
Adkins made an oral motion in limine seeking to prohibit the State from
referring to Adkins’s taped statement to the police as a “confession or
admission,” except during closing argument. Tr. Vol. 2, p. 6. The prosecuting
attorney indicated that the State had no objection. Accordingly, the following
day, the trial court entered an order that granted the State’s motions and also
granted Adkins’s oral motion regarding the statement to the police, stating in
relevant part: “The Court now GRANTS the Defendant’s oral Motion in
1
The State also charged Adkins with one count of Class D felony dissemination of matter harmful to minors
regarding A.N.’s brother. The jury acquitted Adkins on this charge.
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Limine as to referring to the Defendant’s statement as a ‘confession’ or
‘admissions’ except as to characterizations that the State may make in closing
argument.” Appellant’s App. Vol. 2, p. 59.
[9] A jury trial began on September 25, 2017. At the conclusion of the State’s
evidence, Adkins moved for a directed verdict on all counts. With regard to the
charge of dissemination of matter harmful to minors, Adkins argued that
showing pornography on his computer to A.N. did not constitute
“disseminating” as set forth in the charging information and the statute it was
based on. Tr. Vol. 3, pp. 209–10. The State argued that it had met this
definition, but nevertheless moved to amend the information to conform with
the evidence, i.e., to allege that instead of “disseminat[ing] matter harmful to
minors” under Indiana Code section 35-49-3-3(a)(1), Adkins instead
“display[ed] matter that is harmful to minors in an area to which minors have
visual, auditory, or physical access,” under section 35-49-3-3(a)(2). Tr. Vol. 3,
pp. 213–14. Adkins objected, claiming that he had based his defense on the
original language of the charging information. The trial court took the matter
under advisement. The State then filed a written motion to amend the language
of the information charging Adkins with dissemination of matter harmful to
minors the following day, the last day of trial, which motion the trial court
granted.
[10] At the conclusion of the trial, the jury found Adkins guilty of Class A felony
child molesting and of Class D felony disseminating matter harmful to a
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minor.2 On November 1, 2017, the trial court sentenced Adkins to concurrent
terms of forty years on the Class A felony convictions and to a consecutive term
of two years on the Class D felony conviction. Adkins now appeals.
I. Alleged Violations of the Motion in Limine
[11] Adkins first contends that the State repeatedly violated the trial court’s motion
in limine and that he was prejudiced by this violation. As noted above, the trial
court granted Adkins’s oral motion in limine prohibiting the State from
referring to Adkins’s taped statement to the police as a “confession” or
“admission” except in closing argument. Appellant’s App. Vol. 2, p. 59. On
appeal, Adkins claims that the State violated this order “30 times.” Appellant’s
Br. at 10. Adkins, however, fails to cite to any portion of the transcript in which
the State or the State’s witnesses refer to Adkins’s statement as a “confession”
or “admission.” It is not our role to scour the transcript in search of these
alleged violations. See Myers v. State, 33 N.E.3d 1077, 1105 n.8 (Ind. Ct. App.
2015) (noting that the court on appeal would not scour the voluminous record
to search for support of appellant’s contentions), trans. denied.
[12] Our review of the transcript finds little support for Adkins’s contentions. To the
contrary, our search of the transcript indicates that the only times the words
“confession” or “admission” were used were during Adkins’s own counsel’s
questions regarding false confessions and the witnesses’ answers in response to
2
As noted above, the jury acquitted Adkins on the charge of disseminating matter harmful to a minor with
regard to A.N.’s brother.
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these questions. See, e.g., Tr. Vol. 3, p. 20 (testimony of interrogating officer
responding to defense counsel’s cross-examination regarding why police did not
investigate another individual, “He [Adkins] admitted to the crime, and I had
no reason to go talk to [the other individual].”); Id. at 74 (testimony of
interrogating officer responding to defense counsel’s questions suggesting that
officer had already informed Adkins of the substance of the accusations against
him, claiming that he had not informed Adkins of specific details, “so if he
confess[es] and give[s] me specific details, then he’s recalling an incident and
not something I told him.”); Id. at 81–82 (defense counsel questioning
interrogating officer, “In any of your training, did they talk to you about the
dangers of false confessions?” and “you don’t recall anything about dangers of
false confessions during any of [your] trainings[?]” and “So they sent you to a
school and they didn’t bring anything up about the dangers of false
confessions?” and “Are you aware that people falsely confess to things?”); Id. at
82 (interrogating officer’s testimony that he was not trained on false confessions
and that he tries not to tell suspects specific details “so when they do confess,
they - they’re not just saying yes or no, they’re - they’re explaining an actual
narrative of an event.”).3
3
The word “admit” was used by both defense counsel and the interrogating officer during cross-examination.
See id. at 55 (defense counsel asked the interrogating officer whether Adkins, during the interrogation, “did
admit that there was pornography on [his computer?]” to which the officer replied, “He did – he did admit to
viewing pornography on there.”); Id. at 61 (defense counsel asked the officer, “Did it ever dawn on you that
he didn't know? He actually is innocent? Or did you at that point think this guy’s guilty?” to which the officer
answered, “He had already admitted there was something that he didn't want to talk to me about because he
didn't want to go to jail.”); Id. at 67 (defense counsel asked the officer, “At the 2:39 mark, you cut [Adkins]
off and you said, I can get you charged. It doesn’t matter what you tell me or not. Was that a true
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[13] It appears that neither the prosecuting attorney nor the State’s witnesses
otherwise mentioned the word “confession” or “admission” until the State’s
closing argument, which was permitted under the trial court’s order on Adkins’s
motion in limine. Adkins’s claim that the State repeatedly violated the court’s
order on his motion in limine is meritless.4
II. Reference to Polygraph Examination
[14] Adkins next argues that the trial court erred by admitting into evidence a
portion of his statement to the police which appears to reference hooking
Adkins up to a polygraph machine. Questions regarding the admission of
evidence are entrusted to the sound discretion of the trial court. Harrison v. State,
statement?” and the officer responded, “I felt like I had enough since he had already admitted there was
something that he didn’t want to tell me about because he didn’t want to go to jail. I felt that was enough that
I could – I could pursue with a probable cause affidavit for his arrest.”); Id. at 80 (testimony of interrogating
officer during cross-examination that Adkins “admitted” to having an extra-marital affair after initially
denying it). Again, all of these questions came during cross-examination by defense counsel.
4
And even if the State or the State’s witnesses had referred to Adkins’s statement to the police as a
“confession” or “admission,” we fail to see how he would have been harmed thereby. The jury heard the
admitted portions of the statement, including Adkins’s initial, repeated denials, but also his eventual
admission to molesting A.N. and showing her pornography. Referring to the statement as a “confession” or
“admission” would not have been inaccurate. See Opper v. United States, 348 U.S. 84, 91 n.7 (1954) (“A
confession is an acknowledgment in express words, by the accused in a criminal case, of the truth of the
guilty fact charged or of some essential part of it.”). Nor do we believe it would have been reversible error to
refer to Adkins’s statement as a confession or admission. See United States v. Hicks, 393 Fed. Appx. 201, 204
(5th Cir. 2010) (holding that no error occurred where prosecutor did not characterize the defendant’s
statements generally as a confession or admission of guilt on a particular charge but instead referred to
specific admissions of fact the defendant made to the police, and it was defendant’s own counsel who
extensively questioned the police about recording “confessions” by witnesses); United States v. Goodlow, 105
F.3d 1203, 1207 (8th Cir. 1997) (holding that prosecutor’s reference to defendant’s statement to the police as
a “confession” was not misconduct where, even though defendant denied use of force or threat of force
element, he admitted to the remaining elements of the crime for which he was convicted). Cf. United States v.
Morsley, 64 F.3d 907, 912–13 (4th Cir. 1995) (holding that prosecutor’s reference to defendant’s statement, in
which he admitted to several aspects of his involvement in a conspiracy but did not formally confess his guilt,
was improper).
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32 N.E.3d 240, 250 (Ind. Ct. App. 2015), trans. denied. We therefore review the
court’s decision on appeal only for an abuse of that discretion. Id. The trial
court abuses its discretion only if its decision regarding the admission of
evidence is clearly against the logic and effect of the facts and circumstances
before it, or if the court has misinterpreted the law. Id.[15] The portion of Adkins’s recorded statement at issue is the interrogating officer’s
statement: “Okay. So is there anything else you think we need to talk about
before we hook you up to this machine and go from there?” Tr. Vol. 2, p. 181
(emphasis added). Adkins claims that this was an impermissible reference to a
polygraph test and that the trial court should therefore have declared a mistrial.
[16] As this court summarized in Shriner v. State:
In general, a reference to a polygraph examination without an
agreement by both parties is inadmissible and grounds for error.
Proof of the fact that a polygraph examination was taken or
refused is, in the absence of waiver or stipulation, inadmissible in
a criminal prosecution. A defendant is prohibited from stating he
offered to take a polygraph test[,] and the State is equally
prohibited from referring to such a test.
829 N.E.2d 612, 618 (Ind. Ct. App. 2005) (citation and internal quotation
marks omitted).
[17] “‘A mistrial should be granted where the accused, under all the circumstances,
has by such trial proof been placed in a position of grave peril to which he
should not have been subjected.’” Id. (quoting Conn v. State, 535 N.E.2d 1176,
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1180 (Ind. 1989)). But “[a] mistrial is an extreme remedy and should only be
used when no other curative measure will rectify a situation.” Id. We afford
great deference to the trial court’s decision on whether to grant a mistrial
because the trial judge is in the best position to gauge the surrounding
circumstances of an event and its impact on the jury, and, on appeal, we review
the trial court’s decision only for an abuse of this discretion. Id.[18] Although Adkins claims that the trial court should have declared a mistrial, our
review of the record reveals that Adkins never requested a mistrial. When the
above-quoted portion of Adkins’s recorded statement to the police was played
for the jury, Adkins requested that the jury be excused from the courtroom.
Adkins’s counsel stated, “I’m extremely concerned about what he just said. I
thought that was to be taken out.” Tr. Vol. 2, p. 182. The prosecuting attorney
responded, “Judge, I thought they were all removed. In fact, I didn’t hear that
listening to it.” Id. The trial court then ordered the recorded statement to be
replayed, which it was. The trial court asked Adkins’s counsel, “So what’s the
remedy? Do you want me to tell the jury to disregard and not to consider or do
you want a mistrial? Do you want some time to think about it and to talk to
your client[?]” Id. at 183. Adkins’s counsel stated that he would like to take
some time to speak with Adkins, and the trial court took a brief recess. When
the trial resumed, the trial court resumed playing the recording without
objection, and an no further point did Adkins request a mistrial.
[19] Adkins has accordingly forfeited this issue by failing to request a mistrial. See
Sherwood v. State, 702 N.E.2d 694, 697 (Ind. 1998) (holding that defendant
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waived appellate argument that reference to polygraph required mistrial where
defendant failed to request a mistrial at trial). Nor does Adkins argue that this
brief reference to “hooking” him up to a “machine” constituted fundamental
error. And even if he did, we fail to see how this brief reference constituted
fundamental error. The State did not refer to a polygraph or otherwise mention
the reference to hooking Adkins up to a machine, nor was the matter ever
brought up again. See Lay v. State, 659 N.E.2d 1005, 1013 (Ind. 1995) (holding
that evidence that witness had agreed to take a polygraph examination as a
condition of his plea agreement did not constitute fundamental error because
the testimony did not imply that the witness had taken a polygraph test, did not
reveal any results of a polygraph, and therefore generated minimal prejudice).
We therefore reject Adkins’s claim that this brief reference requires reversal of
his convictions.
III. Amendments to Charging Information
[20] Lastly, Adkins argues that the trial court erred by permitting the State to amend
the language of the charging information with regard to the charges5 of
disseminating matter harmful to a minor. The State charged Adkins with this
crime as follows: “Robert J. Adkins did knowingly disseminate matter to A.N.,
a minor, that is harmful to minors, to-wit: Pornography[.]” Appellant’s App.
Vol. 2, p. 21. As set forth above, at the conclusion of the State’s evidence,
5
As previously noted, the State charged Adkins with two counts of disseminating matter harmful to minors,
one involving A.N. and the other involving A.N.’s brother. Because the jury acquitted Adkins on the latter
charge, we limit our discussion to the amendment to the former charge.
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Adkins moved for a directed verdict on all counts. With regard to the charge of
disseminating matter harmful to a minor, Adkins alleged that the evidence
adduced by the State—that he showed pornographic videos to A.N.—did not
constitute dissemination. Ultimately, the State moved to amend the charge to
allege that Adkins “displayed” pornography to A.N. instead of “disseminated”
it to her. The trial court granted this motion to amend, and the jury was
ultimately instructed that, to convict Adkins of disseminating matter harmful to
a minor, the State had to prove that he knowingly “displayed matter to A.N., a
minor . . . that is harmful to minors, to-wit, pornography . . . in an area to
which minors have visual, auditory, or physical access.” Id. at 111.
[21] Adkins argues that the trial court erred in permitting the State to amend the
charging information at this late stage. He maintains that there was no evidence
that he “disseminated” pornography to A.N. and that he was therefore
prejudiced when the State was allowed the amend the charging information to
allege that he “displayed” pornography to A.N.
[22] We conclude that Adkins has forfeited this argument. If a defendant believes
that an amendment to the charging information is prejudicial, he must request a
continuance to further evaluate and prepare his case in light of the amendment.
Miller v. State, 753 N.E.2d 1284, 1288 (Ind. 2001); Wright v. State, 690 N.E.2d
1098, 1104 (Ind. 1997); Haak v. State, 695 N.E.2d 944, 951 n.5 (Ind. 1998).
Failing to request a continuance results in waiver of the issue on appeal. Wright,
690 N.E.2d at 1104 (citing Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind.
1996); Daniel v. State, 526 N.E.2d 1157, 1162 (Ind. 1988)). Although Adkins did
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object to the State’s motion to amend the charging information, he did not seek
a continuance and therefore failed to preserve this claim of error.
[23] Waiver notwithstanding, Adkins would still not prevail. “A charging
information may be amended at various stages of a prosecution, depending on
whether the amendment is to the form or to the substance of the original
information.” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014). Indiana Code
section 35-34-1-5(a) provides that an information “may be amended on motion
by the prosecuting attorney at any time because of any immaterial defect[.]”
Immaterial defects include spelling and grammatical errors, the misjoinder of
parties, the failure to state the time or place of the offense where such
information is not of the essence of the offense, or “any other defect which does
not prejudice the substantial rights of the defendant.” I.C. § 35-34-1-5(a)(1), (2),
(7), (9).
[24] In opposition to amendments of form, an information “may be amended in
matters of substance . . . by the prosecuting attorney, upon giving written notice
to the defendant at any time” up to thirty days prior to the omnibus date where
the defendant is charged with a felony or “before the commencement of trial”
“if the amendment does not prejudice the substantial rights of the defendant.”
I.C. § 35-34-1-5(b)(1) – (2).
[25] The amendment statute further provides, “[u]pon motion of the prosecuting
attorney, the court may, at any time before, during, or after the trial, permit an
amendment to the . . . information in respect to any defect, imperfection, or
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omission in form which does not prejudice the substantial rights of the
defendant.” I.C. § 35-34-1-5(c). Thus, “[a]n amendment of substance is not
permissible after trial has commenced,” and after trial has begun, only
amendments to fix defects, imperfections, or omission in form are permitted, so
long as the substantial rights of the defendant are not prejudiced. Blythe v. State,
14 N.E.3d 823, 828 (Ind. Ct. App. 2014); see also Rita v. State, 663 N.E.2d 1201,
1205 (Ind. Ct. App. 1996) (holding that an information may be amended at any
time, before, during, or after trial, so long as the amendment does not prejudice
the substantial rights of the defendant), trans. granted, summarily aff’d in relevant
part, 674 N.E.2d 968 (Ind. 1996).
[26] Whether an amendment to a charging information is a matter of substance or
form is a question of law, which we review de novo. Erkins, 13 N.E.3d at 405.
“A defendant’s substantial rights ‘include a right to sufficient notice and an
opportunity to be heard regarding the charge; and, if the amendment does not
affect any particular defense or change the positions of either of the parties, it
does not violate these rights.’” Id. (quoting Gomez v. State, 907 N.E.2d 607, 611
(Ind. Ct. App. 2009), trans. denied). Ultimately, the question is whether the
defendant had a reasonable opportunity to prepare for and defend against the
charges. Id. at 405–06. An amendment is one of form and not substance if a
defense under the original information would be equally available after the
amendment and the accused’s evidence would apply equally to the information
in either form. Bennett v. State, 5 N.E.3d 498, 514 (Ind. Ct. App. 2014), trans.
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denied. And an amendment is one of substance only if it is essential to making a
valid charge of the crime. Id.[27] Here, Adkins insists that the amendment was one of substance because, under
the original language of the information, he had a defense that was not
available to him under the amended information, i.e., that he did not
“disseminate” pornography to A.N. The statute under which Adkins was
charged provides in relevant part:
(a) Except as provided in subsection (b), a person who knowingly
or intentionally:
(1) disseminates matter to minors that is harmful to minors;
(2) displays matter that is harmful to minors in an area to
which minors have visual, auditory, or physical access, unless
each minor is accompanied by the minor’s parent or guardian;
***
commits a Class D felony.
Ind. Code § 35-49-3-3(a) (2006).6 Thus, the amendment changed the subsection
under which Adkins was charged from 3(a)(1) to 3(a)(2). Adkins argues that, by
amending the charging information to allege that he displayed, as opposed to
6
This statute was amended effective July 1, 2014 to provide the crime is now a Level 6 felony. We cite to the
version of the statute that was in effect at the time Adkins committed the crime.
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disseminated, the pornographic video, the State made a substantive change to
the charge. We disagree.
[28] Under the original charge, Adkins was alleged to have disseminated
pornography to A.N. The probable cause affidavit supporting Adkins’s arrest
and charges set forth the factual basis of this charge, i.e., that Adkins showed
pornographic videos to A.N. Under the amended information, the factual basis
for the charge remained the same—that Adkins showed pornographic videos to
A.N. Thus, any defense Adkins had to the original charge was equally available
under the amended charging information.7 Indeed, Adkins’s defense at trial was
to argue that he did not show A.N. pornography, and this defense was still
available to him after the amendment to the charging information. Therefore,
the amendment was not one of substance, and could be made at any time.
7
Adkins claims that the amended information deprived him of his defense that showing a pornographic
video does not constitute “dissemination.” But if this tautology were the rule, then any amendment would
necessarily constitute a substantive change. For example, in Jones v. State, 863 N.E.2d 333, 338 (Ind. Ct. App.
2007), we held that the State’s amendment of a charging information one week before trial was one of form,
and not of substance, even though the amendment altered the identity of the substance the defendant was
alleged to have possessed from cocaine to heroin. The defendant in Jones had a “defense” under the original
charging information that was taken away by the change only in the sense that he could no longer argue that
the substance he possessed was heroin and not cocaine as originally alleged. But we still held that the State’s
late amendment did not cause Jones to lose any potential defenses or affect the application of his evidence to
the crime charged. Id. Indeed, the discovery provided to Jones made it clear that the substance he was
charged with possessing was heroin, not cocaine. Id. at 338–39; see also Owens v. State, 263 Ind. 487, 497–98,
333 N.E.2d 745, 750 (1975) (holding that amendment of charging information on day of trial to allege that
defendant shot victim with a revolver instead of a shotgun was one of form, not substance, even though
defendant would have had a technical defense to original charge in that he did not use a shotgun); Markoff v.
State, 553 N.E.2d 194, 195 (Ind. Ct. App. 1990) (holding that amendment on the day of trial to change the
name of the owner of the building in which a burglary occurred was one of form, not substance, even though
defendant would have had a technical defense to the original charge in that the building was not owned by
the person alleged in the original information).
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Conclusion
[29] No reversible error occurred when witnesses referred to Adkins’s taped
statement to the police as a “confession.” Not only was this description
accurate, most of it was elicited by Adkins’s own counsel. The trial court also
did not err by failing to declare a mistrial when a portion of Adkins’s recorded
statement to the police referenced “hooking” Adkins up to “this machine.”
Adkins did not request a mistrial, and this brief reference did not require a
mistrial or otherwise constitute fundamental error. Lastly, the trial court did not
err in permitting the State to amend the information charging Adkins with
disseminating matter harmful to a minor because the amendment was not one
of substance and could therefore by made at any time. Accordingly, we affirm
the judgment of the trial court.
[30] Affirmed.
Riley, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A04-1711-CR-2643 | September 7, 2018 Page 17 of 17