Jeannie A. Dickman v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN ANDREW GOODRIDGE GREGORY F. ZOELLER
Evansville, Indiana Attorney General of Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
FILED
Feb 20 2013, 9:32 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
JEANNIE A. DICKMAN , )
)
Appellant-Defendant, )
)
vs. ) No. 82A01-1205-CR-202
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Wayne S. Trockman, Judge
Cause No. 82D02-0909-FD-917
February 20, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Jeannie Dickman appeals her conviction for conversion as a Class A
misdemeanor. Dickman raises one consolidated issue on appeal: whether there was a
material variance in the charging information and the evidence presented. Concluding
that the variance was not material, we affirm.
Facts and Procedural History
On September 28, 2009, the State filed an information charging Dickman with
theft as a Class D felony. The information alleged that Dickman “did knowingly exert
unauthorized control over the property of Suzanne Bowling and/or Skin Solutions, to-wit:
lawful United States currency, with the intent to deprive the said Suzanne Bowling and/or
Skin Solutions of the value and use thereof . . . .” Appellant’s Appendix at 32. The
charge was related to checks that had been written by clients directly to Dickman when
Dickman was employed as an aesthetician at Bowling’s Skin Solutions business.
Additionally, Dickman had used Bowling’s credit card for personal purchases.
Dickman waived her right to a jury trial, and a bench trial commenced on May 11,
2011. After several continuances, the trial concluded on February 3, 2012. The court
found Dickman guilty of the lesser included charge of conversion, as a Class A
misdemeanor. The court sentenced Dickman to one year in jail but suspended the
sentence to non-reporting probation. This appeal followed. Additional facts will be
supplied as necessary.
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Discussion and Decision
I. Final Appealable Order
As a threshold issue, the State argues that this appeal should be dismissed for lack
of a final appealable judgment, because the docket for this case indicates that the trial
court took the issue of restitution under advisement. Dickman also raised an issue in her
appeal regarding the jurisdiction of the court to delay its ruling on restitution. Because of
our resolution of the court’s sentencing order here, we do not reach Dickman’s argument
on that issue.
The parties point out that there is a difference between the trial court’s remarks at
oral sentencing and the written docket. The docket sheet for the case notes that on April
5, 2012:
AFTER HAVING THIS MATTER UNDER ADVISEMENT AND
AFTER HAVING HAD AN OPPORTUNITY TO REVIEW ALL OF THE
EXHIBITS AND THE COURT’S NOTES TAKEN DURING THE TRIAL
OF THIS CAUSE, NOW FINDS THE DEFT, JEANNIE A. DICKMAN,
GUILTY OF THE LESSER INCLUDED OFFENSE OF CONVERSION,
A CLASS A MISDEMEANOR, AND ENTERS FINAL JUDGMENT OF
CONVICTION ACCORDINGLY. PARTIES WAIVE PSI. AFTER
HEARING COMMENTS OF COUNSEL AND THE VICTIM IN THIS
CAUSE, THE COURT NOW SENTENCES THE DEFT AS FOLLOWS:
TO THE VANDERBURGH COUNTY JAIL FOR A PERIOD OF 1
YEAR, SUSPENDED TO NON-REPORTING PROBATION. THE
COURT TAKES THE ISSUE OF RESTITUTION UNDER
ADVISEMENT, COURT NOTING THERE IS A PENDING CIVIL
MATTER UNDER CAUSE NO. 82D03-0907-PL-3772. COSTS OF THIS
ACTION ARE ASSESSED AGAINST THE DEFT.
Id. at 5. However, at sentencing, the court said several times that it was declining to issue
an order on restitution because that was more appropriate for the court in the pending
civil matter. At the beginning of the sentencing hearing the court said:
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The Court declines to make an order on restitution and the Court declines to
make that order on restitution for the reason that there is a pending civil
matter that encompasses all of these issues and that restitution, the Court
believes that restitution should more properly be determined in that
proceeding.
Id. at 97. The court then discussed pre-sentence, and took comments from the parties and
the victim. The court then sentenced Dickman and said:
The court sentences you, Ms Dickman, to the Vanderburgh County Jail for
a period of 1 year, suspended to non-reporting probation. You do not have
to report to the Probation Office or probation officer, but you are on
probation for 1 year. The restitution will be resolved in the civil matter.
Was there a bond posted?
Id. at 99.
The record makes it clear that the court had no intention of taking restitution under
advisement and was going to leave the determination of restitution to the court handling
the civil matter.1 While we recognize that the trial court’s chronological case summary
(CCS) is the court’s official record, and that the trial court speaks through its docket,
there is precedent for disregarding a CCS entry if it is shown to be factually inaccurate.
Ind. Trial Rule 77(B); Henderson v. State, 769 N.E.2d 172, 175 n.4 (Ind. 2002); Whatley
v. State, 685 N.E.2d 48, 50 (Ind. 1997); Gibson v. State, 910 N.E.2d 263, 267 (Ind. Ct.
App. 2009); Young v. State, 765 N.E.2d 673, 678 (Ind. Ct. App. 2002). We therefore
conclude that the entry in the docket regarding taking restitution under advisement was
entered in error. The court’s sentence was for one year, suspended to non-reporting
probation, and that was a final appealable order. The matter is therefore now properly
before us.
1
At the same hearing, the court advised the parties that it would recuse itself from the civil matter, and so
it is clear that the court intended to have no hand in deciding restitution.
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II. Variance between the Charging Information and the Evidence
A. Standard of Review
When a defendant claims there is a variance between the charging information and
the evidence at trial, we must determine whether the variance is material. A material
variance is one that misleads the defendant in the preparation of the defense or presents
the risk of double jeopardy, and it therefore requires reversal of a conviction.
McCullough v. State, 672 N.E.2d 445, 448 (Ind. Ct. App. 1996), trans. denied. However,
if the variance does not harm the defendant, then no reversal is required. Id. The test for
whether a variance is material requires us to determine (1) whether the defendant was
misled by the variance in the preparation and maintenance of his defense, and was he
harmed or prejudiced thereby; and (2) whether the defendant will be protected in a future
criminal proceeding covering the same event, facts, and evidence against double
jeopardy. Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999).
B. Materiality of Variance
In the present case, there was a variance between the charging information, which
alleged that Dickman had exerted unauthorized control over “lawful United States
currency,” and the evidence at trial, which included checks and credit card statements,
but not cash. Appellant’s App. at 32. Dickman does not argue that she was misled by the
variance in the preparation of her defense, but rather argues that the variance is material
because it will potentially subject her to double jeopardy in the future. We disagree.
Dickman claims that she is “at risk for subsequent prosecutions for theft with the
basis of these subsequent charges being the alleged credit card transactions and the
alleged checks solicited from patients and deposit[ed] into her checking account. . . .
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because the checks and credit card transactions were not charged.” Appellant’s Brief at
14. Our supreme court has established a two-part test for analyzing double jeopardy
claims in which
two or more offenses are the “same offense” in violation of Article I,
Section 14 of the Indiana Constitution, if, with respect to either the
statutory elements of the challenged crimes or the actual evidence used to
convict, the essential elements of one challenged offense also establish the
essential elements of another challenged offense.
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original). The statutory
elements and actual evidence are two separate considerations such that even if two
offenses are capable of being committed by different acts, a violation of double jeopardy
may nonetheless occur where “the actual evidence presented at trial demonstrates that
each offense was not established by separate and distinct facts.” Montgomery v. State,
804 N.E.2d 1217, 1224 (Ind. Ct. App. 2004), trans. denied. Here, if Dickman were to be
charged again with theft predicated on the same checks and credit card transactions that
underlie this case, a conviction would violate double jeopardy based on the actual
evidence part of the Richardson test. Even though those checks and transactions were not
charged in the current case, they were the actual evidence used to convict Dickman and
so she could not be convicted again using that same actual evidence.2
2
We recognize that Dickman was convicted of the lesser included charge of conversion, and not of theft.
However, the United States Supreme Court has noted that “the Fifth Amendment forbids successive prosecution and
cumulative punishment for a greater and lesser included offense,” and so the actual evidence that was used here
would not be available to the State for future theft charges against Dickman. Brown v. Ohio, 432 U.S. 161, 169
(1977).
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Conclusion
Concluding that the variance between the charging information and the actual
evidence presented at trial was not material because Dickman was not misled and is not
left open to double jeopardy, we affirm.
Affirmed.
MAY, J., and PYLE, J., concur.
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