David A. Tyrie v. State of Indiana ( 2020 )

FILED
Mar 12 2020, 10:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel A. Moon Curtis T. Hill, Jr.
Daniel Moon Law Offices, LLC Attorney General of Indiana
Princeton, Indiana
George P. Sherman
Steven L. Whitehead
Deputy Attorney General
Steven Whitehead, Attorney at Law
Indianapolis, Indiana
Princeton, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David A. Tyrie, March 12, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-692
v. Appeal from the Gibson Circuit
Court
State of Indiana, The Honorable Jeffrey F. Meade,
Appellee-Plaintiff Judge
Trial Court Cause No.
26C01-1703-F4-220
26C01-1812-F4-1338
May, Judge.
[1] In this interlocutory appeal, David A. Tyrie appeals the trial court’s denial of
his motion to dismiss the charges against him. He presents two issues for our
review, one of which we find dispositive – whether the trial court abused its
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discretion when it allowed the State to refile charges against Tyrie. 1 We affirm
and remand.
Facts and Procedural History
[2] On March 7, 2017, the State charged Tyrie with Level 4 felony sexual
misconduct with a minor 2 under cause number 26C01-1703-F4-220 (“Cause
220”), based on a report that he engaged in a sexual act with J.S., who was
between the ages of fourteen and sixteen. The charging information alleged
Tyrie committed the crime “on or about December 18, 2016[.]” (App. Vol. II
at 17.) Police arrested Tyrie on March 10, 2017, and he appeared with counsel
the same day for arraignment. The trial court set an omnibus date of May 22,
2017, and a pretrial conference for June 7, 2017. On Tyrie’s motion, the
pretrial conference was rescheduled for August 24, 2017.
[3] At the pretrial conference, the trial court set a trial date of February 26-28,
2018, and scheduled a final pretrial conference for January 24, 2018. On
August 29, 2017, Tyrie filed a notice of alibi. On October 7, 2017, the State
filed an amended charging information, alleging Tyrie committed the crime “on
1
Tyrie also challenges numerous trial court rulings in Cause 26C01-1703-F4-220. However, as the trial court
dismissed that cause on January 30, 2019, those arguments are moot. See Bell v. State, 1 N.E.3d 190, 191
(Ind. Ct. App. 2013) (issue is moot when the appellate court is unable to provide effective relief on the issue);
see also Parrish v. State, 459 N.E.2d 391, 393 n.1 (Ind. Ct. App. 1984) (argument regarding constitutionality of
a statute moot because the charge governed by the statute was dismissed).
2
Ind. Code § 35-42-4-9(a)(1) (2014).
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or between November 1, 2016 and December 23, 2016[.]” (Id. at 22) (emphasis
in original omitted).
[4] On February 20, 2018, six days prior to trial, the State filed a second amended
charging information, alleging Tyrie committed the crime “on or between
September 1, 2016 and December 31, 2016[.]” (Id. at 23) (emphasis in original
omitted). On the same day, Tyrie filed an amended notice of alibi giving more
details regarding his whereabouts on December 18, 2016, and a motion to
continue his trial based on the State’s second amended charging information.
The trial court granted Tyrie’s motion to continue and rescheduled the trial for
April 9-11, 2018. On March 22, 2018, Tyrie filed a motion to continue the
April trial date in order to conduct further discovery. The trial court granted his
motion and rescheduled the trial for September 24-26, 2018.
[5] On August 20, 2018, Tyrie filed a “Motion for State to Elect Specific Act for
Which State of Indiana Intends to Seek Conviction[.]” (Id. at 10.) On August
24, 2018, the trial court held a pretrial conference. On that date, the trial court
scheduled a hearing on Tyrie’s August 20 motion for September 25, 2018, and
vacated the September trial dates. The trial court set Tyrie’s trial for December
17-19, 2018, with a final pre-trial conference to be held on December 6, 2018.
[6] On September 25, 2018, the trial court held a hearing on Tyrie’s motion. At
that hearing, the State told the trial court:
[T]he State doesn’t dispute what [Tyrie] has said in his motion as
far as what the State’s required to do. We don’t really dispute
what he’s argued this morning. I think the State’s intention at
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this point is to refile this under a new cause number. We’ll make
three separate counts. We’re going to supplement the original
affidavit. We won’t be changing anything in it, but we will be
supplementing the original affidavit.
And we will be asking the Court to then find probable cause
based on that, which we would expect that would happen since
probable cause was found originally. We’re just going to – I
think [Tyrie’s] right. The word – I don’t want to use the word
sloppy, but that’s the word that in my head, so I guess that’s what
I’ll say. The charging information was less than on point, so we
will try to tidy all that up and make specific allegations in each of
the individual three counts.
(Tr. Vol. II at 5-6.) The trial court granted Tyrie’s motion.
[7] On December 6, 2018, the State charged Tyrie with three counts of Level 4
felony sexual misconduct with a minor, alleging he committed those crimes “on
or about October, 2016,” “on or about November, 2016,” and “on or about
December, 2016,” (App. Vol. II at 29-31), under cause number 26C01-1812-F4-
1338 (“Cause 1338”). On the same day, the trial court held what should have
been the final pre-trial hearing in Cause 220. At that hearing, the State and
Tyrie informed the trial court of the new filing under Cause 1338. The State
indicated it had not filed a probable cause affidavit in Cause 1338 and asked the
trial court to set a probable cause hearing. Tyrie requested time to file
“responsive documents” to the charging information under Cause 1338. (Tr.
Vol. II at 14.) The trial court set a probable cause hearing for Cause 1338 for
January 30, 2019.
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[8] On December 19, 2018, Tyrie filed a motion to dismiss the counts under Cause
1338. On January 30, 2019, the trial court did not hold a probable cause
hearing. Instead it heard argument on Tyrie’s motion to dismiss. During that
hearing, the trial court denied Tyrie’s motion to dismiss Cause 1338 and sua
sponte dismissed Cause 220. Following the trial court’s decision, Tyrie
indicated he needed to “think about . . . whether or not this may be something
that we may want to consider as interlocutory.” (Id. at 23.)
[9] On February 27, 2019, Tyrie filed a motion asking the trial court to certify its
denial of his motion to dismiss in Cause 1338 for interlocutory appeal. The
trial court certified the matter for interlocutory appeal, and we accepted
jurisdiction on April 25, 2019.
Discussion and Decision
[10] “[W]e review a trial court’s denial of a motion to dismiss for an abuse of
discretion. An abuse of discretion occurs where the decision is clearly against
the logic and effect of the facts and circumstances or when the trial court has
misinterpreted the law.” Haywood v. State, 875 N.E.2d 770, 772 (Ind. Ct. App.
2007) (internal citations omitted). Tyrie argues that the trial court abused its
discretion when it denied his motion to dismiss the charges in Cause 1338
because the State should not have been permitted to refile charges against him.
[11] Tyrie relies on our Indiana Supreme Court’s decision in Davenport v. State, 689
N.E.2d 1226 (Ind. 1997), affirmed on reh’g 696 N.E.2d 870 (Ind. 1998). In
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Davenport, the State charged Davenport with murder on July 14, 1994, in
Marion Superior Court, Criminal Division 5. Id. at 1228-9. On February 2,
1995, four days before Davenport’s jury trial was to commence, the State filed a
motion to amend the charging information to add charges of felony murder,
attempted robbery, and auto theft. Id. at 1229. The trial court denied the
State’s motion.
[12] On February 6, 1995, the State dismissed the murder charge against Davenport
and refiled it, along with the three other charges of felony murder, attempted
robbery and auto theft. The State then transferred the case to Marion Superior
Court, Criminal Division 1. Id. Davenport filed a motion to dismiss the new
charges, which the trial court denied. The case went to a jury trial, Davenport
was convicted on all counts, and sentenced to an aggregate sentence of eighty-
eight years. Id. at 1228.
[13] Davenport appealed, arguing in part that the trial court erred when it denied his
motion to dismiss because “it allowed the State to abuse its power to his
prejudice.” Id. at 1229. The court set forth the law concerning the dismissal
and refiling of charging information:
Under the authority of Ind. Code § 35-34-1-13, the prosecuting
attorney may move for the dismissal of the information at any
time prior to sentencing. Ind. Code § 35-34-1-13(a) (1993). So
long as the motion states a reason for the dismissal, the trial court
must grant the motion. See Ind. Code § 35-34-1-13(a); Burdine v.
State, 515 N.E.2d 1085, 1089 (Ind. 1987).
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The dismissal of an information under Ind. Code § 35-34-1-13 is
not necessarily a bar to refiling. See Joyner v. State, 678 N.E.2d
386, 393 (Ind. 1997). Once an information has been dismissed
by the State under Ind. Code § 35-34-1-13, the State may refile an
information against the defendant, subject to certain restrictions.
For example, Indiana courts have long held that the State may
refile for the same offense so long as jeopardy has not already
attached. See Joyner, 678 N.E.2d at 393; Willoughby v. State, 660
N.E.2d 570, 577 (Ind. 1996); Burdine, 515 N.E.2d at 1089-90;
Johnson v. State, 252 Ind. 79, 246 N.E.2d 181, 184 (1969); Winters
v. State, 200 Ind. 48, 50-51, 160 N.E. 294, 294-95 (1928). Indiana
courts have also long held that the State’s power to dismiss and
refile may not be used to evade the defendant’s speedy trial
rights. See Burdine, 515 N.E.2d at 1090; Maxey v. State, 265 Ind.
244, 353 N.E.2d 457, 461 (1976); Dennis v. State, 412 N.E.2d 303,
304 (Ind. Ct. App. 1980).
The State may not refile if doing so will prejudice the substantial
rights of the defendant. See Joyner, 678 N.E.2d at 394;
Willoughby, 660 N.E.2d at 578; Dennis, 412 N.E.2d at 304.
Speedy trial and jeopardy rights are two specific examples of
substantial rights which cannot be prejudiced. While we have
not specifically defined what a substantial right is in other
contexts, it is relatively clear what situations do not necessarily
prejudice a defendant’s substantial rights. For example, the State
does not necessarily prejudice a defendant’s substantial rights if it
dismisses the charge because it is not ready to prosecute and then
refiles an information for the same offense. See Johnson, 246
N.E.2d at 183-84; Dennis, 412 N.E.2d at 304-05. Also, the State
does not necessarily prejudice a defendant’s substantial rights by
dismissing an information in order to avoid an adverse
evidentiary ruling and then refiling an information for the same
offense. See Joyner, 678 N.E.2d at 392-94. Furthermore, the
State does not necessarily prejudice a defendant’s substantial
rights when, on the refiled information, it amends the original
information but charges the same offense. See Willoughby, 660
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N.E.2d at 576-78; Maxey, 353 N.E.2d at 460-61. The defendant’s
substantial rights are not prejudiced in these situations primarily
because the defendant can receive a fair trial on the same facts
and employ the same defense in the second trial as in the first. See
Willoughby, 660 N.E.2d at 578; Maxey, 353 N.E.2d at 461; State v.
Joyner, 482 N.E.2d 1377, 1379 (Ind. Ct. App. 1985). Public
policy favors the prosecution of persons accused of criminal
offenses when a fair trial is available. See Gregor v. State, 646
N.E.2d 52, 54 (Ind. Ct. App. 1994).
Id. at 1229-30. Considering those factors, our Indiana Supreme Court held:
In the present case, the State received an adverse ruling in the
original trial court on its motion to amend the information. As a
result, defendant had to defend against one count of murder. In
response, the State dismissed the case and filed a second
information which contained four counts: the original murder
count plus the felony murder, attempted robbery, and auto theft
counts. Then, for no apparent reason other than because the
State knew that the court had already ruled that the State could
not include those additional three counts in the information, the
State moved for and was granted transfer to a different court. By
doing so, the State not only crossed over the boundary of fair
play but also prejudiced the substantial rights of the defendant.
Because of a sleight of hand, the State was able to escape the
ruling of the original court and pursue the case on the charges the
State had sought to add belatedly. This is significantly different
than what has been permitted in the past. Therefore, the trial
court erred in denying defendant’s motion to dismiss the felony
murder, attempted robbery, and auto theft charges. We reverse
the convictions on those charges.
Id. at 1230. Davenport is distinguishable from the case at bar.
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[14] Here, the State was permitted on October 7, 2017, and February 20, 2018, to
amend its charging information to expand the possible dates on which the
single charged crime allegedly occurred. Then at the September 25, 2018,
hearing on Tyrie’s motion to require the State to indicate the specific act with
which he was charged, the State admitted the charging information was
unclear, the prosecutor’s handling of the case had been “sloppy[,]” and the
State intended to refile the case with three separate charges to “tidy” the record.
(Tr. Vol. II at 5-6). On December 6, 2018, under a separate cause number, the
State refiled the original charge and filed two additional charges of Level 4
felony sexual misconduct with a minor. Both Cause 220 and Cause 1338 were
filed in the same court with the same judge.
[15] The procedural posture in the case at bar is different. Unlike the defendant in
Davenport, Tyrie has not gone to trial. Because Tyrie has brought an
interlocutory appeal, the trial court has not yet set a trial date, so the refiling of
charges has not prejudiced Tyrie’s ability to defend himself against the original
or additional charges. Additionally, the charges against Tyrie in Cause 1338
involve the same alleged victim and roughly the same time frame. Based
thereon, we conclude the trial court did not abuse its discretion when it denied
Tyrie’s motion to dismiss the charges in Cause 1338. See Hollowell v. State, 773
N.E.2d 326, 331 (Ind. Ct. App. 2002) (affirming denial of Hollowell’s motion to
dismiss because State’s refiling and addition of charges was not prompted by an
adverse ruling and Hollowell was “not forced to discard his prior preparation
for trial and begin all over with different charges, strategies, and defenses”).
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Conclusion
[16] The trial court did not abuse its discretion when it denied Tyrie’s motion to
dismiss the charges under Cause 1338. Accordingly, we affirm and remand.
[17] Affirmed and remanded.
Crone, J., and Pyle, J., concur.
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