Charles Deon Martin v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
court except for the purpose of establishing Oct 21 2020, 10:37 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles D. Martin, October 21, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-351
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Plaintiff, Judge
Trial Court Cause No.
79D01-1905-F5-70
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Charles Martin was found guilty of one count of fraud on
a financial institution and one count of attempted fraud on a financial
institution, both Level 5 felonies; and one count of theft, one count of
attempted theft, and two counts of identity deception, all Level 6 felonies. The
trial court sentenced him to an aggregate sentence of fourteen years. Martin
appeals his convictions, raising two issues for our review: 1) whether the trial
court erred in allowing the State to amend the charging information for
attempted theft after his trial began, and 2) whether the prosecutor engaged in
misconduct by commenting on Martin’s failure to testify during closing
arguments. Concluding the trial court properly allowed the amendment as it
was an amendment to the form, not the substance, of the charging information,
and the prosecutor’s statement did not constitute fundamental error, we affirm.
Facts and Procedural History
[2] On April 29, 2019, Martin went to Fifth Third Bank (“Fifth Third”) in
Lafayette, presented a Florida identification card in the name of S.D., and
withdrew $7,620 from S.D.’s account. The address on the identification card
matched the bank’s information for an account belonging to S.D., although it
showed a different expiration date. The withdrawal slip Martin filled out
appeared to the teller to have been “rushed[,]” and she had concerns about the
signature match. Transcript, Volume II at 20, 22-23. Because of her
reservations, the teller sought the branch manager’s input, and he approved the
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transaction. After Martin left the bank, the teller remained uneasy and did
further research into the account. She eventually contacted S.D., who advised
he was in Florida. The teller then contacted police.
[3] That same day, Martin went to Tippecanoe County Regions Bank (“Regions”),
presented a Florida driver’s license with his picture but in P.R.’s name, and
requested to withdraw $7,620 from P.R.’s account. When Martin was unable
to provide the email address associated with the account, the bank manager
called the phone number on file. The person who answered the phone was able
to answer questions about the account and the manager therefore denied the
transaction while a teller surreptitiously called the police. Martin tried to leave
the bank but was intercepted by police responding to the call. Martin agreed to
speak with the police and was eventually placed under arrest. This interaction
was captured on video by the officer’s body camera. Police took the driver’s
license in P.R.’s name back to Fifth Third and the teller who had waited on
Martin recognized the picture on the license as that of the man who had
identified himself to her as S.D. earlier in the day. Martin told police that he
had been provided the identification by someone else and was to receive $1,000
of the withdrawn funds for completing the transactions.
[4] The State charged Martin with Count I, fraud on a financial institution for the
transaction at Fifth Third; Count II, attempted fraud on a financial institution
for the transaction at Regions Bank; Count III, theft for withdrawing money
from S.D.’s account; Count IV, attempted theft for attempting to withdraw
money from P.R.’s account; Count V, identity deception, for using S.D.’s
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identifying information; and Count VI, identity deception, for using P.R.’s
identifying information. The information for Count IV read:
Information of Attempted Theft
(Level 6 Felony)
***
On or about April 29, 2019, in Tippecanoe County, State of
Indiana, Charles Deon Martin did knowingly or intentionally
exert unauthorized control over the property of [P.R.], to-wit:
U.S. currency, with the intent to deprive [P.R.] of any part of the
use or value of the property, said property having a value of at
least seven hundred fifty dollars and less than the value of fifty
thousand dollars;
All of which is contrary to the form of the statute in such cases
made and provided, to-wit: I.C. 35-43-4-2(a) and I.C. 35-41-5-1
and I.C. 35-43-4-2(a)(1)(A) and I.C. 35-41-5-1 and against the
peace and dignity of the State of Indiana.
Appendix of Appellant, Volume II at 138.1
[5] At Martin’s jury trial, the trial court advised the jury during the preliminary
instructions that Martin was charged with, among other things, “Count IV:
Attempted Theft[.]” Tr., Vol. II at 4. The charging information as set out
above was also read to the jury. During its case-in-chief, the State introduced
1
Indiana Code section 35-43-4-2 defines the various levels of the crime of theft and section 35-41-5-1 defines
what constitutes an attempt to commit a crime.
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into evidence video of Martin’s interaction with police. At the conclusion of
the State’s presentation of evidence, the State moved to amend the charging
information for Count IV and the following discussion occurred:
[State]: The title of the charge says attempt but the body of the
language it actually is providing what the basis for the . . . charge
is, does not use the word attempt. . . . [W]e think everybody
understood that from all the evidence that was made available to
the defense and the way the trial has proceeded it was simply an
error to not include the word attempt in the body of the language.
So, we are asking the Court to just find it to be a Scrivener’s
error, which would allow us to still amend the charge at this
time.
***
[Defense counsel]: I understand counsel’s argument. The other
thing that is missing in addition to language attempt is the
substantial step[.] . . . Since it’s an attempt, . . . not only do you
have to address it as an attempt but then a substantial step . . . .
[State]: Well, it’s a little late to be,
[Court]: I believe it is. I believe it is. . . . [I]f there’s a question
about the charging information I would have thought a motion
prior to discussion of . . . those instructions in the preliminary,
were as to the Counts, and now raise it at this time, when the
evidence in this case would . . . tend to suggest that attempted
theft and that a substantial . . . step is what the evidence is. So,
[defense counsel], are you moving, or tell me what you’re doing.
[Defense counsel]: I was just making the observation Judge.
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***
[Court]: [State, a]re you moving then to amend by
intermediation or whatever the word is to have that language of
the substantial step?
[State]: [Y]es.
[Court]: I’m going to grant that. I don’t disagree with [defense
counsel] however I think the evidence goes in that direction. So
that’s how we are going to do that.
Id. at 118-20.2 The State then rested.
[6] Martin chose not to testify, and the defense rested without presenting any
evidence. During the State’s closing argument, the prosecutor said, “[Martin]
was cooperative with the police, but he was cooperative in a way that kind of
maximized his ability to minimize his involvement yet still kind of play the role
of accepting responsibility and coming clean to you. He testified, or he didn’t
testify but the evidence showed you in the video of his interview with the police that
he had actually purchased [the] button down shirt [he was wearing on April 29]
at Wal-Mart that morning to wear to commit the fraud because he had to play
2
Defense counsel pointed out during this conversation that the information for Count II, attempted fraud on
a financial institution, also lacked the “substantial step” language, though it did include the “attempt”
language. Id. at 118; App. of Appellant, Vol. II at 136. It is not clear if the State’s motion was intended to
amend Count II as well as Count IV, but Martin does not challenge any amendment of Count II on appeal.
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the role of a Doctor.” Tr., Vol. II at 127-28 (emphasis added). Martin did not
object to the State’s closing argument.
[7] During final instructions, the jury was properly instructed on the elements
required to find Martin guilty of attempted theft on Count IV, including the
requirement that Martin must have taken a substantial step toward the
commission of the offense. The jury was also instructed that “[a] Defendant
has no obligation to testify. The Defendant did not testify. You must not
consider this in any way.” Id. at 160-61. The jury found Martin guilty of all
charges. The trial court sentenced Martin to an aggregate sentence of fourteen
years, with ten years to be executed, two years served on supervised probation,
and two years served on unsupervised probation. Martin now appeals his
convictions.
Discussion and Decision
I. Amendment of the Charging Information
[8] Martin first contends the trial court erred in allowing the State to amend Count
IV of the charging information after trial began because the amendment was
one of substance, not form.
[9] The charging information advises the accused of the particular offense he is
charged with so he can prepare a defense and be protected from being placed in
jeopardy twice for the same offense. Absher v. State, 866 N.E.2d 350, 355 (Ind.
Ct. App. 2007). Whether an information may be amended after the
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commencement of trial depends upon whether the amendment is one of form or
substance. An amendment of substance is not allowed after trial has
commenced. See Ind. Code § 35-34-1-5(b). However, the court may “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” before, during, or after the trial. Ind. Code § 35-34-1-
5(c). An amendment is one of form if a defense under the original information
is equally available after the amendment and the defendant’s evidence applies
equally to the information in either form. Fajardo v. State, 859 N.E.2d 1201,
1207 (Ind. 2007). An amendment is one of substance if it is essential to making
a valid charge of the crime. Id. Whether an amendment is one of form or
substance is a question of law which we review de novo. Gibbs v. State, 952
N.E.2d 214, 221 (Ind. Ct. App. 2011), trans. denied.
[10] “A defendant’s substantial rights include a right to sufficient notice and an
opportunity to be heard regarding the charge[.]” Erkins v. State, 13 N.E.3d 400,
405 (Ind. 2014) (internal quotation omitted). If an amendment does not affect
any particular defense or change the positions of either of the parties, then the
defendant’s substantial rights are not violated. Id. The ultimate question is
whether the defendant “had a reasonable opportunity to prepare for and defend
against the charges.” Stafford v. State, 890 N.E.2d 744, 752 (Ind. Ct. App. 2008)
(quotation omitted).
[11] Martin contends he objected to the amendment, see Brief of Appellant at 8, but
in fact, his counsel specifically disavowed making an objection, stating that he
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was “just making that observation[.]” Tr., Vol. II at 119. Failure to object to
the amendment of a charging information results in waiver on appeal unless the
defendant can show fundamental error. See Absher, 866 N.E.2d at 355
(“[F]ailure to object at trial constitutes waiver of review unless an error is so
fundamental that it denied the accused a fair trial.”). But Martin has not
alleged fundamental error as to this issue. Thus, this claim is waived.
[12] Waiver notwithstanding, we conclude the amendment was one of form. In
Brown v. State, 912 N.E.2d 881 (Ind. Ct. App. 2009), trans. denied, the defendant
challenged a trial court’s ruling allowing the State to amend the charging
information after trial began to add language regarding intent to a charge of
possession of child pornography. Id. at 891-92 (alleging defendant “knowingly
or intentionally possess[ed] a picture, [etc.] that depicts or describes sexual
conduct by a child who is less than sixteen (16) years of age . . . intended to satisfy
or arouse the sexual desires of any person”) (amendment emphasized). We held that
the amendment adding the intent language did not materially change the
substance of the offense or affect the defendant’s defense. Id. at 892.
The charge before and after the amendment was possession of
child pornography, and the essential elements of the crime
remain unchanged. By adding the intent language, the State
made the charging information conform to the statutory language
defining sexual conduct in the context of the possession of child
pornography statute and essentially increased its burden by
adding an additional element to be proved by the State.
Id.
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[13] The same is true here. The original charging information for Count IV referred
to the crime as attempted theft and included citations to the attempt statute as
well as the theft statute; contrast this with the charging information for Count
III that alleged Martin had committed theft and included citations only to the
theft statute. See App. of Appellant, Vol. II at 137-38. In other words, Martin
was put on notice of the elements of the crime charged when the original
information was filed, and the amendment only made the language of the
charging information conform to the relevant statutes. Because this
amendment did not materially change the substance of the offense with which
Martin was charged, it was an amendment of form only and was allowed after
the commencement of trial.
[14] Martin contends the amendment prejudiced his substantial rights because it
deprived him of the defense “that he never exerted unauthorized control over
currency belonging to [P.R.] because he left the Regions Bank prior to
completing the transaction.” Br. of Appellant at 9. Martin cites Gibbs, 952
N.E.2d 214, in support of his argument. In Gibbs, the defendant was charged
with arson for knowingly damaging property belonging to two specific people
residing in a multifamily residence. After his trial began, the State moved to
amend the information to omit the specific names. The trial court allowed the
amendment over the defendant’s objection. The defendant argued on appeal
that the amendment should not have been allowed after trial began because it
was an amendment of substance. We agreed, noting that his planned defense—
that he did not cause damage to the specific apartments alleged but only to his
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own—was no longer available after the amendment and therefore the trial court
erred in allowing the amendment after trial began. Id. at 221-22. In Martin’s
case, however, the original information charged Martin with attempted theft of
P.R.’s money, it just omitted certain statutory language. Thus, his defense
would not have met the charge under either iteration of the charging
information. In other words, Martin was required to defend against the
substantial step element of the charge with or without the omitted language.
The amendment was a change of form that did not substantially prejudice
Martin’s rights and the trial court properly allowed the amendment even after
the trial commenced.
II. Prosecutorial Misconduct
[15] Martin also contends the prosecutor committed misconduct by commenting on
his decision not to testify. Because Martin did not object at the time, he now
argues the misconduct constituted fundamental error.
A. Standard of Review
[16] As our supreme court has explained,
[i]n reviewing a claim of prosecutorial misconduct properly
raised in the trial court, we determine (1) whether misconduct
occurred, and if so, (2) whether the misconduct, under all of the
circumstances, placed the defendant in a position of grave peril to
which he or she would not have been subjected otherwise. A
prosecutor has the duty to present a persuasive final argument
and thus placing a defendant in grave peril, by itself, is not
misconduct. Whether a prosecutor’s argument constitutes
misconduct is measured by reference to case law and the Rules of
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Professional Conduct. The gravity of peril is measured by the
probable persuasive effect of the misconduct on the jury’s decision
rather than the degree of impropriety of the conduct.
Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (quotations and citations omitted).
[17] To preserve a claim of prosecutorial misconduct, the defendant must—at the
time the alleged misconduct occurs—request an admonishment to the jury, and
if further relief is desired, move for a mistrial. Sciaraffa v. State, 28 N.E.3d 351,
358 (Ind. Ct. App. 2015), trans. denied. Failure to comply with these
requirements forfeits a prosecutorial misconduct claim. Delarosa v. State, 938
N.E.2d 690, 696 (Ind. 2010). Martin concedes he did not properly preserve his
claim of prosecutorial misconduct for appeal. See Br. of Appellant at 10. Thus,
to prevail on appeal, Martin must establish not only the grounds for
prosecutorial misconduct but must also establish that the prosecutorial
misconduct constituted fundamental error. Booher v. State, 773 N.E.2d 814, 818
(Ind. 2002).
[18] Fundamental error is an extremely narrow exception to waiver, and a
defendant faces the heavy burden of demonstrating that the alleged error was so
prejudicial to his rights that it rendered a fair trial impossible. Jerden v. State, 37
N.E.3d 494, 498 (Ind. Ct. App. 2015).
In other words, to establish fundamental error, the defendant
must show that, under the circumstances, the trial judge erred in
not sua sponte raising the issue because alleged errors (a)
“constitute clearly blatant violations of basic and elementary
principles of due process” and (b) “present an undeniable and
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substantial potential for harm.” The element of such harm is not
established by the fact of ultimate conviction but rather “depends
upon whether [the defendant’s] right to a fair trial was
detrimentally affected by the denial of procedural opportunities
for the ascertainment of truth to which he otherwise would have
been entitled.”
Ryan, 9 N.E.3d at 668 (citations omitted). To determine whether the
misconduct had such an undeniable and substantial effect on the jury’s decision
that a fair trial was impossible, we look at the alleged misconduct in the context
of all that happened and all relevant information given to the jury—including
evidence admitted at trial, closing argument, and jury instructions. Jerden, 37
N.E.3d at 498. Review for fundamental error is not intended to grant the
defendant a second bite at the apple; it is meant to permit appellate courts “to
correct the most egregious and blatant trial errors that otherwise would have
been procedurally barred[.]” Ryan, 9 N.E.3d at 668.
B. Comment on Failure to Testify
[19] “The Fifth Amendment privilege against compulsory self-incrimination is
violated when a prosecutor makes a statement that is subject to reasonable
interpretation by a jury as an invitation to draw an adverse inference from a
defendant’s silence.” Moore v. State, 669 N.E.2d 733, 739 (Ind. 1996). A
defendant bears the burden of proving that a prosecutor’s statement penalized
the exercise of his or her right to remain silent. Id. at 736. A prosecutor’s
subjective motivation in making a comment about a defendant’s silence is
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irrelevant: “It is the effect of a remark, not the intent of its speaker, that
frustrates a defendant’s exercise of the right to remain silent at trial.” Id. at 738.
[20] In this case, the prosecutor’s reference to Martin’s non-existent “testimony”
was inadvertent and his immediate correction was at most an indirect comment
on the conduct of the trial. Even though it was inappropriate for the prosecutor
to say, “he didn’t testify,” we cannot say this rose to the level of fundamental
error. Tr., Vol. II at 127. In context, the prosecutor misspoke, immediately
corrected his error, and clarified that he was referring to a particular piece of
evidence in which Martin’s words were admitted through a videotape. The
correction did not ask the jury to draw an inference of guilt from Martin’s
silence at trial or suggest that the jurors should do so. Additionally, the trial
court instructed the jury not to consider Martin’s failure to testify in any way.
Under these circumstances, we cannot say the prosecutor’s statement subjected
Martin to grave peril, nor did it make a fair trial impossible or constitute a
blatant violation of elementary due process principles. Cf. Nichols v. State, 974
N.E.2d 531, 534, 536-37 (Ind. Ct. App. 2012) (holding prosecutor’s statement
that “I usually don’t comment on a person’s [F]ifth [A]mendment right but I’m
gonna make an exception in this case . . .” constituted fundamental error
because it was an “obvious invitation to the jury to draw an adverse inference
from [the defendant’s] failure to testify” and “obviously suggested to the jury
that [the defendant] did not testify so as not to incriminate himself”).
Conclusion
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[21] The trial court properly allowed the State to amend the charging information
for Count IV after trial began to conform to the statutory language as the
amendment did not prejudice Martin’s substantial rights. Further, the
prosecutor’s brief statement that Martin “did not testify” did not improperly
comment on the invocation of his Fifth Amendment right not to testify and did
not constitute fundamental error. Accordingly, Martin’s convictions are
affirmed.
[22] Affirmed.
Crone, J., and Brown, J., concur.
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