James Eric Hill v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 28, 2015
• Docket: 82A01-1505-CR-420
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 28 2015, 8:18 am 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 Scott L. Barnhart Gregory F. Zoeller Brooke Smith Attorney General Keffer Barnhart LLP Indianapolis, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James Eric Hill, December 28, 2015 Appellant-Defendant, Court of Appeals Case No. 82A01-1505-CR-420 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable David D. Kiely Appellee-Plaintiff Trial Court Cause No. 82C01-1410-F6-4360

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015 Page 1 of 11 Case Summary [1] After being released from incarceration in July 2014, Hill registered his

principal residence address in Vanderburgh County, but on July 24 moved to a

new residence and failed to report the address change. His registration

violation was discovered months later by detectives performing a verification

check. Hill was charged with failing to register as a Level 6 felony, and the

charging information stated that “on or about July 23, 2014,” Hill was not

residing at his registered address. Hill was convicted and sentenced for failing

to register.

[2] On appeal, Hill contends that there was a fatal material variance in the State’s

charging information because Hill was not in violation on July 23, and the

evidence is insufficient to prove that Hill knowingly or intentionally failed to

register as required by statute. Hill also contends that his sentence is

inappropriate. Finding no material variance and sufficient evidence, we affirm

his conviction; finding that the sentence was not inappropriate in light of the

nature of the offense and character of the offender, we likewise affirm Hill’s

sentence.

Facts and Procedural History [3] In July 2014, James Eric Hill was released from incarceration at the Indiana

Department of Correction, where he had been serving a sentence for child

molesting. On July 11, before his release, Hill signed a State of Indiana Sex or

Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015 Page 2 of 11 Violent Offender Registration Form, which listed his post-release registration

obligations as a sex offender. Specifically, the form stated that he was required

to register his “principal address” with the Sheriff’s Department in the county in

which he was residing and also provided that if there was a change in address or

the other required information, Hill was required to report in person and submit

the new information to the local law enforcement authority having jurisdiction

over his principal address not later than seventy-two hours after the change. See

Ex. 1; see also Tr. p. 56-59. Hill signed this form below a line stating that he had

read and received a copy of the above information and understood his duties

and obligations to register. See Ex. 1. Additionally, before his release Hill had

taken a class that covered registration requirements and parole rules, and Hill’s

parole officer discussed the registration requirements at their initial interview.

[4] On July 18, Hill registered with the Vanderburgh County Sheriff’s Department

by submitting a Sex or Violent Offender Registration Form.1 On this

document, Hill stated that he would be living on Fares Avenue in Evansville.

Hill never submitted a change of address form to the Vanderburgh County

Sheriff’s Department after this initial form. Tr. p. 63.

[5] On October 14, Detective Mike Robinson of the Vanderburgh County Sheriff’s

Department, who acts as the coordinator for the sex and violent offender

1 This document, which was admitted into evidence as Exhibit 2, does not appear to have been included in the exhibits on appeal, but is referred to repeatedly throughout other parts of the record, such as the transcript and briefs.

Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015 Page 3 of 11 registry, asked two other detectives to conduct a verification check on Hill. The

detectives went to the last-reported address and did not locate Hill. They then

consulted the Sheriff’s Department’s Record Management System, which had a

different address listed for Hill—the Wood Creek Inn in Evansville.

[6] At the Wood Creek Inn, the detectives located Hill living in a hotel room with

his brother and mother. Hill’s parole officer and hotel records indicate that he

had moved there on July 24, 2014. Ex. 3; Tr. p. 109. When asked by the

detectives about his address registration, Hill told the detectives that he “meant

to have [his parole officer] take care of that.” Tr. p. 80. Hill’s parole officer had

already explained to Hill, however, that he was a “separate entity” from the

Sheriff’s Department and “c[ouldn]’t save him should he have a registry

violation.” Id. at 107. The detectives ultimately did not arrest Hill due to his

health problems and upcoming medical appointments, and because Hill was

being monitored by a GPS unit on his ankle and did not pose an immediate

threat. See id. at 75-76.

[7] The State charged Hill with failing to register as a Level 6 felony, and the

charging information stated that “on or about July 23, 2014,” Hill was not

residing at his registered address.2 See Appellant’s App. p. 11. Following a one-

day trial, the jury found Hill guilty. The trial court sentenced Hill to two-and-a-

2 The State also charged Hill with a second count, failure to possess identification as a Class A misdemeanor, because Hill had not obtained and could not produce a valid driver’s license or state-issued identification card containing a current address and physical description. See Ex. 1; Tr. p. 72. Hill does not challenge this conviction, however, so we do not include this information in the facts.

Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015 Page 4 of 11 half years on the failure-to-register conviction, with 188 days credit for time

spent incarcerated. See id. at 24-25; see also Sent. Tr. p. 155-56. Hill now

appeals his conviction and sentence.

Discussion and Decision [8] Hill presents three arguments on appeal. First, he alleges that there was a fatal

material variance between the crime charged and the evidence presented;

specifically, the State’s information charged that Hill was not residing at his

registered address “on or about July 23, 2014,” but the evidence at trial showed

that he actually moved the next day. Second, Hill contends that the evidence is

insufficient to prove that he knowingly or intentionally failed to register.

Finally, Hill argues that his sentence is inappropriate in light of the nature of

the offense and the character of the offender. Finding no merit to these

arguments, we affirm Hill’s conviction and sentence.

1. Charging Information [9] First, Hill alleges that the State’s information—which charged that Hill moved

“on or about July 23, 2014,” when in fact he had moved on July 24—was not

sufficiently particular and the incorrect date was a material variance from the

crime as charged. “A variance is an essential difference between proof and

pleading.” Neff v. State, 915 N.E.2d 1026, 1031 (Ind. Ct. App. 2009) (quoting

Reinhardt v. State, 881 N.E.2d 15, 17 (Ind. Ct. App. 2008)), trans. denied. A

variance is fatal if the defendant is misled by the charge in the preparation and

maintenance of his or her defense and was harmed or prejudiced as a result, Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015 Page 5 of 11 and conviction in light of the variance would raise future double jeopardy

concerns. Daniels v. State, 957 N.E.2d 1025, 1030 (Ind. Ct. App. 2011). As a

general rule, failure to make a specific objection at trial waives any material

variance issue. Neff, 915 N.E.2d at 1031. In this case, Hill referred briefly to

the date discrepancy in his closing argument but did not object to it before or

during the trial. As such, we find he has waived review of this argument.

[10] Waiver notwithstanding, we find no merit to Hill’s variance argument because

here there was no variance between “proof and pleading,” see Neff, 915 N.E.2d

at 1031—the charging information read “on or about July 23,” which would

certainly include July 24. See Appellant’s App. p. 11. Even if we were to find a

variance here, Hill has not shown how he was misled by the charging

information in preparing his defense and harmed or prejudiced as a result. See

Daniels, 957 N.E.2d at 1030. Essentially he argues that timing is essential to the

State’s charge because under Indiana Code section 11-8-8-11 he was required to

update his address not more than seventy-two hours after the change in

residence, and he had not even moved on July 23. But Hill cannot now argue

the critical importance of a three-day timing requirement when Hill still had not

updated his address information on October 14, months past the seventy-two-

hour window; indeed, Hill never updated his address information at all. We

find no fatal variance in the State’s charging information.

[11] Hill additionally contends, however, that the charging information subjects him

to double jeopardy because the State could file charges against him for failing to

register on dates spanning to October 14—a time period not covered by the

Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015 Page 6 of 11 charging information. Presumably he is arguing that the State should have

stated in the charging information that Hill was in violation of registration

requirements for this entire time period. We find no merit to Hill’s double-

jeopardy argument because the duty to register is a continuous one, and Hill’s

failure to register was one continuing crime. As such, the State may not

arbitrarily divide the offenses into separate time periods in order to prosecute

Hill again for failure to register. See Porter v. State, 935 N.E.2d 1228, 1232 (Ind.

Ct. App. 2010) (stating that the duty to support one’s child is a continuous one,

and a parent who fails to support a child commits a continuing crime, but the

State may not arbitrarily divide the offenses into separate time periods in order

to multiply the penalties). Therefore, Hill is not subject to double jeopardy for

failing to register during this time period.

2. Sufficiency of the Evidence [12] Next Hill contends that the evidence is insufficient to sustain his failure-to-

register conviction because the State failed to establish that he knowingly or

intentionally failed to register. When reviewing the sufficiency of evidence

supporting a conviction, we will not reweigh the evidence or judge the

credibility of witnesses. Stewart v. State, 866 N.E.2d 858, 862 (Ind. Ct. App.

2007). We look to the evidence most favorable to the conviction together with

all reasonable inferences to be drawn from that evidence. Id. We will affirm a

conviction if there is substantial evidence of probative value supporting each

element of the crime from which a reasonable trier of fact could have found the

defendant guilty beyond a reasonable doubt. Id.

Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015 Page 7 of 11 [13] In order to convict Hill of failing to register under Indiana Code section 11-8-8-

17, the State was required to prove beyond a reasonable doubt that Hill, a sex

offender, knowingly or intentionally did not live at the address at which he was

registered as required by statute. See Ind. Code § 11-8-8-17(a)(5). A person

engages in conduct “intentionally” if, when he engages in the conduct, it is his

conscious objective to do so. Ind. Code § 35-41-2-2(a). A person engages in

conduct “knowingly” if, when he engages in that conduct, he is aware of a high

probability that he is doing so. I.C. § 35-41-2-2(b).

[14] In this case, Hill does not dispute that he was required to register; instead, his

challenge centers on whether the evidence proved that he had the requisite

knowledge or intent. Specifically, Hill contends in his brief that “[i]t can be

reasonably inferred that Hill presumed he met his registration requirement by

reporting his change of address to his parole officer[.]” Appellant’s Br. p. 11.

The evidence shows, however, that Hill was aware he was required to report

any changes in information, including his address, to the Sheriff’s Department.

Specifically, the record shows that Hill signed two separate registration forms—

the State Registration Form and the Vanderburgh County Registration Form—

acknowledging his statutory duty to register his principal address with the

Sheriff’s Department in the county where he was residing, and to report any

changes in person to the “local law enforcement authority having jurisdiction

over [Hill’s] principal address” within seventy-two hours. Ex. 1; Tr. p. 60-62.

Further, his parole officer testified at trial that in addition to his reminding Hill

at his initial interview of the registration requirements, Hill had also taken a

Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015 Page 8 of 11 class before he was released that covered registration requirements and parole

rules. Tr. p. 106. With regard to Hill’s knowledge that notifying his parole

officer rather than the Sheriff’s Department of a change in address was

insufficient to satisfy the registration requirements, the following testimony

occurred at trial:

[The State]: During your meetings with Mr. Hill did you ever speak with him about what his duties were in regards to changing his address?

[Hill’s Parole Officer]: Yeah, . . . we talk about it at length because of the difference with it being a separate entity and I let them know that just because I’m his parole officer I can’t save him should he have a registry violation. I have no control over what the Sheriff’s Office says and does so to speak.

Tr. p. 107-08. We find the evidence is sufficient to show that Hill knowingly or

intentionally did not reside at the address at which he was registered as required

by statute. See I.C. § 11-8-8-17(a)(5).

3. Inappropriate Sentence [15] Finally, Hill argues that his sentence is inappropriate in light of the nature of

the offense and his character. Although a trial court may have acted within its

lawful discretion in imposing a sentence, Article VII, Sections 4 and 6 of the

Indiana Constitution authorize independent appellate review and revision of

sentences through Appellate Rule 7(B), which provides that a court “may revise

a sentence authorized by statute if, after due consideration of the trial court’s

decision, the Court finds that the sentence is inappropriate in light of the nature Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015 Page 9 of 11 of the offense and the character of the offender.” King v. State, 894 N.E.2d 265,

267 (Ind. Ct. App. 2008). This Court does not substitute its opinion for that of

the trial court, but instead attempts to “leaven the outliers.” Cardwell v. State,

895 N.E.2d 1219, 1225 (Ind. 2008). The defendant has the burden of

persuading us that his sentence is inappropriate. King, 894 N.E.2d at 267. The

sentencing range for a Level 6 felony is six months to two and one-half years.

Ind. Code § 35-50-2-7(b). The trial court sentenced Hill to two and one-half

years, with 188 days credit for time spent incarcerated.

[16] Here, the nature of the offense is that Hill, while on parole, failed to satisfy the

statutory sex-offender registration requirement of reporting his address change,

despite repeatedly acknowledging this requirement in forms he signed, taking a

class on registration requirements, and being reminded by his parole officer of

the requirement to do so. Hill moved from his registered principal address to a

different address in late July and still had not updated his address information

in mid-October, when he was found living at the unreported address. Hill’s

argument on appeal that this offense was a nominal violation that did not pose

an immediate threat to the safety of “himself or other citizens” is unavailing.

Appellant’s Br. p. 12. We find that the nature of the offense does not warrant

revision of Hill’s sentence.

[17] As to the character of the offender, we observe that Hill has an extensive

criminal history: four prior felony convictions and eight prior misdemeanors.

Again, he was on parole when he committed the instant offense. Hill asserts

that he obtained an associate degree in 2012 and has significant medical issues,

Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015 Page 10 of 11 including stage 4 liver fibrosis, chronic hepatitis C, and hypertension, among

other ailments. See Appellant’s Br. p. 12. Hill presents no argument, however,

as to why his associate degree or medical problems should play any role in our

consideration of his sentence. As articulated by the State, “While his health

problems may be significant, there is no showing that the Department of

Correction will be unable to provide for his needs or that his problems will be

unduly exacerbated by his sentence.” Appellee’s Br. p. 17-18. Hill has failed to

meet his burden of persuading us that his sentence is inappropriate in light of

the nature of the offense and character of the offender. See King, 894 N.E.2d at

267. We affirm Hill’s sentence.

[18] Affirmed.

Bailey, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 82A01-1505-CR-420 | December 28, 2015 Page 11 of 11