Jason Morehouse v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 19, 2016
• Docket: 79A05-1508-CR-1304
• Status: Published

Opinion

MEMORANDUM DECISION FILED Apr 19 2016, 7:20 am Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court

purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jason Morehouse, April 19, 2016

Appellant-Defendant, Court of Appeals Case No. 79A05-1508-CR-1304 v. Appeal from the Tippecanoe Superior Court. The Honorable Steven P. Meyer, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 79D02-1503-FC-1

Sharpnack, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016 Page 1 of 8 Statement of the Case 1 [1] Jason Morehouse appeals his conviction of Forgery, a Class C felony. We

affirm.

Issues [2] Morehouse raises two issues, which we restate as:

I. Whether the trial court erred in allowing the State to amend the charging information. II. Whether the trial court erred in denying Morehouse’s motion to continue the trial after allowing the State to amend the charging information.

Facts and Procedural History [3] On the morning of March 23, 2014, Shirley Puterbaugh woke to discover

someone had stolen several jackets and purses from her home. One of the

purses contained her Discover credit card. After speaking with the police,

Puterbaugh called her credit card company to notify it of the theft. The

company’s representative told her the card had already been used that day at a

Sears store to purchase tires.

[4] Meanwhile, that same morning a man later identified as Morehouse arrived at a

Sears store in Tippecanoe County. He purchased four tires for $578.76, paying

with Puterbaugh’s Discover card. Morehouse told a Sears employee his name

1 Ind. Code § 35-43-5-2 (2006).

Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016 Page 2 of 8 was “James Puterbaugh” and provided a fake address and phone number.

State’s Ex. 3. There is no James Puterbaugh in Shirley Puterbaugh’s family.

[5] On March 17, 2015, the State filed an affidavit of probable cause, asserting

Morehouse had used “Shirley Puterbaugh’s Discover card” to buy tires at Sears.

Appellant’s App. p. 107. The State charged Morehouse with Count I, forgery,

alleging he had “used a Discover card belonging to James Puterbaugh, in such a

manner that the written instrument was purportedly used by James Puterbaugh,

and/or was purportedly used with the authority of James Puterbaugh, who did

not give such authority.” Id. at 104. The State also filed Count II, theft,

alleging Morehouse had “knowingly or intentionally exert[ed] unauthorized

control over property, to wit: a Discover card, of another person, to wit: James

Puterbaugh.” Id. at 103. For Count III, theft, the State alleged Morehouse had

stolen the tires from Sears. The State also filed a notice of intent to file an

habitual offender enhancement.

[6] At his March 20, 2015 initial hearing, the trial court scheduled a jury trial for

June 23, 2015. On April 20, 2015, the State filed amended charges I and II. In

amended charge I, the State replaced two references to James Puterbaugh with

Dennis Puterbaugh, Shirley Puterbaugh’s husband, although the amended

charge still asserted the credit card belonged to “James Puterbaugh.” Id. at 93.

In amended charge II, the State asserted Dennis Puterbaugh owned the credit

card. The trial court held an initial hearing on the charges as amended.

Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016 Page 3 of 8 [7] On June 5, 2015, the State moved to amend the charging information to add an

habitual offender enhancement. Morehouse objected. On June 11, 2015, the

court held a hearing on the State’s motion and subsequently denied it,

concluding “there has been no good cause shown to justify the late filing.” Id.

at 79.

[8] Meanwhile, the State learned Dennis Puterbaugh was not an owner of the

Discover card and was not authorized to use it. On June 12, 2015, the State

moved to amend counts I and II to replace all references to Dennis Puterbaugh

and James Puterbaugh with Shirley Puterbaugh. Morehouse objected. On

June 19, 2015, the court held a hearing on the State’s motion and granted it.

Morehouse requested a continuance of the trial, and the court denied his

motion. Later that same day, the magistrate held an initial hearing on the

amended charges. Morehouse renewed his objection to the amended charges

and renewed his request for a continuance of the trial. The magistrate declined

to change the trial court’s decisions.

[9] The case was tried to a jury on June 23 and 24, 2015. After the State presented

its case, Morehouse declined to present any evidence. The jury determined

Morehouse was guilty as charged. The court imposed a sentence, and this

appeal followed.

Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016 Page 4 of 8 Discussion and Decision I. Amendment of Charging Information [10] Morehouse appeals his forgery conviction, arguing the trial court erred by

allowing the State to amend the charging information eleven days before trial to

allege Shirley Puterbaugh owned the credit card.

[11] The State may amend a charging information as to matters of substance at any

time prior to trial if the State provides written notice to the defendant and the

amendment “does not prejudice the substantial rights of the defendant.” Ind.

Code § 35-34-1-5(b) (2007). In addition, the court may, upon motion of the

State, allow amendments to the information before, during, or after a trial to

correct “any defect, imperfection, or omission in form which does not prejudice

the substantial rights of the defendant.” Ind. Code § 35-34-1-5(c). Thus, when

the State moves to amend a charging information prior to trial, regardless of

whether the amendment is as to substance or as to form the key inquiry is

whether the defendant’s substantial rights have been prejudiced.

[12] In reviewing the trial court’s decision to permit an amendment to a charge, we

must consider whether the defendant had a reasonable opportunity to prepare

for and defend against the charges. Gaby v. State, 949 N.E.2d 870, 874 (Ind. Ct.

App. 2011). The substantial rights of the defendant are not prejudiced by an

amendment if: (1) a defense under the original information would be equally

available after the amendment; and (2) the defendant’s evidence would apply

equally to the information in either form. Id.

Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016 Page 5 of 8 [13] Morehouse argues the amending of the forgery charge to substitute Shirley

Puterbaugh for James Puterbaugh and Dennis Puterbaugh prejudiced his

defense because he had planned to argue that James Puterbaugh, the person

who had been identified in the charge as the owner of the card, did not exist,

and the amendment deprived him of that defense. In response, the State claims

Morehouse was neither surprised nor prejudiced by the State’s proposed

amendment because the original probable cause affidavit had correctly

identified Shirley Puterbaugh as the owner of the credit card.

[14] We conclude the amendment did not prejudice Morehouse’s substantial rights.

The essence of the forgery charge was that Morehouse used a credit card he did

not own in order to purchase tires. He was aware the State had alleged from

the beginning of the criminal case that Shirley Puterbaugh had an ownership

interest in the Discover card and had ample opportunity to investigate the

nature of her interest. Morehouse acknowledged at the hearing on the State’s

motion to amend that James Puterbaugh was not “a real person.” Tr. p. 33.

[15] In addition, Morehouse’s defense that he was not the person who used the

credit card to buy the tires was equally available before and after the State

sought to amend the charging information. Whatever evidence he would have

presented would have applied in either circumstance. Finally, after the trial

court granted the State’s motion to amend, Morehouse had eleven days to

pursue additional discovery and to prepare additional defenses. Under these

circumstances, the trial court did not err by granting the State’s motion to

amend the charging information. See Erkins v. State, 13 N.E.3d 400, 406 (Ind.

Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016 Page 6 of 8 2014) (no error in amending charging information where the State corrected the

mistaken placement of defendant’s name on the charging information;

defendant knew of the mistake well in advance of trial).

II. Denial of Continuance [16] Morehouse presents an alternative argument: even if the trial court did not err

by permitting the State to amend its charging information, the court should

have granted his motion to continue the trial.

[17] The governing statute provides, in relevant part:

Before amendment of any indictment or information other than amendment as provided in subsection (b), the court shall give all parties adequate notice of the intended amendment and an opportunity to be heard. Upon permitting such amendment, the court shall, upon motion by the defendant, order any continuance of the proceedings which may be necessary to accord the defendant adequate opportunity to prepare the defendant’s defense. Ind. Code § 35-34-1-5(d).

[18] Morehouse did not explain to the trial court, and fails to explain on appeal,

how a continuance was necessary to allow him to adequately prepare for trial.

He had been aware since the date the State filed the probable cause affidavit

that the State believed Shirley Puterbaugh had an ownership interest in the

credit card. Morehouse did not claim additional discovery was needed or

express a need to investigate previously unidentified defenses. Instead,

Morehouse told the trial court he requested a continuance “to preserve the issue

for appeal.” Tr. p. 34. Morehouse failed to demonstrate a continuance was

Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016 Page 7 of 8 necessary per Indiana Code § 35-34-1-5(d), and the trial court did not err in

denying his motion for a continuance. See Wilkinson v. State, 670 N.E.2d 47, 49

(Ind. Ct. App. 1996) (no error in denying motion to continue after State

amended charges where defendant failed to establish the amendment affected

his defense), trans. denied.

Conclusion [19] For the foregoing reasons, we affirm the judgment of the trial court.

[20] Affirmed.

Mathias, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A05-1508-CR-1304 | April 19, 2016 Page 8 of 8