Locke v. State

530 N.E.2d 324, 1988 Ind. App. LEXIS 919, 1988 WL 124116

• Court: Indiana Court of Appeals
• Decided: November 23, 1988
• Docket: No. 34A02-8709-CR-00357
• Status: Published

Opinions

SULLIVAN, Judge.

Daniel J. Locke appeals his convictions upon seven counts of child molestation as a Class C felony. The charges were contained in two separate informations. Cause No. 6841 set forth two counts and Cause No. 6874 set forth five additional counts. All charges were consolidated for trial.

Locke presents two issues for our review:

(1) Whether the trial court erred in denying Motions to Dismiss the charges upon grounds that the offenses were inadequately charged in that the names of the victims were not alleged; and

(2) Whether he was entitled to sever all seven counts of the two informations so as to have seven separate and independent trials.

Because we reverse upon the first issue, we do not address the second issue.

ADEQUACY OF THE CHARGES

The State concedes that in order to clearly apprise a defendant of the charge against him and to enable him to prepare a defense, the name of the victim must be alleged. Robinson v. State (1953) 232 Ind. 396, 112 N.E.2d 861; Fadell v. State (1983) 4th Dist. Ind.App., 450 N.E.2d 109. However, without citation of authority it contends that such defect was cured by the attachment of the probable cause affidavits and statements from the various victims.

Indiana Code 35-34-1-2 (Bums Code Ed. Repl.1985), the statute setting forth the requisite contents of an information, provides:

“(a) The indictment or information shall be in writing and allege the commission of an offense by:

# * * * # *

(4) Setting forth the nature and elements of the offense charged in plain and concise language without unnecessary repetition....”

This requirement does not contemplate incorporation by attachment of a probable cause affidavit and a nineteen page statement of one who may or may not be the purported victim of a particular charge. Record at 8-25 inclusive.

Even in jurisdictions in which a bill of particulars is permitted to flesh in the details of a short-form charge, such will not cure a defect in an information. 41 Am. Jur.2d Indictments and Informations § 165 (1968). Furthermore, as held in Sherrick v. State (1906) 167 Ind. 345, 79 N.E. 193:

“under the certainty required in criminal pleading in this State, whenever a trial judge finds it necessary to the administration of justice to grant a bill of particulars, he has found an ample reason for quashing the indictment for uncertainty.” 167 Ind. at 350, 79 N.E. 193.

To the same effect is State v. Reichert (1948) 226 Ind. 171, 78 N.E.2d 785.

Whether or not the State might have successfully argued that Locke waived the inadequacy of the charges does not relieve us of the obligation to consider the merits of the appellate contention. Notwithstanding the position taken by Judge Buchanan in his dissent, Dodson v. State (1987) Ind., 502 N.E.2d 1333 holds that unless the State presents the waiver question we must address the merits of the issue.

Accordingly, we hold that the State may not supplement the information by extraneous matter attached thereto. Therefore, the trial court erred in denying the Motions to Dismiss.

We reverse and remand with instructions to set aside the convictions and to dismiss the charges.

STATON, J., concurs. BUCHANAN, J., dissents with opinion.