FILED Jan 23 2024, 9:03 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James Harper Theodore E. Rokita Harper & Harper, LLC Indiana Attorney General Valparaiso, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Morales, January 23, 2024 Appellant-Defendant, Court of Appeals Case No. 23A-CR-522 v. Appeal from the Porter Superior Court State of Indiana, The Honorable Mary A. DeBoer, Appellee-Plaintiff Judge Trial Court Cause No. 64D05-2103-F1-1850
Opinion by Judge Crone Judges Bailey and May concur.
Crone, Judge.
Case Summary [1] Following a jury trial, Michael Morales was convicted of two counts of level 1
felony rape and one count of level 3 felony criminal confinement. On appeal, he Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 1 of 19 contends that the State presented insufficient evidence to support his rape
convictions. He also contends that the trial court erred in refusing one of his
proposed jury instructions, denying his motion for mistrial, and granting the
State’s motion to amend the charging information during jury deliberations.
Finding the evidence sufficient and no reversible error, we affirm.
Facts and Procedural History [2] Morales and K.M. married in February 2016 and had one child together, J.M.
Throughout the marriage, Morales cycled “up and down” emotionally, and he
often threatened suicide. Tr. Vol. 5 at 94. By February of 2021, the marriage
was “[v]ery strained[,]” and K.M. told Morales that she wanted a divorce. Id. at
199. Morales suggested that the couple try a two-week separation, and K.M.
agreed. On February 21, 2021, Morales moved out of the couple’s apartment,
taking his rifle and other firearms with him. The next day, Morales appeared at
K.M.’s workplace with a dozen roses and stated that he would grant her a
divorce. However, the following day, February 23, Morales went to the
apartment while K.M. was at work, broke a picture frame, and tore a family
photo into pieces. He texted K.M., “[D]on’t do this[,]” and “You’re ruining
[J.M.’s] life.” Tr. Vol. 4 at 143. Later that same day, Morales appeared at
K.M.’s workplace and accused her of having an affair with another resident of
the apartment complex.
[3] K.M. had minimal contact with Morales on February 24 and saw him briefly
on the morning of February 25, when she dropped two-year-old J.M. off at
Morales’s grandmother’s house on her way to work. K.M. worked until 10:00 Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 2 of 19 p.m. and drove home. Todd Kenton, one of K.M.’s work friends, met her at the
apartment. Kenton brought his AR-15 rifle with him so that he could show
K.M. how to use it for personal protection. Kenton spent about thirty minutes
instructing K.M. on how to use the rifle. When they were finished talking about
the firearm, Morales knocked on the apartment door. He had followed K.M.
home from work and had been listening to her and Kenton through the door.
When K.M. realized that it was Morales at the door, she ushered Kenton into
the bedroom because she knew that it would not “turn out well” if Morales
knew that Kenton was in the apartment. Id. at 162. K.M. opened the door a few
inches, and Morales pushed his way in, saying, “I heard him.” Id. at 164.
[4] Morales searched the apartment and found Kenton in the bedroom. He accused
K.M. of cheating and ordered Kenton to leave. Kenton left the apartment but
did not take the AR-15, which was lying on a desk in the living room. Morales
picked up the rifle and accused K.M. of “ripping [their] family apart.” Id. at
170. Morales also stated that he did not “want to live anymore.” Id. Morales
followed K.M. into the bedroom and threatened to take custody of J.M. He
then sat on the end of the bed and stated that his life was over and that he was
losing his family, and he again stated that he did not want to live anymore. As
Morales still held the rifle in his hand, he said, “[M]aybe I’d want to live longer
if you give me oral.” Id. at 173. K.M. believed that Morales was serious about
his suicide threat because he had never threatened suicide while holding a gun
in his hand. K.M. did not want to perform oral sex but complied because she
was afraid of what Morales might do. K.M. placed Morales’s penis in her
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 3 of 19 mouth, but after a few minutes, when his penis did not become erect, he
indicated that he wanted her to stop.
[5] Morales continued to hold the rifle and ordered K.M. to call Kenton, who was
still driving home to South Bend. Morales told Kenton that he would need to
take care of K.M. because he planned to take “everything” from her. Tr. Vol. 6
at 16. After the call ended, Morales paced around the apartment stating that he
did not want to live anymore. K.M. watched as Morales appeared to be loading
or unloading the rifle. Morales ordered her to get undressed. K.M. did not want
to get undressed, but she was “scared” about what Morales was going to do
with the rifle. Tr. Vol. 4 at 191. K.M. got undressed and lay on the bed. Id.
Morales climbed on top of her, still holding the gun with the barrel near her
head, and told her to put his penis in her vagina. K.M. did as she was
instructed. She did not want to have sexual intercourse with Morales but
complied because she thought he would hurt himself if she refused. Morales
told her that it would be her fault if he killed himself and that she would have to
explain it to her son. After a few minutes, Morales ejaculated, and the
intercourse ceased.
[6] Morales rolled off of K.M. stating, “I can’t believe I did that. I’m a monster. I
don’t deserve to live.” Id. at 193. K.M. scooted to the foot of the bed, feeling
numb and in shock. Morales had a “weird” look on his face, and K.M. became
worried that he was about to shoot himself in the head right in front of her. Id.
The two struggled over the rifle and the magazine, and K.M. gained control of
the magazine. She tried to run out of the apartment, but Morales blocked the
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 4 of 19 door and prevented her from leaving. He continued to confine her as she
retreated to J.M.’s bedroom. Morales was eventually able to grab the magazine
out of K.M.’s hands. K.M. got on the floor in a fetal position and placed her
hands over her ears as Morales placed the barrel of the rifle to the side of his
head. Morales pulled the trigger multiple times, but the rifle just “clicked.” Id.
at 201. Morales then ejected the magazine and tried to load a round into the
chamber manually, but the rifle still failed to discharge when he pulled the
trigger. He tossed the rifle aside and put his clothes on. He ordered K.M. to
wipe the rifle free of fingerprints, which she did. Morales then went in and out
of the apartment, packing and moving clothes while talking to his grandfather
on the phone and telling him that he had hurt K.M. “pretty bad.” Tr. Vol. 5 at
43. K.M. was able to lock the door and call 911 while Morales was out of the
apartment.
[7] Portage police officers responded to the scene just after 6:00 a.m. on February
26. Morales was in the parking lot near his vehicle, which had a flat tire.
Officers questioned K.M. She told them that Morales had threatened to kill
himself if she did not perform oral sex and engage in sexual intercourse with
him. She further reported that she did both as Morales was holding a rifle. The
officers arrested Morales. Sergeant Robert Nichols located the rifle and
attempted to make the weapon safe for transport by clearing the weapon of any
ammunition and engaging the safety. Sergeant Nichols was unable to engage
the safety because the trigger was pulled and the rifle was in firing position. He
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 5 of 19 opened the rifle to verify that there was no ammunition in the chamber or
barrel. He then secured the rifle in his vehicle.
[8] The State charged Morales with two counts of level 1 felony rape and two
counts of level 4 felony sexual battery. The State later filed an amended
information adding two counts of level 3 felony rape and one count of level 3
felony criminal confinement. A jury trial began on January 23, 2023. The jury
found Morales guilty as charged. The trial court entered judgment of conviction
on the level 1 felony rape and level 3 felony criminal confinement counts. The
court sentenced Morales to concurrent thirty-year terms, with five years
suspended to probation, for the level 1 felonies, and a concurrent nine-year
term, with four years suspended to probation, for the level 3 felony. This appeal
ensued.
Discussion and Decision
Section 1 – The State presented sufficient evidence to support the rape convictions. [9] Morales challenges the sufficiency of the evidence to support his level 1 felony
rape convictions. In reviewing a challenge to the sufficiency of the evidence, we
neither reweigh the evidence nor judge the credibility of witnesses. Anderson v.
State, 37 N.E.3d 972, 973 (Ind. Ct. App. 2015), trans. denied. We respect the
jury’s exclusive province to weigh conflicting evidence, and we consider only
the evidence most favorable to its verdict. Id. On appeal, it is not necessary that
the evidence overcome every reasonable hypothesis of innocence. Gray v. State,
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 6 of 19 957 N.E.2d 171, 174 (Ind. 2011). We must affirm if the evidence and the
reasonable inferences drawn therefrom could have allowed a reasonable trier of
fact to find the defendant guilty beyond a reasonable doubt. Anderson, 37
N.E.3d at 974.
[10] To prove the two allegations of rape in accordance with Indiana Code Section
35-42-4-1(a)(1), the State was required to prove that Morales knowingly or
intentionally had sexual intercourse with K.M. and caused her to perform or
submit to other sexual conduct when K.M. was “compelled by force or
imminent threat of force.” 1 The “force necessary to sustain a rape conviction
need not be physical, but ... it may be inferred from the circumstances.” Bryant
v. State, 644 N.E.2d 859, 860 (Ind. 1994). The presence or absence of force is
determined from the victim’s perspective, not the defendant’s. Tobias v. State,
666 N.E.2d 68, 72 (Ind. 1996). “This test is subjective and looks to the victim’s
perception of the circumstances surrounding the incident in question.” E.S. v.
State, 198 N.E.3d 701, 703 (Ind. Ct. App. 2022) (citation omitted).
[11] The State’s theory at trial was that Morales, while armed with a rifle, compelled
K.M. to engage in both intercourse and oral sex by threatening to kill himself.
Indeed, K.M.’s testimony made clear that she felt compelled to perform these
nonconsensual acts because she was afraid that Morales would hurt himself if
1 Other sexual conduct is defined in pertinent part as an act involving “a sex organ of one (1) person and the mouth or anus of another person[.]” Ind. Code § 35-31.5-2-221.5. The State was also required to prove that Morales committed his crimes while armed with a deadly weapon. Ind. Code § 35-42-4-1(b)(2). Morales does not challenge the sufficiency of the evidence in this regard.
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 7 of 19 she refused. Morales insists that this evidence was insufficient because the
phrase “force or imminent threat of force” as used in the rape statute
“contemplates a statement of intent to harm the victim or another person, not a
statement of intent to commit self-harm.” Appellant’s Amended Br. at 21.
[12] When assessing the sufficiency of the evidence of rape, we look to the victim’s
perception of the circumstances to determine the presence or absence of
“forceful compulsion.” Newbill v. State, 884 N.E.2d 383, 392 (Ind. Ct. App.
2008). Indeed, the issue is simply “whether the victim perceived the aggressor’s
force or imminent threat of force as compelling her compliance.” Id. As such, it
is the coerced or compelled acquiescence to sexual intercourse or other sexual
conduct that results from a threat that defines a rape. Morales’s assertion that a
defendant’s threat of self-harm cannot, as a matter of law, constitute “force or
imminent threat of force” misses the mark and attempts to create an exception
in the rape statute that simply does not exist.
[13] Morales maintains that, even assuming a defendant’s threat of self-harm can
satisfy the force/imminent threat thereof required pursuant to the rape statute,
the evidence presented here was insufficient to show that K.M. perceived his
threat of self-harm as imminent and/or as compelling her compliance. We
disagree. While holding a rifle in his hand, Morales repeatedly stated that he
did not want to live anymore and that his life was over. He then twice stated to
K.M., “[M]aybe I’d want to live longer if you give me oral.” Tr. Vol. 4 at 173.
K.M. testified that she perceived this statement as a suicide threat and to mean
that Morales would hurt himself if she did not comply. After the oral sex
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 8 of 19 occurred, Morales paced around the apartment still repeating that he did not
want to live anymore. As Morales held the gun in his hand, he ordered K.M. to
get undressed, lay on top of her, and had sexual intercourse with her. K.M.
stated that she complied because she was “scared” since Morales “had a gun in
his hand” and she “didn’t know what was going to happen.” Id. at 191. This
evidence is more than sufficient to support the jury’s conclusion that K.M.
perceived Morales’s threat of self-harm as both imminent and compelling her
compliance. Contrary to Morales’s suggestion, the fact that he did not actually
attempt to harm himself until after the rapes does not support an inference that
his threat was not imminent. If anything, that evidence supports K.M.’s
perception that Morales’s threat of self-harm was not hollow. The State
presented sufficient evidence to support the convictions.
Section 2 – The trial court did not err in refusing Morales’s proposed jury instruction. [14] We next address Morales’s claim that the trial court erred in refusing his
proposed jury instruction defining the term “threat.” The proposed instruction
was based upon a portion of the intimidation statute, Indiana Code Section 35-
45-2-1, and provided:
Threat means a communication, by words or action, of an intention to:
(a) unlawfully injure the person threatened or another person, or damage property;
(b) unlawfully subject a person to physical confinement or
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 9 of 19 restraint; or
(c) commit a crime[.]
Appellant’s App. Vol. 2 at 94. The trial court refused the proposed instruction
after determining that the definition of threat in the intimidation statute did not
apply in the context of rape. We agree.
[15] The purpose of an instruction is “to inform the jury of the law applicable to the
facts without misleading the jury and to enable it to comprehend the case
clearly and arrive at a just, fair, and correct verdict.” Overstreet v. State, 783
N.E.2d 1140, 1163 (Ind. 2003), cert. denied (2004). A trial court erroneously
refuses to give a tendered instruction if: “(1) the instruction correctly sets out
the law; (2) evidence supports the giving of the instruction; and (3) the
substance of the tendered instruction is not covered by the other instructions
given.” Id. at 1164. We typically review the trial court’s manner of instructing
the jury for an abuse of discretion. Ramirez v. State, 174 N.E.3d 181, 195 (Ind.
2021).
[16] Morales has not shown that the refused instruction correctly sets out the law in
the context of the rape statute. As noted above, the language of the instruction
proffered by Morales was taken from the intimidation statute, Indiana Code
Section 35-45-2-1. Indiana Code Section 35-31.5-2-330 provides that the
definition of “threat” set forth in Indiana Code Section 35-45-2-1(c) specifically
applies to the intimidation statute. There is a difference between when a statute
employs a word without defining it, such as the term threat in the rape statute,
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 10 of 19 and when our legislature promulgates specific statutory language, such as the
term threat in the intimidation statute. See Jackson v. State, 165 N.E.3d 641, 647-
48 (Ind. Ct. App. 2021), trans. denied. “When a statute employs a word without
defining it, courts generally should apply the word’s plain, ordinary, and usual
meaning, unless to do so would be contrary to the Legislature’s intent; but
technical words and phrases should be given their technical legal definitions.”
Id. (citation omitted). We agree with the State that the definition of the term
“threat” as used in the intimidation statute is a “technical legal definition”
applicable only in that specific context. See id. Morales’s proposed jury
instruction did not provide a plain, ordinary, and usual meaning of the term
“threat.” Accordingly, Morales’s proffered jury instruction was not a correct
statement of the law in the context of the rape statute. Therefore, the trial court
did not abuse its discretion in refusing the instruction. 2
2 Morales maintains that the trial court erred in failing to supplement the jury instructions with his proposed instruction after the jury sent questions during deliberations asking, “[Is it] still force if the victim was never personally threatened with harm to their own being[?]” and “what is [the] definition of force?” Tr. Vol. 7 at 19, 20. In response to the jury questions, the trial court proposed rereading the original jury instructions. Both parties agreed with this proposal, with defense counsel adding, “Unless you want to reconsider the threat instruction?” Id. at 20. The trial court indicated that it would not reconsider the threat instruction, emphasizing that the jury’s questions involved “threat, not force. So – I mean but good try.” Id. While we acknowledge that supplemental jury instructions have the potential to assist a deliberating jury, Ramirez, 174 N.E.3d at 195, an instruction that is not responsive to the jury’s questions, and more importantly, is not a correct statement of the law applicable to the case, would never be appropriate.
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 11 of 19 Section 3 – The trial court did not abuse its discretion in denying Morales’s motion for mistrial. [17] Morales contends that the trial court abused its discretion in denying his request
for a mistrial. “Whether to grant or deny a motion for a mistrial lies within the
sound discretion of the trial court.” Isom v. State, 31 N.E.3d 469, 480 (Ind.
2015), cert. denied (2016). “On appeal, the trial judge’s discretion in determining
whether to grant a mistrial is afforded great deference because the judge is in the
best position to gauge the surrounding circumstances of an event and its impact
on the jury.” Higgason v. State, 210 N.E.3d 868, 882 (Ind. Ct. App. 2023)
(citation omitted), trans. denied. “When determining whether a mistrial is
warranted, we consider whether the defendant was placed in a position of grave
peril to which he should not have been subjected; the gravity of the peril is
determined by the probable persuasive effect on the jury’s decision.” James v.
State, 613 N.E.2d 15, 22 (Ind. 1993). “[A] mistrial is an extreme remedy that is
only justified when other remedial measures are insufficient to rectify the
situation.” Isom, 31 N.E.3d at 481 (quoting Mickens v. State, 742 N.E.2d 927,
929 (Ind. 2001)).
[18] The AR-15 rifle that Morales possessed during the sexual assaults was discussed
and handled by two witnesses, Sergeant Nichols and Kenton, during cross-
examination by the defense. Sergeant Nichols handled the weapon and
explained how he took possession of it at the scene and that a round of
ammunition was not found in the chamber or barrel. The second witness,
Kenton, was asked by defense counsel to handle the weapon and verify that it
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 12 of 19 was empty of ammunition, which was part of the defense theory that the
weapon was not actually loaded during the assaults. When Kenton handled the
weapon, a round fell out of the weapon onto the ground. Defense counsel
continued his cross-examination, and Kenton was excused after redirect.
Following a recess, defense counsel moved for a mistrial because this “brings in
evidence that no one knew” and the “effect of that is prejudicial.” Tr. Vol. 6 at
49. The State also expressed its shock that a round was in the weapon but
argued that Morales had not explained how he was prejudiced by this
discovery. Indeed, the State argued, “[I]f anything, it’s going to prejudice the
State, because we just told the jury that [the weapon] was clear” when Sergeant
Nichols located it. Id. at 50. Moreover, the State pointed out that K.M. had
been consistent in her testimony that she did not know whether the weapon was
loaded during the assaults, so whether the round now discovered in the firearm
could be attributed to Morales loading the weapon at some point, or to Kenton
loading it prior to leaving the apartment, did not change the State’s theory of
the case or the “force issue.” Id. at 55. The State argued that “an admonishment
would be proper, if even that is needed. But a mistrial would be over the line.”
Id. at 51.
[19] After considering the gravity of the peril, the trial court determined,
The bottom line here in my estimation is that the issue is whether – that if he had a weapon, whether it was loaded or not, that could be received as a threat. And so – you know, and she has sat here the whole time saying, I didn’t know if it was loaded or not … so for purposes of argument, you guys need to argue what you
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 13 of 19 need to argue, but I’m going to say, no [to the motion for mistrial] and we are going to carry on.
Id. at 56. The trial court then permitted the State to recall Sergeant Nichols to
explain to the best of his ability how a round of ammunition could have been
left in the weapon despite the authorities believing that the weapon was clear
when they secured it at the scene. Sergeant Nichols explained that it was likely
Morales’s act of trying to manually insert a round into the chamber after the
assaults that caused the rifle to malfunction and the round to be displaced in an
area that the sergeant could not see when he inspected the weapon. 3 Morales
did not renew his motion for mistrial after Sergeant Nichols testified, nor did he
suggest that any additional remedial measures be taken.
[20] Under the circumstances, we cannot say that the trial court abused its discretion
in denying the motion for mistrial. We agree with the trial court that Morales
was not subjected to grave peril due to the round of ammunition falling from
the rifle during Kenton’s cross-examination. As already noted, K.M. repeatedly
admitted that she was unsure whether the rifle was loaded during the sexual
assaults, and, based on both the State’s and the defense’s theories of the case,
the actual status of the weapon when police recovered it is not germane to the
3 The record indicates that the deputy prosecutor called his supervisor and consulted with “a gaggle of prosecutors” to determine how to handle the bullet that had fallen from the rifle during trial. Tr. Vol. 6 at 57. Based upon this consultation, the deputy prosecutor recommended that the court mark the bullet as an exhibit and place it with the magazine, which the trial court did. Defense counsel did not object to the procedure.
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 14 of 19 issue of the presence or absence of “forceful compulsion” at the time of the
assaults. Moreover, Morales did not object to the curative measures permitted
by the trial court to explain this surprise evidence. In sum, the extreme remedy
of a mistrial was unwarranted. Accordingly, we find no abuse of discretion.
Section 4 – The trial court did not abuse its discretion in granting the State’s motion to amend the charging information during deliberations. [21] The record indicates that the original charging information alleged one count of
level 1 felony rape based on sexual intercourse and one count based on other
sexual conduct. However, in April of 2021, the State filed amended charges
with the intent of simply correcting one of the statutory citations listed for both
counts. 4 Apparently, the term “sexual intercourse” was inadvertently removed
from Count 1 and replaced by “other sexual conduct.” Appellant’s App. Vol. 2
at 21, 79. Accordingly, both amended counts alleged rape based only on other
sexual conduct.
[22] During a recess just prior to closing arguments, the State brought this error to
the court’s attention. The State noted that this error was not caught by anyone;
that both parties and the trial court had prepared for and openly discussed that
there were two allegations of sexual conduct, oral sex and sexual intercourse;
4 The original information for Counts 1 and 2 cited to Indiana Code Section 35-42-4-1(a)(1) and (b)(1), whereas the amended information corrected the latter cite to (b)(2) to indicate that Morales committed the crimes “while armed with a deadly weapon.” Appellant’s App. Vol. 2 at 21, 79.
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 15 of 19 and that both parties had consistently argued that both sexual acts occurred but
disputed whether K.M. consented to the acts or was compelled by force or the
imminent threat of force. The State requested to amend the information and to
instruct the jury accordingly. The trial court denied the request, agreeing with
defense counsel that the amendment was substantive and therefore untimely.
Closing arguments followed, with both parties acknowledging that both sexual
intercourse and oral sex occurred but disputing the element of force.
[23] After deliberations began, the jury sent a question asking, “Which count is oral?
Which count is intercourse?” Tr. Vol. 7 at 7. The trial court then reversed its
prior ruling and granted the State’s request to amend the information and to
revise and reread the jury instructions. The trial court stated,
Given the fact that the jury is confused by this – and I can understand that, and given the fact that I am now realizing I believe that I made an error in classifying the modification or the amendment as substantive, I think [the amendment] is conforming the charge to meet the evidence as well as not allowing the Defense to necessarily benefit or take advantage of the mistake in that regard. That is causing [the jury] confusion. You guys have been on notice from day one … I mean, the evidence is there. It will help clarify things for the jury.
Id. at 11. Thereafter, the trial court revised the final jury instructions to reflect
that Count 1 was rape alleging sexual intercourse and reread all of the jury
instructions to the jury.
[24] “A charging information may be amended at various stages of a prosecution,
depending on whether the amendment is to the form or to the substance of the
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 16 of 19 original information.” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014). Indiana
Code Section 35-34-1-5(b) provides, in pertinent part, that “[t]he indictment or
information may be amended in matters of substance ... before the
commencement of trial; if the amendment does not prejudice the substantial
rights of the defendant.” Regarding amendments in form, subsection (c)
provides that “[u]pon motion of the prosecuting attorney, the court may, at any
time before, during, or after the trial, 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.” Ind. Code § 35-34-1-
5(c).
[25] “A defendant’s substantial rights ‘include a right to sufficient notice and an
opportunity to be heard regarding the charge; and, if the amendment does not
affect any particular defense or change the positions of either of the parties, it
does not violate these rights.’” Erkins, 13 N.E.3d at 405 (quoting Gomez v. State,
907 N.E.2d 607, 611 (Ind. Ct. App. 2009), trans. denied). “‘Ultimately, the
question is whether the defendant had a reasonable opportunity to prepare for
and defend against the charges.’” Id. at 405-06 (citation omitted). “We review a
trial court’s decision on whether to permit an amendment to a charging
information for an abuse of discretion.” Hobbs v. State, 160 N.E.3d 543, 551
(Ind. Ct. App. 2020), trans. denied (2021).
[26] An amendment is one of form, not substance, “if a defense under the original
information would be equally available after the amendment and the accused’s
evidence would apply equally to the information in either form. Further, an
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 17 of 19 amendment is one of substance only if it is essential to making a valid charge of
the crime.” Erkins, 13 N.E.3d at 406 (citation omitted). “Whether an
amendment to a charging information is a matter of substance or form is a
question of law.” Id. “We review questions of law de novo.” Id.
[27] Here, the State was required to establish the elements of rape as set forth by
Indiana Code Section 35-42-4-1(a)(1), which provides that “a person who
knowingly or intentionally has sexual intercourse with another person or
knowingly or intentionally causes another person to perform or submit to other
sexual conduct” when “the other person is compelled by force or imminent
threat of force” commits rape. Both sexual intercourse and other sexual conduct
are acts that can underlie a valid rape charge. Based on the probable cause
affidavit, the original charging information, and the evidence available to both
parties before, during, and at the conclusion of trial, it was no surprise to
Morales that the State was alleging one act of sexual intercourse and one act of
other sexual conduct. Therefore, the error in the amended charging information
did not affect his ability to prepare his defense. As noted by the trial court, the
evidence presented by both parties indicated that Morales engaged in two
sexual acts with K.M., oral sex and sexual intercourse. The issue before the jury
was not whether those sexual acts occurred, but whether those acts constituted
rape, that is, whether K.M. was compelled by force or the imminent threat of
force. The amendment of the information to clarify for the jury which count of
rape was intended to apply to the oral sex and which count was intended to
apply to the sexual intercourse in no way impaired Morales’s defense and had
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 18 of 19 no effect on his ability to present evidence on the existence vel non of force.
Thus, the amendment to the charging information was one of form, not
substance, did not prejudice Morales’s substantial rights, and was a reasonable
response by the trial court to address the jury’s confusion. 5 The trial court did
not abuse its discretion in granting the State’s motion to amend.
[28] As for the trial court’s revision of the final instructions to provide the amended
charging language, and its decision to reread to the jury all final instructions,
Morales consented to this procedure. Accordingly, we need not review the trial
court’s decision in this regard. 6
[29] Affirmed.
Bailey, J., and May, J., concur.
5 Although Morales attempted to capitalize on the just-learned-of error during closing argument by suggesting that the sexual intercourse, forced or not, was not a crime charged by the State, see Tr. Vol. 6 at 216, this simply added to the jury’s confusion as to why the original jury instructions and charges did not match the evidence and theories presented at trial. 6 Defense counsel acknowledged that although he wished to preserve his objection to the trial court’s decision to allow the amendment to the charging information, he consented to the subsequent curative procedures employed by the court.
Court of Appeals of Indiana | Opinion 23A-CR-522 | January 23, 2024 Page 19 of 19