Warren v. Pierce v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 14, 2018
• Docket: 48A02-1708-CR-1807
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 14 2018, 10:54 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony C. Lawrence Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Warren V. Pierce, May 14, 2018 Appellant-Defendant, Court of Appeals Case No. 48A02-1708-CR-1807 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Angela Warner Appellee-Plaintiff Sims, Judge Trial Court Cause Nos. 48C01-1605-FC-940 48C01-1509-FA-1536

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018 Page 1 of 8 [1] Warren Pierce appeals his convictions for Class A Felony Child Molesting1 and

Class C Felony Child Molesting,2 arguing that the trial court erred by allowing

an amendment to the charging information. He also argues that his sentence is

inappropriate in light of the nature of the offenses and his character. Finding

no error and that his sentence is not inappropriate, we affirm.

Facts [2] Before 2013, K.L. and H.L. lived with their mother and Pierce, their stepfather.

During this time, while K.L. was between six and eight years old, Pierce forced

K.L. to perform oral sex on him numerous times. Pierce threatened to kill K.L.

if she ever told anyone about these acts. Eventually, K.L. told her father and

stepmother about Pierce’s actions, and they notified the police.

[3] Also during this time, beginning when H.L. was three years old and lasting

through December 2012, Pierce made H.L. put on his mother’s panties and

touched H.L.’s penis and testicles on numerous occasions. Pierce would

physically abuse H.L. when he refused to do as Pierce said. Both Pierce and

the children’s mother told H.L. not to tell anyone about the abuse. After the

children’s father obtained custody of the children, H.L. reported the sexual and

physical abuse.

1 Ind. Code § 35-42-4-3(a)(1). 2 I.C. § 35-42-4-3(b).

Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018 Page 2 of 8 [4] On September 18, 2015, the State charged Pierce in Cause Number 48C01-

1509-FA-1536 (Cause Number 1536) with Class A felony child molesting for

offenses against K.L. On May 12, 2016, the State charged Pierce in Cause

Number 48C01-1605-FC-940 (Cause Number 940) with Class C felony child

molesting for offenses against H.L. On August 21, 2016, the State moved to

join the two causes, and on September 26, 2016, the trial court granted the

motion. On February 27, 2017, the trial court scheduled a jury trial for June 20,

2017.

[5] A jury trial began on June 20, 2017. On June 22, 2017, the State filed a request

to amend the information for Cause Number 1536, seeking to extend the date

range of the offense by one year, replacing the start date of 2012 with a start

date of 2011. Pierce objected to the amendment because the request to amend

was made during the trial. The trial court granted the motion that same day.

Also on June 22, 2017, the jury found Pierce guilty as charged. On July 10,

2017, the trial court sentenced Pierce to forty-five years for the Class A felony

child molesting conviction and to seven years for the Class C felony conviction,

to be served consecutively, for an aggregate sentence of fifty-two years. The

trial court also found that Pierce is a sexually violent predator. Pierce now

appeals.

Discussion and Decision [6] Pierce makes two arguments on appeal: that the trial court erred by allowing

the State to amend the charging information in Cause Number 1536 and that

Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018 Page 3 of 8 his sentence is inappropriate in light of the nature of the offenses and his

character.

I. Amendment [7] Pierce argues that the trial court erred by allowing the State to amend the

charging information in Cause Number 1536. Specifically, he argues that,

because the amendment was made during trial, he did not have a reasonable

opportunity to investigate the prejudicial impact the amendment would have on

his defense.

[8] Indiana Code section 35-34-1-5 governs amendments to an information and

distinguishes between amendments to form and substantive amendments. “The

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.” I.C. § 35-34-1-5(b). The trial 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.” I.C. §

35-34-1-5(c).

[9] 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 v. State, 13 N.E.3d 400, 405 (Ind. 2014)

(quotation marks and citation omitted). “Ultimately, the question is whether

Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018 Page 4 of 8 the defendant had a reasonable opportunity to prepare for and defend against

the charges.” Id. at 405-06 (quotation marks and citation omitted). An

“amendment is one of form and 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

amendment is of substance only if it is essential to making a valid charge of the

crime.” Id. (citation omitted).

[10] When the trial court granted the State’s motion to amend the information in

Cause Number 1536 during trial, Pierce did not request a continuance.

Initially, we note that a defendant’s failure to request a continuance following

the granting of a late amendment to the charging information waives the issue

for appeal. Gaby v. State, 949 N.E.2d 870, 874 (Ind. Ct. App. 2011). Moreover,

Pierce only objected to the amendment on the grounds that it was untimely.

Now, on appeal, he argues that the amendment prejudiced his substantial rights

because it deprived him of the opportunity to investigate and present alibi

evidence. When a defendant raises grounds for objection on appeal that are

substantially different than those raised at trial, the issue is waived for appeal.

Griffin v. State, 16 N.E.3d 997, 1005 (Ind. Ct. App. 2014). Therefore, Pierce’s

argument is waived.

[11] Waiver notwithstanding, the amendment to the information was of form, not

substance, because it was not essential to making a valid charge of the crime.

Time is not an element of the crime charged, see I.C. § 35-42-4-3(a)(1), and it is

well established that time is not of the essence in a child molesting case. E.g.,

Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018 Page 5 of 8 Barber v. State, 870 N.E.2d 486, 492 (Ind. Ct. App. 2007). The amendment to

the charging information extended the start time for the offense by one year,

from May 2012 to May 2011, thereby conforming to K.L.’s testimony about

when she was molested. See Bennett v. State, 5 N.E.3d 498, 514 (Ind. Ct. App.

2014) (finding that amendment made at trial was one of form and not of

substance when change in date of offense to conform to trial evidence was not

essential to charge because time was not of the essence for the offense).

[12] In addition, the amendment did not prejudice Pierce’s substantial rights because

it did not affect any defense available to him. Although Pierce argues that he

could have developed an alibi defense for the expanded date range, had an alibi

defense been available, he would have been immediately aware of it and could

have asked for a continuance to develop it. Moreover, Pierce argues that his

alibi defense would have relied on the fact that the children were rarely at his

home after their father obtained custody. But the children’s father obtained

custody in January 2013, whereas the amendment modified the start date of the

offense from 2012 to 2011. Pierce makes no argument on appeal that he had an

alibi defense, or any other defense, for that earlier time period. In short, Pierce

fails to demonstrate that the amendment affected his substantial rights, and his

argument regarding the amendment to Cause Number 1536 is unavailing. The

trial court did not err by allowing the State to amend the charging information.

Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018 Page 6 of 8 II. Sentence [13] Pierce asserts that his sentence is inappropriate in light of the nature of the

offenses and his character pursuant to Indiana Appellate Rule 7(B). In

considering an argument under Rule 7(B), we must “conduct [this] review with

substantial deference and give ‘due consideration’ to the trial court's decision—

since the ‘principal role of [our] review is to attempt to leaven the outliers,’ and

not to achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d

1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.

2013)) (internal citations omitted).

[14] Pierce was convicted of Class A felony child molesting. For this conviction, he

faced a sentence of twenty to fifty years, with an advisory term of thirty years.

Ind. Code § 35-50-2-4(a). The trial court imposed a sentence of forty-five years.

Pierce was also convicted of Class C felony child molesting. For this

conviction, he faced a sentence of two to eight years, with an advisory term of

four years. I.C. § 35-50-2-6(a). The trial court imposed a sentence of seven

years. The trial court ordered the sentences to run consecutively for an

aggregate term of fifty-two years. Had the trial court imposed the maximum

sentence, Pierce would have received a sentence of fifty-eight years.

[15] With respect to the nature of the offenses, Pierce took advantage of a position of

trust when he sexually molested his two young stepchildren numerous times

over several years. Pierce forced K.L. to perform oral sex on him numerous

times, beginning when she was just six years old. Pierce touched H.L.’s

Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1807 | May 14, 2018 Page 7 of 8 genitals in a sexual manner numerous times, beginning when he was just three

years old. When H.L. tried to refuse Pierce’s demands, Pierce physically

abused him. Further, Pierce threatened the children to prevent them from

telling anyone about the abuse.

[16] With respect to Pierce’s character, we note that, although these convictions are

his first felony convictions, he has a criminal history that includes

misdemeanors for driving without a license in possession and resisting law

enforcement. He was charged with other misdemeanors, including criminal

mischief, disorderly conduct, and being a minor in possession, that were

dismissed. Although Pierce points out that he has been gainfully employed

despite being disabled, because many people are gainfully employed,

employment does not necessarily reflect on his character. Pierce also argues

that he suffered a troubled childhood, but he fails to show how that reflects on

his character, justifies his actions, or negates the harm he caused his

stepchildren. In short, Pierce fails to point to anything in his character that

mitigates the egregious actions he took against his stepchildren.

[17] Under these circumstances, we find that the sentence imposed by the trial court

is not inappropriate in light of the nature of the offenses and Pierce’s character.

[18] The judgment of the trial court is affirmed.

Kirsch, J., and Bradford, J., concur.

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