MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 08 2016, 9:10 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Thompson, December 8, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1605-CR-1082
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark Stoner,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G06-1510-F3-36806
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 1 of 14
Case Summary
[1] Joshua Thompson (“Thompson”) was convicted after a jury trial of Armed
Robbery, as a Level 3 felony,1 and two counts of Resisting Law Enforcement,
one as a Level 6 felony and one as a Class A misdemeanor. 2 He now appeals.
[2] We affirm in part, reverse in part, and remand.
Issues
[3] Thompson raises two issues for our review, which we restate as
I. Whether the trial court erred when it permitted the State to
amend the charging information after the first day of trial,
after evidence had been heard by the jury; and
II. Whether one of Thompson’s convictions for Resisting
Law Enforcement is barred under double jeopardy
principles.
Facts and Procedural History
[4] On July 10, 2015, Nemecio Hernandez-Acevedo (“Hernandez-Acevedo”) had
borrowed a Chrysler 200, a car belonging to his cousin, Juan Noyoal-Rodriguez
(“Noyoal-Rodriguez”), to drive to work. After work, Hernandez-Acevedo
drove to a liquor store in Indianapolis. While in the parking lot of the store,
1
Ind. Code § 35-42-5-1(1).
2
I.C. § 35-44.1-3-1(a)(3).
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 2 of 14
Thompson and a companion approached the car. Thompson and his
companion, using an airsoft pellet gun3 that was cosmetically identical to a
standard firearm, held Hernandez-Acevedo at gunpoint and forced him to drive
them to a number of locations on Indianapolis’s east side. The pair eventually
left Hernandez-Acevedo at the side of a road and drove away in Noyoal-
Rodriguez’s car.
[5] Hernandez-Acevedo, with help from people at a nearby gas station, called
police, who responded and took a report. He then took a taxi cab home. When
he arrived at home, Hernandez-Acevedo told Noyoal-Rodriguez what had
happened. They called police and reported the car stolen. As a result of the
theft, a GPS device was activated on the car that allowed police to track it.
[6] A few days later, on July 13, 2015, Officer Charles King (“Officer King”) of the
Indianapolis Metropolitan Police Department was dispatched to investigate a
location where GPS systems indicated Noyoal-Rodriguez’s Chrysler might be.
Officer King saw the vehicle at the intersection of Falls Church Drive and Peter
Court in Indianapolis. Officer King saw Thompson driving the car and made
eye contact with Thompson; Officer King then activated the patrol car’s lights
to conduct a traffic stop, but Thompson drove away. Officer King pursued
Thompson a short distance down Peter Court, which ended in a cul-de-sac.
3
An airsoft gun uses compressed air to propel round plastic pellets, rather than metal pellets or BBs.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 3 of 14
Thompson drove the car into the yard of one of the houses on the cul-de-sac,
and then fled on foot.
[7] The Peter Court area backed up against Interstate 70. Thompson fled, climbed
over a fence separating the neighborhood from the highway, and ran across the
interstate highway. Officer King notified other officers of Thompson’s route,
and Thompson was eventually apprehended.
[8] After Thompson abandoned the car, Officer King began to search the vehicle
and saw the grip of a pistol jutting out from a map pocket on the driver’s door.
Officer King called for an evidence technician to photograph the scene and for a
gun liaison to retrieve the weapon. The gun liaison determined that the pistol
was an airsoft gun that was visually identical to a standard firearm, but that was
much lighter in weight and was capable of firing pellets or BBs.
[9] On October 16, 2015, Thompson was charged with four counts of Kidnapping,
as Level 3 felonies;4 two counts of Armed Robbery, as Level 3 felonies; one
count of Criminal Confinement, as a Level 3 felony;5 and two counts of
Resisting Law Enforcement, one as a Level 6 felony, and one as a Class A
misdemeanor. The charges for Armed Robbery differed as to the property
identified as having been taken by force from Hernandez-Acevedo. Both
charges shared language alleging that the charged offenses were committed “by
4
I.C. § 35-42-3-2(a).
5
I.C. § 35-42-3-3(a).
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 4 of 14
use of force or by threatening the use of force, to-wit: by demanding said items
while having brandished a handgun; said act being committed while the
defendant was armed with a deadly weapon, to-wit: said handgun.” (App’x at
40.)
[10] A jury trial was conducted on April 11 and 12, 2016. At the beginning of the
trial, the jury was instructed on Armed Robbery and all the other charges as per
the charging information. After the first day of the trial, the State moved to
amend the charging information so that it would allege that Thompson had
committed Armed Robbery using a deadly weapon, but would omit language
related to the use of a handgun. Thompson objected to the amendment as
untimely and as prejudicial to his defense. The trial court granted the State’s
motion to amend the charging information. When final instructions were
issued to the jury, they reflected the charges as amended and omitted any
mention of a handgun.
[11] At the close of the trial, the jury found Thompson guilty of one count of Armed
Robbery and both counts of Resisting Law Enforcement. The jury returned not
guilty verdicts on all other offenses except for Criminal Confinement, on which
the jury was hung. On April 29, a sentencing hearing was conducted, during
which the trial court entered judgment on the Armed Robbery and Resisting
Law Enforcement guilty verdicts, and the State moved to dismiss the Criminal
Confinement charge. At the conclusion of the hearing, the court sentenced
Thompson to nine years imprisonment for Armed Robbery, with one year to be
served in community corrections; two years imprisonment for Resisting Law
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 5 of 14
Enforcement, as a Level 6 felony, to be served in community corrections
consecutive to the sentence for Armed Robbery; and one year imprisonment for
Resisting Law Enforcement, as a Class A misdemeanor, with the sentence
running concurrent with the sentence for the felony-level charge of Resisting
Law Enforcement.
[12] This appeal ensued.
Discussion and Decision
Amendment of the Charging Information
[13] Thompson’s appeal first challenges the trial court’s decision granting the State’s
motion to amend the charging information after the first day of trial, because
the amendment was one of substance that impaired Thompson’s defense and
thus prejudiced his rights. The Indiana Code provides, “Upon 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.” I.C. § 35-34-1-5(c). The Indiana Supreme
Court has set forth the test for determining whether an amendment to the
charging information was one of form or of substance:
…an amendment is one of form, not substance, if both (a) a
defense under the original information would be equally
available after the amendment, and (b) the accused’s evidence
would apply equally to the information in either form. And an
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 6 of 14
amendment is one of substance only if it is essential to making a
valid charge of the crime.
Fajardo v. State, 859 N.E.2d 1201, 1207 (Ind. 2007).
[14] Even if an amendment is one of form, it must not prejudice a defendant’s
substantial rights. I.C. § 35-34-1-5(c) (“permit[ting] an amendment … in form
which does not prejudice the substantial rights of the defendant.”). Among a
defendant’s substantial rights are notice and an opportunity to be heard
regarding the charge. Nunley v. State, 995 N.E.2d 718, 723 (Ind. Ct. App. 2013)
(citing Gomez v. State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009), trans. denied),
clarified on reh’g, 4 N.E.2d 669, trans. denied. If an amendment does not affect
any particular defense or change the positions of either of the parties, it does not
violate the defendant’s substantial rights. Erkins v. State, 13 N.E.3d 400, 405
(Ind. 2014). “‘An amendment is of substance only if it is essential to making a
valid charge of the crime.’” Id. at 406 (quoting Fajardo, 859 N.E.2d at 1205).
“‘Ultimately, the question is whether the defendant had a reasonable
opportunity to prepare for and defend against the charges.’” Id. at 406 (quoting
Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998), abrogated on other grounds by
Fajardo, 859 N.E.2d at 1206-07).
[15] As the case proceeded through the first day of trial, Officer King testified that
the weapon found in the car Thompson had been driving on the day of his
arrest was an airsoft gun that fired “steel” or “plastic bb’s.” (Tr. at 97.) Officer
King further testified that the airsoft gun used compressed air to fire the
projectiles and that those projectiles could seriously injure an individual’s eye.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 7 of 14
Hernandez-Acevedo, upon being shown the airsoft gun, testified that
Thompson and his accomplice had used the gun to commit the robbery.
[16] After the jury had been dismissed for the day, the State moved to amend the
charging information, seeking to remove the language related to the use of a
handgun. Thompson opposed this, arguing that the defense he had prepared
for trial was premised on the distinction between a handgun and an airsoft gun.
Thompson argued that the use of the handgun language, incorporated into the
charging information as part of the deadly weapon element to be proved by the
State, meant the difference between a Level 3 felony and a Level 5 felony for
committing robbery while not armed with a deadly weapon. The State
conceded that Thompson’s position that the airsoft gun was not a handgun was
correct, but that the amendments posed no prejudice to Thompson’s defense.
The trial court agreed with the State and granted the motion to amend the
charges.
[17] Turning to the nature of the charges and Thompson’s defense, the charging
statute that defines the offense of Armed Robbery provides:
A person who knowingly or intentionally takes property from
another person or from the presence of another person:
(1) by using or threatening the use of force on any person; or
(2) by putting any person in fear;
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 8 of 14
commits robbery, a Level 5 felony. However, the offense is a
Level 3 felony if it is committed while armed with a deadly
weapon or results in bodily injury to any person other than a
defendant, and a Level 2 felony if it results in seriously bodily
injury to any person other than a defendant.
I.C. § 35-42-5-1.
[18] Prior to trial, the State had charged Thompson with two counts of Armed
Robbery. Each included allegations that Thompson had committed the
offenses “by use of force or by threatening the use of force, to-wit: by
demanding said items while having brandished a handgun; said act being
committed while the defendant was armed with a deadly weapon, to-wit: said
handgun.” (App’x at 40.) The court issued preliminary jury instructions based
upon this charge:
To convict the defendant, the State must prove each of the
following elements:
***
4. by using force or by threatening the use of force, to-wit: by
ordering [Hernandez-Acevedo] to exit said vehicle, leaving the
keys in said vehicle,
5. while armed with a deadly weapon, to-wit, a handgun.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 9 of 14
(App’x at 53.)6 The preliminary instructions also defined the term “deadly
weapon”:
The term “deadly weapon” is defined by law as meaning:
1. a loaded or unloaded firearm;
2. or a weapon, device, taser or electronic stun weapon,
equipment, chemical substance, or other material that in the
manner it is used, or could ordinarily be used, is readily capable
of causing serious bodily injury.
(App’x at 46.)
[19] As amended, the portions of the charges related to use of a deadly weapon for
Armed Robbery alleged that Thompson took property from Hernandez-
Acevedo, “by using force or by threatening the use of force, to-wit: by
demanding said items while having brandished a deadly weapon; said act being
committed while the defendant was armed with a deadly weapon.” (App’x at
69.) The trial court’s final instructions to the jury informed the jury of the
nature of the changes to the charging information, and for each count of Armed
Robbery stated that the State was required to prove each of the elements of the
charged offenses, including that Thompson “took property … from another
person … by using force or by threatening the use of force, to-wit: by
6
Both Armed Robbery charges were presented in the preliminary instructions; they differ only in the
property specified as having been taken by force.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 10 of 14
demanding said items while having brandished a deadly weapon.” (App’x at
84.)7 With respect to all the charged offenses involving use of a deadly weapon,
the jury ultimately found Thompson not guilty of all the Kidnapping and
Armed Robbery charges but one—that involving theft of the car Hernandez-
Acevedo had been driving.8
[20] Here, Thompson argues that the late-amended charging information impaired
his defense. Specifically, Thompson argues that the trial court’s decision
granting the State’s motion to amend the charging information was prejudicial
to his defense because Thompson’s theory of defense was that the airsoft gun
was not a firearm under Indiana law, and therefore did not constitute a
handgun as alleged in the charging information. Thompson relied on several
Indiana cases for this proposition, notably Miller v. State, in which this Court
held that a “CO2 gas powered .177 caliber pellet gun which looks exactly like a
Model 92 Beretta 9mm semiautomatic pistol” was not a handgun as that term
was defined in the Indiana Code, because such a weapon was not a firearm.
616 N.E.2d 750, 751 (Ind. Ct. App. 1990). The Miller Court reviewed this issue
sua sponte as a sufficiency-of-the-evidence issue, and vacated Miller’s conviction
because Miller’s pellet gun did not fit the definition of a handgun. Id. Citing
the Miller Court as authority, Thompson contends that the handgun terms of
7
The final instructions also set forth the lesser-included offense of Robbery as a Level 5 felony, to be
considered if the State failed to prove the deadly weapon element of Armed Robbery, as charged.
8
The jury was hung on the allegation of Criminal Confinement, and the State ultimately moved to dismiss
that charge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 11 of 14
the charges against him were essential elements of the charged offenses and that
his defense was impaired as a result of the amendment to the charging
information.
[21] We disagree. Use in the original charging information and the preliminary jury
instructions of the term “handgun” was not necessary under the charging
statute to establish a violation of Indiana Code section 35-42-5-1, which
provides that a Level 3 felony conviction for Robbery may be proved when the
defendant is “armed with a deadly weapon,” but does not by its terms require
proof of the use of a handgun. Revision of the charging information here to
delete the use of “handgun” does not change the fundamental charge or
statutory elements needed to prove the charged offense of Armed Robbery. See
Erkins, 13 N.E.3d at 406 (quoting Fajardo for the proposition that “‘[a]n
amendment is of substance only if it is essential to making a valid charge of the
crime’”). And while Thompson went into trial expecting to defend against a
handgun-related charge, he was aware before trial of the nature of the weapon
he was accused of having used in the charged offenses. He thus cannot claim to
have been deprived of notice of the evidence against him or of the charges. See
id. (reiterating Fajardo, “‘[u]ltimately, the question is whether the defendant had
a reasonable opportunity to prepare for and defend against the charges’”).
[22] We accordingly find no error on the part of the trial court in granting the State’s
motion to amend the charging information, and we affirm Thompson’s
conviction for Armed Robbery, as a Level 3 felony.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 12 of 14
Double Jeopardy
[23] Thompson’s other contention on appeal is that the trial court’s entry of
judgment on both felony- and misdemeanor-level charges of Resisting Law
Enforcement violates double jeopardy principles—specifically, Indiana’s
continuing crime doctrine—and that the misdemeanor conviction should be
vacated. The State, while not conceding the point, seems implicitly to agree.
[24] The continuing crime doctrine “‘reflects a category of Indiana’s prohibition
against double jeopardy.’” Chavez v. State, 988 N.E.2d 1226, 1228 (Ind. Ct.
App. 2013) (quoting Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010)),
trans. denied. The double jeopardy clause of the Indiana Constitution has been
interpreted to prohibit a defendant from being convicted multiple times for a
single continuous offense, rather than to reconcile the implications of two
separately chargeable offenses. Id. (citing Boyd v. State, 766 N.E.2d 396, 400
(Ind. Ct. App. 2000)).
[25] This Court has on several occasions expressly held that where a single episode
of flight from police involves a defendant’s use of a vehicle, abandonment of the
vehicle, and immediate and continued flight from police on foot, the
continuous crime doctrine operates to vitiate the lesser misdemeanor charge.
Lewis v. State, 43 N.E.2d 689, 691 (Ind. Ct. App. 2015) (citing Arthur v. State,
824 N.E.2d 383, 385 (Ind. Ct. App. 2005), disagreed with on other grounds, Brock
v. State, 955 N.E.2d 195 (Ind. 2011)). The facts here are on all-fours with those
cases: Thompson was pursued by police while driving the stolen Chrysler,
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 13 of 14
abandoned the vehicle, continued his flight on foot, and was soon thereafter
apprehended by other officers during the same pursuit. We accordingly agree
with Thompson that his Class A misdemeanor conviction for Resisting Law
Enforcement must be vacated. We leave undisturbed his conviction for
Resisting Law Enforcement, as a Level 6 felony, and remand this case to the
trial court to correct its records.
Conclusion
[26] The trial court did not err when it granted the State’s motion to amend the
charging information after the first day of the trial. Thompson’s conviction for
two counts of Resisting Law Enforcement is contrary to double jeopardy
principles, and we vacate his conviction for Resisting Law Enforcement, as a
Class A Misdemeanor, leaving his Level 6 felony conviction undisturbed. We
remand to the trial court for purposes of correcting its record.
[27] Affirmed in part, reversed in part, and remanded.
Najam, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1082 | December 8, 2016 Page 14 of 14