MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as May 24 2017, 9:42 am
precedent or cited before any court except for the CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Carlos I. Carrillo Curtis T. Hill, Jr.
Greenwood, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy J. Miles, May 24, 2017
Appellant-Defendant, Court of Appeals Case No.
79A04-1609-CR-2145
v. Appeal from the Tippecanoe
Superior Court.
The Honorable Sean M. Persin,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause No.
79D05-1512-CM-1337
Barteau, Senior Judge
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Statement of the Case
[1] Timothy J. Miles appeals regarding his conviction of one count of Class A
1
misdemeanor public indecency. We affirm.
Issues
[2] Miles raises several issues for our review, which we reorder and restate as
follows:
I. Whether the trial court abused its discretion by permitting
the State to amend the charging information after the
presentation of evidence;
II. Whether the trial court abused its discretion in admitting
the 911 tapes at trial;
III. Whether there is sufficient evidence to support Miles’
conviction for Class A misdemeanor public indecency;
IV. Whether trial counsel rendered ineffective assistance by
failing to object to and move to exclude evidence relating
to pre-trial and in-court identifications of Miles on the
basis that they were unduly suggestive; and
V. Whether the trial court’s sentence is inappropriate in light
of the nature of the offense and the character of the
offender.
Facts and Procedural History
[3] On November 22, 2015, Erika Ford, who at the time of trial was nineteen years
old, was off work from her job as a cashier at Walmart. She was shopping and
1
Ind. Code § 35-45-4-1 (2013).
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getting lunch with a friend at the Tippecanoe Mall. As they were leaving the
mall around noon, they observed a person, later identified as Miles, meandering
between the aisles of cars in the mall parking lot with his penis exposed and in
his hand.
[4] Startled by what they had seen, the two quickly proceeded to Ford’s car. When
they arrived there, they observed Miles, standing in front of Ford’s car with his
penis exposed and in his hand, while looking directly at Ford. As Ford
testified, “I was shocked. Kind of just surprised, you don’t see that every day I
guess.” Tr. p. 65. She called 911 to report the incident as she and her friend left
the mall parking lot.
[5] A short time later, Emma Nicoson, who at the time of trial was entering her
junior year at Purdue University studying retail management, had arrived early
as usual—around 12:30 p.m.—at the Tippecanoe Mall prior to her shift, which
began at 1:00 p.m., at the clothing store, Charlotte Russe. She remained in her
car, catching up on social media and eating a casserole her boyfriend had
provided for her to eat for lunch before work. She was distracted, however,
when she observed Miles urinating in the parking lot.
[6] Although at that point Nicoson did not observe Miles’ genitals, she did observe
the urine stream emanating from him, indicative of him urinating in public
between cars in the mall parking lot. Because she was alarmed by this unusual
behavior, she decided to remain in her car for as long as possible to avoid
contact with him before she attempted to enter the mall to report for work.
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[7] She kept vigilant while remaining in her car, hoping that he would move along.
She noticed, however, that Miles abruptly came toward her parked vehicle. He
then began smacking his exposed penis against the driver’s side window of her
car for approximately thirty to forty-five seconds as she sat there. He then
attempted to enter her car by grabbing the driver’s side door handle, but it was
locked. According to her trial testimony, she was able to briefly look at his
face, before dialing 911 for assistance.
[8] Once Miles became aware that Nicoson was dialing 911, he walked toward a
black Volkswagen hatchback and got into the car. Nicoson was close enough to
Miles’ vehicle to read the license plate number—166TCO—to the 911 operator
and provide a description of the vehicle. She was also able to provide a
description of Miles, who she observed as he left to walk to his car. He was
wearing a brown plaid jacket with a hood. Subsequent investigation revealed
that the vehicle was registered to Miles.
[9] Lafayette City Police Department Officer Jeffrey Davis was dispatched to the
mall after Nicoson called 911. Although Ford had already left the scene,
Officer Davis was able to meet with Nicoson, who, once again, provided a
description of Miles and the vehicle.
[10] While patrolling the area, Lafayette City Police Department Officer Jeff Rooze
located the vehicle matching the description and license plate number given by
Nicoson. Miles identified himself as the driver of the vehicle. Officer Rooze
noted that Miles wore black leather boots, blue jeans, and “a plaid brown or
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taupe colored hooded jacket.” Id. at 89. The officer took photographs of Miles’
fully-clothed backside and Miles’ vehicle.
[11] Later that same day, Nicoson identified Miles by the jacket he wore and the car
he drove. Officers also showed her a series of photographs of the backside of
Miles and of his car. When she testified, she identified Miles in court. Ford
also testified, identifying Miles in court and recounting the events that she
witnessed on the day in question.
[12] The trial court admitted the tape recordings of the 911 calls made by both Ford
and Nicoson, rejecting Miles’ objection based on lack of foundation. Miles
later admitted at trial that he was the person in the photographs taken by
Officer Rooze and that other photographs were of the Volkswagen Rabbit,
which he was driving near the mall on November 22, 2015.
[13] The State charged Miles with Class A misdemeanor public indecency. After a
jury trial, he was found guilty as charged. At his sentencing hearing on August
31, 2016, the trial court sentenced Miles to 365 days executed in the
Tippecanoe County Jail. Miles now appeals.
Discussion and Decision
I. Amendment of Charging Information
[14] Miles argues that the trial court abused its discretion by permitting the State to
amend the charging information, also arguing that fundamental error occurred.
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The State disagrees, contending that the trial court did not abuse its discretion
or commit fundamental error.
[15] The State charged Miles under Indiana Code section 35-45-4-1(a), which
provides that a person who knowingly or intentionally in a public place appears
in a state of nudity with the intent to arouse the sexual desires of the person or
another person or fondles the person’s genitals or the genitals of another person
commits the Class A misdemeanor offense.
[16] Prior to voir dire, the trial court stated the following:
I’m going to start by reading the charging information that were
[sic] filed in this case but I first must tell you that [] a filing of a
charge is only a formal method by which the State of Indiana
brings criminal charges against an individual. The filing of a
charge is not evidence and should not be considered by you as
any evidence of guilt. State of Indiana has charged the
defendant, Timothy J. Miles as follows: Count one public
indecency. That on or about August twenty-second, two
thousand and fifteen in Tippecanoe County, State of Indiana,
that Timothy J. Miles did knowingly or intentionally in a public
place being the Tippecanoe Mall appear in a state of nudity or
fondled himself or another person. That gives you a brief
summary of what the case is about here today.
Id. at 18-19. The State informed the trial court that the incorrect month was
read.
[17] Once the jury was selected, Preliminary Instruction Number 1.07 was given to
the jury, and, including the correct month, read as follows:
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The State of Indiana has charged the Defendant, Timothy J.
Miles, as follows:
Count I, Public Indecency, reads:
On or about November 22, 2015, in Tippecanoe County, State of
Indiana, Timothy J. Miles did knowingly or intentionally, in a
public place, to wit: Tippecanoe Mall, appear in a state of nudity
or fondled himself or another person.
Appellant’s App. p. 12.
[18] The trial court gave Preliminary Instruction Number 6.0400 regarding the
offense of public indecency. The instruction, which was given by agreement of
the parties, read as follows:
The crime of public indecency is defined by law in part as
follows:
A person who knowingly or intentionally in a public place (a)
appears in a state of nudity with the intent to arouse the sexual
desires of the person or another person, or (b) fondles the
person’s genitals or the genitals of another person commits public
indecency, a Class A misdemeanor.
Before you may convict the Defendant, the State must have
proved each of the following beyond a reasonable doubt:
1. The Defendant, Timothy J. Miles,
2. knowingly or intentionally,
3. at the Tippecanoe Mall,
4. which was a public place,
5. appeared in a state of nudity with the intent to arouse the
sexual desires of the Defendant or another person, to wit:
Emma Nicoson;
or
fondled Timothy J. Miles[’] genitals[.]
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If the State failed to prove each of these elements beyond a
reasonable doubt, you must find the Defendant not guilty of
public indecency, a Class A misdemeanor charged in Count I.
Id. at 12-13.
[19] After both the State and defense rested, the parties discussed final instructions
with the trial court. The trial court, on its own, observed that the final
instruction on public indecency did not track the language of the charging
information, which contained no reference to the element of intent, and
expressed concern that the discrepancy might lead to confusion of the jury. The
State argued that a scrivener’s error resulted in the inadvertent deletion from the
charging information of the language regarding intent. The State further argued
that the jury had been informed during the preliminary instructions that intent
was an element of the offense.
[20] First, Miles argued that the amendment was untimely, being one of substance,
not form, and was prejudicial to his defense.
[21] The charging information filed by the State originally read as follows:
Information of Public Indecency
I.C. 35-45-4-1(a) (class A Misdemeanor)
I.C. 35-45-4-1(b) (Class D Felony)
The Prosecuting Attorney for the Twenty-Third Judicial Circuit
of the State of Indiana informs that:
On or about NOVEMBER 22, 2015, in Tippecanoe County,
State of Indiana, TIMOTHY J MILES did knowingly or
intentionally, in a public place, to wit; TIPPECANOE MALL;
appear in a state of nudity or fondled the genitals of himself or
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another person with the intent to arouse the sexual desires of
himself or another person in or on a public place where a child
less that sixteen (16) years of age was present;
All of which is contrary to the form of the statute in such cases
made and provided and against the peace and dignity of the State
of Indiana.
Id. at 8 (with subsequent amendments handwritten).
[22] Indiana Code section 35-34-1-5(b) (2013) provides that an information may be
amended in matters of substance and the names of material witnesses may be
added upon written notice to the defendant at any time up to thirty days if the
defendant is charged with a felony or fifteen days if the defendant is charged
with a misdemeanor before the omnibus date or the commencement of trial if
the amendment does not prejudice the substantial rights of the defendant.
Miles contends that allowing the State to amend the information to include the
language involving the element of intent was an amendment of substance and
was, therefore, untimely.
[23] “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
original information.” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014) (quoting
Fajardo v. State, 859 N.E.2d 1201, 1203 (Ind. 2007)). Whether an amendment
to a charging information is a matter of substance or form is a question of law,
which we review de novo. Id. (citing State v. Moss-Dwyer, 686 N.E.2d 109, 110
(Ind. 1997)).
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[24] In addition to the subsection of the statute cited above, Indiana Code section
35-34-1-5(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.” The
State argues that the trial court’s decision was based on this subsection of the
statute.
[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.’” Gibson v. State, 51 N.E.3d 204, 211 (Ind. 2016)
(citing Erkins, 13 N.E.3d at 405 (quoting Gomez v. State, 907 N.E.2d 607, 611
(Ind. Ct. App. 2009), trans. denied)).
[26] Miles argues that the language in the original charging information is
ambiguous and can lead to different interpretations. He argues one
interpretation is that he could be convicted of public indecency if he appeared in
a public place in a state of nudity. Appellant’s Br. p. 11. However, a
conviction based on that evidence would be insufficient without proof of the
element of his intent to do so to arouse his or Nicoson’s sexual desires.
[27] He suggests that another interpretation is that he could be convicted if he
appeared in a state of nudity or fondled the genitals of himself or another
person with the intent to arouse the sexual desires of himself or another person
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in a public place where a child less than sixteen years of age was present. Id.
He claimed that there was no evidence that a child less than sixteen years of age
was present at the time alleged.
[28] He contends that he should not have been found guilty under either
interpretation and was prejudiced by the untimely amendment because it
deprived him of a valid defense under each interpretation.
[29] At trial, Miles’ defense was that he drove near the mall and through the mall
parking lot, but never parked his car or got out of the vehicle because of the
large number of people at the mall. He testified that he did not like to be
around large groups of people. He also testified about the number (14) of black
Volkswagens that were registered in Tippecanoe County. Put differently, his
defense was that he was not the person who did the acts testified about and
described by Ford and Nicoson.
[30] The trial court correctly observed that the inadvertent omission of the mens rea
element from the charging information could hardly be described as a
scrivener’s error. However, the defense agreed to the preliminary instruction
which contained the mens rea. Further, the amendment to the charging
information made the State’s case more tenuous in some respects regarding the
element of intent because both women testified that Miles’ penis was flaccid.
[31] Miles thoroughly cross-examined both Ford and Nicoson about what they had
observed, challenging their identification of him. He was able to present his
defense that he was not the person who committed the crime charged. Plus, the
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defense agreed to the preliminary instruction which informed the jury of the
mens rea for the offense, so Miles cannot complain he was surprised by the
State’s theory of the case, including the level of mental culpability involved.
The trial court did not abuse its discretion by allowing the amendment.
[32] Miles additionally argues that the trial court committed fundamental error by
including the mens rea in the preliminary instruction defining what the State
was required to prove. Miles makes the fundamental error argument because
he did not object, but instead agreed, to the preliminary instruction containing
that language. He argues on appeal that the trial court erred by sua sponte
amending the language of the preliminary instruction before the State moved
for the amendment.
[33] On rare occasions, appellate courts may resort to the fundamental error
exception to address on direct appeal claims that are otherwise procedurally
defaulted. Shoun v. State, 67 N.E.3d 635, 640 (Ind. 2017). Fundamental error is
an extremely narrow exception to the general rule requiring a contemporaneous
objection. Pattison v. State, 54 N.E.3d 361 (Ind. 2016). It is only available when
the record reveals a clearly blatant violation of basic and elementary principles
such that the harm or potential for harm cannot be denied and when the
violation is so prejudicial to the rights of the defendant as to make a fair trial
impossible. Shoun, 67 N.E.3d at 640.
[34] Because Miles agreed to the language of the preliminary instruction, the error, if
any, is invited error. The invited error doctrine prevents a party from taking
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advantage of an error he commits, invites, or is the natural consequence of his
own neglect or misconduct. Baugh v. State, 933 N.E.2d 1277, 1280 (Ind. 2010).
[35] Additionally, we would be hard-pressed to hold that a trial court committed
error, let alone fundamental error, by correctly instructing the jury on the law.
The trial court did not deprive Miles of a fair trial.
II. Admission of 911 Tapes
[36] Miles argues that the trial court abused its discretion by admitting the 911 tapes
in evidence. Trial courts have broad discretion in ruling on the admissibility
of evidence. Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). We review its
rulings for abuse of that discretion and will reverse only when admission of the
evidence is clearly against the logic and effect of the facts and circumstances
and the error affects a party’s substantial rights. Id.
[37] The 911 calls were introduced at trial over Miles’ objection as State’s Exhibits 1
through 6. He argued that neither Nicoson or Ford had personal knowledge of
the chain of custody of the recordings before they were admitted.
[38] “The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” Davenport v. State, 749 N.E.2d
1144, 1148 (Ind. 2001). Although neither Ford nor Nicoson were familiar with
the record-keeping procedures for the 911 calls, each reviewed the recordings
pertinent to them prior to trial and confirmed that the recordings were an
accurate reflection of the calls and identified their voices.
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[39] Assuming without deciding that the trial court abused its discretion by
admitting the recordings, the error, if any, was harmless. The 911 recordings
contained information that was cumulative of Ford’s and Nicoson’s testimony.
“Even the erroneous admission of evidence which is cumulative of other
evidence admitted without objection does not constitute reversible error.”
Hoglund v. State, 962 N.E.2d 1230, 1240 (Ind. 2012).
III. Sufficiency of Evidence
[40] Miles asserts that there is insufficient evidence that he committed public
indecency as a Class A misdemeanor. To establish beyond a reasonable doubt
that Miles committed the offense as charged, the State was required to prove
that Miles knowingly or intentionally appeared in a state of nudity or fondled
his genitals or those of another person with the intent to arouse his sexual
desires or those of Nicoson.
[41] A claim that there is insufficient evidence to support a conviction faces a
steep standard of review: we consider only the evidence and reasonable
inferences most favorable to the convictions, neither reweighing evidence nor
reassessing witness credibility. Griffith v. State, 59 N.E.3d 947, 958 (Ind.
2016). We affirm the judgment unless no reasonable factfinder could find the
defendant guilty. Id.
[42] Ford testified that she observed Miles in the Tippecanoe Mall parking lot, a
public place, holding his exposed penis in his hand while meandering between
rows of parked cars. The next time she saw him, she was in her car, and he was
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standing in front of her car, staring directly at her, while holding his exposed
penis in his hand. Nicoson testified that she first observed Miles urinating
between cars in the Tippecanoe Mall parking lot. Next, he approached the
driver’s side of her car and began to repeatedly smack his exposed penis against
the driver’s side window. He then attempted to open the driver’s side car door.
It is irrelevant for purposes of the conviction that he was flaccid, because the
statute required the State to prove that Miles engaged in the conduct with the
intent to arouse himself or another person, not that he or the other person must
have already been aroused. The evidence is sufficient to support the conviction.
IV. Ineffective Assistance of Trial Counsel
[43] On direct appeal, Miles raises a claim of ineffective assistance of trial counsel.
More specifically, he claims that his counsel should have filed a motion to
suppress Ford’s and Nicoson’s pre-trial identification of him on the basis that
the photographic display was unduly suggestive, so much so that it tainted their
in-court identification of him.
[44] A showing that counsel’s performance was deficient requires proof “that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment” and that the deficient
performance was “so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Brewington v. State, 7 N.E.3d 946, 977 (Ind. 2014)
(quoting Strickland v. Washington, 466 U.S. 558, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984)). On review, that determination requires us to make “every effort
. . . to eliminate the distorting effects of hindsight, to reconstruct the
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circumstances of counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time”—and thus, to “indulge a strong
presumption . . . that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91,
101, 76 S. Ct. 158, 100 L. Ed. 83 (1955)). “There are countless ways to provide
effective assistance in any given case. Even the best criminal defense attorneys
would not defend a particular client in the same way.” Strickland, 466 U.S. at
689.
[45] Though a decision is hypothetically a reasonable strategic choice, it may
constitute ineffective assistance if the purported choice is actually “made due to
unacceptable ignorance of the law or some other egregious failure rising to the
level of deficient attorney performance.” Woods v. State, 701 N.E.2d 1208, 1212
(Ind. 1998) (citing Kimmelman v. Morrison, 477 U.S. 365, 383-87, 106 S. Ct.
2574, 91 L. Ed. 2d 305 (1986)). However, when the challenged tactic is
hypothetically reasonable, overcoming the presumption of competent
representation by showing an actual misstep is the defendant’s burden. Id.at
1212 & n.5.
[46] The defendant’s burden seems more daunting when he risks review of
an ineffective-assistance claim on direct appeal—because counsel’s reasoning
may not be “apparent from the trial record,” making it “necessary for an
additional record to be developed to show the reason for an act or omission that
appears in the trial record.” Id. at 1212-13. Raising ineffectiveness
on direct appeal without the benefit of an additional post-conviction record is
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permissible, but the issue becomes res judicata and therefore is unavailable for
collateral review. Brewington, 7 N.E.3d at 978.
[47] Miles challenges his counsel’s decision not to file a motion to suppress Ford’s
and Nicoson’s pre-trial identification. The decision whether to file a particular
motion is a matter of trial strategy, and, absent an express showing to the
contrary, the failure to file a motion does not indicate ineffective assistance of
counsel. Glotzbach v. State, 783 N.E.2d 1221, 1224 (Ind. Ct. App. 2003).
[48] Our review begins with the presumption that trial counsel provided competent
representation. During trial, Miles testified that he was the individual depicted
in the photograph taken after he was stopped by Officer Rooze and that other
photographs depicted his car. These admissions were not inconsistent with the
theory of the defense—that Miles was not the person who did the acts testified
about and described by Ford and Nicoson. Miles’ counsel did not need to seek
to suppress the witnesses’ testimony to advance his theory of the defense. In
addition, counsel cross-examined Ford and Nicoson about their identifications
of Miles, thus challenging their credibility in front of the jury. Without
additional development of the record, Miles has not overcome the presumption
of competent representation and reasonable trial strategy. Trial counsel was not
ineffective and the issue is foreclosed from further appellate review.
V. Inappropriate Sentence
[49] Miles contends that his sentence is inappropriate in light of the nature of the
offense and the character of the offender.
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[50] Indiana Appellate Rule 7(B) provides, “[t]he Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” On appellate review, our principal role
should be to attempt to leaven the outliers without seeking to achieve a
perceived correct result in each case. Shoun, 67 N.E.3d at 642. It is the
defendant who bears the burden of persuasion that the sentence imposed by the
trial court is inappropriate. Id.
[51] When reviewing a sentence, we first look to our legislature’s determination of
the sentencing range. The sentencing range for a class A misdemeanor is a term
of imprisonment for a fixed term of not more than one year. Ind. Code § 35-50-
3-2 (1977). Miles received a sentence of one year executed. Thus, his sentence
is within the range prescribed by the legislature.
[52] Looking at the nature of the offense, we observe that Miles exposed himself to
two young women in the parking lot of a mall at a time during which it was
heavily occupied. By the accounts of both women, they attempted to avoid
contact with Miles’ due to his unusual and shocking behavior. However, Miles
followed Ford and her friend after they hurried to her car, and Miles confronted
Nicoson, who sat in her car, hoping to avoid any contact with him whatsoever.
Both were subjected to Miles’ sexually aggressive behavior. Nicoson testified
that after this event she experienced a great deal of stress, fear, and anxiety.
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[53] As for the character of the offender, we note that as a juvenile, Miles was
warned and released for an offense that would constitute battery if committed
by an adult in 1999. In the same year, no action was taken on an offense that
would constitute disorderly conduct. In late 1999, Miles was placed at an
alternative high school due to truancy issues. The following year a truancy
action was filed in which Miles was adjudicated a delinquent with supervised
probation and counseling. In 2001, he was charged with intimidation, pointing
a firearm, and dangerous possession of a firearm and was waived into adult
court and convicted of intimidation as a Class D felony in 2002. Further, as an
adult, Miles was convicted of battery resulting in bodily injury as a Class A
misdemeanor (originally filed as a Class D felony) in 2007. During the
pendency of this case, he faced charges for battery upon an eleven-year-old
child.
[54] Miles’s sentence is not inappropriate in light of the nature of the offense and the
character of the offender.
Conclusion
[55] In light of the foregoing, we affirm the trial court’s decision.
[56] Affirmed.
Baker, J., and Bradford, J., concur.
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Timothy J. Miles v. State of Indiana (mem. dec.)
Combined Opinion