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.
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[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).
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[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
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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
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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.,
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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.
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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
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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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Warren v. Pierce v. State of Indiana (mem. dec.)
Combined Opinion