MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Jun 12 2018, 10:43 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Frederick Vaiana Curtis T. Hill, Jr.
Voyles Vaiana Lukemeyer Baldwin & Attorney General of Indiana
Webb
Indianapolis, Indiana Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bryan C. Ellis, June 12, 2018
Appellant-Defendant, Court of Appeals Case No.
49A02-1712-CR-2760
v. Appeal from the Marion Superior
Court.
The Honorable Alicia A. Gooden,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause No.
49G21-1510-F4-37645
Friedlander, Senior Judge
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[1] Brian C. Ellis appeals his convictions of unlawful possession of a firearm by a
1
serious violent felon, a Level 4 felony, and driving with a suspended license, a
2
Class A misdemeanor. We affirm.
[2] On the night of October 20, 2015, Officer Brian Zootz and Officer Dane Elkins
of the Indianapolis Metropolitan Police Department were on patrol together in
a marked police car. They saw a black Pontiac driving in the opposite
direction. Zootz turned his car around to follow the Pontiac, intending to look
up its license plate on his computer. He did not activate his lights or siren.
[3] The Pontiac accelerated as it drove away at a high rate of speed. Officer Zootz
followed and saw that the car made three turns without signaling before pulling
into a driveway and stopping. The driver, later identified as Ellis, got out of the
Pontiac and walked toward a house. When Ellis was halfway to the house, he
returned to the car, opened the driver’s door, and briefly leaned into the car
before closing the door again and walking away.
[4] Next, Officer Zootz saw Ellis walk toward the side of the house, and he
suspected Ellis intended to flee on foot. Zootz ordered Ellis to walk to the
police car, and he complied. As Ellis stood by the police car, Officer Elkins
looked in the Pontiac and saw a handgun in plain view on the floor near the
driver’s seat. No one else was in the car. Elkins told Zootz about the handgun,
1
Ind. Code § 35-47-4-5 (2014).
2
Ind. Code § 9-24-19-2 (2012).
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and Zootz handcuffed Ellis. Ellis denied driving the car. Zootz later learned
Ellis’s license was suspended.
[5] On October 22, 2015, the State charged Ellis with unlawful possession of a
firearm by a serious violent felon and driving while suspended. The State
alleged Ellis was a serious violent felon because he had a prior conviction for
robbery in Cause Number 49G06-0508-FB-145687 (FB-145687). In fact, Ellis
had pled guilty in FB-145687 to conspiracy to commit robbery.
[6] Ellis filed a motion to suppress evidence, claiming the officers had no valid
reason to detain him or to look in his car. The trial court denied Ellis’ motion
after a hearing. Next, Ellis waived his right to trial by jury and requested a
bench trial. The court granted the request.
[7] The trial court held a trial on September 26, 2017. After the State rested its
case, Ellis moved for dismissal pursuant to Rule 41(E), claiming the State failed
to prove the prior conviction as alleged in the charging information. The court
took the motion under advisement, and Ellis presented his case. Ellis presented
evidence that he had been convicted of conspiracy to commit robbery in FB-
145687.
[8] At the close of Ellis’ case, he moved for judgment on the evidence. The court
determined Ellis was guilty of possessing a firearm without a license and of
driving with a suspended license, but the court withheld ruling on the motion
for judgment on the evidence as to whether the State proved Ellis was a serious
violent felon. The court instructed the parties to file arguments on the issue.
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[9] On September 27, 2017, the State filed a Motion to Amend the Charging
Information, asking the court to amend the information to state that his
predicate felony conviction in FB-145687 was conspiracy to commit robbery
rather than robbery. Ellis filed an objection. The court granted the State’s
motion and determined Ellis was guilty of possession of a firearm by a serious
violent felon. Next, the court imposed a sentence, and this appeal followed.
[10] Ellis first argues that the trial court erred in denying his motion to suppress
evidence, claiming: (1) the officers should not have detained him; and (2)
Officer Elkins should not have looked in his car. Once a case proceeds to trial,
the question of whether the trial court erred in denying a motion to suppress is
no longer viable. Baird v. State, 854 N.E.2d 398 (Ind. Ct. App. 2006), trans.
denied. Instead, we review whether the trial court should have admitted the
evidence (here, the handgun), at trial. In general, rulings on the admissibility of
evidence are reviewed for an abuse of discretion and reversed when admission
is clearly against the logic and effect of the facts and circumstances. Thomas v.
State, 81 N.E.3d 621 (Ind. 2017). However, when a challenge to such a ruling is
predicated on the constitutionality of the search or seizure of evidence, it raises
a question of law that we review de novo. Id.
[11] Ellis cited the Fourth Amendment and article 1, section 11 of the Indiana
Constitution at trial, but on appeal he presents argument only as to the Fourth
Amendment. He has waived any claim under the Indiana Constitution by
failing to present a separate analysis. See Francis v. State, 764 N.E.2d 641 (Ind.
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Ct. App. 2002) (court declined to address search and seizure claim under
Indiana Constitution for lack of separate analysis).
[12] A law enforcement officer must have reasonable suspicion of criminal conduct
to justify a traffic stop under the Fourth Amendment. Dowdy v. State, 83 N.E.3d
755 (Ind. Ct. App. 2017). A traffic stop and limited search is permissible where
an officer has at least reasonable suspicion that a traffic law, or other law, has
been violated. Sanders v. State, 989 N.E.2d 332 (Ind. 2013).
[13] Officer Zootz followed Ellis to look up Ellis’ license plate in his computer when
Ellis accelerated at a high rate of speed and made several turns without
signaling. Failure to signal before turning is an infraction. See Ind. Code § 9-
21-8-25 (1991) (“A signal of intention to turn right or left shall be given
continuously during not less than the last two hundred (200) feet traveled by a
vehicle before turning or changing lanes.”). Ellis’ infractions provided Officer
Zootz with reasonable suspicion to detain Ellis at the house. See Peck v. State,
712 N.E.2d 951 (Ind. 1999) (failure to signal before turning provided a basis for
traffic stop).
[14] Next, Officer Elkins looked in Ellis’ car using a flashlight and discovered the
handgun. The Fourth Amendment protects against unreasonable searches, but
“[o]nce an officer properly stops a vehicle, merely looking through a vehicle to
see that which is inside is not a search.” Avant v. State, 528 N.E.2d 74, 76 (Ind.
1988). “That which is in plain view is not the product of a search.” Id. The
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Avant court determined that the use of a flashlight while peering into a car does
not turn a mere view inside a car into a search. Id.
[15] In this case, the handgun was in plain view on the floor, near the driver’s seat.
The admission of the handgun into evidence at trial did not violate the Fourth
Amendment. See Taylor v. State, 929 N.E.2d 912 (Ind. Ct. App. 2010) (counsel
did not render ineffective assistance by failing to object to admission of shotgun
into evidence; gun was found in plain view during a valid protective sweep, so
no Fourth Amendment violation), trans. denied.
[16] We next address Ellis’ claim that the trial court should not have granted the
State’s motion to amend the charging information post-trial to allege that
conspiracy to commit robbery, rather than robbery, was the predicate felony for
the charge of possession of a handgun by a serious violent felon. Ellis argues
the amendment “substantially prejudiced” him by leaving him “defenseless.”
Appellant’s Br. p. 16.
[17] The statute that governs amending a charging information provides, in relevant
part:
(b) The indictment or information may be amended in matters of
substance and the names of material witnesses may be added, by
the prosecuting attorney, upon giving written notice to the
defendant at any time:
(1) up to:
(A) thirty (30) days if the defendant is charged with a felony; or
(B) fifteen (15) days if the defendant is charged only with one (1)
or more misdemeanors;
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before the omnibus date; or
(2) before the commencement of trial;
if the amendment does not prejudice the substantial rights of the
defendant. When the information or indictment is amended, it
shall be signed by the prosecuting attorney or a deputy
prosecuting attorney.
(c) 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.
Ind. Code § 35-34-1-5 (2014).
[18] We must first determine whether the post-trial amendment of the charging
information was a matter of substance or form. If the amendment was a matter
of substance, then it was untimely pursuant to Indiana Code section 35-34-1-
5(b). Whether an amendment is a matter of substance or form is a question of
law that we review de novo. Erkins v. State, 13 N.E.3d 400 (Ind. 2014). Our
Supreme Court has stated as follows:
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
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).
[19] In Adcock v. State, 933 N.E.2d 21 (Ind. Ct. App. 2010), trans. denied, the State
charged Adcock with child molesting and with being a repeat sex offender
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(RSO). The RSO notice, which the State filed with the charging information,
alleged that Adcock’s predicate conviction was handed down in 1990 in
relation to an offense that he had committed in 1984. During the trial on the
RSO allegation, the State requested permission to amend the charging
information to change the date of conviction to 1986. The trial court granted
the State’s request, and Adcock was convicted of the RSO allegation.
[20] On appeal, Adcock argued the amendment during trial was a matter of
substance and was untimely. The Court disagreed, noting the original RSO
notice informed Adcock of the prior case that involved the predicate felony, and
the date of sentencing was included in documents from that case. The Court
further concluded that because Adcock was provided with sufficient notice, his
defenses to the RSO status were “equally available before and after that
amendment.” Id. at 30. In addition, the amendment did not change the
“material elements relevant to the RSO determination,” specifically that he had
been convicted of a prior sex offense. Id.
[21] By contrast, in Nunley v. State, 995 N.E.2d 718 (Ind. Ct. App. 2013), clarified on
reh’g, 4 N.E.3d 669 (2013), trans. denied, the State alleged in May 2010 that
Nunley was a habitual offender, citing two prior convictions as predicate
offenses. Two years later, during trial, the State requested leave to amend the
habitual offender allegation to switch one of the previously-alleged prior
convictions for other prior convictions. The court granted the motion and
continued the trial for six days. The jury later determined Nunley was guilty.
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[22] On appeal, Nunley argued that the amendment during trial was a matter of
substance and unfairly deprived him of a defense, specifically that one of the
predicate felonies originally cited by the State in the charging information could
not support a habitual offender allegation. The Court agreed that the
amendment was of substance and also prejudiced his substantial rights. The
Court reversed the habitual offender determination due to the late amendment.
[23] We conclude that Ellis’ case more closely resembles the circumstances in Adcock
than the circumstances in Nunley. In Ellis’ case, the State set forth in the
charging information the cause number of the case it intended to present as the
predicate felony. Thus, even if the State did not correctly identify the predicate
felony, Ellis was not surprised by the amendment because he was aware which
case was at issue and what offense formed the basis for the predicate conviction.
By contrast, in Nunley the State attempted, with no notice, to swap one prior
case for another.
[24] Further, any substantive defenses Ellis may have had to the serious violent
felon allegation remained the same after the amendment. During trial, he did
not dispute that he had a prior felony conviction. To the contrary, he joined
with the State in stipulating to the admission of State’s Exhibit 16, the charging
information and probable cause affidavit from FB-145687. During Ellis’s case,
he offered as exhibits other documents from FB-145687.
[25] Finally, as was the case in Adcock, the amendment in Ellis’ case did not affect
any material elements relevant to the serious violent offender allegation,
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because it remained true that the State adequately alleged that Ellis had
committed a predicate felony. We conclude the amendment was a matter of
form, not substance. See Adcock, 933 N.E.2d 21; see also Blythe v. State, 14
N.E.3d 823 (Ind. Ct. App. 2014) (amendment of charging information during
trial was not substantive; changing the specific terms of the forgery charges did
not alter Blythe’s defense).
[26] We must next determine whether the amendment as to form prejudiced Ellis’
substantial rights in violation of Indiana Code section 35-34-1-5(c). 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 400 (quotation omitted). The
key question is whether the defendant had a reasonable opportunity to prepare
for and defend against the charges. Id. (quotation omitted).
[27] Ellis was notified on October 22, 2015, almost two years prior to trial, that the
State would argue that his conviction in FB-145687 was the predicate
conviction supporting the State’s allegation that he was a serious violent felon.
Although the State named an incorrect offense in the charging information, the
information fulfilled its purpose of informing him of the basic charge. Further,
Ellis could have anticipated that the State would seek to correct the defect as to
form and had ample opportunity to prepare. He chose instead to stipulate at
trial that he was the defendant in FB-145687. We conclude that Ellis had a
reasonable opportunity to prepare for and defend against the charges, and the
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amendment did not prejudice his substantial rights. See Adcock, 933 N.E.2d 21
(amendment did not prejudice Adcock’s substantial rights; the original notice
provided sufficient information to prepare a defense despite an incorrect date).
[28] For the reasons stated above, we affirm the judgment of the trial court.
[29] Judgment affirmed.
Robb, J., and Bradford, J., concur.
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Bryan C. Ellis v. State of Indiana (mem. dec.)
Combined Opinion