MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 23 2018, 7:56 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
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
Mark Small Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nicholas Carter, October 23, 2018
Appellant-Defendant, Court of Appeals Case No.
12A02-1711-CR-2770
v. Appeal from the Clinton Superior
Court
State of Indiana, The Honorable Justin Hunter,
Appellee-Plaintiff. Judge
Trial Court Cause No.
12D01-1612-F6-1119
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Nicholas Carter (Carter), appeals his convictions for two
counts of domestic battery, both as Level 6 felonies, Ind. Code §§ 35-42-2-
1.3(a)(1), (b)(1)-(2); and criminal trespass, a Class A misdemeanor, Ind. Code §
35-43-2-2(b)(2).
[2] We affirm.
ISSUES
[3] Carter presents us with three issues on appeal which we consolidate and restate
as:
(1) Whether his substantial rights were prejudiced when the trial court
permitted the State to file additional charges after a mistrial; and
(2) Whether the State produced sufficient evidence to sustain his
convictions.
FACTS AND PROCEDURAL HISTORY
[4] Carter and his wife (Mother) have two minor children (the children), who were
seven and eight years old in December of 2016. On December 24, 2016, the
children were at the home of Mother’s aunt (Aunt) in Fickle, Indiana, preparing
for a family holiday party which was to start around 3:00 p.m. Also present in
the home was Mother’s eighty-seven-year-old grandmother (Grandmother).
Carter and Mother arrived to retrieve the children around 2:00 p.m. Mother
went into Aunt’s home, and Carter stayed in their car outside.
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[5] The children had made a gingerbread house with Aunt the previous evening,
and one of the children went outside to bring Carter in to see it. Aunt heard
Carter’s voice and wondered why he was there because Aunt did not want
Carter in her home. Aunt went into the living room and asked Mother why
Carter was there. Carter heard their conversation, became irate, and told Aunt
that, if he were not allowed to be there, no one could stay.
[6] Carter went to the dining room and picked up the gingerbread house. Aunt
would not allow Carter to take the gingerbread house and removed it from his
hands. Carter then struck Aunt’s arm with his hand. The children were
watching when this occurred but sometime thereafter locked themselves in the
bathroom, which was approximately six feet away. Aunt told Carter to “get
out of [her] house” three times. (Transcript Trial II Vol. I, p. 192). Carter
screamed at Aunt while standing close to her face, and Aunt shoved Carter.
Carter grabbed Aunt by the throat and shoved her from the dining room to the
living room. Carter held Aunt with one hand by her throat on the living room
sofa and hit her with his other hand on her chest and head with a closed fist.
[7] Aunt freed herself from Carter and attempted to call 9-1-1. She misdialed and
instead telephoned her son (Son), who lived next door. Mother and Carter
went out the front door onto the porch. Aunt stood in the doorway and stated
that she was calling 9-1-1 and child protective services. Carter grabbed Aunt,
pulled her onto the porch and repeatedly struck her head as she was pinned
against the porch railing. Carter left the porch as Son arrived from next door.
Carter asked Son, “you want a piece of me?” (Tr. Trial II Vol. I, p. 81). Carter
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attempted to strike Son but fell on the ground. Son tackled Carter and held him
until Carter ceased struggling. Shortly thereafter, law enforcement arrived.
One of the children told an investigating officer that she saw Carter “on” Aunt
and “Daddy get Aunt.” (Tr. Trial II Vol. I, p. 162). Aunt refused treatment
that afternoon. Carter was transported to the hospital for injuries he sustained
while tussling with Son. By the next day, Aunt had developed several bumps
on her head and bruises on her throat, head, arms, and hands.
[8] On December 27, 2016, the State filed an information charging Carter with
domestic battery as a Level 6 felony and criminal confinement as a Level 6
felony. On August 9, 2017, a jury found Carter not guilty of criminal
confinement, but the jury could not reach a verdict as to the domestic battery
charge. The trial court declared a mistrial. On August 11, 2017, the State
sought and was granted leave to file additional counts against Carter for a
second count of domestic battery, a Level 6 felony 1; strangulation, a Level 6
felony; and criminal trespass, a Class A misdemeanor. Carter sought the
dismissal of these charges, arguing in a pre-trial motion that amendments of
substance were not permissible after trial commenced and that to “allow for
amendment after a partial verdict and placing [Carter] in jeopardy would
prejudice [Carter’s] substantial rights and protections under the United States
and Indiana Constitutions.” (Appellant’s App. Vol. II, p. 35). The trial court
denied this pre-trial dismissal motion as well as Carter’s motions for rehearing
1
The State subsequently filed an information alleging that Carter had a previous conviction for battery.
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and directed verdict based upon similar arguments. Carter’s second jury trial
took place on October 31 and November 1, 2017. Prior to the jury rendering its
verdicts, Carter admitted that he had a prior battery conviction. The jury
acquitted Carter of strangulation but found him guilty of the remaining charges.
On November 27, 2017, the trial court sentenced Carter to two concurrent
terms of eighteen months for the domestic battery convictions 2 and to sixty days
for the criminal trespass conviction, also to be served concurrently. The trial
court suspended one year of Carter’s aggregate eighteen-month sentence to
probation.
[9] Carter now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Amendment of Charging Information
[10] Carter contends that the trial court erred when it allowed the State to amend the
charging information to add three new charges after his first trial ended in a
mistrial because these were substantive amendments that prejudiced his
substantial rights. The State conceded at trial and concedes on appeal that the
amendments were indeed substantive, but it argues that trial court properly
2
The trial court “merged” the conviction on the newer domestic battery charge with the conviction for
domestic battery that had been filed initially. (Appellant’s App. Vol. III, p. 8). However, the trial court
entered judgment of conviction for both batteries, and the abstract of judgment reflects that Carter was
sentenced for both batteries.
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allowed the amendments because Carter’s substantial rights were not
prejudiced.
[11] Charging informations may be amended as to matters of substance at any time
before the commencement of trial as long as the defendant’s substantial rights
are not prejudiced. Ind. Code § 35-34-1-5(b). “A defendant’s substantial rights
include a right to sufficient notice and an opportunity to be heard regarding the
charge.” Mannix v. State, 54 N.E.3d 1002, 1009-10 (Ind. Ct. App. 2016)
(quotation omitted). “Ultimately, the question is whether the defendant had
reasonable opportunity to prepare for and defend against the charges.” Id.
[12] The State filed its motion to amend the information on August 11, 2017, and
Carter’s second jury trial took place approximately two and one-half months
later. Although the period between the amendment of the information and trial
was not an especially long one, Carter does not claim that he had inadequate
notice of the new charges or that the preparation of his defense was prejudiced
by the timing of the amendment. Rather, he asserts that his substantial rights
were prejudiced because the trial court erred as a matter of law by allowing the
addition of new charges after a mistrial and because the amendments violated
state 3 constitutional protections against double jeopardy.
3
Although he mentions the Fifth Amendment, Carter fails to develop a separate federal double jeopardy
analysis with cogent legal authority or citations to the record, and, thus, he has waived that claim. Indiana
Appellate Rule 46(A)(8); see also Simms v. State, 791 N.E.2d 225, 231 n.2 (Ind. Ct. App. 2003) (finding Simms’
vague Fifth Amendment double jeopardy claim waived for failure to make a cogent argument).
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[13] We find Carter’s claim of prejudice as a matter of law to be unavailing. To
support his claim, Carter relies upon Warner v. State, 773 N.E.2d 239 (Ind.
2002). Warner faced a murder charge and successfully moved for mistrial after
potentially exculpatory evidence was late-disclosed by the State during trial. Id.
at 242. The State then sought to file additional felony murder and attempted
robbery charges against him based upon spurious claims of newly found
evidence. Id. at 242-43. Our supreme court held that, in the absence of newly
found evidence, the State may not bring new charges against a defendant who
successfully moves for a mistrial because “the potential for prosecutorial
vindictiveness is too great . . .” Id. at 243. Warner’s holding has not been
extended to the filing of additional charges after mistrial has been declared
simply because a jury has been unable to reach a verdict, and we see no reason
to do so.
[14] Carter’s claims pertaining to double jeopardy, whether brought as a claim of
prejudice as the result of the amendment of the charging information or
whether brought as a freestanding claim challenging his convictions, are equally
unavailing. At the outset we note that Carter claims in his Statement of the
Issues and in the heading of this section of his argument that he was acquitted
of strangulation at his first trial. This is factually incorrect, as he was not
charged with strangulation in the first set of charges. Carter provides us with
some substantive law pertaining to an “actual evidence” analysis under Article
I, Section 14, of the Indiana Constitution. However, the lion’s share of his
argument pertains to addressing the trial court’s findings regarding the filing of
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the strangulation charge for the second trial, which, as noted by the State, is a
moot issue since Carter was acquitted of that charge at his second trial. See
Jones v. State, 847 N.E. 2d 190, 200 (Ind. Ct. App. 2006) (holding that a case is
moot when a court is unable to render effective relief to a party), trans. denied.
[15] The only other argument Carter offers on this issue is that “[t]he evidence upon
which the jury relied, or could have relied, in the second trial as to Battery was
the same evidence as that upon which the first jury had acquitted Carter for
confinement.” (Appellant’s Br. p. 20). We find this argument to be
unpersuasive for at least two reasons. It is unclear to us if Carter challenges
both of his battery convictions or simply the conviction resulting from the
newer battery charge. More importantly, it was Carter’s burden to develop his
“actual evidence” double jeopardy argument. See Richardson v. State, 717
N.E.2d 32, 53 (Ind. 1999) (“[A] defendant must demonstrate a reasonable
possibility that the evidentiary facts used by the fact-finder to establish the
essential elements of one offense may also have been used to establish the
essential elements of a second challenged offense.”) (emphasis added). This
necessitates an examination of the evidence actually presented at trial. Id. In
addition, a defendant may develop his “actual evidence” argument by
referencing the charging informations, any instructions provided to the jury,
and the arguments of counsel. Hunter v. State, 72 N.E.3d 928, 934 (Ind. Ct.
App. 2017), trans. denied. Here, Carter failed to substantiate his “actual
evidence” argument as it pertained to his battery conviction(s) with any
reference to the evidence actually presented at either of his trials, the charging
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informations, jury instructions, or argument of counsel before the jury.
Therefore, Carter has failed to demonstrate that he was prejudiced by the filing
of additional charges or that any of his convictions violated double jeopardy
prohibitions.
II. Sufficiency of the Evidence
[16] Carter contends that the State failed to prove beyond a reasonable doubt that
Aunt excluded him from her property to sustain his conviction for criminal
trespass or that one of the children was where she could see or hear the offenses
to sustain one of his battery convictions. It is well-settled that
[w]hen an appeal raises a sufficiency of evidence challenge, we
do not reweigh the evidence or judge the credibility of the
witnesses, and we respect a fact-finder’s exclusive province to
weigh conflicting evidence. We consider only the probative
evidence and the reasonable inferences that support the verdict.
We will affirm if the probative evidence and reasonable
inferences drawn from the evidence could have allowed a
reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt.
Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018) (citations and quotations
omitted).
A. Criminal Trespass
[17] The State charged Carter with criminal trespass in relevant part as follows:
[O]n or about December 24, 2016 in Clinton County, State of
Indiana, [Carter], not having a contractual interest in the
property, did knowingly or intentionally refuse to leave the real
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property of [Aunt], after having been asked to leave by [Aunt] or
[h]er agent.
(Appellant’s App. Vol. II, p. 33). Thus, the State was required to prove
that Carter refused to leave Aunt’s property after Aunt or her agent
asked Carter to leave. Aunt testified at trial that, after Carter initially
struck her, she told him to “get out of [her] house” three times. (Tr.
Trial II Vol. I, p. 192). Carter then yelled at Aunt, struck Aunt in the
living room and on the porch, and engaged Son in a physical
confrontation in the yard of Aunt’s home. Based on this evidence, we
conclude that the State proved beyond a reasonable doubt that Carter
refused to leave Aunt’s home after she asked him to do so.
B. Battery
[18] The State charged Carter with battery in relevant part as follows:
[O]n or about December 24, 2016 in Clinton County, State of
Indiana, [Carter] did knowingly or intentionally touch [Aunt], a
family or household member in a rude, insolent, or angry manner
by punching and choking; [Carter] committed said offense in the
presence of a child less than 16 years of age, [one of the children],
knowing that the child was present and might be able to see or
hear the offense.
(Appellant’s App. Vol. II, p. 12). Carter only challenges the sufficiency of the
evidence supporting the jury’s conclusion that he committed the battery in the
presence of one of the children. For purposes of the battery statute, ‘presence’ is
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defined as “knowingly being within either the possible sight or hearing of a
child.” True v. State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011) (emphasis
omitted). No child actually has to perceive the battery for the State to prove the
offense; it is only necessary that there was the possibility that a child might see
or hear it. Id.
[19] Here, the evidence revealed that the children, who had just been showing
Carter the gingerbread house, were present and watching when Carter initially
struck Aunt on the arm in the dining room. The children then locked
themselves in the bathroom, which was located six feet away from the dining
room of Aunt’s home, which Grandmother characterized at trial as “not very
big.” (Tr. Trial II Vol. I, p. 112). The dining room and living room were not
separated. One of the children reported that “Daddy got Aunt,” and that she
saw Carter “on” Aunt. (Tr. Trial II Vol. I, p. 162). We conclude that this
evidence supports a reasonable inference that one of the children actually
witnessed Carter batter Aunt in the dining room and that it was also possible
that one of the children heard Carter continue to batter Aunt in the living room
after the child locked herself in the bathroom. Carter merely directs us to
evidence in the record that does not support the jury’s conclusion, which is
unpersuasive given our standard of review. Phipps, 90 N.E.3d at 1195. The
State produced sufficient evidence to support Carter’s convictions for criminal
trespass and domestic battery beyond a reasonable doubt.
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CONCLUSION
[20] Based on the foregoing, we conclude that Carter’s substantial rights were not
prejudiced by the addition of charges after his first trial resulted in a mistrial due
to a hung jury and that the State produced sufficient evidence to support his
convictions for criminal trespass and domestic battery in the presence of a child.
[21] Affirmed.
[22] Vaidik, C. J. and Kirsch, J. concur
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