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COA tosses convictions on new charges introduced at trial

April 30, 2019

A split Indiana Court of Appeals reversed four counts of a woman’s conviction, finding the trial court abused its discretion in allowing the state to amend the charging information without giving the defendant a “reasonable opportunity” to prepare and defend against the new counts.

Levern Howard was originally charged with 10 felonies and three Class A misdemeanors after Indianapolis Metropolitan Police Department officers found her to be in possession of heroin, cocaine, a synthetic drug lookalike substance and firearms. Also, the officers found children between 5- and 9-years-old left alone in Howard’s home.

In May 2018, more than 19 months after the state had filed the original charges, more than 16 months after the omnibus date and just two days before Howard’s bench trial, Indiana moved to amend the charging information to allege four new Level 6 felonies for neglect of a dependent child. The premise of the new charges was that Howard had allegedly endangered a minor’s life by leaving firearms unsecured where a child could get them.

As the trial began, the state argued the amended charges did not add any new evidence or witnesses. Moreover, the guns were in the probable cause affidavit and had been known about since the beginning of the incident.

Howard countered that the theory of the amended counts was completely different from the original counts. She argued that although the affidavit says several firearms were located at the scene, it does not say where they were recovered and whether they were properly stored.

The Marion Superior Court granted the state’s motion. However, it required the state to present the evidence for the original and the amended counts on the first day of the trial, allowing Howard to recall and cross-examine the witnesses on the amended counts on the second day.

Howard was subsequently found guilty on all counts except dealing in a narcotic drug (heroin), a Level 3 felony.

The Court of Appeals reversed the convictions under the four amended counts in Levern Nicole Howard v. State of Indiana, 18A-CR-1830, finding the state’s inability to identify a good cause for waiting so long to amend the charges “reeks of surprise and gamesmanship… .”

In particular, the majority held that the original counts were related the Howard’s alleged dealing in and possession of illicit drugs. The counts related to her firearms were related to either enhancing facts or her alleged carrying without a license.

“At no point prior to the State’s motion to amend the information did Howard have any reason to think that the State would seek to use the firearms in any other way or in support of any other possible offenses,” Judge Edward Najam Jr., wrote for the majority. “That is, nothing about the facts underlying the original counts would have impelled a reasonable defense attorney to investigate further the facts on which the amended counts were premised.

“Indeed,” Najam continued, “the explicitly limited use of the firearms in the original counts may well have led Howard to conclude that the State had decided not to pursue any other firearm-related offenses and, thus, that there was no further preparation or defense to be had for any such hypothetical offenses.” 

But Judge Robert Altice concurred and dissented in part.

Writing in a separate opinion, Altice asserted the four new charges of neglect of a dependent mirrored the four original neglect charges, with the exception that the new charges alleged the presence and accessibility of unsecured firearms as opposed to illicit drugs.

“Given the other charges Howard faced – especially the fact that the presence of firearms was used to enhance certain offenses – she cannot now claim she was surprised by the new charges or the evidence giving rise thereto,” Altice wrote.

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