The Indiana Court of Appeals has affirmed the denial of a man’s motion to dismiss charges brought against him in a new cause after the state sought to refile the case to tidy up the record, finding no abuse of discretion in the decision.
David Tyrie was charged in 2017 with Level 4 felony sexual misconduct with a minor and a trial date was set for February 2018. The state then filed an amended charging information, alleging Tyrie committed the crime on or between Nov. 1, 2016 and Dec. 23, 2016.
Less than a week before trial, the state filed a second amended charging information, alleging Tyrie committed the crime on or between Sept. 1, 2016 and Dec. 31, 2016. On the same day, Tyrie filed an amended notice of alibi giving more details regarding his whereabouts on Dec. 18, 2016, and a motion to continue his trial based on the state’s second amended charging information.
The trial court granted Tyrie’s motion and rescheduled the trial for September of 2018. Then, Tyrie filed a “Motion for State to Elect Specific Act for Which State of Indiana Intends to Seek Conviction[.]” During a hearing on that motion, the state said it would like to refile under a new cause number, make three separate counts and supplement the original affidavit in order to tidy up the charging information and “make specific allegations in each of the individual three counts.”
The state subsequently charged Tyrie with three counts of Level 4 felony sexual misconduct with a minor, alleging he committed those crimes “on or about October, 2016,” “on or about November, 2016,” and “on or about December, 2016,” under cause number 26C01-1812-F4- 1338.
It then informed the trial court of the new filing under cause 1338 and indicated it had not filed a probable cause affidavit, asking the trial court to set a probable cause hearing. Although the hearing was granted, it never took place. The trial court instead heard argument on Tyrie’s motion to dismiss the counts under cause 1338, which it eventually denied.
Affirming the trial court in Tyrie’s interlocutory appeal, the appellate court found differences between Tyrie’s case and Davenport v. State, 689 N.E.2d 1226 (Ind. 1997), which he relied upon for support.
“Unlike the defendant in Davenport, Tyrie has not gone to trial. Because Tyrie has brought an interlocutory appeal, the trial court has not yet set a trial date, so the refiling of charges has not prejudiced Tyrie’s ability to defend himself against the original or additional charges,” Judge Melissa May wrote for the appellate court. “Additionally, the charges against Tyrie in Cause 1338 involve the same alleged victim and roughly the same time frame. Based thereon, we conclude the trial court did not abuse its discretion when it denied Tyrie’s motion to dismiss the charges in Cause 1338.”
The case is David A. Tyrie v. State of Indiana, 19A-CR-692.