MATHIAS, Judge.
Michael Joseph Gaby ("Gaby") was convicted in Tippecanoe Superior Court of Class A felony child molesting. Gaby appeals and presents three issues for our review, which we renumber and restate as:
We reverse Gaby's conviction and remand for retrial.
Sometime in 1995 or 1996, P.C. and her four daughters lived in the same apartment complex as did Gaby and his daughter. Gaby's daughter was approximately the same age as P.C.'s daughter M.C., who was born in 1993. On one occasion, P.C. asked Gaby to watch M.C. for the day while she went to work. Only Gaby and M.C. were in the apartment. Gaby told M.C. to try on some clothes that his daughter had outgrown, and M.C. undressed. Gaby told M.C. to sit down, then put a blanket over her and inserted his fingers into her vagina. After this incident, M.C. did not go to Gaby's apartment alone. Gaby and his daughter moved out of the apartment complex when M.C. was between the second and third grade.
Several years later, Gaby asked P.C. to drive him and his daughter to church. When an opportunity arose that day, Gaby asked M.C. if she had ever told anyone about what he had done to her. She told Gaby that she had not. Years later, on April 20, 2009, when M.C. was approximately fifteen years old, she told her teacher what Gaby had done to her. M.C.'s teacher contacted the police, who interviewed her.
On May 6, 2009, Lafayette Police Detective Joseph Clyde interviewed Gaby. Gaby initially denied ever having been alone with M.C., but later claimed that he had been alone with the child once when she had thrown up on her clothes. Gaby claimed, however, that he had not helped M.C. change her clothes. Gaby then admitted that he did help M.C. change her clothes and may have unintentionally fondled her. The next day, Gaby spoke with Detective Scott Galloway and denied having inserted his finger into M.C.'s vagina. Gaby did ask, however, if the police could "help him remember if he had molested [M.C.]" Tr. p. 183.
On June 10, 2009, the State charged Gaby with Class A felony child molesting. The State moved to amend the charging information on March 29, 2010, and Gaby filed an objection thereto the following day. On March 31, 2010, the trial court granted the State's motion to amend. A two-day jury trial commenced on April 6, 2010, at the conclusion of which the jury found Gaby guilty as charged. At a sentencing hearing held on May 26, 2010, the trial court sentenced Gaby to twenty years and ordered him to serve his sentence as a
Gaby first claims that the trial court erred in allowing the State to amend the charging information a week before trial.
Appellant's App. p. 11.
In general, Indiana Code section 35-34-1-5(b) permits the State to amend a charging information even in matters of substance at any time before the commencement of trial so long as the amendment does not prejudice the defendant's substantial rights. See Brown v. State, 912 N.E.2d 881, 890 (Ind.Ct.App.2009), trans. denied. The "substantial rights" of a defendant include a right to sufficient notice and an opportunity to be heard regarding the charge. Id. "`Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges.'" Id. (quoting Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind.2007)). The substantial rights of the defendant are not prejudiced if: (1) a defense under the original information would be equally available after the amendment, and (2) the defendant's evidence would apply equally to the information in either form. Id. Our supreme court has also explained that "an amendment is of substance only if it is essential to making a valid charge of the crime." McIntyre v. State, 717 N.E.2d 114, 125-26 (Ind.1999); accord Brown, 912 N.E.2d at 890.
We first observe that there is no indication that Gaby requested a continuance after the trial court granted the State's motion to amend. The failure to request a continuance after the trial court allows a pre-trial substantive amendment to the charging information over defendant's objection results in waiver of the issue on appeal. Wilson v. State, 931 N.E.2d 914, 918 (Ind.Ct.App.2010), trans.
Gaby claims that his defense strategy was to argue that M.C.'s accusations should be particularly scrutinized because she was only three years old at the time and could not accurately remember the events. He further claims that, under the amended information, the State was able to argue that M.C. could have been several years older than even she remembered. This, Gaby claims, "foreclosed" his defense. We disagree. Even under the amended information, Gaby was able to argue that M.C. was, as she testified, only three years old at the time of the molestation and that her recollection of events at that time should therefore be suspect. The amended information did not deprive Gaby of this defense. Moreover, the State could have argued that M.C. was five years old, and not three years old as she testified even under the original information. In other words, this defense was not foreclosed by the amended information. Thus, even if Gaby had properly preserved this issue for appeal, he would not prevail.
B. Specificity of the Amendment
Gaby also claims that the amended charging information was not specific enough to give him sufficient notice of the allegations. The State responds by arguing that Gaby waived this argument by failing to challenge the sufficiency of the charging information by way of a motion to dismiss prior to arraignment. See Vaillancourt v. State, 695 N.E.2d 606, 610 (Ind.Ct.App.1998) ("The proper time for raising the insufficiency of the charging information is prior to arraignment."). Here, however, Gaby's claim goes to the sufficiency of the amended charging information, which was amended only seven days before trial. Gaby could not have moved to dismiss this amended information before arraignment, and we decline to hold that his failure to do so waived appellate consideration of his argument.
Gaby did file a motion to dismiss and a motion for a more definite statement on August 20, 2009. But this was before the State amended the charging information. And Gaby did not include a copy of these motions, or the trial court's rulings thereon, in his appendix. Still, Gaby should have filed a motion to dismiss after the State amended the charging information. This is especially true where Gaby's complaint is directed at the charging information as amended. This would have given the trial court the opportunity to rule on the issue before the case was brought to trial. See GKC Ind. Theatres, Inc. v. Elk Retail Invs., LLC., 764 N.E.2d 647, 651 (Ind.Ct.App.2002) (noting that the waiver rule protects the integrity of the trial court because it cannot be found to have erred as to an issue that it never had an opportunity to consider). Again, however, even if we were to conclude that Gaby did not waive his appellate argument, he would not prevail on the merits.
The contents of a charging information are governed by Indiana Code section 35-34-1-2 (2004 & Supp.2005), which provides in relevant part:
Here, it is undisputed that M.C.'s age at the time of the offense was not near any such dividing line. Thus, the only requirement is that the charging information allege that the offense was committed within the statutory period of limitations. See id. There is no applicable statute of limitations for Class A felony child molesting. Ind.Code § 35-41-4-2(c) (2004) ("A prosecution for a Class A felony may be commenced at any time.").
Although none of the above-cited cases involved a period of five years, as alleged in the charging information at issue here, the information charging Gaby alleged only one incident. Thus, there was no question about which incident was alleged. Cf. Ross v. State, 172 Ind.App. 484, 487-88, 360 N.E.2d 1015, 1018 (1977) (rejecting defendant's attack on specificity of information charging dealing in marijuana because only one delivery was alleged but recognizing that if multiple deliveries had been made, defendant might have difficulty in determining the specific crime for which conviction was sought).
Gaby argues that the trial court abused its discretion when it permitted the State to refresh M.C.'s recollection using the transcript of a previous interview. In addressing this argument, we are mindful that decisions regarding the admission of evidence are within the sound discretion of the trial court, and we will not reverse the trial court's decision absent a showing of a manifest abuse of that discretion resulting in the denial of a fair trial. Williams v. State, 782 N.E.2d 1039, 1045 (Ind.Ct.App. 2003). The trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances before the court. Id. Where a trial court's evidentiary ruling involves the interpretation of a rule of evidence, we apply a de novo standard of review. Tyler v. State, 903 N.E.2d 463, 467 n. 4 (Ind. 2009).
Indiana Evidence Rule 612(a) provides, "[i]f, while testifying, a witness uses a writing or object to refresh the witness's memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying." Our supreme court has explained that "[a]lthough Evidence Rule 612(a) clearly envisions the use of writings to refresh a witness's memory, it `does not address the method by which the witness's memory may be refreshed.'" Thompson v. State, 728 N.E.2d 155, 160 (Ind.2000) (quoting 13 Robert Lowell Miller, Jr., Indiana Practice § 612.101, at 225 (2d ed.1995)). The court in Thompson "agree[d] with Judge Miller that a `simple colloquy' is all that is required under Rule 612." Id.
Id. (quoting Miller, § 612.101, at 226) (emphasis added).
At Gaby's trial, the following colloquy occurred between the prosecutor and M.C.:
Tr. pp. 43-46 (emphases added).
At this point, Gaby's counsel objected, arguing that M.C. had not shown a lack of recollection and that refreshing her recollection was therefore inappropriate. The trial court overruled this objection.
Tr. pp. 49-50.
We agree with Gaby that the transcript clearly shows that M.C. did not testify as to any lack of recollection regarding the events before the prosecutor showed her the transcript of her previous statement. M.C. simply gave answers the prosecutor neither expected nor desired. The prosecutor attempted to rectify this by having M.C. read the transcript of her previous statement, after which M.C. still struggled to give the prosecutor the desired answers.
We therefore conclude that there was no foundation for refreshing M.C.'s recollection because she did not state that she was unable to recall the information sought by the questioner. See Thompson, 728 N.E.2d at 160 (quoting Miller, § 612.101, at 226).
Id. (citations and internal quotations omitted). This is precisely what the prosecutor did in the present case.
The State argues that the prosecutor's behavior was justified as impeachment, noting that, pursuant to Evidence Rule 607, a party may impeach its own witness. This argument rings hollow. The State had no motive to attack the credibility of M.C., who was the State's main witness. To the contrary, the State's entire case depended upon the credibility of M.C.'s testimony regarding an event that happened approximately twelve years ago when M.C. was approximately three years old.
Under these facts and circumstances we are compelled to conclude that the trial court abused its discretion when it permitted the State to allow M.C. to read the transcript of her previous statement when M.C. had not testified that she could not recall the information sought by the prosecutor. See McKinney, 763 S.W.2d at 708 (concluding that trial court erred in permitting witness to use police report to "refresh" his recollection even though witness had testified "clearly and unhesitatingly" to events at issue).
Gaby also claims that the prosecutor committed misconduct when she vouched for M.C.'s credibility. Specifically, the prosecutor stated that she was "confident" that the jury would "come to the same conclusion" that she and the police detectives had come to. Tr. p. 36. She also told the jury that "I cannot and would not bring charges that I believe were false." Id. at 210. She further told the jury that "I can tell you that with a guilty verdict on this case I will be able to sleep fine tonight. Just fine. In fact, better than fine. You will be able to also." Id. at 212.
It is inappropriate for a prosecutor to make an argument which takes the form of personally vouching for a witness. Lainhart v. State, 916 N.E.2d 924, 938 (Ind.Ct.App.2009) (citing Schlomer v. State, 580 N.E.2d 950, 957 (Ind.1991)). As set forth in the Rules of Professional Conduct:
Ind. Professional Conduct Rule 3.4(e) (emphasis added). A prosecutor may comment on the credibility of the witnesses only if the assertions are based on reasons which arise from the evidence. Lainhart, 916 N.E.2d at 938 (citing Cooper v. State, 854 N.E.2d 831, 836 (Ind.2006)).
In Lainhart, the prosecutor told the jury during voir dire that "it would take an awful lot to get an officer [to lie]" and that "there's no place for it in our society." Id. And during closing arguments, the prosecutor said, "if any officer would even come close to not putting out exactly what happened telling the truth, they're out. I would never, ever, put them in front of a Jury, if I suspected anything." Id. On appeal, we held that the prosecutor's remarks were "improper indoctrination, vouching, and commentary on the justness of the cause." Id. Similarly, in Schlomer, our supreme court held that the prosecutor improperly vouched for a witness where he stated, "I believe Detective McGee when he tell[s] us what happened." 580 N.E.2d at 957.
The same is true here. The prosecutor's remarks constitute improper vouching for M.C.'s credibility, which as we noted above, was the central issue in this case. Although we recognize that the prosecutor's comments were in response to Gaby's argument that M.C.'s accusations were false, the prosecutor's response still crosses the line into improper vouching as her comments were not based solely on reasons which arose from the evidence, but rather, asserted a personal knowledge of the facts at issue.
Having concluded that M.C.'s recollection was improperly refreshed and that the prosecutor improperly vouched for M.C.'s credibility, we must now decide whether these errors require reversal of Gaby's conviction. Errors in the admission of evidence are to be disregarded as harmless unless they affect the defendant's substantial rights. Rogers v. State, 897 N.E.2d 955, 961 (Ind.Ct.App.2008) (citing Ind. Trial Rule 61; Ind. Evidence Rule 103(a)), trans. denied. An error will be deemed harmless if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties. Ind. Appellate Rule 66(A); Rogers, 897 N.E.2d at 961.
M.C.'s testimony prior to the State's improper use of her prior statement established that, while alone with Gaby, he made her undress, put her under a blanket, and inserted his finger into her vagina. This was sufficient to establish the State's prima facie case. See Short v. State, 564 N.E.2d 553, 559 (Ind.Ct.App. 1991) (defendant's intent to gratify sexual desires may be inferred from intentional touching of child victim's genital area). But the question before us is not whether the properly admitted evidence was sufficient to support the conviction. The question is whether the improperly admitted evidence had a probable impact on the jury that was sufficiently minor so as to not affect Gaby's substantial rights. Rogers, 897 N.E.2d at 961.
M.C.'s improperly refreshed testimony established that Gaby was breathing heavily, asked her if what he was doing felt good, touched her chest, and asked her to touch his penis. As noted above, the State even referred to the heavy breathing in its closing argument, highlighting the fact
We must also consider the effect of the prosecutor's improper vouching. Standing on its own, the vouching would likely not rise to the level of reversible error.
The question now becomes whether Gaby may be retried. This depends upon a review of the sufficiency of the evidence. Alexander v. State, 819 N.E.2d 533, 539 (Ind.Ct.App.2004). When deciding whether retrial is permissible, we consider all of the admitted evidence, including any erroneously admitted evidence, to determine if that evidence viewed as a whole would have been sufficient to sustain the verdict. Id. at 540. If so, retrial does not offend double jeopardy principles. Id. If the evidence is insufficient, however, the defendant may not be retried. Id.
Here, the evidence presented by the State was sufficient to support Gaby's conviction. M.C. testified that Gaby told her to take off her pants and underwear, told her to get under a blanket, and inserted his finger into her vagina. This by itself was sufficient to support Gaby's conviction. See Short, 564 N.E.2d at 559. And M.C.'s improperly refreshed testimony further supported the conviction by demonstrating that Gaby asked her if what he was doing felt good, touched her chest, asked her to touch his penis, and was breathing heavily. Thus, there was sufficient evidence to support Gaby's conviction, and double jeopardy principles do not bar retrial. See Alexander, 819 N.E.2d at 539.
Lastly, Gaby claims that the trial court erred in ordering him to serve his sentence as a credit restricted felon. Pursuant to Indiana Code section 35-41-1-5.5 (2008), a "credit restricted felon" is defined to include a person who has been convicted of child molesting involving sexual intercourse or sexual deviate conduct if the offender is at least twenty-one years old and the victim is less than twelve years old. The credit restricted felon statute was effective on July 1, 2008 and applies "only to persons convicted after June 30, 2008." Upton v. State, 904 N.E.2d 700, 704 (Ind.Ct.App.2009), trans. denied (quoting Pub.L. 80-2008, Sec. 6) (emphasis added). "A person who is a credit restricted felon and who is imprisoned for a crime or imprisoned awaiting trial or sentencing is initially assigned to Class IV. A credit restricted felon may not be assigned to Class I or Class II." Ind.Code § 35-50-6-4(b) (2004). "A person assigned to Class IV earns one (1) day of credit time for every six (6) days the person is imprisoned for a crime or confined awaiting trial or sentencing." Ind.Code § 35-50-6-3(d) (2008).
Based on this precedent, the State concedes that application of the credit restricted felon statute to Gaby would be an unconstitutional ex post facto violation because Gaby committed his offense prior to the effective date of the statute. Therefore, if Gaby is convicted after retrial, he cannot be sentenced as a credit restricted felon.
The trial court did not err in permitting the State to amend the charging information, and the amended charging information is not overly broad. The trial court did, however, abuse its discretion in permitting the State to refresh the recollection of a witness who gave no indication that she did not recall the answers to the questions imposed. Further, the prosecutor improperly vouched for M.C.'s credibility. Under the facts and circumstances of this case, we are unable to say that the combined effect of these errors was harmless. Because there was sufficient evidence to support Gaby's conviction, retrial is not barred by double jeopardy, but if Gaby is convicted after retrial, he may not be sentenced as a credit restricted felon. Accordingly, we reverse Gaby's conviction and remand for proceedings consistent with this opinion.
Reversed and remanded.
KIRSCH, J., and VAIDIK, J., concur.
