II v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Edward Leeander Holmes, II, appeals his convictions for unlawful possession of a firearm by a serious violent felon, a Level 4 felony,¹ and possession of a narcotic drug, as a Level 5 felony.² We affirm.

Issues

[2] Holmes raises two issues for our review, namely:

1. Whether the trial court erred when it admitted evidence obtained pursuant to a search warrant.

2. Whether the trial court abused its discretion when it allowed the State to amend the charging information seven days prior to the scheduled trial date.

Facts and Procedural History

[3] Sherri Owens started “casual[ly] dating” Holmes in October 2022. The two then spent that New Year's Eve together at Holmes’ house. Tr. Vol. 2 at 158. At some point during the night, Holmes asked Owens if she wanted to “shoot his gun.” Id. at 160. Owens was “kinda sleepy,” so she declined. Id. But she heard the “chime” on Holmes’ safe, followed by the closing of the front door, and then “a lot of shooting going on outside.” Id. She then heard Holmes come back inside and heard the “chime on the safe” again. Id.

[4] On March 20, 2023, Holmes moved into Owens’ apartment. He took with him clothes, shoes, and “the safe.” Id. at 161. The next day, Holmes accessed the safe, and Owens was able to see “the gun” when he opened the door. Id. at 162. On March 22, Owens and Holmes got into an argument, Owens ended their relationship, and she did not allow Holmes back into her apartment.

[5] On March 23, Holmes called police and asked for assistance retrieving his items from Owens’ apartment. Officers Charles Hudson and Dewayne Mills ³ with the Indianapolis Metropolitan Police Department responded to the dispatch and went to Owens’ apartment with Holmes. Owens had placed some of Holmes’ belongings in the hall, but Holmes told Officer Hudson that he still had a “small safe” inside Owens’ apartment that he wanted to collect. Id. at 149. Officer Hudson had Holmes take the belongings from the hall to his car in order to “separate the two parties,” and Officer Hudson knocked on the door. Id.

[6] Owens answered the door and spoke with the officers. Owens stated that Holmes has prior felony convictions and that the safe contained a gun. Owens then played a voicemail from Holmes for the officers. In the voicemail, Holmes told Owens: “Please don't trip, though, yep, the police will be notified that you got a weapon in your house.” Ex. 35 at 12:33-:44.

[7] Officer Hudson located the safe in the bedroom closet and then went to his car to speak to a supervisor. While placing the call, Holmes approached Officer Hudson. Holmes, who had been calm when officers first arrived, was “nervous and anxious.” Tr. Vol. 2 at 152. Holmes asked Officer Hudson if there was a problem, and Officer Hudson stated that he was “just tryna figure out the situation with the safe for you.” Id. Holmes responded by asking, “What safe?” Id. Officer Hudson then said: “The safe that you asked me to ․ retrieve for you at the beginning, the whole reason I even know a safe exists.” Id. Holmes then stated that it was “too big to move.” Id. Officer Hudson asked if Holmes was “good,” and Holmes replied, “Yes, sir.” Id. Holmes then drove away.

[8] That same evening, Sergeant Michael Duke applied for a search warrant. In the application, Sergeant Duke stated:

I found that Holmes had been convicted on March 24, 2022, of “F3 Robbery Resulting in Bodily Injury-Robbery where someone other than a defendant, 35-42-2-1.3(a)(1)/F5: Domestic Battery by Means of a Deadly Weapon, 35-42-2-1.3(a)(1)/F6: Domestic Battery-Same as 6700, but def. has a prior conviction for any sort of, 35-42-2-1(c)(1)/F5: Battery by Means of a Deadly Weapon”. He also was convicted on March 24, 2022, of “F6: Strangulation, 35-42-2-1.3(a)(1)/F6: Domestic Battery-Same as 6700, but def. has a prior conviction for any sort of, 35-43-4-2(a)/MA: Theft, 35-43-1-2(a)/MB: Criminal Mischief, 35-46-1-15.1(a)(1)/MA: Invasion of Privacy-Violates protective order under IC 34-26-5 to prevent dom[.]”

[Owens] told the officers that the safe had a gun in it and Holmes had been shooting it, and that he was a felon. She then played a voicemail from Holmes, in which he said there was a murder weapon in the safe. Officer Charles Hudson called for guidance from his supervisor, but before he could get through, Holmes approached Hudson and told him the safe was too heavy and did not want the safe.

Appellant's App. Vol. 2 at 99. Sergeant Duke then requested a search warrant that would “authorize[ ] the search and seizure of the safe and its contents[.]” Id. A judicial officer granted the warrant and authorized officers “to search for and seize” the safe. Id. at 100.

[9] Officers seized the safe and were able to access the contents. Within the safe, officers found a firearm, .223 ammunition, plastic baggies, heroin, and a digital scale. Officers also found “personal documents” with Holmes’ name, including a bank statement, a receipt, and “other legal documentation.” Tr. Vol. 2 at 194, 210. Later testing revealed that Holmes’ DNA was on the firearm.

[10] The State charged Holmes with unlawful possession of a firearm by a serious violent felon, a Level 4 felony, and possession of a narcotic drug, as a Level 5 felony.⁴ For both counts, the State alleged that Holmes had committed the offense “[o]n or about March 22, 2023[.]” Appellant's App. Vol. 2 at 147-48. The trial court set the omnibus date for January 7, 2024.

[11] On April 9, 2024, Holmes filed an amended motion to suppress the evidence seized pursuant to the search warrant. Holmes alleged that the “issuance of the search warrant was the result of an improper ex parte application” and that Sergeant Duke had “made false and misleading representations with a reckless disregard for the truth” when he incorrectly stated in the application that Holmes had been convicted of certain crimes and when he incorrectly stated that the voicemail indicated that the gun was in the safe. Id. at 95.

[12] The court held a hearing on Holmes’ motion on April 30. During the hearing, Holmes argued that he had not been convicted of the crimes as outlined in the application for the search warrant and that Sergeant Duke had included that information with “reckless disregard of ․ the truth” because the accurate information is “easily found on MyCase by anybody in the public.” Tr. Vol. 2 at 23. The State conceded that the search warrant contained errors but contended that Holmes “does have prior convictions for the Level 6 felony domestic battery and invasion of privacy” and that the battery conviction “prohibits him from possessing firearms[.]” Id. at 24. Thus, the State asserted that, even if the incorrect portions were struck from the affidavit, there was still sufficient information to support the search warrant. Following the hearing, the court denied Holmes’ motion to suppress.

[13] Thereafter, on June 26, Holmes filed a second motion to suppress evidence. In that motion, Holmes asserted that, while the “safe itself was seized” pursuant to a search warrant, the warrant “did not authorize a search of the contents of the safe.” Appellant's App. Vol. 2 at 141 (emphasis in original). Thus, he maintained that the “seizure of the items in the safe was in violation of” his constitutional rights. Id.

[14] Then, on July 3, one week prior to the scheduled jury trial, the State filed a motion to amend the charging information by changing “the date of the offense[.]” Id. at 153. In particular, the State sought to amend the charging information to allege that Holmes had committed the offenses “[o]n or between December 31, 2022[,] and March 22, 2023[.]” Id. at 154. Holmes objected to the proposed amendment and asserted that it “affect[ed] his theory of defense.” Id. at 158.

[15] On July 9, the court held a hearing on Holmes’ second motion to suppress and on the State's motion to amend the charging information. Regarding the motion to suppress, Holmes asserted that “the search warrant granted appears to just be for the safe itself,” not the contents, such that the search of the contents was “warrantless.” Tr. Vol. 2 at 44-45. The State responded that the “request for the search warrant by the detective request[ed] the search and seizure of the safe and its contents.” Id. at 46-47.

[16] As to the amendment to the charging information, the State asserted that the “date range amendment here is an amendment of form, not of substance” and that Holmes “has been in possession of the evidence that gave rise to the amendment from the beginning of trial and throughout the litigation” because the probable cause affidavit outlined Owens’ “statement to officers that she saw or heard [Holmes] firing a gun on New Year's Eve” and that “he had handled the gun very recently[.]” Id. at 50. Holmes asserted that the new dates alleged in the amendment information required “a completely separate defense” and that his “whole defense” was whether or not he knew the gun was in the safe on the original date. Id. at 52, 55.

[17] Following the hearing, the court denied Holmes’ motion and granted the State's. The State then additionally alleged that Holmes was a habitual offender. On July 17, Holmes waived the speedy trial request he had previously made and requested a continuance, which the court granted. The court rescheduled the trial for September 25.

[18] During the first phase of the bifurcated trial, the State presented the testimony of Officer Hudson and Owens, among others. The trial court also admitted the items officers had retrieved from the safe. Holmes objected to any evidence or testimony related to the search and seizure of the safe, which objections the court overruled. At the conclusion of the first phase, the jury found Holmes guilty of possessing a firearm and of possessing a narcotic. Holmes then admitted to being a serious violent felon and a habitual offender. The court entered judgment of conviction accordingly and sentenced Holmes to an aggregate term of fifteen years in the Department of Correction. This appeal ensued.

Discussion and Decision

Issue One: Admission of Evidence

[19] Holmes first contends that the trial court erred when it admitted the evidence obtained pursuant to the search warrant. Holmes initially challenged the admission of this evidence through a motion to suppress but now appeals following a completed trial. Holmes contends that the trial court erred under both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution when it admitted evidence that officers obtained pursuant to the search warrant of his home. As we have explained:

[The defendant's] arguments that police violated his Fourth Amendment and Article 1, Section 11 rights raise questions of law we review de novo. As the United States Supreme Court has explained with respect to the Fourth Amendment, as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal, while findings of historical fact underlying those legal determinations are reviewed only for clear error. The Indiana Supreme Court applies the same standard under Article 1, Section 11. In other words, we review whether reasonable suspicion or probable cause exists under a standard similar to other sufficiency issues—whether, without reweighing the evidence, there is substantial evidence of probative value that supports the trial court's decision.

Redfield v. State, 78 N.E.3d 1104, 1106 (Ind. Ct. App. 2017) (internal quotation marks and citations omitted), trans. denied. In deciding whether to issue a search warrant, “ ‘[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit ․ there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Jaggers v. State, 687 N.E.2d 180, 181 (Ind. 1997) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

[20] Under the Fourth Amendment to the United States Constitution, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. To preserve that right, a judicial officer may issue a warrant only “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Id. “Article 1, Section 11 of the Indiana Constitution contains language nearly identical to its federal counterpart.” McGrath v. State, 95 N.E.3d 522, 527 (Ind. 2018). “And our statutory law codifies these constitutional principles, setting forth the requisite information for an affidavit to establish probable cause.” Id. (citing Ind. Code § 35-33-5-2).

False and Misleading Statements

[21] Holmes first asserts that the search warrant was invalid because Sergeant Duke included “false and misleading” information that officers “knew ․ was false[.]” Appellant's Br. at 21-22.⁵ In particular, Holmes contends that “[Sergeant] Duke made two sets of false and misleading statements,” namely, that Holmes had been convicted of several felonies and that Owens had played a voicemail from Holmes that stated the gun was in the safe. Id.

[22] As this Court has stated:

If a defendant establishes by a preponderance of the evidence that “a false statement knowingly and intentionally, or with a reckless disregard for the truth, was included by the affiant in the warrant affidavit, ․ and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Franks [v. Delaware], 438 U.S. [154] at 155-56, 98 S. Ct. 2674 [(1978)].

Stephenson v. State, 796 N.E.2d 811, 815 (Ind. Ct. App. 2003), trans. denied.

[23] We agree with Holmes that the application for the search warrant contained incorrect information. Contrary to Sergeant Duke's statements, Holmes was not convicted of many of the offenses included in the application. And the voicemail from Holmes that Owens played to police officers included a statement that the gun was in the apartment, not the safe. However, we see no indication that the inclusion of the incorrect information was a result of Sergeant Duke's reckless disregard for the truth.⁶

[24] In any event, even if we were to remove those incorrect statements from the affidavit, the remaining information correctly indicated that Holmes went to the apartment to obtain a safe that belonged to him, that Owens had told officers that the safe contained a gun and that Holmes had shot the gun, and that he had been convicted of a violent crime—felony domestic battery—which precludes him from being able to possess a firearm. Holmes acknowledges those correct statements, but he contends that that “information does not provide probable cause” because “no information in the affidavit established Owens’ reliability.” Appellant's Br. at 22-23.

[25] Where a warrant is sought based on hearsay information, the affidavit must either:

(1) contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or

(2) contain information that establishes that the totality of the circumstances corroborates the hearsay.

Ind. Code § 35-33-5-2(b).

[26] The trustworthiness of hearsay for the purpose of proving probable cause can be established in a number of ways, including where: (1) the informant has given correct information in the past, (2) independent police investigation corroborates the informant's statements, (3) some basis for the informant's knowledge is demonstrated, or (4) the informant predicts conduct or activity by the suspect that is not ordinarily easily predicted. State v. Spillers, 847 N.E.2d 949, 954 (Ind. 2006). These examples, however, are not exclusive.

[27] Further, our courts have observed that there are two categories of informants: professional informants and cooperative citizens. Clifford v. State, 474 N.E.2d 963, 969 (Ind. 1985). The test for determining the reliability of each group of informant is different. Id. Cooperative citizens who act as informants

include[ ] victims of crime or persons who personally witness a crime. These individuals generally come forward with information out of the spirit of good citizenship and the desire to assist law enforcement officials in solving crime. They are usually one-time informants and no basis exists from prior dealings to determine their reliability. Further, information of this type usually goes to past completed crimes rather than future or continuing crimes. Some jurisdictions have therefore held that informants of this type are to be considered reliable for the purpose of determining probable cause unless incriminating circumstances exist which cast suspicion upon the informant's reliability.

Richard v. State, 820 N.E.2d 749, 754 (Ind. Ct. App. 2005) (quoting Clifford v. State, 474 N.E.2d 963, 969 (Ind. 1985)), trans. denied, cert. denied.

[28] Here, Owens was a cooperative citizen who personally witnessed the crime. That is, she knew of Holmes’ prior felony conviction, she knew that Holmes kept a gun in his safe, that Holmes had accessed the safe only a few days prior to the police arriving at her apartment, and she had seen the gun at that time. And Holmes does not direct us to any circumstances that cast suspicion on Owens’ reliability. Further, Owens’ statements were corroborated at least in part by Holmes’ criminal record, the voicemail Holmes had left for Owens that stated that a gun was in her apartment, and the change in Holmes’ behavior from calm to nervous and anxious when officers discussed the safe with him. As such, Owens’ information was reliable. As a result, the remaining correct material in the affidavit, including Owens’ statements and Holmes’ conviction for felony domestic battery, was sufficient to establish probable cause.⁷

[29] Still, Holmes contends that, “[e]ven if law enforcement permissibly searched for and seized the safe pursuant to the search warrant, they exceeded the scope of the warrant when they opened the safe.” Appellant's Br. at 26. Here, the search warrant itself authorized officers to “search for and seize” the safe. Appellant's App. Vol. 2 at 100. Based on that, Homes maintains that the “object of this search warrant was the safe itself,” but that the warrant did not authorize the search of anything within the safe. Appellant's Br. at 26. We cannot agree.

[30] It is well settled that we read “the warrant and the incorporated affidavit together[.]” Thomspon v. State, 613 N.E.2d 461, 465 (Ind. Ct. App. 1993). See also Membres v. State, 889 N.E.2d 265, 276 (Ind. 2008) (reading the probable cause affidavit, which was “incorporated by reference” to the warrant, to “identify the scope of documents and other items that could properly be seized.”). Here, when Sergeant Duke applied for the search warrant, he specifically requested the authority for the “search and seizure of the safe and its contents[.]” Appellant's App. Vol. 2 at 99 (emphasis added). That probable cause affidavit clearly established that the officers sought to both seize the safe and to search it as well. While the warrant authorized officers to search “for” and seize the safe, id. at 100, Holmes has interpretated the warrant in a “hypertechnical, rather than a commonsense, manner,” and we decline to read it as he does. Watkins v. State, 85 N.E.3d 597, 603 (Ind. Ct. App. 2017). Taken together, the search warrant and the affidavit provided officers with the authority to search the contents of the safe, and officers did not exceed the scope of the warrant when they did so.

[31] Because the warrant was based on probable cause, and because officers did not exceed the scope of the warrant, the trial court did not err when it admitted evidence that officers had obtained pursuant to that warrant.

Issue Two: Amendment to the Charging Information

[32] Holmes next contends that the court abused its discretion when it allowed the State to amend the charging information one week prior to the scheduled trial date. As this Court has recently stated:

We review a trial court's decision on whether to permit an amendment to a charging information for an abuse of discretion. Howard v. State, 122 N.E.3d 1007, 1013 (Ind. Ct. App. 2019), trans. denied. An abuse of discretion occurs when the trial court's judgment is “clearly against the logic and effect of the facts and circumstances before it or is contrary to law.” Id. (citation omitted).

Shields v. State, 248 N.E.3d 1246, 1263 (Ind. Ct. App. 2024), trans. pending.

[33] “A charging information may be amended at various stages of a prosecution, depending on whether the amendment is to the form or to the substance of the original information.” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014). Indiana Code Section 35-34-1-5(b) provides, in pertinent part, that “[t]he indictment or information may be amended in matters of substance ․ before the commencement of trial; if the amendment does not prejudice the substantial rights of the defendant.” Regarding amendments in form, subsection (c) provides that “[u]pon 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(c).

[34] “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 at 405 (quoting Gomez v. State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009), trans. denied). “ ‘Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges.’ ” Id. at 405-06 (citation omitted).

[35] Here, one week prior to the scheduled trial date, the State sought to amend the charging information to expand the alleged date of the offense from “[o]n or about March 22, 2023,” to “[o]n or between December 31, 2022 and March 22, 2023[.]” Appellant's App. Vol. 2 at 32, 154. On appeal, Holmes contends that the amendment was one of substance, not form, because his original defense was that “Owens had unrestricted and unsupervised access to the safe after removing him from the house,” which was “not equally available after the amendment.” Appellant's Br. at 34.

[36] Here, the State was required to prove that Holmes was a “serious violent felon” who had “knowingly or intentionally possess[ed] a firearm.” I.C. § 35-47-4-5(c). In the probable cause affidavit, the State averred that Owens “had seen Holmes shoot the pistol” at his home “on New Year's Eve” and that he “had handled the gun very recently [to March 22, 2023] and had taken it out of the safe and later put it back in.” Appellant's App. Vol. 2 at 28. As such, Holmes knew as early as September 29, 2023, the date of the probable cause affidavit, that his possession of the firearm on December 31, 2022, may be at issue. Thus, Holmes was on notice of the potential allegations.

[37] Further, the court granted Holmes’ request for a continuance, which gave him more than two months to prepare his case. See Barnett v. State, 83 N.E.3d 93, 103 (Ind. Ct. App. 2017) (holding that a defendant's substantial rights were not violated when he was granted a motion to continue that resulted in several months to prepare his case.) Because Holmes was provided additional time prior to trial, he had a reasonable opportunity to prepare for and defend against the amended date range. Thus, the amendment did not affect Holmes’ substantial rights.

[38] To the extent Holmes argues that he was faced with deciding to either request a continuance to prepare his defense or waive his speedy-trial request, our Supreme Court has addressed a similar issue. In Haymaker v. State, the defendant's objection to an amendment to the charging information was overruled, but he did not request a continuance “because he had filed a speedy trial motion and wanted his trial to proceed as scheduled.” 667 N.E.2d 1113, 1114 (Ind. 1996). However, the Court noted that that fact “does not negate waiver” for failing to request a continuance. Id. In other words, the Court held that the proper avenue following an overruled objection to an amended charging information is to request a continuance, even if the defendant had previously sought a speedy trial. That is exactly what happened here, and Holmes received his additional time to prepare his defense.

[39] Holmes was provided with a reasonable opportunity to prepare for and defend against the new date range alleged in the amended charging information. As a result, his substantial rights were not prejudiced, and the trial court did not abuse its discretion when it allowed the State to amend the information one week prior to the scheduled trial date.

Conclusion

[40] The trial court did not err when it admitted evidence that officers had seized pursuant to the search warrant. And the court did not abuse its discretion when it allowed the State to amend the charging information. We therefore affirm Holmes’ convictions.

[41] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-47-4-5(c).

2.   I.C. § 35-48-4-6(b)(1).

3.   Officer Mills’ first name is spelled both “Dewayne” and “Dwayne” in the Appendix. See Appellant's App. Vol. 2 at 33, 62, 66. Officer Mills did not testify at the trial.

4.   The State additionally charged Holmes with unlawful carrying of a handgun and possession of a controlled substance. But the court dismissed both counts on the State's motion prior to trial.

5.   Holmes also contends that he did not abandon the safe, and the State does not argue otherwise. We agree.

6.   Holmes does not argue that Sergeant Duke knowingly or intentionally included the incorrect statements.

7.   Because we hold that the warrant was based on probable cause, we need not address Holmes’ arguments that the good faith exception to the warrant requirement does not apply.

Bailey, Judge.

Judges Vaidik and DeBoer concur. Vaidik, J., and DeBoer, J., concur.