Brian Jason-Lee Franklin, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Brian Franklin was convicted following a jury trial of invasion of privacy, criminal recklessness, and operating a vehicle as a habitual traffic violator, all Level 6 felonies, and the trial court found him to be a habitual offender. He appeals his convictions for invasion of privacy and operating a vehicle as a habitual traffic violator, raising the following restated issues:

1. Did the trial court abuse its discretion by allowing the State to amend the charges shortly before trial?

2. Did the trial court abuse its discretion by denying Franklin's request to exclude late-disclosed evidence?

[2] We affirm.

Facts & Procedural History

[3] Gaskill and Franklin were in a relationship that ended in 2023. After their break-up, Gaskill obtained an ex-parte order of protection against him on June 29, 2023, under cause number 12D01-2306-PO-487. The court held a hearing on July 10 and issued another order of protection – under the same cause number – effective through July 10, 2025. The protection order prohibited Franklin from “harassing, annoying, telephoning, contacting, or directly or indirectly communicating with” Gaskill and required him to “stay away from [her] residence and/or place of employment.” Exhibit Vol. at 31-32.

[4] In the summer of 2023, Seth Mikel Hayek-Darland (Boyfriend) began living with Gaskill at her residence. In July or August, Boyfriend met and spoke with Franklin when he came to the front door of Gaskill's house and was “trying to get in” and “demanding some stuff back.” Transcript Vol. 2 at 134.

[5] In the early morning hours of September 30, 2023, Boyfriend arrived at the residence he shared with Gaskill and saw Franklin sitting in a truck parked outside the house. Boyfriend parked his car behind the truck, at which time Franklin “spun out” with screeching tires to a stop sign, then put the truck in reverse and sped backwards “to try to strike [Boyfriend's] vehicle.” Id. at 139. Boyfriend threw his car in reverse and accelerated to avoid getting hit, ending up in a yard. Franklin came at Boyfriend's vehicle “and tried to pin [him] in” with the truck. Id. at 141. Boyfriend managed to drive away, heading to a police station, and Franklin chased him for a time. As the police station was closed, Boyfriend contacted Gaskill, who called 911, and Boyfriend returned to the residence.

[6] Clinton County Sheriff's Deputy Brett Woodward was dispatched to the residence about 1:30 a.m. Upon arrival, he observed that Boyfriend was visibly upset and saw damage to Boyfriend's vehicle. Deputy Woodward learned that Gaskill had an active order of protection against Franklin and initiated a search for Franklin, eventually locating and following a truck matching the description provided by Boyfriend. The driver stopped, exited, and ran away. Deputy Woodward later received an email from Franklin instructing him to contact his attorney.

[7] On October 4, 2023, the State charged Franklin in this cause, under cause number 12D01-2310-F6-001269 (Cause F6-1269), with Level 6 felony invasion of privacy (Count 1), Level 6 felony criminal recklessness (Count 2), and being a habitual offender. As relevant here, Count 1 misstated the first two digits of the cause number of the protective order that Frankin was alleged to have violated, stating that it was 29D01-2306-PO-487, rather than 12D01-2306-PO-487 (emphases added).¹ Appendix at 14. On February 27, 2024, an initial hearing was held, where the court scheduled a jury trial for April 24, 2024 and set an omnibus date of March 20, 2024.

[8] On April 18, the State filed a motion for leave to file an additional count, Level 6 felony operating a vehicle as a habitual traffic violator (Count 3). That same day, the court granted the State's motion and set an initial hearing on Count 3 for April 22.

[9] On April 19, the State filed a motion for leave to amend Count 1 “to correct non-substantive language of the information,” namely, the cause number for the protective order. Id. at 33-34. However, the motion and attached proposed charging information again incorrectly stated the cause number for the protective order.² The court ordered the State's motion to amend Count 1 to be heard at the already-set April 22 hearing. An hour prior to the hearing, the State filed another amended Count 1, this time correctly stating the cause number for the protective order that Frankin was alleged to have violated, i.e., Cause No. 12D01-2306-PO-487. Id. at 36.

[10] The first matter to be addressed at the April 22 hearing was the initial hearing on Count 3. The court advised Franklin of the new charge, its allegations, and the range of potential penalties. Franklin verbally acknowledged his understanding and expressed no challenge to Count 3. The trial court next addressed the State's motion to amend Count 1, advising Frankin that he was alleged to have violated a protection order “in case number 12D01-2306-PO-487.” Supp. Transcript at 5. The trial court informed Frankin that the reason provided by the State for filing the amended Count 1 was “they [ ] had [ ] an incorrect cause number[.]” Id. at 6. Franklin acknowledged that he understood the explanation for the amendment.

[11] Because Franklin's counsel had not yet seen the amended Count 1, the trial court granted a brief recess for counsel to discuss the matter with Franklin. When court resumed, Franklin's counsel made no comment about the amended charge but reported having just received discovery from the State, namely email communications between Franklin and Gaskill, and advised of the possibility of needing a continuance to investigate those communications. Franklin himself interjected, “I have no interest in continuing this matter so I want to make that clear on the record[.] I have no interest in continuing this matter.” Id. at 7. Thereafter, the court granted the State's request to amend Count 1.

[12] A jury trial was held April 24-25, 2024. At the start, and outside the presence of the jury, Frankin made “a continuing objection” to three things: the amendment of Count 1, the addition of Count 3, and the late-disclosed email communications. Transcript Vol. 2 at 8. The court explained that, as to the amendments, “the remedy would be for the Defense to [r]equest a [c]ontinuance” and, absent that, “it would be improper for [the court] to say that the State can't amend the charge or add charges.” Id. at 9. The State agreed, adding that there was no surprise associated with amending Count 1 to correct the cause number for the order of protection especially since the correct cause number was identified in the probable cause affidavit. The State acknowledged that adding Count 3 brought new substantive charges but maintained that a continuance would be the proper remedy.

[13] In response to Franklin's objection to the late-provided emails, the State informed the court that it had turned over the communications to Franklin's counsel “moments after” receiving them from Gaskill and argued that the remedy for any surprise would be a continuance.³ Id. at 10. Franklin's counsel responded,

I have discussed with my client the potential of a remedy for a continuance and he has indicated that he does not want to continue in order to do any further investigation and I don't know that we would approach the case any differently substantively if [ ] a continuance were granted.

Id. at 11. Counsel argued, however, that Franklin's federal and state due process rights would be violated by allowing the late-disclosed communications into evidence. The court rejected the due process claim and, after recognizing that Frankin was “not authorizing [his counsel] to request a continuance,” overruled the objection “on what has been described as late [d]iscovery,” noting that the communications at issue allegedly occurred between Franklin and a person who is a named victim in the protection order and, as such, “would not be a surprise” to Franklin. Id. at 11-12.

[14] During Gaskill's trial testimony, Franklin re-asserted his objection to the admission of Exhibits 5, 6, and 7 – the email communications from Franklin to Gaskill in the several days leading up to the September 30 incident. Gaskill testified that, “a day or two” after the September 30 incident, she discovered the emails from Franklin in her junk email folder, at which time she emailed them to “a lady officer” who she initially thought may have been named “Officer Lopez” but later agreed it might have been an “Officer Douglas.”⁴ Id. at 172, 174, 196. Gaskill testified that she provided the emails to the prosecutor's office two days prior to trial, and the State maintained that it turned them over to Franklin “moments later.” Id. at 179. The trial court overruled Franklin's objections to Exhibits 5-7 and admitted them into evidence.

[15] The jury found Franklin guilty as charged. Franklin waived his right to a jury on the habitual enhancement, and the court found him to be a habitual offender. In May 2024, the trial court sentenced Franklin to two years on each of the three convictions, enhancing Count 3 by four years for the habitual adjudication. The court ordered the sentences for Counts 1 and 2 to run consecutively, but concurrent to Count 3, for an aggregate six-year sentence. Franklin now appeals.

Discussion & Decision

1. Amendments to Charges

[16] Franklin contends that the trial court abused its discretion when it permitted the State, after the omnibus date, to amend Count 1 and add Count 3, and thus his convictions on those two counts should be reversed. We generally review the trial court's decision on whether to permit an amendment to a charging information for an abuse of discretion. Shields v. State, 248 N.E.3d 1246, 1263 (Ind. Ct. App. 2024), 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.

[17] Pursuant to Ind. Code § 35-34-1-5, 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). Subsection (a) permits an amendment at any time “because of any immaterial defect,” and it lists nine examples, including “(1) any miswriting, misspelling, or grammatical error,” “(6) any mistake in the name of the court or county,” and “(9) any other defect which does not prejudice the substantial rights of the defendant.” I.C. § 35-34-1-5(a). Similarly, subsection (c) permits “at any time before, during, or after the trial, ․ 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.” I.C. § 35-34-1-5(c). Subsection (d) addresses notice and the opportunity to be heard for such amendments, providing in part that

[u]pon permitting such amendment, the court shall, upon motion by the defendant, order any continuance of the proceedings which may be necessary to accord the defendant adequate opportunity to prepare the defendant's defense.

I.C. § 35-34-1-5(d).

[18] Subsection (b) provides that an information “may be amended in matters of substance” upon giving written notice to the defendant at any time up to thirty days before the omnibus date in the case of the defendant charged with a felony or before the commencement of trial “if the amendment does not prejudice the substantial rights of the defendant.” I.C. § 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; 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.” Shields, 248 N.E.3d at 1263 (quoting Erkins, 13 N.E.3d at 405). “Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges.” Id. (quoting Taylor v. State, 86 N.E.3d 157, 163 (Ind. 2017)).

[19] In distinguishing amendments of form versus that of substance, our Supreme Court has explained:

An amendment is one of form and not substance if a defense under the original information would be equally available after the amendment and the accused's evidence would apply equally to the information in either form. Further, an amendment is of substance only if it is essential to making a valid charge of the crime.

Fajardo v. State, 859 N.E.2d 1201, 1205 (Ind. 2007). Whether an amendment to an information is a matter of substance or form is a question of law that we review de novo. Erkins, 13 N.E.3d at 405.

Count 1

[20] Franklin claims that both amended Count 1 and added Count 3 were amendments “of substance.” Appellant's Brief at 13. As to Count 1, we disagree. The original charging information for Count 1 misstated the first two digits of the cause number of the protective order. The State attempted to correct the error, but in doing so, again misstated the protective order cause number. On the morning of the hearing on the amended charge, the State filed another amended Count 1, this time stating the correct cause number for the protective order. In advising Franklin at the hearing of the amended Count 1, the trial court read the correct cause number for the protective order that Franklin was alleged to have violated. This amendment was not one of substance.

[21] To the extent that Franklin argues that his “original defense was eliminated” by the amendment to Count 1, we are unpersuaded.⁵ Id. at 14. The amendment was to correct an immaterial defect in a cause number, and as such, falls within the ambit of amendments allowed at any time pursuant to I.C. § 35-34-1-5(a). We further note that amended Count 1 was consistent with the probable cause affidavit and with the charge filed on and read to Frankin at the April 22 hearing. The trial court did not abuse its discretion when it granted the State's motion to amend Count 1 to reflect the correct cause number for the order of protection that was alleged to have been violated.

Count 3

[22] As to the addition of Count 3 – operating while a habitual traffic violator – we agree, and the State concedes, that this was an amendment of substance as the amendment “charges the commission of a separate crime [and] is unquestionably essential to making a valid charge of the crime.” Shields, 248 N.E.3d at 1263 (quoting Fajardo, 259 N.E.2d at 1208). However, Franklin at no point filed any objection to the State's motion to add Count 3. Nor did he voice any objection to the new count at the April 22 hearing on that charge. At that hearing, the trial court identified the charged offense, read the allegations, and advised Franklin of the penalties. Thereafter, Franklin verbally acknowledged his understanding of such. Not only did Frankin not express opposition to Count 3, he personally stated – as his counsel was stating the possibility of seeking a continuance – that he opposed any continuance of the proceedings. It was not until the morning of trial that he asserted his objection to the addition of Count 3. The court expressly stated at that time that, with regard to the amendments, “the remedy would be for [Franklin] to [r]equest a [c]ontinuance.” Transcript Vol. 2 at 9. Counsel for Franklin indicated that he had discussed a potential continuance with Franklin but reported that Franklin “does not want to continue” the matter. Id. at 11.

[23] We have recognized that “[a] long line of cases holds 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[.]” Shields. 248 N.E.3d at 1263. Here, where Franklin neither objected nor requested a continuance, we find that he has waived the issue.⁶ See id. (finding that a defendant – who claimed trial court erred by granting State's request over his objections to add a new robbery count related to a different victim days before jury trial began – waived issue as he did not request a continuance).

2. Late-Disclosed Emails

[24] Two days prior to trial, the State provided Franklin with discovery, namely emails that Franklin sent to Gaskill in late September 2023. Franklin asserts that the trial court abused its discretion when it refused to exclude those late-disclosed communications and admitted them, as Exhibits 5-7, over Franklin's objections. Therefore, he claims, we should reverse his invasion of privacy conviction.

[25] A trial court has broad discretion to manage discovery, and we presume the court acted fairly and equitably. Luckett v. State, 223 N.E.3d 1170, 1176 (Ind. Ct. App. 2023). This court will reverse a trial court's ruling on late disclosed evidence only where the trial court has committed clear error resulting in prejudice. Id.

[26] Ind. Trial Rule 37 authorizes courts to impose sanctions for discovery violations, including orders prohibiting a party “from introducing designated matters in evidence.” T.R. 37(B)(2)(b); State v. Lyons, 211 N.E.3d 500, 505 (Ind. 2023). For sanctions addressing a party's late disclosure of evidence, our cases have long recognized that the two typical remedies are to continue the trial or to exclude the evidence and that “we exclude evidence only if (a) that is the sole remedy available to avoid substantial unfair prejudice, or (b) the discovery violation was intentional, flagrant, in bad faith, or otherwise reprehensible.” Lyons, 211 N.E.3d at 505-06. Our Supreme Court has observed that “ ‘[e]xclusion of the evidence is an extreme remedy and is to be used only if the State's actions were deliberate and the conduct prevented a fair trial.’ ” Luckett, 223 N.E.3d at 1176 (quoting Berry v. State, 715 N.E.2d 864, 866 (Ind. 1999)). Courts exclude evidence only as a last resort because that remedy frustrates a trial's truth-seeking function. Lyons, 211 N.E.3d at 506.

[27] When reviewing a trial court's ruling on late disclosed evidence, we consider: (1) when the parties first knew of the evidence; (2) the importance of the evidence; (3) the prejudice resulting to the opposing party; (4) the appropriateness of a less severe remedy such as a continuance; and (5) whether the opposing party would be unduly surprised and prejudiced by admission. Luckett, 223 N.E.3d at 1176 (citing Perryman v. State, 80 N.E.3d 234, 249 (Ind. Ct. App. 2017)). Here, the State represented that it first knew of the evidence on April 22, the same day it produced that evidence to Franklin. Franklin suggests that he was prejudiced by the trial court's refusal to exclude the emails, “because th[o]se messages provided the overwhelming evidence of Franklin's culpability” on the invasion of privacy charge. Appellant's Brief at 11. However, as Franklin acknowledges, Boyfriend provided eyewitness testimony that Franklin was at Gaskill's residence on September 30. As to whether Franklin would have been unduly surprised by the emails, the trial court observed that surprise was unlikely given that Franklin was the sender of the emails.

[28] Franklin acknowledges that a continuance is “the usual remedy for discovery violations,” but argues here that exclusion of the evidence was warranted because “the record demonstrates the likelihood that the State's actions were deliberate.” Id. at 19-20. We disagree. The prosecutor represented that the State promptly provided the emails to Franklin upon receipt of them from Gaskill. While there is evidence in the record that Gaskill had sent the emails to a female law enforcement officer a day or two after the September 30 incident, the State represented that it had no knowledge of the emails until April 22 and surmised that Gaskill may have emailed them to an officer with another law enforcement agency, not to the Clinton County Sheriff's Department, who was handling the investigation of the matter. Franklin personally expressed to the court that he “want[ed] to make clear on the record” that he had “no interest in continuing this matter,” and his counsel later advised that he had discussed the matter with Franklin and that the defense was not seeking a continuance. Supp. Transcript at 7.

[29] The record before us does not establish that the State's disclosure of the communications two days before trial was intentional, flagrant, in bad faith, or otherwise reprehensible conduct for which exclusion was the sole remedy available. See Lyons, 211 N.E.3d at 505. Accordingly, we find that the trial court did not commit clear error when it refused to exclude the late-disclosed emails.

[30] Judgment affirmed.

FOOTNOTES

1.   The October 2 probable cause affidavit alleged the correct 12DO1-2306-PO-487 cause number.

2.   The motion asked for leave to “replace 29D01-PO-487 with 12D01-2310-F6-1269,” but F6-1269 is the cause number of the current criminal case, not that of a protective order. Appendix at 33-34.

3.   Franklin asked to speak directly to the court, but the trial court denied the request, explaining that it did not allow “hybrid representation” and that Franklin could speak through his counsel. Transcript Vol. 2 at 10-11.

4.   The State maintained that that it regularly worked with local law enforcement and was not aware of any female officer named Lopez, speculating that Gaskill may have emailed the information to a female officer Douglas, who was with the Frankfort Police Department not the Clinton County Sheriff's Office. Id. at 179.

5.   Franklin argues that his “original defense was eliminated” because the original count alleged violation of what he claims was an expired protective order, whereas the amended charging number was for a protective order “in effect on the date of the charged offense.” Appellant's Brief at 14. However, the 12D01-2306-PO-487 protective order was not expired; the original ex-parte one, even if expired, was reissued on July 10, 2023, effective through July 10, 2025.

6.   Although the trial court did not hold a hearing before granting the State's request to add Count 3, Franklin was nevertheless provided an opportunity to be heard at the April 22 hearing, when the court advised him of the allegations.

Altice, Chief Judge.

Judges Vaidik and Scheele concur. Vaidik, J. and Scheele, J., concur.