Steven Eugene Perry, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Steven Perry was convicted of Level 3 felony rape. Perry now appeals, raising multiple issues, which we restate as:

(1) Whether the trial court erred when it denied Perry's motion for discharge and dismissal of his charges under Indiana Criminal Rule 4(C);

(2) Whether the trial court erred when it admitted certain evidence at trial that formed the basis for the DNA evidence;

(3) Whether the trial court erred when it allowed the State to amend the charging information to allege that the rape was committed by “other sexual conduct” in the alternative to sexual intercourse;

(4) Whether the trial court erred when it instructed the jury that voluntary intoxication was not a defense to the charges against Perry; and

(5) Whether the evidence was sufficient to support the jury's verdicts.

[2] We affirm.

Facts and Procedural History

[3] In July 2020, twenty-four-year-old P.N. met and talked to twenty-eight-year-old Perry at a co-worker's bonfire. Later, the two communicated through Instagram and by text message and eventually agreed to go on a date in Broad Ripple.

[4] Around 3:00 p.m. on August 8, P.N. and Perry met at the Half Liter bar. They shared food and each drank two beers and one shot of Fireball whiskey. At about 5:00 p.m., P.N. and Perry walked to the sparsely occupied Red Key Tavern where they continued talking and both had another beer and shot of alcohol. They kept talking and each had another beer and shot of alcohol. At some point, P.N. went outside to call her mother, leaving her drink inside the bar. She told her mother that she would be late to the family barbecue that night because the date “was going well[.]” Transcript Vol. 3 at 17. P.N. retrieved her drink and she and Perry moved to the outdoor seating area and chatted with a few patrons and the bartender. This was P.N.’s last memory of the night.

[5] Throughout the evening, P.N. also shared a “handful” of phone calls with her brother, Peter, and his wife, Taylor.¹ Id. at 55. Early in the evening, P.N. sounded “very lucid” and “clear,” and she told them she was “having a good time” and would call them back when she was headed to the barbeque. Id. at 84, 86. After leaving Red Key Tavern, Perry and P.N. walked several blocks to Binkley's restaurant. Around this time, P.N. talked to Peter and Taylor and told them “she wanted to stay out,” and she would not be attending the barbeque. Id. at 85. They thought P.N. was “[a] little incoherent” and “sounded like she had been drinking[.]” Id. at 87.

[6] When P.N. and Perry left Binkley's, they had a foot race on the sidewalk. Later, P.N. would have a “flash [ ] memory” of racing Perry as it was getting darker. Id. at 20. P.N. called Peter and Taylor around this time and asked them to pick her and Perry up. Taylor thought P.N. sounded “kind of incoherent” and could not “tell what was happening with her.” Id. at 86. Peter checked P.N.’s cell phone location and saw she was still in Broad Ripple. Concerned, Peter and Taylor began to drive toward P.N.

[7] Later, P.N. FaceTimed Peter and claimed she was “fine” and “did not want to be picked up.” Id. at 56, 85-86. P.N. and Perry were “walking on the side of the street” and P.N. sounded like she was not “fully there” and “just wasn't making any sense.” Id. at 56, 88. Perry assured Peter and Taylor that P.N. was fine and did not need to be picked up.

[8] After 10:00 p.m., Perry and P.N. walked through a neighborhood on Carrollton Avenue. Sophie O'Neil, who lived in the neighborhood, was home and heard noises outside. From her second story window, she saw two people in the grass under the streetlamp—P.N. was lying motionless on the ground and Perry was on top of her “stroking his penis in and out of her mouth.” Id. at 43. O'Neil took a picture of the individuals, sent it to her stepdad, and called the police. See Exhibits at 14.

[9] Perry and P.N. walked to an alley behind O'Neil’s house, activating security lights. Around this time, Peter and Taylor found P.N. in the alley by tracking her cell phone location. P.N. was “slouched over” against a fence and Perry was “[r]ight in front of her.” Tr. Vol. 3 at 59. P.N.’s top and shorts were both off, and Peter could see P.N.’s private parts. See id. at 59, 90, 103. Perry's jeans were “a little down” and Peter heard him close his belt buckle. Id. at 59, 72. P.N. said that she and Perry were “having sex.” Id. at 61, 90.

[10] Perry appeared “totally fine” and not drunk at all. Id. at 63. But Peter noticed P.N. was “slurring her words and not really making any sense.” Id. at 62. Taylor observed that P.N. was “not all there” and had trouble forming sentences, and as she helped P.N. get dressed, Taylor had to “physically hold her” upright to get her shorts on. Id. at 91. Both Peter and Taylor had seen P.N. drunk before, but neither of them had seen her act this way. She seemed “off” and was “all over the place.” Id. at 73. P.N. and Perry sat in the back seat as Peter drove them to P.N.’s apartment.

[11] Peter made the short drive to P.N.’s Broad Ripple apartment complex where Taylor had to physically assist P.N. up the stairs to her third-floor apartment. Because P.N. had lost her purse and keys and was locked out of her apartment, the group headed to Peter and Taylor's apartment in Noblesville. P.N. still seemed “out of it” and slept in Peter and Taylor's bedroom behind a locked door. Id. at 67. Perry slept on the living room couch.

[12] The next morning, P.N. woke up next to Taylor and asked her what had happened the night before. Id. at 20. P.N. felt “blank” as Taylor asked her if she recalled the events of the night. Id. at 22. P.N. noticed that her tampon from the night before was still in place but felt soreness in the area between her anus and vagina. See id. at 36. She also had new scrapes and bruises on her body.

[13] Peter, Taylor, and P.N. dropped Perry off at his car in Broad Ripple and then looked for P.N.’s missing purse, keys, and belt. Later, the O'Neil family texted P.N. that they had found her belongings, and they attached the picture of Perry on top of her in their yard. P.N. had no memory of lying in the yard with Perry on top of her.

[14] As Peter and Taylor described the previous night's events, P.N. “panicked.” Id. at 25. Peter and Taylor took P.N. to the Center of Hope at Indiana University Health Methodist Hospital for a sexual assault exam. A registered nurse (RN) examined P.N. and documented various new bruises and abrasions on her left arm and right leg. The RN identified a one-centimeter laceration to the area below P.N.’s vagina and above her anus that was “indicative of penetration” and “a result of friction.” Id. at 137.

[15] The RN collected P.N.’s clothing from the night before and swabbed various areas of her body. These items were packaged separately and sealed in the sexual assault kit. The kit was placed in a locked refrigerator at the hospital. About three and a half years later, an authorized lab technician with the Indianapolis Marion County Forensic Services Agency (Crime Lab) retrieved the sealed sexual assault kit from the Indianapolis Metropolitan Police Department's (IMPD) locked property room. A sample collected from the inside back panel of P.N.’s underwear showed a mixture of P.N.’s and Perry's DNA.”² Id. at 239.

[16] On August 9, 2020, an IMPD officer interviewed P.N., Taylor, and Peter. Between August 14 and 15, Perry attempted to call P.N. many times. He also texted her saying he cared about her and would “never hurt [her] and never ha[d.]” Ex. at 12. In October, IMPD Detective Fernando Cervantes contacted Perry and advised him he had a search warrant to collect his DNA. Perry told the detective he had moved to California and refused to provide his address. The 2020 search warrant was not executed. In 2023, Detective Cervantes left the IMPD and Detective Sergeant Jason Bockting took over the case.

[17] In February 2023, the State charged Perry with Level 3 felony rape, alleging he had sexual intercourse with P.N. when she “was unaware that the sexual intercourse was occurring[.]” Appellant's Appendix Vol. 2 at 21. The trial court did not find probable cause to arrest Perry and issued a summons for him to appear at an initial hearing on March 9, which was ultimately rescheduled to April 12. At the initial hearing, the court noted that Perry had not been served and reset the initial hearing “with a new order to appear and notice to the sheriff to try to find him and serve him.” Tr. Vol. 2 at 5. On April 28, Perry appeared with counsel, was served with the summons, and the court set the omnibus date for June 20. In May, an IMPD detective collected Perry's buccal swab pursuant to the 2020 search warrant. On the omnibus date, the State successfully moved to amend the charging information to add two counts of criminal confinement—one as a Level 5 felony and one as a Level 6 felony.

[18] After numerous continuances and delays partially due to pending DNA testing, on February 22, 2024, Perry filed a motion for discharge and dismissal of his charges pursuant to Indiana Criminal Rule 4(C). The State provided the DNA results to the defense on March 8. On March 13, the trial court denied Perry's motion for discharge and reset his jury trial date for April 22, within one year of the date he first appeared in court.

[19] On March 14, Perry filed a motion to suppress the DNA evidence on the basis that the 2020 search warrant was “expired” when the buccal swab was taken in May 2023. Appellant's App. Vol. 2 at 69. On April 17, after discovering O'Neil’s testimony, the State filed a motion to amend the information again to show that Level 3 felony rape was committed by “other sexual conduct [ ] and/or [ ] sexual intercourse[.]” Id. at 86. The court reset the trial to June 17 due to court congestion, and it set a hearing for April 30 to address the motions.

[20] At the hearing, in addressing its motion to amend the information, the State said it had offered to let Perry depose O'Neil, but Perry had declined. Perry objected to what he called a “catch-all” rape charge and the State's attempt to “change the goalposts in the middle of the game.” Tr. Vol. 2 at 71. Perry stated that his defense was that no sexual contact had occurred. The trial court granted the State's motion to amend and confirmed that Perry could interview or depose O'Neil. As to Perry's suppression motion, the State offered to have a detective testify and requested the court order a new buccal swab. Over Perry's objection, and without hearing any testimony, the trial court ordered Perry to submit to a new buccal swab and deemed his motion to suppress moot. The DNA was retested using Perry's 2024 buccal swab.

[21] The trial court held Perry's two-day jury trial on June 17 and 18, 2024. Perry testified that P.N. did not seem intoxicated the entire night, that the two wrestled on the grass as shown in O'Neil’s photograph, and that he had no sexual contact with P.N. beyond a hug and kiss at the Red Key Tavern. See Tr. Vol. 4 at 12-13, 15, 17, 22, 42-43. After the evidence concluded, the State tendered an instruction for voluntary intoxication. Perry objected, arguing that intoxication was not his defense and the instruction would mislead the jury. Because evidence had been admitted showing Perry drank alcohol while on the date with P.N. and the jury might speculate about his level of intoxication, the trial court permitted the pattern instruction.

[22] The jury found Perry guilty as charged. The trial court did not enter judgment of conviction on the criminal confinement verdicts and vacated those verdicts due to double jeopardy concerns. The court sentenced Perry to six years for committing Level 3 felony rape, with three years executed in the Department of Correction and three years suspended.

Discussion and Decision

1. Criminal Rule 4(C)

[23] Perry argues that trial court erred in denying his motion for discharge and dismissal pursuant to Indiana Criminal Rule 4(C). In reviewing a motion for discharge, “we review factual findings for clear error and questions of law de novo.” Watson v. State, 155 N.E.3d 608, 614 (Ind. 2020). In 2023, during the relevant period, Rule 4(C) provided:

No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar[.]

[24] “The purpose of [Rule 4(C)] is to promote early trials, not to discharge defendants.” State v. Harper, 135 N.E.3d 962, 972 (Ind. Ct. App. 2019), trans. denied. Subject to the exceptions found within Rule 4(C), “[t]he State bears the burden of bringing the defendant to trial within one year.” State v. Larkin, 100 N.E.3d 700, 703 (Ind. 2018), reh'g denied. However, “[w]hen a defendant moves for discharge, he bears the burden of showing that he has not been timely brought to trial[.]” Harper, 135 N.E.3d at 972.

[25] Initially, the parties dispute the date that the Criminal Rule 4(C) period began. This is a question of law reviewed de novo. Griffith v. State, 59 N.E.3d 947, 954 (Ind. 2016). The trial court found that the Rule 4(C) clock began to run on April 28, 2023 when Perry first appeared in court pursuant to the summons because Perry “had no liberty interest at stake until then[.]” Appellant's App. Vol. 2 at 65. The State argues the same on appeal, citing Johnson v. State, 708 N.E.2d 912 (Ind. Ct. App. 1999), trans. denied. In Johnson, this Court considered when Rule 4(C) attached where a defendant charged with a misdemeanor was served with a summons in lieu of an arrest warrant under Indiana Code section 35-33-4-1. Johnson, 708 N.E.2d at 915. Under such circumstances, we found that the defendant's liberty was not truly restrained until the date they were ordered to appear in court. Id. Consistent with the purpose of Rule 4(C), which is to “assure criminal defendants of early trials, not to provide them with a technical means of avoiding trial[,]” we held that the date the defendant was ordered to appear in court started the Rule 4(C) timetable. Id. However, Indiana Code section 35-33-4-1 is limited to persons charged with misdemeanors and we have found no extension of Johnson to similar circumstances involving felony charges. We decline to extend Rule 4(C) further past its plain language.

[26] The one-year period the State had to bring Perry to trial under Rule 4(C) began when the State filed charges on February 13, 2023. From there, we evaluate how the occurrences resulting in delays affected the Rule 4(C) clock.

Delays caused by the defendant technically extend the Rule 4(C) one-year time period. Under Rule 4(C), delays for emergency or court congestion do not count toward the one-year period, but Rule 4(F) does not explicitly state that those delays extend the one-year period. In the end, tacking on additional time to the one-year period and excluding days from the one-year period are one and the same․ [W]e decide whether the time not attributable to defendant's delays, court congestion, or emergency exceeds 365 days.

Curtis v. State, 948 N.E.2d 1143, 1150 (Ind. 2011) (internal citation omitted).

[27] By our calculation, Perry filed his February 22, 2024 motion for discharge 373 days after he was charged. When the parties appeared on June 20, 2023 for a pretrial conference six days before the scheduled trial, Perry's attorney had just noticed he did not have discovery and had failed to communicate with the public defender who had originally entered a temporary appearance and received discovery. See Bik v. State, 211 N.E.3d 594, 598 (Ind. Ct. App. 2023) (attributing delays based on communication issues to the defendant), trans. denied. In requesting a continuance of the trial date, Perry's counsel also raised the need to depose certain witnesses. The court set a new trial date of August 21, resulting in a 56-day delay. We find that this delay was attributable to Perry. Thus, at the time Perry filed his February 22, 2024 motion for discharge, 317 days of the Rule 4(C) period had passed and the State still had 48 days to bring him to trial, meaning Perry filed his motion for discharge prematurely.³

[28] Perry did not renew his motion for discharge, but even considering the period after Perry filed for discharge, we conclude the State brought him to trial in a timely manner. Perry's motion for discharge “stopped the 4(C) clock.” Ferman v. State, 232 N.E.3d 133, 140 (Ind. Ct. App. 2024). The trial court denied his motion on March 13. In the meantime, the court held a March 5 pretrial conference during which the State stated it was rushing the Crime Lab to complete the still-pending DNA testing before the scheduled March 11 trial. At that point, the court stated that if the DNA results were received before March 11, Perry would be entitled to a continuance, but “it would be [Perry's] continuance” and “charged to the defendant[.]” Tr. Vol. 2 at 29. Perry did not object and stated, “[a]t that point, yes.” Id. Thus, Perry agreed that if he received the results before the trial date, a subsequent continuance would be attributable to him. We find no reason to disturb this agreement. The DNA results were returned on March 8, the March 11 trial date was subsequently canceled, and after ruling on Perry's motion for discharge on March 13, the trial court reset trial for April 22. Finally, on April 19, the trial court entered a written order continuing the April 22 trial date to June 17 due to court congestion. Thus, the entire delay following Perry's motion for discharge was attributable to Perry or court congestion. We conclude that the trial court properly denied Perry's motion for discharge and dismissal.⁴

2. Admission of Evidence

[29] Perry argues that the trial court improperly admitted certain evidence at trial. We generally review a trial court's decision on the admissibility of evidence for an abuse of discretion. McCoy v. State, 193 N.E.3d 387, 390 (Ind. 2022). Under this standard, reversal is “warranted only if the trial court's ruling is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.” Id. However, the failure to object when evidence is admitted results in waiver of the issue for appellate review unless fundamental error occurred. Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013). The fundamental error exception is “extremely narrow and ‘available only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible.’ ” Matter of Eq.W., 124 N.E.3d 1201, 1214-15 (Ind. 2019) (quoting Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008)). Attempting to salvage review for fundamental error by addressing the issue for the first time in a reply brief results in waiver. See Curtis, 948 N.E.2d at 1148 (“[P]arties may not raise an issue, such as fundamental error, for the first time in a reply brief.”); Higgason v. State, 210 N.E.3d 868, 885 n.7 (Ind. Ct. App. 2023), trans. denied; Sisson v. State, 985 N.E.2d 1, 14 n.8 (Ind. Ct. App. 2012), trans. denied.

A. Undergarments

[30] Perry argues that the State failed to establish a proper chain of custody for the DNA evidence obtained from P.N.’s bra and underwear, so that evidence should have been excluded. The State contends Perry waived this argument on appeal because he failed to object to the admission of these items at trial. We agree. When the exhibits from the sexual assault kit were admitted at trial through the RN who collected the items, Perry said he had “[n]o objection” to admission of the bra and underwear. Tr. Vol. 3 at 159. Later, when the witness from the Crime Lab was questioned about her receipt of the bra and underwear and her DNA testing of those items, Perry objected on chain of custody grounds. A chain of custody objection goes to the foundational admissibility of physical evidence and cannot be lodged after its admission. See K.W. v. State, 216 N.E.3d 505, 515 (Ind. Ct. App. 2023), trans. denied. Thus, Perry failed to timely object and waived this issue absent a showing of fundamental error. But because the first time he raised the fundamental error claim was in his reply brief, Perry waived this issue entirely. See Curtis, 948 N.E.2d at 1148.

[31] Waiver notwithstanding, “[a]n exhibit is admissible ‘if the evidence regarding its chain of custody strongly suggests the exact whereabouts of the evidence at all times.’ ” Jones v. State, 218 N.E.3d 3, 9 (Ind. Ct. App. 2023) (quoting Culver v. State, 727 N.E.2d 1062, 1067 (Ind. 2000), reh'g denied), trans. denied. “To establish a proper chain of custody, the State must give reasonable assurances that the evidence remained in an undisturbed condition.” Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). The State is not required to establish a perfect chain of custody, and any gaps go to the weight of the evidence, not its admissibility. Id. “There is a presumption of regularity in the handling of exhibits by public officers.” Jones, 218 N.E.3d at 9. Simply raising the possibility of tampering is not sufficient to successfully challenge the chain of custody. Id.

[32] Here, Perry raises only the possibility of tampering related to one gap in the chain of custody that is acknowledged by the State—“the transfer of the sexual assault kit from the secure trauma center to the secure IMPD property room[.]” Appellee's Br. at 35. The record shows that the RN who administered P.N.’s sexual assault exam on August 9, 2020 collected the bra and underwear and sealed them separately inside bags that were then placed in the sexual assault kit. See Tr. Vol. 3 at 156, 158-59, 166; Ex. at 38. She then sealed the kit and placed it in a locked refrigerator. See Tr. Vol. 3 at 155-56. At some point, Detective Cervantes retrieved the kit from the hospital and brought it to the IMPD property room. Detective Cervantes did not testify at trial because he had retired and moved to Florida. About three and a half years after the RN put the collected evidence in the kit, an authorized Crime Lab technician retrieved the still-sealed kit from the IMPD's locked property room. The technician removed P.N.’s undergarments from the kit and took samples for testing. The kit was resealed and returned to the IMPD property room where it remained until Detective Bockting picked it up before trial. See Tr. Vol. 3 at 203, 242.

[33] We conclude that the State provided reasonable assurances that the undergarments remained in an undisturbed condition since the kit was sealed from the time the RN collected the evidence until it was retrieved for DNA testing. While it is unclear when the kit was transported from the hospital to the IMPD property room, this gap in the chain of custody went to the weight of the evidence, not its admissibility. We also note that Perry effectively attacked the weight of the DNA evidence derived from P.N.’s underwear. Although Perry's trial counsel did not contemporaneously object to the admission of the underwear, he later asked preliminary questions, raised objections, and cross-examined witnesses regarding its chain of custody. Because we presume regularity in the handling of evidence, we conclude that there was no error, let alone fundamental error, in the trial court's decision to admit the bra and underwear and the evidence obtained therefrom.

B. Buccal Swab

[34] Perry also argues that the trial court erred in admitting DNA evidence that was based on a buccal swab taken from him in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 12 of the Indiana Constitution. He contends there was no probable cause to support the trial court's April 30, 2024 order from the bench compelling him to submit to a new buccal swab.

[35] The State again argues that Perry failed to properly object to the admission of the buccal swab at trial, forfeiting appellate review of this issue absent a showing of fundamental error. We again agree with the State. Perry objected on April 30 and notes that he “renewed his [probable cause] objection to the 2024 buccal swab” on the first morning of trial before jury selection began. Appellant's Reply Br. at 8. However, he did not object when the buccal swab was admitted at trial; instead, he stipulated that the chain of custody of the buccal swab was valid and the evidence would be admitted at trial. See Ex. at 17. Perry also failed to argue that fundamental error applied to this evidentiary issue in his principal brief, which results in waiver of the issue in its entirety. See Curtis, 948 N.E.2d at 1148.

[36] Waiver notwithstanding, a magistrate tasked with deciding whether to issue a search warrant must make a “practical, common-sense 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.” State v. Spillers, 847 N.E.2d 949, 953 (Ind. 2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). As the reviewing court, “we apply a deferential standard of review to the magistrate's probable cause finding, affirming if the magistrate had a ‘substantial basis’ for making that decision.” Heuring v. State, 140 N.E.3d 270, 273 (Ind. 2020) (quoting McGrath v. State, 95 N.E.3d 522, 527 (Ind. 2018)). In making this determination, we consider only the evidence submitted to the issuing judicial officer and focus on whether the reasonable inferences drawn from the totality of the evidence support the finding of probable cause. Id.

[37] The Fourth Amendment secures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” 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.’ ” McGrath, 95 N.E.3d at 527 (quoting U.S. Const. amend. IV). Article 1, Section 11 of the Indiana Constitution contains nearly identical language, and Indiana has codified these constitutional principles at Indiana Code sections 35-33-5-1 and 35-33-5-2. A buccal swab constitutes a search under the Fourth Amendment and our State Constitution. M.D. v. State, 108 N.E.3d 301, 305 (Ind. 2018) (citing Garcia-Torres v. State, 949 N.E.2d 1229, 1237-38 (Ind. 2011)).

[38] Here, in late 2020, Detective Cervantes secured a search warrant to obtain Perry's DNA. See Appellant's App. Vol. 2 at 34. A buccal swab was not obtained at that time because Perry had moved to California. Charges were filed against Perry in February 2023, and the trial court found the State's probable cause affidavit was insufficient to issue an arrest warrant. On May 25, 2023, an IMPD detective directed Perry to submit to a buccal swab based on the 2020 search warrant. On March 8, 2024, the State provided the defense with the DNA test results. Six days later, Perry filed a motion to suppress that evidence on the basis that at the time the buccal swab was taken, the search warrant had already expired. At an April 30 hearing, the State suggested that the court order a new buccal swab in lieu of ruling on the motion to suppress. The court's chronological case summary entry shows that the court treated this request as a motion to compel a new buccal swab. See Appellant's App. Vol. 2 at 12 (“Over Defense objection- Motion to compel Defendant for Buccal swab sample- Granted orally on record[.]”) (capitalization in original). Without hearing any evidence, the court ordered Perry to submit to a new buccal swab and determined his motion to suppress was moot.

[39] On appeal, Perry avers “[t]he issue is that the trial court never received any information to support the finding of probable cause and the State never submitted any testimony or evidence to the trial court[.]” Appellant's Br. at 33. Essentially, he argues that at the April 30 hearing the trial court did not have an adequate factual basis to find probable cause and compel him to submit to a new buccal swab. We agree with the State that it is “reasonable to infer that the trial court based its finding of probable cause on the probable cause affidavit that supported the charges[.]”⁵ Appellee's Br. at 37.

[40] The judge who signed the February 21, 2023 order finding no probable cause to arrest Perry was the same judge who ordered Perry to submit to a new buccal swab on April 30, 2024, and who conducted his trial. Thus, the trial judge read the sworn probable cause affidavit and was familiar with its allegations. The affidavit recited facts about Perry and P.N.’s date, their consumption of alcohol and P.N.’s lack of memory, Peter's discovery of partially-clothed P.N., the 2020 search warrant for Perry's DNA, his move to California, and his refusal to provide his address. See Appellant's App. Vol. 2 at 33-34. While the trial court found these allegations insufficient to order Perry's pretrial arrest, they were adequate to support a minimally invasive search of Perry's DNA for identification purposes. See Garcia-Torres v. State, 949 N.E.2d 1229, 1235 (Ind. 2011) (noting that cheek swabs are “not particularly intrusive[,]” cause only a “trivial” level of discomfort, and are primarily used for identification). And although over one year passed between the filing of the charging affidavit and the April 30, 2024 hearing, its information was not stale because Perry's DNA by its nature could not be concealed or destroyed and was certain to be discovered by the buccal swab. Moreover, before addressing the buccal swab issue at the April 30 hearing, the State informed the trial court that O'Neil’s testimony would be that she saw oral sex occurring around the time she photographed Perry and P.N. in front of her house. It is logical to infer that the court relied on the foregoing information in finding probable cause to compel Perry to submit to a new buccal swab. We conclude that the court's consideration of this evidence was appropriate and provided a substantial basis for its order for a new buccal swab. However, even if any error occurred in the trial court's admission of the buccal swab and the evidence obtained therefrom, it was not so “undeniable and substantial” as to constitute fundamental error. Bolcerek v. State, 255 N.E.3d 1206, 1214 (Ind. Ct. App. 2025) (quoting Willoughby v. State, 244 N.E.3d 473, 476 (Ind. Ct. App. 2024), trans. denied), trans. denied.

3. Amendment of Rape Charge

[41] Perry claims the trial court erred by granting the State's April 17, 2024 pretrial motion to amend the charging information. Originally, the State alleged that Perry committed Level 3 felony rape by having sexual intercourse with P.N., but the State's amended charge claimed Perry engaged in “other sexual conduct with and/or ha[d] sexual intercourse with P.N.” Appellant's App. Vol. 2 at 86. “We review a trial court's decision on whether to permit an amendment to a charging information for an abuse of discretion.” Hobbs v. State, 160 N.E.3d 543, 551 (Ind. Ct. App. 2020), trans. denied.

[42] “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) (quoting Fajardo v. State, 859 N.E.2d 1201, 1203 (Ind. 2007)), reh'g denied. Whether an amendment is one of substance or form is a question of law that we review de novo. Id.

[A]n 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.

Id. at 406 (quoting Fajardo, 859 N.E.2d at 1205).

[43] Amendments to a charging information are governed by Indiana Code section 35-34-1-5. Amendments of form may be made “before, during, or after the trial” if the amendment “does not prejudice the substantial rights of the defendant.” I.C. § 35-34-1-5(c). On the other hand, amendments of substance made after the omnibus date may be made “before the commencement of trial [ ] if the amendment does not prejudice the substantial rights of the defendant.” I.C. § 35-34-1-5(b)(2).

[44] Because we conclude that the State's amendment did not prejudice Perry's substantial rights, we need not determine whether the amendment was one of form or substance. “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.’ ” Jones v. State, 250 N.E.3d 1062, 1079-80 (Ind. Ct. App. 2024) (quoting Erkins, 13 N.E.3d at 405), trans. denied. The question is ultimately “whether the defendant had a reasonable opportunity to prepare for and defend against the charges.” Bright v. State, 205 N.E.3d 1055, 1059 (Ind. Ct. App. 2023) (quoting Erkins, 13 N.E.3d at 405-06).

[45] Here, Perry's substantial rights were not prejudiced by the amendment to the information. On April 17, 2024, Perry received notice that the State intended to amend the information to allege that the rape was committed by either of the two disjunctive forms of sexual contact the rape statute prohibits—sexual intercourse and other sexual conduct. See I.C. § 35-42-4-1(a). We note that under Indiana Code section 35-34-1-5(a)(5) “the use of alternative or disjunctive allegations as to the acts, means, intents, or results charged” is considered an “immaterial defect” to the information subject to amendment “at any time[.]” The State sought the amendment after discovering that O'Neil “had witnessed much more than just the picture[,]” including oral sex. Tr. Vol. 2 at 67. The court granted the State's motion to amend the information on April 30. Thus, Perry had two months to investigate the State's amended charge before his trial on June 17. See Hobbs, 160 N.E.3d at 552 (“[A]lthough there is no minimum time period that trial courts must allow for preparing a defense, the ‘common scenario [is] two or more months.’ ”). In fact, the record shows the State offered Perry the chance to depose O'Neil before the April 30 hearing, and at the hearing, the trial court confirmed O'Neil was still available to be interviewed.

[46] Most importantly, Perry's defense was in no way impaired by the amendment. See Bright, 205 N.E.3d at 1059 (finding that the defendant's substantial rights were not prejudiced by an amendment that “in no way impaired” his defense). Perry's defense strategy consisted of arguing that no sexual contact occurred between himself and P.N. The inclusion of an allegation that an alternative form of sexual contact occurred did not impact his defense. Because Perry had sufficient notice, an opportunity to investigate the amended allegation, and his defense was not impacted, we conclude that the amendment did not prejudice his substantial rights. The trial court did not abuse its discretion in permitting the amendment.

4. Voluntary Intoxication Instruction

[47] Perry also asserts that the trial court violated his “right to present a defense of his choosing under the Sixth Amendment when it instructed the jury that voluntary intoxication was not a defense” to the charges he faced. Appellant's Br. at 40. We review a trial court's decision to give or refuse a jury instruction for an abuse of discretion. Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). In our review, we consider: “(1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given.” Id. (quoting Guyton v. State, 771 N.E.2d 1141, 1144 (Ind. 2002)). “An improper instruction will merit reversal only if it ‘so affects the entire charge that the jury was misled as to the law in the case.’ ” Thomas v. State, 61 N.E.3d 1198, 1201 (Ind. Ct. App. 2016) (quoting Hubbard v. State, 742 N.E.2d 919, 921 (Ind. 2001), cert. denied), trans. denied.

[48] Whether the right is rooted in the Sixth or Fourteenth Amendment, the United States Constitution “guarantees criminal defendants a meaningful opportunity to present a complete defense.” Smith v. State, 140 N.E.3d 363, 372 (Ind. Ct .App. 2020) (citing Crane v. Kentucky, 476 U.S. 683, 690 (1986)), trans. denied. While the “right to present a defense is fundamental and of the utmost importance, it is not absolute.” Id.

[49] Jury instructions are meant to “inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.” Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (quoting Chandler v. State, 581 N.E.2d 1233, 1236 (Ind. 1991)). Here, the disputed instruction read:

Voluntary intoxication is not a defense to the charges of Count 1: Rape, a level 3 felony, Count 2: Criminal Confinement, a level 5 felony, or Count 3: Criminal Confinement, a level 6 felony. You may not take voluntary intoxication into consideration in determining whether the Defendant acted knowingly or intentionally as alleged in the charging information.

Appellant's App. Vol. 2 at 144.

[50] Perry's argument that the voluntary intoxication instruction violated his right to present his defense is incomplete and misguided. He essentially argues that because his defense was “no sexual contact ․ occurred” and his testimony and argument did not place the “intoxication of the parties” at issue, his right to present his defense was violated when the instruction was given. Appellant's Br. at 41. This argument assumes that only his asserted defense was relevant to whether the instruction was proper and fails to address the factors that show when an instruction is improperly given. Perry himself, as well as P.N., testified that he consumed at least five alcoholic drinks on their date. Thus, there was evidence in the record to support giving the instruction. See Phillips v. State, 22 N.E.3d 749, 762 (Ind. Ct. App. 2014) (finding sufficient evidence to support the trial court's decision to give a voluntary intoxication instruction when the evidence of intoxication, if believed, could create reasonable doubt in the minds of the jurors about the defendant's requisite specific intent), trans. denied. Additionally, the voluntary intoxication instruction was a correct statement of the law and was not addressed by other instructions. See I.C. §§ 35-41-2-5, -3-5. In deciding to give the instruction, the trial court noted that the instruction served to prevent the jury from “mistakenly speculat[ing]” about Perry's level of intoxication or its legal effect. Tr. Vol. 4 at 49. We agree with the trial court's assessment. After all, during Perry's testimony, a juror submitted a question about his level of intoxication on the night at issue. See id. at 43. We conclude that the trial court did not abuse its discretion in giving the voluntary intoxication instruction.

[51] We also note that the voluntary intoxication instruction did not prejudice Perry's right to present his defense. Perry's defense was that he had no sexual contact with P.N. The voluntary intoxication instruction simply clarified that if the jury was persuaded by the ample evidence that sexual contact did occur, it could not consider Perry's voluntary intoxication in determining whether he had the requisite mens rea.

5. Sufficiency of the Evidence

[52] Lastly, Perry argues that the evidence presented at trial was insufficient to support his conviction for rape. Our standard of review for sufficiency of the evidence challenges is well established. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). Sufficiency claims “trigger a deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury.’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), reh'g denied, cert. denied). When conducting this review, “we consider only the evidence that supports the jury's determination, not evidence that might undermine it.” Id. We affirm if the probative evidence and reasonable inferences drawn therefrom could have allowed a reasonable jury to find the defendant guilty beyond a reasonable doubt. McHenry v State, 820 N.E.2d 124, 126 (Ind. 2005).

[53] The jury's verdict specifically found that Perry committed Level 3 felony rape by engaging in other sexual conduct with P.N. See Appellant's App. Vol. 2 at 164. To support a Level 3 felony rape conviction by other sexual conduct, the State needed to prove beyond a reasonable doubt that Perry knowingly or intentionally caused P.N. to perform or submit to other sexual conduct when P.N. was unaware the other sexual conduct was occurring. See I.C. § 35-42-4-1(a)(2). As used in the rape statute, “other sexual conduct” means “an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object.” I.C. § 35-31.5-2-221.5.

[54] Perry's sole argument is that the evidence did not establish P.N. was unaware when other sexual conduct occurred.⁶ There is no statutory definition of “unaware” to guide our review. However, this Court has “adopted a dictionary definition of the term—‘not aware: lacking knowledge or acquaintance; unconscious’—and held that the victim must be ‘unaware that the sexual act is occurring’ for a defendant to be guilty of rape pursuant to the statute.” Filice v. State, 886 N.E.2d 24, 32 (Ind. Ct. App. 2008) (quoting Glover v. State, 760 N.E.2d 1120, 1124 (Ind. Ct. App. 2002), trans. denied), trans. denied. We have also held that the legislature's choice to use “unaware” instead of “unconscious” means that “the term includes, but is not limited to, unconsciousness.” Id. at 33. Thus, while the State suggests that Perry drugged P.N. during their date, it was not required to establish he did so to prove unawareness. “[T]he rape statute and our caselaw do not distinguish between a rape victim who was involuntarily drugged and one who became unaware because of voluntary intoxication.” Steury v. State, 243 N.E.3d 1108, 1116 (Ind. Ct. App. 2024), trans. denied; see Frye v. State, 240 N.E.3d 727, 733 (Ind. Ct. App. 2024) (noting that determining unawareness also involves considering whether the victim was capable of voluntarily giving consent).

[55] A few cases bear resemblance to the case at hand. In Filice, the victim ingested Rohypnol while she was out drinking in Indianapolis and ended up with Filice at his apartment. Filice, 886 N.E.2d at 30-31. Upon entering the apartment, the victim “was gone, her eyes were blank. She wasn't controlling her posture very well.” Id. at 30. She seemed “limp” and was not “steady on her feet.” Id. A few minutes later, Filice's roommate saw Filice engaged in sexual activity with the victim, who appeared “hunched” and “limp.” Id. at 36. The victim did not remember much of the night but had a few flashback memories, including her attempts to resist sexual contact with Filice. A jury found Filice guilty of attempted rape and we determined on appeal that the evidence was sufficient to show the victim was unaware while the sexual act was occurring. Id.

[56] In Steury, the victim and her boyfriend drank alcohol at a bar with Steury and his girlfriend. Steury, 243 N.E.3d at 1111. Steury drove all of them to his house where they continued drinking. Id. The victim appeared “really drunk” and was “slurring her words” and moving clumsily. Id. The victim “passed out really fast” on the couch and woke up to Steury's hand in her pants; she later remembered sexual intercourse had occurred, which DNA evidence supported. Id. at 1112. A jury found Steury guilty of rape and a panel of this Court affirmed his conviction on appeal, finding the evidence sufficient to show the victim was unaware because she was “inebriated and ‘passed out’ ” when the sexual intercourse began despite recalling brief parts of it. Id. at 1120.

[57] Here, the evidence most favorable to the jury's verdict demonstrates that P.N. consumed a considerable amount of alcohol and experienced symptoms consistent with the effects of date rape drugs.⁷ Aside from P.N.’s single flashback memory of her racing down the sidewalk with Perry, she remembered nothing from the night after being at the Red Key Tavern. P.N.’s phone calls with her family illustrated her decline in lucidity as the night progressed. Over the course of the evening, P.N. went from sounding “clear” and “lucid,” to “kind of incoherent[,]” to “incoherent,” not “fully there,” and “just [not] making any sense.” Tr. Vol. 3 at 56, 86, 88, 92. When Peter and Taylor found P.N. “slouched over” against a fence with her private parts showing and Perry looming over her, P.N. needed physical assistance to stand upright and get her clothes on. Id. at 59.

[58] At that point, P.N. said she and Perry were “having sex[,]” which Perry cites to support his argument that P.N. “was aware of whatever sexual contact that may have occurred.” Id. at 61, 90; Appellant's Br. at 45. But when she made that comment, P.N. appeared “off” and “all over the place” and was “slurring her words and not really making any sense.” Tr. Vol. 3 at 73, 62. She had never acted like that before when Peter and Taylor had seen her intoxicated. Moreover, the jury specifically declined to find that the State proved the rape charge by sexual intercourse. And when O'Neil saw Perry “stroking his penis in and out of [P.N.’s] mouth” in the yard outside her home, P.N. was lying on the ground, motionless. Id. at 43-44. We conclude the totality of the evidence supports a reasonable inference that P.N. was not aware when other sexual conduct occurred.⁸

Conclusion

[59] For the foregoing reasons, we affirm Perry's conviction for Level 3 felony rape.

[60] Affirmed.

FOOTNOTES

1.   The precise timeline of these phone calls is difficult to discern but does not affect our decision making because the gist is clear: the calls led Peter and Taylor to believe P.N. was experiencing a concerning decline in coherence and they drove to pick her up, using her cell phone location to track her whereabouts.

2.   Specifically, the biology unit supervisor of the Crime Lab testified that the mixture of DNA was “[one] trillion times more likely if it originated from [P.N.] and [Perry] than if it had originated from [P.N.] and an unknown, unrelated individual.” Tr. Vol. 3 at 239. She also explained that the lab conducts separate DNA testing for sperm and non-sperm (epithelial) cells. Perry's DNA found on P.N.’s underwear were epithelial cells. See id. at 239, 250.

3.   While “a defendant is generally chargeable with a delay effected by his own motion for a continuance[,]” he is not attributed a delay “when the continuance is caused by the State's delay in providing discovery.” Wellman v. State, 210 N.E.3d 811, 814-15 (Ind. Ct. App. 2023) (discussing delayed state laboratory test results). The parties dispute whether this “discovery exception” applies to a joint continuance that pushed the trial date from January 8, 2023 to March 11, 2023. Id. However, because of the delay early in the proceedings properly attributable to Perry, we find it unnecessary to wade into the discovery exception.

4.   Perry also claims violations of his right to a speedy trial under the Sixth Amendment to the United States Constitution and Article 1, Section 12 of the Indiana Constitution. Our review of claimed constitutional violations of speedy trial rights is “separate and distinct” from our review of Rule 4(C) challenges. S.L. v. State, 16 N.E.3d 953, 958 (Ind. 2014) (quoting Austin v. State, 997 N.E.2d 1027, 1037 n.7 (Ind. 2013)). Because Perry premised his motion for discharge on Rule 4(C) and did not mention the applicable provisions of either constitution, he waived this issue unless he demonstrates fundamental error. See Curtis, 948 N.E.2d at 1147-48. Yet Perry failed to raise fundamental error in his principal brief and has waived the issue altogether. Id. at 1148. Waiver notwithstanding, when evaluating whether a defendant's speedy trial right has been infringed under the state and federal constitutions, we assess the State's and the defendant's conduct and consider: “(1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the speedy trial right, and (4) any resulting prejudice.” Watson v. State, 155 N.E.3d 608, 614 (Ind. 2020) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).The delay Perry experienced was slightly longer than the “presumptively prejudicial” interval, which includes delays “approaching one year.” Id. at 616-17 (quoting Doggett v. United States, 505 U.S. 647, 652 (1992)). However, the individual delays attributable to the State were for “justifiable” or “neutral” discovery-related reasons, Perry did not assert a constitutional violation of his speedy trial right before the trial court, he was not subject to pretrial incarceration, and his defense that no sexual contact occurred was not impaired by the delay. Id. at 617-20. Under this analysis, Perry was not denied his constitutional right to a speedy trial under either constitution, and no error, let alone fundamental error, occurred.

5.   “[T]he probable cause affidavit is not the manner by which a defendant is charged with a crime, but rather serves to justify the pre-trial detention of a defendant[.]” State v. King, 502 N.E.2d 1366, 1369 (Ind. Ct. App. 1987).

6.   Perry refers to the other sexual conduct as “alleged[,]” but he never argues the State failed to prove other sexual conduct occurred. Appellant's Br. at 42. Nevertheless, our standard of review demands that we do not reweigh the evidence or reassess witness credibility, and the jury believed O'Neil’s testimony that she saw Perry on top of P.N. in the grass outside her house “stroking his penis in and out of her mouth.” Tr. Vol. 3 at 43.

7.   Although there was no toxicology report to indicate the presence of any date rape drugs in P.N.’s system, the trial court permitted the State to “talk about date ra[p]e drugs in general” and the nurse testified that date rape drugs can cause “loss of motor movement, slurred speech, a sedative like effect[,] ․ memory loss, a coma induced like state.” Tr. Vol. 3 at 149, 153.

8.   Because we affirm Perry's conviction for rape, and the trial court did not enter judgment of conviction on the criminal confinement verdicts as they were vacated, we need not evaluate the sufficiency of the evidence supporting those verdicts.

DeBoer, Judge.

Judges Bailey and Vaidik concur. Bailey, J., and Vaidik, J., concur.