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

MEMORANDUM DECISION

Case Summary

[1] John L. Miller, III, brings this interlocutory appeal of the trial court's order denying his motion to dismiss the charging information that alleged he committed the crime of conflict of interest by a public servant, a Level 6 felony.¹ The only issue he raises is whether the denial of his motion to dismiss was an abuse of the trial court's discretion. Concluding that it was not, we affirm.

Facts and Procedural History

[2] On October 1, 2020, the Board of Commissioners of Clark County (“the Commissioners”) entered into a written contract (“the contract”) with New Chapel EMS (“New Chapel”) for New Chapel to provide emergency medical and ambulance services in exchange for an annual subsidy of $700,000, payable in twelve equal monthly installments. The “initial term” of the contract was for a one-year period “beginning on October 1, 2020,” but the term could “be extended or modified as mutually agreed-to by the Parties.”² Appealed Order at 3. The contract further provided that “the annual subsidy as set forth above is subject to and contingent upon approval of sufficient appropriations by the Clark County Council acting as the fiscal body for Clark County, Indiana.” Id. On October 16, 2020, the Clark County Council (“the Council”) approved appropriations for the contract funds.

[3] Miller was elected to the Council and “took office” on January 1, 2021. Id. at 1. On August 21, 2024, the State filed a charging information against Miller which alleged, in full, as follows:

Count I:

I, the undersigned affiant, do hereby affirm under the penalties of perjury as specified by I.C. 35-44.1-2-1 that between January 1, 2021 to January 12, 2024 in Clark County, State of Indiana, John L. Miller, III, being a public servant, to-wit: Clark County Council, did knowingly or intentionally have a pecuniary interest in and/or derive a profit from a contract between Clark County and New Chapel EMS, to-wit: Defendant voted in favor of funding-contract for New Chapel EMS, Chief Executive Officer Jamey Noel, and Defendant derived benefits of value from Noel/New Chapel EMS; said contract being connected with an action by the governmental entity served by the defendant, contrary to the form of the statutes in such cases made and provided by I.C. 35-44.1-1-4(b) and against the peace and dignity of the State of Indiana.

App. v. 2 at 16 (emphasis original). The charging information was signed by the Special Prosecuting Attorney.

[4] On the same date, the State filed an eighteen-page Affidavit of Probable Cause (“PCA”) in which affiant Lieutenant Jeffrey C. Hearon of the Indiana State Police recounted his investigation of criminal allegations against Jamey Noel, who, in addition to being the CEO of New Chapel at the time of the contract, was also the Clark County Sheriff from January 1, 2015, through December 31, 2022. The PCA asserts that, in the course of investigating Noel, Hearon discovered that Noel had used New Chapel funds for his personal use to make payments to and/or for Miller, for Miller's personal use, including: Miller's meals at St. Elmo's Steakhouse in Indianapolis in June 2022; tickets for a George Strait concert in Nashville, Tennessee for Miller in October 2022; a December 30, 2022, payment for a deposit for Miller's lodging on a trip to Cuba; Miller's meals at restaurants in Naples, Florida in January 2023; a February 9, 2023, payment for Miller's airfare for a trip to Cuba; and a July 29, 2023, payment for a hotel in Nashville, Tennessee.

[5] The PCA stated that Miller “was not a Clark County Councilman until January 1, 2021, and therefore did not vote on the initial appropriation request” for the New Chapel contract. Id. at 33. However, it noted that Miller “did vote for later funding appropriation requests.” Id. Specifically, it alleged that, while on the Council, Miller voted to approve the following appropriations to New Chapel: February 1, 2021, “additional appropriations” for “Contract Services” for $525,000; a March 1, 2021, “additional appropriation” for “Contract Services” for $60,000; April 1, 2021, “additional appropriations” for “ambulance services” for $59,000; May 2021 “additional appropriations” for “ambulance services to pay off total for remainder of current year” for $350,000; $262,000 in April 2022 “for EMS Services”; and $525,000 in August 2022 “for a contract with EMS between July – December 2022.” App. v. 2 at 34. The PCA further noted that it appeared Miller did not complete a “conflict-of-interest document” that was provided to all Council members. Id.

[6] On September 12, 2024, Miller filed a Motion to Dismiss the charging information as statutorily insufficient and in violation of the federal and state constitutions. The trial court denied the motion to dismiss in an order dated November 7. On December 5, Miller filed a Motion to Correct Error. On February 20, 2025, the trial court issued findings of fact and conclusions of law and an order denying the motion to correct error (“Appealed Order”). Among its findings, the trial court concluded that “[t]he PCA does not support the accusation that Miller voted for the October 1st, 2020, agreement and, in fact, indicates that Miller did not vote for the contract as he was neither a Commissioner or Councilmember at that time.” Appealed Order at 2. However, the court concluded that the charging information and PCA were sufficient in that they alleged Miller knowingly and intentionally “obtain[ed] a profit ․ from the contract.” Id. at 13. The court further noted

this matter is the type of issue that a jury should decide to determine if their elected official, John Miller, III, has benefited financially and inappropriately from his close relationship to Jamey Noel, by his failure to disclose gifts from Jamey Noel and funded by New Chapel and the funding the Defendant authorized as a county counsel [sic] member.

Id.

[7] Miller obtained certification from the trial court for an interlocutory appeal of the orders on his motion to dismiss and motion to correct error, and this Court accepted jurisdiction of the appeal. This appeal ensued.

Discussion and Decision

[8] Miller challenges the trial court's denial of his motion to dismiss the charging information and his subsequent motion to correct error. We review orders on both motions to correct error and motions to dismiss for an abuse of discretion. See Lightly v. Lightly, 879 N.E.2d 637, 640 (Ind. Ct. App. 2008). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it, or when the court misinterprets the law. See, e.g., Hahn v. State, 67 N.E.3d 1071, 1082 (Ind. Ct. App. 2016), trans. denied.

[9] Indiana Code Section 35-34-1-8 governs motions to dismiss a charging information by a defendant and provides in part that “[t]he defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion.” Because the defendant has the burden of proof, “the denial of his motion is a negative ruling, reversible only if the evidence is without conflict and leads inescapably to the conclusion that he is entitled to dismissal.” Hahn, 67 N.E.3d at 1082 (citation modified).

[10] When a defendant files a motion to dismiss a charging information, we examine and take as true the facts alleged in both the information and the probable cause affidavit. See, e.g. Tanoos v. State, 137 N.E.3d 1008, 1015 (Ind. Ct. App. 2019), trans. denied. “Questions of fact to be decided at trial or facts constituting a defense are not properly raised by a motion to dismiss.” P.T.D. v. State, 78 N.E.3d 25, 27 (Ind. Ct. App. 2017) (citation modified), trans. denied; see also Schutz v. State, 413 N.E.2d 913, 916 (Ind. 1981) (citation modified) (“We have long held that an indictment or information may not be questioned on the ground of insufficient evidence. The sufficiency of the evidence is decided at trial.”). Rather, “[f]acts permitted to be raised in a motion to dismiss a charging information generally concern only pre-trial procedural matters, such as jurisdictional issues, double jeopardy, collateral estoppel, and the like.” Gutenstein v. State, 59 N.E.3d 984, 994 (Ind. Ct. App. 2016), trans denied.

[11] The purpose of the charging information is to “provide a defendant with notice of the crime of which he is charged so that he is able to prepare a defense.” State v. Katz, 179 N.E.3d 431, 441 (Ind. 2022) (citation modified). Indiana Code Section 35-34-1-2 provides the requirements for the content and form of a charging information.

To be sufficient, an information “generally need[ ] only contain a statement of the essential facts constituting the offense charged, as well as the statutory citation, the time and place of the commission of the offense, [and] the identity of the victim.” Pavlovich v. State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014) (internal quotation marks omitted), trans. denied. A court may dismiss a charging information if the “facts stated do not constitute an offense,” but this only occurs when the information is facially deficient in stating an alleged crime. I.C. § 35-34-1-4(a)(5); Gutenstein, 59 N.E.3d at 994.

Katz, 179 N.E.3d at 441. “Errors in the information are fatal only if they mislead the defendant or fail to give him notice of the charge filed against him.” Elvers v. State, 22 N.E.3d 824, 832 (Ind. Ct. App. 2014). Furthermore, “[u]nnecessary descriptive material or allegations that are not essential to a charge and that may be entirely omitted without affecting the sufficiency of the charge are mere surplusage and may be disregarded” unless it is shown that the defendant was misled or prejudiced thereby. Laney v. State, 868 N.E.2d 561, 567 (Ind. Ct. App. 2007) (citing Mitchem v. State, 685 N.E.2d 671, 676 (Ind. 1997)), trans. denied.

[12] To assess the facial adequacy of the charging information, “we compare the factual allegations to the substance of the criminal statute cited in the information.” Hernandez v. State, 220 N.E.3d 68, 71 (Ind. Ct. App. 2023). “The charging information is facially deficient when the factual allegations do not map onto a criminal statute.” Id. However, “[t]he State is not required to include detailed factual allegations in a charging information.” Johnson v. State, 194 N.E.3d 98, 106 (Ind. Ct. App. 2022), trans. denied. Nor do “minor variances from the wording of a statute” make an information defective “so long as the words, construed according to their common usage, do not mislead the accused or do not omit an essential element of the crime.” Myers v. State, 510 N.E.2d 1360, 1367 (Ind. 1987).

[13] Here, the charging information tracks the language of the criminal statute under which Miller is charged. Indiana Code Section 35-44.1-1-4(b) provides that it is a Level 6 felony conflict of interest for a public servant to “knowingly or intentionally” have “a pecuniary interest in; or derive[ ] a profit from; a contract or purchase connected with an action by the governmental entity served by the public servant.” The charging information against Miller alleges that, from the dates of “January 1, 2021 to January 12, 2024[,]” Miller was a “public servant” on the “Clark County Council” who “knowingly or intentionally” had “a pecuniary interest in and/or derive[d] a profit from a contract between Clark County and New Chapel EMS” which he “voted in favor of funding.” App. v. 2 at 16. Taking the facts alleged in the charge as true, as we must, see, e.g., Tanoos, 137 N.E.3d at 1015, the charge is sufficient; it cites and tracks the language of the relevant criminal statute, it states the essential dates and facts, and it relates those facts to the essential elements of the crime. Cf., e.g., Gutenstein, 59 N.E.3d at 997 (finding a charging information was not “facially deficient” where it “track[ed] the language of the relevant statute and allege[d] the commission of every necessary element of the crime”).

[14] Nor does the language of the charging information mislead Miller. This is especially true when we consider the additional factual allegations contained in the PCA, which we also must take as true for purposes of the motion to dismiss. See, e.g., Tanoos, 137 N.E.3d at 1015. The PCA states that while Miller was a Councilmember ³ he approved County appropriations to New Chapel for services provided under the contract and accepted gifts purchased with money from those appropriations. Whether or not the State can ultimately prove at trial that those facts are true is not relevant to the determination of whether the charging information itself is sufficient. Specifically, Miller's arguments that there is no evidence that the gifts he received were a “profit” or that the money for the gifts came “from” a contract appropriation on which he voted as a Councilmember are questions of fact to be proved or not at trial, as determined by the trier of fact, and are therefore inappropriate to raise in a motion to dismiss. See, e.g., P.T.D., 78 N.E.3d at 27. The purpose of the charging information is not to prove the State's case but to give Miller notice of what crime he is charged with—and that is what it does.

Conclusion

[15] The trial court did not abuse its discretion when it denied Miller's motion to dismiss the charging information and his related motion to correct error.

[16] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-44.1-1-4.

2.   The Parties to the contract were “the Board of Commissioners of Clark County, Indiana” and “New Chapel EMS.” Appealed Order at 2.

3.   Miller points to the undisputed fact that he was not a Councilmember in October of 2020 and therefore did not vote to approve or fund the initial October 1, 2020, contract between the County and New Chapel. However, the charging information does not state that he approved that initial contract, only that he “voted in favor of funding” a contract with New Chapel. App. v. 2 at 16. And the PCA specifically alleges Miller voted as a Councilmember to approve funding for contract services with New Chapel.

Bailey, Judge.

Judges Brown and Weissmann concur. Brown, J., and Weissmann, J., concur.