HOWARD v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] While serving probation on a suspended sentence for unlawful possession of a syringe, Jeffrey Howard was arrested for, charged with, and ultimately convicted of attempted auto theft. He raises three issues in this consolidated appeal, which we restate as:

1) Whether the trial court's decision permitting the State to amend the attempted auto theft charge in the criminal information affected Howard's substantial rights.

2) Whether there was sufficient evidence at trial to disprove Howard's mistake of fact defense to the attempted auto theft charge.

3) Whether the trial court abused its discretion by revoking Howard's probation on the unlawful possession of a syringe conviction after he was convicted of attempted auto theft.

Finding no error, we affirm.

Facts and Procedural History

[2] In November 2024, Howard pled guilty to Level 6 felony unlawful possession of a syringe and was sentenced to eighteen months suspended to probation. Only nine days after beginning his sentence, Howard was arrested after sheriff's deputies found him on a rural property attempting to load a white Chevrolet van onto a trailer. Howard claimed that he had purchased the vehicle, but the executor of the estate that owned the property told the deputies that she had not sold the van or given anyone permission to haul it away. The State charged Howard with Level 6 felony attempted auto theft ¹ and filed a notice of its intention to seek a habitual offender sentence enhancement.² The probation department also filed a notice alleging Howard had violated the terms of his probation by committing attempted auto theft.

[3] At the initial hearing on the attempted auto theft charge, the court set January 14, 2025, as the omnibus date ³ and scheduled a jury trial for that same month. After multiple continuances, the trial was reset for May 5, but the omnibus date was never changed. In late April—three months after the omnibus date and one week before the scheduled trial—the State filed two motions to amend the charging information: one to add the habitual offender sentence enhancement as a separate count and another to add the names of two potential victims the State believed may have had an ownership interest in the van. Howard objected to both motions on two grounds: first, that “Indiana Code [section] 35-34-1-5[ ] requires the State to file a Motion to Amend thirty [ ] days before the trial date” and second, that the proposed amendments would “prejudice [Howard's] substantial rights ․ at th[at] late date[.]” Appellant's Appendix Vol. 2 at 73. After a hearing on the motions to amend, the court granted them over Howard's objections but also granted his request to continue the trial to June 16.

[4] At the jury trial, the State's first witness was a woman who lived next to the property where Howard was arrested. She testified that she had seen a man on the property attempting to load the van onto a trailer. Because the property's former owner had died a few months earlier, she sent a text message to the owner's daughter to see if she had given the man permission to take the vehicle. The woman then went outside, tried to take pictures of the man, and described that he “picked up the pace” of his work when he saw her watching him. Transcript at 44.

[5] The State then called the deceased property owner's daughter, who testified that she had been managing her mother's estate and had not given anyone permission to take the van. She called the police when she was notified that someone was trying to haul the vehicle away. Similarly, the deceased owner's son, to whom the van had most recently been registered, testified that he also had not given anyone permission to take it.

[6] Next, the sheriff's detective dispatched to the property testified that when he arrived on the scene, he found Howard loading the van onto a trailer. The State then offered into evidence several pictures of the scene taken by the detective and another deputy, which depicted, among other things, Howard standing next to a white van partially loaded onto a trailer that was attached to a pickup truck. The State's final witness, a sheriff's deputy who had arranged for the truck and trailer to be towed from the property, testified that he did not find a bill of sale or title for the van when he inventoried the truck. The State then rested its case-in-chief.

[7] Howard testified in his own defense and explained during his direct examination that he had driven by the property the day before his arrest and saw two adults and three children who appeared to be cleaning out a storage unit that was stored on the property. He stopped, spoke with an “older lady” who he could not identify by name, and agreed to buy the van from her. Id. at 116. He returned the next day with a truck and trailer to haul it away. According to Howard, he had difficulty loading the van onto the trailer because it was run down and in poor condition, and he had been at the property for several hours before the sheriff's deputies arrived.

[8] During cross-examination, Howard admitted that he had never received a title to the vehicle but claimed that the woman he purchased it from had given him a bill of sale. Even so, he acknowledged that she was not “the person that owned the van obviously.” Id. at 125. He added that the van had a red sticker on the driver's side of the windshield, which indicated to him that it had been tagged for being abandoned. But when the State's attorney showed him a picture of the van that was taken on the day of his arrest and asked him where the sticker was, he answered, “I don't see it. It's not there anymore.” Id. at 134. At the end of his testimony, a juror asked Howard what happened to the bill of sale, and he claimed that while he wasn't “a hundred percent sure[,]” he thought he had left it on the console of the truck he had driven to the property. Id. at 135.

[9] In rebuttal, the State recalled the detective, who testified that Howard had given inconsistent accounts of his supposed purchase of the van. On the day of his arrest, he told the detective that there had been one adult and two children on the property the day before, but at trial he testified he had seen two adults and three children there. The detective also explained that, on the day of the incident, Howard said he had been there for no more than fifteen minutes before the deputies arrived. This contradicted Howard's testimony at trial that he had been at the property for several hours before his arrest. Additionally, the detective indicated that Howard had not been able to produce a title or bill of sale for the van before his arrest, even though Howard testified that the bill of sale had been in his truck.

[10] After the close of evidence, Howard requested—and the trial court approved—a jury instruction on the mistake of fact defense:

It is an issue whether [Howard] mistakenly committed the acts charged. It is a defense that [Howard] was reasonably mistaken about a matter of fact if the mistake prevented [him] from intentionally or knowingly committing the acts charged. The State has the burden of proving beyond a reasonable doubt that [Howard] was not reasonably mistaken.

Id. at 174-75. In his closing argument, Howard's attorney told the jury that Howard mistakenly but reasonably believed he had a right to take the van because he thought he had purchased it from someone who had the authority to sell it:

Howard said he was talking to someone [ ] the day before regarding the purchase of the van. You saw the conditions of the van, probably not worth much, it would probably be a situation where they would pay him to get it off the property ․ I heard [Howard] say he thought he had permission ․ It seems reasonable to me.

Id. at 168-69. The State then argued that Howard's story “was completely made up.” Id. at 171.

[11] Ultimately, the jury found Howard guilty of attempted auto theft and then of being a habitual offender. The trial court imposed a four-year sentence on the attempted auto theft conviction and revoked Howard's probation on the unlawful possession of a syringe conviction. However, with credit for time served and good time credit, the probation revocation resulted in “no further incarceration.” Appellant's App. Vol. 2 at 179. Howard now appeals.⁴

Discussion and Decision

1. Charging Information Amendment

[12] Howard's first argument on appeal is that “the trial court abused its discretion by allowing an amendment to the [attempted auto theft charge] after the omnibus date and less than [thirty] days before trial.” Appellant's Brief at 9. “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.

[13] Charging information amendments are governed by Indiana Code section 35-34-1-5. Under that statute, a charge may be amended “at any time because of any immaterial defect” regarding the form, not the substance, of the offense charged. Ind. Code § 35-34-1-5(a). In contrast, substantive amendments may only be made:

(1) up to:

(A) thirty [ ] days if the defendant is charged with a felony;

(B) fifteen [ ] days if the defendant is charged with one [ ] or more misdemeanors;

before the omnibus date; or

(2) before the commencement of trial;

if the amendment does not prejudice the substantial rights of the defendant.

I.C. § 35-34-1-5(b). Put differently, while amendments to a felony charge under section 35-34-1-5(b)(1) must be made no later than thirty days before the omnibus date, subsection (b)(2) “permits the State to amend a charging information even in matters of substance at any time before the commencement of trial so long as the amendment does not prejudice the defendant's substantial rights.” Gaby v. State, 949 N.E.2d 870, 874 (Ind. Ct. App. 2011).

[14] Here, both parties agree the challenged amendment—which identified the deceased property owner's estate, daughter, and son as potential owners of the van—was substantive.⁵ The parties also agree that the amendment was not timely under Indiana Code section 35-34-1-5(b)(1) because it was made after the omnibus date. Thus, the narrow issue presented is whether the amendment affected Howard's substantial rights so as to have been unauthorized by section 35-34-1-5(b)(2). “A defendant's substantial rights include a right to sufficient notice and an opportunity to be heard regarding the charge[,]” and the dispositive question when determining whether an amendment affected a defendant's substantial rights is if “the defendant had a reasonable opportunity to prepare for and defend against the charges.” Barnett v. State, 83 N.E.3d 93, 102 (Ind. Ct. App. 2017) (first quoting Brown v. State, 912 N.E.2d 881, 890 (Ind. Ct. App. 2009), trans denied, and then quoting Erkins v. State, 13 N.E.3d 400, 405-06 (Ind. 2014), reh'g denied), trans. denied.

[15] Howard contends the amendment affected his substantial rights because at the time the State filed its motion, he had not “seen any paperwork regarding [the estate] and had not had time to investigate [the deceased property owner's son] regarding any cross-examination issues for trial.” Appellant's Br. at 10. But critically, Howard has not expanded upon this assertion or explained how the amendment deprived him of a reasonable opportunity to prepare his defense in light of the court's decision to continue the trial by a month and a half. See Barnett, 83 N.E.3d at 103 (finding defendant's substantial rights were not affected when the trial court granted his motions to continue the trial and he “was given more than two months to prepare his case”).

[16] Nor has Howard made any argument that the amendment affected his ability to present evidence that he agreed to purchase the van from someone he reasonably believed had a right to sell it. This Court has previously held that to show his substantial rights were affected, a defendant must demonstrate that the amendment prevented him from presenting evidence to support his defense. In Bright v. State, for example, Bright was charged with burglary after breaking into his ex-stepmother's house and taking the keys to a truck that belonged to his deceased father. 205 N.E.3d 1055, 1058 (Ind. Ct. App. 2023). The charging information initially listed the former stepmother as the owner of the truck, but on the day of trial the State moved to amend the charge to list the father's estate as a possible owner. Id. The panel rejected Bright's argument that this amendment affected his substantial rights, reasoning:

Bright's defense strategy consisted of arguing that the truck belonged to [his father], not [his former stepmother], and that the truck passed to [him] upon [his father's] death. The State's amendment adding [the father's] estate as the owner of the truck in no way impaired, and perhaps even helped, Brights's defense. Bright argues that he “was prejudiced by not having persons prepared to come forward and testify as to [his father's] estate.” But the amendment only concerned the owner or person who had authorized possession of the truck. The amendment had no effect on Bright's ability to present evidence that he, in fact, owned or had authorized control over the truck.

Id. at 159-60 (internal record citations omitted).

[17] Like the amendment in Bright, the identities of the van's owners did not implicate Howard's defense, which was that he thought he purchased the van from a woman the day before he was arrested whom he mistakenly but reasonably believed had authority to sell it. In fact, the confusion as to whether the van belonged to the deceased property owner's estate, daughter, or son was likely helpful to Howard's defense, as the fact that multiple individuals potentially had an ownership interest in the van could have given credence to Howard's claim that he had been involved in some mistake or misunderstanding.

[18] For these reasons, Howard has not shown that the challenged amendment affected his substantial rights and consequently failed to show the trial court abused its discretion by permitting the State to amend the charging information.

2. Mistake of Fact

[19] Howard next argues that “[t]he State failed to present sufficient evidence to overcome [his] mistake of fact defense[.]” Appellant's Br. at 11. When a defendant claims there was insufficient evidence to rebut his mistake of fact defense, “we review [that claim] like other challenges to the sufficiency of the evidence.” McGill v. State, 160 N.E.3d 239, 246 (Ind. Ct. App. 2020) (“Whether the defendant made a mistake of fact is a question for the trier of fact[.]”) Our standard of review regarding sufficiency of the evidence is well-settled:

[T]his Court will affirm the decision of the trial court if the probative evidence and reasonable inferences drawn therefrom could allow a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005). On appeal, we do not reweigh the evidence or judge the credibility of the witnesses. Fields v. State, 679 N.E.2d 898, 900 (Ind.1997). We look only to evidence and reasonable inferences supporting the judgment to determine whether the trier of fact could reasonably reach the conclusion. Id. If there is substantial evidence of probative value supporting a conviction, this Court will not set the judgment aside. Id.

Chavers v. State, 991 N.E.2d 148, 151 (Ind. Ct. App. 2013), trans. denied.

[20] We first note that Howard does not contend the State failed to make a prima facie showing that he was guilty of attempted auto theft, i.e., that he knowingly or intentionally took a substantial step toward exerting unauthorized control over a vehicle with the specific intent to deprive its owner of its value or use. See I.C. §§ 35-41-5-1 (attempt), 35-43-4-2(a)(1)(B)(i) (auto theft). “When the State has made a prima facie case of guilt, the burden is on the defendant to establish an evidentiary predicate of his mistaken belief of fact.” Chavers, 991 N.E.2d at 151 (italics in original). To do so, the defendant must demonstrate: “(1) that the mistake [was] honest and reasonable; (2) that the mistake [was] about a matter of fact; and (3) that the mistake negate[d] the culpability required to commit the crime.” Id. (quoting Potter v. State, 684 N.E.2d 1127, 1135 (Ind. 1997)). The State has the ultimate burden to prove beyond a reasonable doubt “that there was no reasonably held mistaken belief of fact[,]” which it can do “by directly rebutting evidence, by affirmatively showing that the defendant made no such mistake, or by simply relying upon evidence from its case-in-chief.” Id. at 152.

[21] According to Howard, the State failed to meet its burden because “[t]he property in question had all the appearances of being abandoned[,] ․ [t]he van itself was not running, in bad shape[,] and had not been registered in [ten] years, ․ [and] Howard offered a reasonable explanation as to what he was doing” by testifying that “he had been sold the vehicle by a third party that he met on the property the day before[.]” Appellant's Br. at 12. But this argument is merely an invitation for us to reweigh the evidence, which we will not do.

[22] As the State correctly notes, “Howard presented nothing more than his own self-serving serving testimony to support his claim that he was reasonably mistaken.” Appellee's Br. at 15. The jury was under no obligation to believe Howard's version of events. See Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004) (“[F]actfinders are not required to believe a witness's testimony[.]”). This is especially so given that the State presented evidence from which the jury could have reasonably inferred that Howard was not telling the truth, which included his inconsistent accounts of the supposed purchase of the van. Viewed in the light most favorable to Howard's conviction, the evidence showed that he attempted to haul the van off the property even though the deceased property owner's children had not given him permission to do so. He then tried to convince the deputies who came to arrest him that he had purchased it from someone the day before but could not produce a title or bill of sale or even provide the name of the woman who supposedly sold him the vehicle.

[23] While Howard's testimony presented an issue of fact as to whether he had been reasonably mistaken, “[w]e leave the weighing of all the evidence and resolution of conflicts in it to the jury.” Young v. State, 198 N.E.3d 1172, 1182 (Ind. 2022). Given the whole of the evidence presented at trial, the jury could have reasonably rejected Howard's testimony and found that he had no reasonable basis to believe he had purchased the van. Accordingly, we affirm Howard's attempted auto theft conviction. See id. (affirming a conviction when “a reasonable inference that [the defendant] was guilty as charged [could] be drawn from the whole picture of the evidence”).

3. Probation Revocation

[24] Finally, Howard asks us to reverse the revocation of his probation on his unlawful possession of syringe conviction. But he has presented no cogent argument explaining how the court abused its discretion. Instead, he summarily contends that the probation revocation should be reversed because it followed Howard's attempted auto theft conviction, which should itself be reversed. We note that even if we had reversed Howard's conviction for attempted auto theft, that alone would not necessarily require reversal of his probation revocation because “[w]hen the alleged probation violation is the commission of a new crime, conviction of the new crime is not required.” Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015). In any event, because we affirm Howard's attempted auto theft conviction, we also affirm the court's decision to revoke his probation. See id. (the commission of a new crime violates the terms of probation and “[o]ne violation of a condition of probation is enough to support a probation revocation”).

Conclusion

[25] For these reasons, we affirm Howard's conviction for attempted auto theft and the trial court's decision to revoke his probation on the unlawful possession of a syringe conviction.

[26] Affirmed.

FOOTNOTES

1.   Ind. Code §§ 35-41-5-1(a) (attempt), 35-43-4-2(a)(1)(B)(i) (auto theft).

2.   I.C. § 35-50-2-8(d).

3.   The omnibus date is the “point in time from which various deadlines” in criminal proceedings are established. I.C. § 35-36-8-1(b).

4.   Howard separately appealed his attempted auto theft conviction and the revocation of his probation. On his motion, this Court consolidated those appeals in an order issued August 15, 2025.

5.   Roughly a month before trial, in early May 2025, the State again moved to amend the habitual offender charging information to change the date Howard allegedly committed one of his prior criminal offenses. The trial court granted that motion without any objection from Howard, and Howard did not challenge that amendment on appeal. Nor has Howard challenged the amendment requested by the State in April to add the habitual offender sentence enhancement as a second count to the charging information. Accordingly, we focus our analysis on the amendment to the attempted auto theft charge that added the names of two potential victims the State believed may have had an ownership interest in the van.

DeBoer, Judge.

Brown, J., and Altice, J., concur.