Opinion
22A-CR-1842
02-13-2023
Michael Andrei Galateanu, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney for Appellant R. Brian Woodward Appellate Public Defender Office of the Lake County Public Defender Crown Point, Indiana. Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as binding precedent, but it may be cited for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Lake Superior Court, The Honorable Michael S. Bergerson, Senior Judge, Trial Court Cause No. 45G02-2102-CM-586
Attorney for Appellant R. Brian Woodward Appellate Public Defender Office of the Lake County Public Defender Crown Point, Indiana.
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana.
MEMORANDUM DECISION
BAILEY, JUDGE.
Case Summary
[¶1] Michael Andrei Galateanu appeals his conviction, following a jury trial, of invasion of privacy, as a Class A misdemeanor. We affirm.
Issues
[¶2] Galateanu raises two issues, which we restate as follows:
I. Whether the trial court erroneously permitted the State to amend the charging information on the morning of trial.
II. Whether the trial court abused its discretion when it denied Galateanu's motion to admit into evidence a motion to dismiss a protective order in a civil case.
Facts and Procedural History
[¶3] On December 15, 2020, the Hammond Police Department received a 9-1-1 call, and officers were dispatched to the home of N.M. When the officers arrived, they heard N.M. screaming as she "thr[ew] bags of clothing in the front of her residence." Tr. at 57. N.M. told the officers that Galateanu was in the basement of the house and did not belong there. The officers contacted dispatch and learned that there was a no contact order in effect protecting N.M. from Galateanu. The officers entered the home and went into the basement. In the basement, the officers saw and identified Galateanu and then arrested him. As the officers walked Galateanu back to their police car, Galateanu "acknowledged that he had a no contact order [against him with respect to] this residence" in which N.M. lived. Id. at 59.
[¶4] A no contact order had been entered by the Lake Superior Court on December 19, 2019, in a criminal case under cause number 45G01-1911-F6-002307. The respondent named in the no contact order was Galateanu, and the petitioner was N.M. The no contact order provided that Galateanu was to have no contact with N.M. either "in person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly, except through an attorney of record, while released from custody pending trial . . ." State's Ex. 2A, Ex. at 5. The Order further prohibited Galateanu from visiting any place where he knew N.M. to be located. The Order was to remain in effect until the case had been tried or until Galateanu had been sentenced if found guilty. By his signature on the document, Galateanu acknowledged having received a copy of the no contact order.
[¶5] On February 2, 2021, the State charged Galateanu with Class A misdemeanor invasion of privacy on the basis that Galateanu "did knowingly or intentionally violate a Protective Order issued to prevent domestic or family violence or harassment contrary to I.C. 35-46-1-15.1(1)." App. at 15. On June 30, 2022, Galateanu moved for "a fast and speedy trial," and the court set a jury trial for July 5. Id. at 47. On the morning of July 5, before trial began, the State moved to amend the charging information to allege that Galateanu committed Class A misdemeanor invasion of privacy by knowingly violating a
no contact order issued as a condition of pretrial release, including release on bail or personal recognizance, or pretrial diversion, and including a no contact order issued under IC 35-33-8-3.6 by the Superior Court Criminal Division of Lake County under cause number 45G01-1911-F6-002307, to protect [N.M.,] contrary to I.C. 35-46-1-15.1(a)(5).Id. at 50.
[¶6] Galateanu objected to the amended information, and the State informed the trial court that the only difference between the initial information and the proposed amendment is that the former "erroneously identified the underlying issue as a protective order rather than a no contact order. So [the initial information] should have read subsection 5 [of I.C. § 35-46-1-15.1(a)] rather than subsection 1." Tr. at 3-4. The State noted that "there was a Scri[ve]ner's error in the [initial] charging information. That [sic] it was charged as a protective order, not a no contact order." Id. at 8. The State further noted that Galateanu had signed the no contact order, "so he would have received a copy of it." Id. at 9.
[¶7] At that point in the proceedings, the following exchange occurred:
THE COURT: Do you need additional time to respond to the amendment if I grant the request to [allow] the State [to] amend the charge?
[DEFENSE COUNSEL]: [The Defendant] doesn't want additional time, Judge.
THE COURT: Ready to proceed to trial today?
THE DEFENDANT: Yes, your Honor.
THE COURT: Okay. [The] Court is going to grant the request of the State to amend the charging information as filed today.Id. at 11.
[¶8] During trial, Galateanu offered into evidence his Exhibit A, a document purporting to be a "request to dismiss a protective order" in a proceeding in cause number 45D05-1911-PO-1549, a civil case. Supp. Ex. at 2; Tr. at 69. The State objected to admission of the exhibit as irrelevant, and the trial court sustained the objection. Galateanu made an offer of proof regarding the excluded Exhibit A. The jury found Galateanu guilty as charged, and the trial court sentenced him to one year in the Department of Correction. This appeal ensued.
Discussion and Decision
Amendment of Charging Information
[¶9] Galateanu alleges the trial court erred when it allowed the State to amend the charging information on the morning of trial but before the trial began. "We review a trial court's decision on whether to permit an amendment to a charging information for an abuse of discretion." State v. McFarland, 134 N.E.3d 1027, 1030 (Ind.Ct.App. 2019), trans. denied.
[¶10] Indiana Code Section 35-34-1-5 governs amendments to a charging information. "In general, Indiana Code [S]ection 35-34-1-5(b) 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). The substantial rights of a defendant include a right to sufficient notice and an opportunity to be heard regarding the charge. Id. "Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges." Id. (quotation and citation omitted).
"The requirement of an 'opportunity to be heard' is satisfied when the defendant is given adequate time to object and request a hearing after proper notice." [Davis v. State, 714 N.E.2d 717, 721 (Ind.Ct.App. 1999)] (quoting Davis v. State, 580 N.E.2d 326, 328 (Ind.Ct.App. 1991)). To preserve this issue for appeal, the defendant must object to the request to amend, and if the objection is overruled, must request a continuance to prepare a new defense strategy. Haak v. State, 695 N.E.2d 944, 953 n.5 (Ind. 1998).Park v. State, 752 N.E.2d 63, 65 (Ind.Ct.App. 2001); see also Wilson v. State, 931 N.E.2d 914, 918 (Ind.Ct.App. 2010) ("[A] defendant's failure to request a continuance after a trial court allows a pre-trial substantive amendment to the charging information over defendant's objection results in waiver."), trans. denied.
Galateanu incorrectly asserts that our courts have only required the request for a continuance in cases involving habitual offender enhancements. That is clearly not so. See, e.g., Gaby, 949 N.E.2d 870.
[¶11] Here, Galateanu objected to the amendment of the information, and the trial court asked Galateanu if he wanted a continuance so that he would have "additional time to investigate or prepare a defense for the amended information" if the motion to amend the information was granted. Tr. at 11. Galateanu specifically stated that he did not want a continuance. He has therefore waived the issue on appeal. See, e.g., Wilson, 931 N.E.2d at 918.
Galateanu argues that requiring him to request a continuance to preserve his appeal of the amended information would interfere with his right to a speedy trial. However, we specifically rejected a similar claim in Wilson v. State:
[T]he fact that a defendant has requested a speedy trial does not negate waiver…. A request for a continuance would not have forced Wilson to relinquish his right to a speedy trial as he could have refiled his request for a speedy trial contemporaneously with his motion for a continuance. See Miller v. State, 563 N.E.2d 578, 582 (Ind. 1990) (providing that requesting a continuance does not force a defendant to relinquish his speedy trial right). Thus, Wilson's previous speedy trial request did not excuse his failure to seek a continuance in the instant matter.931 N.E.2d at 918, n.4. As in Wilson, Galateanu's request for a speedy trial did not excuse his failure to seek a continuance. Moreover, we note that-unlike in Wilson-Galateanu still had sixty-five days left of the seventy-day deadline for providing a trial after a motion for a speedy trial. See Ind. Crim. R. 4(B).
Denial of Motion to Admit Evidence
[¶12] Galateanu challenges the trial court ruling denying his request to admit into evidence his proposed Exhibit A. The admission or exclusion of evidence is left to the discretion of the trial court, and we will reverse that decision only for an abuse of discretion. E.g., Collins v. State, 966 N.E.2d 96, 104 (Ind.Ct.App. 2012). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court or it misinterprets the law. Id. We consider any conflicting evidence most favorable to the trial court's ruling and any uncontested evidence favorable to the defendant. Id.
[¶13] The trial court denied Galateanu's motion to admit his proposed Exhibit A, which was a document purporting to be a "Request for Dismissal" of a protective order action pending in a civil court. Supp. Ex. at 2. The court denied the motion on the ground that the document was not relevant to the no contact order issued in the criminal case, which was the order Galateanu was accused of violating. Galateanu maintains that the excluded document was relevant to his mens rea in this case. To prove Galateanu committed invasion of privacy as a Class A misdemeanor, the State was required to show that he "knowingly or intentionally violate[d]… a no contact order issued as a condition of pretrial release." I.C. § 35-46-1-15.1(a)(5).
[¶14] The trial court correctly determined that Galateanu's proposed Exhibit A had no relevance to his intent to violate the no contact order pending in a criminal case. "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Ind. Evidence Rule 401. "Irrelevant evidence is not admissible." Evid. R. 402. The motion to dismiss filed in the civil protective order case is of no consequence to the existence of the no contact order in Galateanu's criminal case, which is a completely different and separate case.
[¶15] However, Galateanu asserts that his proposed Exhibit A was relevant to show that he was "reasonably mistaken" about whether the no contact order in the criminal case still existed at the time he was in N.M.'s home. Appellant's Br. at 10. It is a defense to a crime that "the person who engaged in the prohibited conduct was reasonably mistaken about a matter of fact, if the mistake negates the culpability required for commission of the offense." I.C. § 35-41-3-7. In order for mistake of fact to be a valid defense, three elements must be satisfied: (1) the mistake must be honest and reasonable; (2) the mistake must be about a matter of fact; and (3) the mistake must negate the culpability required to commit the crime. Carson v. State, 963 N.E.2d 670, 683-84 (Ind.Ct.App. 2012), trans. denied. After the State has made a prima facie case of guilt, the defendant bears the burden of establishing an evidentiary predicate of his claimed mistaken belief of fact. J.M.J. v. State, 38 N.E.3d 686, 692 (Ind.Ct.App. 2015).
[¶16] Here, Galateanu does not dispute that the State made a prima facie case that he had contact with N.M. on December 15, 2020, and that the no contact order in the criminal case was still in effect at that time. Rather, Galateanu contends that he did not know there was an existing no contact order issued by a criminal court as to him and N.M. because his proposed Exhibit A stated that N.M. had filed a motion to dismiss a protective order that had been pending in a civil court. That is, Galateanu asserts that he lacked the intent to commit the crime with which he is charged, and that his proposed Exhibit A is relevant to show the lack of intent. However, it was not reasonable for Galateanu to believe that a motion to dismiss a civil protective order meant that a criminal no contact order actually had been dismissed by order of a court. A motion clearly is not the same as an order, and a civil action is clearly not the same as a criminal action. See Chavers v. State, 991 N.E.2d 148, 152-53 (Ind.Ct.App. 2013) (holding defendant's mistake in believing his girlfriend's contention that a no contact order had been vacated was not reasonable given the conflicting evidence and lack of documentation to support his girlfriend's assertion), trans. denied. Thus, the trial court did not abuse its discretion when it refused to admit Galateanu's proposed Exhibit A into evidence because it was not relevant.
[¶17] Furthermore, even if the trial court had erred by excluding Galateanu's proposed Exhibit A, any such error would have been harmless. Error is harmless when it results in no prejudice to the substantial rights of a party. Hall v. State, 177 N.E.3d 1183, 1197 (Ind. 2021). In determining whether an error in the introduction of evidence affected an appellant's substantial rights, we assess the probable impact of the evidence on the jury. Id. An error in the admission or exclusion of evidence may be found harmless when there is cumulative and corroborating evidence on the same point. Id. Here, there was cumulative and corroborating evidence of Galateanu's knowledge of the existence of the no contact order-i.e., his signature acknowledging receipt of the no contact order and his own statement to police officers at the time of his arrest. Given such evidence, there is no reason to believe the exclusion of Galateanu's proffered exhibit had any effect on his substantial rights. See Hall, 177 N.E.3d at 1197.
Conclusion
[¶18] Because Galateanu failed to request a continuance when the trial court allowed a pre-trial amendment to the charging information over his objection, he has waived that issue. And the trial court did not abuse its discretion when it excluded Galateanu's proposed Exhibit A as irrelevant.
[¶19] Affirmed.
Brown, J., and Weissmann, J., concur.