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FOR PUBLICATION

ATTORNEYS FOR APPELLANT: BENJAMEN W. MURPHY Murphy Yoder Law Firm, P.C. Merrillville, Indiana WALTER J. ALVAREZ Crown Point, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CHRISTINA ROUSH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 75A03-0701-CR-44

APPEAL FROM THE STARKE CIRCUIT COURT The Honorable Kim Hall, Judge Cause No. 75C01-0504-FD-73

November 9, 2007

OPINION - FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Christina Roush appeals her convictions and sentence for Obstruction of Justice, a Class D felony, following a jury trial. Roush raises four issues for our review, which we restate as follows: 1. Whether the trial court abused its discretion in permitting the State to amend the charging information after the omnibus date. Whether the court erred in admitting into evidence out-of-court statements from Roush's alleged co-conspirators. Whether the State presented sufficient evidence to support her conviction. Whether the court abused its discretion in ordering Roush to serve the presumptive sentence for her conviction. Whether the presumptive sentence is inappropriate in light of the nature of Roush's offense and her character.

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5.

We affirm. FACTS AND PROCEDURAL HISTORY In Rowe v. State, 867 N.E.2d 262, 265 (Ind. Ct. App. 2007), we set out the underlying facts relevant to this appeal as follows: On January 23, 2005, [Bobbie] Rowe drove an ATV towing a sled in which three children were riding: Rowe's daughter, Charity Minix, and two minor girls, C.C. and J.C. Rowe initially drove the children around her backyard, but then she drove out onto an adjacent roadway to travel to a friend's house. Rowe knew it was illegal to operate an ATV on the roadway. It was dark outside, so Rowe illuminated the headlight on the ATV. When Rowe saw an approaching vehicle, she slowed the ATV and came to a stop near the edge of the roadway. That action caused the sled to move into the path of the approaching vehicle, which was being operated by Lester Hensley. Hensley did not see the sled in time to avoid striking it.
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As a result of the collision, C.C. and J.C. died instantly, and Charity was treated for serious bodily injuries. Police officers and emergency medical personnel arrived at the scene, and Starke County Deputy Sheriff Brett Hansen told Rowe that she could ride in the ambulance to the hospital with her daughter. Deputy Hansen also told Rowe that she would have to submit to blood and urine tests at the hospital, and Rowe agreed. But Rowe did not ride in the ambulance to the hospital. Instead, she drove the ATV from the accident scene to her house and telephoned her sister, Patricia Minix, to ask her to give her a urine sample. Rowe did not want to give her own urine sample because she had smoked marijuana within a "couple" of days of the accident. Minix agreed, and Rowe got Minix's urine sample before driving herself to the hospital. Rowe also telephoned her friend Christina Roush, a laboratory technician at Starke Memorial Hospital who was not working that evening. Roush met Rowe at the hospital and arranged to take Rowe's urine and blood samples. Rowe had returned Minix's urine sample to her, and Minix had poured that sample down a bathroom sink. Ultimately, however, Roush collected a new urine sample from Minix to submit as Rowe's urine, but Rowe submitted her own blood for the blood test. The results of the blood test showed the presence of carboxy-THC, a metabolite of marijuana, in Rowe's blood. The significance of that result is that Rowe had ingested or was exposed to marijuana at some time during the previous week. (Citations to the record omitted.) A jury then convicted Rowe on multiple counts, including obstruction of justice, and this court affirmed her convictions and sentence on appeal. Subsequent lab tests on Rowe's blood and urine samples showed that the urine samples were from Minix. The State thereafter arrested Minix, and she pleaded guilty to obstruction of justice. The State also arrested Roush and, on April 7, 2005, charged her with obstruction of justice, a Class D felony, and Assisting a Criminal, as a Class D felony. Specifically, the State's charging information alleged as follows on the

obstruction of justice charge: "On or about January 23, 2005[,] at Starke Memorial Hospital in Starke County, State of Indiana, Christina Roush did alter a record, to-wit:
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identification label on a urine sample with the intent to prevent said item from being used as evidence in an official investigation." Appellant's App. at 15. The trial court set the omnibus date for May 24, 2005. In April of 2006, Roush was tried before a jury. But on April 12, the court declared a mistrial after the jury was unable to reach a verdict. Thereafter, on May 23, 2006, almost one year after the omnibus date, the State moved to amend the charging information. The State's amended information on the obstruction of justice charge read as follows: On or about January 23, 2005[,] at Starke Memorial Hospital in Starke County, State of Indiana, Christina Roush did make a false record, to-wit: label a urine sample and chain of custody forms with the name of Bobbie Rowe knowing that said urine sample did not come from Bobbie Rowe and that the Defendant did so with the intent to prevent Bobbie Rowe's urine sample from being used as evidence in an official investigation. Id. at 39. The trial court held a hearing on the State's motion, at which time Roush objected to the State's motion and requested a continuance. The court overruled Roush's

objection and permitted the amendments, stating in relevant part as follows: (10) At the first trial, the Defendant testified that she did place that identification label on the container that contained a urine sample, but that she did not know that the urine in the container did not come from the individual whose name appeared on the identification label. In other words, at the first trial, the parties' evidence was the same regarding the physical actions of the Defendant with respect to the identification label placed on the container. However, the parties presented conflicting evidence of the Defendant's intent. The proposed amendment [to the obstruction of justice charge] addresses the nature of Defendant's physical actions, specifically a request to change the allegation from "altering a record," to "making
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(11)

(12)

a false record." The proposed change does not address the intent, or knowledge, of the Defendant. (13) At the hearing on the motion to amend, the Defendant made no representation that she anticipated the evidence in the second trial to be any different that [sic] the evidence in the first trial on the issue of the Defendant's physical conduct regarding the identification label that the Defendant applied to the container of urine.

Id. at 44. At the retrial, Roush testified that she and Rowe were alone in the laboratory in which the blood and urine samples were collected. Minix and two other witnesses, Sherry Jachim and Connie Miller, both Rowe's cousins, testified that Minix accompanied Roush and Rowe into that laboratory. Minix further testified that Roush collected

Minix's urine sample in place of Rowe's. Roush conceded that she affixed a label to the collected urine and that she filled out, signed, and dated the relevant forms associated with that urine. The jury found Roush guilty as charged. On January 2, 2007, the court declined to enter a judgment of conviction against Roush for assisting a criminal, as a Class D felony, 1 but the court entered judgment on her conviction for obstruction of justice, a Class D felony. The court then sentenced Roush to eighteen months in the Department of Correction. This appeal ensued. DISCUSSION AND DECISION Issue One: Amendment to the Charging Information Roush first argues that the trial court erred in permitting the State to amend the charging information after the omnibus date on the obstruction of justice charge.
Because the trial court did not enter a judgment on Roush's conviction for assisting a criminal, we need not address whether any of the issues raised on appeal apply to that charge.
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Amendments to a charging information are governed by Indiana Code Section 35-34-15, 2 which provides in relevant part: (a) An indictment or information which charges the commission of an offense may not be dismissed but may be amended on motion by the prosecuting attorney at any time because of any immaterial defect, including: *** (9) any other defect which does not prejudice the substantial rights of the defendant. (b) The indictment or information may be amended in matters of substance or form, and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant, at any time up to: (1) thirty (30) days if the defendant is charged with a felony; or (2) fifteen (15) days if the defendant is charged only with one (1) or more misdemeanors; before the omnibus date. . . . (c) Upon motion of the prosecuting attorney, the court may, at any time before, during, or after the trial, permit an amendment to the indictment or information in respect to any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant. Our Supreme Court recently discussed the amendment of charging instruments in Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). After reviewing the statute and its history, the Fajardo court held: [T]he first step in evaluating the permissibility of amending an indictment or information is to determine whether the amendment is addressed to a
The General Assembly amended Indiana Code Section 35-34-1-5 effective May 8, 2007. See P.L. 178-2007,

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