Rush, C.J.
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The State charged Gibson with murder, alleged he was a habitual offender, and sought the death penalty based on four aggravating circumstances—specifically, that during the murder, Gibson used force or threat of force to commit or attempt to commit criminal deviate conduct on [the victim] (1) with his mouth and (2) with his fingers or fist; (3) that he had committed another murder (namely, of [75-year-old Christine] Whitis); and (4) that he was on probation (namely, for D-felony auto theft) when he murdered this victim].
On the second day of jury selection, Gibson agreed to plead guilty to murder in exchange for the State dropping the habitual offender allegation. Gibson also waived jury trial for the penalty phase, agreeing the court alone would decide whether to sentence him to death, life imprisonment without parole, or a term of years. The State simultaneously amended, without objection, the charging information, changing Aggravator 3 from Gibson having committed the Whitis murder to having been convicted of it.
Following a four-day sentencing hearing with fourteen witnesses and forty-seven exhibits, the court [found] … that the State proved all four death-penalty aggravators beyond a reasonable doubt. …
… [After balancing the aggravators and mitigators,] … the court determined that death was “the only appropriate sentence” for Gibson. Gibson now directly appeals his death sentence to this Court under Indiana Appellate Rule 4(A)(1)(a)—raising four issues that we address in turn, providing additional facts when necessary.
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… Gibson argues the trial court committed fundamental error by allowing the State to amend the death penalty information on the same day he pleaded guilty and more than two years after the initial information. We disagree.
Ordinarily the State may amend a death penalty charging information’s form at any time so long as it “does not prejudice the substantial rights of the defendant.” Ind. Code § 35-34-1-5(c) (2008 Repl.). “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.’” [Citation omitted.] Since Gibson did not object and argue amending the charging information prejudiced any of these rights or affected his defense, he must now prove the amendment constituted fundamental error. … To satisfy this burden, Gibson “must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because” amending Aggravator 3 in the charging information “‘constitute[d] [a] clearly blatant violation[] of basic and elementary principles of due process’ and . . . ‘present[ed] an undeniable and substantial potential for harm.’” [Citation omitted.] Gibson does not meet this heavy burden.
From the beginning, the State based Aggravator 3 … on the … Whitis murder. Because Gibson had not yet gone to trial in the Whitis case, the State originally phrased Aggravator 3 pursuant to Indiana Code section 35-50-2-9(b)(8): “The defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder.” (Emphasis added). Gibson moved to dismiss the aggravator because he was not being tried for the Kirk and Whitis murders in the same proceeding, but the court held the motion in abeyance. After Gibson was convicted in the Whitis case, the State moved to amend … the basis for Aggravator 3 to Indiana Code section 35-50-2-9(b)(7)—that Gibson “has been convicted of another murder.” I.C. § 35-50-2-9(b)(7) (emphasis added). [Footnote omitted.]
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Now Gibson claims amending Aggravator 3 … amounted to a blatant due process violation, presented substantial potential for harm, and subjected him to grave peril. But from the initial charging date in 2012, Gibson knew the Whitis murder served as the only basis for Aggravator 3 and he could defend against it only by showing he did not kill Whitis. Thus, amending Aggravator 3 neither presented substantial harm to Gibson nor placed him in grave peril. Similarly, amending the charging information did not amount to a blatant due process violation because Gibson had sufficient notice of the original aggravator and the proposed amendment, had an opportunity to object (but didn’t), and then had an opportunity to defend against it. Because Gibson cannot establish error, let alone fundamental error, we affirm the trial court’s grant of the State’s motion to amend this aggravator.
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William Clyde Gibson III murdered Stephanie Kirk and the trial court sentenced him to death. After careful review, we find the court did not err and that the sentence is not inappropriate. We therefore affirm.
Dickson, Rucker, David, and Massa, JJ., concur.
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The State charged Gibson with murder, alleged he was a habitual offender, and sought the death penalty based on four aggravating circumstances—specifically, that during the murder, Gibson used force or threat of force to commit or attempt to commit criminal deviate conduct on [the victim] (1) with his mouth and (2) with his fingers or fist; (3) that he had committed another murder (namely, of [75-year-old Christine] Whitis); and (4) that he was on probation (namely, for D-felony auto theft) when he murdered this victim].
On the second day of jury selection, Gibson agreed to plead guilty to murder in exchange for the State dropping the habitual offender allegation. Gibson also waived jury trial for the penalty phase, agreeing the court alone would decide whether to sentence him to death, life imprisonment without parole, or a term of years. The State simultaneously amended, without objection, the charging information, changing Aggravator 3 from Gibson having committed the Whitis murder to having been convicted of it.
Following a four-day sentencing hearing with fourteen witnesses and forty-seven exhibits, the court [found] … that the State proved all four death-penalty aggravators beyond a reasonable doubt. …
… [After balancing the aggravators and mitigators,] … the court determined that death was “the only appropriate sentence” for Gibson. Gibson now directly appeals his death sentence to this Court under Indiana Appellate Rule 4(A)(1)(a)—raising four issues that we address in turn, providing additional facts when necessary.
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… Gibson argues the trial court committed fundamental error by allowing the State to amend the death penalty information on the same day he pleaded guilty and more than two years after the initial information. We disagree.
Ordinarily the State may amend a death penalty charging information’s form at any time so long as it “does not prejudice the substantial rights of the defendant.” Ind. Code § 35-34-1-5(c) (2008 Repl.). “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.’” [Citation omitted.] Since Gibson did not object and argue amending the charging information prejudiced any of these rights or affected his defense, he must now prove the amendment constituted fundamental error. … To satisfy this burden, Gibson “must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because” amending Aggravator 3 in the charging information “‘constitute[d] [a] clearly blatant violation[] of basic and elementary principles of due process’ and . . . ‘present[ed] an undeniable and substantial potential for harm.’” [Citation omitted.] Gibson does not meet this heavy burden.
From the beginning, the State based Aggravator 3 … on the … Whitis murder. Because Gibson had not yet gone to trial in the Whitis case, the State originally phrased Aggravator 3 pursuant to Indiana Code section 35-50-2-9(b)(8): “The defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder.” (Emphasis added). Gibson moved to dismiss the aggravator because he was not being tried for the Kirk and Whitis murders in the same proceeding, but the court held the motion in abeyance. After Gibson was convicted in the Whitis case, the State moved to amend … the basis for Aggravator 3 to Indiana Code section 35-50-2-9(b)(7)—that Gibson “has been convicted of another murder.” I.C. § 35-50-2-9(b)(7) (emphasis added). [Footnote omitted.]
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Now Gibson claims amending Aggravator 3 … amounted to a blatant due process violation, presented substantial potential for harm, and subjected him to grave peril. But from the initial charging date in 2012, Gibson knew the Whitis murder served as the only basis for Aggravator 3 and he could defend against it only by showing he did not kill Whitis. Thus, amending Aggravator 3 neither presented substantial harm to Gibson nor placed him in grave peril. Similarly, amending the charging information did not amount to a blatant due process violation because Gibson had sufficient notice of the original aggravator and the proposed amendment, had an opportunity to object (but didn’t), and then had an opportunity to defend against it. Because Gibson cannot establish error, let alone fundamental error, we affirm the trial court’s grant of the State’s motion to amend this aggravator.
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William Clyde Gibson III murdered Stephanie Kirk and the trial court sentenced him to death. After careful review, we find the court did not err and that the sentence is not inappropriate. We therefore affirm.
Dickson, Rucker, David, and Massa, JJ., concur.