Vaidik, J.
Indiana Trial Rule 34 governs requests for production of documents and electronically stored information during discovery and responses to such requests. For a party to invoke Rule 34 as the basis for an alleged discovery violation, that party must have first made a discovery request. In a criminal case, if the defendant made no discovery request to the State, the defendant cannot later challenge the admission of documents or electronically stored information on the ground that the State violated Rule 34 in its production of the materials.
Here, Thomas Owens was convicted of Level 5 felony battery by means of a deadly weapon after getting in a fight that was captured on a CVS surveillance camera. CVS provided the State with a disk containing the surveillance footage and a media-player application. During discovery, the State provided Owens with the footage but not the media player, which affected the speed at which Owens could view the footage. Owens argues this was a violation of Rule 34. But because Owens never made a request for production, he can’t invoke Rule 34 on appeal as the basis for his challenge to the State’s production of the footage. Owens raises several other issues, including whether the trial court properly instructed the jury, whether the State presented sufficient evidence of the victim’s identity and the use of a deadly weapon, and whether the trial court erred in denying his motion to supplement the record. We find these arguments without merit and affirm his conviction.
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Owens argues the trial court erred in admitting State’s Exhibit 1, the CVS surveillance footage. He claims the court should have excluded the exhibit because the State violated Indiana Trial Rule 34 by producing the M4V video files but not the Click It Media Player application during discovery.
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Instead, Owens argues the State violated Trial Rule 34. Indiana’s Rules of Trial Procedure apply to criminal proceedings as long as there is no conflicting criminal rule. Ind. Crim. Rule 21; Minges v. State, 192 N.E.3d 893, 897 (Ind. 2022). The trial rules that govern discovery, including Rule 34, are designed to facilitate “‘liberal discovery’ in order to provide the maximum amount of information possible to both parties[.]” Minges, 192 N.E.3d at 897. To this effect, Rule 34 enables parties to seek discovery directly from each other by serving requests for production of documents and electronically stored information. Id. If one party requests electronically stored information from the other but does not specify the form of production, under Rule 34(B), the “responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.”
In a criminal proceeding, the defendant can use Rule 34 to request additional documents or electronically stored information that the State didn’t already produce. This is where the problem lies for Owens. He never made a request for production, but he nonetheless claims the State violated Rule 34, arguing that it did not produce the surveillance footage in a form in which it is ordinarily maintained or a reasonably usable form.4 But the State was not bound by Rule 34 because it is not a “responding party” within the meaning of the rule. The rule presupposes that a request for production has been made, and since Owens never made such a request, he cannot claim a violation of the rule.
Even if the State had been responding to a Rule 34 request for production, there would be no violation because the State produced the footage in a reasonably usable form.
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We acknowledge that, where the State possesses electronically stored information in multiple files, it would be better practice for the State to provide the defense with all of those files. Here, the State should have just sent Owens all the files on the disk from CVS. But because Owens didn’t request discovery from the State, he can’t challenge the State’s production of the information based on a rule that concerns responses to discovery requests. The trial court did not err in admitting State’s Exhibit 1.
Owens also contends the trial court erred by omitting from its final instruction on the elements of the charge the words “baseball bat,” which were included in the charging information, as the deadly weapon used to strike Dugas. To begin, Owens argues the proper procedure for the State to eliminate this language would have been to amend the charging information, not ask the trial court to strike it from the elements instruction. We are faced here with an unusual situation in which the charge was effectively amended even though the State never formally moved to amend the information. But because the outcome (the trial court striking “baseball bat” from the elements instruction) would have been the same even if the State filed a formal motion, for purposes of our review, we will consider the State’s request for alteration of the jury instruction as a motion to amend. See Rodriguez v. State, 385 N.E.2d 1208, 1211 (Ind. Ct. App. 1979) (“Although the State did not formally move to amend the information . . . , the instructions given by the court and approved by the State created the same effect.”)
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Although the State did not follow the statutorily prescribed procedure for amending the charge, because the removal of “baseball bat” from the elements instruction did not prejudice Owens’s substantial rights, the trial court did not err in altering the instruction. See Nash v. State, 545 N.E.2d 566, 567 (Ind. 1989) (“The purposes of the motion to amend were therefore fulfilled, and the lack of that formal motion to amend did no prejudice to substantial rights. There is therefore no error warranting remedy.”).
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In the surveillance footage from CVS, Owens can be seen swinging and striking Dugas with a long, stick-like object. The photos taken at the crime scene show a cut on the side of Dugas’s head bleeding down onto his neck and ear. See Exs. 3-8. Officer Tindall testified that the cut went into Dugas’s scalp, the injury was consistent with an object striking a person, and a blunt object could cause a break in the skin like the one shown in State’s Exhibit 5. Although the State did not establish what exactly the long, stick-like object was, based on how Owens used it—swinging it at Dugas and striking him with it—and the extent of Dugas’s injury, the jury could have reasonably inferred that the object could inflict serious bodily injury. The evidence is sufficient to establish that Owens battered Dugas using a deadly weapon.
Finally, Owens argues the trial court erred in denying his motion to supplement the record with Defendant’s Exhibit A, the video files he received from the State during discovery. Owens asked the court to make Defendant’s Exhibit A part of the trial record under Indiana Appellate Rule 32(A).
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Owens’s motion to supplement the record amounted to an untimely offer of proof, and his counsel admitted as much at the hearing on the motion. See Tr. p. 230 (asking the trial court to admit Defendant’s Exhibit A to correct “the lack of proffer on my part Judge, as to what was disclosed to Defense . . . because I did not introduce the . . . sped-up video”). Failure to make an offer of proof at trial results in waiver of the asserted evidentiary error. Cole v. State, 28 N.E.3d 1126, 1135 (Ind. Ct. App. 2015). And in any event, although the trial court denied Owens’s motion under Rule 32, it still admitted Defendant’s Exhibit A for purposes of appellate review, so the goal of the motion was satisfied. Owens doesn’t explain how denial of the motion caused him any harm or what difference it would have made if the court had granted it. The trial court didn’t err in denying Owens’s motion to supplement the record.
Affirmed.
Bradford, J., and Brown, J., concur.