¶1dissenting.
¶2The majority, relying on Sharp v. State,
¶3When an amendment of an indictment gives rise to a possible defense which the defendant has no opportunity to pursue, it is prejudicial to allow the amendment at the outset of the trial. Molina v. State, 561 So.2d 425, 426 (Fla.Dist.Ct.App.1990). In Molina, the defendant was charged with Disorderly Intoxication, in violation of a state statute. On the day of trial, the information was amended to charge him with Disorderly Conduct, in violation of a city ordinance. Both laws prohibited consumption of alcohol in a public place, but the city ordinance had an exception for certain public areas designated by the city. The court found it was error to allow the amendment, even though Molina had offered no evidence at trial that he was drinking in an exempted area: “As the ordinance contained a possible defense which Molina had no opportunity to investigate, there was prejudice to Molina from the allowance of the amendment at the outset of the trial.” Id.
¶4The amendment of Wilkinson’s information, which changed the charge against him from Child Molesting to Attempted Child Molesting, similarly prejudiced Wilkinson’s substantial rights because it deprived him of the opportunity to prepare and present, or even investigate, at least one potential defense — that of abandonment.
¶5It is a defense to charges under Ind.Code 35-41-2-4 (aiding, inducing, or causing an offense), Ind.Code 35-41-5-1 (attempt to commit a crime), and Ind.Code 35-41-5-2 (conspiracy to commit a felony), that the person who engaged in the prohibited conduct voluntarily abandoned his effort to commit the underlying crime and voluntarily prevented its commission. Ind.Code 35-41-3-10 (1993). The defense of abandonment is only available in cases involving attempted crimes; obviously, one cannot abandon an attempt to commit an offense after the crime has been completed. Barnes v. State, 269 Ind. 76, 83, 378 N.E.2d 839, 843 (1978). In the case of an “attempt” charge, the conduct constituting abandonment must occur after the commencement of the “substantial step” towards the commission of the underlying crime. Woodford v. State, 488 N.E.2d 1121, 1124 (Ind.1986). That has the effect of making it possible for a person to technically commit the elements of the crime of attempt, but to still avail himself of the defense of abandonment. Id.
¶6Wilkinson thus had a potential defense available to him under the amended charge of attempted child molesting that was not available under the original charge of child molesting. But he could not have been prepared to present an abandonment defense, or even to determine whether the facts could have supported one, when he was not made aware until the day of trial that he was being charged with anything but the completed *51offense, and when he was not permitted a continuance to allow him to explore the possibility of presenting different or additional defenses. See Brown v. Commonwealth, 498 S.W.2d 119, 120 (Ky.Ct.App.1973) (amendment of an indictment at the close of evidence to charge defendant as an aider and abettor rather than as a principal was prejudicial to his substantial rights).
¶7The majority goes on to suggest that Wilkinson was not prejudiced by the amendment because he failed to show that he would have relied on the defense of abandonment even though it became available to him. That circular argument is not persuasive. Until the morning of his trial, Wilkinson was charged with, and prepared to defend himself against, a crime to which abandonment was no defense. He was denied a continuance which might have allowed him to explore the availability of an abandonment defense. Wilkinson should not now be deprived of his right to assert that defense just because he did not go to trial prepared to present an irrelevant defense.
¶8The dangers inherent in the majority’s interpretation of the Sharp test are apparent. In the case of “attempt” crimes, for example, an unscrupulous prosecutor who recognized that a defendant’s best or only defense was abandonment could charge the defendant only with the completed crime, inducing the defendant to ignore the abandonment defense. Then, on the day of trial, or even during the trial, the prosecutor could amend the charges to the lesser included offense of “attempt,” increasing the State’s chances of conviction and at the same time assuring that the defendant would not have prepared its most viable defense.
¶9The right of an accused to due process is the right to a fair opportunity to defend against the State’s accusations. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973). The accused has the right to utilize any and all defenses in his behalf, and to present as many defenses as he has or thinks he has. See generally 21 Am.Jur.2d Criminal Law § 183 (1981). Because one purpose of an information is “to furnish the accused with such a description of the charges against him as will enable him to make his defense,” State v. Allen, 12 Ind. App. 528, 40 N.E. 705 (1895), a last-minute amendment which gives rise to a defense the defendant cannot effectively assert, or even investigate, is prejudicial and should not be permitted unless a continuance is granted at the defendant’s request.
¶10Because the amendment to Wilkinson’s information effectively deprived him of a potential defense, it was material, and the trial court erred in allowing the State to amend it without giving Wilkinson adequate written notice and time to take advantage of, or even explore, potential defenses to the new charge. I would reverse.
¶11. The majority correctly notes that a last-minute amendment to an information is not allowed if it would “substantially prejudice a defendant in terms of his opportunity to prepare his defense,” citing Todd v. State, 566 N.E.2d 67, 69 (Ind.Ct. App.1991), and states that the test for whether a defendant is prejudiced is "whether the amendment affects the availability of a defense ... which existed under the original information" (emphasis added), citing Sharp, 534 N.E.2d at 714. We note that Sharp, as weE as all other Indiana decisions we have found which state that rule, determined that the amendment at issue was one of form only, and not of substance. See, e.g., Gibbs v. State, 460 N.E.2d 1217 (Ind.1984), reh'g denied; Humphrey v. State, 268 Ind. 597, 377 N.E.2d 631 (1978); Owens v. State, 263 Ind. 487, 333 N.E.2d 745 (1975); Johnson v. State, 258 Ind. 383, 281 N.E.2d 473 (1972); Smith v. State, 252 Ind. 148, 246 N.E.2d 765 (1969). In none of those decisions did the court have occasion to address whether a defendant could be prejudiced by an amendment which permitted a new defense for which the defendant could not prepare; thus, I believe the Sharp wording which the majority reads as a limitation is, in fact, dictum.