Ronald Rodgers v. State of Indiana (mem. dec.) ( 2015 )


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  •       MEMORANDUM DECISION
    Feb 12 2015, 10:00 am
    Pursuant to Ind. Appellate Rule 65(D), this
    Memorandum Decision shall not be regarded as
    precedent or cited before any court except for the
    purpose of establishing the defense of res judicata,
    collateral estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    Ellen M O’Conner                                          Gregory F. Zoeller
    Marion County Public Defender Agency                      Attorney General of Indiana
    Indianapolis, Indiana
    Michael Gene Worden
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Ronald Rodgers,                                          February 12, 2015
    Appellant-Defendant,                                     Court of Appeals Case No.
    49A02-1406-CR-407
    v.                                               Appeal from the Marion Superior
    Court
    The Honorable Carol J. Orbison,
    State of Indiana,                                        Judge
    Appellee-Plaintiff                                       Case No. 46G05-1302-FA-10687
    Bradford, Judge.
    Case Summary
    [1]   At some point in early 2012, Appellant-Defendant Ronald Rodgers
    impregnated D.B., the daughter of a girlfriend. In December of that year, D.B.
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    gave birth to a child that was determined to have been fathered by Rodgers. In
    February of 2014, Appellee-Plaintiff the State of Indiana (“the State”) charged
    Rodgers with three counts of Class A felony child molesting and one count of
    Class C felony child molesting. On April 30, 2014, Rodgers moved for a
    continuance to investigate the role an alleged medical condition of Rodgers’s
    might have played in his offenses.
    [2]   On May 2, 2014, Rodgers argued at a hearing for a continuance on the grounds
    that he wished additional time to investigate potential witnesses and to
    investigate an unspecified medical condition that might have played a role in
    his offenses. On May 9, 2014, the day Rodgers’s bench trial began, he renewed
    his motion for a continuance in order to secure Department of Correction
    (“DOC”) records related to his alleged insomnia and sleep apnea and his
    alleged use of Ambien and to potentially secure an expert to testify regarding
    the risk of Ambien causing, essentially, sleepwalking. The trial court denied
    Rodgers’s request for a continuance.
    [3]   Following trial, the trial court found Rodgers guilty of one count of Class A
    felony child molesting and sentenced him to fifty years of incarceration with ten
    years suspended. Rodgers contends that the trial court abused its discretion in
    denying his request for a continuance. We affirm.
    Facts and Procedural History
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    [4]   D.B. was born on February 16, 2000. D.B. is educationally and cognitively
    delayed, her ability to communicate is challenged, and, in early 2012, she did
    not yet understand the connection between sexual intercourse and human
    reproduction. In early 2012, Rodgers, who was then in a relationship with
    D.B.’s mother and was acting as D.B.’s stepfather, had sexual intercourse with
    D.B. One day when D.B.’s mother was not at home, Rodgers removed D.B.’s
    pajamas and touched her “private parts” with his “private part” on the
    “[i]nside” until clear liquid came out. Tr. pp. 54, 55. D.B. eventually
    discovered that she was pregnant with what would later be determined to be
    Rodgers’s child and gave birth on December 28, 2012.
    [5]   On February 20, 2013, the State charged Rodgers with three counts of Class A
    felony child molesting and one count of Class C felony child molesting. On
    February 28, 2013, attorney Dominic Martin entered his appearance on behalf
    of Rodgers. By April of 2013, Rodgers began to express dissatisfaction with
    Martin’s representation. In January and March of 2014, Rodgers petitioned the
    trial court to dismiss Martin. On March 4, 2014, Rodgers requested a speedy
    trial, meaning that the latest date his trial could begin was May 13, 2014. On
    April 3, 2014, the trial court granted Rodgers’s motion to proceed pro se,
    granted his request to waive jury trial, and set a trial date of May 9, 2014.
    [6]   On April 14, 2014, Rodgers requested the trial court to appoint him new trial
    counsel. The trial court reappointed Martin, who reentered his appearance on
    April 21, 2014. On April 28, 2014, Rodgers sent a letter to the trial court
    expressing dissatisfaction with Martin and requesting withdrawal of his jury
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    trial waiver. On April 30, 2014, Rodgers (through Martin) filed a motion for
    continuance on the grounds that there were witnesses that had not yet been
    subpoenaed and that Rodgers’s “medical condition may have played a role in
    the offense which must be explored prior to trial.” Appellant’s App. p. 108.
    [7]   On May 2, 2014, Martin revealed at a hearing that Rodgers had told him of his
    possible medical defense only earlier that week, which the trial court observed
    was approximately 420 days after the case had originally been filed. Martin
    also indicated that D.B.’s mother and grandmother were the witnesses that
    needed to be subpoenaed and that Rodgers had told him that Rodgers’s
    Department of Correction (“DOC”) medical records indicated that he suffered
    from sleep apnea. The trial court denied Rodgers’s motion for a continuance
    but left open the possibility, provided that Martin could learn something before
    the start of trial to support the new defense theory.
    [8]   On May 9, 2014, at the beginning of Rodgers’s bench trial, Rodgers renewed
    his request for a continuance, with Martin stating that he had learned from
    Rodgers that he had suffered from sleep apnea which had led to insomnia and
    that he had taken Ambien while incarcerated in the DOC. Rodgers argued that
    a possible involuntary intoxication defense existed and that he needed a
    continuance in order to obtain DOC medical records and possibly the services
    of an expert. The trial court denied Rodgers’s motion for continuance.
    [9]   During trial, Rodgers testified that he suffered from sleep apnea that developed
    into insomnia and that he was using Ambien during the time that he
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    impregnated D.B. Rodgers denied any recollection of having sexual intercourse
    with D.B. The trial court found Rodgers guilty of one count of Class A felony
    child molesting. On May 16, 2014, the trial court sentenced Rodgers to fifty
    years of incarceration, with ten years suspended.
    Discussion and Decision
    Whether the Trial Court Abused its Discretion in
    Denying Rodgers’s Motion for a Continuance
    [10]   Rodgers agrees with the State that his motion for a continuance was
    nonstatutory, and the following standard of review therefore applies:
    Rulings on nonstatutory motions for continuance lie within the
    discretion of the trial court and will be reversed only for an abuse
    of that discretion and resultant prejudice. Maxey v. State, 
    730 N.E.2d 158
    , 160 (Ind. 2000). An abuse of discretion occurs only
    where the decision is clearly against the logic and effect of the
    facts and circumstances. Palmer v. State, 
    704 N.E.2d 124
    , 127
    (Ind. 1999). We will not conclude that the trial court abused its
    discretion unless the defendant can demonstrate prejudice as a
    result of the trial court’s denial of the motion for continuance.
    Dorton v. State, 
    419 N.E.2d 1289
    , 1295 (Ind. 1981). Continuances
    to allow more time for preparation are not favored and are
    granted only by showing good cause and in the furtherance of
    justice. Timm v. State, 
    644 N.E.2d 1235
    , 1237 (Ind. 1994).
    [11]   Stafford v. State, 
    890 N.E.2d 744
    , 750 (Ind. Ct. App. 2008). “In determining
    whether good cause exists, the trial judge may look to the circumstances of the
    case as well as the allegations of the motion and is not required to grant the
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    motion simply because it complied with [the rules of trial procedure].” Bryan v.
    State, 
    438 N.E.2d 709
    , 714 (Ind. 1982). “Although the right to present a
    defense ‘is of the utmost importance, it is not absolute.’” Marley v. State, 
    747 N.E.2d 1123
    , 1132 (Ind. 2001) (citing Roach v. State, 
    695 N.E.2d 934
    , 939 (Ind.
    1998)). “‘[T]he accused, as is required of the State, must comply with
    established rules of procedure and evidence designed to assure both fairness and
    reliability in the ascertainment of guilt and innocence.’” 
    Id. (citing Roach,
    695
    N.E.2d at 939).
    [12]   Under the circumstances of this case, we cannot say that the trial court abused
    its discretion in denying Rodgers’s motion for continuance. Approximately 420
    days after charges were filed but only a few days before trial, Rodgers first
    informed Martin of his alleged insomnia and Ambien use. Rodgers’s possible
    defense was brought to the trial court’s attention nine days before trial. Rodgers
    does not claim that he was unaware of his possible defense before disclosing it
    to Martin, only that his “rocky relationship” with Martin somehow caused him
    to withhold the information. Appellant’s Br. p. 6. Rodgers does not explain,
    and we do not see, how a contentious relationship with one’s trial counsel
    would cause one to fail to disclose a possibly exonerating defense. If nothing
    else, Rodgers could have informed the trial court directly of the possible
    defense, which would have at least brought it to light in a more timely fashion.
    The record on appeal contains no fewer than eight personal correspondences
    from Rodgers to the trial court and three motions to dismiss Martin, none of
    which mention his possible involuntary intoxication defense. Indeed, because
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    most of Rodgers’s correspondence details his concerns that Martin was not
    diligent in preparing an adequate defense for him, the fact that Rodgers never
    mentioned his involuntary intoxication defense calls its validity into serious
    question. Under the circumstances, especially the length of time Rodgers
    waited before telling anyone about his possible voluntary intoxication defense,
    we cannot say that the trial court abused its discretion in denying Rodgers’s
    motion for continuance.
    [13]   The facts in this case are similar to those in Miller v. State, 
    372 N.E.2d 1168
    (Ind. 1978):
    Appellant Miller first suggested to his attorney four days before
    trial that he had an alibi. However, this was more than ten
    months after his initial arrest and approximately six weeks after
    Miller’s attorney entered an appearance on Miller’s behalf. The
    validity of Miller’s alibi is therefore questionable. Furthermore,
    appellant’s attorney had approximately six weeks to prepare the
    case for trial and investigate any possible defenses. This is a
    sufficient period of time for adequate preparation in order to
    provide appellant with effective counsel. Therefore, appellant
    has not established a clear abuse of discretion by the trial judge
    and there was no error in denying the motion.
    [14]   
    Id. at 1171.
    In Miller, as here, the reason for failure to disclose the possible
    defense earlier was never explained, and the disclosure that did occur came very
    late in the game. Because we find Miller to be sufficiently analogous as to
    control in this case, we reach the same result.
    [15]   The judgment of the trial court is affirmed.
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    Najam, J, and Mathias, J., concur.
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