Paul J. Kinnaman v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 04 2020, 9:14 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Tara L. Cragen Curtis T. Hill, Jr.
The Nice Law Firm, LLP Attorney General of Indiana
Indianapolis, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paul J. Kinnaman, February 4, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1035
v. Appeal from the Johnson Superior
Court
State of Indiana, The Honorable Lance D. Hamner,
Appellee-Plaintiff, Judge
Trial Court Cause No.
41D03-1607-F1-6
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial in Johnson County, Paul Kinnaman was convicted of
attempted murder, a Level 1 felony; pointing a firearm and resisting law
enforcement, both Level 6 felonies; unlawful possession of a firearm by a
serious violent felon, a Level 4 felony; and was found to be an habitual
offender. The trial court sentenced Kinnaman to forty-seven and one-half years
in the Indiana Department of Correction (“DOC”) for his crimes, enhanced by
fifteen years based on Kinnaman’s habitual offender status, for a total sentence
of sixty-two and one-half years. Kinnaman appeals, raising two issues for our
review, which we restate as: 1) whether the trial court erred in denying his
Criminal Rule 4(B) petition for discharge, and 2) whether venue was proper in
Johnson County. Concluding the trial court did not err in denying Kinnaman’s
petition for discharge and venue was proper in Johnson County, we affirm.
Facts and Procedural History
[2] On June 27, 2016, Officer Adam Bandy of the Greenwood Police Department
was conducting a traffic stop when he noticed Kinnaman driving by him
without a seatbelt on. Kinnaman pulled into a cul-de-sac behind Officer Bandy
and after Officer Bandy completed his traffic stop, he waited for Kinnaman to
pull out of the cul-de-sac. Approximately five minutes later, Kinnaman drove
off and Officer Bandy followed behind him for a period of time, observing
Kinnaman commit several traffic infractions. Officer Bandy then attempted to
initiate a traffic stop on Kinnaman on State Road 135 at Michelle Lane in
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Johnson County, Indiana. However, Kinnaman fled Officer Bandy and drove
through a red light. Moments later, Officer Bandy’s pursuit of Kinnaman ended
in “a bad crash” on Shelby Street and Stop 11 Road in Marion County,
Indiana. Transcript, Volume 2 at 209. When Officer Bandy arrived at the
accident, he saw Kinnaman trying to escape through the driver’s side window
of his car. Officer Bandy used his vehicle to pin the driver’s side door of
Kinnaman’s vehicle to try to prevent him from escaping. Kinnaman then
escaped his vehicle through the passenger’s side door and began running. While
Kinnaman was running away, Officer Bandy observed Kinnaman reach in his
waistband and pull out a firearm. Kinnaman then pointed the firearm towards
Officer Bandy and pulled the trigger. Although Kinnaman tried to shoot Officer
Bandy, the firearm did not fire any bullets because the trigger on Kinnaman’s
gun was dysfunctional and prevented it from being fired. See Tr., Vol. 3 at 100.
Officer Bandy fired his service weapon striking Kinnaman in his waistline.
Kinnaman was escorted to the hospital thereafter.
[3] On July 1, 2016, the Johnson County Prosecutor’s Office charged Kinnaman
with attempted murder, a Level 1 felony; unlawful possession of a firearm by a
serious violent felon, a Level 4 felony; resisting law enforcement and pointing a
firearm,1 both Level 6 felonies; and alleged Kinnaman was an habitual offender.
After the charges were filed, the following occurred:
1
The pointing a firearm charge was added later.
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• July 1, 2016 – The trial court issued a warrant for Kinnaman’s
arrest.
• July 12, 2016 – The arrest warrant was served on Kinnaman.
• July 20, 2016 – A video conference was scheduled for
Kinnaman’s initial hearing, but it was rescheduled to July 27
due to Kinnaman being housed in Marion County Jail; the
trial court issued a transport order for the July 27 hearing.
• July 27, 2016 – The trial court was informed that Kinnaman
had to appear for court in Marion County on this date; the
initial hearing was reset for August 10.
• August 9, 2016 – The trial court rescheduled the August 10
initial hearing for August 17 because Kinnaman needed to be
transported from Marion County Jail; the trial court issued a
transport order for the August 17 hearing.
• August 15, 2016 – Kinnaman, pro se, filed a motion for early
trial under Criminal Rule 4(B).
• August 17, 2016 – Kinnaman’s initial hearing was held via
video conference. Kinnaman pleaded not guilty and the trial
court appointed him a public defender. Kinnaman’s trial was
set for November 15.
• August 31, 2016 – The trial court granted Kinnaman’s public
defender’s motion to withdraw.
• September 2, 2016 – Kinnaman’s trial date of November 15
was cancelled.
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• September 14, 2016 – Kinnaman, pro se, appeared for a pre-
trial conference and the trial court appointed him a new
attorney. The trial court set his early trial date for October 11,
2016.
• September 26, 2016 – Kinnaman filed a petition for discharge
pursuant to Criminal Rule 4(B) and a motion to transfer
venue to Marion County.
• September 28, 2016 – The trial court held a hearing on
Kinnaman’s petition for discharge and motion to transfer
venue and denied both motions.
[4] On September 29, 2016, Kinnaman filed a motion for continuance to prepare
for trial and filed seventeen motions for continuance thereafter. A jury trial
commenced on March 19, 2019, and the jury found Kinnaman guilty as
charged. Kinnaman waived his right to jury for the habitual offender phase of
the trial, and the trial court found Kinnaman to be an habitual offender. The
trial court sentenced Kinnaman to an aggregate sentence of sixty-two and one-
half years to be served in the DOC. Kinnaman now appeals.
Discussion and Decision
I. Criminal Rule 4(B)
[5] Both the Sixth Amendment to the United States Constitution and Article 1,
section 12 of the Indiana Constitution protect the right of an accused to a
speedy trial. Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012). Indiana
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Criminal Rule 4 implements this constitutional right.2 Id. When a defendant
moves for speedy trial, he invokes the procedures and deadlines of Criminal
Rule 4(B). Jenkins v. State, 809 N.E.2d 361, 366 (Ind. Ct. App. 2004). As
relevant to this case, Criminal Rule 4(B) provides:
If any defendant held in jail on an indictment or an affidavit shall
move for an early trial, he shall be discharged if not brought to
trial within seventy (70) calendar days from the date of such motion,
except where a continuance within said period is had on his
motion, or the delay is otherwise caused by his act, or where
there was not sufficient time to try him during such seventy (70)
calendar days because of the congestion of the court calendar.
Ind. Crim. Rule 4(B)(1) (emphasis added). The overall goal of Criminal Rule 4
“is to provide functionality to a criminal defendant’s fundamental and
constitutionally protected right to a speedy trial.” Austin, 997 N.E.2d at 1037.
“It places an affirmative duty on the State to bring the defendant to trial, but at
the same time is not intended to be a mechanism for providing defendants a
technical means to escape prosecution.” Id. “The determination of whether a
particular delay in bringing a defendant to trial violates the speedy trial
guarantee largely depends on the specific circumstances of the case.” Wheeler v.
State, 662 N.E.2d 192, 193 (Ind. Ct. App. 1996). When we review Criminal
Rule 4 claims, we review questions of law de novo and the trial court’s factual
2
As our supreme court has noted, however, reviewing a Criminal Rule 4(B) challenge is “separate and
distinct from reviewing claimed violations of those constitutional provisions.” Austin v. State, 997 N.E.2d
1027, 1037 n.7 (Ind. 2013).
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findings for clear error. Mefford v. State, 51 N.E.3d 327, 333 (Ind. Ct. App.
2016). “Clear error is that which leaves us with a definite and firm conviction
that a mistake has been made.” Austin, 997 N.E.2d at 1040 (quotation omitted).
In reviewing for clear error, we neither reweigh the evidence nor judge the
credibility of the witnesses; instead we consider only the probative evidence and
reasonable inferences supporting the judgment. Id. Kinnaman contends that the
trial court erred in denying his petition for discharge pursuant to Rule 4(B),
claiming that he was not brought to trial within the seventy-day time limit.
[6] It is well established that when a defendant files a petition under Rule 4(B), he
is required to maintain a position which is reasonably consistent with his
speedy trial request; therefore, he must object at the earliest opportunity to a
trial setting that is beyond the seventy-day time period. Hill v. State, 777 N.E.2d
795, 797-98 (Ind. Ct. App. 2002) (opinion on reh’g), cert. denied, 540 U.S. 832
(2003). If an objection is not timely made, the defendant is deemed to have
acquiesced to the trial date. Hampton v. State, 754 N.E.2d 1037, 1039 (Ind. Ct.
App. 2001), trans. denied.
[7] Kinnaman is not entitled to discharge under Rule 4(B). Kinnaman was arrested
on July 12, 2016. On August 15, Kinnaman made his first written demand for a
speedy trial by filing a letter with the trial court; therefore, the seventy-day clock
would have expired on October 24, 2016. On August 17, Kinnaman had his
initial hearing and the trial court, without objection, set Kinnaman’s trial date
for November 15, 2016. Because Kinnaman did not object when he learned of
the November 15 trial date (a date that exceeded the seventy-day time period),
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he waived his right to a speedy trial. See Goudy v. State, 689 N.E.2d 686, 691
(Ind. 1997) (holding that the defendant waived his right to a speedy trial by
failing to object to a pre-trial hearing set beyond the seventy day limit); see also
Sumner v. State, 453 N.E.2d 203, 206-07 (Ind. 1983) (holding the defendant
acquiesced in the delay when he failed to object to the scheduling of a pre-trial
conference for a date after the expiration of the seventy-day period).
[8] Waiver notwithstanding, Kinnaman would still not prevail on his claim that the
trial court erred in denying his petition for discharge. Kinnaman’s initial
counsel withdrew on August 31 and Kinnaman’s November 15 trial date was
cancelled. The trial court then appointed different counsel for Kinnaman at a
pre-trial conference on September 14. At that time, the trial court set
Kinnaman’s early trial date for October 11, which would have been within
seventy days of Kinnaman’s motion for early trial and thus, would not have
implicated Rule 4(B).3 The State argues, and we agree, that because the October
11 trial date was within the seventy-day period, Kinnaman’s petition for
discharge on September 26 was premature and thus, it was properly denied. See
Banks v. State, 402 N.E.2d 1213, 1214 (Ind. 1980) (holding the defendant’s
motion for discharge was properly denied because the defendant’s motion was
3
The record is unclear as to whether Kinnaman’s new counsel moved for early trial again or whether the trial
court reset Kinnaman’s trial to October 11 based on his previous motion for early trial. In any event, October
11 would have been within the seventy-day period.
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made on the sixty-ninth day following his early trial motion and was thus
premature).
[9] Kinnaman argues that the trial court deprived him of his right to have an early
trial when the trial court “grossly delayed” conducting an initial hearing and
therefore, the delay should retroactively apply for purposes of his petition for
discharge.4 Brief of the Appellant at 25. He contends that if his initial hearing
had been prompt, he would have been advised of his right to an early trial. 5 We
reject his contention for two reasons: First, Kinnaman cites to no authority that
would suggest that a Rule 4(B) discharge is the proper remedy for a violation of
his right to a prompt initial hearing or that the delay in time should be
retroactively applied. Moreover, we do not ignore the fact that Kinnaman’s
initial hearing was unreasonably delayed. But Kinnaman must also show that
he was prejudiced by the delay, which he has not done. See Anthony v. State, 540
N.E.2d 602, 605 (Ind. 1989) (finding no reversible error in the delay of the
defendant’s initial hearing when he failed to prove he was prejudiced by the
delay). Second, Kinnaman claims that but for the trial court’s delay in
4
Indiana Code section 35-33-7-4 provides, “A person arrested in accordance with the provisions of a warrant
shall be taken promptly for an initial hearing before the court issuing the warrant or before a judicial officer
having jurisdiction over the defendant. If the arrested person has been released in accordance with the
provisions for release stated on the warrant, the initial hearing shall occur at any time within twenty (20) days
after his arrest.” Kinnaman was arrested on July 12 and his initial hearing did not occur until August 17 – a
date that was beyond twenty days.
5
Indiana Code section 35-33-7-5 provides in relevant part: “At the initial hearing of a person, the judicial
officer shall inform the person orally or in writing:
***
(3) that the person has a right to a speedy trial[.]”
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conducting his initial hearing, he would have been advised of his right to a
speedy trial. But the record shows that Kinnaman, pro se, requested an early
trial before his initial hearing. Therefore, he clearly knew of his right to an early
trial whether he had a prompt initial hearing or not. Accordingly, the trial court
did not err in denying Kinnaman’s petition for discharge under Rule 4(B).
II. Venue
[10] Kinnaman also argues that the State failed to prove that venue was proper in
Johnson County. He claims that venue should exist in Marion County because
the attempted murder and other crimes occurred there.
[11] In Indiana, a defendant has the constitutional and statutory right to be tried in
the county where the crime was committed. Ind. Const. art. 1, § 13(a); see also
Ind. Code § 35-32-2-1(a) (“Criminal actions shall be tried in the county where
the offense was committed, except as otherwise provided by law.”). Venue must
be proved, but as it is not an element of the offense, the State must only prove
venue by a preponderance of the evidence. Baugh v. State, 801 N.E.2d 629, 631
(Ind. 2004); see also Bryant v. State, 41 N.E.3d 1031, 1037 (Ind. Ct. App. 2015)
(stating that the State’s burden of proof may be satisfied with circumstantial
evidence). We treat a claim of insufficient evidence of venue in the same
manner as other claims of insufficient evidence, Chavez v. State, 722 N.E.2d 885,
895 (Ind. Ct. App. 2000), and therefore, “[w]e neither reweigh the evidence nor
resolve questions of credibility, but look to the evidence and reasonable
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inferences therefrom which support the conclusion of requisite venue[,]” Eberle
v. State, 942 N.E.2d 848, 855 (Ind. Ct. App. 2011), trans. denied.
[12] Our supreme court has stated that “where a crime is commenced in one county
and the perpetration continues into another county, the venue lies in either
county for the prosecution of such a crime.” Stone v. State, 531 N.E.2d 191, 194
(Ind. 1988) (noting that the defendant was not misled or harmed in any way
when his entire case was tried in a county where all the events did not take
place); see also Floyd v. State, 503 N.E.2d 390, 393 (Ind. 1987) (holding that
venue was proper in the county where the crime began or any other county in
which the crime continued). Kinnaman does not dispute that he resisted Officer
Bandy in Johnson County. Rather, he argues that venue is not proper in
Johnson County because all of the elements of the attempted murder and other
charges occurred in Marion County, which should be the proper venue. See Br.
of the Appellant at 24.
[13] We note that “[v]enue is not limited to the place where the defendant acted.”
Baugh, 801 N.E.2d at 631. Instead, “[i]f all charges are integrally related—in
other words, if one thing led to another—then the crimes may be considered a
single chain of events for purposes of venue.” Abran v. State, 825 N.E.2d 384,
392 (Ind. Ct. App. 2005), trans. denied. Applying this standard to the instant
case, the State proved by a preponderance of the evidence that Kinnaman’s
actions were integrally related and part of a chain of events that began in
Johnson County. The evidence in the light most favorable to the trial court’s
ruling is that Officer Bandy attempted to conduct a traffic stop on Kinnaman
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while in Johnson County. Kinnaman fled Officer Bandy while still in Johnson
County and continued to flee into Marion County, which resulted in a car
accident. At this point, Kinnaman escaped from his vehicle and attempted to
shoot Officer Bandy. It is clear that Kinnaman’s act of resisting Officer Bandy
was “integrally related” to the attempted murder because the attempted murder
would not have occurred but for his resisting. Further, the State did not only
present evidence that Kinnaman committed the actions, but it presented
evidence that they were committed contemporaneously with one another and
therefore, Kinnaman’s act of resisting was part of a single chain of events that
culminated in other charges.
[14] Citing Neff v. State, 915 N.E.2d 1026 (Ind. Ct. App. 2009), trans. denied,
Kinnaman argues that if the State could pick any county it deems appropriate
for venue then it could engage in “forum shopping,” which would allow the
State to obtain a trial in a county it believes to be “harsher” on the defendant.
Br. of the Appellant at 22. In Neff, the defendant was convicted of child
solicitation in Hamilton County. His messages were sent from Madison County
to an out-of-state recipient. Although the defendant thought the recipient lived
in Hamilton County and arranged to meet “the child” in Hamilton County, his
messages were not directed to any person “actually existing in Hamilton
County” and he did not “engage in any conduct in furtherance of the crime in
Hamilton County” because the crime of child solicitation was complete when
he sent the messages. Id. at 1034. Accordingly, a panel of this court reversed,
noting that Hamilton County was not a proper venue. Neff is clearly
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distinguishable. Unlike the defendant in Neff, Kinnaman actually committed,
and acknowledged that he committed, crimes in both counties and therefore,
there is no possibility of “forum shopping.” As noted above, Kinnaman began
resisting Officer Bandy in Johnson County which ultimately ended in Marion
County where he committed his other crimes, namely attempted murder,
unlawful possession of a firearm, and pointing a firearm. Therefore, the issues
of concern in Neff do not arise here at all.
[15] Because the State presented evidence that Kinnaman’s offenses were integrally
related such as to constitute a single chain of events, we conclude that venue
was proper in Johnson County. Accordingly, the trial court did not err in
denying Kinnaman’s motion to transfer venue.
Conclusion
[16] We conclude that the trial court did not err in denying Kinnaman’s Criminal
Rule 4(B) petition for discharge and venue was proper in Johnson County.
Therefore, we affirm Kinnaman’s convictions.
[17] Affirmed.
Bradford, C.J., and Altice, J., concur.
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