Patrick Scott Norman v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Feb 07 2017, 6:27 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
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Patrick Scott Norman, February 7, 2017
Appellant-Defendant, Court of Appeals Case No.
79A02-1605-CR-1064
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D02-1505-F4-4
Altice, Judge.
Case Summary
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[1] Following a jury trial, Patrick Scott Norman was convicted of multiple drug
offenses. On appeal, Norman argues that the trial court abused its discretion by
denying his motion for a continuance.
[2] We affirm.
Facts & Procedural History
[3] On the evening of May 15, 2015, officers of the Lafayette Police Department
were dispatched to a gas station following a report of an unconscious man in a
vehicle at a gas pump. Responding officers found Norman slumped over in the
driver’s seat of a vehicle with the engine still running. Norman was
unconscious and officers could not wake him by yelling and pounding on the
driver’s side window. After medical personnel arrived, they were able to enter
the vehicle through the passenger door, turn off the engine, and unlock the
doors. Once Norman was removed from the vehicle, he was found to be in
possession of over six grams of methamphetamine, two Xanax tablets, two foil
packets of heroin, and digital scales. Later, during a more thorough search
conducted at the county jail, two paper strips of LSD were found in Norman’s
wallet.
[4] On May 20, 2015, the State charged Norman with Level 4 felony dealing in
methamphetamine, Level 6 felony possession of a narcotic drug, Level 6 felony
possession of methamphetamine, and two counts of class A misdemeanor
possession of a controlled substance. On August 25, 2015, the State filed a
motion to amend the dealing charge to a Level 3 felony and the possession of
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methamphetamine charge to Level 5 felony. Norman did not object to the
amendment, and the trial court granted the State’s motion on September 4,
2015.
[5] A two-day jury trial commenced on December 8, 2015. Before jury selection,
Norman requested a continuance to allow him to obtain private counsel. The
trial court denied Norman’s request and the matter proceeded to trial.
Although Norman had appeared in person that morning, he did not return to
court when it reconvened after lunch. At that time, Norman’s counsel
informed the trial court that he just learned that Samantha Ruble, who he had
not subpoenaed but nevertheless intended to call as a witness, was not available
to testify that day. Defense counsel asked to begin his presentation of evidence
the next day, when Ruble would be available to testify. Initially, the trial court
declined to rule on the request and instructed defense counsel to attempt to
secure Ruble’s appearance that day. The State then continued its presentation
of evidence in Norman’s absence and without objection from defense counsel.
Ruble was still not present when the State rested, so the trial court adjourned
until the next day to allow Ruble time to appear.
[6] Neither Ruble nor Norman appeared on the second day of trial. Defense
counsel did not ask for a continuance due to Ruble’s absence, expressly stating
that he was not “asking the Court to wait any longer[.]” Transcript at 148.
Defense counsel did, however, ask for a continuance based on Norman’s failure
to appear. The trial court denied the request, and at the conclusion of the
evidence and arguments, the jury acquitted Norman of the dealing in
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methamphetamine charge and found him guilty on all other charges. Norman
was subsequently sentenced to an aggregate term of six years in the Department
of Correction. Norman now appeals.
Discussion & Decision
[7] Norman argues that the trial court erred in denying his motion for a
continuance. The trial court twice denied Norman a requested continuance.
On the morning of trial, Norman requested a continuance to obtain private
counsel, and on the second day of trial, defense counsel requested a
continuance due to Norman’s own failure to appear. On appeal, Norman does
not argue that the trial court’s denial of either of these motions was error.
Instead, he argues that the trial court should have granted him a continuance
pursuant to Ind. Code § 35-36-7-1(b) due to the absence of a witness, i.e., Ruble.
See Macklin v. State, 701 N.E.2d 1247, 1250 (Ind. Ct. App. 1998) (noting that
“[w]hen a defendant requests a continuance due to the absence of a material
witness, and the statutory criteria are met, the defendant is entitled to a
continuance as a matter of right”).
[8] Norman’s argument in this regard is puzzling, to say the least. When defense
counsel learned that Ruble—who had not been subpoenaed or included on
Norman’s witness list1—was not available on the first day of trial, he asked to
1
Ruble had been included on the State’s list of potential witnesses, although the State ultimately chose not to
call her as a witness.
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be permitted to begin his presentation of evidence the next day. The trial court
ultimately granted this request. When Ruble failed to appear on the second day
of trial, defense counsel expressly stated that he was not asking for additional
time to secure Ruble’s presence. Thus, to the extent that Norman asked for a
continuance based on Ruble’s absence on the first day of trial, that request was
granted. As for Ruble’s absence on the second day of trial, Norman cannot
now be heard to complain that the trial court did not grant him a continuance
he did not request.
[9] Moreover, even if Norman had requested a continuance based on Ruble’s
absence, he fell far short of satisfying the statutory criteria set forth in I.C. § 35-
36-7-1. Among many other deficiencies, Norman filed no affidavit showing
that Ruble’s testimony was material and that due diligence had been used to
obtain it as required by I.C. § 35-36-7-1(a), and he did not state the facts to
which he believed Ruble would testify or indicate the probability of procuring
her testimony within a reasonable time as required by I.C. § 35-36-7-1(b).
Furthermore, even if Norman had filed the required affidavit and made the
necessary assertions, he would have been unable to establish due diligence
because he failed to subpoena Ruble for trial. See Arhelger v. State, 714 N.E.2d
659, 667 (Ind. Ct. App. 1999). Norman has not established error in this regard.
[10] Norman also argues that he was entitled to a continuance based on the State’s
amendment of the charging information. This argument is meritless. The State
moved to amend the charging information on August 25, 2015. The motion
was granted at a hearing on September 4, 2015—over three months prior to
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trial—and Norman did not request a continuance at that time or object in any
way to the amendment. It was not until after trial, prior to Norman’s
sentencing, that Norman first took issue with the amendment, and even then,
he did not argue for a continuance. Instead, he argued that the amended
charges should be dismissed because no initial hearing was held. It is axiomatic
that a party waives for appeal issues not timely raised before the trial court. See
Sisson v. State, 985 N.E.2d 1, 12 (Ind. Ct. App. 2012) (noting that arguments
raised for the first time on appeal are waived), trans. denied; see also Wilson v.
State, 931 N.E.2d 914, 918 (Ind. Ct. App. 2010) (explaining that “a defendant’s
failure to request a continuance after a trial court allows a pre-trial substantive
amendment to the charging information over defendant’s objection results in
waiver”), trans. denied. Accordingly, Norman’s argument in this regard is not
available for appellate review.
[11] Judgment affirmed.
[12] Riley, J. and Crone, J., concur.
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