Nicholas Matthew Holmes v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 28, 2017
• Docket: 82A01-1608-CR-1812
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 28 2017, 9:22 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Scott L. Barnhart Curtis T. Hill, Jr. Brooke Smith Attorney General of Indiana Keffer Barnhart LLP Indianapolis, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Nicholas Matthew Holmes, February 28, 2017 Appellant-Defendant, Court of Appeals Case No. 82A01-1608-CR-1812 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Robert J. Pigman, Appellee-Plaintiff Judge Trial Court Cause No. 82D03-1509-F6-5611

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1812 | February 28, 2017 Page 1 of 6 Case Summary [1] Following a jury trial, Nicholas Matthew Holmes appeals his conviction for

level 6 felony failure to return to lawful detention. He argues that the trial court

erred in admitting the State’s belatedly disclosed evidence and that his

conviction is not supported by sufficient evidence. We affirm.

Facts and Procedural History [2] Holmes was sentenced to work release for a prior conviction and reported to the

Vanderburgh County Therapeutic Work Release Center on August 24, 2015. A

clerk presented him with a contract containing the terms and conditions of his

placement. The contract states in pertinent part, “I understand that failure to

return to the Work Release Facility as scheduled or being in an unauthorized

location may subject me to criminal prosecution.” State’s Ex. 1. It also states,

“I understand that I am not to leave my place of employment or any other

approved location without prior approval of Vanderburgh County Community

Corrections.” Id. And finally, it states, “This contract has been read and

explained to me and my signature below acknowledges that I have fully read

and fully understand all terms and conditions of this contract. I further

acknowledge that I have initialed each and every term of this Work Release

Contract as I have read and understood each term.” Id. Holmes signed the

contract but did not initial any of the terms.

[3] Two days later, work release case manager Mike Peeler met with Holmes and

performed an initial assessment and explained the center’s procedures. Holmes

Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1812 | February 28, 2017 Page 2 of 6 got a job outside the center and worked a shift that ended at 11:00 p.m. Peeler

gave Holmes “ninety minutes to ride a bicycle” back to the center after his shift

“or two hours to get back by bus.” Tr. at 22. On September 11, Peeler met

with Holmes, who demonstrated awareness of how to schedule excused

absences from the center. At 12:50 that afternoon, Holmes left the center to go

to work and did not return. He was arrested over two weeks later.

[4] On September 16, 2015, the State charged Holmes with level 6 felony failure to

return to lawful detention. On November 2, 2015, Holmes filed a motion for

discovery requesting the names and statements of the State’s intended witnesses

as well as any documents that the State intended to use in its prosecution. Trial

was set for June 16, 2016. The State did not provide Holmes with a copy of the

work release contract until June 15 and did not provide him with its witness

and exhibit list until the morning of trial. Holmes filed a motion in limine

requesting the exclusion of documents or witnesses not identified prior to trial,

which the trial court denied. During trial, Holmes renewed his motion in

limine and unsuccessfully objected to the testimony of two of the State’s three

witnesses and to the contract, which was the State’s only exhibit. Holmes did

not object to Peeler’s testimony, however. The jury found Holmes guilty as

charged, and he was sentenced to two years executed.

Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1812 | February 28, 2017 Page 3 of 6 Discussion and Decision

Section 1 – The trial court did not abuse its discretion in admitting the State’s belatedly disclosed evidence. [5] Holmes contends that the trial court erred in admitting the State’s belatedly

disclosed evidence. A trial court has the discretion to exclude a belatedly

disclosed witness when there is evidence of bad faith on counsel’s part or a

showing of substantial prejudice to the opposing party. Williams v. State, 714

N.E.2d 644, 651 (Ind. 1999), cert. denied (2000). The same is true for belatedly

disclosed evidence. Cook v. State, 675 N.E.2d 687, 691 (Ind. 1996).

“[G]enerally, a continuance rather than exclusion is the appropriate remedy in

this situation.” Id.

[6] Holmes has not established bad faith on the State’s part, nor has he shown that

he was prejudiced by the belated disclosure of the evidence. The State points

out that Holmes “cross-examined the witnesses and asked questions about the

contract during the State’s presentation of evidence and does not now specify

what additional information he could have presented had the evidence been

disclosed earlier.” Appellee’s Br. at 11. The State further observes that Holmes

did not object to Peeler’s testimony and therefore waived any challenge to its

admissibility on appeal. See Carter v. State, 634 N.E.2d 830, 832-33 (Ind. Ct.

App. 1994) (noting that limine ruling is not final ruling on admissibility of

evidence and that party must object at trial to preserve error for appeal). Also,

Holmes did not ask for a continuance to interview the witnesses or review the

Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1812 | February 28, 2017 Page 4 of 6 contract. Under these circumstances, we cannot say that the trial court abused

its discretion in admitting the challenged evidence. 1

Section 2 – Sufficient evidence supports Holmes’s conviction. [7] Holmes also contends that his conviction for level 6 felony failure to return to

lawful detention is not supported by sufficient evidence. “Sufficiency-of-the-

evidence claims face a steep standard of review: we consider only the evidence

and reasonable inferences most favorable to the convictions, neither reweighing

evidence nor reassessing witness credibility. We affirm the judgment unless no

reasonable factfinder could find the defendant guilty.” Griffith v. State, 59

N.E.3d 947, 958 (Ind. 2016).

[8] The State alleged that Holmes committed the crime by knowingly or

intentionally failing to return to lawful detention following temporary leave

granted for a specific purpose, i.e., employment. Appellant’s App. at 11; Ind.

Code § 35-44.1-3-4(c). “A person engages in conduct ‘knowingly’ if, when he

engages in the conduct, he is aware of a high probability that he is doing so.”

Ind. Code § 35-41-2-2(b). “A person engages in conduct ‘intentionally’ if, when

he engages in the conduct, it is his conscious objective to do so.” Ind. Code §

35-41-2-2(a). At trial, Holmes stipulated that he was in lawful detention at the

1 That said, we cannot condone the State’s inexcusable delay in responding to Holmes’s discovery request. One such delay may be considered an isolated oversight; multiple delays may be indicative of either incompetence or bad faith.

Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1812 | February 28, 2017 Page 5 of 6 work release center. On appeal, he argues that the State failed to prove that he

acted with criminal intent in failing to return to the center.

[9] We disagree. The evidence most favorable to the conviction is that Holmes

knew that he was required to return to the center within a certain time after his

shift and that failure to do so could subject him to criminal prosecution. Based

on that evidence, a reasonable inference could be drawn that Holmes acted with

criminal intent in failing to return to the center after his shift on September 11.

Holmes’s arguments to the contrary are merely requests to reweigh evidence

and reassess witness credibility, which we may not do. Holmes’s conviction is

affirmed.

[10] Affirmed.

Riley, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1812 | February 28, 2017 Page 6 of 6