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.
Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015 Page 1 of 8 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
Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015 Page 2 of 8 [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
Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015 Page 3 of 8 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
Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015 Page 4 of 8 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.
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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.
Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015 Page 1 of 8 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
Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015 Page 2 of 8 [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
Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015 Page 3 of 8 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
Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015 Page 4 of 8 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
Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015 Page 5 of 8 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
Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015 Page 6 of 8 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.
Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015 Page 7 of 8 Najam, J, and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015 Page 8 of 8