MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Dec 18 2017, 10:53 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.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Bruce W. Graham                                         Curtis T. Hill, Jr.
Graham Law Firm P.C.                                    Attorney General of Indiana
Lafayette, Indiana
                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Bryan Lee Jordan,                                       December 18, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A05-1706-CR-1285
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Steven P. Meyer,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        79D02-1608-F2-21



May, Judge.



Court of Appeals of Indiana | Memorandum Decision 79A05-1706-CR-1285 | December 18, 2017       Page 1 of 13
[1]   Bryan Lee Jordan appeals the trial court’s denial of his motion for continuance

      and challenges the sufficiency of evidence supporting his conviction of Level 2

      felony possession of at least ten grams of methamphetamine with the intent to

      deliver. 1 We affirm.



                                Facts and Procedural History
[2]   On July 30, 2016, officers were dispatched to the home of Jamie Rowland on a

      complaint that her ex-boyfriend was attempting to enter her residence.

      Tippecanoe County Sheriff’s Deputy Dustin Oliver arrived at the home and

      observed a man in the driveway, later identified as Jordan, astride a motorcycle

      parked next to a car. 2 As Deputy Oliver walked toward the residence, Jordan

      “got off of the motorcycle and took a backpack off of his back and placed it in

      the vehicle that was sitting next to the motorcycle[.]” (Tr. at 29.) Tippecanoe

      County Sheriff’s Lieutenant John Ricks arrived around the same time, but

      approached from a different angle. He, too, saw Jordan “open[] the driver’s

      side door and set the back pack in the driver’s seat of that passenger car.” (Id. at

      63.)


[3]   When the officers checked the plates of the motorcycle, the “plate returned on a

      blue Yamaha.” (Id. at 65.) Lieutenant Ricks provided the vehicle identification




      1
          Ind. Code § 35-48-4-1.1 (2016).
      2
          The car was later identified as an Impala belonging to Rowland.


      Court of Appeals of Indiana | Memorandum Decision 79A05-1706-CR-1285 | December 18, 2017   Page 2 of 13
      number “to dispatch so that they could run it[.]” (Id. at 66.) Dispatch replied

      the motorcycle had been reported stolen. At that point, Deputy Oliver

      attempted to place Jordan under arrest, but Jordan resisted. Eventually,

      Deputy Oliver was able to effectuate the arrest. However, during the struggle,

      several items fell out of Jordan’s pockets, including the keys to the motorcycle.

      Lieutenant Ricks asked Rowland if the backpack belonged to her but she said it

      did not. Lieutenant Ricks emptied the backpack and found methamphetamine,

      marijuana, 3 a glass pipe, a torch, two digital scales, a baggy, a switch blade

      knife, and various toiletries.


[4]   The State charged Jordan with Level 2 felony dealing in methamphetamine,

      Level 4 felony possession of methamphetamine, 4 Class B misdemeanor

      possession of marijuana, 5 Class C misdemeanor possession of paraphernalia, 6

      Level 6 felony auto theft/receiving stolen auto parts, 7 Class A misdemeanor

      resisting law enforcement, 8 and a habitual offender enhancement. 9




      3
          Lab tests confirmed the substances were 12.85 grams of marijuana and 13.15 grams of methamphetamine.
      4
          Ind. Code § 35-48-4-6.1 (2014).
      5
          Ind. Code § 35-48-4-11 (2014).
      6
          Ind. Code § 35-48-4-8.3 (2015).
      7
          Ind. Code § 35-43-4-2.5 (2014).
      8
          Ind. Code § 35-44.1-3-1 (2016).
      9
          Ind. Code § 35-50-2-8 (2015).


      Court of Appeals of Indiana | Memorandum Decision 79A05-1706-CR-1285 | December 18, 2017      Page 3 of 13
[5]   The court assigned a public defender to Jordan in August 2016 and set the

      matter for a jury trial on December 13, 2016. On December 30, 2016, the jury

      trial was reset to April 11, 2017. After a pretrial conference on March 17, 2017,

      the trial court called the jury on March 20, 2017. On March 24, 2017, Jordan

      filed a motion to continue. Jordan contended he wished to hire Caroline Briggs

      as private counsel but Briggs was not available to try the case on April 11, 2017.


[6]   The trial court held a hearing on Jordan’s motion to continue. Jordan’s public

      defender and Briggs argued the State would be filing charges against Jordan for

      a separate incident, and Jordan wished to hire Briggs “to figure out what those

      charges are in dealing with a plea or potential plea [and] deal with all of his

      cases at once.” (Id. at 9.) The State objected to the motion to continue. It

      argued the April 11 date had been “acknowledged for jury trial[,]” (id. at 6),

      witnesses had already been subpoenaed, and Jordan had been “informed [at the

      pretrial conference] that if he hired private counsel that whoever he hired

      needed to be prepared to go to trial on the April 11th trial date.” (Id.) The trial

      court told Jordan he could hire private counsel, but it denied his motion to

      continue. Briggs did not enter her appearance for Jordan.


[7]   The jury found Jordan guilty on all counts. Based on double jeopardy

      concerns, the trial court vacated the Level 4 felony possession of

      methamphetamine charge and sentenced Jordan to twenty years for the Level 2

      felony dealing in methamphetamine, which it enhanced by six years for

      Jordan’s being an habitual offender. The court ordered Jordan to serve 180

      days for Class B misdemeanor possession of marijuana, sixty days for Class C

      Court of Appeals of Indiana | Memorandum Decision 79A05-1706-CR-1285 | December 18, 2017   Page 4 of 13
      misdemeanor possession of paraphernalia, two years for Level 6 felony auto

      theft, and one year for Class A misdemeanor resisting law enforcement, and the

      court ordered all of those sentences to be served concurrent with each other and

      with the Level 2 felony sentence. Thus, Jordan’s aggregate sentence is twenty-

      six years.



                                    Discussion and Decision
                                    Denial of Motion to Continue
      Whether the Trial Court’s Denial of Jordan’s Motion for Continuance Was an
                                  Abuse of Discretion

[8]   When, as here, a party moves for a continuance not required by statute, 10 we

      review the trial court’s decision for abuse of discretion. Flake v. State, 767

      N.E.2d 1004, 1008 (Ind. Ct. App. 2002). “An abuse of discretion occurs when

      the ruling is against the logic and effect of facts and circumstances before the

      court or where the record demonstrates prejudice from denial of the

      continuance.” Id. Continuances to allow more time for preparation are

      generally disfavored in criminal cases. Risner v. State, 604 N.E.2d 13, 14 (Ind.

      Ct. App. 1992), trans. denied.


[9]   The parties attended a pretrial conference on March 17, 2017, wherein both

      acknowledged the trial date of April 11, 2017. This acknowledgment assured




      10
           Neither party contends Jordan’s motion for continuance was pursuant to statute.


      Court of Appeals of Indiana | Memorandum Decision 79A05-1706-CR-1285 | December 18, 2017   Page 5 of 13
       the trial court the trial was going to occur and, based thereon, the trial court

       issued an “Order to Call Jury.” (App. Vol. II at 5.) On March 24, 2017, Jordan

       filed a motion for continuance, and the trial court held a hearing on the motion

       that day. Jordan’s attorney argued the motion should be granted because

       Jordan wished to hire Caroline Briggs, who was unavailable for trial on April

       11, 2017. Further, he argued more charges were being brought against Jordan,

       and Briggs wanted to be able to “deal with all of his cases at once.” (Tr. at 9.)


[10]   The State objected because the trial date had been acknowledged by the parties,

       subpoenas had been issued for witnesses, and the jury had been called.

       Additionally, the State argued “the court had told [Jordan] on at least one

       occasion that once the case [was] acknowledged for trial he needed to be

       prepared to go.” (Id. at 7.) The trial court denied the motion for continuance

       but told Briggs she was welcome to enter her appearance.


[11]   Jordan has not professed any prejudice resulted from the denial of his motion

       for continuance as required by the standard of review. See Flake, 767 N.E.2d at

       1008 (on appeal, appellant must demonstrate prejudice from the denial of the

       continuance). We conclude the trial court did not abuse its discretion in

       denying Jordan’s motion for continuance after he had acknowledged the trial

       date. See Lewis v. State, 730 N.E.2d 686, 690 (Ind. 2000) (court did not err in

       denying continuance when “time of dozens of prospective jurors summoned for

       the trial would have been wasted”).




       Court of Appeals of Indiana | Memorandum Decision 79A05-1706-CR-1285 | December 18, 2017   Page 6 of 13
               Whether the Trial Court’s Denial of Jordan’s Motion for Continuance
                   Amounted to a Violation of Jordan’s Constitutional Rights

[12]   The Sixth Amendment to the United States Constitution, applied to the States

       through the Fourteenth Amendment, guarantees the accused, in a criminal

       prosecution, shall “have the Assistance of Counsel for his defence.” U.S.

       Const. Amendment VI. Such a right to counsel of choice “has been described

       as an ‘essential component’ of the Sixth Amendment right to counsel[.]”

       Barham v. State, 641 N.E.2d 79, 82 (Ind. Ct. App. 1994). A denial of this right is

       reviewed to determine if the trial court acted unreasonably and arbitrarily. Id.

       However, this right is not absolute and the right must be exercised at the

       appropriate stage. Lewis, 730 N.E.2d at 689. “Continuances sought shortly

       before trial to hire a new attorney are disfavored because they cause substantial

       loss of time for jurors, lawyers and the court.” Perry v. State, 638 N.E.2d 1236,

       1241 (Ind. 1994).


[13]   Jordan argues the trial court unreasonably and arbitrarily interfered with his

       Sixth Amendment right to retain counsel of choice when it denied his motion

       for continuance. 11 He asserts these “charges had been pending for only a period

       of approximately eight months[,]” (Appellant’s Br. at 13), and the State “did

       not cite to any specific reason why prejudice would follow if a continuance was

       granted.” Id. He claims this denial “effectively prevented [him] from

       proceeding to trial with counsel of his own choosing.” (Id.) The State counters



       11
            Jordan does not make an Indiana Constitutional argument.


       Court of Appeals of Indiana | Memorandum Decision 79A05-1706-CR-1285 | December 18, 2017   Page 7 of 13
       that although Jordan’s motion for continuance was not as close to trial as many

       other cases wherein a denial of the continuance was deemed appropriate,

       Jordan had eight months to hire private counsel, he was represented by counsel

       at trial, and he does not show how the court’s ruling denied him a fair trial. 12


[14]   In Barham, five days before trial, new counsel for Barham filed an appearance

       and a motion for continuance so she could prepare for trial. Barham, 641

       N.E.2d at 81. As the trial court had previously told Barham any new attorney

       would have to be ready to for the previously scheduled trial, the trial court

       denied her appearance and her motion for continuance. Id. Although prejudice

       must be shown if a request is not filed in a timely fashion, we held it was not

       necessary to show prejudice for a timely request because the “requirement of a

       showing of prejudice is inextricably bound to the untimeliness of a request.” Id.

       at 83 n.6. As Barham’s counsel had offered to act as co-counsel to the public

       defender, she had “indicat[ed] that she could have been prepared for trial on the

       scheduled date.” Id. at 84. We held that, in that situation, the trial court’s

       denial of private counsel’s appearance was an unreasonable and arbitrary

       interference with Barham’s right to retain counsel. Id. at 84-85. However, in

       the present case, the trial court did not deny Briggs’ appearance. It only denied

       Jordan’s motion for continuance.




       12
         Jordan does not claim he was prejudiced by the denial of his motion. Rather, he asserts that if the trial
       court “unreasonably or arbitrarily interfere[d] with the right to retain counsel of choice, [the conviction]
       cannot stand, irrespective of whether the defendant has been prejudiced.” (Appellant’s Br. at 12-13) (citing
       Barham v. State, 641 N.E.2d 79, 82 (Ind. Ct. App. 1994)).

       Court of Appeals of Indiana | Memorandum Decision 79A05-1706-CR-1285 | December 18, 2017          Page 8 of 13
[15]   When reviewing denials of motions for continuance tied to prospective

       counsel’s appearance, we have distinguished Barham from other cases wherein

       counsel’s appearance was denied if it was contingent on a continuance. In

       Dickson v. State, 520 N.E.2d 101 (Ind. 1988), Dickson’s public defender filed a

       motion for continuance eight days prior to trial because “he had insufficient

       time to prepare a defense.” Id. at 105. One day prior to trial, Dickson filed

       another motion for continuance and moved to replace his public defender with

       private counsel. Id. The replacement by private counsel was contingent on the

       motion for continuance being granted. Id. The State objected because

       “witnesses had arrived or were scheduled to do so from various parts of the

       country[,]” id., one witness was difficult to keep track of, and Dickson had had

       “twelve months to employ private counsel[.]” Id. The trial court denied the

       motion for continuance. Id. We found no abuse of discretion in the denial of

       continuance due to “the length of time before trial and the fact that appellant’s

       counsel was able to interview witnesses before trial[.]” Id. As Dickson did not

       show he was prejudiced by the denial of the motion, we found no error. Id.


[16]   We find the present case to be more analogous to Dickson. The result in

       Barham, on which Jordan relies, rests on the denial of Barham’s prospective

       counsel’s appearance rather than the denial of his motion for continuance.

       Herein, the trial court did not deny the appearance of Jordan’s private counsel,

       Briggs. Although Jordan’s motion for continuance was not filed on the day of

       or the day before trial, his private counsel made her appearance contingent on

       the grant of the motion for continuance, the case had been pending for eight

       Court of Appeals of Indiana | Memorandum Decision 79A05-1706-CR-1285 | December 18, 2017   Page 9 of 13
       months, witnesses had been subpoenaed, and the jury had been called. Jordan

       had been told that after the trial date was acknowledged, any new counsel

       would need to be prepared to try the case on the scheduled date. During the

       hearing for the motion for continuance, the State noted Jordan’s trial “was the

       only case that acknowledge [sic] for trial on the April 11th trial date so if his case

       gets continued [the court] won’t have a trial that week[.]” (Tr. at 6.) We do not

       find the trial court acted unreasonably or arbitrarily when it denied Jordan’s

       motion for continuance. 13 See Dickson, 520 N.E.2d at 105 (no error when

       witnesses scheduled, case had been pending for twelve months, and no

       prejudice); see also Conrad v. State, 747 N.E.2d 575, 585 (Ind. Ct. App. 2001)

       (trial court did not act unreasonably when it denied a motion for continuance

       after the case had been scheduled for five months), superseded by statute on other

       grounds.


                                             Sufficiency of Evidence

[17]   When reviewing the sufficiency of evidence to support a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       fact-finder’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the

       fact-finder’s role, and not ours, to assess witness credibility and weigh the




       13
         We also note that because Jordan was warned that any prospective counsel would need to be prepared for
       the April 11, 2017, trial once it had been acknowledged, his motion for continuance was not timely; thus, he
       would need to show prejudice in order to prevail. As we noted, Jordan does not argue that he was
       prejudiced. See supra n.12. We decline to scour the record for such evidence on Jordan’s behalf. See Legacy
       Healthcare, Inc. v. Barnes & Thornburg, 837 N.E.2d 619, 639 (Ind. Ct. App. 2005) (appellate court does not
       search the record for evidence), reh’g denied, trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1706-CR-1285 | December 18, 2017       Page 10 of 13
       evidence to determine whether it is sufficient to support a conviction. Id. To

       preserve this structure, when we are confronted with conflicting evidence, we

       consider it most favorably to the fact-finder’s decision. Id. We affirm a

       conviction unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt. Id. It is therefore not necessary that the

       evidence overcome every reasonable hypothesis of innocence; rather, the

       evidence is sufficient if an inference reasonably may be drawn from it to support

       the fact-finder’s decision. Id. at 147.


[18]   To prove Jordan intended to distribute at least ten grams of methamphetamine,

       the State had to prove he “possesse[d], with intent to . . . deliver[,]

       methamphetamine, pure or adulterated [and] the amount of the drug involved

       [wa]s at least ten (10) grams.” Ind. Code §§ 35-48-4-1.1(a)(2) & (e) (2016). The

       State presented evidence Jordan had a large amount of cash, scales, and more

       than ten grams of methamphetamine.


[19]   “Intent is a mental function[.]” Isom v. State, 589 N.E.2d 245, 247 (Ind. Ct.

       App. 1992), trans. denied. Without an admission, “the trier of fact must resort to

       reasonable inferences based upon an examination of the surrounding

       circumstances to determine whether, from the person’s conduct and the natural

       consequences thereof, a showing or inference of intent to commit that conduct

       exists.” Id. Intent may be proven by circumstantial evidence. Mason v. State,

       532 N.E.2d 1169, 1171 (Ind. 1989), cert. denied 490 U.S. 1049 (1989). “The

       possession of a large amount of narcotics is circumstantial evidence of intent to

       deliver.” Id.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1706-CR-1285 | December 18, 2017   Page 11 of 13
[20]   Jordan argues it was possible the full amount of methamphetamine he

       possessed was for personal use. He argues that, contrary to caselaw, the State

       should be required to prove “that a person must possess with the intent to

       deliver – and the amount of the drug involved must be at least ten grams[.]”

       (Appellant’s Br. at 17) (emphasis in original). He argues our holding in

       Bookwalter v. State, 22 N.E.3d 735 (Ind. Ct. App. 2014), trans. denied, was

       “simply incorrect.” (Appellant’s Br. at 17.)


[21]   In Bookwalter, we held the enhancement requiring the amount of the drug be

       more than three grams was a separate subsection of the statute and did not

       “require proof of intent to deliver a specific weight of drugs.” Bookwalter, 22

       N.E.3d at 742. Consequently, the State was not required to prove Bookwalter

       actually delivered any specific amount of drugs; rather, it was only required to

       prove he possessed a specific amount of drugs. Therefore, we affirmed

       Bookwalter’s conviction.


[22]   We have held “that possession of a large amount of a narcotic substance is

       circumstantial evidence of intent to deliver.” Cline v. State, 860 N.E.2d 647, 650

       (Ind. Ct. App. 2007); see also Davis v. State, 791 N.E.2d 266, 270 (Ind. Ct. App.

       2003) (“The more narcotics a person possesses, the stronger the inference that

       he intended to deliver it and not consume it personally.”), trans. denied. We

       acknowledged, in Cline, that even a large amount of drugs, if packaged for

       personal use, does not establish intent to deliver. Cline, 860 N.E.2d at 650.

       Cline was charged with dealing marijuana. We also held “that possession of

       paraphernalia used to ingest the controlled substance at issue is more likely

       Court of Appeals of Indiana | Memorandum Decision 79A05-1706-CR-1285 | December 18, 2017   Page 12 of 13
       indicative of personal use than intent to deliver.” Id. However, in Cline, that is

       all he had: a pipe, rolling papers, a bag of marijuana, and “two bindles of

       methamphetamine.” (Id. at 648.) We held that if Cline had not actually

       delivered the marijuana to a third party, the evidence alone would not have

       supported his conviction.


[23]   Jordan did possess paraphernalia to ingest the methamphetamine but he also

       possessed a large amount of the drug, scales to weigh it, a large amount of cash,

       and at least one other empty baggie. The jury could reasonably infer he had

       intent to deliver. See Hazzard v. State, 642 N.E.2d 1368, 1370 (Ind. 1994)

       (possession of a relatively large quantity of drugs was sufficient to support the

       fact-finder’s conclusion the individual possessing that quantity intended to

       deliver it). Jordan’s arguments to the contrary are a request that we reweigh the

       evidence, which we cannot do. See Drane, 867 N.E.2d at 146 (appellate court

       cannot reweigh evidence or judge the credibility of witnesses).



                                               Conclusion
[24]   The trial court did not abuse its discretion when it denied Jordan’s motion for

       continuance and did not unreasonably or arbitrarily interfere with his ability to

       retain counsel of choice. The State presented sufficient evidence Jordan

       intended to deliver methamphetamine. Accordingly, we affirm.


[25]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 79A05-1706-CR-1285 | December 18, 2017   Page 13 of 13
