MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Dec 31 2018, 11:16 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
Darren Bedwell                                          Curtis T. Hill, Jr.
Marion County Public Defender                           Attorney General
Appellate Division
Indianapolis, Indiana                                   Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Ronald Graham,                                          December 31, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1346
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Alicia A. Gooden,
Appellee-Plaintiff                                      Judge
                                                        The Honorable Richard
                                                        Hagenmaier, Commissioner
                                                        Trial Court Cause No.
                                                        49G21-1702-F3-6381



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1346 | December 31, 2018                Page 1 of 9
                                             Case Summary
[1]   Ronald Graham appeals his convictions for three counts of level 4 felony

      dealing in a narcotic drug. He argues that the trial court abused its discretion by

      denying his motion for a continuance. Concluding that Graham suffered no

      prejudice, we affirm.


                                 Facts and Procedural History
[2]   On January 24, 2017, Indianapolis Metropolitan Police Department (“IMPD”)

      Detective Daryl Jones, working undercover, telephoned Graham to arrange the

      purchase of two grams of heroin. Detective Jones and Graham met at an

      automotive shop parking lot. Graham arrived at the parking lot in a maroon

      Malibu. Graham got into Detective Jones’s vehicle, Detective Jones gave

      Graham $200, and Graham gave Detective Jones what appeared to be heroin.

      The same scenario was repeated on February 1 and 14, 2017, except that

      Graham was in different vehicles.


[3]   During all three transactions, Detective Jones wore audio recording equipment,

      and in the last transaction, he drove a car with a video camera inside. Detective

      Richard Hemphill conducted surveillance of all three buys and created a photo

      array from which Detective Jones identified Graham as the person who sold

      him heroin. Detective Hemphill learned where Graham lived and observed two

      of the vehicles that Graham had been seen in at that address.

      Detective Jones took the substances he procured from the three buys to the

      IMPD property room, where personnel performed preliminary testing, which


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1346 | December 31, 2018   Page 2 of 9
      reported that all three substances contained heroin (“IMPD preliminary lab

      reports”). The IMPD preliminary lab reports yielded the following weights: the

      substance from the January 24 transaction weighed 2.17 grams, and the

      substances from the February 1 and 14 transactions each weighed 1.65 grams.

      Appellant’s App. Vol. 2 at 23-24 (probable cause affidavit). On February 15,

      2017, police arrested Graham as he was leaving the auto shop parking lot. On

      February 16, 2017, the State charged Graham with level 3 felony possession of

      a narcotic drug, three counts of level 4 felony dealing in a narcotic drug, three

      counts of level 6 felony dealing in a narcotic drug, class A misdemeanor

      carrying a handgun without a license, and class B misdemeanor possession of

      marijuana.


[4]   On March 6, 2018, the State dismissed all the charges except the level 4 felony

      dealing charges, which alleged that Graham knowingly or intentionally

      delivered at least one but less than five grams of pure or adulterated heroin. On

      March 8, 2018, Graham’s trial was held. That morning, defense counsel

      requested a continuance because the State was planning to introduce late-

      discovered evidence regarding lab testing of the substances that Graham sold to

      Detective Jones during the three buys. The prosecutor explained to the trial

      court that the previous day, Detective Hemphill had informed him that the lab

      report that was disclosed to Graham during discovery did not contain results

      regarding the substances recovered during the three buys; instead, that lab

      report contained lab results regarding the drugs found on Graham when he was




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1346 | December 31, 2018   Page 3 of 9
      arrested.1 The prosecutor informed the trial court that as soon as he learned of

      the error, he informed defense counsel and had the Marion County Forensic

      Agency (“Crime Lab”) conduct testing overnight, which would be complete by

      the end of the hour. The prosecutor further stated that the IMPD preliminary

      lab reports indicated that the substances contained heroin, and he had already

      been informed by the Crime Lab’s head chemist, Glen Maxwell, that testing of

      one substance was complete and confirmed that it contained heroin. The

      prosecutor noted that defense counsel had stipulated to the admission of the

      IMPD preliminary lab reports.


[5]   Defense counsel objected that she had not had a chance to review the evidence

      or depose Maxwell and expressed concerns that the Crime Lab’s rushed testing

      might not have conformed to normal testing procedures. The trial court

      declined the initial request for a continuance but informed defense counsel that

      she would have an opportunity to talk to Maxwell before the presentation of

      evidence “for however long they needed,” and that it would revisit the matter if

      there was anything out of the ordinary regarding the procedures used by the

      Crime Lab to test the substances. Tr. Vol. 2 at 7.


[6]   After defense counsel spoke with Maxwell, she again objected to the Crime Lab

      reports and requested either exclusion of the reports or a continuance. Defense

      counsel conveyed the following concerns: the IMPD preliminary lab reports




      1
        The record does not reveal the nature of this lab report. Presumably, this lab report is not an IMPD
      preliminary lab report.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1346 | December 31, 2018                 Page 4 of 9
      showed different weights than the Crime Lab reports; other substances were

      present in the samples that the Crime Lab did not identify; and the Crime Lab

      testing was conducted too quickly. Defense counsel argued that the admission

      of the Crime Lab testing at that late stage left Graham with no opportunity to

      independently test the evidence, which impaired his right to confront and cross-

      examine witnesses. The trial court observed that defense counsel had received

      the IMPD preliminary lab reports, which showed that the substances from all

      three buys contained heroin and weighed more than one gram, yet the defense

      had not sought to test or weigh the evidence prior to trial. The trial court

      concluded that defense counsel’s concerns addressed the weight of the evidence

      rather than its admissibility and denied Graham’s request for exclusion and for

      a continuance.


[7]   During trial, Maxwell testified that the substance from the first buy contained

      heroin and weighed 1.35 grams, the substance from the second buy contained

      heroin and weighed 1.14 grams, and the substance from the third buy contained

      heroin and weighed 1.56 grams. Id. at 123-25. On cross-examination, defense

      counsel questioned Maxwell as to the typical time it would take to complete the

      testing done in this case and how long he actually took to perform the tests on

      the substances from the three buys. Id. at 126-27. Maxwell explained that it

      usually took an hour to perform the test on a substance and that he had spent

      about two hours testing the three substances in this case. Id. at 127. Defense

      counsel asked Maxwell whether there were other substances in the heroin, and

      he replied that there were but that he did not identify them. Id. Defense


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1346 | December 31, 2018   Page 5 of 9
       counsel then asked him if there was a test to identify the other substances and

       determine their weight and whether he had performed such a test in this case.

       Id. at 128. Maxwell answered that there was such a test, but that he had not

       performed it. Id. Defense counsel also asked Maxwell about the weight

       discrepancies between the testing done in the IMPD property room and the

       testing done by the Crime Lab and what would cause such discrepancies. Id.

       Maxwell answered that he had seen weight discrepancies in the past; he did not

       know what procedure the property room personnel used, but he did know that

       they sometimes weighed drug evidence in its packaging or simply performed a

       “rough weight.” Id. at 128-29.


[8]    In closing argument, defense counsel emphasized that Maxwell had just tested

       the substances that day, even though the buys occurred in January and

       February 2017; that it usually takes an hour to perform the testing, but Maxwell

       performed the testing on all three samples in two hours; and that there were

       impurities in the samples and Maxwell knew it. Id. at 144.


[9]    The jury found Graham guilty as charged. The trial court sentenced Graham to

       an aggregate term of twelve years. This appeal ensued.


                                      Discussion and Decision
[10]   Graham argues that the trial court erred in denying his motion for a

       continuance. “Rulings on non-statutory 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.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1346 | December 31, 2018   Page 6 of 9
       2000). “An abuse of discretion occurs where the decision is clearly against the

       logic and effect of the facts and circumstances before the trial court.” Tolliver v.

       State, 922 N.E.2d 1272, 1281 (Ind. Ct. App. 2010), trans. denied. “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.” Stafford v. State, 890 N.E.2d 744, 750 (Ind. Ct. App. 2008).

       Motions to allow more time for preparation “require a specific showing as to

       how the additional time would have aided counsel.” Zanussi v. State, 2 N.E.3d

       731, 734 (Ind. Ct. App. 2013).


[11]   To convict Graham of level 4 felony dealing in a narcotic drug, the State was

       required to prove that he knowingly or intentionally delivered a narcotic drug,

       pure or adulterated, weighing at least one gram but less than five grams. Ind.

       Code § 35-48-4-1(a)(c). Graham argues that there was a significant discrepancy

       in the weight of the substance from the first buy, namely that the IMPD

       preliminary lab report indicated that the substance weighed 2.17 grams, but the

       Crime Lab report indicated that it weighed only 1.35 grams. He contends that

       he could not have anticipated that the Crime Lab testing would yield such a

       different result, and a continuance “would have allowed counsel to investigate

       the discrepancy in the reported weight of the drug samples, perhaps by taking

       depositions of the property room staff, or to question the State’s newly-

       disclosed witness Maxwell about the testing process he used.” Appellant’s Br.

       at 12. The State argues that reversal is unwarranted because Graham is unable

       to demonstrate prejudice. We agree with the State.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1346 | December 31, 2018   Page 7 of 9
[12]   Here, the record shows that initially defense counsel had stipulated to the

       admission of the IMPD preliminary lab reports, which showed that the

       substances contained heroin and weighed between one and five grams. When

       the State sought to introduce the results of the Crime Lab testing through

       Maxwell, the trial court provided defense counsel the opportunity to speak with

       Maxwell before the presentation of evidence “for however long they needed.”

       Tr. Vol. 2 at 7. Defense counsel availed herself of the opportunity and was able

       to conduct an effective cross-examination of Maxwell during trial. Through her

       cross-examination, Maxwell admitted that he spent less than the typical amount

       of time on the testing; that there were impurities in the samples that had not

       been identified or weighed; and that the weight determined by the Crime Lab

       testing was different from that shown by the IMPD preliminary lab testing. In

       closing argument, defense counsel emphasized the last-minute and rushed

       character of the Crime Lab testing and the existence of impurities in the

       samples. She also stressed that the weight of the substance from the first buy as

       indicated by the Crime Lab testing was well below that indicated in the IMPD

       preliminary lab report, and she explained that the weight of the substances was

       important because Graham was charged with dealing between one and five

       grams. Although the two reports yielded different weights, both yielded

       weights that were within the charged range. Accordingly, we cannot say that

       Graham suffered any prejudice from the trial court’s denial of his motion for a

       continuance. Therefore, we affirm his convictions.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1346 | December 31, 2018   Page 8 of 9
[13]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1346 | December 31, 2018   Page 9 of 9
