      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.

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      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


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[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

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      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


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       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


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       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


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       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.


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Najam, J, and Mathias, J., concur.




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