Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
                                                            FILED
                                                          Oct 04 2012, 9:10 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                        CLERK
law of the case.                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JEFFREY D. STONEBRAKER                           GREGORY F. ZOELLER
Clark County Chief Public Defender               Attorney General of Indiana
Jeffersonville, Indiana
                                                 GEORGE P. SHERMAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID ALLEN JONES,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 10A05-1201-CR-16
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE CLARK CIRCUIT COURT
                         The Honorable Vicki L. Carmichael, Judge
                              Cause No. 10D01-1104-FA-19




                                      October 4, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                  Case Summary and Issues

          Following a jury trial, David Jones was convicted of attempted murder, a Class A

felony, and sentenced to forty years. Jones appeals his conviction, raising two issues for

our review, which we restate as: 1) whether the trial court erred in denying his motion to

continue the trial; and 2) whether there was sufficient evidence to support his conviction.

Concluding that the trial court did not abuse its discretion in denying the late-filed motion

to continue and that sufficient evidence supports the conviction of attempted murder, we

affirm.

                                Facts and Procedural History

          On March 28, 2011, Jones, Brandon Henson. and a third, masked man entered the

home Joshua McLain shared with his mother, Sharon. Joshua and Sharon had seen a car

arrive at their home via a security camera feed, and when Jones tapped on the window

and asked to be let in, Joshua let him in through the kitchen door. Jones had rented a

room at the McLain house prior to this date. After he moved out, Jones’s step-daughter,

Paschaline, and Henson, her boyfriend, had lived there for several weeks in early 2011,

but had also moved out prior to this date.

          Jones left the door open and Henson and the third man also entered the house.

Henson shot Joshua, and as Joshua lost consciousness, he observed Henson and Jones put

on masks and walk down the hallway toward his mother’s bedroom.                 Joshua was

rendered a quadriplegic as a result of the gunshot wound.

          Sharon, armed with a handgun, exited her bedroom when she heard what sounded

like two shots. Sharon saw two masked men in the hallway, one of whom raised his gun

and fired at her. Sharon believed the man who fired was Jones, based upon her previous
                                              2
acquaintance with him in comparison with the physical size of the shooter. Sharon fired

one shot in return and ran back into her bedroom to call 911.

        The shooting was apparently precipitated by an accusation that Joshua had

molested Paschaline’s son several weeks earlier. Other violent incidents between Joshua

and Jones and Henson had occurred after the accusation and prior to the shooting.

        Jones was charged with the attempted murder of Sharon, a Class A felony.

Henson was charged with the attempted murder of Joshua, and at the State’s request, the

cases were joined for trial.1 Jones filed a motion for speedy trial, and a jury trial was set

for November 1, 2011.              In addition, a final pre-trial conference was scheduled for

October 18, 2011, at which time the trial court set a motion to continue/plea deadline of

October 21, 2011. On October 26, 2011, the trial court took judicial notice on the record

of the fact the motion to continue/plea deadline had expired and a jury had been called to

appear for selection on November 1. On October 31, 2011, Jones filed a motion to

continue the jury trial, alleging that on October 27, 2011, counsel learned that Joshua had

been deposed on October 21, 2011, and that she had not been invited to participate in the

deposition: “[i]n reading the written transcript, counsel for . . . Jones determined that

further investigation is necessary, to-wit: defense believes medical/hospital records of

Joshua McLain would provide impeachment material.” Appellant’s Appendix at 58.

Counsel also alleged that “in the last several days,” she had learned that police

interviewed the McLains’ next-door neighbor but the neighbor was not included in the

incident report as a witness. Id. Jones therefore requested a continuance of the jury trial


        1
            Henson has also appealed his conviction, and we issue an opinion in his case today, as well. See Henson
v. State, Cause No. 10A01-1201-CR-13 (Ind. Ct. App., Oct. 4, 2012).
                                                        3
in order to investigate Joshua’s medical records and the neighbor. At a final hearing on

pre-trial motions on October 31, 2011, counsel reiterated the reasons for the motion: that

“there appears to be some statements that were made in a transcript that was taken of

Joshua McLain that I think [Jones] needs to be prepared to respond to that, those

statements in some way” and that the McLains live in a duplex and “if” the neighbor on

the other side had been interviewed by police, she “was not listed as a witness on the

police incident report and I just would like the opportunity to follow up to see what, what,

if anything, she could add to the information that we have . . . .” Addendum to Transcript

at 5. The trial court denied the motion to continue.

       The jury trial began as scheduled on November 1, 2011, and on November 3,

2011, the jury found Jones guilty of attempted murder. Jones was sentenced to forty

years at the Department of Correction with five years suspended to probation. Jones now

appeals. Additional facts will be supplied as necessary.

                                   Discussion and Decision

                                    I. Motion to Continue

                                   A. Standard of Review

       Indiana Code section 35-36-7-1 provides the procedure to be followed in seeking a

continuance because of the absence of evidence or of a witness. See Ind. Code § 35-36-

7-1(a), (b). Section 35-36-7-1(d) also provides that a defendant “must file an affidavit for

a continuance not later than five (5) days before the date set for trial. If a defendant fails

to file an affidavit by this time, then he must establish, to the satisfaction of the court, that

he is not at fault for failing to file the affidavit at an earlier date.” When a defendant’s

motion to continue satisfies the statutory criteria, the defendant is entitled to a
                                               4
continuance as a matter of right. Byrd v. State, 707 N.E.2d 308, 311 (Ind. Ct. App.

1999). Jones acknowledges, however, that he did not meet all of the requirements of

section 35-36-7-1 and that “the trial court was not under an obligation to grant his

request.” Appellant’s Brief at 9.

       Where a motion for continuance is filed on non-statutory grounds or fails to meet

the statutory requirements, we review the trial court’s decision to grant or deny the

continuance for an abuse of discretion. Tharpe v. State, 955 N.E.2d 836, 843 (Ind. Ct.

App. 2011), trans. denied. An abuse of discretion occurs when a decision is clearly

against the logic and effect of the facts and circumstances before the court or where the

record demonstrates prejudice to the defendant from a denial of the continuance. Id.

Continuances to allow additional time for preparation are generally disfavored in criminal

cases. Id.

                                 B. Denial of Continuance

       Jones contends the trial court abused its discretion in denying his motion to

continue because information gained by allowing additional time for investigation “may

have created doubt about [his] guilt.” Appellant’s Br. at 6. Jones cites our supreme

court’s statement in Flowers v. State, that when a continuance is at the trial court’s

discretion, the trial court “should give heed to the diverse interests of the opponent of the

motion which would be adversely impacted by altering the schedule of events as

requested in the motion, and give heed as well to the diverse interests of the movant to be

beneficially impacted by altering the schedule.” 654 N.E.2d 1124, 1125 (Ind. 1995)

(quoting Vaughn v. State, 590 N.E.2d 134, 135 (Ind. 1992)).


                                             5
       Jones acknowledges his case had been pending for over six months at the time he

requested the continuance. On August 16, 2011, his case was set for trial on December 6,

2011. As a consequence of filing a request for speedy trial on October 6, 2011, his trial

date was moved up to November 1, 2011. Nonetheless, he had five months to prepare

even prior to the speedy trial request, which only advanced his trial date by one month.

There was ample time for Jones to depose Joshua, to seek discovery of his hospital and

medical records, and to have investigated the neighbor as a potential witness. The

probable cause affidavit states that “officers were dispatched to [ ] Kenwood Drive Apt

A” in reference to a shooting. Appellant’s App. at 10. That neighbors could have been in

close proximity at the time of the shooting was evident from the face of the probable

cause affidavit and would have been known to Jones as he had stayed at the McLains’

residence. Moreover, the State noted at the October 31, 2011, hearing that “the police

talk to different people and anybody who has relevant or inculpatory or [exculpatory]

information, they know to put on their reports. So, if it wasn’t included, I don’t have any

reason to believe there’s anything wrong with the case.” Addendum to Tr. at 5-6.

       None of the reasons offered by Jones in his motion to continue were such that a

continuance was appropriate on the literal eve of trial, and he has not alleged that he was

prejudiced by the denial of a continuance such that he was not able to present a full and

fair defense without the information. See Tharpe, 955 N.E.2d at 843. The trial court did

not abuse its discretion in denying the late-filed motion to continue.




                                             6
                               II. Sufficiency of Evidence

                                  A. Standard of Review

       Our standard of review for sufficiency claims is well settled. In reviewing a claim

challenging the sufficiency of the evidence, we do not reweigh the evidence or reassess

the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct. App. 2010),

trans. denied. We consider only the evidence most favorable to the judgment and the

reasonable inferences drawn therefrom. Id. We will affirm if the evidence and those

inferences constitute substantial evidence of probative value to support the verdict. Id.

                            B. Evidence of Attempted Murder

       Jones contends the State failed to prove by sufficient evidence that he was the

person who shot at Sharon or that he had the intent to kill her. To convict Jones of Class

A felony attempted murder as charged here, the State had to prove beyond a reasonable

doubt that Jones “with the intent to commit Murder, to-wit: intentionally killing Sharon

McClain [sic], did engage in conduct that constituted a substantial step toward the

commission of Murder, to-wit: by shooting at Sharon McClain [sic] with a handgun.”

Appellant’s App. at 8; see Ind. Code §§ 35-41-5-1, 35-42-1-1.            A conviction for

attempted murder requires proof of a specific intent to kill. Mendenhall v. State, 963

N.E.2d 553, 568 (Ind. Ct. App. 2012), trans. denied. Intent to kill may be inferred from

the deliberate use of a deadly weapon in a manner likely to cause death or serious injury,

for instance, by firing a weapon in the direction of the victim. Henley v. State, 881

N.E.2d 639, 652 (Ind. 2008).

       Here, the evidence demonstrated that Jones was present at the McLain home the

morning of the shootings. Both Joshua and Sharon testified they saw Jones arrive via a
                                             7
security camera. Jones was well-known to the McLains because he had lived with them

for quite a while. Jones himself testified he was at the house when Joshua was shot,

although he testified that he had arrived on his own to retrieve some things he had left

there and that while he was in the kitchen with Joshua, two masked men entered the

house, shot Joshua, and headed toward the hallway, at which point he ran from the house.

Jones also testified that he was upset with Joshua because he believed Joshua had

molested his grandson, and he admitted that he had assaulted him just a few days prior.

Joshua testified that after he was shot, he saw Jones put on a ski mask and move with

Henson toward the hallway leading to Sharon’s bedroom. Sharon testified that one of the

masked men in the hallway fired a shot toward her. A bullet was recovered from her

bedroom door.      Although Sharon testified she could “not say one hundred percent

definitively” that the shooter was Jones, she knew Jones was in her home, recognized the

shooter’s eyes as Jones’s, and the shooter fit Jones’s size, being 5’10” or 5’11” and 175

pounds. Tr. at 171, 175. Jones testified that he did not own a gun, and Sharon testified

that she had never known him to have a gun, but Joshua testified that Jones “had threats

of being able to have a gun . . . .” Id. at 86.

       The evidence most favorable to the jury’s verdict indicates that Jones was at the

McLain home during the shooting and had a motive to participate in the violence. The

evidence is sufficient to establish that Jones was the shooter, acted with the specific intent

to kill, and took a substantial step toward the commission of murder when he fired a gun

down a hallway toward Sharon. See Kendall v. State, 790 N.E.2d 122, 130 (Ind. Ct. App.

2003) (evidence that victim was in clear view of two men in hooded sweatshirts with

guns when they fired their weapons and that the defendants had a motive for the shooting
                                                  8
was sufficient to prove the men acted with specific intent to kill and took a substantial

step toward commission of murder), trans. denied.

                                       Conclusion

      The trial court did not abuse its discretion in denying Jones’s non-statutory motion

to continue filed on the eve of trial. Sufficient evidence was presented from which a

reasonable jury could find beyond a reasonable doubt that Jones committed attempted

murder and his conviction is therefore affirmed.

      Affirmed.

BAKER, J., and BRADFORD, J., concur.




                                            9
