MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                         Feb 28 2017, 9:22 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                        Curtis T. Hill, Jr.
Brooke Smith                                             Attorney General of Indiana
Keffer Barnhart LLP
Indianapolis, Indiana                                    Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nicholas Matthew Holmes,                                 February 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1608-CR-1812
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         82D03-1509-F6-5611



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1812 | February 28, 2017   Page 1 of 6
                                             Case Summary
[1]   Following a jury trial, Nicholas Matthew Holmes appeals his conviction for

      level 6 felony failure to return to lawful detention. He argues that the trial court

      erred in admitting the State’s belatedly disclosed evidence and that his

      conviction is not supported by sufficient evidence. We affirm.


                                 Facts and Procedural History
[2]   Holmes was sentenced to work release for a prior conviction and reported to the

      Vanderburgh County Therapeutic Work Release Center on August 24, 2015. A

      clerk presented him with a contract containing the terms and conditions of his

      placement. The contract states in pertinent part, “I understand that failure to

      return to the Work Release Facility as scheduled or being in an unauthorized

      location may subject me to criminal prosecution.” State’s Ex. 1. It also states,

      “I understand that I am not to leave my place of employment or any other

      approved location without prior approval of Vanderburgh County Community

      Corrections.” Id. And finally, it states, “This contract has been read and

      explained to me and my signature below acknowledges that I have fully read

      and fully understand all terms and conditions of this contract. I further

      acknowledge that I have initialed each and every term of this Work Release

      Contract as I have read and understood each term.” Id. Holmes signed the

      contract but did not initial any of the terms.


[3]   Two days later, work release case manager Mike Peeler met with Holmes and

      performed an initial assessment and explained the center’s procedures. Holmes


      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1812 | February 28, 2017   Page 2 of 6
      got a job outside the center and worked a shift that ended at 11:00 p.m. Peeler

      gave Holmes “ninety minutes to ride a bicycle” back to the center after his shift

      “or two hours to get back by bus.” Tr. at 22. On September 11, Peeler met

      with Holmes, who demonstrated awareness of how to schedule excused

      absences from the center. At 12:50 that afternoon, Holmes left the center to go

      to work and did not return. He was arrested over two weeks later.


[4]   On September 16, 2015, the State charged Holmes with level 6 felony failure to

      return to lawful detention. On November 2, 2015, Holmes filed a motion for

      discovery requesting the names and statements of the State’s intended witnesses

      as well as any documents that the State intended to use in its prosecution. Trial

      was set for June 16, 2016. The State did not provide Holmes with a copy of the

      work release contract until June 15 and did not provide him with its witness

      and exhibit list until the morning of trial. Holmes filed a motion in limine

      requesting the exclusion of documents or witnesses not identified prior to trial,

      which the trial court denied. During trial, Holmes renewed his motion in

      limine and unsuccessfully objected to the testimony of two of the State’s three

      witnesses and to the contract, which was the State’s only exhibit. Holmes did

      not object to Peeler’s testimony, however. The jury found Holmes guilty as

      charged, and he was sentenced to two years executed.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1812 | February 28, 2017   Page 3 of 6
                                     Discussion and Decision

           Section 1 – The trial court did not abuse its discretion in
              admitting the State’s belatedly disclosed evidence.
[5]   Holmes contends that the trial court erred in admitting the State’s belatedly

      disclosed evidence. A trial court has the discretion to exclude a belatedly

      disclosed witness when there is evidence of bad faith on counsel’s part or a

      showing of substantial prejudice to the opposing party. Williams v. State, 714

      N.E.2d 644, 651 (Ind. 1999), cert. denied (2000). The same is true for belatedly

      disclosed evidence. Cook v. State, 675 N.E.2d 687, 691 (Ind. 1996).

      “[G]enerally, a continuance rather than exclusion is the appropriate remedy in

      this situation.” Id.


[6]   Holmes has not established bad faith on the State’s part, nor has he shown that

      he was prejudiced by the belated disclosure of the evidence. The State points

      out that Holmes “cross-examined the witnesses and asked questions about the

      contract during the State’s presentation of evidence and does not now specify

      what additional information he could have presented had the evidence been

      disclosed earlier.” Appellee’s Br. at 11. The State further observes that Holmes

      did not object to Peeler’s testimony and therefore waived any challenge to its

      admissibility on appeal. See Carter v. State, 634 N.E.2d 830, 832-33 (Ind. Ct.

      App. 1994) (noting that limine ruling is not final ruling on admissibility of

      evidence and that party must object at trial to preserve error for appeal). Also,

      Holmes did not ask for a continuance to interview the witnesses or review the



      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1812 | February 28, 2017   Page 4 of 6
      contract. Under these circumstances, we cannot say that the trial court abused

      its discretion in admitting the challenged evidence. 1


          Section 2 – Sufficient evidence supports Holmes’s conviction.
[7]   Holmes also contends that his conviction for level 6 felony failure to return to

      lawful detention is not supported by sufficient evidence. “Sufficiency-of-the-

      evidence claims face a steep standard of review: we consider only the evidence

      and reasonable inferences most favorable to the convictions, neither reweighing

      evidence nor reassessing witness credibility. We affirm the judgment unless no

      reasonable factfinder could find the defendant guilty.” Griffith v. State, 59

      N.E.3d 947, 958 (Ind. 2016).


[8]   The State alleged that Holmes committed the crime by knowingly or

      intentionally failing to return to lawful detention following temporary leave

      granted for a specific purpose, i.e., employment. Appellant’s App. at 11; Ind.

      Code § 35-44.1-3-4(c). “A person engages in conduct ‘knowingly’ if, when he

      engages in the conduct, he is aware of a high probability that he is doing so.”

      Ind. Code § 35-41-2-2(b). “A person engages in conduct ‘intentionally’ if, when

      he engages in the conduct, it is his conscious objective to do so.” Ind. Code §

      35-41-2-2(a). At trial, Holmes stipulated that he was in lawful detention at the




      1
        That said, we cannot condone the State’s inexcusable delay in responding to Holmes’s discovery request.
      One such delay may be considered an isolated oversight; multiple delays may be indicative of either
      incompetence or bad faith.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1812 | February 28, 2017         Page 5 of 6
       work release center. On appeal, he argues that the State failed to prove that he

       acted with criminal intent in failing to return to the center.


[9]    We disagree. The evidence most favorable to the conviction is that Holmes

       knew that he was required to return to the center within a certain time after his

       shift and that failure to do so could subject him to criminal prosecution. Based

       on that evidence, a reasonable inference could be drawn that Holmes acted with

       criminal intent in failing to return to the center after his shift on September 11.

       Holmes’s arguments to the contrary are merely requests to reweigh evidence

       and reassess witness credibility, which we may not do. Holmes’s conviction is

       affirmed.


[10]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1812 | February 28, 2017   Page 6 of 6
