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:

RONALD K. SMITH                                     GREGORY F. ZOELLER
Muncie, Indiana                                     Attorney General of Indiana

                                                    ERIC P. BABBS
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                                                                              May 21 2013, 9:14 am


                               IN THE
                     COURT OF APPEALS OF INDIANA

KEVIN T. PRICE,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 18A02-1210-CR-809
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE DELAWARE CIRCUIT COURT
                         The Honorable Thomas A. Cannon, Jr., Judge
                                Cause No. 18C05-1202-FC-4



                                           May 21, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Kevin T. Price appeals his convictions and sentence for class D felony pointing a

firearm and class A misdemeanor battery resulting in bodily injury. He argues that the trial

court erred in excluding his alibi witness and in instructing the jury. He also asserts that his

sentence is inappropriate. Finding no error, we affirm.

                               Facts and Procedural History

       In the early morning hours of February 18, 2012, Price was drinking and doing drugs

in his apartment with Stephania Twilley and others. Twilley had contributed money to the

group’s drug activities but asked Price to return the money. An argument erupted. Twilley

left the apartment, and Price followed. He hit, choked, and kicked Twilley, causing her to

feel pain and fall to the ground. He dragged her across the ground, tearing her clothing. He

grabbed Twilley’s phone and purse and left. Twilley retrieved someone else’s phone to call

the police. Price reappeared with a handgun. Twilley ran. Price pointed the gun at her and

chased her for about a block. Price left the scene and was arrested later that day.

       On February 24, 2012, the State charged Price with class C felony robbery, class D

felony pointing a firearm, and class A misdemeanor battery resulting in bodily injury. On

April 23, 2012, a pretrial hearing was held, during which Price made no mention of an alibi

defense. On May 7, 2012, two days before trial, Price filed a notice of alibi and an unsworn

statement, stating that he could not work on finding his alibi witness until he was released

from jail on April 12, 2012, at which time he was able to access his cell phone and find the




                                               2
witness’s telephone number. Following a hearing, the trial court excluded Price’s alibi

witness.

       The jury was unable to reach a verdict on the robbery charge but found Price guilty of

the remaining charges. The trial court sentenced Price to three years executed for the class D

felony and one year executed for the class A misdemeanor battery, to be served concurrently.

Price appeals. Additional facts will be provided as necessary.

                                  Discussion and Decision

                                I. Exclusion of Alibi Witness

       Price challenges the trial court’s exclusion of his alibi witness. We review a trial

court’s decision to admit or exclude evidence for an abuse of discretion. Washington v.

State, 840 N.E.2d 873, 879 (Ind. Ct. App. 2006), trans. denied. “‘An abuse of discretion

occurs when the trial court’s action is clearly erroneous and against the logic and effect of the

facts and circumstances before it.’” Id. (quoting Farris v. State, 818 N.E.2d 63, 67 (Ind. Ct.

App. 2004), trans. denied 2005).

       Price’s notice of alibi, submitted on May 7, 2012, just two days before trial, read,

“That Jaime Phillips, [street address], Yorktown, IN 47396, was with the Defendant at the

time of the alleged offense.” Appellant’s App. at 27. Price’s notice was not in compliance

with Indiana Code Section 35-36-4-1, which requires that the notice of alibi be filed “no later

than twenty days prior to the omnibus date” (here April 6, 2012) and “include specific

information concerning the exact place where the defendant claims to have been on the date

stated in the indictment or information.” If a defendant fails to file the notice of alibi in


                                               3
accordance with Section 35-36-4-1, “and if the defendant does not show good cause for his

failure, then the court shall exclude evidence offered by the defendant to establish an alibi.”

Ind. Code § 35-36-4-3. The trial court concluded that Price failed to show good cause for his

noncompliance.

       On appeal, Price appears to argue that the exclusion of his alibi witness violated his

constitutional rights to compulsory due process, citing Washington, 840 N.E.2d at 883. He

contends that “there was no evidence that the late submission of the name of the witness was

due to willful or purposeful misconduct to gain tactical advantage.” Appellant’s Br. at 6.

Price did not raise this argument before the trial court and therefore has waived the issue.

See Washington, 840 N.E.2d at 880 (“‘[A] party may not present an argument or issue to an

appellate court unless the party raised the same argument or issue before the trial court.’”

(quoting Crafton v. State, 821 N.E.2d 907, 912 (Ind. Ct. App. 2005)).

       Waiver notwithstanding, Price’s argument fails. In Washington, we considered

whether the exclusion of third-party witness alibi testimony violated a defendant’s Sixth

Amendment compulsory due process rights. To determine whether a defendant’s rights were

violated, we adopted a balancing test in which we weigh the defendant’s “right to present

witnesses on his behalf against the State and the public’s interest in maintaining the integrity

of the adversary process.” Id. at 883. We concluded that there was no evidence that

Washington “willfully or purposely suppressed alibi evidence to gain a tactical advantage”

and that “although the State was prejudiced by Washington’s belated notice of alibi defense,

this prejudice was not severe” as Washington’s alibi witness’s testimony was not a complete


                                               4
alibi. Id. While it was a close case, we found Washington’s right to present witnesses on his

behalf slightly outweighed the State and public’s interest in maintaining the integrity of the

adversary process. Id. Therefore, we concluded that Washington’s compulsory due process

rights were violated. Id. at 883-84. However, we concluded that the error was harmless. Id.

at 884.

          In contrast to Washington, it is not as clear in this case that Price did not willfully or

purposely suppress alibi evidence to gain a tactical advantage. While Washington’s notice of

alibi defense was untimely, Price’s notice of alibi defense was both untimely and

substantively incomplete. Price’s notice provided only the name of the witness and not the

“exact place on the date stated in … the information” as required by Indiana Code Section

35-36-4-1. Further, Price’s alleged reasons for his late notice were set forth in an unsworn

statement, which failed to explain why it took nearly a month after his release from jail to file

the notice of alibi even though all he had to do was locate the phone number on his cell

phone. Also problematic is Price’s failure to inform the State of any alibi defense at the

pretrial hearing on April 23, 2012. Under the circumstances, it is reasonable to question

whether something was suspicious about the last-minute filing of his notice of alibi.

          In addition, the prejudice to the State in this case is greater than that in Washington.

Price’s alibi defense was a complete alibi. We conclude that Price’s right to present

witnesses on his behalf does not outweigh the State and public’s interest in maintaining the

integrity of the adversary process. Accordingly, the trial court’s exclusion of Price’s alibi

witness did not violate his compulsory due process rights.


                                                  5
                                    II. Jury Instructions

       Price tendered Jury Instruction 2.6, which read,

               If the evidence in this case is susceptible of two constructions or
       interpretations, each of which appears to you to be reasonable, and one of
       which points to the guilt of the Accused, and the other to his/her innocence, it
       is your duty, under the law, to adopt that interpretation which is consistent with
       the Accused’s innocence, and reject that which points to his/her guilt.

Appellant’s App. at 41. The trial court refused the instruction.

       We review a trial court’s decision to give or refuse a tendered instruction for an abuse

of discretion. Dora v. State, 783 N.E.2d 322, 326 (Ind. Ct. App. 2003), trans. denied. In

reviewing the trial court’s decision, “‘we consider (1) whether the instruction correctly states

the law, (2) is supported by the evidence in the record, and (3) is not covered in substance by

other instructions.’” O’Connell v. State, 970 N.E.2d 168, 172 (Ind. Ct. App. 2012) (quoting

Mumford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010)). A defendant is entitled to a

reversal if he affirmatively demonstrates that the instructional error prejudiced his substantial

rights. Buckner v. State, 857 N.E.2d 1011, 1015 (Ind. Ct. App. 2006).

       Here, the evidence did not support Price’s tendered instruction because the case did

not involve two constructions or interpretations of the evidence. During closing argument,

Price’s counsel argued that the State’s witnesses were not credible and that the State failed to

present sufficient evidence to establish the elements of the offenses. We agree with the State

that “Price, by asking the jury to reject the State’s evidence outright, was not offering a




                                               6
‘construction’ of that evidence.” Appellee’s Br. at 15. Accordingly, the trial court did not

abuse its discretion in refusing Price’s tendered Instruction 2.6.1

        Price also argues that the trial court abused its discretion in failing to instruct the jury

on class A misdemeanor pointing a firearm because there was no evidence that the gun was

loaded.2 Price failed to object to the trial court’s instruction defining pointing a firearm as a

class D felony and failed to tender a jury instruction on class A misdemeanor pointing a

firearm. Therefore, Price has waived this issue. See Ortiz v. State, 766 N.E.2d 370, 375 (Ind.

2002) (“Failure to tender an instruction results in waiver of the issue for review.”).

        Waiver notwithstanding, Price’s argument fails. In this case, an instruction on class A

misdemeanor pointing a firearm would have been improper because whether Price’s gun was

loaded or unloaded was not at issue. See Adkins v. State, 887 N.E.2d 934, 938 (Ind. 2008)

(“[I]f a defendant charged with Class D Felony Pointing a Firearm seeks instead to be

convicted of Class A Misdemeanor Pointing a Firearm, the defendant must place the fact of

the gun having been unloaded at issue if the State’s evidence has not done so.”). There was

no error here.

                                            III. Sentencing

        Price contends that the three-year executed sentence for his class D felony conviction

is inappropriate pursuant to Indiana Appellate Rule 7(B), which states, “The Court may


        1
          The State also defends the trial court’s refusal of Price’s tendered Jury Instruction 2.4. However,
Price does not challenge the trial court’s refusal of that instruction in his brief.
        2
          “A person who knowingly or intentionally points a firearm at another person commits a Class D
felony. However, the offense is a Class A misdemeanor if the firearm was not loaded.” Ind. Code § 35-47-4-3.


                                                     7
revise a sentence authorized by statute if, after due consideration of the trial court’s decision,

the Court finds that the sentence is inappropriate in light of the nature of the offense and the

character of the offender.” Price received the maximum sentence for a class D felony. See

Ind. Code § 35-50-2-7. Price has the burden to show that his sentence is inappropriate. See

Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

        As for the nature of the offense, Price not only pointed a firearm at Twilley, but he

also chased her down the street while pointing the gun at her. As for Price’s character, his

criminal history dates back to 1989 and includes convictions for seven felonies and thirteen

misdemeanors. His felony convictions include burglary, intimidation, and battery on a law

enforcement officer. He has violated probation and had it revoked in five previous cases. He

was on probation when he committed the present crimes. Price also failed to appear at his

original sentencing hearing and refused to cooperate with the preparation of the presentence

investigation report. We conclude that Price has failed to carry his burden to show that his

sentence is inappropriate.3

        Affirmed.

ROBB, C.J., and FRIEDLANDER, J., concur.




        3
          Price also argues that the trial court did not meet the requirements for weighing the aggravating and
mitigating circumstances, citing Powell v. State, 751 N.E.2d 311 (Ind. Ct. App. 2001). However, “‘the trial
court no longer has any obligation to weigh aggravating and mitigating factors against each other when
imposing a sentence’ and thus ‘a trial court can not now be said to have abused its discretion in failing to
properly weigh such factors.’” Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (quoting Anglemyer, 868
N.E.2d at 491).



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