MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                    May 07 2015, 9:37 am
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
Daniel J. Vanderpool                                     Gregory F. Zoeller
Vanderpool Law Firm, P.C.                                Attorney General of Indiana
Warsaw, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Darrin C. Martin,                                        May 7, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         85A02-1410-CR-743
        v.                                               Appeal from the Wabash Circuit
                                                         Court.
                                                         The Honorable Robert R. McCallen,
State of Indiana,                                        III, Judge.
Appellee-Plaintiff                                       Cause No. 85C01-1310-FA-854




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 85A02-1410-CR-743 | May 7, 2015      Page 1 of 10
[1]   Darrin Martin appeals his convictions for Dealing in Methamphetamine 1 as a

      class A and a class B felony. Martin argues that the trial court erroneously

      denied two motions to continue his jury trial and that the evidence is

      insufficient to support his class A felony conviction. He also contends that the

      sentences imposed by the trial court are inappropriate in light of the nature of

      the offenses and his character. Finding no error, we affirm.


                                                    Facts
[2]   On June 19, 2013, the Wabash County Police Department’s Drug Task Force

      conducted a controlled buy of methamphetamine from Martin at his residence

      on Sinclair Street. A confidential informant (CI) working with the Drug Task

      Force purchased .19 grams of methamphetamine from Martin. There were

      children present in the house when the drug transaction occurred.


[3]   The CI later learned that Martin had moved to a new residence on Holiday

      Street. On June 26, 2013, the Drug Task Force conducted a second controlled

      buy using the same CI, who purchased .35 grams of methamphetamine from

      Martin on that occasion. There were again children present in the home during

      this transaction.


[4]   Wabash City Police Officer Matthew Rebholz measured the distance from the

      Holiday Park residence to the Wabash City Park, using two different routes to




      1
          Ind. Code § 35-48-4-1.1.


      Court of Appeals of Indiana | Memorandum Decision 85A02-1410-CR-743 | May 7, 2015   Page 2 of 10
      two different destinations in the park. The first measurement showed a distance

      of 223 feet between Martin’s residence and the park, and the second

      measurement showed a distance of 735 feet.


[5]   On October 24, 2013, the State charged Martin with class B felony dealing in

      methamphetamine for the first controlled buy and with class A felony dealing in

      methamphetamine for the second controlled buy. A public defender was

      appointed to represent Martin and entered an appearance on November 25,

      2013. Martin sought and received a continuance of his trial on February 28,

      2014. In April 2014, Martin’s public defender informed the trial court that

      Martin intended to hire private counsel. On May 5, 2014, Martin’s public

      defender again sought and received a continuance of the trial, again indicating

      that Martin planned to hire private counsel. At that time, the trial court set

      Martin’s trial for August 26, 2014.


[6]   On July 21, 2014, Martin’s public defender filed a motion to withdraw, which

      the trial court granted, and a private attorney entered an appearance on

      Martin’s behalf. Martin’s new attorney made an oral motion to continue the

      trial because he had just been retained. The State opposed the continuance and

      the trial court denied the motion. On August 15, 2014, Martin’s attorney

      renewed the motion to continue, which the State again opposed and the trial

      court again denied.


[7]   Martin’s jury trial took place as scheduled on August 25, 2014, and on August

      27, 2014, the jury found him guilty as charged. At the close of the September


      Court of Appeals of Indiana | Memorandum Decision 85A02-1410-CR-743 | May 7, 2015   Page 3 of 10
      22, 2014, sentencing hearing, the trial court sentenced Martin to eighteen years

      for the class B felony conviction and to thirty-eight years imprisonment for the

      class A felony conviction. The trial court suspended two years to probation and

      ordered that the sentences be served concurrently, for an aggregate thirty-six-

      year term. The trial court ordered that this sentence be served consecutive to a

      sentence Martin was serving for another cause. Martin now appeals.


                                       Discussion and Decision
                              I. Denial of Motions to Continue
[8]   First, Martin argues that the trial court erred by denying his July and August

      2014 motions to continue the trial. When, as here, a party seeks a continuance

      not required by statute,2 we review the court’s decision for abuse of discretion.

      Zanussi v. State, 2 N.E.3d 731, 734 (Ind. Ct. App. 2013). An abuse of discretion

      occurs only where the trial court’s ruling is clearly against the logic and effect of

      the facts and circumstances before it or the record demonstrates prejudice from

      the denial of the continuance. Id. Continuances to allow more time for

      preparation are generally disfavored in criminal cases. Id.


[9]   In this case, Martin sought and received continuances in February and May

      2014. His public defender informed the trial court in April that Martin intended

      to hire private counsel. Martin failed to do so, however, until July 2014, a mere




      2
          Neither party argues that Martin’s motions to continue were made pursuant to statute.


      Court of Appeals of Indiana | Memorandum Decision 85A02-1410-CR-743 | May 7, 2015           Page 4 of 10
       month before his scheduled jury trial. Our Supreme Court “has held a number

       of times that it is within a trial court’s discretion to deny a last-minute

       continuance to hire new counsel.” Lewis v. State, 730 N.E.2d 686, 689. The

       logical corollary to that holding is that it is also within a trial court’s discretion

       to deny a continuance to an attorney who was not retained until the last

       minute. It was Martin’s decision to delay the hiring of private counsel for

       months, until one month before his trial.3 Consequently, we find no abuse of

       discretion on this basis.


[10]   Likewise, Martin has failed to establish that he was prejudiced as a result of the

       denial of his motions to continue. While his attorney expressed concern about

       whether there was sufficient time to engage in discovery and prepare a defense,

       it is readily evident from the transcript that counsel was competent and zealous

       in his defense of Martin. Nearly all discovery was completed. Martin’s only

       specific allegation of prejudice is that his attorney was unable to fully

       investigate the CI’s criminal history for the purpose of impeachment. At trial,

       however, Martin’s attorney presented evidence that the CI had a criminal

       history, which was sufficient to raise the issue in his defense. We find no

       prejudice in this regard. Under these circumstances, we find that the trial court

       did not abuse its discretion in denying the two last-minute motions to continue

       the trial.




       3
           Martin has never argued that he did not have the financial ability to hire a private attorney.


       Court of Appeals of Indiana | Memorandum Decision 85A02-1410-CR-743 | May 7, 2015                    Page 5 of 10
                                             II. Sufficiency
[11]   Next, Martin contends that the evidence supporting his conviction for class A

       felony dealing in methamphetamine is insufficient. When we review a

       challenge to the sufficiency of the evidence, we neither reweigh the evidence

       nor assess witness credibility. McClellan v. State, 13 N.E.3d 546, 548 (Ind. Ct.

       App. 2014), trans. denied. Instead, we consider only the probative evidence

       supporting the conviction and the reasonable inferences that may be drawn

       therefrom. Id. If there is substantial evidence of probative value from which a

       reasonable factfinder could have drawn the conclusion that the defendant was

       guilty beyond a reasonable doubt, then the verdict will not be disturbed. Id.


[12]   To convict Martin of class A felony dealing in methamphetamine, the State was

       required to prove beyond a reasonable doubt that he knowingly or intentionally

       delivered or financed the delivery of methamphetamine within 1,000 feet of a

       public park. I.C. § 35-48-4-1.1. Martin’s sole argument on appeal is that the

       evidence is insufficient to establish that the park in question was a “public park”

       within the meaning of the statute.


[13]   During the trial, the State requested that the trial court take judicial notice of

       the fact that the Wabash City Park is a public park. A sidebar discussion

       occurred, much of which was inaudible and unable to be transcribed. From

       what is available in the transcript, however, we infer that Martin’s attorney had

       “no objection” to the request that the trial court take judicial notice, but was

       concerned about the eventual content of a jury instruction on the issue. The


       Court of Appeals of Indiana | Memorandum Decision 85A02-1410-CR-743 | May 7, 2015   Page 6 of 10
       trial court indicated that the issue of jury instructions could be addressed later.

       Subsequently, the following colloquy occurred in the jury’s presence:

               State:           At this time, the State would request that the court take
                                judicial notice of the fact that the Wabash City Park is
                                considered a public park, pursuant to [Indiana Evidence]
                                Rule 201(a). It’s a fact that is, I think, generally known
                                in the territorial jurisdiction of Wabash County.
               Court:           Uh, and I will note what we talked about up here on the
                                bench. Did you want to add anything to that?
               Defense:         No, Your Honor.
               Court:           All right. Um, [my] background is that I’ve lived in
                                Wabash all of my life, um, and had played ball at that
                                particular park. I’ve also been city attorney for fourteen
                                years and I’ve drafted ordinances related to that
                                territorial area. So I will take judicial notice of the fact
                                that the City Park, uh, that is the City Park if that is
                                what was requested. Um, you should understand, ladies
                                and gentlemen, this is a criminal [matter] though, and
                                I’m going to instruct you that you’re not required to
                                accept as conclusive any fact that has been judicially
                                noticed. Does that make sense? You can accept it or
                                reject it as you choose.
       Tr. p. 252-54.


[14]   Martin’s argument on this issue is somewhat difficult to discern. He does not

       contend that it was inappropriate for the trial court to take judicial notice of this

       fact. Instead, he appears to argue that because the trial court never said the

       phrase “public park,” the evidence was insufficient to establish that the park

       was, in fact, a public park. It is readily apparent from the context of the sidebar

       discussion and the conversation in front of the jury, however, that the trial court



       Court of Appeals of Indiana | Memorandum Decision 85A02-1410-CR-743 | May 7, 2015   Page 7 of 10
       did, indeed, take judicial notice of this fact. We decline to require that certain

       “magic words” be said when a trial court takes judicial notice of a fact.


[15]   Furthermore, final jury instruction number eight plainly states as follows: “As

       you may recall, the Court took Judicial Notice that the park in question is a Public Park.

       You may, but are not required to, accept as conclusive any fact judicially

       noticed.” Appellant’s App. p. 121 (emphasis added). Consequently, it is even

       more apparent that the trial court intended to, and did, take judicial notice of

       this fact. The fact that the trial court took judicial notice that Wabash City Park

       is a public park is sufficient evidence from which a reasonable juror could

       conclude that it is, in fact, a public park.


[16]   Martin appears to fold in a challenge to this jury instruction. He acknowledges

       that he failed to object to the instruction before the trial court and must establish

       fundamental error as a result. Perez v. State, 872 N.E.2d 208, 210 (Ind. Ct. App.

       2007). Martin contends, first, that the instruction does not adequately reflect

       what the trial court actually took judicial notice of. We disagree, as already

       noted. Second, Martin argues that this instruction impermissibly instructed the

       jurors that they were required to find one of the elements of the offense to be

       conclusively proved based on the judicial notice. It could not be plainer,

       however, that the jurors were instructed in precisely the opposite—and

       correct—way. In other words, they were instructed that they were not required

       to accept any fact judicially noticed as conclusive. We find no error, much less

       fundamental error, in this regard. In sum, we find that the evidence is sufficient



       Court of Appeals of Indiana | Memorandum Decision 85A02-1410-CR-743 | May 7, 2015   Page 8 of 10
       to support a conclusion that the Wabash City Park is a public park and also to

       support Martin’s conviction for class A felony dealing in methamphetamine.


                             III. Appropriateness of Sentence
[17]   Finally, Martin contends that the sentence imposed by the trial court is

       inappropriate in light of the nature of the offenses and his character. Indiana

       Appellate Rule 7(B) provides that this Court may revise a sentence if it is

       inappropriate in light of the nature of the offense and the character of the

       offender. We must “conduct [this] review with substantial deference and give

       ‘due consideration’ to the trial court’s decision—since the ‘principal role of

       [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

       ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).


[18]   A person who is convicted of a class A felony faces a sentence of twenty to fifty

       years, with an advisory term of thirty years. Ind. Code § 35-50-2-4. Here,

       Martin was sentenced to thirty-eight years for his class A felony conviction. A

       person who is convicted of a class B felony faces a sentence of six to twenty

       years imprisonment, with an advisory term of ten years. I.C. § 35-50-2-5.

       Martin received an eighteen-year term for his class B felony conviction.


[19]   As to the nature of the offenses, they were largely run-of-the-mill drug deals. A

       significant fact that must be taken into account, however, is that on both



       Court of Appeals of Indiana | Memorandum Decision 85A02-1410-CR-743 | May 7, 2015   Page 9 of 10
       occasions, there were children present in Martin’s home when he was dealing

       methamphetamine.


[20]   As to Martin’s character, we first note that he has not provided us with the

       Presentence Investigation Report on appeal. While we could find that he has

       waived his appropriateness argument as a result of his failure to provide us with

       an adequate record on appeal, we will attempt to address it with the record we

       have. See Davis v. State, 935 N.E.2d 1215, 1217 (Ind. Ct. App. 2010) (holding

       that it is a defendant’s duty to present an adequate record clearly showing the

       alleged error, and a failure to do so waives the argument). At the least, it is

       evident from the record that Martin has a prior conviction for felony burglary,

       that he was on probation for domestic battery at the time he committed the

       present offenses, and that he used marijuana while on bond in this case, thereby

       violating the terms of his pretrial release. He was also serving a sentence in

       another cause at the time of sentencing in this case. Furthermore, we again

       note that Martin was dealing drugs in the presence of his children, indicating a

       basic disregard for their health, safety, and well-being. He also failed to express

       remorse for his actions. Given all of these facts, we find that the aggregate

       thirty-six-year term imposed by the trial court is not inappropriate in light of the

       nature of the offenses and his character.


[21]   The judgment of the trial court is affirmed.


       Najam, J., and Friedlander, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 85A02-1410-CR-743 | May 7, 2015   Page 10 of 10
