                                                                              Feb 04 2016, 6:14 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
LANDON T. HARBERT                                          Gregory F. Zoeller
Steven Knecht                                              Attorney General of Indiana
Vonderheide & Knecht, P.C.                                 Justin F. Roebel
Lafayette, Indiana                                         Deputy Attorney General
ATTORNEY FOR APPELLANT                                     Indianapolis, Indiana
MALCOLM M. SMITH
Caroline B. Briggs
Lafayette, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Landon T. Harbert and                                      February 4, 2016
Malcolm M. Smith,                                          Court of Appeals Case No.
Appellants-Defendants,                                     79A02-1412-CR-874
                                                           Appeal from the Tippecanoe
        v.                                                 Superior Court
                                                           The Honorable Thomas H. Busch,
State of Indiana,                                          Judge
Appellee-Plaintiff                                         Trial Court Cause Nos.
                                                           79D02-1302-FB-6
                                                           79D02-1302-FB-5



Baker, Judge.




Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016                  Page 1 of 24
[1]   Landon Harbert appeals his conviction for Robbery,1 a class B felony, and the

      twenty-year sentence imposed by the trial court. Malcolm Smith, Harbert’s co-

      defendant, appeals his convictions for two counts of Robbery,2 a class B felony.


[2]   Harbert and Smith both raise the following arguments:


                 (1) the trial court erred by denying the co-defendants’ motion to
                 dismiss the charges after a mistrial; and


                 (2) there is insufficient evidence supporting the respective robbery
                 convictions.


      Harbert raises the following additional arguments:

                 (1) the trial court committed fundamental error by admitting
                 evidence of a statement made by Smith to police officers that
                 Harbert insists implicated him in the underlying crimes; and


                 (2) the twenty-year sentence is inappropriate in light of the nature
                 of the offense and his character.


      Finally, Smith argues as follows:

                 (1) his right to due process was violated when he was not able to
                 be present at certain pretrial hearings;




      1
          Ind. Code § 35-42-5-1.
      2
          Id.


      Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016     Page 2 of 24
              (2) the trial court erred by denying his request for a continuance
              of the trial; and


              (3) the trial court erred by denying his post-trial motion to correct
              error based on newly discovered evidence.


      Finding no error, we affirm.


                                                      Facts
[3]   On October 23, 2012, two men robbed a money lending store located in a strip

      mall in West Lafayette. The first man, wearing dark or black clothing, a ball

      cap, and gloves, entered the store and stated he wanted to cash a check. As the

      store clerk began explaining the cash checking process, the second man,

      wearing dark, baggy clothing or a gray sweatsuit, entered the store and pulled a

      ski mask over his face. The first man, who was holding a small silver handgun,

      instructed the employee to do as the second man asked. The second man

      ordered the clerk to open her cash drawer and give him the money inside of it.

      She complied, giving the two men approximately $1500 in cash.


[4]   During this altercation, a second clerk entered the store from the back and a

      customer entered from the front door. The man with the gun took a cell phone

      from the customer. The men ordered the two clerks and the customer into the

      store’s back room. Eventually, the two men left and one of the clerks called

      911.


[5]   Outside, employees of an adjacent business observed two men enter a gray

      Dodge Durango with a breast cancer awareness license plate. The vehicle then

      Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016   Page 3 of 24
      drove away at a high rate of speed. One of these witnesses described the men as

      wearing gray and black hooded sweatshirts.


[6]   Responding police officers recovered the following items in nearby roadways

      within approximately a half of a mile of the robbery: a pair of high top

      sneakers, sweatpants, a hat, and a South Pole brand 5XL sweatshirt. The

      sneakers matched a description of the suspects’ sneakers provided by one of the

      clerks. Inside the sweatpants was a wallet containing Smith’s social security

      card and an Indiana Works identification card. A hair recovered from the pants

      contained Smith’s DNA.


[7]   Police were able to identify the Dodge Durango as a vehicle belonging to

      Kristin Harbert, who is Harbert’s wife. When questioned by police about their

      whereabouts that day, Kristin and her friend, Megan Simpson, initially lied.

      Both women deleted their text messages from that day, and records show that

      some of those messages were to and from Harbert and Smith. When officers

      described the sweatshirt they had recovered, Simpson stated that Harbert

      owned that sweatshirt and that Kristin usually kept it in her vehicle.

      Eventually, Kristin and Simpson told police officers that they had gotten a call

      from Harbert’s brother, Shawn, that day, indicating that the keys to Kristin’s

      vehicle were in Indianapolis. Kristin and Simpson later retrieved the keys from

      a bush at a Steak ‘n Shake restaurant. The Dodge Durango was later recovered

      in an impound lot near Smith’s residence in Indianapolis and appeared to have

      been burned.        One witness testified that she had seen Harbert driving a dark-

      colored Dodge Durango a few days before the robbery.

      Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016   Page 4 of 24
[8]    Phone records for October 23, 2012, showed that Harbert’s phone was near

       Lafayette in the morning, travelled to the east side of Indianapolis, returned to

       near Lafayette, and then returned to the east side of Indianapolis that afternoon.

       Smith’s phone remained in Indianapolis during the time of the robbery, but

       records show calls between Smith and Harbert on the morning of the robbery

       and after the robbery. Also, records show calls between Smith and Harbert’s

       brother, Shawn, on the night of the robbery. Additionally, phone records show

       calls and text messages between Smith and Simpson during the afternoon and

       evening after the robbery.


[9]    Approximately one week after the robbery, West Lafayette Police Officer Troy

       Harris contacted Smith about the recovered wallet. Smith denied any

       involvement in the robbery. He told Officer Harris that he and Harbert had

       grown up together. Smith said that someone had stolen his wallet three or four

       weeks earlier around the same time he had last seen Harbert, Harbert’s brother,

       and a group of other people who they had been with that day. Smith did not

       report the theft to the police. When Officer Harris stated that Smith’s wallet

       was found at the scene of the robbery, Smith replied, “Well, that just told me

       something right there . . . Who the hell stole my wallet.” Ex. 76RT at 5.


[10]   On February 14, 2013, the State charged Harbert and Smith each with two

       counts of class B felony robbery and two counts of class C felony theft. In April

       2013, the State added charges of class B felony conspiracy to commit robbery to

       each defendant and alleged that Smith was a habitual offender.



       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016   Page 5 of 24
[11]   Before the first trial, the trial court granted a motion in limine barring evidence

       regarding the co-defendants’ prior arrests. At the trial, which commenced in

       September 2013, Officer Harris testified regarding the way in which he

       identified the Dodge Durango:


               Harris:           . . . we started looking for a suspect vehicle that I
                                 thought I might be familiar with.


               State:            And you had the description of that vehicle?


               Harris:           I did, yes.


               State:            Okay. And had you recognized that vehicle?


               Harris:           I did recognize that vehicle.


               State:            As belonging to whom?


               Harris:           Krist[i]n Young [Harbert].


               State:            Okay. And did you acquire any information to
                                 verify that?


               Harris:           The reason I knew or had a suspicion that it
                                 belonged to Krist[i]n . . . is that the defendant
                                 Malcolm Landon [sic] had actually been arrested
                                 out of that vehicle . . . .


       Tr. p. 287-88. Both defendants moved for a mistrial. In response, the

       prosecutor explained that he was attempting to elicit information about the


       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016        Page 6 of 24
       Durango’s BMV records. The deputy prosecutor acknowledged that he had not

       specifically instructed Officer Harris to avoid mentioning the arrest, but

       explained that he did not believe such a warning was required due to “the

       nature of the case and the . . . [officer’s] experience.” Id. at 290. The trial court

       granted the mistrial.


[12]   Before the second trial, both defendants moved to dismiss all charges on the

       basis of double jeopardy. The trial court denied the motion to dismiss. The

       second trial ended in another mistrial after the jury deadlocked.


[13]   At a January 2014 status hearing, when the State confirmed its intentions to

       proceed with a third trial, the trial court informed Smith that he has a right to

       an appointed attorney if he could not afford to hire his own attorney. Smith

       indicated that he planned to hire an attorney. The trial court warned Smith that

       it would not allow the matter to “just linger on very long” and set another

       hearing in two weeks. Id. at 1186. At the next hearing, Smith stated that he

       had already selected an attorney, who would be in place by the end of

       February. Based on that representation, the trial court scheduled trial for June

       2, 2014. On April 4, 2014, Smith told the court that his attorney would soon be

       appearing and that the attorney was aware of the trial date. The court warned

       Smith that the trial would go forward whether counsel had appeared or not. In

       early May 2014, the attorney had still not filed an appearance but Smith

       indicated that he had the money together to pay the retainer, so the trial court

       granted a trial continuance until August 4, 2014. On May 28, 2014, the private

       attorney told the court that he would not be representing Smith because Smith

       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016   Page 7 of 24
       had failed to pay him. At that time, the trial court appointed an attorney to

       represent Smith, leaving in place the August 2014 trial date. At some point

       following his appointment, Smith’s attorney requested a continuance, which the

       trial court denied.


[14]   On May 4, 2014, Harbert filed a pro se motion to sever the joint prosecutions.3

       The trial court denied the motion.


[15]   The third jury trial took place on August 4-7, 2014. Following the trial, the jury

       found both defendants guilty as charged. On September 16, 2014, the trial

       court sentenced Smith to concurrent terms of twenty years imprisonment for

       each of the two counts of class B felony robbery. 4 The trial court also adjudged

       Smith to be a habitual offender and enhanced the sentence by ten years as a

       result, for an aggregate term of thirty years imprisonment. On November 25,

       2014, the trial court sentenced Harbert to twenty years imprisonment for one

       count of class B felony robbery.5 Both defendants now appeal.




       3
        Eventually, the trial court appointed an attorney for Harbert and denied the remainder of Harbert’s pro se
       motions as moot.
       4
           The trial court vacated the convictions for theft and conspiracy to commit robbery.
       5
           The trial court vacated Harbert’s other convictions.


       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016                       Page 8 of 24
                                     Discussion and Decision
                      I. Arguments Raised By Both Appellants
                                         A. Double Jeopardy
[16]   Smith and Harbert argue that principles of double jeopardy required dismissal

       after the first mistrial. Both the United States and Indiana Constitutions forbid

       the State from placing a person twice in jeopardy. U.S. Const. amend. V; Ind.

       Const. Art. I, § 14. Retrial following a defendant’s successful mistrial motion is

       only barred where the government’s conduct is responsible for the defendant’s

       mistrial motion. Butler v. State, 724 N.E.2d 600, 603 (Ind. 2000). The essential

       inquiry is whether the prosecutor brought about the mistrial motion; that is,

       whether the prosecutor acted with the intent to cause termination of the trial by

       provoking or goading the defendant into moving for a mistrial. Willoughby v.

       State, 660 N.E.2d 570, 576 (Ind. 1996). If the prosecutor acted with the

       requisite intent, then double jeopardy bars a retrial. Wilson v. State, 697 N.E.2d

       466, 472 (Ind. 1998). These rules have been codified at Indiana Code section

       35-41-4-3, which provides as follows:

               (a)      A prosecution is barred if there was a former prosecution
                        of the defendant based on the same facts and for
                        commission of the same offense and if:


                                                         ***


                        (2)      the former prosecution was terminated after the jury
                                 was impaneled and sworn or, in a trial by the court
                                 without a jury, after the first witness was sworn,
       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016   Page 9 of 24
                                  unless (i) the defendant consented to the
                                  termination or waived, by motion to dismiss or
                                  otherwise, his right to object to the termination . . . .


                (b)      If the prosecuting authority brought about any of the
                         circumstances in subdivisions (a)(2)(i) through (a)(2)(vi) of
                         this section, with intent to cause termination of the trial,
                         another prosecution is barred.


       Here, because the defendants moved for mistrial, they are not entitled to relief

       under subsection (a). But they argue that they are entitled to relief under

       subsection (b) because the prosecutor, in eliciting the complained-of testimony

       from Officer Harris, acted with intent to cause termination of the trial.


[17]   We find our Supreme Court’s opinion in Willoughby to be controlling. In

       Willoughby, the defendant requested and received a mistrial when a police

       officer made an improper reference to a polygraph examination when testifying.

       660 N.E.2d at 575-76. The trial court permitted retrial and our Supreme Court

       affirmed, observing that there was no evidence that the prosecutor intended to

       cause the mistrial, that the prosecutor colluded with the officer to cause the

       mistrial, or that the officer knew his comments would likely cause a mistrial.

       Id. at 576.6




       6
         To the extent that Smith argues that retrial should be prevented where a police officer testifies in a manner
       that goads a defendant to request a mistrial, we note that both Willoughby and Indiana Code section 35-41-4-3
       refer only to the prosecutor. Moreover, there is no evidence in the record that, in fact, Officer Harris
       intended to goad the defendants into requesting a mistrial.

       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016                       Page 10 of 24
[18]   In this case, as in Willoughby, there is no evidence that the prosecutor intended

       to cause a mistrial, that the prosecutor colluded with Officer Harris, or that

       Officer Harris knew that his comments would cause a mistrial. The prosecutor

       had not advised Officer Harris to refrain from testifying about the prior arrests,

       but did not believe that an advisement was necessary given the officer’s

       professional experience. Moreover, the prosecutor was trying to elicit

       testimony regarding the vehicle’s BMV records, rather than the prior arrests, in

       questioning Officer Harris. Under these circumstances, we find that the trial

       court did not err by denying the motion to dismiss the charges following the

       first mistrial.


[19]   Harbert argues that he should be afforded greater protections by virtue of the

       Indiana Constitution. In support of this argument, he cites to Oregon’s

       interpretation of an identical constitutional provision that bars retrial in cases

       where the prosecutor demonstrated indifference to mistrial or reversal. State v.

       Kennedy, 666 P.2d 1316, 1326 (Or. 1983). We decline to adopt the Oregon

       interpretation, but note that even if we did, it would not aid the defendants

       here. There is no evidence in the record that the prosecutor demonstrated

       indifference to mistrial or reversal. Consequently, this argument is unavailing,

       and we decline to reverse on this basis.


                                               B. Sufficiency
[20]   Both appellants argue that the evidence is insufficient to support their

       convictions for class B felony robbery. When reviewing the sufficiency of the


       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016   Page 11 of 24
       evidence supporting a conviction, we will neither reweigh the evidence nor

       assess witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).

       We will consider only the evidence supporting the judgment and any

       reasonable inferences that may be drawn therefrom, and we will affirm if a

       reasonable trier of fact could have found the defendant guilty beyond a

       reasonable doubt. Id.


[21]   To convict Harbert and Smith of class B felony robbery, the State was required

       to prove beyond a reasonable doubt that they knowingly or intentionally took

       property from another person by using or threatening the use of force on any

       person, or by putting any person in fear, while armed with a deadly weapon.

       I.C. § 35-42-5-1.7 Both Harbert and Smith contend that the State failed to prove

       beyond a reasonable doubt that they were the individuals who committed the

       robbery. It is well established that circumstantial evidence alone may be

       sufficient to sustain a conviction. E.g., Green v. State, 808 N.E.2d 137, 138 (Ind.

       Ct. App. 2004). When the evidence of identity is not entirely conclusive, the

       weight to be given to the identification evidence is left to the determination of

       the jury, as determining identity is a question of fact. Whitt v. State, 499 N.E.2d

       748, 750 (Ind. 1986).


[22]   At the most general level, the appellants generally fit the physical descriptions

       provided by the eye witnesses: they are both Black men who are over six feet



       7
        We cite to and apply the version of the robbery statute that was in effect at the time the alleged offenses
       were committed.

       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016                         Page 12 of 24
       tall. The perpetrators were seen leaving the scene of the crime in a Dodge

       Durango that belonged to Harbert’s wife. Harbert had been seen driving that

       vehicle a few days before the robbery. That same vehicle was found later that

       day, burned, a few miles from Smith’s residence. Harbert and Smith are

       childhood friends, who have remained in touch through their adulthood.


[23]   On streets within the vicinity of the robbery, law enforcement officers found

       “fresh” clothing that appeared to be recently discarded. Tr. p. 1333-35. The

       sweatpants found by the officers contained a hair with Smith’s DNA as well as

       Smith’s wallet containing his identification cards. The best friend of Harbert’s

       wife identified the grey South Pole sweatshirt as belonging to Harbert; she

       further testified that the sweatshirt was usually kept in Kristin’s Dodge

       Durango.


[24]   Phone records established that Harbert’s movements were consistent with the

       opportunity for both men to complete the robbery. Specifically, the phone

       moved as follows on October 23, 2013, the day of the robbery:


            In the early morning hours, the phone was in Lafayette.
            Around 9:50 a.m., the phone traveled to the north side of Indianapolis
             around 9:50 a.m., and ended up near Smith’s house on the east side of
             Indianapolis at 10:19 a.m.
            The phone returned to Lafayette by 11:37 a.m. The timestamp on the
             surveillance video of the robbery indicates that the robbery occurred
             around 12:47 p.m.
            The cell phone returned to the east side of Indianapolis near Smith’s
             home by 2:16 p.m.



       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016   Page 13 of 24
       The records for Smith’s phone indicate no outgoing activity between 10:21 a.m.

       and 2:28 p.m. on that day, which would be consistent with Smith leaving his

       phone in Indianapolis while committing the robbery. Additionally, phone

       records show the following:


            Phone calls between Harbert and Smith before and after the robbery.
            Phone calls between Smith and Harbert’s brother, Shawn, in the evening
             after the robbery.
            Phone calls and text messages between Smith and Kristin’s friend,
             Simpson (who went with Kristin to retrieve Kristin’s keys in
             Indianapolis) during the afternoon and evening after the robbery.

       Simpson testified that she had never met Smith and was not familiar with his

       phone number. The evidence of the calls between Smith and Simpson supports

       the State’s theory that Harbert was using Smith’s phone to communicate with

       Kristin regarding retrieval of her keys after the robbery.


[25]   Furthermore, the record reveals that Harbert had been regularly attending

       college classes through October 22, 2013, but he quit attending classes

       altogether the same day as the robbery. Although Smith stated that he had lost

       his wallet a few weeks before the robbery, he did not report his social security

       card or Indiana Works card as missing until after the robbery. Finally, Kristin

       and Simpson initially lied to police about their whereabouts on October 23,

       2012, and both deleted text messages from their phones, which included text

       messages from Harbert and Smith. The jury could have reasonably inferred

       that the false statements and deleted texts were meant to protect Harbert.




       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016   Page 14 of 24
[26]   Harbert argues that there is insufficient evidence supporting a conclusion that

       the Dodge Durango driven by the perpetrators was the same vehicle that

       belonged to his wife. We disagree, inasmuch as Officer Harris testified

       unequivocally that they were, in fact, the same vehicle. Moreover, the

       circumstances of Kristin’s Dodge Durango going missing the same day as the

       robbery and ending up burned near Smith’s house in Indianapolis readily

       support an inference that it was the same vehicle.


[27]   Smith argues that the State’s evidence did not overcome his alibi defense. His

       alibi witness, however, did not testify unequivocally. The witness testified that

       he was unsure whether Smith was at his house on October 23, 2012, instead

       merely testifying that Smith was at his house most mornings. We find that the

       State’s evidence did, in fact, overcome this alibi evidence. Smith also argues

       that the State failed to establish the time of the robbery, meaning that it could

       not have overcome his alibi evidence. We disagree. The surveillance video

       timestamp reveals that the robbery occurred at 12:47 p.m. on October 23, 2012.

       And in any event, Smith failed to support his alibi defense with any evidence

       showing his location at any time on October 23, 2012, meaning that the State

       needed to introduce only a modicum of evidence to refute the defense. We do

       not find Smith’s alibi defense to be a compelling reason to overturn this verdict.


[28]   While all of the above evidence is circumstantial, as noted above,

       circumstantial evidence alone may sustain a conviction. And in this case, there

       is a wealth of circumstantial evidence indicating that Harbert and Smith were

       the individuals who committed the robbery. We find that as a whole, the jury

       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016   Page 15 of 24
       could have reasonably inferred from the above circumstantial evidence that

       Harbert and Smith committed the robbery, and decline to reverse on this basis.


                                      II. Harbert’s Arguments
                  A. Admission of Smith’s Statement to Police
[29]   Harbert argues that the trial court committed fundamental error when it

       admitted into evidence a statement made by Smith to police officers. Because

       Harbert did not object to the admission of this evidence, he must establish

       fundamental error to prevail, meaning that he must show that the trial court

       erred by not sua sponte raising the issue because the alleged error was a blatant

       violation of due process and presented an undeniable and substantial potential

       for harm. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). Fundamental error will

       be found only in egregious circumstances. Id.


[30]   Initially, we note that not only did Harbert’s counsel not object to the admission

       of this evidence, she explicitly requested a limiting instruction—before the

       evidence was introduced—that Smith’s statement could not be considered as

       evidence against Harbert.8 The trial court agreed and provided the requested

       admonishment. Tr. p. 1463-64. At most, therefore, any error in the admission

       of this evidence was invited error, not fundamental error. See Witte v. Mundy ex




       8
         Harbert argues that this was not invited error because counsel was merely trying to make the best of a bad
       situation by requesting the limiting instruction. But inasmuch as counsel had the opportunity to request a
       limiting instruction before the evidence was introduced, she also had an opportunity to object to its admission
       altogether. She did not do so. Therefore, any error in its admission was invited.

       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016                       Page 16 of 24
       rel. Mundy, 820 N.E.2d 128, 133 (Ind. 2005) (holding that a party may not take

       advantage of an error that she invites).


[31]   Waiver and invited error notwithstanding, we observe that the complained-of

       evidence consisted of a statement made by Smith to a police officer that

       someone had stolen his wallet three or four weeks earlier, around the last time

       he had seen Harbert, Harbert’s brother, and “all the fellows that was with us

       that day.” Ex. 75RT at 9-10. Smith later stated that if his wallet was found at

       the scene of the robbery, then the person who stole his wallet may be

       implicated. Ex. 76RT at 5.


[32]   The United States Supreme Court has held that, in a joint trial, admission of

       one defendant’s confession that implicates a co-defendant is a violation of the

       second defendant’s Sixth Amendment right to confront witnesses. Fayson v.

       State, 726 N.E.2d 292, 294 (Ind. 2000). A statement implicates this rule if it

       “facially incriminates” another defendant. Id.


[33]   Here, Smith’s statement to the police does not facially implicate Harbert in the

       robbery. Indeed, it does not even suggest that Smith had any knowledge of the

       robbery. Instead, Smith reported that a few weeks before, his wallet had been

       stolen around the time he had spent time with Harbert, Harbert’s brother, and

       some other individuals. He then suggested that whoever stole his wallet may be

       implicated in the robbery. Smith never, however, accused Harbert of stealing

       the wallet or of being involved in the robbery. We do not find that the

       admission of this evidence implicates the rule applied in Fayson, and we


       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016   Page 17 of 24
       certainly do not find that its admission constituted fundamental error.

       Therefore, we decline to reverse on this basis.


                                          B. Appropriateness
[34]   Next, Harbert argues that the twenty-year sentence imposed by the trial court is

       inappropriate in light of the nature of the offense 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).


[35]   Harbert was convicted of a class B felony, meaning that he faced a sentence of

       six to twenty years, with an advisory term of ten years. Ind. Code § 35-50-2-

       5(a). The trial court imposed a maximum twenty-year term.


[36]   As for the nature of the offense, Harbert victimized the owners of the store, the

       store employees, and the unlucky customer who walked in on the robbery. He

       held them at gunpoint, greatly frightening them, and took the customer’s cell

       phone. After the robbery, he attempted to hide the crime from law enforcement

       by discarding his clothing and burning the vehicle. We acknowledge that the



       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016   Page 18 of 24
       nature of the offense is not the worst of the worst, but must also consider

       Harbert’s character in evaluating the sentence.


[37]   Harbert has a significant criminal history. As a juvenile, he was twice

       adjudicated delinquent, and one of the adjudications was for child molestation.

       During his juvenile placements, he violated both probation and house arrest.

       As an adult, he has amassed a significant—and serious—criminal history,

       including a prior conviction for murder and, during the pendency of the

       litigation of the instant offenses, he was convicted of domestic battery, criminal

       mischief, false informing, and driving while suspended. Harbert admits to a

       history of drug use, including daily marijuana use at the time he committed the

       robbery. He also admits to many years of membership in the Gangster

       Disciples gang.


[38]   While the nature of the offense may not be the worst of the worst, Harbert’s

       character very nearly is. Harbert has been breaking the law since he was a

       minor. He even took another human life, and was released from incarceration

       with another chance to live his life in a way that refrained from hurting others

       and breaking the law. But despite the many opportunities he has been afforded

       to live a law-abiding life, he has continued to show a disrespect for the rule of

       law and his fellow citizens. Under these circumstances, we do not find the

       twenty-year sentence to be inappropriate in light of the nature of the offense and

       his character.




       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016   Page 19 of 24
                                      III. Smith’s Arguments
                                     A. Presence at Hearings
[39]   First, Smith argues that he had a right to be present at Harbert’s pretrial

       hearings. Specifically, Smith seems to focus on hearings related to a motion to

       sever the two defendants that had been filed by Harbert.


[40]   Initially, we note that Smith raises this claim for the first time on appeal,

       meaning that he has waived it. Washington v. State, 808 N.E.2d 617, 625 (Ind.

       2004). Moreover, the basis of Smith’s argument appears to be that he would

       have joined in Harbert’s motion to sever. But Smith, who was eventually

       represented by counsel, did not ever file his own motion to sever. Furthermore,

       there is no evidence that, had Smith been present at the hearings, the trial court

       would have granted severance.


[41]   Waiver notwithstanding, we note that Smith has cited to no authority standing

       for the propositions that (1) he is entitled to appear in person at every hearing;

       and (2) he is entitled to appear in person at every hearing for a co-defendant.

       Instead, “a defendant is guaranteed the right to be present at any stage of the

       criminal proceeding that is critical to its outcome if his presence would

       contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730,

       745 (1987). Here, Smith has failed to establish that his presence would have

       contributed to the fairness of the hearings regarding Harbert’s motion to sever.

       We also again emphasize that, in any event, Smith never even filed a motion to

       sever. We see no reason to conclude that Smith’s presence at the hearings on

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       Harbert’s motion was necessary to ensure the fairness of the process, nor that

       his absence hampered his ability to defend against the charges or hindered a fair

       and accurate determination of the issues at trial. We decline to reverse on this

       basis.


                                      B. Motion to Continue
[42]   Next, Smith argues that the trial court erred by denying his motion to continue

       the trial. The denial of a non-statutory request for a continuance is committed

       to the trial court’s discretion, and we will reverse only for an abuse of that

       discretion. Maxey v. State, 730 N.E.2d 158, 160 (Ind. 2000). Requests for

       continuances are not generally favored and will be granted only in the

       furtherance of justice on a showing of good cause. Clark v. State, 539 N.E.2d 9,

       11 (Ind. 1989).


[43]   Here, the timeline leading up to trial was as follows:


            At a January 2014 status hearing, the trial court informed Smith that he
             had a right to an appointed attorney. Smith indicated he planned to hire
             one, and the trial court warned Smith that it would not allow the matter
             to “just linger on very long.” Tr. p. 1186.
            At the next hearing, Smith represented that he had selected an attorney,
             who would be in place by the end of February. The trial court scheduled
             trial for June 2, 2014.
            On April 4, 2014, Smith told the trial court that his attorney would soon
             be filing his appearance. The trial court warned Smith that trial would
             proceed whether counsel had appeared or not.
            In early May 2014, the attorney had still not filed an appearance. Smith
             told the court that he had raised the money to pay the attorney’s retainer.
             The trial court granted a continuance of the trial until August 4, 2014.


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            On May 28, 2014, the attorney told the trial court that he would not be
             representing Smith because Smith had not paid him. At that time, the
             trial court appointed an attorney to represent Smith.
            The appointed attorney requested a continuance, which the trial court
             denied, and trial took place as scheduled beginning August 4.

       For months, Smith delayed, despite the trial court’s caution that trial would

       proceed as scheduled and the trial court’s statement that an attorney would be

       appointed for Smith if he could not afford to hire one. And even though the

       trial court was reluctant to continue the matter, it granted one continuance

       based upon Smith’s representation that he had finally raised the money to retain

       an attorney.


[44]   Had Smith not delayed for so long, his appointed attorney would have had

       much more time to prepare for trial. But even at the late date of the

       appointment, trial counsel still had two months to prepare. Smith provided no

       compelling examples of how additional time would have benefited his defense.

       See Clark, 539 N.E.2d at 11 (holding that a defendant must make a specific

       showing that additional time requested would have aided him in order to show

       that the trial court abused its discretion in denying motion to continue). Smith

       directs our attention to a defense that was not raised at trial, but does not

       explain why this defense could not have been prepared in the two months

       provided. Given Smith’s own delays and the lack of a showing that additional

       time would have benefited his defense, we do not find that the trial court

       abused its discretion in denying his motion to continue the trial.




       Court of Appeals of Indiana | Opinion 79A02-1412-CR-874 | February 4, 2016   Page 22 of 24
                                  C. Motion to Correct Error
[45]   Finally, Smith argues that the trial court erred by denying his post-trial motion

       to correct error based upon newly-discovered evidence. A trial court is vested

       with the discretion to deny a motion to correct error alleging newly-discovered

       evidence, and we will reverse only for an abuse of that discretion. Bradford v.

       State, 675 N.E.2d 296, 302 (Ind. 1996); see also Ind. Trial Rule 59 (governing

       motions to correct error).


[46]   Motions for a new trial based on newly-discovered evidence are generally

       disfavored. Denney v. State, 695 N.E.2d 90, 93 (Ind. 1998). To succeed, the

       defendant must satisfy a nine-part test, submitting proof that establishes:


                (1) that the evidence has been discovered since the trial; (2) that it
                is material and relevant; (3) that it is not cumulative; (4) that it is
                not merely impeaching; (5) that it is not privileged or
                incompetent; (6) that due diligence was used to discover it in
                time for trial; (7) that the evidence is worthy of credit; (8) that it
                can be produced upon a retrial of the case; and (9) that it will
                probably produce a different result.


       Id. The defendant bears the burden of showing that the newly discovered

       evidence meets all nine requirements. Godby v. State, 736 N.E.2d 252, 258 (Ind.

       2000).


[47]   Here, the newly discovered evidence consisted of media reports of three

       robberies occurring at Lafayette gas stations and a Lafayette check cashing

       business in October and November 2014. We do not find that this is

       “evidence” that is “worthy of credit” or that it could be produced on retrial.
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       Instead, these unsubstantiated media reports constitute an attempt by Smith to

       seek aid from the court to conduct discovery in the hope that he would

       eventually find exculpatory evidence. But the motion to correct error standard

       requires that, to be entitled to a new trial, the defendant must already have the

       creditable, producible evidence on hand. Smith does not meet this test.


[48]   Furthermore, we note that the unsubstantiated media reports indicate that the

       suspect identified in the gas station robberies is not the same ethnicity as either

       appellant, nor does it match the description of the perpetrators provided at trial.

       And the check cashing robber was reported to be significantly shorter than

       Smith. Therefore, even if we were to find that this evidence is worthy of credit

       and producible, we would not find that it would probably produce a different

       result on retrial. In sum, we do not find that the trial court abused its discretion

       by denying Smith’s motion to correct error.


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


       Bradford, J., and Pyle, J., concur.




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