MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Mar 15 2018, 9:15 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Denise L. Turner                                         Curtis T. Hill, Jr.
DTurner Legal LLC                                        Attorney General of Indiana
Indianapolis, Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Xavier Heckstall,                                        March 15, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1709-CR-2158
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Stanley E. Kroh,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1607-F1-29330



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2158 | March 15, 2018          Page 1 of 7
[1]   Xavier Heckstall was convicted of Level 3 Felony Kidnapping,1 Level 6 Felony

      Intimidation,2 Level 6 Felony Criminal Recklessness,3 Level 6 Felony Pointing

      a Firearm,4 Level 6 Felony Strangulation,5 and two counts of Level 1 Felony

      Rape.6 He appeals, arguing that the trial court erred by denying his motion for

      a continuance. Finding no error, we affirm.


                                                    Facts
[2]   Heckstall, T.C., and T.C.’s three children lived together in a three-bedroom

      apartment in Indianapolis. On July 26, 2016, Heckstall and T.C. began

      arguing. At some point, Heckstall took T.C. to an apartment next door, which

      belonged to Heckstall’s cousin. The couple continued arguing. Heckstall

      slapped T.C. and grabbed her by the throat, slammed her against the wall, and

      squeezed her throat until she could not breathe. He then went to the kitchen to

      retrieve a knife. When he returned to T.C., he held the knife against her body

      and acted like he was going to stab her in the stomach. Heckstall proceeded to

      put his hand up T.C.’s dress and touch her vagina over her underwear, put his




      1
          Ind. Code § 35-42-3-2(a).
      2
          Ind. Code § 35-45-2-1(a)(1).
      3
          I.C. § 35-42-2-2(a).
      4
          Ind. Code § 35-47-4-3(b).
      5
          I.C. § 35-42-2-9.
      6
          I.C. § 35-42-4-1(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2158 | March 15, 2018   Page 2 of 7
      fingers inside her vagina, and force her to perform and receive oral sex and

      sexual intercourse.


[3]   Afterwards, Heckstall and T.C. returned to their apartment. T.C. wanted to

      leave and started to pack, but Heckstall became angry, went to the closet, and

      got a gun. He held the gun to her head and her back while he made her go back

      to his cousin’s apartment. Eventually, Heckstall calmed down and the two

      returned to their apartment. One of T.C.’s children called the police.


[4]   Crime scene specialist Andrea Pierce investigated the crime scene. She went to

      Heckstall’s cousin’s apartment, where she found a knife in the kitchen and a

      firearm in the furnace closet. The firearm had a round in the chamber and

      bullets in the magazine.


[5]   On July 29, 2016, the State charged Heckstall with seven felonies. Heckstall’s

      jury trial took place on July 13-14, 2017. At the beginning of the trial, Heckstall

      asked for a continuance to review a crime lab packet that he had received from

      the State at approximately 4:50 p.m. on July 12, the day before trial. The

      prosecutor explained that although she had requested the lab packet about a

      week before the trial, a crime lab employee had overlooked her request, so the

      prosecutor did not receive it until around noon on July 12. The prosecutor was

      preparing witnesses at that time, and said that as soon as that preparation was

      complete, she “went straight on over to [defense counsel]’s office so that

      [defense counsel] could redepose” T.C. Tr. Vol. II p. 5. Another deposition of

      T.C. took place for about one and one-half hours.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2158 | March 15, 2018   Page 3 of 7
[6]   The prosecutor then stated that she had gone through the new lab packet and

      that it contained no new information, but instead, it was an extension of a

      crime lab report that Pierce had prepared and that had been provided to the

      defense earlier in the case. The prosecutor stated that the new lab packet

      contained crime scene diagrams and measurements, but that the State would

      not be introducing those documents into evidence at trial. The prosecutor

      acknowledged that the discovery was late, but noted that she received it late,

      too.


[7]   The trial court noted that the new lab packet included a laboratory examination

      report, laboratory notes, and a chain of custody report. It also included a

      compact disc that contained the full crime lab report that had already been

      discovered. Defense counsel asked for twenty-four hours to evaluate the new

      packet so that she would not be ineffective on behalf of Heckstall. The trial

      court ordered a recess, during which Heckstall had the opportunity to examine

      the packet, including the compact disc.


[8]   Following the recess, Heckstall stated that reviewing the lab packet was useful

      and that it included information that was in his favor and “particularly

      interesting, particularly about where things were found.” Id. at 13. The trial

      court noted that Pierce’s initial lab report and another lab report had been

      discovered in August 2016. The prosecutor stated that Pierce’s initial lab report

      detailed the location of where the knife and gun were recovered. The trial court

      then denied Heckstall’s motion for a continuance and asked the State to make



      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2158 | March 15, 2018   Page 4 of 7
       Pierce available for the defense to talk to before Pierce testified. The prosecutor

       replied that Pierce would be present that afternoon.


[9]    The case proceeded to trial, and the jury found Heckstall guilty as charged.

       On August 25, 2017, the trial court imposed an aggregate sentence of fifty

       years. Heckstall now appeals.


                                    Discussion and Decision
[10]   Heckstall argues solely that the trial court erred by denying his motion for a

       continuance. Trial courts have broad discretion in dealing with discovery

       violations by the State in the alleged late disclosure of evidence to the defense.

       Alcantar v. State, 70 N.E.3d 353, 356 (Ind. Ct. App. 2016). We may reverse the

       trial court’s decision regarding an alleged violation only if the trial court’s

       decision involved clear error and resulted in prejudice. Id. When a party has

       failed to comply with discovery procedures, “the trial court is usually in the best

       position to determine the dictates of fundamental fairness and whether any

       resulting harm can be eliminated or satisfactorily alleviated.” Wells v. State, 848

       N.E.2d 1133, 1143 (Ind. Ct. App. 2006), opinion corrected on reh’g, 853 N.E.2d

       143 (Ind. Ct. App. 2006). A continuance is usually the proper remedy for a

       discovery violation. Id. Although the withholding of material evidence by the

       prosecution may present grounds for reversal, an appellant must affirmatively

       show that there was error prejudicial to his substantial rights before reversal is

       warranted. Id. at 92.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2158 | March 15, 2018   Page 5 of 7
[11]   Here, the prosecutor received the lab packet at approximately noon on the day

       before the trial. She was preparing witnesses at that time, and as soon as that

       preparation was complete, she took the lab packet to Heckstall. In other words,

       she took the lab packet to Heckstall at her earliest convenience. No error

       occurs when the State provides a defendant evidence as soon as the State is in

       possession of requested evidence. Warren v. State, 725 N.E.2d 828, 832-33 (Ind.

       2000). The lab packet contained no material new information, but rather was

       an extension of Pierce’s crime lab report, which had already been discovered.

       Although Heckstall argues that Pierce’s notes in the new packet “regarding the

       location of certain items of evidence could have played a significant role in

       questioning the credibility of T.C.,” appellant’s br. p. 8, Pierce’s crime lab

       report that had already been provided included the locations where the knife

       and gun were recovered. Heckstall does not specify what or how information

       in the late-discovered packet could have helped his defense.


[12]   Further, after Heckstall received the lab packet, he spent one and one-half hours

       re-deposing T.C. Before the presentation of evidence at trial, the trial court

       ordered a recess during which Heckstall had the opportunity to examine the lab

       packet. The trial court asked the State to make Pierce available for the defense

       to talk to before she testified, and the State said that Pierce would be present

       that afternoon. The only new information in the packet was diagrams and

       measurements, and the State said that it did not plan to use that information

       during trial. Heckstall had all the relevant information before trial, including

       Pierce’s crime lab report, and had been able to depose Pierce before trial. In


       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2158 | March 15, 2018   Page 6 of 7
       short, the State did not withhold any material evidence from Heckstall, and

       Heckstall has not shown that he was prejudiced by the late discovery of the lab

       packet. The trial court did not err by denying Heckstall’s motion for a

       continuance.


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


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2158 | March 15, 2018   Page 7 of 7
