MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 30 2019, 11:09 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Christopher Price                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Samantha M. Sumcad
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Patience Hall,                                          December 30, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1514
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Elizabeth Christ,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable Ronnie Huerta,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G24-1808-F6-026837



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019               Page 1 of 9
                                       Statement of the Case
[1]   Patience Hall (“Hall”) appeals, following a bench trial, her conviction for Level

      6 felony possession of cocaine.1 Hall argues that the trial court abused its

      discretion by denying her oral motion, made on the day of trial, to continue the

      bench trial. Concluding that there was no abuse of discretion, we affirm Hall’s

      conviction.


[2]   We affirm.


                                                     Issue
                     Whether the trial court abused its discretion by denying Hall’s
                     oral motion to continue the bench trial.



                                                     Facts
[3]   Around 3:00 a.m. on August 12, 2018, Hall asked a guy from the

      neighborhood, Keith Woodruff (“Woodruff”), to take her to Cedric Barnes’

      (“Barnes”) house. Woodruff, with Hall in the front passenger seat, drove to

      Barnes’ house on 30th Street in Marion County. When Woodruff pulled up to

      the curb, he “imped[ed] the flow of traffic on the eastbound lane of 30th Street”

      prompting Indianapolis Metropolitan Police Department Officer Abdessamed

      Boudaia (“Officer Boudaia”) to initiate a traffic stop. (Tr. Vol. 2 at 7). Officer

      Boudaia got identification from Hall and Woodruff, and he discovered that




      1
          IND. CODE § 35-48-4-6.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019   Page 2 of 9
      Hall had an outstanding warrant. Officer Boudaia approached the passenger

      side of the car, had Hall step out of the car, removed the purse that she had on

      her shoulder, and placed her in handcuffs. As part of a search incident to arrest,

      Officer Boudaia searched Hall’s purse and discovered 0.17 grams of cocaine.

      Woodruff, who had a valid license and no warrants, was released from the

      scene.


[4]   On August 15, 2018, the State charged Hall with Level 6 felony possession of

      cocaine. The following day, the trial court appointed counsel for Hall and that

      counsel represented Hall throughout the proceeding. Thereafter, Hall posted

      and was released on bond. During the ten months leading up to the trial, the

      trial court held eight pretrial conferences. Hall failed to appear for the fourth

      and fifth conferences, and the trial court issued a warrant for her arrest after

      each failure to appear.


[5]   The trial court held a bench trial on June 4, 2019. Prior to commencing the

      trial, the trial court asked Hall if she was ready for trial. Hall’s counsel initially

      responded, “Yes, Judge.” (Tr. Vol. 2 at 4). However, after the State had

      confirmed that it was ready to proceed with the bench trial, Hall’s counsel

      stated that Hall was not actually ready. Hall’s counsel indicated that Hall had

      sent counsel “a few emails over the weekend and informed [counsel] of the first

      and last name of a witness” who Hall thought “might come testify[.]” (Tr. Vol.

      2 at 4). Hall’s counsel stated that Hall had not given counsel an address, so

      counsel had “not filed anything in advance.” (Tr. Vol. 2 at 4). The trial court

      treated counsel’s statement as a request to continue the bench trial and denied

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019   Page 3 of 9
      Hall’s continuance request. Hall then asked the trial judge, “I don’t get to call .

      . . any witnesses for me?” (Tr. Vol. 2 at 4). The trial court responded:


              No ma’am, no. Today is the date of your trial. The State is
              ready. Everybody is here ready to proceed. You have had plenty
              of time to let your attorney know. You didn’t file anything in
              time. You are not going to get to call that witness for this trial,
              sorry.

      (Tr. Vol. 2 at 4-5). Hall’s counsel told the trial court that they were ready, and

      the trial court commenced the bench trial.


[6]   The State presented testimony from Officer Boudaia, who testified about

      conducting the traffic stop and then arresting Hall for an outstanding warrant.

      Officer Boudaia specifically testified that when he had Hall step out of the car

      to arrest her, she had a purse on her shoulder. A search of the purse incident to

      arrest revealed that there was 0.17 grams of cocaine in this purse.


[7]   Here, Hall testified on her own behalf, and her defense was that the purse

      containing the drugs did not belong to her. Hall testified that she “had no purse

      on [her]” and that she “didn’t have no drugs this time.” (Tr. Vol. 2 at 33). She

      also testified that she did not own a purse and had never owned a purse. As for

      Hall’s explanation regarding how Officer Boudaia had gotten the purse, she

      testified that Woodruff, upon his release from the scene, had driven down the

      street, put his car in reverse, backed up, and then handed a purse to the officer.

      Hall also told the trial court that she had been arrested over thirty times and

      that she had never had a purse when she had been arrested. Hall indicated, not

      in response to a question, that she had Barnes’ address in her phone and that
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019   Page 4 of 9
       Barnes “could have been a witness if [she] would have know that [she] . . . was

       able to have witnesses.” (Tr. Vol. 2 at 25). Hall stated that Barnes had been

       “outside on his porch” and had “witnessed everything that [had] happened.”

       (Tr. Vol. 2 at 25). She added that she did not know about the ability to have

       witnesses because she was “not an attorney[.]” (Tr. Vol. 2 at 25).


[8]    After Hall had completed her testimony, she asked the trial court, “Why can’t I

       have witnesses?” (Tr. Vol. 2 at 34). The trial court responded, “Ma’am, you

       just told the Court that you were arrested several times and now you are telling

       me that you don’t know anything about how the process works?” (Tr. Vol. 2 at

       34). Hall then replied, “I’ve always signed a plea for possession of cocaine or

       whatever so I c[ould] get out of jail so I could go get high.” (Tr. Vol. 2 at 34).

       The trial court, apparently treating Hall’s question about witnesses as a renewed

       request for a continuance, denied Hall’s request to continue the trial.


[9]    The State then called Officer Boudaia for rebuttal testimony. Officer Boudaia

       confirmed that Hall had had the purse on her shoulder when she got out of the

       car. The trial court found Hall guilty as charged, noting that it had found

       Officer Boudaia’s testimony to be “most credible.” (Tr. Vol. 2 at 46). The trial

       court imposed a sentence of 730 days with forty (40) days executed and 690

       days suspended. Hall now appeals.


                                                   Decision
[10]   Hall argues that the trial court abused its discretion by denying her oral motion

       to continue the bench trial.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019   Page 5 of 9
[11]   Our standard of review for reviewing a trial court’s ruling on a motion to

       continue is well settled:


               The Indiana Trial Rules provide, in relevant part, that “[u]pon
               motion, trial may be postponed or continued in the discretion of
               the court, and shall be allowed upon a showing of good cause
               established by affidavit or other evidence.” Ind.Trial Rule 53.5.
               The standard for review for a trial court’s denial of a Motion for
               Continuance is well established. When a defendant’s motion for
               continuance is made due to the absence of material evidence,
               absence of a material witness, or illness of the defendant, and the
               specially enumerated statutory criteria are satisfied, then the
               defendant is entitled to the continuance as a matter of
               right. [S]ee [I.C.] § 35-36-7-1. . . . When a motion for
               continuance does not meet the specially enumerated
               requirements, the trial court’s decision is given substantial
               deference and is reviewable only for abuse of discretion. It is
               important to emphasize, however, that there is always a strong
               presumption that the trial court properly exercised its discretion.
               A continuance sought on non-statutory grounds is within the
               discretion of the trial court and we will not disturb the trial
               court’s decision absent a clear demonstration of an abuse of that
               discretion.


       Elmore v. State, 657 N.E.2d 1216, 1218 (Ind. 1995) (emphasis in original;

       internal case citations omitted).


[12]   On the day of the bench trial, Hall’s counsel told the trial court that Hall was

       not ready to proceed because Hall had sent counsel “a few emails over the

       weekend and informed [counsel] of the first and last name of a witness” who

       Hall thought “might come testify[.]” (Tr. Vol. 2 at 4). Hall’s counsel

       acknowledged that she had “not filed anything in advance” because Hall had

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019   Page 6 of 9
       not given counsel the potential witness’s address. (Tr. Vol. 2 at 4). Counsel did

       not provide the trial court with the name of the potential witness nor any details

       about the witness’s potential testimony. The trial court denied Hall’s oral

       continuance request, noting that Hall had had “plenty of time” to inform her

       counsel of any witnesses. (Tr. Vol. 2 at 4).


[13]   On appeal, Hall does not argue that she was entitled to a continuance as a

       matter of right, and she contends that her continuance motion was not based on

       statutory grounds (i.e., absence of a witness or evidence). Instead, she asserts

       that her continuance motion was based on non-statutory grounds. Accordingly,

       we will review the trial court’s denial of Hall’s oral continuance motion for an

       abuse of discretion. See Elmore, 657 N.E.2d at 1218; see also Arhelger v. State, 714

       N.E.2d 659, 667 (Ind. Ct. App. 1999) (explaining that when a motion to

       continue is made on non-statutory grounds or the motion fails to meet the

       statutory criteria, the decision to grant or deny the motion is within the

       discretion of the trial court). “We will not disturb the trial court’s decision

       absent a clear demonstration of abuse of discretion resulting in prejudice.”

       Blackburn v. State, 130 N.E.3d 1207, 1211 (Ind. Ct. App. 2019). “Whether the

       trial court properly exercised its authority includes a review of whether the

       competing interests of the parties were properly evaluated and compared, and if

       not, whether prejudice to the movant from maintaining the schedule of events

       occurred.” Id. (internal quotation marks and citation omitted).


[14]   Hall has failed to show that she was prejudiced by the trial court’s denial of her

       oral motion to continue the bench trial. Neither at trial nor on appeal, has Hall

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019   Page 7 of 9
shown the content of her potential witness’s testimony. At trial, when Hall’s

counsel initially moved for the continuance, she offered no specific information

about the potential witness other than that Hall had thought that the unnamed

witness “might come testify[.]” (Tr. Vol. 2 at 4). Additionally, during Hall’s

testimony, when she had identified Barnes by name, she merely stated that

Barnes had “witnessed everything that [had] happened.” (Tr. Vol. 2 at 25).

There was no indication that Hall had subpoenaed Barnes or that Hall or her

counsel had even spoken to him about being a witness. Additionally, the

record reveals that Hall had had the same counsel during the ten-month

pendency of her case and that she had had numerous pretrial conferences. As

the trial court noted, Hall had had “plenty of time” to let her counsel know

about potential witnesses, but she failed to do so. (Tr. Vol. 2 at 4).

Furthermore, Hall testified on her own behalf and presented her defense that

she did not have a purse at the time of her arrest. While Hall seems to suggest

that Barnes’ testimony would have corroborated her testimony, “there’s no real

way to know that it would have.” See Blackburn, 130 N.E.3d at 1211.

Nevertheless, Hall was able to present her defense to the trial court for its

consideration. Because Hall has failed to show prejudice and the parties’

competing interests were evaluated by the trial court, we affirm the trial court’s

denial of Hall’s oral motion to continue the bench trial. See, e.g., id. (affirming

the trial court’s denial of a defendant’s motion to continue based on the absence

of an alibi witness where the defendant had failed to show prejudice and the




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019   Page 8 of 9
       claimed substance of the witness’s testimony had reached the jury through the

       defendant’s testimony).2


[15]   Affirmed.


       May, J., and Crone, J., concur.




       2
         We note that Hall attempts to expand her motion-to-continue argument into an exclusion-of-evidence
       argument, suggesting that the trial court abused its discretion by excluding her defense witness and violated
       her Sixth Amendment right to present a witness. To support her argument, she compares her case to Barber v.
       State, 911 N.E.2d 641, 646 (Ind. Ct. App. 2009). In addition to the facts of her case being distinguishable
       from Barber, Hall did not raise any constitutional or exclusion of evidence arguments to the trial court and
       has, therefore, waived any such arguments on appeal. See Flowers v. State, 738 N.E.2d 1051, 1056 (Ind. 2000)
       (explaining that an appellant may not make an argument on appeal that was not raised before the trial court),
       reh’g denied. Moreover, Hall has waived any evidentiary argument by failing to make an offer of proof in
       relation to her potential witness’s testimony. See Wiseheart v. State, 491 N.E.2d 985, 991 (Ind. 1986)
       (explaining that “[w]hen a defendant does not make an offer of proof, [s]he has not adequately preserved the
       exclusion of witness’ testimony as an issue for appellate review”). Waiver notwithstanding, while a
       defendant has the fundamental right to present witnesses in his or her own defense, this right is not absolute.
       Tolliver v. State, 922 N.E.2d 1272, 1282 (Ind. Ct. App. 2010), trans. denied. Indeed, when exercising this right,
       a defendant “must comply with established rules of procedure and evidence designed to assure both fairness
       and reliability in the ascertainment of guilt and innocence.” Id. (internal quotation marks and citations
       omitted). Here, Indiana Trial Rule 53.5, the trial rule pertaining to continuances, requires the party moving
       for the continue to make “a showing of good cause [for the continuance] established by affidavit or other
       evidence. . . .” Aside from failing to file an affidavit, Hall did not provide any evidence regarding her
       potential witness that would provide good cause for the continuance.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019                    Page 9 of 9
