MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Feb 05 2019, 8:58 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
Mark Small                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Kelly A. Loy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard H.P. Pinkham,                                    February 5, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1088
        v.                                               Appeal from the Knox Circuit
                                                         Court
State of Indiana,                                        The Honorable Sherry B. Gregg
Appellee-Plaintiff                                       Gilmore, Judge
                                                         Trial Court Cause No.
                                                         42C01-1409-FC-23



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1088 | February 5, 2019             Page 1 of 12
[1]   Richard Pinkham appeals his conviction for Class C Felony Burglary,1 arguing

      that (1) his right to a speedy trial was violated; (2) the trial court erroneously

      admitted deposition testimony of an absent witness; and (3) the evidence was

      insufficient to support the conviction. Finding that there was no violation and

      no error, and that the evidence was sufficient, we affirm.


                                                    Facts
[2]   In the early morning hours of April 14, 2014, Pinkham and his longtime

      girlfriend, Jennifer Proctor, drove from Indianapolis to Vincennes. The two

      drove around the city for several hours before stopping at a nearby McDonald’s

      so that Pinkham could use the restroom.


[3]   At her deposition, Proctor attested to the following information:


            • After using the restroom, Pinkham asked Proctor to drive to the local
              Taco Bell, which had just closed. Proctor then drove to Taco Bell, and
              Pinkham stepped out of the vehicle and dressed himself in an all-black
              “Ninja outfit.” Tr. Vol. II p. 208.
            • Pinkham retrieved a black duffel bag filled with tools, including a prybar.
              Proctor then drove away and parked at a nearby Chinese restaurant.
            • Both had walkie talkies to communicate with each other, and Proctor
              monitored a police scanner on her phone.
            • At roughly 4:00 a.m., Pinkham pried open the Taco Bell drive-thru
              window, crawled along the floor, and approached the restaurant’s safe.
              He then used other tools from the duffel bag to cut open the safe and
              retrieved roughly $3,000.
            • About fifteen minutes later, Pinkham radioed Proctor to pick him up,
              which she did. The two returned to Indianapolis.



      1
          Ind. Code § 35-43-2-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1088 | February 5, 2019   Page 2 of 12
[4]   Soon after, Vincennes Police Department Officer Jonathan O’Brien was

      dispatched to the scene after reports came in of a theft at that Taco Bell. At 5:00

      a.m., Officer O’Brien met two Taco Bell employees who informed him of what

      had happened. Surveillance footage did not reveal the identity of the masked

      burglar, but it showed someone breaking into the Taco Bell to commit the

      burglary.


[5]   On May 26, 2014, Officer Paul Kruse of the Warrick County Sherriff’s Office

      responded to a security alarm at another Taco Bell in Booneville. Upon

      arriving, Officer Kruse stopped a suspicious vehicle just outside the Taco Bell

      for a traffic violation. Pinkham was driving the vehicle, and Proctor was in the

      passenger’s seat. Pinkham consented to a search of the vehicle, during which

      Officer Kruse discovered a prybar; walkie talkies; black clothing; a ski mask; a

      black duffel bag full of tools, including a reciprocating saw (similar to the one

      used to open the Vincennes Taco Bell’s safe), saw blades, wire cutters, and a

      chisel; a blue cell phone; and a traffic ticket from Knox County dated April 7,

      2014. A search of the cell phone’s contents revealed a location and mapping

      history for the Taco Bell in Vincennes, a description of the restaurant’s store

      hours, and a deleted search history for how to bypass an alarm system.


[6]   On September 5, 2014, the State charged Pinkham with Class C felony burglary

      with an initial hearing set for December 22, 2014. The trial court declared

      Pinkham indigent and appointed him counsel. At the hearing, Pinkham

      requested a speedy trial, to which the trial court responded that he would need



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1088 | February 5, 2019   Page 3 of 12
      to request this in writing through his attorney. A trial was then set for March

      31, 2015.


[7]   The following represents the long procedural history of this case:


          • Pinkham’s first public defender (PD1) filed an appearance on January 6,
            2015.
          • At the pretrial conference on March 11, 2015, PD1 moved for a
            continuance, which the trial court granted. The trial was then
            rescheduled for June 30, 2015.
          • On June 18, 2015, PD1 moved for another continuance, which the trial
            court granted. The trial was rescheduled again for October 27, 2015.
          • On October 14, 2015, the State moved for a continuance because it could
            not locate Proctor, its key witness. The trial court granted the motion and
            rescheduled the trial for February 23, 2016.
          • However, on October 27, 2015, PD1 filed a motion for a speedy trial,
            and the trial was moved up to December 15, 2015.
          • On December 2, 2015, the State scheduled its deposition of Proctor for
            December 4, 2015, but she did not appear. On December 10, 2015, the
            State filed another notice of deposition for December 12, 2015, at which
            Proctor and PD1 appeared and actively participated.
          • On December 14, 2015, PD1 moved for a continuance, requesting more
            time to evaluate Proctor’s deposition. The trial court granted the
            continuance and, once again, rescheduled the trial for April 26, 2016.
          • On March 3, 2016, PD1 moved to withdraw from the case because he
            was moving out of state and moved to continue the trial date. The trial
            court granted the motion to withdraw but denied the motion to continue.
            The trial court appointed a new public defender (PD2) for Pinkham.
          • On March 29, 2016, PD2 filed her appearance, and on April 7, 2016, she
            moved for a continuance, which the trial court granted. The trial was
            rescheduled for October 25, 2016.
          • On April 19, 2016, PD2 moved to withdraw from the case, which the
            trial court granted. On May 6, 2016, the trial court cancelled the October
            25, 2016, trial date and appointed a new public defender (PD3) for
            Pinkham.
          • On May 24, 2016, PD3 filed his appearance, and on October 6, 2016,
            PD3 moved for a continuance, which the trial court granted. The trial
            was rescheduled for April 25, 2017.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1088 | February 5, 2019   Page 4 of 12
          • On April 6, 2017, PD3 moved for a change of plea hearing. The trial
            court vacated the trial date and scheduled a change of plea hearing for
            June 12, 2017. On April 12, 2017, PD3 moved to vacate the change of
            plea hearing and to continue the trial, which the trial court granted. The
            trial was rescheduled for August 29, 2017.
          • On August 3, 2017, PD3 again moved for a continuance, which the trial
            court granted. The trial was rescheduled for December 19, 2017.
            However, on September 13, 2017, PD3 moved again for a speedy trial,
            which the trial court granted. The trial was scheduled for November 14,
            2017.
          • On October 18, 2017, the State filed a notice of intent to seek habitual
            offender status. PD3 also filed a motion to continue, which the trial court
            granted. The trial was rescheduled for February 20, 2018.
          • On November 13, 2017, PD3 moved to withdraw from the case, which
            the trial court granted. Pinkham’s new public defender (PD4) filed his
            appearance on February 13, 2018. The jury trial commenced on
            February 20, 2018.


[8]   Just before the February 20, 2018, jury trial, Pinkham moved to dismiss the

      charges against him, arguing that his right to a speedy trial had been violated.

      The trial court denied this motion. At trial, the State moved to admit Proctor’s

      deposition testimony after making multiple efforts to locate her for in-person

      testimony. The deputy prosecutor testified that his office sent multiple officers

      to different locations using all available, possible addresses to find Proctor, but

      they had been unable to locate her. The State read Proctor’s deposition

      testimony into the record without objection.


[9]   The jury found Pinkham guilty as charged. On March 28, 2018, the trial court

      sentenced him to eight years imprisonment. Pinkham now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1088 | February 5, 2019   Page 5 of 12
                               Discussion and Decision

                                          I. Speedy Trial
[10]   First, Pinkham argues that his right to a speedy trial was violated. Specifically,

       he claims that he requested a speedy trial twice pursuant to Indiana Criminal

       Rule 4(B)(1), that the trial court failed to honor those requests, and that he

       remained in custody for three and one-half years between his arrest and the

       eventual trial. Accordingly, he requests that the conviction against him be

       vacated.


[11]   We review a denial of defendant’s motion for discharge in connection with a

       request for a speedy trial under Indiana Criminal Rule 4 for clear error. Austin v.

       State, 997 N.E.2d 1027, 1040 (Ind. 2013). We neither reweigh evidence nor

       determine the credibility of the witnesses. Id. We must be firmly convinced that

       a mistake has been made, and we consider only the probative evidence and

       reasonable inferences supporting the judgment. Id.


[12]   Both the federal and Indiana Constitutions protect an accused’s right to a

       speedy trial. Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012). Indiana

       Criminal Rule 4 implements this constitutional right, and Subsection (B)(1)

       provides that “[i]f any defendant held in jail on an indictment or an affidavit

       shall move for an early trial, he shall be discharged if not brought to trial within

       seventy (70) calendar days from the date of such motion[.]” However, there is

       an exception to Criminal Rule 4 “where the defendant seeks a continuance or

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1088 | February 5, 2019   Page 6 of 12
       the delay is otherwise the result of the defendant’s conduct[.]” Austin, 997

       N.E.2d at 1037.


[13]   At two different instances, on October 27, 2015, and on September 13, 2017,

       Pinkham moved for a speedy trial. The trial court granted both motions and set

       a trial date within the prescribed seventy-day time limit. Despite these motions,

       Pinkham also moved to continue eight times. The trial court tried to strike a

       balance between the defendant’s motions for a speedy trial and his motions for

       continuance.


[14]   Though the length of time between his arrest and his trial was lengthy, it was

       Pinkham’s repeated motions for continuances that caused the delays. In fact,

       Pinkham moved to continue the trial eight times. Because it was Pinkham’s

       multiple continuances that prolonged the delay and pushed the trial to nearly

       three and one-half years after his arrest, we cannot say the trial court failed to

       honor his speedy trial requests. In other words, the trial court did not violate

       Pinkham’s right to a speedy trial.


                               II. Deposition Testimony
[15]   Pinkham next argues that the trial court erroneously admitted Proctor’s

       deposition testimony. Specifically, Pinkham claims that by admitting the

       deposition testimony, the trial court violated his right to confront and cross-

       examine a witness (Proctor) against him under the federal and Indiana

       Constitutions.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1088 | February 5, 2019   Page 7 of 12
[16]   We will overrule a trial court’s ruling on admission of evidence only when the

       ruling is clearly against the logic and effect of the facts and circumstances before

       us. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). We will affirm the trial

       court’s ruling on the admission of evidence if that decision is sustainable on any

       proper legal ground. Jester v. State, 724 N.E.2d 235, 240 (Ind. 2000). Because

       Pinkham did not object to the deposition testimony at trial, we will only reverse

       the trial court’s decision to admit if it constituted fundamental error. Treadway

       v. State, 924 N.E.2d 621, 633 (Ind. 2010).


[17]   Our Supreme Court has explicitly held that testimonial statements made by a

       person who is absent from a criminal trial cannot be admitted unless the person

       is unavailable and the defendant had a prior opportunity to cross-examine the

       person. Fowler v. State, 829 N.E.2d 459, 464 (Ind. 2005); see generally Crawford v.

       Washington, 541 U.S. 36, 68 (2004). A person is legally unavailable if she is

       absent from trial and the State has not been able the procure the person’s

       attendance “by process or other reasonable means[.]” Ind. Evidence Rule

       804(a)(5)(A) (emphasis added). After the trial court determines that a person is

       unavailable, that person’s former testimony given during a lawful deposition is

       admissible so long as the person was available for cross-examination. Evid. R.

       804(b)(1)(A); see also Howard v. State, 853 N.E.2d 461, 465 (Ind. 2006) (holding

       that admitting hearsay statements made by a person who is unavailable and had

       the opportunity to be cross-examined in a prior proceeding does not violate a

       person’s Sixth Amendment right to confrontation).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1088 | February 5, 2019   Page 8 of 12
[18]   Pinkham argues that the trial court erred by admitting Proctor’s deposition

       testimony because the State did not adequately show that she was unavailable

       to testify at trial. According to Pinkham, the State did not make a good faith

       effort to locate Proctor, in part because it failed to issue a subpoena for her.

       Additionally, Pinkham takes issue with the fact that the State did not call its

       police officers to testify as to why they could not locate Proctor.


[19]   We find Pinkham’s argument unavailing. First, Pinkham can point to no statute

       or case law that requires the State to issue subpoenas before the trial court may

       rule that a key witness is unavailable. While Pinkham cites numerous cases in

       which we found the issuance of a subpoena to be a factor in our decision to

       determine unavailability—including Davis v. State, 13 N.E.3d 939, 945-46 (Ind.

       Ct. App. 2014); Berkman v. State, 976 N.E.2d 68, 76-77 (Ind. Ct. App. 2012);

       Tiller v. State, 896 N.E.2d 537, 543-44 (Ind. Ct. App. 2008)—none hold that

       issuance of a subpoena is a necessity.


[20]   Second, the State made a concerted effort to locate Proctor to no avail. The test

       for determining what constitutes a good faith effort is reasonableness, Garner v.

       State, 777 N.E.2d 721, 725 (Ind. 2002), and in looking at the record, the trial

       court did not err in ruling that the State made reasonable efforts to get Proctor

       to appear at trial. The police searched multiple databases to find all known

       addresses linked to Proctor. After doing so, the department sent out multiple

       officers to those locations, searched, and did their best to secure her presence.

       Despite these efforts, Proctor could not be located, and the State reported as

       much to the trial court.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1088 | February 5, 2019   Page 9 of 12
[21]   Furthermore, it is undisputed that Pinkham’s public defender (PD1) was

       present at and participated in Proctor’s deposition. PD1 had the opportunity to

       ask questions and cross-examine Proctor during the deposition, and the record

       shows that he did just that.


[22]   Therefore, the trial court did not err when it determined that Proctor was

       unavailable and that Proctor’s prior testimony had been subject to cross-

       examination. Consequently, it was not erroneous to admit the deposition

       testimony into evidence.


                            III. Sufficiency of Evidence
[23]   Finally, Pinkham argues that the evidence was not sufficient to support his

       burglary conviction. Specifically, Pinkham claims that without Proctor’s

       deposition testimony, a reasonable trier of fact could not possibly have

       convicted him based on the remainder of the State’s evidence.


[24]   When reviewing the sufficiency of the evidence supporting a conviction, we

       must affirm if the probative evidence and reasonable inferences drawn from the

       evidence could have allowed a reasonable trier of fact to find the defendant

       guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

       2005). It is not our job to reweigh the evidence or to judge the credibility of the

       witnesses, and we consider any conflicting evidence most favorably to the trial

       court’s ruling. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1088 | February 5, 2019   Page 10 of 12
[25]   To convict Pinkham of burglary, the State was required to prove beyond a

       reasonable doubt that Pinkham (1) broke and entered (2) the building or

       structure (3) of another person (4) with the intent to commit a felony in it. I.C. §

       35-43-2-1 (2014).


[26]   Having already concluded that the trial court did not err by admitting Proctor’s

       deposition testimony, we hold that the evidence could have allowed a

       reasonable trier of fact to find Pinkham guilty beyond a reasonable doubt.


[27]   As to the first, second, and third elements, a reasonable factfinder could

       conclude that Pinkham broke and entered into the Taco Bell. Proctor attested

       that Pinkham forcibly entered the restaurant through the drive-thru window

       using a prybar. While surveillance footage only captured an unknown figure in

       all black clothing, Officer Kruse’s search and discovery of the prybar, black

       clothing, and ski mask in Pinkham’s car corroborates Proctor’s testimony that

       Pinkham was the person who committed the breaking and entering.


[28]   As to the fourth element, the search history found on the cell phone could lead

       a reasonable factfinder to conclude that Pinkham formed the requisite intent

       because he both considered robbing and actually planned to rob the Taco Bell.

       The deleted searches included information on how to bypass an alarm system

       and details about the hours and location of the Taco Bell. In fact, based on

       Proctor’s testimony, it seemed as if the entire purpose behind the couple’s trip

       to Vincennes from Indianapolis was to burglarize this Taco Bell. Once again,

       Officer Kruse’s search of Pinkham’s car revealed the tools that were used to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1088 | February 5, 2019   Page 11 of 12
       steal money from the Taco Bell safe: a reciprocating saw, saw blades, wire

       cutters, and a chisel. A reasonable factfinder could conclude that Pinkham had

       the intent to commit a felony (burglary) within the Taco Bell.


[29]   In sum, the evidence is sufficient to support his conviction.


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


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1088 | February 5, 2019   Page 12 of 12
