Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                Feb 28 2014, 8:55 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JOHN A. KINDLEY                                 GREGORY F. ZOELLER
Lakeville, Indiana                              Attorney General of Indiana

                                                GEORGE PETER SHERMAN
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

SCOTT LOGAN,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 20A05-1304-CR-192
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE ELKHART SUPERIOR COURT
                       The Honorable George W. Biddlecome, Judge
                             Cause No. 20D03-0907-FC-18


                                    February 28, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, Scott Logan (Logan), appeals his conviction for child

molestation, a Class C felony, Ind. Code § 35–42-4-3.

      We affirm.

                                         ISSUE

      Logan raises two issues on appeal which we state as follows:

      1) Whether Logan was entitled to discharge under Indiana Criminal Rule 4(C); and

      2) Whether Logan was denied his right to a speedy trial.

                       FACTS AND PROCEDURAL HISTORY

      On April 11, 2009, A.L., Logan’s sixteen-year-old daughter went over to Logan’s

house. Logan and A.L.’s Mother, Mary Logan (Mother), were separated at the time. A.L.

fell asleep on Logan’s bed while reading a book. A.L. was awoken by Logan’s hand

underneath her underwear. Upon realizing what was happening, she pushed Logan’s hand

away and moved away from him. The next time A.L. woke up, she found Logan grabbing

her breast, and his body was pressed against A.L. At that point, A.L. moved Logan’s hand,

got out of bed, and went to another bedroom where she phoned her Mother to pick her up.

A.L.’s Mother told her that A.L.’s aunt would pick her up instead. After picking A.L. up,

A.L.’s aunt drove A.L. to Mother. The next day, Mother filed a complaint. On July 31,

2009, the State filed an Information charging Logan with child molestation, a Class C

felony, I.C. § 35–42-4-3.

      On August 11, 2009, Logan’s initial hearing was held. Logan’s counsel made an

appearance for him and requested a bond reduction. On September 4, 2009, the trial court

                                            2
also denied Logan’s request for a bond reduction. The omnibus hearing was set for

November 5, 2009, and a pre-trial conference was scheduled for October 22, 2009. On

October 22, 2009, Logan requested a continuance until November 12, 2009. On November

12, 2009, Logan filed a motion to continue and the trial granted his motion, continuing this

matter to December 10, 2009. On December 11, 2009, Logan filed a motion to continue

and the trial court granted it. On January 13, 2010, Logan filed yet another motion to

continue to February 11, 2010. On February 11, 2010, the trial court granted Logan another

motion to continue to March 25, 2010.

       On March 25, 2010, both parties agreed to set November 8, 2010 as the trial date.

On October 28, 2010, the State filed a motion to continue due to court congestion. On

November 3, 2010, the trial court vacated the November 8, 2010 trial date and set a pre-

trial conference for December 16, 2010 for purposes of setting a new trial date. On

December 7, 2010, Logan filed a motion to be released from jail on his own recognizance

and the trial court held a hearing December 16, 2010. On January 18, 2011, the State filed

a motion to continue due to court congestion. The trial court granted the State’s motion

and set a pre-trial conference for February 24, 2011. On February 22, 2011, the trial court

denied Logan’s motion for release on his own recognizance. On February 24, 2011, Logan

also filed a motion for discharge pursuant to Crim. R. 4(C). Also by an agreement of the

parties, the jury trial was reset for June 20, 2011. On March 9, 2011, the trial court denied

Logan’s motion for discharge.

       On June 8, 2011, the State filed a motion to continue due to court congestion. On

June 10, 2011, the trial court granted the State’s motion to continue, and set a pre-trial

                                             3
conference for July 14, 2011. On July 14, 2011, the trial court reset the trial yet again for

August 22, 2011. On August 15, 2011, on its own motion, the trial court vacated the August

22 trial date. On September 13, 2011, Logan filed a motion to dismiss based on a violation

of his constitutional right to a speedy trial. On September 15, 2011, a pre-trial conference

was held and Logan’s trial was reset for February 6, 2012. The trial court also set October

6, 2011 as the hearing date for the motion to dismiss. On October 6, 2011, the trial court

heard arguments from both sides and took the matter under advisement. On October 31,

2011, the trial court denied Logan’s motion to dismiss.

       On January 30, 2012, trial court vacated Logan’s trial date of February 6, 2012 and

set a pre-trial conference for February 23, 2012. On February 23, 2012, both parties agreed

on July 9, 2012 as the new trial date. Logan also made an objection that his constitutional

right to a speedy trial had been violated. The trial court, however, directed Logan to file

his objection, and Logan filed his motion to discharge the next day. On May 1, 2012,

Logan filed a petition for writ of mandamus and a writ of prohibition. On May 24, 2012,

our supreme court granted Logan’s request to be released on his own recognizance but

denied his request for discharge under Crim.R. 4(C). On May 25, 2012, the trial court

ordered Logan to be released from jail. On May 31, 2012, Logan’s matter was continued

due to court congestion but both parties agreed to September 17, 2012 as the new trial date.

On September 11, 2012, trial court continued the matter due to court congestion. On

September 17, 2012, a pre-trial conference was held and both parties set the trial date for

February 11, 2013. On February 6, 2013, Logan filed a motion renewing his February 24,

2011 motion for discharge pursuant to Crim. R. 4(C) and also his September 13, 2011

                                             4
motion to dismiss based on a violation of his constitutional right to a speedy trial. On

February 7, 2013, the trial court denied Logan’s motion. On February 11-12, 2013, a jury

trial was conducted. At the close of the evidence, the jury found Logan guilty as charged.

On March 7, 2013, the trial court sentenced Logan to six years.

       Logan now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

                                  I.     Criminal Rule 4(C )

       Logan first argues that the trial court erred in denying his motion for discharge

pursuant to Criminal Rule 4(C). Crim. R. 4(C) sets forth the time limits in which a

defendant must be brought to trial and provides in relevant part:

       No person shall be held on recognizance or otherwise to answer a criminal charge
       for a period in aggregate embracing more than one year from the date the criminal
       charge against such defendant is filed, or from the date of his arrest on such charge,
       whichever is later; except where a continuance was had on his motion, or the delay
       was caused by his act, or where there was not sufficient time to try him during such
       period because congestion of the court calendar.

       The State’s duty to try the defendant within one year is an affirmative duty and the

defendant is under no obligation to remind the State of its duty. Marshall v. State, 759

N.E.2d 665, 668 (Ind. Ct. App. 2001). However, when a trial date is set beyond the one-

year limit provided under Rule 4(C), the defendant must file a timely objection to the trial

date or waive his right to a speedy trial. Id. Moreover, “[i]f a delay is caused by the

defendant’s own motion or action, the one-year time limit is extended accordingly.” Cook

v. State, 810 N.E.2d 1064, 1066 (Ind. 2004).




                                               5
       Here, Logan was charged on July 31, 2009. The trial court set the initial trial date

for November 8, 2010. This was approximately 615 days after the charging date and

clearly beyond the one-year limit provided for under Crim. R. 4(C). We note, however,

that reasons for the delays can be attributed partly to Logan. Logan made five motions to

continue. According to the chronological summary for this case, we note that there were

154 days of delay chargeable to Logan pursuant to Crim. R. 4(C) including October 22,

2009 to November 12, 2009 (21 days); November 12, 2009 to December 10, 2009 (28

days); December 10, 2009 to January 14, 2010 (35 days); January 14, 2010 to February 11,

2010 (28 days); and February 11, 2010 to March 25, 2010 (42 days). The five motions

caused Logan 154 days of delay, and thus the one-year limit was extended by this number

of days.

       The record further reveals that both parties met on March 25, 2010, and Logan

consented to have his case tried on November 8, 2010. Unfortunately, the trial court

vacated this date on November 3, 2010. On February 24, 2011, Logan filed a motion for

discharge pursuant to Crim. R. 4(C). On March 8, 2011, the trial court denied Logan’s

motion. In part, the trial court ordered:

       In the instant case, the court has already determined that, in addition to the 154 days
       [Logan] concedes are chargeable to him for Criminal Rule 4(C) purposes, the 222
       days from March 26, 2010 through November 3, 2010, were chargeable to the
       defendant based on his affirmative actions.

(Appellant’s App. p. 67).

       Reading the language of the Order, we interpret “affirmative action” to mean that

Logan consented to the trial date of November 8, 2010. Thus, he acquiesced to a belated


                                              6
trial date. See Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind.1999). As such, we agree

with the trial court’s finding that the additional 222 days of delay accumulating from March

26, 2010 to November 3, 2010 were chargeable to Logan. Accordingly, if we were to

subtract 154 days and 222 days from the 615 days that elapsed between the charging date

and Logan’s first trial date, it leaves 239 days chargeable to the State, well within the 365–

day speedy trial period guaranteed by Crim. R. 4(C). We also note that even though the

subsequent trial dates of January 24, 2011; June 20, 2011; August 22, 2011; February 6,

2012; July 9, 2012; and September 17, 2012 were vacated, thus causing a further delay to

Logan’s case, re-scheduling was inevitable due to the trial court’s congested calendar.

       In Clark v. State, 659 N.E.2d 548,552 (Ind. 1995), we stated that “a trial court’s

finding of congestion is presumed valid.” A defendant may overcome this presumption by

demonstrating that the finding of congestion was factually or legally inaccurate. Id. Such

proof establishes a prima facie case for discharge unless the trial court sets forth an

explanation for congestion. Id. If the trial court provides further findings which explain

the congestion and justify the delay, the appellate court will give reasonable deference to

the trial court’s explanation. Id. The burden then shifts back to the defendant to establish

that he is entitled to relief of discharge by showing that the trial court was clearly erroneous.

Id.

       Here, Logan only disputes the vacated trial date of February 6, 2012. The record

reveals that Mahamat. A. Outman’s case (Outman’s case) was scheduled that day for an

early hearing pursuant to a Crim. R. 4(B) motion. Logan argues that it was improper for

the court to do so since Outman’s case had been filed seven months after his case. The

                                               7
evidence on record shows that on May 15, 2012, the trial court swore an affidavit

explaining that:

       [Logan’s] next trial date was February 6, 2012. The trial was continued due to court
       congestion, specifically the trial of Mahamat A. Outman, whose case was filed
       under cause number 20D03-10003-FA-11. It should be noted that while Mr.
       Outman’s case was filed after [Logan’s], Mr. Outman was in custody and demanded
       an early trial date pursuant to [Crim.R. 4(B)]. The [trial court] honored that demand.

(Appellant’s. App. p. 104).

       In the instant case, we find the trial court’s calendar was congested. Relying on

Clark, we conclude that the trial court’s finding were adequate under the circumstances to

justify the delay. Logan has not provided us with any information showing that the trial

court’s actions were factually erroneous to vacate his February 6, 2012 trial date. We

therefore find that the continuance of Logan’s case on February 6, 2012 was properly

warranted. In this regard, we conclude that Logan was not entitled to discharge under

Crim. R. 4(C).

                                  II. Right to a Speedy Trial

       Logan contends that he was denied a speedy trial under the Indiana and United

States Constitutions. The right of an accused to a speedy trial is guaranteed by both the

Sixth Amendment to the United States Constitution and by Article 1, Section 12 of the

Indiana Constitution. Fisher v. State, 933 N.E.2d 526, 530 (Ind. Ct. App. 2010) (citing

Clark, 659 N.E.2d at 548.

       The question of whether a defendant has been denied the right to a speedy trial under

the Sixth Amendment involves the balancing of a number of factors: (1) the length of the

delay; (2) the reason for the delay; (3) the defendant’s assertion of the right to a speedy

                                             8
trial; and (4) any resulting prejudice to the defendant. Fisher, 933 N.E.2d at 530; Danks v.

State, 733 N.E.2d 474 (Ind. Ct. App. 2000) (citing Barker v. Wingo, 407 U.S. 514, 530,

(1972)), trans. denied. We employ the same test to evaluate a speedy trial claim under

Article 1, Section 12 of the Indiana Constitution. Fisher, 933 N.E.2d at 530.

       In the instant case, we acknowledge that it took nearly three-and-a-half years to

bring Logan to trial. “A post-accusation delay exceeding one year has been termed

‘presumptively prejudicial’ to a defendant.” Danks, 733 N.E.2d at 481. However, this

“does not necessarily indicate a statistical probability of prejudice; it simply marks the

point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.”

Id. (quoting Doggett v. United States, 505 U.S. 647, 652 n. 1(1992)). Thus, even if the

delay is presumptively prejudicial because it exceeded one year, a defendant must “specify

precisely how the delay affected his ability to defend himself against the charges in order

to succeed on a speedy trial claim.” Id. (citing Gilmore v. State, 655 N.E.2d 1225, 1227–

28 (Ind.1995)). This is a burden Logan fails to meet. Logan claims that the delays by the

State resulted in incarceration and anxiety.     He, however, fails to pinpoint specific

prejudice, such as loss of memory by a witness or any other impairment to his defense. See

Gilmore, 655 N.E. 2d at 1228.

       First, Logan claims that when his matter came up for a pre-trial conference on July

14, 2011 for purposes of setting up a trial date, he was denied the December 5, 2011 trial

date. The record, however, discloses otherwise. Evidence shows that Logan refused to

accept the December 5 date and demanded an earlier date. The record reflects that the trial

court warned Logan that his case might be trumped by older cases if he opted for an earlier

                                             9
date and, thus, he would be safer settling for December 5 as the earliest date. The record

further shows that Logan did not heed the trial court’s advice and insisted on settling for

August 22, 2011 as the trial date. A few days before Logan’s August trial date, the trial

court vacated that setting, citing court congestion. The second delay Logan contests is the

vacation of his February 6, 2012 trial date. As we stated earlier, it was trumped by the

Outman case on that day since Outman had filed a Crim. R. 4(B) motion, thus giving his

case a right to a speedy trial. We found no error here.

         Furthermore, the delays cited by Logan do not specify precisely how they affected

his ability to defend himself against the charges in order to succeed on a speedy trial. We

find that Logan’s actions were not vigorous; in fact, Logan did not file his motion to

discharge pursuant to Crim. R. 4(C) until February 24, 2011, which was almost two years

after he was initially charged. Even after his motion for discharge was denied, Logan never

sought to file a Crim. R. 4(B) motion requesting a speedy trial. Under these particular facts

and circumstances, we cannot say that Logan was denied his constitutional right to a speedy

trial.

                                        CONCLUSION

         Based on the foregoing, we conclude that the trial court did not err in denying

Logan’s motion for discharge under Crim. R. 4(C), and Logan has failed to demonstrate

that the delays in his trial violated his constitutional right to a speedy trial.

         Affirmed.

VAIDIK, C. J. and MAY, J. concur



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