MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Jun 26 2018, 6:55 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

James Timothy Spears,                                    June 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         40A04-1708-CR-2022
        v.                                               Appeal from the Jennings Superior
                                                         Court
State of Indiana,
                                                         The Honorable Alison T. Frazier,
Appellee-Plaintiff.                                      Senior Judge

                                                         Trial Court Cause No.
                                                         40D01-0012-CM-1278



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 40A04-1708-CR-2022 | June 26, 2018               Page 1 of 9
                                             Case Summary
[1]   James Spears appeals his convictions for Class B misdemeanor battery and

      Class B misdemeanor disorderly conduct. We affirm.


                                                     Issues
[2]   Spears raises two issues, which we restate as:


            I.         whether the trial court properly denied Spears’s motion to
                       dismiss on constitutional speedy trial grounds; and

           II.         whether the evidence is sufficient to sustain his convictions.


                                                     Facts
[3]   On October 31, 2000, Spears got into an argument with his wife, Kimberly.

      The argument escalated into a “shoving match,” and Spears grabbed

      Kimberly’s neck, dragged her to the door, and kicked her out. Tr. Vol. II p.

      139. She had red marks on her neck and shoulder and scraped her arm on the

      door during the incident. On December 5, 2000, the State charged Spears with

      Class B misdemeanor battery and Class B misdemeanor disorderly conduct.

      On January 23, 2001, and July 25, 2001, the trial court issued arrest warrants

      for Spears’s failure to appear.


[4]   On October 20, 2016, the trial court issued an order for Spears to appear on

      November 17, 2016, and he again failed to appear. The trial court issued

      another arrest warrant, and he was arrested in Kentucky. Spears filed a motion

      to dismiss the charges, arguing that the almost sixteen-year delay violated his


      Court of Appeals of Indiana | Memorandum Decision 40A04-1708-CR-2022 | June 26, 2018   Page 2 of 9
      speedy trial rights. At a hearing on the motion, Spears clarified that his

      argument was based on the Sixth Amendment to the United States Constitution

      and Article One Section Twelve of the Indiana Constitution, not Indiana

      Criminal Rule 4. Spears testified that he had moved to Kentucky shortly after

      the charges were filed in 2000, that he thought Kimberly had taken care of the

      charges, and that before he moved he had given the court an updated address

      on Sales Lane, Cave City, Kentucky. He claimed that he was prejudiced by

      the delay because he had lost a business opportunity. The State asked the trial

      court to take judicial notice that the record did not indicate that Spears had

      updated the court with an address change. The trial court concluded that the

      length of the delay was presumptively prejudicial and that the delay was

      attributable to Spears because he left the jurisdiction. The trial court denied

      Spears’s motion.


[5]   At the jury trial, Sergeant Andrew Richmond with the North Vernon Police

      Department testified that Spears informed him that he got mad at Kimberly and

      grabbed her on her shoulder and neck. Sergeant Richmond saw redness on

      Kimberly’s neck and shoulder and abrasions on her right forearm. However,

      photographs of the injuries were no longer available. The jury found Spears

      guilty as charged, and the trial court sentenced him to ninety days in jail. Spears

      now appeals.




      Court of Appeals of Indiana | Memorandum Decision 40A04-1708-CR-2022 | June 26, 2018   Page 3 of 9
                                                  Analysis
                                               I. Speedy Trial

[6]   “The Sixth Amendment to the United States Constitution and Article 1, Section

      12 of the Indiana Constitution guarantee the right to a speedy trial.” Wilkins v.

      State, 901 N.E.2d 535, 537 (Ind. Ct. App. 2009), trans. denied. The standard of

      review for a speedy trial issue, which is a pure question of law, is de novo.

      Johnson v. State, 83 N.E.3d 81, 84 (Ind. Ct. App. 2017).


[7]   Spears claims that the almost sixteen-year delay between his arrest and trial

      violated his right to a speedy trial under the United States and Indiana

      Constitutions. The analysis of a claim involving a speedy trial right is the same

      under both the state and federal constitutions. Sweeney v. State, 704 N.E.2d 86,

      102 (Ind. 1998), cert. denied. The inquiry into whether there was a speedy trial

      violation involves “a balancing test, in which the conduct of both the

      prosecution and the defendant are weighed.” Barker v. Wingo, 407 U.S. 514,

      530, 92 S. Ct. 2182, 2191-92 (1972). The Barker analysis considers four factors:

      1) the length of the delay; 2) the reason for the delay; 3) the defendant’s

      assertion of the right to a speedy trial; and 4) prejudice to the defendant. Id.


[8]   “The length of the delay acts as a triggering mechanism; a delay of more than a

      year post-accusation is ‘presumptively prejudicial” and triggers the Barker

      analysis.” Johnson, 83 N.E.3d at 85 (quoting Vermillion v. State, 719 N.E.2d

      1201, 1206 (Ind. 1999)). “If the length of the delay meets this threshold, ‘the

      court must then consider, as one factor among several, the extent to which the


      Court of Appeals of Indiana | Memorandum Decision 40A04-1708-CR-2022 | June 26, 2018   Page 4 of 9
      delay stretches beyond the bare minimum needed to trigger judicial

      examination of the claim.’” Id. (quoting Doggett v. United States, 505 U.S. 647,

      652, 112 S. Ct. 2686, 2691 (1992)). Here, the length of the delay—almost

      sixteen years—is excessive and clearly qualifies as presumptively prejudicial.

      This factor weighs in favor of Spears.


[9]   We next consider the reason for the delay. “When considering the reason for

      delays, we look at ‘whether the government or the criminal defendant is more

      to blame for that delay.’” Id. (quoting Doggett, 505 U.S. at 651, 112 S. Ct. at

      2690). Spears blames the delay on the State, arguing that he gave his new

      address to the trial court before he moved to Kentucky and that his new address

      was publicly discoverable. At the hearing on the motion to dismiss, Spears

      testified that he thought Kimberly had taken care of the charges, that he moved

      to Kentucky, and that he gave the trial court his new address. In support of his

      argument, he submitted a list of addresses found online. However, he claimed

      to have given the trial court an address on Sales Lane in Cave City, Kentucky,

      but that address was not listed on the document. Further, he claimed that his

      last address was in Park City, Kentucky, and that address was not listed on the

      document either. There is no evidence that Spears’s new address was

      discoverable as a public record. Moreover, the trial court records do not reflect

      that Spears provided a new address. The trial court found that the delay was

      attributable to Spears because he left the jurisdiction and because “we . . . don’t

      want to make a precedent of rewarding . . . people who abscond . . . .” Tr. Vol.

      II p. 31. Although the record does not reflect any efforts on the part of the State


      Court of Appeals of Indiana | Memorandum Decision 40A04-1708-CR-2022 | June 26, 2018   Page 5 of 9
       to locate Spears, the record does demonstrate that Spears absconded to

       Kentucky shortly after the charges were filed in 2000. We cannot conclude that

       the State’s delay in looking for Spears excuses his conduct in absconding. This

       factor weighs against Spears.


[10]   Next, we consider Spears’s assertion of the right to a speedy trial. “In order to

       claim a constitutional violation of the right to a speedy trial, defendant must

       assert such right.” Lee v. State, 684 N.E.2d 1143, 1146 (Ind. 1997). Spears did

       not assert his right to a speedy trial until his motion to dismiss in 2017. Spears

       delayed this case himself by absconding to Kentucky. His actions “show that

       he did not desire a speedy trial.” Johnson, 83 N.E.3d at 87. This factor weighs

       against Spears.


[11]   Finally, we consider prejudice to Spears as a result of the delay.


               “The final factor in the Barker test, prejudice, is assessed in light
               of the three interests which the right to a speedy trial was
               designed to protect: (i) to prevent oppressive pretrial
               incarceration; (ii) to minimize anxiety and concern of the
               accused; and (iii) to limit the possibility that the defense will be
               impaired.” Sweeney, 704 N.E.2d at 103 (citing Barker, 407 U.S. at
               532, 92 S. Ct. 2182). The most important of the three is limiting
               the possibility of defense impairment. Barker, 407 U.S. at 532, 92
               S. Ct. 2182. The burden is on the defendant to show actual
               prejudice to prove a speedy trial deprivation. Sturgeon v. State,
               683 N.E.2d 612, 617 (Ind. Ct. App. 1997), trans. denied.


       Johnson, 83 N.E.3d at 87. Oppressive pretrial incarceration is not an issue here

       as Spears was not incarcerated during the delay. Further, Spears makes no


       Court of Appeals of Indiana | Memorandum Decision 40A04-1708-CR-2022 | June 26, 2018   Page 6 of 9
       argument that the delay caused him anxiety or concern and, as the State argues,

       “[a]ny anxiety or concern was due to his own criminal behavior and . . . his

       unannounced departure and fugitive status.” Appellee’s Br. p. 14. Rather,

       Spears argues that his defense was impaired because the investigating officer did

       not specifically recall the incident and refreshed his recollection with his report.

       The State points out that the passage of time was “actually beneficial to

       Defendant’s defense” because the pictures of Kimberly’s injuries were missing

       and Spears “capitalized” on the passage of time in his attempted impeachment

       of Kimberly and the officer.” Appellee’s Br. p. 14. We agree with the State

       that Spears “suffered no identifiable prejudice.” Id. This factor also weighs

       against Spears.


[12]   Each of the factors except the length of the delay weighs against Spears.

       Although the almost sixteen-year delay is clearly excessive, the reason for the

       delay due to Spears’s absconding, the late assertion of the right to a speedy trial,

       and the lack of prejudice all weigh in favor of finding no violation of Spears’s

       constitutional right to a speedy trial. We conclude that the trial court properly

       denied Spears’s motion to dismiss.


                                      II. Sufficiency of the Evidence

[13]   Next, Spears argues that the evidence is insufficient to sustain his convictions.

       In reviewing the sufficiency of the evidence, we neither reweigh the evidence

       nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind.

       2015). We only consider “the evidence supporting the judgment and any

       reasonable inferences that can be drawn from such evidence.” Id. A conviction
       Court of Appeals of Indiana | Memorandum Decision 40A04-1708-CR-2022 | June 26, 2018   Page 7 of 9
       will be affirmed if there is substantial evidence of probative value supporting

       each element of the offense such that a reasonable trier of fact could have found

       the defendant guilty beyond a reasonable doubt. Id. “‘It is the job of the fact-

       finder to determine whether the evidence in a particular case sufficiently proves

       each element of an offense, and we consider conflicting evidence most

       favorably to the trial court’s ruling.’” Id. at 1066-67 (quoting Wright v. State, 828

       N.E.2d 904, 906 (Ind. 2005)).


[14]   Spears was convicted of Class B misdemeanor battery and Class B

       misdemeanor disorderly conduct. The offense of Class B misdemeanor battery

       is governed by Indiana Code Section 35-42-2-1, which required that Spears

       knowingly or intentionally touched Kimberly in a rude, insolent and angry

       manner. The offense of Class B misdemeanor disorderly conduct is governed

       by Indiana Code Section 35-45-1-3, which required that Spears knowingly or

       intentionally engaged in fighting.


[15]   Spears argues that “any instance of Spears making contact with Kimberly

       Spears was accidental and was not an intentional act of battery or a reckless act

       of disorderly conduct.” Appellant’s Br. p. 14. The State presented evidence

       that Spears got into an argument with Kimberly and grabbed her neck, dragged

       her to the door, and kicked her out of the house. As a result, Kimberly had red

       marks on her neck and shoulder and abrasions to her arm. Spears’s argument is

       a request to reweigh the evidence and judge the credibility of the witnesses,

       which we cannot do. The evidence is sufficient to sustain his convictions.



       Court of Appeals of Indiana | Memorandum Decision 40A04-1708-CR-2022 | June 26, 2018   Page 8 of 9
                                                 Conclusion
[16]   The trial court properly denied Spears’s motion to dismiss, and the evidence is

       sufficient to sustain his convictions. We affirm.


[17]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 40A04-1708-CR-2022 | June 26, 2018   Page 9 of 9
