FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

ANTHONY S. CHURCHWARD                        GREGORY F. ZOELLER
Fort Wayne, Indiana                          Attorney General of Indiana

                                             ELLEN H. MEILAENDER
                                             Deputy Attorney General

                                                                           FILED
                                             Indianapolis, Indiana

                                                                     Mar 15 2012, 9:32 am
                             IN THE
                  COURT OF APPEALS OF INDIANA                                CLERK
                                                                           of the supreme court,
                                                                           court of appeals and
                                                                                  tax court




ODONIS D. PARKER,                            )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )      No. 02A03-1108-CR-381
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                   APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                   Cause No. 02D04-1001-FD-83 & 02D05-1102-FB-26


                                  March 15, 2012

                            OPINION – FOR PUBLICATION

RILEY, Judge
                                  STATEMENT OF THE CASE

        Appellant-Defendant, Odonis D. Parker (Parker), appeals his sentence for robbery,

a Class B felony, Ind. Code § 35-42-5-11.

        We affirm.

                                               ISSUES

        Parker raises two issues on appeal, which we restate as:

    (1) Whether Parker’s right to a speedy trial, pursuant to Indiana Criminal Rule 4(B),

        was violated even though he was released from incarceration upon expiration of

        the seventy-day period; and

    (2) Whether the trial court violated Parker’s right to present a defense.

                           FACTS AND PROCEDURAL HISTORY

        The facts most favorable to the verdict are as follows. In January of 2011, Pervis

Hall (Hall) and Trevon Thomas (Thomas) attempted to sell Thomas’ X-box gaming

system by advertising it for sale on Hall’s Facebook page. Parker expressed his interest

in buying the X-box and the parties reached an agreement on a purchase price of $300.

On January 25, 2001, Parker came over to Hall’s house to pick up the gaming system.

Hall and Trevon had placed the X-box on the porch and went to meet Parker when he

drove up in a white Chevrolet Impala. Although there were other people in the car, only

Parker exited the vehicle. Parker inspected the system and asked Hall and Thomas to

help him carry the X-box to the car. While walking over to the car, Parker pulled out a

1
 Although this is a consolidated appeal that also involved a probation revocation issue under a different
cause number, Parker does not raise any issue with respect to his probation case.


                                                   2
handgun, pointed it at Thomas, and told both Thomas and Hall “it’s mine now, keep it

movin’.” (Transcript p. 140). After placing the X-box in the trunk of the vehicle,

Thomas and Hall backed away and Parker drove away without paying the purchase price.

       On February 7, 2011, the State filed an Information charging Parker with robbery,

a Class B felony. On February 10, 2011, Parker requested a speedy trial. The trial was

initially set for April 7, 2011. However, on April 4, 2011, the State moved for a

continuance because it had not yet been able to obtain the telephone records for Hall and

Parker that it had been seeking. Over Parker’s objection, the trial court granted the

continuance and rescheduled the trial for April 21, 2011, which was the seventieth

calendar day following Parker’s speedy trial request.

       On April 21, 2011, the State again moved for a continuance because even though

it had obtained the telephone records, they were not in a form that would be admissible at

trial. The trial court granted the motion over Parker’s objection, reset the trial for June 1,

2011, but released Parker on his own cognizance. On June 1, 2011, the trial court

continued the cause due to congestion on the trial court’s calendar and rescheduled the

trial for July 6, 2011.

       On July 6, 2011, a jury trial was held. Prior to trial, Parker alerted the trial court

and the State that he would request a lesser-included instruction on theft and announced

his theory of defense. Specifically, Parker stated that the transaction involved marijuana,

not an X-box system, and that he had failed to return with payment after being fronted the

marijuana. Parker later made an offer of proof with respect to this theory of defense.

The State objected, noting that the parties had known since March that Hall would be


                                              3
testifying by deposition, that the accusation of marijuana had never been raised before,

and that Hall could not respond to this new allegation. The trial court granted the State’s

objection, finding that the degree of prejudice to the State substantially outweighed the

probative value. The trial court ruled that Parker could testify to his version of events

without mentioning that the subject of the transaction was marijuana. At the close of the

evidence the jury found Parker guilty as charged.

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

                            DISCUSSION AND DECISION

                              I. Indiana Criminal Rule 4(B)

       Parker contends that his right to a speedy trial pursuant to Indiana Criminal Rule

4(B) was violated when the trial court failed to conduct his trial prior to the end of the

seventy-day period. Initially, we note that even though Parker objected every time his

trial date was continued, this was not sufficient to preserve this issue for our review. We

have previously held that a defendant waives review of a speedy trial request on appeal

“if he does not make a motion for discharge or motion for dismissal prior to trial.”

Hampton v. State, 754 N.E.2d 1037, 1039 (Ind. 2001). There is no indication in the

record that Parker moved for discharge or dismissal prior to trial. Therefore, his claim is

waived.

       Waiver notwithstanding, we will address Parker’s claim on its merits. Indiana

Criminal Rule 4(B) provides, in relevant part as follows:

       If 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, except where a


                                            4
       continuance within said period is had on his motion, or the delay is
       otherwise caused by his act, or where there was not sufficient time to try
       him during such seventy (70) calendar days because of the congestion of
       the court calendar.

Here, Parker requested a speedy trial on February 10, 2011. Therefore, the seventieth day

from the date of that motion was April 21, 2001. Although a trial was scheduled for

April 21, 2001, at the request of the State, the trial court continued the trial date.

Nevertheless, on that same day, Parker was released in the instant cause on his own

recognizance.

       The purpose served by Crim. R. 4(B) is to prevent a defendant from being

detained in jail for more than seventy days after requesting an early trial. Williams v.

State, 631 N.E.2d 485, 486 (Ind. 1994).               Once released from custody, a defendant

receives no further benefit from Crim. R. 4(B). Id. at 487. Instead, a non-incarcerated

defendant’s right to a speedy trial is implemented by the one-year limitation period

contained in Crim. R. 4(C). Id. Thus, as Parker was released from pre-trial incarceration

on the seventieth day of his speedy trial request in the instant cause, his Crim. R. 4(B)

right was not violated.2

                                 II. Right to Present a Defense

       Next, Parker contends that the trial court impermissibly restricted his right to

present a defense by denying him the opportunity to testify that he was trying to buy

marijuana rather than an X-box gaming system. The State objected to this proffered


2
 It should be noted that Parker continued to be incarcerated subsequent to April 21, 2011 on a pending
probation revocation charge. However, Parker fails to make any arguments that his incarceration in a
different cause has any impact on his speedy trial right in the instant cause.


                                                  5
testimony on Evidence Rule 403 grounds as it created the highly prejudicial impression

that Hall and Thomas were drug dealers and Hall was unavailable to respond to the

allegation.   The trial court agreed with the State, ruling that “while [the proffered

testimony] was relevant it’s substantially outweighed by the prejudicial impact to the

State.” (Tr. p. 178). The trial court added that Parker could refer to it as “a transaction”

and prohibited any “mention of marijuana.” (Tr. p. 178).

         We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Payne v. State, 854 N.E.2d 7, 17 (Ind. Ct. App. 2006). An abuse of discretion

occurs if a trial court’s decision is clearly against the logic and effect of the facts and

circumstances before the court. Id. Although the right to present a defense, which

includes the right to present the defendant’s version of the facts, is of the utmost

importance, it is not absolute. Marley v. State, 747 N.E.2d 1123, 1132 (Ind. 2001);

Roach v. State, 695 N.E.2d 934, 939 (Ind. 1998). “The accused, as is required of the

State, must comply with established rules of procedure and evidence designed to assure

both fairness and reliability in the ascertainment of guilt and innocence.” Id. One of the

Rules of Evidence a defendant must abide by is Evid. R. 403, which provides that

otherwise relevant evidence may be excluded “if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury.”

         Although Parker had notified the State in advance that he would seek a jury

instruction on theft, as a lesser included of robbery, Parker did not divulge his theory of

defense until the day of trial. Both parties knew that Hall would not be available for trial,


                                             6
and Parker had agreed “with the State [] that this witness was not going to be present and

that his deposition could be used in lieu of live testimony.” (Tr. p. 176). Allowing

Parker to testify at trial that instead of buying an X-Box, he met Hall to purchase

marijuana, would raise an accusation that Hall is a drug dealer. Being unavailable, Hall

would not be able to respond to this allegation and the jury would not be able to observe

Hall denying the allegation. We agree with the State that “[i]n a case that largely

amounted to a credibility contest between the victims and [Parker], it was extremely

prejudicial to make this drug dealing accusation at a time and in a manner where [Hall]

would have no chance to refute it.” (Appellee’s Br. p. 14).

       Furthermore, although the trial court prohibited Parker from testifying that the

item was marijuana, the trial court’s ruling did not prevent the jury from making an

inference adverse to the victims. Parker testified that he did not tell the police officers

about the transaction because he “didn’t feel comfortable talking about it.” (Tr. p. 212).

Also, in closing argument, Parker’s counsel referred to the transaction as “less th[a]n

legitimate.” (Tr. p. 134).

       In sum, we cannot conclude that Parker’s defense was impaired because he could

not specifically name the marijuana as the item he claimed to attempt to purchase from

Hall. Therefore, we find that the trial court did not abuse its discretion by excluding

specific references to marijuana and Parker’s right to present a defense was not violated.

                                     CONCLUSION




                                             7
      Based on the foregoing, we conclude that Parker’s right to a speedy trial was not

violated and the trial court did not impair Parker’s right to present evidence when it

excluded certain evidence.

      Affirmed.

BARNES, J. and BRADFORD, J. concur




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