MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                      FILED
regarded as precedent or cited before any                        Feb 07 2017, 6:27 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Patrick Scott Norman,                                    February 7, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1605-CR-1064
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D02-1505-F4-4



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 79A02-1605-CR-1064 | February 7, 2017   Page 1 of 6
[1]   Following a jury trial, Patrick Scott Norman was convicted of multiple drug

      offenses. On appeal, Norman argues that the trial court abused its discretion by

      denying his motion for a continuance.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On the evening of May 15, 2015, officers of the Lafayette Police Department

      were dispatched to a gas station following a report of an unconscious man in a

      vehicle at a gas pump. Responding officers found Norman slumped over in the

      driver’s seat of a vehicle with the engine still running. Norman was

      unconscious and officers could not wake him by yelling and pounding on the

      driver’s side window. After medical personnel arrived, they were able to enter

      the vehicle through the passenger door, turn off the engine, and unlock the

      doors. Once Norman was removed from the vehicle, he was found to be in

      possession of over six grams of methamphetamine, two Xanax tablets, two foil

      packets of heroin, and digital scales. Later, during a more thorough search

      conducted at the county jail, two paper strips of LSD were found in Norman’s

      wallet.


[4]   On May 20, 2015, the State charged Norman with Level 4 felony dealing in

      methamphetamine, Level 6 felony possession of a narcotic drug, Level 6 felony

      possession of methamphetamine, and two counts of class A misdemeanor

      possession of a controlled substance. On August 25, 2015, the State filed a

      motion to amend the dealing charge to a Level 3 felony and the possession of

      Court of Appeals of Indiana | Memorandum Decision 79A02-1605-CR-1064 | February 7, 2017   Page 2 of 6
      methamphetamine charge to Level 5 felony. Norman did not object to the

      amendment, and the trial court granted the State’s motion on September 4,

      2015.


[5]   A two-day jury trial commenced on December 8, 2015. Before jury selection,

      Norman requested a continuance to allow him to obtain private counsel. The

      trial court denied Norman’s request and the matter proceeded to trial.

      Although Norman had appeared in person that morning, he did not return to

      court when it reconvened after lunch. At that time, Norman’s counsel

      informed the trial court that he just learned that Samantha Ruble, who he had

      not subpoenaed but nevertheless intended to call as a witness, was not available

      to testify that day. Defense counsel asked to begin his presentation of evidence

      the next day, when Ruble would be available to testify. Initially, the trial court

      declined to rule on the request and instructed defense counsel to attempt to

      secure Ruble’s appearance that day. The State then continued its presentation

      of evidence in Norman’s absence and without objection from defense counsel.

      Ruble was still not present when the State rested, so the trial court adjourned

      until the next day to allow Ruble time to appear.


[6]   Neither Ruble nor Norman appeared on the second day of trial. Defense

      counsel did not ask for a continuance due to Ruble’s absence, expressly stating

      that he was not “asking the Court to wait any longer[.]” Transcript at 148.

      Defense counsel did, however, ask for a continuance based on Norman’s failure

      to appear. The trial court denied the request, and at the conclusion of the

      evidence and arguments, the jury acquitted Norman of the dealing in

      Court of Appeals of Indiana | Memorandum Decision 79A02-1605-CR-1064 | February 7, 2017   Page 3 of 6
      methamphetamine charge and found him guilty on all other charges. Norman

      was subsequently sentenced to an aggregate term of six years in the Department

      of Correction. Norman now appeals.


                                             Discussion & Decision


[7]   Norman argues that the trial court erred in denying his motion for a

      continuance. The trial court twice denied Norman a requested continuance.

      On the morning of trial, Norman requested a continuance to obtain private

      counsel, and on the second day of trial, defense counsel requested a

      continuance due to Norman’s own failure to appear. On appeal, Norman does

      not argue that the trial court’s denial of either of these motions was error.

      Instead, he argues that the trial court should have granted him a continuance

      pursuant to Ind. Code § 35-36-7-1(b) due to the absence of a witness, i.e., Ruble.

      See Macklin v. State, 701 N.E.2d 1247, 1250 (Ind. Ct. App. 1998) (noting that

      “[w]hen a defendant requests a continuance due to the absence of a material

      witness, and the statutory criteria are met, the defendant is entitled to a

      continuance as a matter of right”).


[8]   Norman’s argument in this regard is puzzling, to say the least. When defense

      counsel learned that Ruble—who had not been subpoenaed or included on

      Norman’s witness list1—was not available on the first day of trial, he asked to




      1
       Ruble had been included on the State’s list of potential witnesses, although the State ultimately chose not to
      call her as a witness.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1605-CR-1064 | February 7, 2017             Page 4 of 6
       be permitted to begin his presentation of evidence the next day. The trial court

       ultimately granted this request. When Ruble failed to appear on the second day

       of trial, defense counsel expressly stated that he was not asking for additional

       time to secure Ruble’s presence. Thus, to the extent that Norman asked for a

       continuance based on Ruble’s absence on the first day of trial, that request was

       granted. As for Ruble’s absence on the second day of trial, Norman cannot

       now be heard to complain that the trial court did not grant him a continuance

       he did not request.


[9]    Moreover, even if Norman had requested a continuance based on Ruble’s

       absence, he fell far short of satisfying the statutory criteria set forth in I.C. § 35-

       36-7-1. Among many other deficiencies, Norman filed no affidavit showing

       that Ruble’s testimony was material and that due diligence had been used to

       obtain it as required by I.C. § 35-36-7-1(a), and he did not state the facts to

       which he believed Ruble would testify or indicate the probability of procuring

       her testimony within a reasonable time as required by I.C. § 35-36-7-1(b).

       Furthermore, even if Norman had filed the required affidavit and made the

       necessary assertions, he would have been unable to establish due diligence

       because he failed to subpoena Ruble for trial. See Arhelger v. State, 714 N.E.2d

       659, 667 (Ind. Ct. App. 1999). Norman has not established error in this regard.


[10]   Norman also argues that he was entitled to a continuance based on the State’s

       amendment of the charging information. This argument is meritless. The State

       moved to amend the charging information on August 25, 2015. The motion

       was granted at a hearing on September 4, 2015—over three months prior to

       Court of Appeals of Indiana | Memorandum Decision 79A02-1605-CR-1064 | February 7, 2017   Page 5 of 6
       trial—and Norman did not request a continuance at that time or object in any

       way to the amendment. It was not until after trial, prior to Norman’s

       sentencing, that Norman first took issue with the amendment, and even then,

       he did not argue for a continuance. Instead, he argued that the amended

       charges should be dismissed because no initial hearing was held. It is axiomatic

       that a party waives for appeal issues not timely raised before the trial court. See

       Sisson v. State, 985 N.E.2d 1, 12 (Ind. Ct. App. 2012) (noting that arguments

       raised for the first time on appeal are waived), trans. denied; see also Wilson v.

       State, 931 N.E.2d 914, 918 (Ind. Ct. App. 2010) (explaining that “a defendant’s

       failure to request a continuance after a trial court allows a pre-trial substantive

       amendment to the charging information over defendant’s objection results in

       waiver”), trans. denied. Accordingly, Norman’s argument in this regard is not

       available for appellate review.


[11]   Judgment affirmed.


[12]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1605-CR-1064 | February 7, 2017   Page 6 of 6