Opinion
24A-CR-265
11-08-2024
Steven T. Lakes, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT J. Clayton Miller Jordan Law, LLC ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Megan M. Smith Deputy Attorney General
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Union Circuit Court The Honorable Matthew R. Cox, Judge Trial Court Cause No. 81C01-2211-F5-000186.
ATTORNEY FOR APPELLANT J. Clayton Miller Jordan Law, LLC
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Megan M. Smith Deputy Attorney General
MEMORANDUM DECISION
FELIX, JUDGE.
Statement of the Case
[¶1] In 2022, a law enforcement officer arrested Steven Lakes on outstanding warrants and placed him in the back of the officer's patrol truck. When the officer finished questioning two other men, he realized Lakes and the patrol truck were gone. Lakes was ultimately apprehended in Texas. A jury convicted Lakes of escape, two counts of theft, and criminal mischief. Lakes now appeals, raising the following two issues:
1. Whether the trial court abused its discretion when it continued the trial only one week as a remedy for the State's untimely addition to its witness list; and
2. Whether the admission of details regarding Lakes's outstanding warrants violated Indiana Evidence Rule 404(b).
[¶2] Because Lakes did not make any argument to the trial court that the one-week continuance was insufficient or request an additional continuance, and because he further procedurally waived his Evidence Rule 404(b) claim, we hold that he has waived appellate review of all his claims. We affirm.
Facts and Procedural History
[¶3] On November 8, 2022, Deputy Jeff Franklin of the Union County Sheriff's Office and Officer Todd Dickenson of the Liberty Police Department acted on a tip about where to find Lakes, who had outstanding felony arrest warrants out of Franklin County. According to the tip, Lakes would be in a black Jeep in Liberty, Indiana. Based on the tip, Deputy Franklin and Officer Dickenson found Lakes in a black Jeep at a Shell gas station in Liberty, where Deputy Franklin arrested him on the outstanding warrants.
[¶4] Deputy Franklin handcuffed Lakes, placed him in the rear passenger seat of the deputy's patrol truck, and belted Lakes in. Deputy Franklin then pulled his patrol truck alongside Officer Dickenson's patrol car to talk to two other subjects. When Deputy Franklin exited the patrol truck, he left it running with the doors unlocked.
Deputy Franklin's vehicle was a "double cab" Ford F-150 that did not have a "cage" between the front and back seats. Tr. Vol. II at 237.
[¶5] After Deputy Franklin and Officer Dickenson spoke with the two men who had been with Lakes, Deputy Franklin "walked around the . . . the front of [Officer Dickenson's] vehicle" and noticed that Lakes and the patrol truck were gone. Tr. Vol. II at 243. Deputy Franklin's department-issued backup weapon and other personal property were in his patrol truck. Lakes was ultimately taken into custody in Nevada, Texas.
[¶6] The State charged Lakes with escape as a Level 5 felony, two counts of theft as Level 6 felonies, and criminal mischief as a Class B misdemeanor. In September 2023, Lakes filed a request for Evidence Rule 404(b) notices. On November 8, 2023, the trial court set a trial date of December 12, 2023, and ordered the parties to file witness and exhibit lists and any motions by November 22. On November 21, the State timely filed its witness and exhibit lists. On the same date, Lakes timely filed a motion in limine concerning Evidence Rule 404(b) misconduct evidence.
The State also alleged Lakes was an habitual offender but later dismissed that enhancement.
[¶7] On December 6, 2023, several documents were filed. The State filed an amended witness list that added Dusty Hill, who was to testify about text messages recently discovered between Lakes and a defendant in another case. The State also filed its response to Lakes's motion in limine. And, claiming the State's amended witness list was filed after the deadline, Lakes filed a motion to exclude Hill's testimony. Two days later, the State served Lakes with some of the pages from a cell phone extraction report it had received the same day (the "Cellebrite Report"), which purported to contain text messages downloaded from the mobile phone of a third party, Jeremy Wells, about which Hill was to testify. The text messages were purportedly from Lakes and included a photo he texted of his face and his admission to the escape.
In its response, the State suggested it intended to introduce, as relevant to the escape charge, that Lakes was subject to two arrest warrants out of Franklin County: (1) one warrant for failure to appear for a jury trial on a charge of dealing in methamphetamine as a Level 3 felony, for which the jury convicted him in absentia; and (2) another warrant for failure to appear at a bond revocation hearing where the underlying offense was battery with bodily injury to a public safety officer as a Level 5 felony and resisting law enforcement as a Level 6 felony.
[¶8] On December 11, 2023, the trial court held a hearing on Lakes's pending evidentiary motions. Regarding the Evidence Rule 404(b) motion in limine, Lakes argued that the State failed to timely file an Evidence Rule 404(b) notice and that the evidence the State wanted to introduce, such as evidence that Lakes had been convicted in absentia in a different matter, was not necessary to show the element of lawful detention to prove escape. He argued further that the unfair prejudice occurring through the admission of such evidence would deprive him of a fair trial. Lakes offered to "stipulate that he was arrested on a warrant for failure to appear, uh, in a drug dealing case, and that would be sufficient." Tr. Vol. II at 27. In opposition, the State denied there was a "hard and fast rule governing the time period in which the State should respond to an appropriate request under 404(b)." Id. at 28. The State further argued that "to simply stipulate[] that he had a warrant for his arrest doesn't go into what his motive would be." Id. at 30. The State then argued that Lakes's motive to escape was based upon the lengthy sentences he could receive in the two cases for which he did not appear. Id. Regarding the motion to exclude, Lakes argued that his "argument as to Dusty Hill is the same as is the argument on this 404(b)" motion, namely, that the State failed to identify Hill as a witness by the November 22 deadline ordered by the court. Id. He also denied having the complete Cellebrite Report and argued that he needed to consult an expert witness because "this information [in the Cellebrite Report] came from some software company" and there were "chain of custody issues," id. at 23. The State countered that an expert was unnecessary to establish the foundation for the admissibility of the texts. When the trial court noted that Lakes's remedy was a motion to continue, Lakes's counsel said, "if you're denying the motion to exclude, I am moving to continue." Id. at 23.
Indiana Evidence Rule 404(b)(2)(A) and (B) require the State to "provide reasonable notice . . . before trial -or during trial if the court, for good cause, excuses lack of pretrial notice."
[¶9] On December 13, 2023, the trial court entered its order in relevant part denying Lakes's motion in limine regarding Rule 404(b) evidence, denying Lakes's motion to exclude Dusty Hill from testifying, and granting a continuance to December 19, 2023, stating:
The State alleges it only became aware of Dusty Hill's involvement and related evidence last week, and it provided defense counsel notice on December 6, 2023. Because of the newly discovered evidence of text messages and Dusty Hill's involvement, the Court grants defense's motion for continuance of the trial and attributes the delay to the State for Criminal Rule 4 purposes. The State should have known of the existence of this evidence and witness well before December 6, 2023. However, the Court continues the trial for only one (1) week due to the Speedy Trial requirements under Criminal Rule 4.Appellant's App. Vol. II at 88.
[¶10] Following a trial that commenced December 19, 2023, the jury convicted Lakes of escape and the other counts charged, and the trial court sentenced him to a total of seven years of incarceration. Lakes now appeals.
Discussion and Decision
1. Lakes Has Waived Appellate Review of the Trial Court's Decision to Grant Him a One-Week Continuance
[¶11] Lakes argues that the trial court abused its discretion when it continued the trial date for only one week as a remedy for the State's addition of Hill as a witness after the deadline for filing witness and exhibit lists. "Upon motion, trial may be postponed or continued in the discretion of the court, and shall be allowed upon a showing of good cause established by affidavit or other evidence." Ind. Trial Rule 53.5 (emphases added). When a motion for continuance, like Lakes's, is not offered due to the absence of material evidence, absence of a material witness, or illness of the defendant, and the specially enumerated criteria pursuant to Indiana Code section 35-36-7-1 are not satisfied, then the trial court's decision is given substantial deference and is reviewable only for abuse of discretion. See Ramirez v. State, 186 N.E.3d 89, 96 (Ind. 2022) (citing Flowers v. State, 654 N.E.2d 1124, 1125 (Ind. 1995)).
Indiana Code section 35-36-7-1 sets out statutory bases for a criminal defendant's motion to continue. In his brief, Lakes, in part, sets out the standard of review of a ruling on a statutory motion to continue. However, Lakes's continuance motion is not based on any of the grounds in Indiana Code section 35-36-7-1, so the statute is inapposite.
[¶12] On appeal, Lakes argues that the one-week continuance to December 19 provided insufficient time to consult with an expert regarding the text message evidence. However, Lakes did not propose an amount of time he would need to prepare, he did not request an additional continuance on the grounds now asserted on appeal, nor does he show that he argued to the trial court before or after it granted the one-week continuance that he needed additional time. Lakes orally requested the continuance as an alternative remedy to his motion to exclude Hill, a late-added witness, from testifying, and the trial court granted that motion. However, his failure to request an additional continuance or in any way indicate that he needed additional time to prepare for trial due to the untimely addition of Hill to the witness list waives the issue for review. See Fleming v. State, 833 N.E.2d 84, 91 (Ind.Ct.App. 2005) (citing Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000)). Therefore, Lakes has waived his argument that the trial court abused its discretion when it granted only a one-week continuance.
2. Lakes Has Waived Appellate Review of the Trial Court's Decision to Admit Evidence Regarding Lakes's Outstanding Warrants
[¶13] Lakes claims that the trial court abused its discretion in admitting certain evidence at trial. However, we cannot address those claims because he has waived the issue for review for two related reasons: (a) failing to show that he preserved the issue at trial, and (b) failing to provide supporting citations to the Record on appeal. We address each point in turn.
[¶14] "[T]he denial of a motion in limine is insufficient to preserve an issue for later appellate review." Means v. State, 201 N.E.3d 1158, 1166 (Ind. 2023) (citing Raess v. Doescher, 883 N.E.2d 790, 796-97 (Ind. 2008). "Failure to object at trial to the admission of the evidence results in waiver of the error, notwithstanding a prior motion in limine. Raess, 883 N.E.2d at 796-97 (citing McCarthy v. State, 749 N.E.2d 528, 537 (Ind. 2001); White v. State, 687 N.E.2d 178, 179 (Ind. 1997); Moore v. State, 669 N.E.2d 733, 742 (Ind. 1996); Clausen v. State, 622 N.E.2d 925, 927 (Ind. 1993); Conner v. State, 580 N.E.2d 214, 219-20 (Ind. 1991)).
[¶15] Here, Lakes argues the trial court "erred, in violation of Evid. R. 404(b), when it allowed the admission of many unfairly prejudicial details about his warrants after Lakes offered a stipulation to ameliorate prejudice." Appellant's Br. at 12. However, his appellate argument rests entirely on the arguments made at the hearing on December 11 on Lakes's motion in limine instead of on the admission of evidence at trial. He acknowledges that a "trial court's ruling on a motion in limine is not a final order," but he then argues that the trial court "abused its discretion by allowing the State to offer unfairly prejudicial details about the circumstances surrounding [Lakes's] warrants" without also showing that he preserved the issue for appeal by objecting to the admission of such evidence at trial. Id. at 16. As a result, Lakes has waived this issue for review. See Means, 201 N.E.3d at 1166; Raess, 883 N.E.2d at 796-97.
[¶16] Secondly and along the same lines, Lakes's significant noncompliance with Appellate Rule 46 also results in waiver of this issue for appellate review. Although we have a well-established preference for deciding cases on their merits rather than on procedural grounds like waiver, Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) (quoting Roberts v. Cmty. Hosps. of Ind., Inc., 897 N.E.2d 458, 469 (Ind. 2008)), if a party's failure to comply with the Appellate Rules is "sufficiently substantial to impede our consideration of the issue raised," we will not address the merits of that issue, id. (quoting Guardiola v. State, 375 N.E.2d 1105, 1107 (Ind. 1978)).
[¶17] The purpose of our appellate rules-especially Appellate Rule 46 governing the content of briefs-"is to aid and expedite review and to relieve the appellate court of the burden of searching the record and briefing the case." Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023) (emphasis added) (quoting Dridi v. Cole Kline LLC, 172 N.E.3d 361, 364 (Ind.Ct.App. 2021)). For instance, a party's analysis of an issue on appeal must be supported in relevant part by citations to the Appendix or parts of the Record on Appeal upon which the party relies. Ind. Appellate Rule 46(A)(8)(a). We will not search the record to find a basis for the party's argument. Carter ex rel. CNO Fin. Grp., Inc. v. Hilliard, 970 N.E.2d 735, 755 (Ind.Ct.App. 2012) (citing Nealy v. Am. Fam. Mut. Ins., 910 N.E.2d 842, 845 n.2 (Ind.Ct.App. 2009), trans. denied). "We will not step in the shoes of the advocate and fashion arguments on his behalf, 'nor will we address arguments' that are 'too poorly developed or improperly expressed to be understood.'" Miller, 212 N.E.3d at 657 (quoting Dridi, 172 N.E.3d at 364).
[¶18] Here, Lakes fails to cite the pages of the Transcript where the State offered, he objected to, and the trial court admitted the allegedly inadmissible evidence. In fact, he wholly fails to identify the exhibits or testimony admitted at trial that he is challenging. See Appellant's Br. at 12-16. This violates both Appellate Rules 46(A)(8)(a), requiring record citations for all statements of fact in the Argument, and 46(A)(8)(d), requiring certain Transcript citations when admissibility of evidence is in dispute. Again, we will not search the record to find a basis for a party's argument. Hilliard, 970 N.E.2d at 755 (citing Nealy, 910 N.E.2d at 845 n.2). Because Lakes's noncompliance with Appellate Rule 46, especially Appellate Rule 46(A)(8), substantially impedes our review of his evidentiary claim, he has waived the issue for review.
Conclusion
[¶19] In sum, Lakes has waived appellate review of the trial court's decision to grant him a one-week continuance and to admit evidence of his outstanding arrest warrants. As such, we affirm the trial court on all issues raised.
[¶20] Affirmed.
Tavitas, J., and Kenworthy, J., concur.