MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 28 2017, 9:22 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Curtis T. Hill, Jr.
Brooke Smith Attorney General of Indiana
Keffer Barnhart LLP
Indianapolis, Indiana Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nicholas Matthew Holmes, February 28, 2017
Appellant-Defendant, Court of Appeals Case No.
82A01-1608-CR-1812
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Plaintiff Judge
Trial Court Cause No.
82D03-1509-F6-5611
Crone, Judge.
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Case Summary
[1] Following a jury trial, Nicholas Matthew Holmes appeals his conviction for
level 6 felony failure to return to lawful detention. He argues that the trial court
erred in admitting the State’s belatedly disclosed evidence and that his
conviction is not supported by sufficient evidence. We affirm.
Facts and Procedural History
[2] Holmes was sentenced to work release for a prior conviction and reported to the
Vanderburgh County Therapeutic Work Release Center on August 24, 2015. A
clerk presented him with a contract containing the terms and conditions of his
placement. The contract states in pertinent part, “I understand that failure to
return to the Work Release Facility as scheduled or being in an unauthorized
location may subject me to criminal prosecution.” State’s Ex. 1. It also states,
“I understand that I am not to leave my place of employment or any other
approved location without prior approval of Vanderburgh County Community
Corrections.” Id. And finally, it states, “This contract has been read and
explained to me and my signature below acknowledges that I have fully read
and fully understand all terms and conditions of this contract. I further
acknowledge that I have initialed each and every term of this Work Release
Contract as I have read and understood each term.” Id. Holmes signed the
contract but did not initial any of the terms.
[3] Two days later, work release case manager Mike Peeler met with Holmes and
performed an initial assessment and explained the center’s procedures. Holmes
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got a job outside the center and worked a shift that ended at 11:00 p.m. Peeler
gave Holmes “ninety minutes to ride a bicycle” back to the center after his shift
“or two hours to get back by bus.” Tr. at 22. On September 11, Peeler met
with Holmes, who demonstrated awareness of how to schedule excused
absences from the center. At 12:50 that afternoon, Holmes left the center to go
to work and did not return. He was arrested over two weeks later.
[4] On September 16, 2015, the State charged Holmes with level 6 felony failure to
return to lawful detention. On November 2, 2015, Holmes filed a motion for
discovery requesting the names and statements of the State’s intended witnesses
as well as any documents that the State intended to use in its prosecution. Trial
was set for June 16, 2016. The State did not provide Holmes with a copy of the
work release contract until June 15 and did not provide him with its witness
and exhibit list until the morning of trial. Holmes filed a motion in limine
requesting the exclusion of documents or witnesses not identified prior to trial,
which the trial court denied. During trial, Holmes renewed his motion in
limine and unsuccessfully objected to the testimony of two of the State’s three
witnesses and to the contract, which was the State’s only exhibit. Holmes did
not object to Peeler’s testimony, however. The jury found Holmes guilty as
charged, and he was sentenced to two years executed.
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Discussion and Decision
Section 1 – The trial court did not abuse its discretion in
admitting the State’s belatedly disclosed evidence.
[5] Holmes contends that the trial court erred in admitting the State’s belatedly
disclosed evidence. A trial court has the discretion to exclude a belatedly
disclosed witness when there is evidence of bad faith on counsel’s part or a
showing of substantial prejudice to the opposing party. Williams v. State, 714
N.E.2d 644, 651 (Ind. 1999), cert. denied (2000). The same is true for belatedly
disclosed evidence. Cook v. State, 675 N.E.2d 687, 691 (Ind. 1996).
“[G]enerally, a continuance rather than exclusion is the appropriate remedy in
this situation.” Id.
[6] Holmes has not established bad faith on the State’s part, nor has he shown that
he was prejudiced by the belated disclosure of the evidence. The State points
out that Holmes “cross-examined the witnesses and asked questions about the
contract during the State’s presentation of evidence and does not now specify
what additional information he could have presented had the evidence been
disclosed earlier.” Appellee’s Br. at 11. The State further observes that Holmes
did not object to Peeler’s testimony and therefore waived any challenge to its
admissibility on appeal. See Carter v. State, 634 N.E.2d 830, 832-33 (Ind. Ct.
App. 1994) (noting that limine ruling is not final ruling on admissibility of
evidence and that party must object at trial to preserve error for appeal). Also,
Holmes did not ask for a continuance to interview the witnesses or review the
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contract. Under these circumstances, we cannot say that the trial court abused
its discretion in admitting the challenged evidence. 1
Section 2 – Sufficient evidence supports Holmes’s conviction.
[7] Holmes also contends that his conviction for level 6 felony failure to return to
lawful detention is not supported by sufficient evidence. “Sufficiency-of-the-
evidence claims face a steep standard of review: we consider only the evidence
and reasonable inferences most favorable to the convictions, neither reweighing
evidence nor reassessing witness credibility. We affirm the judgment unless no
reasonable factfinder could find the defendant guilty.” Griffith v. State, 59
N.E.3d 947, 958 (Ind. 2016).
[8] The State alleged that Holmes committed the crime by knowingly or
intentionally failing to return to lawful detention following temporary leave
granted for a specific purpose, i.e., employment. Appellant’s App. at 11; Ind.
Code § 35-44.1-3-4(c). “A person engages in conduct ‘knowingly’ if, when he
engages in the conduct, he is aware of a high probability that he is doing so.”
Ind. Code § 35-41-2-2(b). “A person engages in conduct ‘intentionally’ if, when
he engages in the conduct, it is his conscious objective to do so.” Ind. Code §
35-41-2-2(a). At trial, Holmes stipulated that he was in lawful detention at the
1
That said, we cannot condone the State’s inexcusable delay in responding to Holmes’s discovery request.
One such delay may be considered an isolated oversight; multiple delays may be indicative of either
incompetence or bad faith.
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work release center. On appeal, he argues that the State failed to prove that he
acted with criminal intent in failing to return to the center.
[9] We disagree. The evidence most favorable to the conviction is that Holmes
knew that he was required to return to the center within a certain time after his
shift and that failure to do so could subject him to criminal prosecution. Based
on that evidence, a reasonable inference could be drawn that Holmes acted with
criminal intent in failing to return to the center after his shift on September 11.
Holmes’s arguments to the contrary are merely requests to reweigh evidence
and reassess witness credibility, which we may not do. Holmes’s conviction is
affirmed.
[10] Affirmed.
Riley, J., and Altice, J., concur.
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