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03/24/88 WILLIAM R. BATES v. STATE INDIANA

Filed: March 24, 1988.

WILLIAM R. BATES, DEFENDANT-APPELLANT
v.
STATE OF INDIANA, PLAINTIFF-APPELLEE



APPEAL FROM THE TIPPECANOE SUPERIOR COURT, The Honorable Kenneth L. Thayer, Judge, Cause No. S-5107, S-5108, S-5109, S-5110, S-5111

Garrard, J.; Staton, J. and Robertson, J. Concur.

Author: Garrard

GARRARD, P.J.

Appellant William Bates appeals from his conviction for five counts of dealing in cocaine, a Class C felony. He was given five 5 year sentences, one of which is to run consecutive to the other four which are to run concurrently. We affirm.

Bates raises four issues for our review:

1. Did the trial court err by granting a motion to continue the trial filed by the state on February 25, 1986?

2. Did the trial court err by denying Bates' motion for discharge which resulted in Bates being brought to trial over one year from the date he was charged?

3. Did the trial court err by denying Bates his right to confront witnesses when it foreclosed cross examination of a witness regarding ongoing criminal investigations?

4. Were the audio tape recordings offered into evidence by the state so insufficiently clear, incomplete, garbled and confusing as to be prejudicial to Bates?

I. Continuance

Bates contends that it was error for the trial Judge to grant the state's motion for continuance which was made on February 25, 1986. On that date the prosecution moved for a continuance because they had determined only that morning that a key witness did not reside in Indianapolis but in Michigan acid the subpoena process would not get that witness to court in time for the trial. Further, the state's motion for continuance alleged that the state could not locate another material witness because lie had changed jobs. The trial Judge granted that motion and continued the trial from February 25 to March 25.

Bates alleges that the granting of the motion for continuance was error because the state's motion did not comply with the requirements of IC 35-36-7-2. IC 35-36-7-2 concerns when the state may be entitled to a continuance because of the absence of a witness. The statute does not restrict the court's discretionary powers. Instead it merely compels the granting of a continuance under certain clearly delineated circumstances. In general, when such a motion for continuance is not based upon statutory grounds or is not made in compliance with the statute, the granting of a continuance lies within the broad discretion of the trial court and will not be reversed on appeal absent an abuse of discretion prejudicing the complaining party. Gregory v. State (1972), 259 Ind. 295, 286 N.E.2d 666, 668; Hoy v. State (1983), Ind. App., 448 N.E.2d 31, 34.

Bates contends that reversal is required in this case under an abuse of discretion standard of review because of the alleged failure of the state to use due diligence in preparing its case. Bates, however, has failed to show how this alleged failure prejudiced him in this ...


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