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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: MATTHEW G. GRANTHAM Bowers Brewer Garrett & Wiley, LLP Huntington, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana

ANDREW R. FALK Deputy Attorney General Indianapolis, Indiana

FILED
Aug 31 2010, 9:45 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
EMILY R. MEYER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 35A02-1001-CR-69

APPEAL FROM THE HUNTINGTON SUPERIOR COURT The Honorable Jeffrey R. Heffelfinger, Judge Cause No. 35D01-0901-FA-13

August 31, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary Emily Meyer appeals her convictions for two counts of Class A felony dealing in a schedule I, II, or III controlled substance. We affirm. Issues Meyer raises two issues, which we restate as: I. whether the trial court properly denied her motion for a continuance; and whether there is sufficient evidence to support her convictions as Class A felonies. Facts On April 3, 2008, Meyer sold two pills containing oxycodone to a confidential informant ("CI") during a controlled buy arranged by the Huntington Police Department. This transaction occurred in a grocery store parking lot within 1000 feet of a public park. On April 30, 2008, Meyer sold five pills containing oxycodone to the same CI in another controlled buy. This transaction occurred in a public park. The State eventually charged Meyer with two counts of Class A felony dealing in a schedule I, II, or III controlled substance. On November 6, 2009, Meyer moved to continue the trial scheduled for November 19, 2009. On November 10, 2009, following a hearing, the trial court denied Meyers motion. A jury found Meyer guilty as charged. Meyer now appeals. Analysis I. Continuance

II.

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Meyer argues that because she had received some of the States discovery materials belatedly--approximately a week before trial--the trial court should have granted her motion for a continuance. When a motion is not based upon statutory grounds, the determination of whether to grant a continuance lies within the sound discretion of the trial court. Williams v. State, 891 N.E.2d 621, 628 (Ind. Ct. App. 2008). "There is a strong presumption that the trial court properly exercised its discretion." Id. Meyer compares her case to Barber v. State, 911 N.E.2d 641 (Ind. Ct. App. 2009), in which the defendant sought a continuance on the morning of the bench trial because defense counsel had just located key witnesses and needed time to secure their presence for trial. In that case, we concluded: In light of Barbers right to present a defense, the strong presumption in favor of allowing the testimony of even latedisclosed witnesses, the lack of substantial prejudice to the State, and the resultant prejudice to Barber, we conclude that the trial court abused its discretion in denying Barbers motion to continue and therefore remand for a new trial. Barber, 911 N.E.2d at 647. Meyer contends that the continuance should have been granted to allow her to investigate the discovery materials that were belatedly disclosed. Although she describes the materials that were belatedly disclosed as "important information" about the CI, the only evidence she specifically identifies in her brief as being belatedly disclosed is the terms of the CIs agreement with law enforcement. Appellants Br. p. 8. Meyer offers no explanation as to how any of the belatedly disclosed information would have aided in her

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defense or how additional time to review this information would have benefited her at trial. Moreover, even if Meyer was acting in good faith when she moved for a continuance and the State would not have been prejudiced by a continuance, a continuance was not warranted under these facts. It appears that the State disclosed the information to Meyers first attorney and that some of that information was not relayed to Meyers second attorney. Meyer even acknowledges that she "may have had some blame to share in the delayed disclosure . . . ." Id. Further, regarding the alleged lack of information about the CI, it appears that Meyer was also charged with conspiring to kill the CI. Specifically, the trial court stated, "I just want the record to be clear. Considering the fact that you represent the Defendant in her Conspiracy to Commit Murder against the same person who was the confidential informant I find your allegations that you did not know who the confidential informant was to be implausible." Tr. p. 81. Given the circumstances, the trial court did not abuse its discretion in denying Meyers motion for a continuance. II. Sufficiency of the Evidence Meyer also argues there is insufficient evidence to support the enhancement of her convictions to Class A felonies. She claims the State did not prove that she selected the meeting places that were within 1000 feet of a park. The offense of dealing in a schedule I, II, or III controlled substances is a Class B felony, which is enhanced to a Class A felony if it is committed within 1000 feet of a

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public park.1 Ind. Code

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