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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: CHARLES E. STEWART Lake County Public DefenderOffice Crown Point, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
REX MICHAEL ENGLE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 45A03-0704-CR-175

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Salvador Vasquez, Judge Cause No.45G01-0402-FC-22

December 17, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Following a jury trial, Rex Michael Engle appeals his conviction of causing the death of another when operating a motor vehicle with an alcohol concentration equivalent to at least eight hundredths gram of alcohol per two hundred ten liters of breath, a Class C felony ("OWI causing death"). Engle raises two issues: whether the trial court improperly denied his motion for discharge pursuant to Indiana Rule of Criminal Procedure 4(C) and whether his conviction is supported by sufficient evidence. Concluding the trial court properly denied his Rule 4(C) motion and sufficient evidence supports his conviction, we affirm. Facts and Procedural History On January 27, 2004, Engle, who was driving his SUV, hit Russell Livingston, who was riding his bicycle. Engle stopped, entered a nearby bowling alley, and called the police. Highland Police Officer Chris Buuck arrived on the scene and found Livingston lying in the road with a large amount of blood near his head. Officer Buuck went to speak to the EMTs on the scene, and asked Engle to sit in his patrol car. Upon entering his patrol car, Office Buuck noticed the odor of alcohol. Engle admitted having consumed two beers. Officer Buuck took Engle to the police station, where Engle passed all sobriety tests except the horizontal gaze nystagmus test. A chemical test revealed that Engle's blood alcohol content was .10. Livingston subsequently died at the hospital as a result of injuries sustained in the accident. On February 17, 2004, the State charged Engle with OWI causing death, a Class C felony. On March 3, 2004, the initial hearing took place. Following several motions and

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requests to reset various hearings, on October 28, 2004, a jury trial was scheduled for May 23, 2005. On May 10, 2005, both parties moved to continue the jury trial, which was rescheduled for August 8, 2005. On August 8, the State filed a motion for continuance, which the trial court granted. The trial court's order states, "Based for reasons stated on the record and in open court, the continuance is charged to the defendant for purposes of Criminal Rule 4." Appellant's Appendix at 33. The trial court reset the jury trial for December 19, 2005. On December 19, both the State and Engle moved for a continuance, and the trial court reset the jury trial for July 26, 2006. Although the trial court attempted to hold a jury trial on that date, it declared a mistrial due to lack of available jurors and rescheduled the trial for November 20, 2006. On November 20, Engle filed a motion for discharge pursuant to Criminal Rule 4(C). The trial court denied this motion. The jury found Engle guilty as charged, and the trial court sentenced him to five years executed. Engle now appeals his conviction. Discussion and Decision I. Denial of Motion to Discharge Pursuant to Criminal Rule 4(C) We review a trial court's denial of a motion for discharge pursuant to Criminal Rule 4(C) under the clearly erroneous standard, and will reverse "only upon a showing of clear error, that is, that which leaves us with a definite and firm conviction that a mistake was made." Paul v. State, 799 N.E.2d 1194, 1197 (Ind. Ct. App. 2003). Criminal Rule 4(C) states: No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date 3

the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged. Engle was not tried within one year from his arrest. He claims that 576 of these days are not attributable to him, 1 and that therefore, he was entitled to a discharge. However, Engle did not object to his jury trial date until the day of his trial. "[A] defendant whose trial is set outside the one-year period must object to the setting at the earliest opportunity or the right to discharge under the rule is waived." Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000). "The defendant's failure to object timely will be deemed acquiescence in the setting of the date." Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind. 1999). By failing to object to his trial date at any point prior to the day of his trial, Engle waived his right to be tried within one year. Engle argues that the trial court committed reversible error by failing to enter findings of fact. Engle supports this argument by citing Ewing v. State, 629 N.E.2d 1238, 1240 (Ind. 1994), in which our supreme court reversed a trial court's denial of a Rule 4(C) motion, stating, "the trial judge issued no findings of fact and law with respect to denial of the defendant's motion for dismissal. Moreover, our examination of the record reveals no factual

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basis to support the denial." However, in this case, a factual basis does exist in the record for denying Engle's motion

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