ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY BOWES STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
CECELIA K. HEMPHILL
Deputy Attorney General
COURT OF APPEALS OF INDIANA
CHARLES HAMPTON, )
vs. ) No. 49A02-0103-CR-141
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant Hawkins, Judge
Cause No. 49G05-0009-CF-16213
September 13, 2001
OPINION - FOR PUBLICATION
After a bench trial, Charles Hampton was convicted of two counts of interference
a Class B misdemeanor, and one count of educational neglect of
a Class D felony. He now appeals, raising the following
issues for review:
I. Whether he should have been discharged pursuant to Indiana Criminal Rule 4(B), the
Sixth Amendment to the United States Constitution, or Article I, § 12 of
the Indiana Constitution when he was not tried until seventy-nine days after he
filed a written motion for a speedy trial.
II. Whether the State presented sufficient evidence to support his conviction of
educational neglect of a dependent where Hampton asserts that he was home schooling
FACTS AND PROCEDURAL HISTORY
Hampton and Tina Hampton were married and had two children, M.C.H. and K.H.
Upon their divorce in 1999, Tina was awarded custody of the children,
and Hampton was awarded visitation pursuant to the county guidelines and at other
times as agreed by the parties.
On July 4, 2000, Tina delivered the children to Hampton for an extended
summer visit. Hampton was to return the children on July 30 or
31, 2000 but failed to do so. Although the school year started
for the schools in which Tina had enrolled M.C.H. and K.H., Hampton failed
to send the children to school. On September 19, 2000, police officers
went to Hamptons home and removed the children. He was arrested and
charged with two counts of interference with custody, two counts of educational neglect
of a dependent for failing to send the children to school, and two
counts of neglect for confining the children indoors.
On October 31, 2000, Hampton filed a written motion for speedy trial.
Shortly thereafter, he changed counsel. At a pretrial conference on November 28,
2000, Hamptons new counsel orally moved for speedy trial by stating if that
hasnt been done, [Hampton] is asking that be done now.
178. The trial court then set the trial date for January 18,
2001 without objection.
After the bench trial, he was convicted of two counts of interference with
custody and one count of educational neglect. He now appeals.
DISCUSSION AND DECISION
Hampton first alleges that he should have been discharged because his right to
speedy trial was violated.
Ind. Crim. Rule 4(B) provides that a criminal defendant held in jail must
be tried within seventy calendar days if he moves for speedy trial.
Hampton has waived this claim. A defendant must object at the
earliest opportunity when his trial is set beyond the time limitations of Crim.
R. 4. Townsend v. State, 673 N.E.2d 503, 506 (Ind. Ct. App.
1996). If an objection is not timely made, the defendant is deemed
to have acquiesced to the later trial date. Id. The defendants
obligation to call to the trial courts attention a trial date which had
been set outside the time frame allowed by Crim. R. 4(B) is recognized
because the purpose of the rules is to assure early trials, not discharge
In Townsend, 673 N.E.2d at 506, the defendant orally requested a speedy trial
at his initial hearing. At the initial hearing, the trial court set
a trial date seventy-one days from the defendants request. The defendant failed
to object to the trial courts setting of the trial date which fell
outside of the seventy-day period. We held that because the defendant failed
to object at the earliest opportunity, he acquiesced to the later trial date,
and he was not entitled to discharge. We noted that an earlier
objection would have allowed the trial court to reset the trial for a
date within the proper period. Id.
Hampton first filed a written motion for speedy trial on October 31, 2000.
He then changed counsel. At a pretrial conference on November 28,
2000, Hamptons new counsel orally moved for a speedy trial if Hamptons previous
counsel had not already done so. The trial court then, without objection,
set the trial date for January 18, 2001, outside the seventy-day limit prescribed
by the rule. Hampton took no action to bring the trial courts
error to its attention, which would have allowed it to take corrective action.
Hampton has therefore waived this error for appellate review. See Driver
v. State, 725 N.E.2d 465, 470 (Ind. Ct. App. 2000) (no trial court
error in failing to discharge defendant who had moved for a speedy trial
even though he was tried outside the seventy-day limit where defendant did not
object to the trial date setting when the trial court scheduled that setting;
defendant abandoned his request at that time).
Further, the defendant waives review of this issue on appeal if he does
not make a motion for discharge or motion for dismissal prior to trial.
Sundling v. State, 679 N.E.2d 988, 991 (Ind. Ct. App. 1997).
Such a request provides an enforcement mechanism for Crim. R. 4(B) and a
defendants failure to attempt to enforce his request for a speedy trial waives
any issue thereon. Id. There is no indication in the Record
that Hampton moved for discharge or dismissal prior to trial. Therefore, his
claim is waived.
Hampton also alleges that his constitutional right to a speedy trial was violated.
The Sixth Amendment to the United States Constitution guarantees every accused person
the right to a speedy trial. Also, Article I, § 12 of
the Indiana Constitution provides that justice shall be administered speedily and without delay.
In reviewing claims of speedy trial rights, Indiana and federal courts apply the
analysis established in
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182,
33 L. Ed. 2d 101 (1972). Sweeney v. State, 704 N.E.2d 86,
102 (Ind. 1998), cert. denied, 527 U.S. 1035, 119 S. Ct. 2393, 144
L. Ed. 2d 793 (1999). The Barker analysis employs four factors:
(1) length of delay, (2) defendants assertion of his right, (3) the governments
reason for the delay, and (4) the prejudice to the defendant. Id.
The length of the delay is to some extent a triggering mechanism.
Lockert v. State, 711 N.E.2d 88, 91 (Ind. Ct. App. 1999). Until
there is some delay which is presumptively prejudicial, there is no necessity for
inquiry into the other factors that go into the balance. Id.
A post-accusation delay exceeding one year has been termed presumptively prejudicial to a
defendant and triggers the Barker analysis. Vermillion v. State, 719 N.E.2d 1201,
1206 (Ind. 1999) (citing United States v. Doggett, 505 U.S. 647, 652 n.
1, 112 S. Ct. 2686, 2691 n. 1, 120 L. Ed.2d 520, 528
n. 1); Danks v. State, 733 N.E.2d 474, 481 (Ind. Ct. App. 2000),
trans. denied. See also Sturgeon v. State, 683 N.E.2d 612, 616 (Ind.
Ct. App. 1997), trans. denied.
Here, the length of the delay between accusation and trial was 113 days.
Our research has disclosed no reported Indiana case in which a time
period less than one year was held to have triggered the
See, e.g., Sauerheber v. State, 698 N.E.2d 796, 805 (Ind. 1998) (delay
from arrest to trial of one year triggered analysis); Lahr v. State, 615
N.E.2d 150, 152 (Ind. Ct. App. 1993) (eighteen-month delay triggered analysis). We
hold that under the circumstances of this case, a 113-day delay is not
presumptively prejudicial such that the Barker analysis is triggered. Hamptons constitutional right
to a speedy trial was not violated.
Hampton next contends that the State presented insufficient evidence to support his conviction
for neglect of a dependent. His conviction is based on his failure
to send M.C.H. to school. Hampton asserts that he was home schooling
M.C.H. and was therefore not violating the law because he was providing M.C.H.
When reviewing a claim of sufficiency of the evidence, we do not reweigh
the evidence or judge the credibility of witnesses.
Hamilton v. State, 694
N.E.2d 1171, 1172 (Ind. Ct. App. 1998). We look to the
evidence and the reasonable inferences therefrom that support the verdict. Id. The
conviction will be affirmed if evidence of probative value exists from which the
factfinder could find the defendant guilty beyond a reasonable doubt. Id.
IC 35-46-1-4(a), the statute defining educational neglect, provides: A person having the
care of a dependent, whether assumed voluntarily or because of a legal obligation,
who knowingly or intentionally . . . deprives the dependent of education as
required by law  commits neglect of a dependent, a Class D felony.
The State introduced evidence that M.C.H. had not been attending classes at
the public school at which Tina had enrolled him.
Hampton points to
Hamilton, 694 N.E.2d at 1173, in which this court reversed
the convictions of a mother for educational neglect where the evidence showed only
that her children had several unexcused absences from school. There, we held
that the State is required to prove more than a persons violation of
the compulsory attendance law to convict that person of felony neglect. Rather,
the neglect of a dependent statute requires that a child be deprived of
an education as required by law. Id.
However, Hamilton involved a custodial parent. Here, Tina, not Hampton, was
the custodial parent. The custodial parent has the right to make educational
decisions for the child. Neudecker v. Neudecker, 577 N.E.2d 960, 962 (Ind.
1991). Therefore, the education required by law in this case is the
education selected for M.C.H. by his custodial parent, which is the public school
in which he was enrolled. There is ample evidence that M.C.H. did
not attend the public school while at Hamptons home. Thus, there is
sufficient evidence to support Hamptons conviction for educational neglect.
BAILEY, J., and BROOK, J., concur.
See IC 35-42-3-4.
See IC 35-46-1-4.