Adam Horton v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 28, 2015
• Docket: 79A02-1410-CR-765
• Status: Published

Opinion

MEMORANDUM DECISION Jul 28 2015, 9:37 am 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 ATTORNEYS FOR APPELLEE Steven Knecht Gregory F. Zoeller Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Adam Horton, July 28, 2015

Appellant-Defendant, Court of Appeals Case No. 79A02-1410-CR-765 v. Appeal from the Tippecanoe Superior Court

State of Indiana, The Honorable Les A. Meade, Judge Trial Court Case No. Appellee-Plaintiff. 79D05-1401-FD-26

Mathias, Judge.

[1] Adam Horton (“Horton”) was convicted in Tippecanoe Superior Court of Class

D felony domestic battery. Horton raises two issues on appeal, which we restate

as: (1) whether Horton knowingly, intentionally, and voluntarily waived his

Court of Appeals of Indiana | Memorandum Decision No. 79A02-1410-CR-765 | July 28, 2015 Page 1 of 10 right to a jury trial, and (2) whether the evidence presented by the State is

sufficient to support Horton’s Class D felony domestic battery conviction.

[2] We affirm.

Facts and Procedural History

[3] On December 4, 2013, Horton and his girlfriend, Kebran Fettig (“Fettig”), were

spending time with Horton’s family at his father’s home near West Point,

Indiana. At some point that evening, Horton and Fettig had an argument, and

Fettig stormed out of the house. As she began to walk along a rural gravel road

leading away from the house, Horton followed her and continued to argue with

her. Eventually, he pushed her to the ground and straddled her, pinning her to

the ground. When Fettig tried to scream for help, Horton covered her mouth

with one hand and put his other hand around her throat. Horton tried to choke

Fettig and called her “a dumb bitch” and a “whore.” Tr. p. 38. He told her that

she “deserve[d] to die.” Id.

[4] After several minutes, Fettig was able to free herself and stand up, at which

point Horton struck her in the face. The two then noticed a car approaching.

When the car stopped at a nearby intersection, Fettig flagged down the driver

for help. The driver took Fettig to the police station. At the police station,

officers observed a scratch under Fettig’s nose, bruises on her arms, and

scratches on her stomach.

[5] On January 15, 2014, the State charged Horton with Class D felony domestic

battery, Class A misdemeanor domestic battery, two counts of Class D felony

Court of Appeals of Indiana | Memorandum Decision No. 79A02-1410-CR-765 | July 28, 2015 Page 2 of 10 strangulation, and Class A misdemeanor intimidation. The State dismissed the

Class A misdemeanor intimidation charge on September 25, 2014, and a jury

trial was held the same day on the remaining charges. The jury found Horton

guilty of Class A misdemeanor domestic battery and not guilty of the two

strangulation charges.

[6] Following the jury’s verdict, the following colloquy occurred:

Court: [D]o I understand you’re waiving the jury trial on Count IV? State: That’s correct judge. Court: And we still need to proceed on Count IV now? He was found guilty of the domestic battery. Defense Counsel: Yes, Judge. Court: Ok. How do you intend to proceed? As a bench trial? Defense Counsel: Yes. State: I’m sorry, Judge, I didn’t . . . Defense Counsel: Yes, as a bench trial.

Tr. pp. 139-40.

[7] As agreed, the Class D felony domestic battery enhancement proceeded to

bench trial. To prove that Horton had previously been convicted of domestic

battery, as required to enhance Horton’s Class A misdemeanor conviction to a

Class D felony conviction, the State presented evidence of Horton’s 2002

domestic battery conviction in the form of an unsigned copy of the sentencing

order, along with booking photos, the charging information, and the probable

cause affidavit. Importantly, Horton’s previous conviction occurred in the same

court as the present offense, and the State asked the trial court to take judicial

Court of Appeals of Indiana | Memorandum Decision No. 79A02-1410-CR-765 | July 28, 2015 Page 3 of 10 notice of its file in that cause, which the court did. The trial court took the

matter under advisement to review the evidence.

[8] On October 23, 2014, the trial court found Horton guilty of Class D felony

domestic battery and sentenced him to two and one half years, with one year

executed, one year in community corrections, and six months suspended to

probation.

[9] Horton now appeals.

I. Sufficiency

[10] Horton contends that the evidence is insufficient to support his Class D

domestic battery conviction. Our standard of review is well established:

When reviewing a sufficiency of the evidence claim, we neither reweigh the evidence nor judge the credibility of witnesses. Rather, we consider only the evidence that is favorable to the judgment along with the reasonable inferences to be drawn therefrom to determine whether there was sufficient evidence of probative value to support a conviction. We will affirm the conviction if there is substantial evidence of probative value from which a reasonable trier of fact could have drawn the conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt.

Staten v. State, 844 N.E.2d 186, 187 (Ind. Ct. App. 2006) (citations omitted),

trans. denied.

[11] To convict Horton of Class D felony domestic battery, the State first had to

prove beyond a reasonable doubt all the elements of Class A misdemeanor

domestic battery. Indiana Code section 35-42-2-1.3(a) provides that “[a] person

Court of Appeals of Indiana | Memorandum Decision No. 79A02-1410-CR-765 | July 28, 2015 Page 4 of 10 who knowingly or intentionally touches an individual who . . . is or was a

spouse of the other person . . . in a rude, insolent, or angry manner that results

in bodily injury to the person” commits Class A misdemeanor domestic battery.

[12] To enhance the Class A misdemeanor domestic battery to Class D felony

domestic battery, the State also had to prove that Horton has a previous,

unrelated domestic battery conviction. See Ind. Code § 35-42-2-1.3(b)(1).1

[13] Horton argues that the State provided insufficient evidence to prove that he had

a previous conviction for domestic battery. In order to establish the elements for

Class D felony domestic battery, the State submitted booking photos, the

charging information, the probable cause affidavit, and an unsigned sentencing

order from Horton’s 2002 conviction. The State also asked the trial court to take

judicial notice of its own file from Horton’s prior conviction, which had

occurred in the same court.

[14] Citing Abdullah v. State, 847 N.E.2d 1031 (Ind. Ct. App. 2006), Horton contends

that the unsigned sentencing order, which is the only evidence submitted by the

State that purports to prove a conviction rather than mere arrest and charging,

is insufficient to prove his prior conviction. In Abdullah, another panel of this

court held that an unsigned abstract of judgment, standing alone, is not

sufficient to prove a prior conviction for purposes of proving the defendant’s

status as a habitual offender. Id. at 1035. This court observed:

1 The statute in its current form defines Class D felony domestic battery as Level 6 felony domestic battery. Horton committed the present offense prior to the statute’s revision.

Court of Appeals of Indiana | Memorandum Decision No. 79A02-1410-CR-765 | July 28, 2015 Page 5 of 10 Prosecutors routinely admit a wide variety of readily-available evidence for this purpose, including but certainly not limited to copies of sentencing orders, case chronologies, plea agreements, testimony from prosecutors or others involved in or witness to the prior conviction, or transcripts from the convicting court’s proceedings. Unfortunately, in this case the State chose to prove Abdullah’s prior conviction using only an abstract of judgment, and that abstract was not signed by the presiding judge as required by Trial Rule 58. We can only speculate as to why the prosecutor here chose to forego all the other avenues typically available and rest his case on a piece of evidence that was subject to challenge.

Id. at 1034-35 (citing Indiana Trial Procedure Rule 58).

[15] However, at the time Abdullah was decided, the general rule in Indiana was that

a trial court could not take judicial notice “even of its own records in another

case previously before the court on a related subject with related parties.” Gray

v. State, 871 N.E.2d 408, 413 (Ind. Ct. App. 2007), trans. denied. Therefore, the

unsigned abstract was in fact the only evidence the State submitted to prove a

conviction. Now, however, the trial court is permitted to take judicial notice of

its own files. See Indiana Evidence Rule 201(b) (“the court may judicially notice

. . . records of a court of this state.”).

[16] Here, the trial court was asked to take judicial notice of its file in the previous

case and stated that it would. Horton did not object to the State’s request. Not

only was the trial court asked to take judicial notice of the records of a court, it

was asked to take judicial notice of its own records. We can presume that the

trial court did in fact review its earlier file and was aware of its contents, and

that those contents included evidence supporting the enhancement. Moreover,

Court of Appeals of Indiana | Memorandum Decision No. 79A02-1410-CR-765 | July 28, 2015 Page 6 of 10 a trial court is presumed to know and correctly apply the law. See Crider v. State,

984 N.E.2d 618, 624 (Ind. 2013).

[17] Unquestionably, the State could have done a better job of proving its case for

the enhancement and making the conviction apparent in the record, and we do

not intend to encourage prosecutors to rely on judicial notice to fill in the gaps

in evidence. It is still the State’s burden to prove the elements of the

enhancement beyond a reasonable doubt, and it should do so in a way that is

apparent on the face of the record. However, because the State asked the trial

court to take judicial notice of its own file, the trial court took the enhancement

under advisement to review the evidence, and the trial court is presumed to

know the applicable law, we conclude that the State presented sufficient

evidence to prove that Horton had a prior domestic battery conviction, and

therefore, sufficient evidence supported his Class D felony conviction.

II. Waiver of Jury Trial

[18] Horton next argues that because (1) no written waiver of his right to a jury trial

on the Class D felony count exists, and (2) his counsel, rather than Horton

himself, confirmed that Horton wished to proceed to bench trial, the waiver was

ineffective, and his Class D felony conviction should be vacated.

[19] The right to trial by jury is a fundamental right guaranteed by the Sixth

Amendment to the U.S. Constitution and by Article 1, Section 13 of the

Indiana Constitution. Coleman v. State, 694 N .E.2d 269, 278 (Ind. 1998). A

defendant’s waiver of the right “must be voluntary, knowing, and intelligently

Court of Appeals of Indiana | Memorandum Decision No. 79A02-1410-CR-765 | July 28, 2015 Page 7 of 10 made with sufficient awareness of the relevant circumstances surrounding its

entry and its consequences.” O’Connor v. State, 796 N.E.2d 1230, 1233 (Ind. Ct.

App. 2003) (citation omitted).

[20] Denying a defendant a jury trial in the absence of a knowing, voluntary, and

intelligent waiver is fundamental error. Johnson v. State, 6 N.E.3d 491, 496 (Ind.

Ct. App. 2014). A valid waiver requires affirmative action by the defendant,

O’Connor, 796 N.E.2d at 1233, and “must be elicited personally from the

defendant, either orally in open court or in writing.” Reynolds v. State, 703

N.E.2d 701, 704 (Ind. Ct. App. 1999). This court has determined:

A voluntary waiver occurs if the conduct constituting the waiver is the product of a free will; a knowing waiver is the product of an informed will; an intelligent waiver is the product of a will that has the capacity to understand; and a waiver is personal if it is made by the defendant.

Id. (citation omitted).

[21] Here, nothing in the record suggests that Horton did not understand his right to

a jury trial and the consequences of waiving that right. Although the

defendant’s personal desire to waive the right must be apparent from the record,

a trial court is not required to orally advise a defendant of his or her right to a

jury trial and the consequences of waiving that right. McSchooler v. State, 15

N.E.3d 678, 682–83 (Ind. Ct. App. 2014). Nor is counsel required “to explain

each and every possible detail concerning a jury trial in order for the defendant

to be sufficiently informed[.]” Reynolds, 703 N.E.2d at 704.

Court of Appeals of Indiana | Memorandum Decision No. 79A02-1410-CR-765 | July 28, 2015 Page 8 of 10 [22] The fact that Horton had just been through a jury trial on the Class A

misdemeanor count of his case suggests that he had “familiarity with the

judicial process, making it quite likely that he knew what a ‘jury’ was.” Poore v.

State, 681 N.E.2d 204, 207 (Ind. 1997). In addition, Horton was represented by

counsel when he waived his right to a jury trial, and in fact, Horton’s counsel

stated in open court and in Horton’s presence that Horton wished to waive his

right to a jury trial on the Class D felony enhancement, and Horton did not

object or state otherwise. It is reasonable to infer that Horton was acting upon

the advice of legal counsel and that the decision to waive the right to a jury trial

was a strategic one. See McSchooler, 15 N.E.3d at 683. Evidence of waiver as a

deliberate strategy supports the trial court’s conclusion that Horton made an

informed decision when he waived his right to a jury trial.

[23] We further note that a waiver of jury trial need not be written to be effective. See

Johnson v. State, 6 N.E.3d 491 (Ind. Ct. App. 2014) (noting that a defendant may

express the desire to waive his right to a jury trial through a colloquy in open

court). Here, Horton’s counsel’s confirmation that Horton wished to waive his

right to a jury trial on the Class D felony enhancement adequately reflects

Horton’s desire to waive this right.

[24] Under these facts and circumstances, we conclude that Horton knowingly,

voluntarily, and intelligently waived his right to a jury trial.

Court of Appeals of Indiana | Memorandum Decision No. 79A02-1410-CR-765 | July 28, 2015 Page 9 of 10 Conclusion

[25] For all of these reasons, we conclude that Horton knowingly, voluntarily, and

intelligently waived his right to a jury trial on his Class D felony enhancement

and that the State presented sufficient evidence to prove that Horton was guilty

of Class D felony domestic battery.

[26] Affirmed.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision No. 79A02-1410-CR-765 | July 28, 2015 Page 10 of 10