MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 14 2019, 7:14 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mohamed M. Dadouch, March 14, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-745 v. Appeal from the Knox Superior Court State of Indiana, The Hon. Ryan S. Johanningsmeier, Appellee-Plaintiff. Judge Trial Court Cause No. 42D02-1706-CM-477
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-745 | March 14, 2019 Page 1 of 8 Case Summary [1] Mohamed Dadouch and his wife R.D. had a disagreement about whether to
discipline their child Z.D. Dadouch wished to leave with Z.D., and when R.D.
intervened, he punched her in the mouth and pushed her. Dadouch was tried
to the bench and found guilty of Class A misdemeanor domestic battery.
Dadouch claims that he did not validly waive his right to be tried by a jury and
that the State produced insufficient evidence to sustain his conviction. Because
we disagree, we affirm.
Facts and Procedural History [2] On June 11, 2017, Dadouch was playing outside with his son Z.D. in Oaktown
when Z.D. screamed as though he were being hurt. R.D., Dadouch’s wife and
Z.D.’s mother, told Z.D. that he should not scream like that, which upset
Dadouch. A short while later, Dadouch, who was still outside and angry,
wished to leave with Z.D., who had come inside. R.D. told Z.D. that he could
not go, which further upset Dadouch. Dadouch attempted to push by R.D.,
who was standing in the doorway, and punched her in the mouth, causing her
injury. R.D. also had a mark on her neck that occurred when Dadouch was
attempting to push by her. Knox County Sheriff’s Deputy Justin McBee was
dispatched to the scene and noticed that R.D. had a swollen mouth and that her
neck was red. Dadouch admitted to Deputy McBee that he had touched and
pushed R.D.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-745 | March 14, 2019 Page 2 of 8 [3] On June 14, 2017, the State charged Dadouch with Class A misdemeanor
domestic battery. Dadouch hired his own counsel and appeared with his
attorney at an initial hearing on June 21, 2017. That day, Dadouch signed an
advisement-of-rights form provided by the trial court, which provided, in part,
as follows: “You have a right to have a trial and for that trial to be public,
speedy, and by jury. This right to a jury trial can be lost if you do not meet
certain deadlines” Appellant’s App. Vol. II p. 18. On November 21, 2017,
Dadouch was arrested for failing to appear and signed a second advisement-of-
rights form, which contained the following: “For a criminal charge, you have
the right to have a trial and for that trial to be public, speedy, and by a jury. In
a misdemeanor case, you must request in writing a jury trial.” Appellant’s App.
Vol. III p. 3.
[4] On December 11, 2017, less than a week before Dadouch’s trial was set to
begin, he moved for a continuance because, inter alia, he had asked previous
counsels to request a jury trial but that no request had been made. Dadouch
also requested a jury trial, in which request he claimed that he “is unfamiliar
with the court system, speaks English as his second language, and has at times
encountered difficulty with effective communication with his previous counsels,
leading to their dismissal by Defendant[.]” Appellant’s App. Vol. III p. 11.
Finally, Dadouch requested an interpreter.
[5] The trial court conducted a hearing on Dadouch’s requests on December 18,
2017, which would have been Dadouch’s trial date. Dadouch argued that his
requests for a jury trial had not been filed by his previous attorneys due to a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-745 | March 14, 2019 Page 3 of 8 language barrier. The trial court denied Dadouch’s request for a jury trial as
untimely but granted the remaining motions. In reaching its decision, the trial
court indicated that it was open to reconsideration if Dadouch produced
evidence that he had asked previous counsels to request a jury trial but that they
had not done so.
[6] On March 19, 2018, Dadouch was tried to the bench. Before trial, Dadouch
renewed his request for a jury trial but did not produce any evidence that he had
asked his prior counsels to file a jury demand with the trial court. The State
reaffirmed its objection, claiming that the request was untimely. The trial court
again denied Dadouch’s request. The trial court found Dadouch guilty of Class
A misdemeanor domestic battery and sentenced him to one year of
incarceration, all suspended to probation.
Discussion and Decision I. Denial of Jury Trial [7] The right to a trial by jury is “a bedrock of our criminal justice system” and is
protected both by the Sixth Amendment to the United States Constitution as
well as Article 1, section 13, of the Indiana Constitution. Nunez v. State, 43
N.E.3d 680, 683 (Ind. Ct. App. 2015). Where a defendant is charged with a
misdemeanor, the right to a trial by jury is not self-executing and is controlled
by Indiana Rule of Criminal Procedure 22:
A defendant charged with a misdemeanor may demand trial by jury by filing a written demand therefor not later than ten (10) days before his first scheduled trial date. The failure of a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-745 | March 14, 2019 Page 4 of 8 defendant to demand a trial by jury as required by this rule shall constitute a waiver by him of trial by jury unless the defendant has not had at least fifteen (15) days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial by jury. The trial court shall not grant a demand for a trial by jury filed after the time fixed has elapsed except upon the written agreement of the state and defendant, which agreement shall be filed with the court and made a part of the record. If such agreement is filed, then the trial court may, in its discretion, grant a trial by jury. [8] It is well-established that a defendant in a misdemeanor case waives his right to
a jury trial by failing to request a jury trial within the time allotted under
Criminal Rule 22. Young v. State, 973 N.E.2d 643, 645 (Ind. Ct. App. 2012).
Any such waiver must be voluntary, knowing, intelligent, and personal.
Cheesman v. State, 100 N.E.3d 263, 270 (Ind. Ct. App. 2018). A valid waiver
may be inferred from the absence of a timely request for a jury trial if the record
also indicates that (1) the defendant was advised of his right to a jury trial and
the consequences of not filing a timely request for a jury trial, and (2) that the
defendant was capable of understanding the advisement. Hudson v. State, 109
N.E.3d 1061, 1064 (Ind. Ct. App. 2018).
[9] While there is no dispute that Dadouch’s request for a jury trial was untimely,
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 14 2019, 7:14 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mohamed M. Dadouch, March 14, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-745 v. Appeal from the Knox Superior Court State of Indiana, The Hon. Ryan S. Johanningsmeier, Appellee-Plaintiff. Judge Trial Court Cause No. 42D02-1706-CM-477
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-745 | March 14, 2019 Page 1 of 8 Case Summary [1] Mohamed Dadouch and his wife R.D. had a disagreement about whether to
discipline their child Z.D. Dadouch wished to leave with Z.D., and when R.D.
intervened, he punched her in the mouth and pushed her. Dadouch was tried
to the bench and found guilty of Class A misdemeanor domestic battery.
Dadouch claims that he did not validly waive his right to be tried by a jury and
that the State produced insufficient evidence to sustain his conviction. Because
we disagree, we affirm.
Facts and Procedural History [2] On June 11, 2017, Dadouch was playing outside with his son Z.D. in Oaktown
when Z.D. screamed as though he were being hurt. R.D., Dadouch’s wife and
Z.D.’s mother, told Z.D. that he should not scream like that, which upset
Dadouch. A short while later, Dadouch, who was still outside and angry,
wished to leave with Z.D., who had come inside. R.D. told Z.D. that he could
not go, which further upset Dadouch. Dadouch attempted to push by R.D.,
who was standing in the doorway, and punched her in the mouth, causing her
injury. R.D. also had a mark on her neck that occurred when Dadouch was
attempting to push by her. Knox County Sheriff’s Deputy Justin McBee was
dispatched to the scene and noticed that R.D. had a swollen mouth and that her
neck was red. Dadouch admitted to Deputy McBee that he had touched and
pushed R.D.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-745 | March 14, 2019 Page 2 of 8 [3] On June 14, 2017, the State charged Dadouch with Class A misdemeanor
domestic battery. Dadouch hired his own counsel and appeared with his
attorney at an initial hearing on June 21, 2017. That day, Dadouch signed an
advisement-of-rights form provided by the trial court, which provided, in part,
as follows: “You have a right to have a trial and for that trial to be public,
speedy, and by jury. This right to a jury trial can be lost if you do not meet
certain deadlines” Appellant’s App. Vol. II p. 18. On November 21, 2017,
Dadouch was arrested for failing to appear and signed a second advisement-of-
rights form, which contained the following: “For a criminal charge, you have
the right to have a trial and for that trial to be public, speedy, and by a jury. In
a misdemeanor case, you must request in writing a jury trial.” Appellant’s App.
Vol. III p. 3.
[4] On December 11, 2017, less than a week before Dadouch’s trial was set to
begin, he moved for a continuance because, inter alia, he had asked previous
counsels to request a jury trial but that no request had been made. Dadouch
also requested a jury trial, in which request he claimed that he “is unfamiliar
with the court system, speaks English as his second language, and has at times
encountered difficulty with effective communication with his previous counsels,
leading to their dismissal by Defendant[.]” Appellant’s App. Vol. III p. 11.
Finally, Dadouch requested an interpreter.
[5] The trial court conducted a hearing on Dadouch’s requests on December 18,
2017, which would have been Dadouch’s trial date. Dadouch argued that his
requests for a jury trial had not been filed by his previous attorneys due to a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-745 | March 14, 2019 Page 3 of 8 language barrier. The trial court denied Dadouch’s request for a jury trial as
untimely but granted the remaining motions. In reaching its decision, the trial
court indicated that it was open to reconsideration if Dadouch produced
evidence that he had asked previous counsels to request a jury trial but that they
had not done so.
[6] On March 19, 2018, Dadouch was tried to the bench. Before trial, Dadouch
renewed his request for a jury trial but did not produce any evidence that he had
asked his prior counsels to file a jury demand with the trial court. The State
reaffirmed its objection, claiming that the request was untimely. The trial court
again denied Dadouch’s request. The trial court found Dadouch guilty of Class
A misdemeanor domestic battery and sentenced him to one year of
incarceration, all suspended to probation.
Discussion and Decision I. Denial of Jury Trial [7] The right to a trial by jury is “a bedrock of our criminal justice system” and is
protected both by the Sixth Amendment to the United States Constitution as
well as Article 1, section 13, of the Indiana Constitution. Nunez v. State, 43
N.E.3d 680, 683 (Ind. Ct. App. 2015). Where a defendant is charged with a
misdemeanor, the right to a trial by jury is not self-executing and is controlled
by Indiana Rule of Criminal Procedure 22:
A defendant charged with a misdemeanor may demand trial by jury by filing a written demand therefor not later than ten (10) days before his first scheduled trial date. The failure of a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-745 | March 14, 2019 Page 4 of 8 defendant to demand a trial by jury as required by this rule shall constitute a waiver by him of trial by jury unless the defendant has not had at least fifteen (15) days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial by jury. The trial court shall not grant a demand for a trial by jury filed after the time fixed has elapsed except upon the written agreement of the state and defendant, which agreement shall be filed with the court and made a part of the record. If such agreement is filed, then the trial court may, in its discretion, grant a trial by jury. [8] It is well-established that a defendant in a misdemeanor case waives his right to
a jury trial by failing to request a jury trial within the time allotted under
Criminal Rule 22. Young v. State, 973 N.E.2d 643, 645 (Ind. Ct. App. 2012).
Any such waiver must be voluntary, knowing, intelligent, and personal.
Cheesman v. State, 100 N.E.3d 263, 270 (Ind. Ct. App. 2018). A valid waiver
may be inferred from the absence of a timely request for a jury trial if the record
also indicates that (1) the defendant was advised of his right to a jury trial and
the consequences of not filing a timely request for a jury trial, and (2) that the
defendant was capable of understanding the advisement. Hudson v. State, 109
N.E.3d 1061, 1064 (Ind. Ct. App. 2018).
[9] While there is no dispute that Dadouch’s request for a jury trial was untimely,
he claims on appeal that he did not intelligently waive his right to be tried by a
jury. Specifically, Dadouch claims that he did not understand the two
declaration-of-rights forms that he signed or know what a bench trial was before
his last trial counsel explained it to him. This is not the same argument
Dadouch made in the trial court, however, where he consistently argued that he
Court of Appeals of Indiana | Memorandum Decision 18A-CR-745 | March 14, 2019 Page 5 of 8 had instructed his various trial counsels to request a jury trial but that they had
not done so. It is well-settled that “[a] party may not object on one ground at
trial and seek reversal on appeal using a different ground.” Malone v. State, 700
N.E.2d 780, 784 (Ind. 1998). Moreover, Dadouch’s trial court argument fatally
undercuts his claim on appeal, as it represents an acknowledgment that he was,
in fact, fully aware of his right to a jury trial and that a request had to be made
in his case. Put another way, Dadouch attempted to assert a right in the trial
court which he now claims to have been unaware of at the time. By advancing
a new ground for relief on appeal, Dadouch has waived this claim for appellate
review, a claim that is without merit in any event.
II. Sufficiency of the Evidence [10] Dadouch contends that the State produced insufficient evidence to sustain his
conviction for Class A misdemeanor domestic battery. Where, as here, a
defendant challenges the sufficiency of the evidence used to convict him of a
crime on appeal, this court considers only the probative evidence and
reasonable inferences arising therefrom supporting the trial court’s decision.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). This court will affirm a
conviction unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt. Young v. State, 973 N.E.2d 1225, 1226 (Ind.
Ct. App. 2012). Put another way, reversal of a defendant’s conviction “is
appropriate only when a reasonable trier of fact would not be able to form
inferences as to each material element of the offense.” Purvis v. State, 87 N.E.3d
1119, 1124 (Ind. Ct. App. 2017), aff’d on reh’g, 96 N.E.3d 123 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-745 | March 14, 2019 Page 6 of 8 2018). This standard of review does not permit this court to reweigh the
evidence nor does it allow the court to judge the credibility of the witnesses who
testified below. McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018). In cases
where there is conflicting evidence in the record, this court considers the
evidence in the light most favorable to the trial court’s judgment. Drane, 867
N.E.2d at 146.
[11] Indiana Code section 35-42-2-1.3(a)(1) provides that a defendant is guilty of
Class A misdemeanor domestic battery when he touches a family or household
member in a rude, insolent, or angry manner. Under this statute, “[a]ny
touching, however slight, may constitute battery.” There is no dispute that
R.D. was a member of Dadouch’s household. Dadouch contends that the
evidence fails to establish that he touched R.D. in a rude, insolent, or angry
manner, or that he possessed the requisite intent to commit a domestic battery. 1
[12] The State produced ample evidence to sustain Dadouch’s conviction for
domestic battery. R.D. testified that Dadouch punched her in the mouth and
pushed her, either one of which would be sufficient to sustain his conviction. It
is well-settled that “[a]ny touching, however slight, may constitute battery.”
Impson v. State, 721 N.E.2d 1275, 1285 (Ind. Ct. App. 2000). R.D. also testified
that Dadouch “pulled back and punched me[,]” which is more than enough to
sustain an inference that he touched her intentionally. Tr. Vol. II p. 83. In
1 Dadouch also seems to suggest on appeal that the State failed to disprove a self-defense claim. Dadouch, however, made no such claim at trial, claiming only that he “really did not strike [R.D.] in any way.” Tr. Vol. II p. 165.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-745 | March 14, 2019 Page 7 of 8 addition, Deputy McBee testified that R.D. had a swollen mouth and that her
neck was red and that Dadouch admitted that he had touched and pushed R.D.
Dadouch’s argument that R.D. was not credible is nothing more than a request
to reweigh the evidence, which we will not do. See McCallister, 91 N.E.3d at
558.
[13] We affirm the judgment of the trial court.
Bailey, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-745 | March 14, 2019 Page 8 of 8