MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any
                                                                     May 25 2017, 8:35 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Richard Barber,                                         May 25, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1608-CR-1847
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Ronnie Huerta,
Appellee-Plaintiff.                                     Commissioner
                                                        Trial Court Cause No.
                                                        49G24-1501-F6-34



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1847 | May 25, 2017           Page 1 of 9
                                            Case Summary
[1]   Following a bifurcated trial, Richard Barber (“Barber”) was convicted of

      Possession of Marijuana, as a Class B Misdemeanor, 1 and Operating a Vehicle

      While Intoxicated (“OVWI”), as a Level 6 felony.2 Barber was also adjudicated

      a habitual vehicular substance offender.3 Barber now appeals, presenting the

      consolidated and restated issue of whether his right to a jury trial was violated.


[2]   We affirm in part, reverse in part, and remand with instructions.



                                  Facts and Procedural History
[3]   At some point after midnight on January 1, 2015, Officer Stacie Hanks

      (“Officer Hanks”) of the Indianapolis Metropolitan Police Department

      (“IMPD”) was driving home after a shift. While Officer Hanks was waiting at

      a stoplight, she saw a vehicle drive onto a median. Officer Hanks pulled behind

      the vehicle. She then used her phone flashlight, peered into the vehicle, and

      could see the outline of someone inside. Officer Hanks observed that the

      vehicle’s doors were locked, and no one responded to her knocks. At this point,




      1
        Ind. Code § 35-48-4-11(a)(1). We refer throughout to the substantive provisions of the Indiana Code in
      effect at the time of Barber’s offenses.
      2
          I.C. §§ 9-30-5-2, -5-3(a)(1).
      3
          I.C. § 9-30-15.5-2.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1847 | May 25, 2017               Page 2 of 9
      IMPD Officers Michael Kasper (“Officer Kasper”) and Darryl Miller (“Officer

      Miller”) arrived and took over the investigation.


[4]   Officer Kasper and Officer Miller could see a man—later identified as Barber—

      unconscious in the driver’s seat. The officers knocked on the window and

      shook the vehicle, but Barber did not respond. After obtaining a lockout kit, the

      officers unlocked the car, and began yelling at Barber and shaking him. When

      Barber did not respond, Officer Kasper called for emergency medical services.


[5]   While waiting for medical assistance, Officer Kasper rubbed Barber’s sternum,

      attempting to wake him. Barber then woke up, and the officers tried to remove

      him from the vehicle. Barber was unable to stand on his own. His breath

      smelled of alcohol, and his clothes smelled of raw marijuana. Barber was in

      and out of consciousness while the officers interacted with him. His eyes were

      glassy and his speech was slurred. Barber was arrested.


[6]   While searching Barber, the officers found a Crown Royal bag in his jacket

      pocket with approximately thirty-four grams of marijuana. Barber’s pants

      pockets contained a small baggie of marijuana and a digital scale. Officer

      Kasper also saw an empty bottle of alcohol on the vehicle floorboard.


[7]   The State charged Barber with Operating a Vehicle While Intoxicated, and

      sought a felony elevation, alleging that Barber had a prior conviction within five

      years. The State also charged Barber with Possession of Marijuana, and alleged

      that Barber was a habitual vehicular substance offender. A trial was scheduled



      Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1847 | May 25, 2017   Page 3 of 9
      for April 19, 2016, and before the jury was selected, Barber’s counsel advised

      the trial court as follows:


              Counsel:                 In the event that we go to the second and
                                       third phases, the [elevation] for the felony
                                       OVWI, and then the habitual [vehicular
                                       substance offender enhancement] . . . we
                                       would stipulate to the prior convictions.”


              Trial Court:             All right. So in the event that it is necessary
                                       to go to a second or a third phase, defense[,]
                                       you agree that you would waive your right to
                                       trial by jury on that, correct?


              Counsel:                 Yes.


[8]   (Tr. at 4-5.) A jury trial commenced and Barber was found guilty of Possession

      of Marijuana, as a Class B misdemeanor, and Operating a Vehicle While

      Intoxicated, which would independently constitute a Class A misdemeanor.

      After the jury returned its verdict, the following exchange occurred:

              Trial Court:             All right. Before all of the jurors are gone,
                                       are you going to waive the next two phases[,]
                                       Mr. Colasessano?


              Counsel:                 Yes, Judge. Yes.


              Trial Court:             All right. We’ll show then - are you okay
                                       with that[,] Mr. Skates?




      Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1847 | May 25, 2017   Page 4 of 9
               State:                   Yeah. I think . . . my understanding is that
                                        basically they were stipulating on the basis of
                                        the underlying.


               Trial Court:             Okay. All right. That’s what we’ll do then.
                                        We’ll show that the parties stipulate that
                                        there was a prior OVWI [that] would
                                        enhance it to the Level 6 Felony. Is that
                                        correct?


               Counsel:                 Yes.


               Trial Court:             All right, and because of that, then there will
                                        be a third phase [because] he is also charged
                                        with HVSO. And you agree that because of
                                        having the prior and now this [OVWI,] that
                                        qualifies him to be a HVSO. Is that correct?


               Counsel:                 Yes.


       (Tr. at 67-68.)

[9]    The trial court then set the matter for sentencing. On July 19, 2016, a

       sentencing hearing was held. Barber was sentenced on the Level 6 felony and

       Class B misdemeanor, and received a habitual offender sentence enhancement.

       His aggregate sentence was seven and one-half years.


[10]   This appeal ensued.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1847 | May 25, 2017   Page 5 of 9
                                    Discussion and Decision
[11]   Barber argues that there was no valid waiver of his right to a jury trial, and

       seeks a new trial on his felony elevation and habitual offender enhancement.

       The validity of a jury trial waiver is a question of law, which we review de novo.

       Horton v. State, 51 N.E.3d 1154, 1157 (Ind. 2016).


[12]   “A fundamental linchpin of our system of criminal justice is the right to a trial

       by jury.” Kellems v. State, 849 N.E.2d 1110, 1112 (Ind. 2006). This right has

       constitutional origins. See U.S. Const. amend. VI; Ind. Const. art. 1, § 13.

       Moreover, in Indiana, waiver of this right is governed by Indiana Code section

       35-37-1-2.4 Kellems, 849 N.E.2d at 1112. The Indiana Supreme Court has

       concluded that this “statute, largely unchanged since its original enactment in

       1852, confers the authority to waive on the defendant—not the defense

       attorney.” Horton, 51 N.E.3d at 1158. In other words, “the right to jury

       trial . . . may be waived by one, and only one, person—the defendant. Unless

       the defendant personally communicates to the judge a desire to waive that right,

       he must receive a jury trial.” Id. at 1155; see Kellems, 849 N.E.2d at 1113-14.

       Violation of the right to a jury trial is fundamental error, and cannot be

       considered harmless. See Horton, 51 N.E.3d at 1160.




       4
         This statute provides: “The defendant and prosecuting attorney, with the assent of the court, may submit
       the trial to the court. Unless a defendant waives the right to a jury trial under the Indiana Rules of Criminal
       Procedure, all other trials must be by jury.” I.C. § 35-37-1-2.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1847 | May 25, 2017                  Page 6 of 9
[13]   Here, Barber was entitled to a jury trial on both the felony elevation and the

       habitual enhancement. See Ind. Const. art. 1, § 13 (“In all criminal

       prosecutions, the accused shall have the right to a public trial, by an impartial

       jury”); see I.C. § 9-30-15.5-2(c) (providing that the “jury shall reconvene” for the

       habitual phase in matters concerning habitual vehicular substance offenders).

       The State does not dispute that Barber never personally waived his right to a

       jury trial, as was required. Rather, the State argues that the error was invited.


[14]   The “‘doctrine of invited error is grounded in estoppel,’ and forbids a party to

       ‘take advantage of an error that [he] commits, invites, or which is the natural

       consequence of [his] own neglect or misconduct.’” Brewington v. State, 7 N.E.3d

       946, 975 (Ind. 2014) (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)).

       Even fundamental errors may be invited. Id. at 977.


[15]   The State argues that the error was invited because Barber’s counsel stipulated

       to certain facts as part of a strategic “effort to persuade the sentencing court that

       he had accepted responsibility for his actions.” (Appellee’s Br. at 10.) Yet,

       even assuming the stipulation was part of a sentencing strategy, we cannot say

       that the stipulation—in and of itself—is what produced the instant error.

       Indeed, a stipulation is a form of admission that is to be presented to the trier of

       fact. See Stewart v. Alunday, 53 N.E.3d 562, 568 (Ind. Ct. App. 2016) (noting

       that “evidentiary admissions can be accepted or rejected by the trier of fact” and

       “judicial admissions are conclusive and binding on the trier of fact”). Here,

       absent valid waiver, the proper trier of fact was the jury, and the jury could have

       received the stipulation. Thus, the effect of a stipulation, standing alone, is not

       Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1847 | May 25, 2017   Page 7 of 9
       to convert a jury trial into a bench trial. Rather, here, the error arose not from

       the stipulation, but from an invalid jury trial waiver that the trial court accepted.

       Thus, we cannot say that Barber invited the error by electing to stipulate.5


[16]   Under these circumstances, there was no valid waiver of Barber’s right to a jury

       trial, and Barber did not invite the error.6 The trial court therefore erred in

       depriving Barber of a jury trial on the OVWI felony elevation and the habitual

       offender enhancement, and a new trial is warranted on these allegations.7



                                                   Conclusion
[17]   The trial court erred in conducting a bench trial on certain allegations without

       obtaining a valid jury trial waiver. We affirm Barber’s conviction of Possession




       5
         The State also points out that Barber’s counsel requested dismissal of the jury, but such a request cannot
       constitute invited error, else the personal-waiver requirement would be rendered meaningless. Moreover, in
       arguing invited error, the State directs us to reasoning articulated in Bunting v. State, 854 N.E.2d 921 (Ind. Ct.
       App. 2006), trans. denied, a case in which this Court determined that the right to a jury trial was not violated.
       Bunting, however, is distinguishable. In that case, after the jury had returned a guilty verdict, defense counsel
       advised the trial court of a stipulation concerning the existence of a prior conviction. Thereafter, the jury was
       dismissed without objection, and the defendant personally admitted in open court to having the prior
       conviction. Thus, in Bunting, there was at least some degree of personal communication by the defendant
       indicating the defendant’s personal desire to waive his right to a jury trial. Here, however, there was no such
       personal communication.
       6
        We note that even if we were to conclude that Barber invited the error, we reach the merits through this
       opinion as a matter of judicial economy to preclude a likely post-conviction proceeding based on ineffective
       assistance of counsel on this issue.
       7
         Barber also argues that the stipulation lacked detail, such that there is insufficient evidence to support his
       felony elevation and habitual enhancement. We disagree. Although the stipulation could have been more
       artfully executed, the stipulation indicated that Barber had a prior OVWI that would enhance the instant
       OVWI to a Level 6 felony and that, because of the instant OVWI, he was a habitual vehicular substance
       offender. Based on these admissions, a reasonable factfinder could find Barber guilty. See Griffith v. State, 59
       N.E.3d 947, 958 (Ind. 2016) (stating that we will reverse on a sufficiency-of-the-evidence claim only if “no
       reasonable factfinder could find the defendant guilty”).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1847 | May 25, 2017                   Page 8 of 9
       of Marijuana and leave intact the jury verdict concerning OVWI as a Class A

       misdemeanor. We vacate the OVWI felony elevation and the habitual offender

       adjudication, and remand for a new trial on these allegations.


[18]   Affirmed in part, reversed in part, and remanded with instructions.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1847 | May 25, 2017   Page 9 of 9
