MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                     FILED
regarded as precedent or cited before any                        Feb 12 2019, 9:16 am

court except for the purpose of establishing                         CLERK
                                                                 Indiana Supreme Court
the defense of res judicata, collateral                             Court of Appeals
                                                                      and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan Shipley                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrey Farafonov,                                        February 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-363
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara Cook
Appellee-Plaintiff.                                      Crawford, Judge
                                                         Trial Court Cause No.
                                                         49G09-1703-F6-10934



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-363 | February 12, 2019         Page 1 of 11
                                          Statement of the Case
[1]   Andrey Farafonov appeals his conviction of battery against a public safety
                                          1
      official, a Level 6 felony, and the trial court’s order that he pay a fine, costs,

      and fees. We affirm his conviction. With regard to the fine, costs, and fees, the

      judgment of the trial court is vacated and remanded for further proceedings.


                                                    Issues
[2]   Farafonov presents two issues for our review, which we restate as:


                 I. Whether the combination of alleged instructional error and
                 comments by the prosecutor produced fundamental error.


                 II. Whether the trial court erred by failing to conduct an adequate
                 indigency hearing.


                                   Facts and Procedural History
[3]   In March 2017, an Indianapolis police officer was dispatched to a downtown

      street location for “a person down.” Tr. Vol. II, p. 75. When the officer arrived

      at the location, she found four men: one in the street, one near a concrete wall,

      and two near a fence “completely passed out turning blue with their heads

      slumped over.” Id. at 80. She also saw hypodermic needles and “roaches” as

      are used for smoking marijuana or spice. Id. at 82. Based upon her training




      1
          Ind. Code § 35-42-2-1 (2016).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-363 | February 12, 2019   Page 2 of 11
      and assessment of the scene, the officer believed the men had overdosed on a

      narcotic. One of the four men later stated that they had smoked spice.


[4]   One of the first paramedics to arrive on the scene began treating Farafonov,

      who was blue, unconscious, and not breathing. She ventilated Farafonov and

      administered Narcan. Farafonov was then secured to a stretcher with ankle and

      waist straps and loaded into an ambulance. At that point, he became violent.

      His eyes got very large, he bared his teeth, and he began growling at the

      paramedic and punching her. Farafonov struck the paramedic’s arms

      numerous times, causing bruising that lasted three to four weeks, and pulled the

      microphone off her uniform. A squad medic in the ambulance attempted to

      pull Farafonov off of the paramedic but was unable to do so. With the help of

      others, Farafonov was restrained, but he continued screaming, grunting,

      growling, and “acting very irate.” Id. at 95. At trial, the paramedic and an

      EMT testified that people who have ingested spice may exhibit characteristics

      such as unconsciousness, not breathing, dilated pupils, erratic behavior, and

      behaving violently.


[5]   Farafonov testified at trial that he was residing at a local mission and was

      socializing with friends outside the mission building. He stated that he

      accepted a shot or two sips of a mixture of vodka and Sprite from a friend and

      that it “was laced with unknown poison.” Id. at 124. He had no recollection of

      battering the paramedic, and he denied taking any spice or other drugs.

      Although not evidence, during his closing argument Farafonov stated that he

      “strongly believe[d] that it was a chemical reaction when [he] was treated inside

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-363 | February 12, 2019   Page 3 of 11
      the ambulance that caused [him] to go ballistic to cause this accident.” Id. at

      142.


[6]   The jury found Farafonov guilty as charged, and he was sentenced to 730 days,

      with 365 days on home detention followed by 365 days on probation. He now

      appeals.


                                    Discussion and Decision
                                        I. Fundamental Error
                                             A. Jury Instruction

[7]   Farafonov first contends the trial court erred by failing to instruct the jury on

      the defense of involuntary intoxication. He acknowledges that he failed to

      tender a proposed instruction to the court, but he claims the trial court should

      have sua sponte instructed the jury.


[8]   As a preliminary matter, we note that Farafonov chose to proceed pro se at

      trial. It is well settled that pro se litigants are held to the same legal standards as

      licensed attorneys. Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016),

      trans. denied. This means that they must follow the established rules of

      procedure and accept the consequences when they fail to do so. Id. It is not the

      court’s role to become an advocate for a party. Id.


[9]   When “the claimed error is failure to give an instruction, a tendered instruction

      is necessary to preserve error because, without the substance of an instruction

      upon which to rule, the trial court has not been given a reasonable opportunity

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-363 | February 12, 2019   Page 4 of 11
       to consider and implement the request.” Mitchell v. State, 742 N.E.2d 953, 955

       (Ind. 2001). Thus, failure to tender an instruction results in waiver of the issue

       for review. Id. Nevertheless, Farafonov attempts to avoid waiver by asserting

       that fundamental error occurred due to the trial court’s failure to sua sponte

       instruct the jury on the defense of involuntary intoxication in combination with

       statements by the prosecutor during closing argument.


[10]   The fundamental error doctrine is extremely narrow and applies only when the

       error amounts to a blatant violation of basic principles, the harm or potential for

       harm is substantial, and the resulting error denies the defendant fundamental

       due process. Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App. 2010), trans.

       denied. Stated another way, fundamental error is error that makes a fair trial

       impossible or constitutes a clearly blatant violation of basic and elementary

       principles of due process presenting an undeniable and substantial potential for

       harm. Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). This doctrine is

       available only in egregious circumstances. Brown v. State, 929 N.E.2d 204, 207

       (Ind. 2010).


[11]   The involuntary intoxication statute provides:


               It is a defense that the person who engaged in the prohibited
               conduct did so while he was intoxicated, only if the intoxication
               resulted from the introduction of a substance into his body:


               (1) without his consent; or




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-363 | February 12, 2019   Page 5 of 11
               (2) when he did not know that the substance might cause
               intoxication.


       Ind. Code § 35-41-3-5 (1997). Farafonov presented evidence that he voluntarily

       drank his friend’s vodka/Sprite mixture. The evidence established neither

       forced introduction of an intoxicant nor ignorance that the substance was an

       intoxicant. Instead, Farafonov admitted that he drank the vodka mix willingly.

       His unsubstantiated statement at trial that the vodka/Sprite mix contained an

       unknown poison was merely self-serving and seemingly far-fetched. Moreover,

       the credible evidence indicated that he had consumed a narcotic. Thus, the

       failure of the trial court to sua sponte instruct the jury on the defense of

       involuntary intoxication in this case is not tantamount to an undeniable and

       blatant violation of basic principles of due process.


                                        B. Prosecutorial Statements

[12]   During closing argument, one of the deputy prosecutors stated, “Now the

       Defendant has suggested that his behavior is the result of intoxication of some

       sort. Voluntary or involuntary, it doesn’t matter. Indiana [l]aw is clear,

       intoxication is not a defense[,] and we’ve heard nothing other than his self-

       serving testimony that suggest[s] it was anything other than voluntary whether

       it was alcohol or spice or some other illicit narcotic.” Tr. Vol. II, p. 141.

       Farafonov argues that the court’s alleged instructional error, discussed supra,

       combined with the deputy prosecutor’s statement during closing argument

       amount to fundamental error.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-363 | February 12, 2019   Page 6 of 11
[13]   While the deputy prosecutor did misspeak during closing argument, the State

       had begun the trial by explaining to the jury panel during voir dire that

       involuntary intoxication is a defense:


               So, just to give you an overview of the law of Indiana. If you are
               voluntarily intoxicated, it doesn’t matter but if you are
               involuntarily intoxicated; that can be a defense . . . . [T]he
               Defense can always put forth an affirmative [d]efense.
               Involuntary Intoxication is one of those defenses and they would
               have to prove that it’s more likely than not that their impairment
               or intoxication was unintentional (involuntary). So, they would
               have the burden to prove that after we have essentially made our
               case.


       Supp. Tr. Vol. II, p. 20. Moreover, on rebuttal closing argument, a second

       deputy prosecutor corrected the first deputy’s misstatement: “Voluntary

       intoxication[ ] is not a defense in the State of Indiana. Involuntary intoxication

       can be a defense . . . .” Id. at 144. Thus, in view of the fact that the

       misstatement by the deputy prosecutor was book-ended by the State’s correct

       explanation of the defense of involuntary intoxication during voir dire and its

       correct statement later in rebuttal that involuntary intoxication is a defense, the

       misstatement was de minimis. Farafonov has not met the onerous burden of

       showing fundamental error.


[14]   Therefore, having found neither error caused by the trial court’s failure to sua

       sponte instruct the jury nor error caused by the State’s misstatement, we find

       nothing about the combination of the two to be so egregious as to rise to

       fundamental error.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-363 | February 12, 2019   Page 7 of 11
                                         II. Indigency Hearing
[15]   Farafonov next alleges that the trial court failed to conduct an adequate

       indigency hearing before imposing costs, a fine, and fees. Sentencing decisions

       include decisions to impose fees and costs, and we review a trial court’s

       sentencing decision for an abuse of discretion. Coleman v. State, 61 N.E.3d 390,

       392 (Ind. Ct. App. 2016). An abuse of discretion occurs when the decision is

       clearly against the logic and effect of the facts and circumstances before the

       court, or the reasonable, probable, and actual deductions to be drawn

       therefrom. Id. “If the fees imposed by the trial court fall within the parameters

       provided by statute, we will not find an abuse of discretion.” Berry v. State, 950

       N.E.2d 798, 799 (Ind. Ct. App. 2011).


[16]   If the trial court imposes costs or fines on a defendant, it is required to hold an

       indigency hearing. Ind. Code §§ 33-37-2-3(a) (2007) (costs), 35-38-1-18(a)

       (2007) (fines); see also Johnson v. State, 27 N.E.3d 793, 794-95 (Ind. Ct. App.

       2015) (explaining that trial court is required to hold indigency hearing for

       probation fees). Additionally, these two statutes give the trial court the

       discretion to suspend payment of costs and fines until the defendant has

       completed all or part of his sentence. See Ind. Code §§ 33-37-2-3(b), 35-38-1-

       18(b). If the court suspends payment, it shall conduct the indigency hearing at

       the time the costs and fines are due. Id. With regard to probation fees, this

       Court has stated that “[a] trial court acts within its authority when it chooses to

       wait and see if a defendant can pay probation fees before it finds the defendant

       indigent.” Johnson, 27 N.E.3d at 795. Thus, “[a]t the latest, an indigency

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-363 | February 12, 2019   Page 8 of 11
       hearing for probation fees should be held at the time a defendant completes his

       sentence.” Id.


[17]   Here, at sentencing the trial court imposed Farafonov’s sentence and then

       stated:


                 THE COURT: With regards to fines and cost, I see in your Pre-
                 sentence Investigation report that you have been employed at
                 other times.


                 DEFENDANT FARAFONOV: Yes, ma’am.


                 THE COURT: Okay. What kind of work have you done?


                 DEFENDANT FARAFONOV: I worked at the restaurant as a
                 prep cook and I also go to Culinary School. I am getting ready to
                 go to Culinary School to complete my training and then I will
                 have a job placement.


                 THE COURT: The Court at this time is going to fine you fifty
                 ($50) dollars, assess Court cost[s] of one hundred eighty-five
                 dollars and fifty cents ($185.50). In addition[ ], during the time
                 you are on Probation, the Court at this time is going to assess
                 Probation fees of one hundred ($100) dollars as the initial fee and
                 thirty ($30) dollars per month during the term of probation.


       Tr. Vol. II, pp. 159-60.


[18]   In Burnett v. State, 74 N.E.3d 1221, 1227 (Ind. Ct. App. 2017), a panel of this

       Court determined that a sufficient inquiry into a defendant’s ability to pay

       might include questions concerning his exact yearly income, his assets or debts,


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-363 | February 12, 2019   Page 9 of 11
       or his financial expenses that could have an impact on his ability to pay such as

       the cost of his rent, utilities, or transportation to and from work, medical

       expenses, or any dependents. The scant information obtained by the trial court

       in this case is not adequate to assess Farafonov’s ability to pay the $235.50 in a

       fine and court costs and the $460 in probation fees ordered by the court.

       Moreover, although not conclusive of Farafonov’s indigency, the court did find

       him indigent at his initial hearing on this charge and subsequently appointed a

       public defender to represent him in the current appeal. See Henderson v. State, 44

       N.E.3d 811, 815 (Ind. Ct. App. 2015) (court’s appointment of trial and

       appellate counsel implies finding of indigency but is not conclusive as to

       defendant’s ability to pay fines or costs).


[19]   The trial court erred in failing to make an adequate inquiry into Farafonov’s

       indigency or ability to pay the costs, fine, and fees ordered. Therefore, we

       remand with instructions to hold a hearing on Farafonov’s indigency or ability

       to pay.


                                                Conclusion
[20]   For the reasons stated, the judgment of the trial court is affirmed with respect to

       Farafonov’s conviction. The judgment of the trial court regarding the costs,

       fine, and fees owed by Farafonov is vacated and remanded for further

       proceedings consistent with this opinion.


[21]   Affirmed in part, vacated and remanded in part.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-363 | February 12, 2019   Page 10 of 11
Robb, J., and Tavitas, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-363 | February 12, 2019   Page 11 of 11
