                                                                 Aug 15 2013, 5:40 am




FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

MICHAEL R. FISHER                             GREGORY F. ZOELLER
Indianapolis, Indiana                         Attorney General of Indiana

                                              ELLEN H. MEILAENDER
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

KENNETH MCBRIDE,                              )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 49A05-1211-CR-547
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Kurt M. Eisgruber, Judge
                          Cause No. 49G01-1203-FB-15543



                                   August 15, 2013

                             OPINION–FOR PUBLICATION

BAKER, Judge
          Following a jury trial, the appellant-defendant, Kenneth McBride, was found

guilty of Counts I and II, class B felony criminal Confinement,1 Counts III, IV, and V,

class B felony Robbery,2 and Count VI and VII, class C felony Battery,3 for which the

trial court sentenced McBride to an aggregate term of thirty years.

          McBride appeals, asking our Court to vacate all of his convictions or, in the

alternative, to revise his sentence pursuant to our authority under Indiana Appellate Rule

7(B). Specifically, McBride claims that the trial court committed reversible error when it

allowed him to proceed pro se because he did not make a knowing, voluntary, and

intelligent waiver of his right to counsel. McBride also contends that the trial court

committed fundamental error when it admitted evidence obtained through an improper

show-up identification procedure and that his thirty-year executed sentence is

inappropriate in light of the nature of the offenses and his character.

          Finding no reversible error and concluding that McBride’s sentence is not

inappropriate, we affirm.

                                          FACTS

          On March 7, 2012, around 4:30 p.m., Officer Ryan Irwin of the Indianapolis

Metropolitan Police Department (IMPD) responded to the dispatch of a robbery in

progress at the Oriental Market (Market), a grocery store on Lafayette Road owned by

1
    Ind. Code § 35-42-3-3.
2
    I.C. § 35-42-5-1.
3
    I.C. § 35-42-2-1

                                              2
Bay Le Zhu (Zhu) and her husband. Officer Irwin arrived within one minute and found

that the employees, two of whom had obvious injuries, and Zhu’s six-year-old son Brian

were locked inside the Market. Irwin also found a twelve gauge shotgun lying on the

ground next to the market.

       It was later established that Zhu, Brian, Zhu’s nephew Yixiu Chen (Yixiu), Kia

Wong (Wong) and his wife, Cai Nong Chen (Cai), were all at the market when McBride

and two other men, each armed and wearing dark clothing, gloves, and masks, entered the

Market through a back door and locked the door behind them.            The men confined

everyone in the kitchen, striking several of the victims with their guns and binding their

hands and legs with duct tape. After the men demanded money, Zhu gave them $1200

that she had in her pocket and was escorted out of the kitchen to the cash register, where

they took additional money. When Van Duong, a regular customer, came by, he noticed

that the door was locked even though the lights were on and the “open” sign was

displayed. Suspicious, Duong peered through the Market window and observed masked

men but none of the store employees. When he looked again, he saw Zhu taking money

from the register, and she gave him a sign to call for help.

       McBride and the other men escaped in Wong’s vehicle, taking with them Wong’s

cell phone, Yixius’s cell phone and many of his keys including his house and the Market

keys, Zhu’s purse and keys, the $1200 that Zhu had on her, and the money from the cash

register. Duong got a good look at McBride and provided the license plate number of the

getaway vehicle to the 911 dispatcher.      He also reported that the vehicle had traveled

                                              3
south on Lafayette Road. Officers located the vehicle after a citizen reported seeing

someone flee from the vehicle.

        At around 5:00 p.m., McBride and his co-defendant, Adrian Jackson,4 were

apprehended. They were found crouched down between a wood deck area and a garage,

wearing dark clothing and shoes matching those worn by the robbers. Around and under

the deck where McBride and Jackson were apprehended, the officers recovered several

pieces of dark clothing, including a stocking cap mask, three dark gloves, the distinctive

jacket worn by one of the men during the robbery with a Bic lighter in it that matched

McBride’s DNA, multiple cell phones, a set of keys, and a small purse, all of which were

items taken from the victims during the robbery.           Additionally, a piece of foreign

currency and a rifle with Jackson’s DNA were recovered. Officers also found $622 on

McBride and $1106 on Jackson.

       Jackson and McBride were arrested and taken to the police station and Zhu, Cai,

Wong, and Duong were brought over for a show-up identification.                All but Wong

identified either one or both men as the robbers with seventy to one hundred percent

certainty. Duong positively identified both men, stating that Jackson was the driver and

McBride was the front seat passenger in the getaway vehicle.

       On March 9, 2012, the State charged McBride with Counts I and II, class B felony

criminal confinement, Counts III, IV, and V, class B felony robbery, and Counts VI, VII,

VIII, class C felony battery. On March 13, 2012, McBride was appointed a public
4
 Adrian Jackson’s appeal has been assigned appellate cause number 49A05-1211-CR-553, and we hand
down that appeal contemporaneously with this one.
                                               4
defender. On that day he also made a pro se request for a speedy trial, but on May 10,

2012, his counsel requested a continuance, which the trial court granted. McBride was

unhappy about his appointed counsel’s decision to request a continuance despite his

speedy trial request and proceeded to file motions and briefs pro se. McBride claimed

that because his appointed counsel sought a continuance against his will and was not

doing what he asked her to do, she had violated his constitutional right to counsel as well

as the rules of professional conduct.

       On July 31, 2012, a waiver of counsel hearing was held, during which McBride

asked the trial court if he could proceed as co-counsel. This request was denied because

the trial court stated he was attempting to take the lead in his own defense, thus placing

his counsel at risk. McBride then petitioned the trial court to proceed pro se.

       At a later hearing on August 16, 2012, the trial court questioned McBride about

his knowledge of the requirements for pro se litigants and advised McBride of the

responsibilities, dangers, and disadvantages that he might face by proceeding pro se. The

trial court also told McBride he was responsible for objections and that objections are the

manner in which he could preserve issues for appeal. The trial court specifically told

McBride that if objections are not made during trial, that particular issue would be

waived on appeal. During the advisement of rights hearing, the trial court was not

convinced that McBride would be prepared to proceed pro se and expressed this concern

to McBride several times. McBride acknowledged the fact that he needed counsel but



                                             5
refused to allow his appointed counsel to represent him because according to him, his

rights had been violated by the appointed counsel.

       Having been informed of no specific instance of how McBride’s rights had been

violated by his counsel, the trial court told McBride that if he felt he needed counsel, he

would have to accept his appointed counsel because there was no evidence that the

appointed counsel had done anything wrong, and McBride did not have the right to

counsel of his choice.

       The trial court also verified that McBride had the educational background and

mental capacity to defend himself and that no one had made either promises or threats to

coerce him into waiving his right to counsel. After the trial court read the advisement of

rights, McBride still insisted on representing himself and signed a written advisement

form stating that he had thoroughly reviewed all the dangers and disadvantages of self-

representation and had full knowledge of them.         Although the trial court granted

McBride’s request to proceed pro se, it also appointed McBride with “standby counsel”

that could answer questions about trial procedure.

       A jury trial was held from September 17-19, 2012. On September 19, 2012, the

State dismissed Count VIII, and the jury found McBride guilty on Counts I through VII.

During McBride’s sentencing hearing on October 5, 2012, the trial court merged Count I

into II, Count VI into Count III, and Count VII into Count IV and sentenced McBride to

six years of incarceration on Count II and eight years each on Counts III, IV, and V, with



                                            6
each sentence to run consecutively, for a total aggregate sentence of thirty years.

McBride now appeals.

                            DISCUSSION AND DECISION

                              I. Waiver of Right to Counsel

       McBride first alleges that the trial court erred when it permitted him to proceed

pro se because his waiver of his right to counsel was not knowing, voluntary, and

intelligent. Specifically, McBride claims that he only waived his right to counsel because

a judge pro tempore informed him that by his actions of filing pro se motions and

interposing objections, he had waived his right to counsel.

       The Sixth Amendment to the United States Constitution guarantees a criminal

defendant the right to counsel. Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003).

Implicit in the right to counsel is the right to self-representation. Drake v. State, 895

N.E.2d 389, 392 (Ind. Ct. App. 2008). However, before a defendant waives his right to

counsel and proceeds pro se, the trial court must determine that the defendant’s waiver of

counsel is knowing, voluntary, and intelligent. Jones, 783 N.E.2d at 1138. We review de

novo a trial court’s finding that a defendant waived his right to counsel. Miller v. State,

789 N.E.2d 32, 37 (Ind. Ct. App. 2003)

       “The right to counsel in a criminal proceeding does not mean that the defendant

has an absolute right to be represented by counsel of his own choosing.” Smith v. State,

474 N.E.2d 973, 978-79 (Ind. 1985). A trial court may, in the exercise of its sound

discretion, deny a defendant’s request for a new court appointed attorney. Luck v. State,

                                             7
466 N.E.2d 450, 451 (Ind. 1984). Such a ruling is reviewable only for an abuse of

discretion. Id.

       Our Supreme Court has stated that there are no specific “talking points” a trial

court must follow when advising a defendant of the dangers and disadvantages of

proceeding without counsel.    Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001).

Instead, a trial court needs only to come to a “considered determination” that the

defendant is making a knowing, voluntary, and intelligent waiver of his or her right to

counsel. Id. Our Supreme Court has adopted four factors for a trial court to consider

when determining whether a knowing, voluntary and intelligent waiver has occurred:

       the extent of the court’s inquiry into the defendant’s decision, other
       evidence into the record that establishes whether the defendant understood
       the dangers and disadvantages of self-representation, the background and
       experience of the defendant, and the context of the defendant’s decision to
       proceed pro se.

Id. at 1127-28. In making this analysis, a trial court is in the best position to assess

whether the defendant has made a knowing, voluntary, and intelligent waiver, and the

trial court’s finding will most likely be upheld “where the judge has made the proper

inquiries and conveyed the proper information, and reaches a reasoned conclusion.”

Poynter, 479 N.E.2d at 1128.

       We are perplexed by McBride’s involuntary waiver claim because he does not

claim that the trial court failed to advise him of the advantages of having an attorney

represent him. He makes no argument that the four Poynter factors were not met in his

case but instead claims that he only waived his right to counsel because at a waiver of

                                           8
counsel hearing on July 31, 2012, a judge pro tempore informed him that he had waived

his right to counsel by his actions of filing pro se motions and interposing objections.

This is inaccurate because the record clearly shows that the judge pro tempore did not

explicitly tell McBride that he had waived his rights by filing motions and briefs pro se.

Instead, McBride was informed that if he wished to represent himself and continue filing

motions and briefs pro se, the court would have to relieve his counsel of her obligations

because McBride was attempting to take the lead in his own defense, thus placing his

attorney at risk. Tr. p. 435. The trial court further stated that if McBride wished to allow

his counsel do her job, she would continue to represent him and that this was his choice.

Id. Moreover, not once during the August 16, 2012 hearing did McBride express to the

trial court that he was waiving his right to counsel because he was advised by the judge

pro tempore that his rights had already been waived.

       McBride also makes the argument that he had requested, more than once, that the

trial court appoint him alternative counsel but that his request was denied, thus showing

that his waiver of right to counsel was involuntary. We reject McBride’s contention

because McBride is not entitled to appointed counsel of his choosing. Smith, 474 N.E.2d

at 978-79. And he presented no evidence establishing that his appointed counsel was

ineffective. Accordingly, this argument fails.

                                II. Show-up Identification

       McBride also claims that the trial court committed fundamental error when it

admitted evidence obtained through an improper show-up identification procedure.

                                             9
Specifically, he argues that the show-up identification was overly suggestive because he

was in handcuffs and the victims were informed before the identification that the police

had recovered their properties from the defendant. McBride further contends that even

though he failed to object at trial, the admission of the show-up identification evidence

was fundamental error.

       The admission or exclusion of evidence falls within the sound discretion of the trial

court, and its determination regarding the admissibility of evidence is reviewed only for an

abuse of discretion. Gordon v. State, 981 N.E.2d 1215, 1217 (Ind. Ct. App. 2013). An

abuse of discretion occurs when the trial court’s decision is clearly against the logic and

effects of the facts and circumstances before the court. Id. To preserve an error for

review, the specific objection relied upon on appeal must have been stated in the trial

court as a basis for the objection. Hale v. State, 976 N.E.2d 119, 123 (Ind. Ct. App. 2012).

Thus, a claim may be waived for the purposes of an appeal where the defendant failed to

object that the evidence was improperly admitted. Id. at 1218.

       As discussed above, the trial court specifically informed McBride that he would be

responsible for objections and that those objections were how McBride would preserve

errors for appeal. Tr. p. 453. The trial court further advised McBride that if he failed to

make objections, he would waive those errors on appeal. Id. McBride stated that he

understood these advisements. Id.




                                            10
       McBride admits that he did not oppose the admission of the show-up identification

and that he did not move to suppress this evidence or object to its admission at trial.

Appellant’s Br. p. 19. Thus, these issues are waived.

        McBride attempts to avoid waiver by invoking the fundamental error doctrine. In

support of this contention, McBride claims that the show-up identification procedure was

unduly suggestive because the suspects were the only choice offered, as opposed to a line-

up or photo array where multiple options are presented to the witnesses. However, the

fundamental error doctrine is an extremely narrow doctrine and “applies only when the

error constitutes a blatant violation of basic principles, the harm or potential for harm is

substantial, and the resulting error denies the defendant fundamental due process.”

Gordon, 981 N.E.2d at 1218.

       Even though our Supreme Court has cautioned against one-on-one show-up

identifications because of their inherent suggestiveness, identification evidence gathered

via a show-up procedure is not subject to a per se rule of exclusion in accordance with the

fundamental error doctrine.    Id.   Rather, the admissibility of show-up identification

evidence turns on an evaluation of the totality of the circumstances and whether those

circumstances lead to the conclusion that the confrontation was conducted in a manner

that could guide a witness into making a mistaken identification. Id.

       In Mitchell v. State, this Court listed several factors for trial courts to consider

when determining whether show-up identification evidence was permissible, including the

witness’s opportunity to view the criminal, the distance between the witness and the

                                            11
criminal during the crime, the lighting conditions, and the length of time between the

commission of the crime and the show-up identification. 690 N.E.2d 1200, 1204 (Ind. Ct.

App. 1998)

       Here, the crime scene was well-lit, and the surveillance video shows that the mask

did not completely hide their facial features. State’s Ex. 11. Yixiu testified that he could

see the shape of the faces of two of the robbers because the masks were very thin. Tr. p.

85-86. The show-up identification also occurred soon after the robbery, and the other

witnesses presented testimony regarding their identification of McBride. Moreover, the

first officer was at the scene around 4:30 p.m., McBride and Jackson were apprehended

few blocks away around 5:00 p.m., and the witnesses were brought in for the show-up

identification shortly thereafter. Id. at 53-54, 86, 198.

       Under these circumstances, McBride has failed to show that the show-up

identification was unduly suggestive. The State presented the surveillance video at trial as

well as evidence that McBride and Jackson were apprehended wearing the same clothes

the robbers were said to have been wearing with other stolen items found were they were

apprehended. Id. at 255-65, 283; State’s Ex. p. 11, 48-53.

       Nevertheless, McBride maintains that the show-up identification was unduly

suggestive because the witnesses were told by the police that they had recovered the stolen

property from them before the witnesses were asked to make the identification.

Appellant’s Br. p. 18. However, Cai did not testify that any police officer told her

anything that would have influenced her identification, and none of the other witnesses

                                              12
testified that they saw the items observed by Cai or that they were influenced by anything

leading up to their identifications.

       As a result, when considering the circumstances here, McBride’s claim of

fundamental error fails.

                                       III. Sentencing

                                   A. Abuse of Discretion

       McBride next argues that the trial court erred in imposing consecutive sentences.

Specifically, he claims that even though he was sentenced to less than the advisory term

on each of the class B felonies, the trial court erred by ordering that his sentences run

consecutively, especially considering the fact that he has a minor criminal history.

       The decision to impose consecutive sentences lies within the discretion of the trial

court. Ind. Code § 35-50-1-2; Gilliam v. State, 901 N.E.2d 72, 74 (Ind. Ct. App. 2009).

However, a trial court is required to state its reasoning for imposing consecutive

sentences. Gilliam, 901 N.E.2d at 74. In order to impose consecutive sentences, a trial

court must find at least one aggravating circumstance. Owens v. State, 916 N.E.2d 913,

917 (Ind. Ct. App. 2009). It is a well-established principle that the existence of multiple

crimes or victims constitutes a valid aggravating circumstance that a trial court may

consider in imposing consecutive sentences. O’Connell v. State, 742 N.E.2d 943, 952

(Ind. 2001).

       During McBride’s sentencing hearing, the trial court stated that the sentences

should run consecutively because McBride and his co-defendant had committed the

                                            13
crimes against multiple victims in the presence of a six-year-old. Tr. p. 428. These are

indeed valid aggravating circumstances that can be used to impose consecutive sentences.

       McBride also alleges that the consecutive sentences are not appropriate because he

has a minor criminal history. Appellant Br. p. 20. He further claims that he is the father

of a three-year-old daughter and that imprisonment would result in undue hardship to him

or his dependent. Id. at 24-25. Thus, it appears that McBride is arguing that the trial court

erred by failing to find mitigating factors that were supported by the evidence.

       Although the failure to find mitigating circumstances that are clearly supported by

the record may suggest they were overlooked, a trial court does not have to afford the

same credit or weight to the proffered mitigating circumstance as a defendant may

suggest. Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999). Moreover, if the trial court does

not find the existence of a mitigating factor after it has been argued by counsel, the trial

court is not obligated to explain why it has found that the factor does not exist.

Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007).

       In this case, the trial court in fact considered McBride’s contentions that he had a

less severe criminal history than his co-defendant and that imprisonment would result in

undue hardship to him or his three-year-old daughter. However, the trial court found that

these factors were not significant and, thus, were not factors that would have an impact on

the sentence. Thus, McBride’s claim fails.

       McBride also alleges that because he proceeded pro se, he was unaware of the

statutory factors that the trial court could have considered under Indiana Code section 35-

                                             14
38-1-7.1 when sentencing him. Appellant Br. p. 24. McBride’s lack of knowledge

regarding this statute does not affect the trial court’s sentencing decision. As discussed

above, McBride’s waiver of counsel was knowingly, voluntarily, and intelligently made.

Thus, he was therefore responsible for knowing what statutory factors he should argue at

his sentencing hearing.

                                B. Inappropriate Sentence

      Finally, McBride argues that his sentence is inappropriate pursuant to Indiana

Appellate Rule 7(B). Under this rule, we have the constitutional authority to revise a

sentence if, after consideration of the trial court’s decision, this Court concludes the

sentence is inappropriate in light of the nature of the offense and the character of the

offender.   Ind. Appellate Rule 7(B).    It is the defendant’s burden to “persuade the

appellate court that his or her sentence has met the inappropriateness standard of review.”

Anglemyer, 868 N.E.2d at 494.

      Here, McBride has failed to make any discernible argument regarding the nature of

the robbery or his character. Thus, we find that he has failed to present a cogent argument

in support of this claim and has, therefore, waived the issue.       See Ind. App. Rule

46(A)(8)(a).

      Waiver notwithstanding, regarding the nature of the offenses, we note that the

advisory sentence is the starting point our legislature has selected as an appropriate

sentence for the crime committed. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

The advisory sentence for both class B felony criminal confinement and class B felony

                                           15
robbery is ten years with a sentencing range from six years to twenty years. I.C. § 35-50-

2-5. McBride was sentenced to six years on the felony confinement conviction and eight

years each on the felony robbery convictions.         Thus, for each of his convictions,

McBride’s sentences fell below the advisory term.

       Our review of the record reveals that McBride committed multiple crimes of

violence. McBride and the other men robbed the victims while armed with guns that they

used to physically assault the victims. They also bound the victims with duct tape and

confined them in the kitchen with guns pointed at them. And finally, they engaged in this

conduct in the presence of a six-year-old boy.

       Notwithstanding these circumstances, McBride claims that the offenses should be

considered as being less serious because the guns recovered were unloaded and he could

not have shot anyone during this incident. However, McBride and the other men used the

guns in a threatening manner causing the victims to experience substantial fear. Indeed,

although the guns were not fired at the victims, the guns were used to inflict bodily

injuries on the victims. Thus, McBride’s nature of the offense argument avails him of

nothing.

       Likewise, our review of McBride’s character reveals that McBride has a lengthy

criminal history that involves prior crimes of violence. As a juvenile, McBride had four

true findings for battery and one for disorderly conduct. PSI p. 4-5. As an adult, McBride

has convictions for class D felony battery, class A misdemeanor resisting law

enforcement, and violation of his probation. Id. at 5-6.

                                            16
       McBride argues that the State contended at sentencing that he was at a very high

risk to reoffend but that there was nothing to support the State’s contention but for the

deputy prosecutor’s speculations. Notwithstanding this claim, that McBride is likely to

reoffend was not an aggravating circumstance considered by the trial court. However,

McBride’s criminal and juvenile histories demonstrate that he has no respect for our

judicial system despite the opportunities that were offered to him to change. As a result,

McBride has failed to show that his sentence was inappropriate.

                                        Conclusion

       In sum, we conclude that McBride made a knowing, voluntary, and intelligent

waiver of his right to counsel. We also conclude that McBride waived his objection to

the show-up identification, and the show-up procedure did not amount to fundamental

error. Finally, we conclude that the trial court neither abused its discretion in sentencing

McBride nor sentenced him inappropriately.

       The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.




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