      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.




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