                                                                              Aug 07 2013, 5:43 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:

H. SAMUEL ANSELL                                    GREGORY F. ZOELLER
Ansell Law Firm, LLC                                Attorney General of Indiana
Indianapolis, Indiana
                                                    MONIKA PREKOPA TALBOT
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

CARLOS RAMOS,                                       )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A02-1211-CR-949
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MARION SUPERIOR COURT
                             The Honorable Mark D. Stoner, Judge
                     The Honorable Jeffrey L. Marchal, Master Commissioner
                               Cause No. 49G06-1109-FC-63250



                                          August 7, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Following a bench trial, Carlos Ramos (“Ramos”) was convicted of Class C felony

sexual misconduct with a minor.1 Ramos now appeals. His argument, restated, is that the

trial court should have set aside his conviction and granted a new trial because he did not

knowingly and voluntarily waive his fundamental right to a trial by jury.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       On September 4, 2011, Ramos, whose native language is Spanish, met a group of

family and friends at a park in Indianapolis, Indiana. His wife, Rosa, was part of the

group, along with Rosa’s children. Rosa’s best friend, Autumn Fugate, was also present,

and had brought along her fourteen-year-old daughter, C.G.

       When Ramos arrived at the park, he asked if anyone wanted to go for a run, and

only C.G. said yes. The two went running together, side by side. During the run, C.G.

stopped when some change fell out of her pocket. Ramos picked up the change, but

when C.G. held out her hand for it, Ramos put the money in her back pocket instead and

“grabbed [her] butt.” Tr. at 25-26. C.G. looked at Ramos to try to convey to him that she

was not comfortable and started jogging again. Ramos caught up to C.G., who, at that

point, had a cramp. C.G. stopped running, and Ramos stopped with her. He asked C.G.

what was wrong, and when C.G. told him she had a cramp, Ramos asked where it was.

C.G. showed him the location of the cramp, which was above her pants line on her right

side, and Ramos put his hand there. His hand started out on the outside of C.G.’s

clothing, but went inside a little. C.G. pushed his hand away and gave him another look

       1
           See Ind. Code § 35-42-4-9.

                                            2
indicating she wanted him to stop. After this interaction, C.G. started running faster

because she was scared. C.G. then suffered another cramp and stopped running. Ramos

stopped, and when he found that C.G. again had a cramp, he put his hand in her pants,

under her underwear. His hand touched C.G.’s pubic hair near her vagina. C.G. pushed

Ramos’s hand away and started running toward her mother.

       Once back with her mother, C.G. called her father from her mother’s phone and

asked him to pick her up. She did not want to talk about the incident in front of

everyone. After her father picked her up, C.G. texted her mother and told her what

happened. Her mother then picked her up and called the police.

       The State charged Ramos with Class C felony sexual misconduct with a minor,

and a Spanish-language interpreter was appointed for Ramos. Ramos appeared with

counsel on February 28, 2012 and, without the assistance of an interpreter, waived his

right to a trial by jury. During this hearing, Ramos tendered a signed English-language

jury trial waiver to the court. Ramos, his counsel, and the deputy prosecutor had signed

the waiver. The court proceeded to question Ramos about the jury trial waiver, and

Ramos testified, in English, that he had read the waiver before signing it and that he had

no questions about it. The trial court explained to Ramos the rights he was waiving.

Ramos testified that he understood those rights and that he preferred to have a bench trial.

       Ramos’s bench trial was held on June 7, 2012, where Ramos had the assistance of

a translator. Multiple times at trial, Ramos did not wait for a translation and, instead,

directly answered questions in English. The trial court found Ramos guilty of Class C

felony sexual misconduct with a minor. On June 29, 2012, Ramos filed a motion to

                                             3
correct error, in which he alleged that his waiver of jury trial was not knowing and

intelligent. At a hearing on the motion, his wife Rosa testified that she teaches English as

a Second Language and has extensive experience working with individuals who have

various levels of English proficiency. She testified that on a scale of one to five, with one

being the least proficient, her husband’s proficiency in English is at level one in some

areas and below level one in others. She further testified that Ramos had lived in the

United States for sixteen years.

       On September 26, 2012, the trial court denied the motion to correct error. Ramos

now appeals.

                            DISCUSSION AND DECISION

       Ramos argues that the trial court erred in denying his motion to correct error, in

which he challenged the sufficiency of his jury trial waiver. We review a trial court’s

ruling on a motion to correct error for an abuse of discretion. Nichols v. State, 947

N.E.2d 1011, 1015 (Ind. Ct. App. 2011). An abuse of discretion exists only where the

decision is clearly against the logic and effect of the facts and circumstances. Prewitt v.

State, 878 N.E.2d 184, 188 (Ind. 2007). Where the issues presented upon appeal involve

matters of law exclusively, however, we review the trial court’s decision de novo.

Nichols, 947 N.E.2d at 1015 (citing City of Indianapolis v. Hicks, 932 N.E.2d 227, 230

(Ind. Ct. App. 2010), trans. denied).

       The right of an accused to have a trial by jury is guaranteed by the Indiana and

United States Constitutions. U.S. Const. amend. VI; Ind. Const. art. I, § 13; Dixie v.

State, 726 N.E.2d 257, 258 (Ind. 2000). This right is of “fundamental dimension.”

                                             4
Hutchins v. State, 493 N.E.2d 444, 445 (Ind. 1986). A criminal defendant is presumed

not to waive his right unless he affirmatively acts to do so. Dixie, 726 N.E.2d at 258

(citing Poore v. State, 681 N.E.2d 204, 207 (Ind. 1997)).

       For a defendant’s waiver to be effective, it must be made in a knowing, intelligent,

and voluntary manner, with sufficient awareness of the surrounding circumstances and

the consequences. Doughty v. State, 470 N.E.2d 69, 70 (Ind. 1984). The record must

show that the defendant personally communicated to the court his choice to relinquish the

right to a jury trial. Taylor v. Illinois, 484 U.S. 400, 417-18 n.24 (1988) (citing Doughty,

470 N.E.2d at 70). Put another way, “[t]he defendant must express his personal desire to

waive a jury trial and such a personal desire must be apparent from the court’s record.”

Poore, 681 N.E.2d at 206. Personal communication may take the form of a colloquy;

however, proper written waiver also constitutes personal communication. Earl v. State,

450 N.E.2d 49, 50 (Ind. 1983); see also Dixie, 726 N.E.2d at 258. We have held that

denying a defendant a jury trial, without the defendant’s knowing, voluntary, and

intelligent waiver of the right, constitutes fundamental error.     Duncan v. State, 975

N.E.2d 838, 844 (Ind. Ct. App. 2012); see also Eldridge v. State, 627 N.E.2d 844, 849

(Ind. Ct. App. 1994).

       Here, when Ramos tendered a signed English-language jury trial waiver to the

court, he appeared in person and with counsel.        Although his native language was

Spanish, and a translator had been appointed for him, the hearing was held without the

assistance of a translator. The trial court did not merely accept the signed English-

language waiver standing alone.       Rather, the court engaged Ramos in a line of

                                             5
questioning about the waiver itself and the character of the rights Ramos would be giving

up.      Ramos confirmed that he had read the waiver before signing it and that he

understood it. Further, Ramos indicated that he had no additional questions at that time.

After the court explained that Ramos had a right to a trial by jury and explained what that

meant, Ramos indicated that he understood his right, understood that he could give up

that right, and preferred to have a bench trial. At trial, although Ramos had the assistance

of a translator, on numerous occasions Ramos did not wait for a translation and, instead,

directly answered questions in English.

         Under these facts, we find that the trial court did not err in accepting Ramos’s jury

trial waiver. The record establishes that Ramos’s waiver was knowing, intelligent, and

voluntary, and that Ramos was sufficiently aware of the surrounding circumstances and

the consequences. Doughty, 470 N.E.2d at 70. The trial court did not find the testimony

relating to Ramos’s English proficiency compelling, and we will not second-guess that

decision on appeal. Ultimately, the evidence presented was sufficient to establish that

Ramos understood his right to a trial by jury and preferred to proceed with a bench trial.

The trial court did not abuse its discretion when it denied Ramos’s motion to correct

error.

         Affirmed.

VAIDIK, J., and PYLE, J., concur.




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