MEMORANDUM DECISION                                                             FILED
                                                                            Nov 14 2017, 9:01 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                                CLERK
this Memorandum Decision shall not be                                       Indiana Supreme Court
                                                                               Court of Appeals
regarded as precedent or cited before any                                        and Tax Court

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
Leanna Weissmann                                        Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                   Attorney General of Indiana

                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandon Mockbee,                                        November 14, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        15A01-1703-CR-483
        v.                                              Appeal from the Dearborn Circuit
                                                        Court
State of Indiana,                                       The Honorable James D.
Appellee-Plaintiff                                      Humphrey, Judge
                                                        Trial Court Cause No.
                                                        15C01-1607-F5-49



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017         Page 1 of 19
                                             Case Summary
[1]   Brandon Mockbee appeals his convictions, following a jury trial, for two counts

      of level 5 felony burglary and one count of level 6 obstruction of justice. He

      also appeals the jury’s finding that he is a habitual offender. On appeal,

      Mockbee asserts that the State presented insufficient evidence to support the

      habitual offender determination and his obstruction of justice conviction. He

      also claims that the trial court abused its discretion in admitting certain

      evidence, in denying his motion for severance, and in revoking his right to

      represent himself at trial. Finding the evidence sufficient and no abuse of

      discretion, we affirm his convictions. However, we sua sponte remand with

      instructions for the trial court to amend the sentencing order to attach the

      habitual offender sentence enhancement to the sentence on one of Mockbee’s

      level 5 felony burglary convictions.


                                 Facts and Procedural History
[2]   On June 16, 2016, at 11:45 p.m., officers responded to a report from an alarm

      company that “there was glass breakage” at Hibbett Sports in Aurora. Tr. Vol.

      6 at 34. When they arrived, they observed that the front door was shattered and

      a large rock was about ten feet inside the store. After investigating, officers

      discovered that “a large quantity of the Air Jordan merchandise and Cincinnati

      Reds merchandise was missing.” Id. at 33. Surveillance video obtained from a

      nearby business revealed that a white vehicle was seen leaving Hibbett Sports at

      the time of the burglary.



      Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017   Page 2 of 19
[3]   Then, on June 27, 2016, at 11:02 p.m., officers responded to a similar report

      from Tri-State Battery in nearby Lawrenceburg. Upon arrival, officers observed

      that the front glass door had been smashed with “what appeared to be a red

      paver, or a red round stone.” Id. at 213-14. Items such as a generator, some

      water pumps, and a weed trimmer were missing. Also, two cash drawers were

      gone. Lawrenceburg Police Department Detective Nicholas Beetz was

      summoned to the scene. Detective Beetz recalled seeing a media release

      regarding the Hibbett Sports burglary a few days earlier. When Detective Beetz

      and the owner of Tri-State Battery, Terry Miller, arrived and walked around the

      property, they noticed that there was an “electronic transformer box behind the

      building had been knocked off its base several inches.” Id. at 214. Surveillance

      video showed a 2010 to 2012 Nissan Versa back into the transformer box

      causing damage to the vehicle. The driver then drove to the front of the

      building, opened the hatch of the vehicle, appeared to grab something, and then

      proceeded “to throw the object inside and through the window of the business.”

      Id. at 220. The suspect was “obviously wearing a light colored shirt, light

      colored gloves, some sort of concealment around the face, a Cincinnati Reds

      hat, dark pants and white shoes.” Id. The video showed the person going into

      the store and carrying items out.


[4]   Detective Beetz sent a text message to Aurora Police Department Detective

      Vern McBride, the officer investigating the Hibbett Sports burglary, to let him

      know about the similarities between the two crimes. Detective Beetz also asked

      Miller to review Tri-State Battery’s surveillance video to see if the suspect had


      Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017   Page 3 of 19
      been scoping out the business in the days leading up to the burglary. Miller

      identified a person, and a vehicle, matching the suspect on video from June 23,

      2016. The person had on white shoes, black socks, red basketball shorts, and a

      white Air Jordan shirt. The person peered inside the front door and the side

      window of the business for several seconds.


[5]   In addition to having Miller review the surveillance video, Detective Beetz

      gathered more information regarding the Nissan Versa vehicle seen in the

      video. The vehicle in the video had a front vanity license plate as well as a rear

      license plate. The vehicle also had a decal on the rear hatch and damage to the

      right rear bumper where it struck the electrical box. Detective Beetz eventually

      discovered a vehicle matching the one in the surveillance video registered to

      Rosalie Rahn in Mount Healthy, Ohio. Detective Beetz traveled to Ohio to

      speak with Rahn about her vehicle. When the detective arrived, Rahn

      immediately asked him if he was there about her grandson, Mockbee. Rahn

      informed Detective Beetz that she had loaned her vehicle to Mockbee during

      the relevant time frame. Rahn also told authorities that Mockbee was in a

      relationship with a woman named Melissa Holley who drove a white vehicle.

      Upon hearing this information, Detective Beetz recalled that a white vehicle

      had been involved in the burglary at Hibbett Sports. Detective Beetz showed

      Rahn some still photographs taken from the Tri-State Battery video surveillance

      on June 23, and Rahn identified the suspect as Mockbee.


[6]   Detectives Beetz and McBride gathered information regarding both Mockbee

      and Holley. They determined that there was an open Department of Child

      Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017   Page 4 of 19
      Services (“DCS”) investigation involving Holley’s children and that Holley was

      living at a North Vernon residence owned by Donna Lacey. The detectives

      spoke with Holley’s DCS caseworker, Elizabeth Beesley. Beesley informed the

      detectives that in June 2016, Mockbee and Holley had a physical altercation at

      Lacey’s house during which the children were present. Mockbee was banned

      from Lacey’s residence, and DCS planned to check on the children thirty days

      following the incident. Beesley told the detectives that she planned to go to

      Lacey’s residence that day and asked the detectives if they would like to

      accompany her. The detectives accompanied Beesley to Lacey’s residence so

      that they could speak with Holley and/or Mockbee.


[7]   When Beesley and the detectives arrived, they knocked on the door. Lacey was

      disabled, so her caretaker answered the door. Beesley had met the caretaker on

      a prior occasion at Lacey’s residence. Beesley asked if she and the dectectives

      could enter the residence to speak to Lacey, and the caretaker invited them into

      the home. The caretaker led the detectives to Lacey’s bedroom. As they

      walked by the open door to one of the other bedrooms, the detectives could see

      several articles of clothing that were consistent with items stolen from Hibbett

      Sports. The officers spoke with Lacey and explained to her why they were

      there, and she consented to a search of her house, garage, and shed. The

      officers subsequently obtained and executed a search warrant for the residence.

      Several items were found that were consistent with the items stolen from

      Hibbett Sports.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017   Page 5 of 19
[8]   Later that evening, Mockbee, driving Holley’s white vehicle, came to Lacey’s

      residence. He was accompanied by Holley, and was dressed in a Cincinnati

      Reds hat, white Nike shirt, red shorts, and white shoes. These apparel items

      were consistent with what the suspect wore in the Tri-State Battery surveillance

      video. Officers searched Holley’s vehicle and discovered several items stolen

      from Hibbett Sports, as well as burglary tools such as a black mask, gloves,

      rocks, a crowbar, bolt cutters, and a pry bar. Glass fragments that matched the

      glass doors from Hibbett Sports and Tri-State Battery were also found in

      Holley’s vehicle. Holley admitted to police that Mockbee burglarized Hibbett

      Sports. Both Mockbee and Holley were arrested. Mockbee was transported to

      the Dearborn County Law Enforcement Center.


[9]   The State originally charged Mockbee with two counts of level 5 felony

      burglary and one count of level 5 felony conspiracy to commit burglary.

      However, authorities later discovered that during the booking process at the

      Dearborn County Law Enforcement Center, Mockbee threw the red shorts he

      had been wearing in the garbage can instead of putting them in his property bin

      as instructed. Consequently, the State amended the charging information to

      include a charge of level 6 felony obstruction of justice. The State also alleged

      that Mockbee was a habitual offender based on numerous prior Ohio

      convictions. A jury trial was held from December 5-16, 2016. The jury found

      Mockbee guilty of both counts of burglary, obstruction of justice, and being a

      habitual offender. The jury found him not guilty of conspiracy to commit

      burglary. The trial court sentenced Mockbee to consecutive terms of six years


      Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017   Page 6 of 19
       for each burglary, two and one-half years for obstruction of justice, and six

       years for being a habitual offender, for an aggregate sentence of twenty and one-

       half years. This appeal ensued.


                                      Discussion and Decision

        Section 1 – The State presented sufficient evidence to support
                     the habitual offender determination.
[10]   Mockbee first asserts that the State presented insufficient evidence to support

       the habitual offender determination. Specifically, he argues that his prior

       convictions are too old and not “serious enough to qualify as prior convictions

       for purposes of Indiana’s habitual offender statute.” Appellant’s Br. at 22.

       Upon a challenge to the sufficiency of the evidence to support a habitual

       offender determination, this Court neither reweighs the evidence nor judges the

       credibility of the witnesses; rather, we examine only the evidence most

       favorable to the judgment, together with all the reasonable and logical

       inferences to be drawn therefrom. Woods v. State, 939 N.E.2d 676, 677 (Ind. Ct.

       App. 2010), trans. denied (2011). A habitual offender determination will be

       sustained on appeal so long as there is substantial evidence of probative value

       supporting the judgment. Id.


[11]   The statute in effect at the time Mockbee committed his offenses provided that

       for a person convicted of a level 5 felony to be adjudicated a habitual offender,

       the State must prove beyond a reasonable doubt that the person has been

       convicted of two prior unrelated felonies, at least one of which is not a level 6 or


       Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017   Page 7 of 19
       class D felony, and, if one of the alleged prior unrelated felonies is a level 5 or 6,

       or class C or D felony, that “not more than ten (10) years have elapsed between

       the time the person was released from imprisonment, probation or parole

       (whichever is latest) and the time the person committed the current offense.”

       Ind. Code § 35-50-2-8(c) (2016). We read this language as simply requiring that

       at least one of the two alleged prior unrelated felonies “is not a level 6 or class

       D felony” and, if one of the alleged prior unrelated felonies is of a lower level

       (level 5/6 or class C/D), one of the two alleged prior unrelated felonies must

       fall within the ten-year period.1 See id.


[12]   Here, there is no question that at least one of Mockbee’s alleged prior unrelated

       felonies was more serious than a level 6 or class D felony and that not more

       than ten years had elapsed between the time he was released from

       imprisonment, probation, or parole on at least one of his alleged prior unrelated

       felonies and the current offenses. Specifically, to support the habitual offender

       charge, the State alleged that in July 2001, in Hamilton County, Ohio,



       1
         We note that, in analyzing nearly identical language in subsection (d) of the statute, another panel of this
       Court thought differently and read the language as requiring that each of the alleged prior unrelated felonies
       fall within the ten-year period; in other words, none of the underlying felony convictions (or release dates)
       could be more than ten years old. See Johnson v. State, 75 N.E.3d 549, 552-53 (Ind. Ct. App. 2017). The
       Johnson panel reasoned that although “the actual words of the statute” did not require such a result, a
       restrictive reading of the language was consistent with the apparent trend in legislative policy toward lenity.
       Id. at 552. The panel concluded that the legislature intended to provide that “individuals who committed
       lesser offenses and then stayed clean for long periods” would not face enhancements of the same severity as
       under previous habitual statutes. Id. However, transfer was granted in Johnson and that opinion has been
       vacated by our supreme court. Johnson v. State, No. 32S05-1707-CR-469, 2017 WL 3034652 (Ind. July 13,
       2017). To the extent that there was any confusion, the legislature recently amended the statute to clarify that
       the “not more than” ten-year elapsed period simply applies to “at least one” of the underlying felony
       convictions. Ind. Code § 35-50-2-8(c), -(d) (eff. July 31, 2017); see Woodruff v. Ind. Family & Soc. Servs. Admin.,
       964 N.E.2d 784, 795 (Ind. 2012) (legislature may pass statutory amendment in order to express original intent
       more clearly), cert. denied.

       Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017               Page 8 of 19
       Mockbee was convicted of safecracking, a fourth degree felony; in April 2002,

       in Hamilton County, Ohio, Mockbee was convicted of robbery, a second degree

       felony; and in June 2012, in Scioto County, Ohio, Mockbee was convicted of

       possession of drugs, a second degree felony, theft of drugs, a third degree

       felony, tampering with evidence, a third degree felony, one count of receiving

       stolen property, a fourth degree felony, and five additional counts involving

       fifth degree felonies.2 Foreign jurisdiction felony convictions are squarely

       within the scope of our habitual offender sentencing scheme. See Ind. Code §

       35-50-2-1 (defining “felony conviction” as a conviction in “any jurisdiction at

       any time, with respect to which the convicted person might have been

       imprisoned for more than one (1) year”).


[13]   The 2002 Ohio robbery conviction, categorized as a second degree felony, was

       clearly a conviction that Indiana courts would consider more serious than a

       level 6 or class D felony. A second degree robbery conviction in Ohio required

       proof that it was committed while armed with a deadly weapon or that the

       defendant inflicted, attempted to inflict, or threatened to inflict injury. See Ohio

       Rev. Code § 2911.02 (2002). The comparable crime in Indiana would have

       been classified as a class B felony. See Ind. Code § 35-42-5-1. The sentencing

       range for a class B felony was between six and twenty years, as opposed to the

       sentencing range for a class D felony, which was between six months and three




       2
         The trial court noted during sentencing that at the age of forty-one, Mockbee had been “convicted of 26
       felonies and 20 misdemeanors for a total of 46 convictions.” Tr. Vol. 11 at 85.

       Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017          Page 9 of 19
       years. See Ind. Code §§ 35-50-2-5, -7. Accordingly, at least one of Mockbee’s

       prior unrelated convictions was not a level 6 or class D felony.


[14]   As for proving that Mockbee served time on at least one of the alleged prior

       unrelated felonies within the last ten years, one of his 2012 Ohio convictions fits

       that bill. Although Mockbee now asserts that some of those convictions were

       subsequently vacated on appeal, see State v. Mockbee, 5 N.E.3d 50, 60 (Ohio Ct.

       App. 2013), the undisputed evidence indicates that his third degree felony

       tampering with evidence conviction and three-year prison sentence remained

       intact. Id; see also State’s Ex. 253. Thus, not more than ten years had elapsed

       between Mockbee’s release from imprisonment, probation, or parole on that

       conviction and the time he committed the current offenses. The State presented

       sufficient evidence to support the habitual offender determination.


[15]   Although the habitual offender determination is supported by sufficient

       evidence, we observe sua sponte that it does not appear that the habitual

       offender sentence enhancement was attached to a specific conviction.

       Appellant’s App. Vol. 13 at 131. A habitual offender finding is not a separate

       crime but an enhancement to an underlying conviction to which it is attached.

       Reffett v. State, 844 N.E.2d 1072, 1074 (Ind. Ct. App. 2006); Ind. Code § 35-50-

       2-8(j). Thus, we remand with instructions for the trial court to amend the

       sentencing order to attach the habitual offender sentence enhancement to the

       sentence on one of Mockbee’s level 5 felony burglary convictions.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017   Page 10 of 19
        Section 2 – The State presented sufficient evidence to support
                Mockbee’s obstruction of justice conviction.
[16]   Mockbee next contends that the State presented insufficient evidence to support

       his obstruction of justice conviction. When reviewing a claim of insufficient

       evidence, we neither reweigh the evidence nor assess witness credibility. Bell v.

       State, 31 N.E.3d 495, 499 (Ind. 2015). We look to the evidence and reasonable

       inferences drawn therefrom that support the conviction, and will affirm if there

       is probative evidence from which a reasonable factfinder could have found the

       defendant guilty beyond a reasonable doubt. Id. In short, if the testimony

       believed by the trier of fact is enough to support the conviction, then the

       reviewing court will not disturb it. Id. at 500.


[17]   To convict Mockbee of obstruction of justice, the State was required to prove

       that he altered, damaged, or removed any record, document, or thing, with

       intent to prevent it from being produced or used as evidence in any official

       proceeding or investigation. Ind. Code § 35-44.1-2-2(a)(3). Here, the State

       presented evidence that when Mockbee was arrested, “[h]e had a white Nike

       shirt on and then he had red shorts that were consistent with the red shorts

       [police] saw in the [Tri-State Battery] video from [June 23].” Tr. Vol. 7 at 79.

       During the booking process at the law enforcement center, Mockbee was given

       a bin and instructed to put all his clothing in the bin. Those items are “logged

       in with any other property that the individual may have on his person” in order

       “to keep track of it so when the time comes for them to leave, they would be

       able to have their items back.” Tr. Vol. 8 at 22. However, a search warrant

       Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017   Page 11 of 19
       later executed by officers revealed that although the red shorts had been logged

       in, the shorts were missing from the bin. The shorts were the only item missing.

       Officers viewed security camera footage from the booking area which showed

       Mockbee throwing the shorts into the garbage can. 3


[18]   From the evidence presented, the jury could reasonably infer that Mockbee

       threw his shorts in the garbage can with the intent to prevent the shorts from

       being produced or used as evidence against him. The red shorts were the only

       item of clothing that directly linked Mockbee to the Tri-State Battery video, and

       as noted above, they were the only item that he was wearing during booking

       that he did not put in the bin. The State presented sufficient evidence to

       support Mockbee’s conviction for obstruction of justice.


            Section 3 – The trial court did not abuse its discretion in
                          admitting certain evidence.
[19]   Mockbee challenges the trial court’s admission of evidence discovered in

       Lacey’s residence. Specifically, he claims that the police officers’ warrantless

       entry into Lacey’s home violated his right against unreasonable search and

       seizure pursuant to the Fourth Amendment to the United States Constitution

       and Article 1, Section 11 of the Indiana Constitution, and therefore any

       evidence discovered in plain view or subsequently obtained by search warrant




       3
        The footage also showed another inmate retrieving the shorts from the garbage can. Officers were able to
       speak to that inmate and to later locate and retrieve the shorts from a third inmate.

       Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017       Page 12 of 19
       was inadmissible.4 The admission or exclusion of evidence falls within the

       sound discretion of the trial court, and we review the admission of evidence

       only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.

       2002). An abuse of discretion occurs “where the decision is clearly against the

       logic and effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502,

       504 (Ind. 2001). Even if the trial court abuses its discretion in admitting certain

       evidence, we will not reverse if the admission constituted harmless error. Fox v.

       State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), trans. denied (2000). “[T]he

       ultimate determination of the constitutionality of a search or seizure is a

       question of law that we consider de novo.” Carpenter v. State, 18 N.E.3d 998,

       1001 (Ind. 2014).


[20]   While Mockbee complains that the warrantless entry into Lacey’s home

       violated his constitutional rights, the State responds, and the trial court agreed,

       that Mockbee failed to establish that he had a reasonable expectation of privacy

       in Lacey’s residence or that he has standing to challenge the validity of the

       entry or subsequent search.5 We agree with the State and the trial court.


[21]   Under the Fourth Amendment, a defendant has the burden to “demonstrate

       that he personally has an expectation of privacy in the place searched, and that

       his expectation is reasonable[.]” Minnesota v. Carter, 525 U.S. 83, 88 (1998).



       4
        The Fourth Amendment and Article 1, Section 11 protect the “right of the people to be secure in their
       persons, houses, papers and effects,” against unreasonable search or seizure.
       5
        The State must raise a defendant’s lack of standing to the trial court in order to preserve it for appeal.
       Bradley v. State, 4 N.E.3d 831, 838 (Ind. Ct. App. 2014), trans. denied. The State did so here.

       Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017             Page 13 of 19
       Fourth Amendment rights are personal and may not be vicariously asserted.

       Rakas v. Illinois, 439 U.S. 128, 139-40 (1978). A defendant aggrieved by an

       illegal search and seizure only through the introduction of damaging evidence

       secured by the search of a third person’s premises has not had any of his Fourth

       Amendment rights infringed. Id. at 134.


[22]   Similarly, “[t]o establish standing pursuant to Article 1, Section 11, our

       supreme court has stated that ‘a defendant must establish ownership, control,

       possession, or interest in the premises searched or the property seized.’” Allen v.

       State, 893 N.E.2d 1092, 1098 (Ind. Ct. App. 2008) (quoting Peterson v. State, 674

       N.E.2d 528, 534 (Ind. 1996)), trans. denied (2009). The court has further stated

       that a “defendant must show a subjective and objective expectation of privacy

       in the premises.” Campos v. State, 885 N.E.2d 590, 598 (Ind. 2008).6


[23]   Here, Mockbee failed to demonstrate that he had a reasonable expectation of

       privacy in Lacey’s residence. Mockbee consistently maintained to authorities

       that he neither resided in nor stayed in Lacey’s home, and that he instead lived

       in Ohio. Mockbee produced an Ohio driver’s license when he was arrested to

       prove his claim to the detectives. Lacey, Holley, and Holley’s juvenile son each

       told police that Mockbee did not reside in Lacey’s home and that, after he was




       6
         Although the Indiana Constitution also provides protection for claimed possessions irrespective of the
       defendant’s interest in the place where the possessions were found, see Campos, 885 N.E.2d at 598, where a
       defendant’s interest in the seized property is not at issue, there is no difference between the results under the
       federal and state constitutions. See Allen, 893 N.E.2d at 1097. Mockbee alleged solely that he had an
       expectation of privacy in Lacey’s premises, not in the seized property. Therefore, our result is the same
       pursuant to both constitutional provisions.

       Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017              Page 14 of 19
       previously banned from the residence during the DCS investigation, if he did

       ever come to visit Holley at Lacey’s home, he would sleep in his car.

       Mockbee’s grandmother, Rahn, also advised authorities that Mockbee resided

       in Ohio.


[24]   While Mockbee points to subsequent inconsistent statements by several

       witnesses during both the pretrial and trial proceedings, pursuant to our

       standard of review, we need only consider the evidence most favorable to the

       trial court’s decision to admit the evidence. See Starks v. State, 846 N.E.2d 673,

       679 (Ind. Ct. App. 2006), trans. denied.7 Based on the evidence presented, the

       trial court properly concluded that Mockbee did not have a reasonable

       expectation of privacy in Lacey’s residence, and that he lacked standing to

       challenge the warrantless entry into Lacey’s home.


       Section 4 – Mockbee has waived our review of the trial court’s
                    denial of his motion for severance.
[25]   Mockbee next argues that the trial court erred when it denied his pretrial

       motion to sever the two burglary charges. Indiana Code Section 35-34-1-9(a)

       provides that


               [t]wo (2) or more offenses may be joined in the same indictment
               or information, with each offense stated in a separate count,
               when the offenses:




       7
        There was ample evidence before the trial court that Mockbee improperly attempted to influence several
       witnesses to alter their testimony to say that he lived at Lacey’s residence.

       Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017      Page 15 of 19
               (1) are of the same or similar character, even if not part of a
               single scheme or plan; or


               (2) are based on the same conduct or on a series of acts
               connected together or constituting parts of a single scheme or
               plan.


       Subsection 9(a)(1) refers to the nature of the charged offenses, whereas

       subsection 9(a)(2) refers to the operative facts underlying those charges. Pierce v.

       State, 29 N.E.3d 1258, 1265 (Ind. 2015).


[26]   The defendant shall have the right to severance of the offenses “[w]henever two

       (2) or more offenses have been joined for trial in the same indictment or

       information solely on the ground that they are of the same or similar

       character[.]” Ind. Code § 35-34-1-11.


               In all other cases the court, upon motion of the defendant or the
               prosecutor, shall grant a severance of offenses whenever the court
               determines that severance is appropriate to promote a fair
               determination of the defendant's guilt or innocence of each
               offense considering:


               (1) the number of offenses charged;


               (2) the complexity of the evidence to be offered; and


               (3) whether the trier of fact will be able to distinguish the
               evidence and apply the law intelligently as to each offense.


       Id.


       Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017   Page 16 of 19
[27]   Mockbee filed a pretrial motion to sever which was denied by the trial court.

       He failed to renew his motion at trial. Therefore, he has waived the right to

       seek appellate review of the denial of his motion. See Ind. Code § 35-34-1-12

       (right to severance of offenses is waived by failure to renew motion before or at

       close of evidence during trial); Rouster v. State, 600 N.E.2d 1342, 1346 (Ind.

       1992).


[28]   Mockbee attempts to avoid waiver by arguing that the trial court’s denial of his

       motion constituted fundamental error. However, Mockbee’s first mention of

       fundamental error occurs in his reply brief. A party may not raise an issue,

       such as fundamental error, for the first time in a reply brief. Curtis v. State, 948

       N.E.2d 1143, 1148 (Ind. 2011). Thus, Mockbee has failed to preserve our

       review of this issue as well. See id.


           Section 5 – The trial court did not err in determining that
            Mockbee had forfeited his right to self-representation.
[29]   Finally, we address Mockbee’s assertion that the trial court erred in determining

       that he forfeited his right to self-representation. In short, the record indicates

       that Mockbee was initially represented by counsel, but then knowingly and

       voluntarily chose to represent himself while two attorneys acted as standby

       counsel. After numerous warnings about his continued unruly behavior during

       pretrial proceedings, the trial court subsequently determined that Mockbee had

       forfeited his right to self-representation.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017   Page 17 of 19
[30]   “A trial judge may terminate self-representation by a defendant who

       deliberately engages in serious or obstructionist misconduct.” German v. State,

       268 Ind. 67, 73, 373 N.E.2d 880, 883 (1978) (citing Illinois v. Allen, 397 U.S.

       337, 343 (1970)). Indeed, trial judges “confronted with disruptive,

       contumacious, stubbornly defiant defendants must be given sufficient discretion

       to meet the circumstances of each case.” Gilmore v. State, 953 N.E.2d 583, 592

       (Ind. Ct. App. 2011) (citation omitted).


[31]   We need not go into much detail regarding Mockbee’s deliberately disruptive

       courtroom behavior, as it already has been well documented. See Mockbee v.

       State, 80 N.E.3d 917 (Ind. Ct. App. 2017) (appeal from trial court’s finding

       Mockbee in direct criminal contempt). Our review of the voluminous pretrial

       proceedings convinces us that the trial judge here should be commended for his

       incredible patience and conscientious attempts to accommodate Mockbee’s

       desire for self-representation. However, enough was simply enough.


[32]   Mockbee’s claim that he was merely engaged in “spirited discussion” and his

       unsubstantiated claims that his disrespectful and disruptive behavior was caused

       by an “untreated mental illness” are not well taken. Appellant’s Br. at 48, 50.

       The trial court did not err in determining that Mockbee forfeited his right to

       self-representation.


[33]   Mockbee’s convictions are affirmed. We remand with instructions for the trial

       court to amend the sentencing order and attach the habitual offender sentence




       Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017   Page 18 of 19
       enhancement to the sentence on one of Mockbee’s level 5 felony burglary

       convictions.


[34]   Affirmed and remanded.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1703-CR-483 | November 14, 2017   Page 19 of 19
