MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Jun 25 2019, 10:02 am
court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Katherine A. Newman                                      Curtis T. Hill, Jr.
Certified Legal Intern                                   Attorney General of Indiana
                                                         Evan Matthew Comer
Joel M. Schumm                                           Deputy Attorney General
Indiana University Robert H. McKinney                    Indianapolis, Indiana
School of Law, Appellate Clinic



                                           IN THE
    COURT OF APPEALS OF INDIANA

Eugene Calvin Roach,                                     June 25, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2531
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Matthew Tandy,
Appellee-Plaintiff.                                      Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         49G12-1805-CM-15622



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2531 | June 25, 2019                       Page 1 of 8
                                       Statement of the Case
[1]   Eugene Roach (“Roach”) appeals his conviction following a bench trial for

      Class A misdemeanor theft.1 He argues that the trial court abused its discretion

      in denying his motion to continue and that there is insufficient evidence to

      support his conviction. Concluding that the trial court did not abuse its

      discretion and that the evidence is sufficient, we affirm Roach’s conviction.


[2]   We affirm.


                                                     Issue
                 1.      Whether the trial court abused its discretion when it
                         denied Roach’s motion to continue.

                 2.      Whether there is sufficient evidence to support Roach’s
                         theft conviction.

                                                     Facts
[1]   The facts most favorable to the verdict reveal that the State charged Roach with

      Class A misdemeanor theft in May 2018. A few days later, the trial court held

      an initial hearing where it advised Roach and other defendants as follows:


                 You all have the right to a trial by jury. If it’s a felony as your
                 lead charge, it will automatically be set for a jury trial if you
                 request a trial. However, if it’s a misdemeanor, you’ll have to
                 specifically request a jury trial. Otherwise, it will be set just in
                 front of a judge for a bench trial. So, please know that if you
                 don’t file a written request for a jury trial, if your lead charge is a



      1
          IND. CODE § 35-43-4-2.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2531 | June 25, 2019        Page 2 of 8
              misdemeanor, at least ten (10) days before the first trial setting,
              you’re giving up and waiving your right to a trial by jury, does
              everyone understand that?


      (Tr. Vol. 2 at 7). Roach and others responded that they did.


[2]   That same day, Roach signed the following written advisements of rights form:


              You have the right to a trial by jury. If you are charged with a
              misdemeanor and you wish to have a trial by jury, you must
              make a request for a jury trial at least ten (10) days prior to your
              trial setting. If you do not request a jury trial at least ten (10)
              days prior to your trial setting, you waive your right to a trial by
              jury. If you want a jury trial, you must make a timely request
              even if you do not have an attorney.


      (App. at 25).


[3]   In July 2018, Roach attended a final pretrial conference where the trial court

      “confirm[ed] a Court trial.” (Tr. Vol. 2 at 26). Two months later, on the day of

      trial, the trial court asked the parties if they were ready to proceed. Roach’s

      counsel responded that Roach was not ready and had advised counsel that he

      had wanted a jury trial since the beginning of the case. Counsel asked the trial

      court to continue the trial so that he could file a belated jury trial demand. The

      trial court denied the motion.


[4]   At the September 2018 bench trial, Walmart loss-prevention officer Joshua

      Downhour (“Downhour”) testified that in May 2018, he was monitoring

      security surveillance cameras when he noticed Roach and a woman enter the

      liquor department, pick up several bottles of alcohol, and conceal them under

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2531 | June 25, 2019   Page 3 of 8
      the woman’s jacket. Roach and the woman eventually went to the men’s

      clothing department where Roach selected several items of clothing. Roach

      and the woman walked to the toy department where Downhour watched

      Roach hand the clothing to the woman, who placed the items into a purse.

      Roach and the woman then walked to a cash register where Roach made a

      small purchase but failed to pay for the items concealed under the woman’s

      jacket and in her purse. As soon as Roach and the woman left the store, a

      police and loss-preventions officer ordered them to stop and escorted them to

      the store’s loss-prevention office where officers found the concealed items.


[5]   After hearing testimony, the trial court convicted Roach of Class A

      misdemeanor theft. Roach now appeals.


                                                  Decision
[6]   Roach argues that the trial court abused its discretion when it denied his motion

      to continue and that there is insufficient evidence to support his conviction.

      We address each of his contentions in turn.


      1.      Motion to Continue


[7]   The gravamen of Roach’s first argument is that the trial court abused its

      discretion when it denied the motion to continue that he made on the day of

      trial. The grant or denial of a motion to continue is within the trial court’s

      broad discretion. Tharpe v. State, 955 N.E.2d 836, 843 (Ind. Ct. App. 2006),

      trans. denied. An abuse of discretion occurs when the ruling is against the logic


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2531 | June 25, 2019   Page 4 of 8
      and effect of the facts and the circumstances before the court or where the

      record demonstrates prejudice from the denial of the continuance. Id.


[8]   Here, Roach requested the motion to continue so that he could file a belated

      jury trial demand. The right to a jury trial is guaranteed by the Indiana and

      United States Constitutions. Fiandt v. State, 996 N.E.2d 421, 423 (Ind. Ct. App.

      2013). However, “[t]he right to a jury trial in misdemeanor cases is not self-

      executing, but is controlled by Indiana Rule of Criminal Procedure 22.” Id.

      Criminal Rule 22 provides as follows:


              A defendant charged with a misdemeanor may demand trial by
              jury by filing a written demand therefor not later than ten (10)
              days before his first scheduled trial date. The failure of a defendant
              to demand a trial by jury as required by this rule shall constitute a waiver
              by him of trial by jury unless the defendant has not had at least
              fifteen (15) days advance notice of his scheduled trial date and of
              the consequences of his failure to demand a trial by jury.

      (emphasis added).


[9]   Here, our review of the evidence reveals that, at the initial hearing two months

      before trial, the trial court orally advised Roach, who was charged with a

      misdemeanor, that: (1) he had the right to a jury trial; (2) he needed to timely

      file a request for a jury trial; and (3) he would suffer specific consequences for

      failing to file such a request. In addition, Roach signed a written advisement

      that explained his right to a jury trial and the consequences of failing to file a

      timely demand. Roach also appeared at a pretrial conference where he

      confirmed that his case was set for a “Court trial” to be held on September 21,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2531 | June 25, 2019      Page 5 of 8
       2018. Despite these advisements, Roach failed to timely demand a jury trial.

       Under these circumstances, and where the record does not demonstrate

       prejudice, the trial court did not abuse its discretion in denying Roach’s motion

       to continue trial so that he could file a belated demand for a jury trial.2


       2.       Sufficiency of the Evidence


[10]   Roach argues that there is insufficient evidence to support his conviction for

       Class A misdemeanor theft. Specifically, he contends that he “merely

       accompanied [the woman] on a shopping trip, selected items and handed them

       to his shopping companion, and paid for all of the items in his cart.” (Roach’s

       Br. at 8). According to Roach, that the woman “was hiding merchandise under

       her jacket and in her purse for which she failed to pay does not prove that []

       Roach committed theft. Rather, it is evidence that he is guilty of an unwise

       choice in a shopping companion.” (Roach’s Br. at 8).


[11]   Our standard of review for sufficiency of the evidence claims is well settled.

       We consider only the probative evidence and reasonable inferences supporting

       the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not



       2
         Although Roach challenges the constitutionality of Criminal Rule 22 because it “presumes a waiver
       through defendant’s silence and inaction,” he also recognizes that this Court has previously “upheld the
       constitutionality of Criminal Rule 22 and found that the defendants charged with Class A misdemeanors may
       ‘effectively waive’ their right to jury trial through silence and inaction.” (Roach’s Br. at 12, 14). See
       Cheesman v. State, 100 N.E.2d 263, 271 (Ind. Ct. App. 2018) (holding that Cheesman’s signature on a form
       advising her of her right to a jury trial and warning her of the procedural effects of Criminal Rule 22 together
       with her failure to file a demand for a jury trial resulted in a waiver of Cheesman’s right to a jury trial). See
       also Fiandt, 996 N.E.2d at 424 (holding that Fiandt waived his right to a jury trial where he failed to timely
       request one). We decline Roach’s invitation to revisit the issue of the constitutionality of Criminal Rule 22
       and the law set forth in these cases.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2531 | June 25, 2019                        Page 6 of 8
       reweigh the evidence or judge witness credibility. Id. We will affirm the

       conviction unless no reasonable fact finder could find the elements of the crime

       proven beyond a reasonable doubt. Id. The evidence is sufficient if an

       inference may be reasonably drawn from it to support the verdict. Id. at 147.


[12]   In order to convict Roach of Class A misdemeanor theft, the State had the

       burden to prove beyond a reasonable doubt that Roach knowingly or

       intentionally exercised unauthorized control over Walmart’s property with the

       intent to deprive Walmart of any part of its value. See I.C. § 35-43-4-2. In

       addition, pursuant to the accomplice liability statute, INDIANA CODE § 35-41-2-

       4, a person who knowingly or intentionally aids, induces, or causes another

       person to commit an offense commits that offense. In determining whether a

       person aided another person in the commission of a crime, we consider: (1)

       presence at the scene of the crime; (2) companionship with another engaged in

       criminal activity; (3) failure to oppose the crime; and (4) defendant’s conduct

       before, during, and after the occurrence of the crime. Woods v. State, 963

       N.E.2d 632, 634 (Ind. Ct. App. 2012). Furthermore, while the defendant’s

       presence at the scene of a crime or his failure to oppose the crime alone are

       insufficient to establish accomplice liability, they may be considered along with

       the above-mentioned factors to determine participation. Wieland v. State, 736

       N.E.2d 1198, 1202 (Ind. 2000).


[13]   Here, our review of the evidence reveals that Roach was present during the

       theft. He entered Walmart with the woman and they walked together to the

       liquor department where they picked up several bottles of alcohol and placed

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2531 | June 25, 2019   Page 7 of 8
       them under the woman’s jacket. They eventually went to the men’s clothing

       department together where Roach selected several items of clothing. Roach

       and the woman walked to the toy department together and Roach handed the

       clothing to the woman, who placed the items in her purse. At no point did

       Roach extricate himself from the situation, dissociate himself from the woman,

       or otherwise oppose the crime. Roach made a small purchase but failed to pay

       for the items that he had helped conceal in the woman’s jacket and purse.

       Roach and the woman left Walmart together and were stopped by police and

       loss-preventions officers. This evidence is sufficient to establish that Roach

       knowingly took concerted action to participate in the crime of theft as an

       accomplice. Accordingly, the evidence is sufficient to support Roach’s Class A

       felony theft conviction.


[14]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2531 | June 25, 2019   Page 8 of 8
