MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Oct 30 2019, 9:02 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                       Curtis T. Hill, Jr.
LaPlante LLP                                             Attorney General of Indiana
Evansville, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Roy Clifford Bebout,                                     October 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1052
        v.                                               Appeal from the
                                                         Vanderburgh Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Michael J. Cox, Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1810-F3-6908



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1052 | October 30, 2019                 Page 1 of 6
[1]   Roy Clifford Bebout (“Bebout”) was convicted after a jury trial of attempted

      rape1 as a Level 3 felony, criminal confinement2 as a Level 3 felony,

      kidnapping3 as a Level 3 felony, two counts of criminal confinement,4 each as a

      Level 5 felony, and strangulation5 as a Level 6 felony and was sentenced to

      twenty-five years executed in the Indiana Department of Correction. Bebout

      appeals and raises the following issue for our review: whether the trial court

      erred when it denied Bebout’s request to represent himself.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On October 12, 2018, K.H., who was a juvenile at the time, was walking to her

      job at a McDonald’s restaurant, which was about a five-minute walk from her

      home. Tr. Vol. II at 69-70. As she crossed the parking lot of a closed grocery

      store, a man, whom she later identified in a line-up as Bebout, got out of his

      truck and stuck a gun in her right side, stating “This is a gun, if you try to run,

      I’m going to shoot you.” Id. at 70-72. The two struggled until K.H. was inside

      of Bebout’s truck on the passenger side floorboard where the scuffle continued

      as Bebout attempted to handcuff K.H. Id. at 72. Bebout slammed K.H.’s head




      1
          See Ind. Code §§ 35-42-4-1(a); 35-41-5-1.
      2
          See Ind. Code § 35-42-3-3.
      3
          See Ind. Code § 35-42-3-2.
      4
          See Ind. Code § 35-42-3-3.
      5
          See Ind. Code § 35-42-2-9(c).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1052 | October 30, 2019   Page 2 of 6
      against the console and tried to put a yellow ball with a string on it into her

      mouth. Id. at 72-73. K.H. continued to struggle, and at one point, she grabbed

      his gun and threw it into the backseat, but Bebout was able to retrieve it. Id. at

      73. She also took the pepper spray that she was wearing around her neck and

      tried to spray him, but he wiped the spray onto her face. Id. at 75. During the

      struggle, K.H. tried to call police on her cell phone, and she also asked Bebout

      questions. Id. at 74. She indicated that she had $16 and offered it to Bebout.

      Id. He told her that he did not want her money and that he wanted her to

      perform oral sex on him. Id. Bebout was eventually able to handcuff K.H., and

      once he had done so, he shoved her legs into the truck and walked around to

      get into the driver’s seat. Id. at 76. At that time, K.H. was able to open the

      truck door and escape the vehicle. Id. She saw a bus in the parking lot and ran

      across the street to where it was located. Id. She made contact with the bus

      driver, who called police. Id.


[4]   The police arrived and cut the handcuffs off of K.H. Id. at 77. The bus driver

      reported that he had observed a red Dodge pickup truck leave the parking lot.

      Id. at 91. At the scene, the police located a cell phone near where the truck had

      been parked. Id. at 98, 101-02. Officers later called the contact labeled “Mom”

      in the cell phone. Id. at 105. The woman who answered the phone identified

      herself as Bebout’s mother and identified the phone and number the police

      called from as belonging to her son, Bebout. Id. Later that day, the police

      located Bebout at his employment in another county, and they went to that

      location to arrest him. Id. at 158-60. After arresting Bebout, the police

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1052 | October 30, 2019   Page 3 of 6
      obtained a warrant to search his red Dodge pickup truck. Id. at 110, 113.

      During the search of the truck, they found zip ties, rope, and a pillowcase. Id.

      at 117. In their investigation, the police also recovered a yellow ball with a

      string attached and an airsoft pistol that matched the description of the gun

      used by Bebout. Id. at 150-51; Tr. Vol. III at 33. Officers questioned Bebout,

      and he admitted to the struggle that took place between him and K.H. Tr. Vol.

      III at 7-8. He denied asking her to perform a sex act on him, and instead

      suggested that she had offered to do so during her plea for help. Id. at 9.


[5]   On October 15, 2018, the State charged Bebout with Level 3 felony attempted

      rape, Level 3 felony criminal confinement, Level 3 felony kidnapping, two

      counts of Level 5 felony criminal confinement, and Level 6 felony strangulation

      and alleged that he was a repeat sexual offender. Appellant’s App. Vol. II at 21-

      23, 27. Bebout was appointed a public defender. Id. at 10. A jury trial was

      scheduled to commence on March 11, 2019, and on the morning of the jury

      trial, Bebout indicated that he wanted to represent himself at trial. Tr. Vol. II at

      4. The trial court denied Bebout’s request because he was “not prepared to

      represent” himself “on the morning of trial.” Id. at 18. The trial then

      proceeded with Bebout being represented by his appointed counsel. Id. At the

      conclusion of the trial, the jury found Bebout guilty as charged. The trial court

      sentenced him to an aggregate sentence of twenty-five years executed. Bebout

      now appeals.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1052 | October 30, 2019   Page 4 of 6
                                     Discussion and Decision
[6]   Bebout argues that the trial court erred when it denied his morning-of-trial

      request to represent himself at trial. The Sixth Amendment to the United States

      Constitution guarantees a criminal defendant the right to counsel. Wilson v.

      State, 94 N.E.3d 312, 320 (Ind. Ct. App. 2018) (citing Jones v. State, 783 N.E.2d

      1132, 1138 (Ind. 2003)), trans. denied. “Implicit in the right to counsel is the

      right to self-representation.” Id. (citing Drake v. State, 895 N.E.2d 389, 392 (Ind.

      Ct. App. 2008)). A criminal defendant has the right to waive counsel and

      proceed pro se if it is shown that he does so of his own free will, knowing and

      understanding his constitutional right to be represented by counsel. Campbell v.

      State, 732 N.E.2d 197, 203 (Ind. Ct. App. 2000) (citing Olson v. State, 563

      N.E.2d 565, 570 (Ind. 1990)). However, the right to self-representation must be

      asserted within a reasonable time prior to the first day of trial. Id. Our

      Supreme Court has held that a request to proceed pro se on the morning of trial

      is per se untimely, and denial of a request to proceed pro se on the ground of

      untimeliness is permissible. Moore v. State, 557 N.E.2d 665, 669 (Ind. 1990);

      Dixon v. State, 437 N.E.2d 1318, 1321 (Ind. 1982); Russell v. State, 270 Ind. 55,

      62, 383 N.E.2d 309, 314 (1978). See also Campbell, 732 N.E.2d at 204; Hotep-El

      v. State, 113 N.E.3d 795, 809 (Ind. Ct. App. 2018), trans. denied.


[7]   Here, Bebout did not request to represent himself until the morning of trial.

      Under the circumstances of this case, Bebout’s request to proceed pro se was

      per se untimely and properly denied by the trial court. We, therefore, affirm

      Bebout’s convictions.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1052 | October 30, 2019   Page 5 of 6
[8]   Affirmed.


      Baker, J., and Crone, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1052 | October 30, 2019   Page 6 of 6
