 Pursuant to Ind.Appellate Rule 65(D),
                                                                                  Nov 06 2013, 5:37 am
 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:

MICHAEL G. MOORE                                    GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    MICHAEL GENE WORDEN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JOSHUA DOAN,                                        )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 49A04-1302-CR-90
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Kurt M. Eisgruber, Judge
                             Cause No. 49G01-1110-FA-72982


                                         November 6, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                          Case Summary

        Joshua Doan appeals his conviction for Class A felony burglary and the trial

court’s determination that he is a habitual offender. First, he claims the evidence is not

sufficient to support his conviction for Class A felony burglary. Second, he argues that

the trial court erroneously permitted the habitual-offender information to be filed. Third,

he contends that he did not knowingly, intelligently, or voluntarily waive his right to a

jury trial. Finding that the evidence was sufficient to support his conviction for Class A

felony burglary, that Doan did not preserve the issue of the untimely filing of the

habitual-offender information for appeal, and that he did not knowingly, voluntarily, and

intelligently waive his jury-trial rights for the habitual-offender charge, we reverse in part

and affirm in part.

                                 Facts and Procedural History

        On September 30, 2011, Efren Merino Lopez texted Crystal Holloway and asked

her to come to his mobile home and have sex with him in exchange for money. Shortly

thereafter, Crystal arrived at Efren’s mobile home with her friend, Bethany Arthur.

Clevon Stone1 and Doan rode with the girls and remained in the car. Crystal and Bethany

went into Efren’s mobile home and discussed the price for having sex. Crystal then went

to the bathroom and called Stone on her cell phone.

       Stone and Doan ran from the car to the mobile home and burst inside demanding

money. Doan was armed with a pistol and Stone was armed with an assault rifle. Crystal

and Bethany went to the car and waited for Doan and Stone. Doan pointed his gun at


       1
          In a related case, this Court affirmed the convictions of co-defendant Clevon Stone. Stone v.
State, No. 49A05-1303-CR-102 (Ind. Ct. App. Nov. 6, 2013).
                                                  2
Efren. He then hit Efren with the pistol, causing him to fall to the ground. Once on the

ground, Doan started kicking Efren and demanded money. Efren’s head and face were

injured, requiring stitches. Doan then asked if anyone else was in the house. Efren told

Doan that his brother, Fidel Merino Lopez, and two young children were sleeping in the

other room. Doan went into the bedroom and awakened Fidel and his children. Stone

stayed in the living room, pointing his rifle at Efren.

       Doan then ordered Fidel and his children into the living room. Once in the living

room, Doan hit Fidel with his pistol, knocking him to the floor. Stone hit Fidel with his

rifle, injuring Fidel’s head. Doan and Stone demanded money from Fidel.

       Meanwhile, Bethany, who was still sitting in the car, became worried and returned

to the mobile home. Once inside, she went into Efren’s bedroom and rummaged through

his belongings, looking for valuables. Bethany then went back into the living room.

Doan grabbed Efren’s wallet and handed it to Bethany. She took the wallet to the car and

then returned to the mobile home.

       Shortly thereafter, the police arrived. Doan, Stone, and Bethany escaped through

the back window of the mobile home. The police found Stone and Bethany behind the

mobile home. Stone’s rifle was also found behind the mobile home. The police did not

find Doan. He was later apprehended, and Efren identified him in a photo array.

       The State charged Doan with Class A felony burglary, two counts of Class B

felony robbery, two counts of Class C felony battery, two counts of Class B felony

criminal confinement, Class B felony unlawful possession of a firearm by a serious

violent felon, and Class A misdemeanor carrying a handgun without a license.


                                              3
Appellant’s App. p. 25-28. The Class A misdemeanor carrying a handgun without a

license charge was enhanced to a Class C felony because Doan had been convicted of a

felony within the last fifteen years. Id. at 30. Doan’s initial hearing occurred in May

2012, and the trial court scheduled his omnibus date for July 13, 2012. Id. at 7. Doan

waived his right to a jury trial in August 2012. Id. at 39-40. On October 23, 2012, the

State filed a Notice of Filing Habitual Offender to have Doan sentenced as a habitual

offender. Id. at 52-54. The trial court granted the motion. Id. at 10. Before trial, the

State dismissed Doan’s charge of Class B felony unlawful possession of a firearm by a

serious violent felon. In December 2012, Doan requested a continuance because defense

counsel would be unavailable on the day of the previously scheduled trial. Id. at 55.

       A bench trial was conducted in January 2013. The trial court granted Doan’s

motion for a judgment on the evidence for one count of Class B felony robbery. Tr. p.

159-60. The trial court found Doan guilty of Class A felony burglary, Class B felony

robbery, two counts of Class C felony battery, and two counts of Class B felony criminal

confinement. Id. at 174-76. Doan stipulated that he was a habitual offender in exchange

for the State dismissing his Class B felony unlawful possession of a firearm by a serious

violent felon and his Class C felony enhancement for carrying a handgun without a

license. Id. at 177-78. The court determined that Doan was a habitual offender. Id. at

179. Doan was found guilty of Class A misdemeanor carrying a handgun without a

license. Id. at 180-81.




                                            4
       At sentencing, the trial court sentenced Doan to fifty years imprisonment, which

included a thirty-year habitual-offender enhancement. Id. at 215. The trial court ordered

the final six years of Doan’s sentence to be executed at Community Corrections. Id.

       Doan now appeals.

                                 Discussion and Decision

       Doan raises three issues on appeal.        First, Doan argues that the evidence is

insufficient to support his conviction for Class A felony burglary. Second, he contends

that the trial court abused its discretion in allowing the State to file the habitual-offender

information after the statutory time limit expired. Last, Doan claims that the trial court

erred in determining that he was a habitual offender because there was no initial hearing

and because he did not validly waive his right to a jury trial on the habitual-offender

charge.

                                  I. Sufficiency of the Evidence

       Doan contends that the evidence is insufficient to support his conviction for Class

A felony burglary. When reviewing the sufficiency of the evidence, we neither reweigh

the evidence nor determine the credibility of witnesses. Bailey v. State, 979 N.E.2d 133,

135 (Ind. 2012). We look solely to the evidence most favorable to the judgment together

with all reasonable inferences to be drawn therefrom. Id. A conviction will be affirmed

if the probative evidence and reasonable inferences to be drawn from the evidence could

have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable

doubt. Id.




                                              5
         Class C felony burglary is the breaking and entering of the building or structure of

another with the intent to commit a specific felony therein. Ind. Code § 35-43-2-1. The

offense is elevated to a Class A felony if it results in bodily injury or serious bodily injury

to any person other than a defendant. Id. § 35-43-2-1(2). Doan argues that the evidence

is insufficient to support his conviction for Class A felony burglary because Doan’s pistol

was not a deadly weapon. However, the burglary statute contains no requirement that a

deadly weapon be used in elevating the burglary offense from a Class C felony to a Class

A felony. Rather, the question is whether the State provided sufficient evidence of

“bodily injury” to sustain Doan’s Class A felony burglary conviction.

         Bodily injury is defined as “any impairment of physical condition, including

physical pain.”     Id. §35-31.5-2-29.     This Court has held that any physical pain is

sufficient to constitute bodily injury. Toney v. State, 961 N.E.2d 57, 60 (Ind. Ct. App.

2012).     In this case, Efren and Fidel’s injuries are sufficient to establish that they

experienced physical pain. Doan hit both Efren and Fidel, causing injuries to both of

their heads and faces. Moreover, Efren testified to being in pain. Tr. p. 37. Because

evidence of any pain is sufficient to establish the bodily injury necessary to elevate the

burglary to a Class A felony burglary, the evidence is sufficient to find Doan guilty of

Class A felony burglary.

                       II. Filing the Habitual-Offender Information

         Doan contends that the trial court abused its discretion by allowing the State to file

the habitual-offender information after the statutory time limit expired. An abuse of

discretion occurs “only where the decision is clearly against the logic and effect of the


                                               6
facts and circumstances.” Land v. State, 802 N.E.2d 45, 53 (Ind. Ct. App. 2004), trans.

denied.

        Under Indiana law, “[a]n amendment of an indictment or information to include a

habitual offender charge under IC 35-50-2-8 . . . must be made not later than ten (10)

days after the omnibus date.” Ind. Code Ann. § 35-34-1-5(e) (West 2012).2 However, a

trial court may allow a habitual-offender charge to be filed at any time before the

beginning of trial “upon a showing of good cause.” Id.

        The State filed the habitual-offender information 102 days after the omnibus date,

which is significantly more than ten days after the omnibus date. Although the State did

not establish good cause for filing the habitual-offender information after the deadline,

the Indiana Supreme Court has held that unless the defendant objects or moves for a

continuance, he waives the issues on appeal. White v. State, 963 N.E.2d 511, 518 (Ind.

2012). In White, the Supreme Court stated that “to preserve this issue for appeal, a

defendant must request a continuance after a trial court permits a tardy habitual-offender

filing.” Id. In that case, the Supreme Court explained that this rule has no exceptions.

Id. Despite no finding of good cause for the late filing, the appellate court could not

reach that argument because the defendant waived it by failing to object or request a

continuance. Id. Indeed, “[a] party may not sit idly by and permit the court to act in a

claimed erroneous matter and then attempt to take advantage of the alleged error at a later

time.” Hensley v. State, 251 Ind. 633, 244 N.E.2d 225, 228 (1969).




        2
          In July 2013, after the trial in this case occurred, the Indiana legislature amended this statute to
permit the filing of a habitual-offender charge at least thirty days before trial. Ind. Code § 35-34-1-5(e).
                                                      7
        Here, Doan never objected or responded to the State’s motion to file the habitual-

offender charge.3 The only continuance Doan requested was because defense counsel

was unavailable for trial at the originally scheduled trial.4 Appellant’s App. p. 55.

Moreover, Doan did not raise the issue during the habitual-offender portion of the

proceeding.      Tr. p. 176-81.        Doan argues that he was not required to request a

continuance or to object. He cites no authority to support this argument in his brief.

Appellant’s Br. p. 7. Doan’s argument is contrary to well-established precedent, as

explained in White.

        Finally, Doan argues that his rights were substantially prejudiced by the late filing

of the habitual-offender information because he waived his jury-trial rights before the

habitual-offender information was filed. Substantive amendments may be made to an

indictment or information as long as the defendant’s rights are not substantially

prejudiced. Ind. Code Ann. § 35-34-1-5(b) (West 2012).5 This Court has stated that

these rights include “a right to sufficient notice and an opportunity to be heard regarding

the charge.” Jones v. State, 863 N.E.2d 333, 338 (Ind. Ct. App. 2007). In considering

these rights, the ultimate question is “whether the defendant had a reasonable opportunity



        3
         Doan argues that this case is analogous to Hooper v. State because the State did not show good
cause, but it is distinguishable. In Hooper, the defendant objected to the State’s amendment of the
charges by filing a habitual-offender enhancement. 779 N.E.2d 596, 602 (Ind. Ct. App. 2002). In this
case, Doan made no such objection.
        4
         In White, the Indiana Supreme Court suggested that if White had requested a continuance, but
there was no showing of good cause, the Court would have reached a different conclusion. However, the
continuance must be related to the late filing rather than an unrelated reason for the delay. See White, 963
N.E.2d at 518.
        5
         This portion of the statute was not changed in the July 2013 amendment. See Ind. Code § 35-
34-1-5(b).
                                                     8
to prepare for and defend against the charges.” Gomez v. State, 907 N.E.2d 607, 611

(Ind. Ct. App. 2009), trans. denied. Here, Doan had an opportunity to be heard on his

habitual-offender charge during the habitual-offender proceedings. He did not object to

the late filing or complain about not having an initial hearing on the habitual-offender

count. In fact, Doan stipulated to being a habitual offender in exchange for a dismissal of

his charge for Class B felony possession of a firearm by a serious violent felon and a

dismissal of his Class C felony enhancement for carrying a handgun without a license.

Tr. p. 177-78. Moreover, Doan’s three months to prepare for the habitual-offender

proceeding was sufficient.     See Cheney v. State, 486 N.E.2d 508, 514 (Ind. 1985)

(holding that Cheney’s rights were not substantially prejudiced when he had one-and-a-

half months to prepare his defense after an amended substantive filing).

       Although the State did not comply with the statute by filing the habitual-offender

information more than thirty days after the omnibus date, Doan’s failure to object waives

the issue on appeal.

                                III. Waiver of Jury-Trial Rights

       Doan also argues that he did not knowingly, voluntarily, and intelligently waive

his right to a jury trial with respect to the habitual-offender charge. The right to a trial by

jury is guaranteed by both the United States and Indiana Constitutions. Jones v. State,

810 N.E.2d 777, 779 (Ind. Ct. App. 2007). This right applies to habitual-offender

proceedings. Id. A person charged with a felony has an automatic right to a jury trial,

and is presumed not to waive that right unless he affirmatively acts to do so. Id.




                                              9
         Although Doan failed to object to not waiving his jury-trial rights, we may still

consider his claim under the doctrine of fundamental error. Fundamental error occurs

when “errors are so blatant and serious that to ignore them would constitute a denial of

fundamental due process.” Sanders v. State, 764 N.E.2d 705, 710 (Ind. Ct. App. 2002),

trans. denied. A court may “consider the merits of a waived issue if the reviewing court

finds that the error was so prejudicial to the rights of the appellant that he could not have

had a fair trial.” Id. In the context of jury-trial rights, “[i]t is fundamental error to deny a

defendant a jury trial unless there is evidence of the defendant’s knowing, voluntary and

intelligent waiver of the right.” Reynolds v. State, 703 N.E.2d 701, 704 (Ind. Ct. App.

1999).

         For a jury-trial waiver to be effective, the Indiana Supreme Court requires

“personal communication of the defendant to the court that he chooses to relinquish the

right.” Doughty v. State, 470 N.E.2d 69, 70 (Ind. 1984). Such communication can be

either a signed writing or orally in open court so long as it is personal. Id. Even if the

defendant is present while his attorney waives his jury-trial right for him, the defendant

must still make a personal waiver. Kellems v. State, 849 N.E.2d 1110 (Ind. 2006).

         This Court has vacated convictions of habitual-offender determinations when

habitual-offender information was added after the defendant waived his jury-trial right

and a new waiver was not obtained. Jones, 810 N.E.2d at 780; O’Connor v. State, 796

N.E.2d 1230 (Ind. Ct. App. 2003). When habitual-offender charging information is filed

after a jury-trial waiver has been filed, this Court concluded that “[t]he record reveals that

O’Connor was never advised of her right to a jury trial as to the habitual offender


                                              10
determination and that at no time after the State filed the habitual offender information

did she waive her right to such.” O’Connor, 796 N.E.2d at 1235.

       In this case, Doan executed a waiver of his jury-trial rights before the habitual-

offender information was filed. The waiver made no mention of his charge as a habitual

offender. Appellant’s App. p. 39-40. At the commencement of the habitual-offender

proceeding, the Court stated that, “I don’t know if that was waived formally.” Tr. p. 176.

Defense counsel responded that, “[i]t was our intent to waive the entire proceeding on all

accounts. Id. at 176-77. The trial court then stated that, “I would assume the habitual

was part of your discussions and that would be my understanding as well.” Id. at 177.

Doan, however, made no personal statement waiving his rights.           Id. 176-177.    His

attorney’s statement, without more, was insufficient to waive Doan’s jury-trial rights.

See Kellems, 849 N.E.2d at 1113.

       Therefore, we reverse the trial court’s habitual-offender determination.         We

remand for a jury trial or a bench or jury trial if Doan waives his jury-trial right, on the

habitual-offender count.

       Affirmed in part, reversed in part.

BAKER, J., and FRIEDLANDER, J., concur.




                                             11
