      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                         FILED
      this Memorandum Decision shall not be                                     Jul 05 2019, 6:21 am
      regarded as precedent or cited before any
                                                                                     CLERK
      court except for the purpose of establishing                               Indiana Supreme Court
                                                                                    Court of Appeals
      the defense of res judicata, collateral                                         and Tax Court

      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                          Curtis T. Hill, Jr.
      Ellen M. O’Connor                                         Attorney General of Indiana
      Marion County Public Defender Agency                      Monika Prekopa Talbot
      – Appellate Division                                      Supervising Deputy Attorney
      Indianapolis, Indiana                                     General
                                                                Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA
      Yvonne Malukutila,                                        July 5, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-2827
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Elizabeth A.
      Appellee-Plaintiff.                                       Christ, Judge
                                                                Trial Court Cause No.
                                                                49G24-1712-F6-48782



      Mathias, Judge.


[1]   Yvonne Malukutila (“Malukutila”) was convicted in Marion Superior Court of

      operating a vehicle while intoxicated. Malukutila now appeals, arguing that her

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2827 | July 5, 2019                       Page 1 of 10
      right to a jury trial was violated when, after the first part of her bifurcated trial,

      the trial court did not secure a personal waiver from Malukutila regarding the

      enhancement from having a prior conviction for driving while intoxicated.


[2]   Concluding that Malukutila stipulated that she had a prior conviction for

      driving while intoxicated, thereby inviting the error claimed, we affirm.


                                  Facts and Procedural History
[3]   On December 17, 2017, Malukutila called 911 and reported that she had been

      involved in a hit and run accident. Officer Colin Anslow (“Officer Anslow”)

      responded to the call at approximately 7:30 p.m. and drove to the reported

      location of the accident. Officer Anslow did not see Malukutila’s vehicle at the

      location and was notified by control that Malukutila had driven to the parking

      lot of the Advanced Auto Parts store, just north of Officer Anslow’s location.

      Officer Anslow found Malukutila in her vehicle and noticed that the front of the

      vehicle was damaged. Officer Anslow asked Malukutila for her license,

      registration, and insurance card. Malukutila fumbled when she reached for the

      documents, and Officer Anslow noticed the odor of alcoholic beverages coming

      from Malukutila’s breath. Malukutila was given a preliminary breath test

      (“PBT”), which showed the presence of alcohol. Officer Anslow then

      transported Malukutila to Eskenazi Hospital.


[4]   Officer Michael Duke (“Officer Duke”) met Malukutila at the Eskenazi hospital

      and noticed that Malukutila’s eyes were red and glassy. Officer Duke

      mirandized Malukutila, and she agreed to a chemical test. The chemical test

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2827 | July 5, 2019   Page 2 of 10
      determined that Malukutila’s blood alcohol content was 0.301 percent.

      Malukutila told Officer Duke she started drinking at 4 p.m. at her ex-spouse,

      Henry’s, residence, but she left his home because he was physically abusive. Tr.

      pp. 78-85. Malukutila informed Officer Duke she had been a victim of

      domestic violence four days earlier and had left the house to get away from

      Henry, who was threatening to strangle her. Id. at 55, 78. Malukutila did not

      report the abuse during her 911 call because she did not want Henry to get in

      trouble. Id. at 78.


[5]   On December 21, 2017, the State charged Malukutila with Count I, Class A

      misdemeanor operating a vehicle with an alcohol concentration equivalent

      (“ACE”) of .15 or more and Count II, Class C misdemeanor operating a

      vehicle while intoxicated. The State also charged Malukutila with Level 6

      felonies for both counts, alleging that Malukutila was previously convicted of

      operating a vehicle while intoxicated on February 19, 2013.

[6]   A bifurcated jury trial was held on September 25, 2018. At trial, Malukutila

      asserted the affirmative defense of necessity, arguing that she drove her vehicle

      in order to flee an abusive situation. At the end of phase one, the jury found

      Malukutila guilty of both counts as misdemeanors. The parties had stipulated

      that if the jury found Malukutila guilty of the misdemeanor offenses, then

      Malukutila would admit her prior conviction. After the jury presented its

      verdict, and outside of the presence of the jury but before the jury was

      dismissed, the following exchange occurred:



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2827 | July 5, 2019   Page 3 of 10
        THE COURT: How do you wish to proceed with Phase 2?


        DEFENSE: I’m sorry?


        THE COURT: Regarding Phase 2 of this jury?


        DEFENSE: Well, we have an agreed stipulation that there would
        not be – requirement of the records we presented that in the event
        of the guilty finding in this case that she would also admit to the -
        -- to having the previous conviction.


        STATE: So, Judge, at this time may I read that into the record
        for factual basis?


        THE COURT: Do you -- I think that that would have to be read
        in front of the jury.


        DEFENSE: I have seen it done. . .


        STATE: I don’t think we did last week?


        THE COURT: We didn’t do it last week?


        DEFENSE: No and I’ve seen it done in other courts where it’s
        bifurcated, and it doesn’t have to be in front of a jury.


        THE COURT: All right, why don’t you go ahead and read the
        agreed stipulation into the record. I’m going to ask then, Ms.
        Malukutila if she’s heard this and she understands it.


        DEFENSE: And afterwards, Your Honor, if we may, we have a
        request for the court.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2827 | July 5, 2019   Page 4 of 10
        STATE: Your Honor, may I proceed?


        THE COURT: Yes.


        STATE: The undersigned, swears or affirms that Count 1, Part 2,
        that Yvonne Malukutila, heretofore, charged and convicted in
        Count 1 on page 1, with Operating a Vehicle with An Alcohol
        Concentration of .15 or more was previously convicted of the
        defense [sic] of Operating a Vehicle While Intoxicated in the
        Superior Court of Marion County, on or about February 19,
        2013 and that said conviction occurred within 5 years of the date
        alleged on Page 1 and that Count 2, part 2, that Yvonne
        Malukutila, heretofore charged, in Count 2 on Page 1, with
        Operating a Vehicle While Intoxicated, was previously convicted
        of the offense of Operating a Vehicle While Intoxicated in the
        Superior Court of Marion County, Indiana on or about February
        19, 2013, and that said conviction occurred within five (5) years
        of the date alleged on Page 1 of the Information.


                                                 ***


        THE COURT: This statement and saying [it’s] true, is what takes
        the misdemeanor, operating while intoxicated, and makes it a
        felony. Do you understand that?


        MS. MALUKUTILA: Yes.


        THE COURT: All right. And so, when I asked you if it’s true – if
        you heard what the prosecutor read and is it true or false, is that
        still your answer?


        MS. MALUKUTILA: Yes.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2827 | July 5, 2019   Page 5 of 10
              THE COURT: Okay, I just saw you turn to your Lawyer like
              you didn’t know what to say and I want to make sure that your
              statement is true and that there’s nothing else to add. Mr.
              Flowers, is there anything else to add?


              DEFENSE: Yes Your Honor, we have discussed with the State if
              this had occurred, we have requested and made note of our ---
              what our request would be of the court, which would be that
              given her commitment to this case, and that she actually be --- be
              allowed to have a sentencing date and that she be allowed to go
              home during that time period. I believe the State is actually in
              agreement with that.


      Tr. pp. 101-103. At the sentencing hearing on October 31, 2018, the trial court

      stated that it would merge Count II into Count I and enter judgment on Count I

      as a Class A misdemeanor.1 Tr. p. 113. Malukutila was sentenced to 355 days,

      with 353 days suspended to probation. Malukutila now appeals.


                                      Discussion and Decision
[7]   Malukutila contends that the trial court violated her right to a jury trial when it

      failed to secure a knowing and voluntary waiver of her right to have the

      enhancement for a prior conviction heard by a jury. “The jury trial right is a

      bedrock of our criminal justice system, guaranteed by both Article 1, Section 13

      of the Indiana Constitution and the Sixth Amendment to the United States

      Constitution.” Horton v. State, 51 N.E.3d 1154, 1158 (Ind. 2016). Under Indiana




      1
       However, in the sentencing order and the abstract of judgment, there are two Class A misdemeanor
      convictions for both Counts I and II with concurrent sentences of 355 days each. Appellant’s App. pp. 12-15.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2827 | July 5, 2019                    Page 6 of 10
      constitutional jurisprudence, “in a felony prosecution, waiver is valid only if

      communicated personally by the defendant.” Id. Personal waiver of the right to

      a jury trial may be either in writing or in open court. Id. at 1159. Indiana has

      rejected the purported waiver of a right to a jury trial where such waiver is

      communicated solely by a defendant’s counsel. Id. at 1158-59. This is to assure

      that the waiver is made in a knowing, intelligent, and voluntary manner, with

      sufficient awareness of the surrounding circumstances and the consequences.

      Kellems v. State, 849 N.E.2d 1110, 1112 (Ind. 2006). The validity of a jury trial

      waiver is a question of law, which appellate courts review de novo. Horton, 51

      N.E.3d at 1157.


[8]   Here, Malukutila was entitled to a jury trial on both the misdemeanor counts

      and the felony enhancement counts. See Ind. Const. Art. 1, § 13 (“In all

      criminal prosecutions, the accused shall have the right to a public trial, by an

      impartial jury”). The State argues that Malukutila waived her right to a jury

      trial for the felony enhancement phase when she admitted to having a prior

      conviction in open court and insisted on making the admission outside the

      presence of the jury. Therefore, the State contends any error was actually

      invited error.


[9]   The “‘doctrine of invited error is grounded in estoppel,’ and forbids a party to

      ‘take advantage of an error that [he] commits, invites, or which is the natural

      consequence of [his] own neglect or misconduct.’” Brewington v. State, 7 N.E.3d

      946, 975 (Ind. 2014) (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)).

      Even fundamental errors may be invited. Id. at 977.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2827 | July 5, 2019   Page 7 of 10
[10]   Malukutila was represented by counsel when she stipulated that if the jury

       found her guilty of the misdemeanor offenses, then she would admit her prior

       conviction. After Malukutila was found guilty of the misdemeanor counts by a

       jury, Malukutila by counsel insisted that the admission would not have to be in

       front of the jury, even after the trial judge advised to bring in the jury.

[11]   We addressed a similar issue in Bunting v. State, 854 N.E.2d 921 (Ind. Ct. App.

       2006), trans. denied. There, a jury found the defendant guilty of “operating a

       vehicle while intoxicated, which would independently constitute a Class C

       misdemeanor.” Id. at 923. The defendant’s attorney then advised the trial court

       that the defendant and the State had stipulated to the defendant’s prior

       conviction, and the jury was dismissed without objection. The defendant then

       admitted to having a prior conviction, and the trial court entered judgment of

       conviction for Class D felony driving while intoxicated.

[12]   On appeal, the defendant argued that he should have been given a jury trial on

       the Class D felony enhancement. We held, in part, that “if the jury dismissal

       did not comport with [the defendant’s] understanding of the effect of the

       stipulation, he nevertheless failed to object to the dismissal of the jury.” Id. at

       924. “A party may not sit idly by, permit the court to act in a claimed erroneous

       manner, and subsequently attempt to take advantage of the alleged error.” Id.


[13]   Here, similarly, after the jury found Malukutila guilty of two counts of Class A

       misdemeanor operating vehicle while intoxicated, the trial judge asked

       Malukutila’s counsel if the record for factual basis should be read in the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2827 | July 5, 2019   Page 8 of 10
       presence of the jury. Malukutila’s counsel said, “No and I’ve seen it done in

       other courts where it’s bifurcated, and it doesn’t have to be in front of a jury.”

       Tr. pp. 101-102. The trial court then dismissed the jury, and the State presented

       evidence to the trial court regarding Malukutila’s prior conviction. Malukutila

       stated the evidence presented by the State was true and understood the felony

       enhancement. Id. at 102-103. At sentencing, the trial court found that

       Malukutila had a prior conviction for driving while intoxicated, entered

       conviction on the Class A misdemeanor counts, and did not elevate the

       conviction to a felony. Thus, Malukutila had a jury trial on the misdemeanor

       charges and did not lose anything by not making her admission of having a

       prior conviction in front of a jury. Malukutila could not sit idly by, permit the

       trial court to act in the claimed erroneous manner, and then attempt to take

       advantage of the alleged error. In addition, Malukutila personally confirmed the

       accuracy of the stipulation and its likely effect on her sentencing. We conclude

       that Malukutila invited any error.

[14]   Additionally, as noted above, judgment was entered as a Class A misdemeanor.

       Even though the evidence would have supported a Level 6 felony conviction,

       the trial court did not enter it as such. In the absence of Malukutila’s

       stipulation, the evidence was still sufficient to convict Malukutila of Class A

       misdemeanor operating a vehicle while intoxicated on Count I, because her

       ACE was well over 0.15, and she admitted to Officer Duke that she was drunk.

       Tr. p. 53. Further, the remedy that Malukutila seeks from this court, re-trial on

       the Level 6 felony enhancement, could potentially result in a felony conviction.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2827 | July 5, 2019   Page 9 of 10
       The trial court did not enter a conviction on the Level 6 felony enhancement,

       and we are puzzled as to why Malukutila would incur the risk of a felony

       conviction by having this case remanded to the trial court.


                                                 Conclusion
[15]   Under these facts and circumstances, we conclude that Malukutila invited any

       error by stipulating to the facts of the enhancement phase of her trial without

       the intervention of a jury. Indeed, Malukutila herself acknowledged in open

       court both the factual stipulation and the sentencing effect that stipulation

       would have. Therefore, Malukutila cannot now claim error in the trial court’s

       failure to obtain a specific, personal waiver from her. However, we remand to

       the trial court to vacate the conviction on Count II and have the written

       sentencing order reflect that Count II was merged with Count I and that Count

       II was vacated. Accordingly, we affirm Malukutila’s convictions but remand for

       clarification of the merged status of the conviction at issue.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2827 | July 5, 2019   Page 10 of 10
