MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Jul 30 2018, 10:56 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jeremy K. Nix                                            Curtis T. Hill, Jr.
Huntington, Indiana                                      Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Luis C. Schleiffer,                                      July 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         35A02-1712-CR-2885
        v.                                               Appeal from the Huntington
                                                         Superior Court
State of Indiana,                                        The Honorable Jennifer E.
Appellee-Plaintiff.                                      Newton, Judge
                                                         Trial Court Cause No.
                                                         35D01-1612-CM-752



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A02-1712-CR-2885 | July 30, 2018            Page 1 of 5
                                        Statement of the Case
[1]   Luis Schleiffer (“Schleiffer”) appeals his conviction following a bench trial of

      possession of marijuana with a prior conviction, a Class A misdemeanor.1 His

      sole argument is that the trial court abused its discretion in allowing the State to

      reopen its case to present evidence of his prior conviction. Finding no abuse of

      the trial court’s discretion, we affirm the trial court’s judgment.


[2]   We affirm.


                                                      Issue
                 Whether the trial court abused its discretion when it allowed the
                 State to reopen its case to present evidence of Schleiffer’s prior
                 conviction.


                                                     Facts
[3]   In December 2016, the State charged Schleiffer with possession of marijuana

      with a prior conviction for possession of marijuana. At Schleiffer’s November

      2017 bench trial, the State rested without presenting evidence regarding

      Schleiffer’s prior conviction. During closing argument, Schleiffer argued that

      the State had failed to present evidence that he had a prior conviction. The

      State responded that it was “anticipating this would be a bi-furcated trial” and

      that if Schleiffer was found guilty of possession of marijuana, the State was




      1
          IND. CODE § 35-48-4-11.


      Court of Appeals of Indiana | Memorandum Decision 35A02-1712-CR-2885 | July 30, 2018   Page 2 of 5
      prepared to offer evidence of the prior conviction in the “second phase.” (Tr.

      74).


[4]   The trial court concluded that the State had proved beyond a reasonable doubt

      that Schleiffer was guilty of possession of marijuana and permitted the State to

      reopen its case to present evidence of Schleiffer’s prior conviction. A probation

      officer testified that Schleiffer had a prior conviction for possession of

      marijuana as a Class D felony, and the trial court admitted into evidence

      certified records substantiating the conviction. Thereafter, the trial court

      convicted Schleiffer of possession of marijuana with a prior conviction, a Class

      A misdemeanor. Schleiffer now appeals his conviction.


                                                  Decision
[5]   Schleiffer argues that there is insufficient evidence to support his conviction of

      possession of marijuana with a prior conviction for possession of marijuana

      because the State failed to prove the prior conviction in its case-in-chief, and

      Schleiffer did not request a bi-furcated proceeding. However, the trial court

      subsequently allowed the State to reopen its case, and Schleiffer does not

      dispute that this later-presented evidence established that he had a prior drug

      conviction. The issue is therefore whether the trial court abused its discretion

      when it allowed the State to reopen its case to present evidence of Schleiffer’s

      prior conviction.


[6]   The decision to allow the State to reopen its case after the State has rested is

      within the trial court’s discretion. Gilman v. State, 65 N.E.3d 638, 641 (Ind. Ct.

      Court of Appeals of Indiana | Memorandum Decision 35A02-1712-CR-2885 | July 30, 2018   Page 3 of 5
      App. 2016). To establish that the trial court committed reversible error, the

      defendant must establish that the trial court clearly abused that discretion. Id.

      In determining whether the trial court abused its discretion, we consider: (1)

      whether the defendant was prejudiced by the reopening of the case; (2) whether

      the party seeking to reopen the case rested inadvertently or purposefully; (3) the

      stage of the proceedings at which the request is made; and (4) whether any real

      confusion or inconvenience would result from granting the request. Id.


[7]   Here, we agree with the State that “[a]t most, the [State’s] failure to introduce

      the evidence of the prior conviction earlier in the proceedings was an

      inadvertent mistake based on the belief that this evidence should not be

      introduced until after the State had proved that Schleiffer had possessed the

      marijuana in the present case.” (State’s Br. 8-9). We also agree with the State

      that there “was no prejudice to Schleiffer in permitting the State to introduce

      the prior conviction evidence in a bi-furcated manner instead of at the same

      time the evidence was introduced of Schleiffer’s most recent possession of

      marijuana.”2 (State’s Br. 8). Schleiffer was aware of his prior conviction and

      knew that it was being used to enhance his current offense. He did not

      challenge it. We have previously stated that a “trial is not a game of




      2
        Had this been a jury trial, we might have reached a different result. See Landis v. State, 704 N.E.2d 113, 113
      (Ind. 1998) (explaining that when “the State seeks an enhanced penalty based on a prior conviction . . . , a
      defendant is entitled to a bifurcated proceeding in which the proof of the prior conviction is submitted to the
      jury only after it has rendered a guilty verdict on the present offense.”) Here, however, Schleiffer was tried in
      a bench trial. “We presume the trial judge is aware of and knows the law, and considers only the evidence
      properly before the judge in reaching an informed decision.” Dumas v. State, 803 N.E.2d 1113, 1121 (Ind.
      2004).

      Court of Appeals of Indiana | Memorandum Decision 35A02-1712-CR-2885 | July 30, 2018                  Page 4 of 5
      technicalities but one in which the facts and truth are sought.” King v. State, 531

      N.E.2d 1154, 1161 (Ind. Ct. App. 1988). The trial court did not abuse its

      discretion when it allowed the State to reopen its case to present evidence of

      Schleiffer’s prior conviction.


[8]   Affirmed.


      Vaidik, C.J., and Barnes, Sr.J., concur.




      Court of Appeals of Indiana | Memorandum Decision 35A02-1712-CR-2885 | July 30, 2018   Page 5 of 5
