                                                                             FILED
MEMORANDUM DECISION
                                                                         Nov 15 2017, 9:46 am

Pursuant to Ind. Appellate Rule 65(D), this                                  CLERK
                                                                         Indiana Supreme Court
Memorandum Decision shall not be regarded as                                Court of Appeals
                                                                              and Tax Court
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
Darren Bedwell                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

David Howard,                                           November 15, 2017

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1704-CR-752
        v.                                              Appeal from the Marion County
                                                        Superior Court.
State of Indiana,
                                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                     Judge.
                                                        The Honorable Richard C.
                                                        Hagenmaier, Commissioner.

                                                        Trial Court Cause No. 49G21-1402-
                                                        FB-10305




Darden, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017          Page 1 of 12
                                          Statement of the Case
[1]   David Howard appeals his conviction of unlawful possession of a firearm by a
                                                      1
      serious violent felon, a Class B felony. He also appeals the trial court’s

      determination that he is a habitual offender. We affirm in part, reverse in part,

      and remand with instructions.


                                                   Issues
[2]   Howard raises two issues, which we restate as:

                 I.       Whether Howard was denied the right to a fair trial by jury
                          in phase one of the trial proceedings.
                 II.      Whether Howard waived his right to a jury trial in phase
                          two of the trial on the habitual offender sentencing
                          enhancement.

                                   Facts and Procedural History
[3]   On February 26, 2014, Officer Gabriel Slaybaugh of the Lawrence Police

      Department was dispatched to an apartment in Marion County to investigate a

      reported shooting. Upon arriving, he was directed to a back bedroom, where he

      found Howard sitting in a chair, bleeding from his mouth. Howard had a

      gunshot wound underneath his chin. He did not have any other injuries, and

      the room did not show signs of a struggle. Based upon Slaybaugh’s experience




      1
          Ind. Code § 35-47-4-5 (2012).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017   Page 2 of 12
      with firearms and combat training, it appeared to him that Howard’s wound

      was self-inflicted.


[4]   Slaybaugh was aware paramedics would not enter the apartment until all guns

      were secure. He asked Howard asked where the gun was. Howard did not

      answer. Instead, he repeatedly asked for an ambulance. After talking with a

      woman who also lived in the apartment, Slaybaugh found a handgun hidden in

      a shoe in the room where Howard was sitting and secured it. Paramedics

      entered the apartment and took Howard to the hospital for treatment.


[5]   Next, a detective arrived at the apartment. He searched the bedroom and

      determined that there had not been a fight in that room because the blood was

      “localized” in the center of the room, where Howard had been sitting, rather

      than spattered on the walls and other surfaces. Tr. Vol. II, p. 82.


[6]   The State arrested Howard after he received medical treatment. While he was

      incarcerated, he made several phone calls which were recorded by jail

      personnel. During one call, Howard admitted to accidentally shooting himself.


[7]   The State charged Howard with unlawful possession of a firearm by a serious

      violent felon, claiming he had a prior conviction for battery, a Class C felony.

      The State later added a claim that Howard was an habitual offender.


[8]   Howard filed a motion to bifurcate the trial of the possession charge, arguing

      that, before trial, the use of language in the charging information that by law

      Howard was already adjudicated to be a “serious violent felon” is extremely


      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017   Page 3 of 12
       prejudicial and would deprive of him of a fair trial. Appellant’s App. Vol. II, p.

       69. He further argued that he “would be forced to choose between stipulating

       to an essential element of the crime and having a fair trial.” Id.


[9]    On September 1, 2016, the trial court held a hearing before jury selection was to

       begin and heard arguments on the motion to bifurcate. Howard suggested that

       the jury should first be required to determine whether he possessed a firearm in

       phase one of the trial proceedings, and then later decide in phase two of the trial

       proceedings whether it was lawful for him to possess it. The trial court rejected

       Howard’s suggestion, stating that such a procedure would confuse the jury

       because the officer encountered Howard in his own home, where he would

       have otherwise had the right to possess a firearm even without a license. The

       trial court then suggested that a joint stipulation by the parties could resolve the

       issue.


[10]   Subsequently, Howard proposed a stipulation to the trial court, suggesting “If

       we stipulate the language might be that the possession was unlawful, and just

       leave it at that.” Tr. Vol. II., p. 11. Howard stated he would “stipulate . . . to

       the, uh, battery as a C felony conviction.” Id. at 12. The State agreed to

       Howard’s proposal. The trial court explained that the stipulation would affect

       the preliminary and final instructions and reviewed its revised preliminary

       instruction on the elements of the offense with the parties. Howard agreed the

       preliminary instruction was “fine.” Id. at 13. He further added, “from [a]

       defense point, it doesn’t fix the problem, but it was our choice.” Id. The court



       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017   Page 4 of 12
       ended the discussion by formally granting Howard’s motion to bifurcate the

       trial proceedings.


[11]   The jury trial was continued until February 2, 2017 due to matters not relevant

       to this appeal. After the jury was selected, the trial court read the preliminary

       instructions to the jury panel, including the stipulated, previously-approved

       Preliminary Instruction Number Four on the elements of the offense. That

       instruction provided in relevant part, the following;

               In this case, the State of Indiana has charged [Howard] with
               Count I: Unlawful Possession of a Firearm. The charge reads as
               follows:
               Count I
               David Howard, a person prohibited by Indiana law from
               possession [of] a firearm, did on or about February 26, 2014,
               knowingly or intentionally possess a firearm, that is: a handgun.
               [Howard] has entered a plea of not guilty.
       Appellant’s App. Vol. II, p. 87.


[12]   During the State’s case-in-chief in phase one of the trial proceedings, the State

       presented evidence in support of its claim that Howard had possessed the

       handgun and accidentally shot himself. The prosecutor informed the jury,

       without objection from Howard, that the parties had stipulated to the following:

       “The parties agree one [sic], that David Howard is a person who is not allowed

       to possess a firearm, and that any possession of a firearm by David Howard is

       therefore unlawful.” Tr. Vol. II, p. 96.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017   Page 5 of 12
[13]   During Howard’s defense, he presented testimony from a witness who testified

       that Howard got into a fight with a person named TJ, who pulled out a

       handgun and shot Howard before fleeing from the apartment.


[14]   After the parties ended their presentations of evidence, the trial court and the

       parties had a discussion outside the presence of the jury. The trial court, the

       State, and Howard’s counsel discussed the following:

               [Court]:   Um, I’m assuming we don’t need identification?
               Anybody from IDET?
               [Counsel]: Um, yes. I spoke to Mr. Howard, um, on lunch
               break, and if there is a bad outcome today, I told him that three
               options were had the jury decided the prior, um, court trial
               sudden prior [sic] to just stipulate them, and use that as a
               mitigatory [sic], and Mr. Howard is okay with us stipulating to
               the priors.
               [Court]:         Okay.
               [Counsel]:       And then we’ll use that as a mitigatory.
               [Court]:         Okay.
               ****
               [Court]:         Oh, okay. But you – you have agreed to stipulate?
               [Counsel]:       Yeah, yeah.
               [Howard]:        No problem, right Judge?
               [Counsel]:       Yeah, it’s the right decision.

       Tr. Vol. II, pp. 118-19.


[15]   During the same hearing outside the presence of the jury, the State moved to

       enter into evidence State’s Exhibit 9, which was a copy of the judgment of

       conviction for the crime of battery as a Class C felony which was the predicate

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017   Page 6 of 12
       felony for the charge of possession of a firearm by a serious violent felon.

       Howard had no objection to the exhibit so long as it was not published to the

       jury. The trial court and State agreed with Howard.


[16]   After closing arguments, the trial court read the final instructions to the jury.

       The instructions included Final Instruction Number Three, which provided in

       relevant part:

               The crime of Unlawful Possession of a Firearm is defined by
               statute as follows:
               A person who knowingly or intentionally possesses a firearm and
               said possession was unlawful.
               To convict [Howard] of Count I, the State must have proved
               each of the following beyond a reasonable doubt:
               1. [Howard]
               2. Knowingly or Intentionally
               3. Possessed
               4. A firearm
               5. And said possession was unlawful [sic]
               The Parties have stipulated that [Howard] is a person prohibited
               by Indiana Law from possessing a firearm.

       Appellant’s App. Vol. II, p. 99. The trial court further instructed the jury,

       “When the parties stipulate to the existence of a fact, they agree that such fact is

       indisputably proven. Once such a stipulation is made, you must assume that

       fact is true.” Id. at 105.


[17]   The jury found Howard guilty of unlawful possession of a firearm in phase one.

       The trial court discharged the jury and asked Howard if he stipulated to the


       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017   Page 7 of 12
       predicate felony for the offense of possessing a handgun while being a serious

       violent felon and to the prior convictions underlying the habitual offender

       enhancement. Howard responded, “Yes.” Tr. Vol. II, p. 138. The trial court

       entered a judgment of conviction for the offense of unlawful possession of a

       firearm by a serious violent felon and adjudicated Howard to be an habitual

       offender. The trial court then proceeded to impose a sentence, and this appeal

       followed.


                                    Discussion and Decision
            I. Jury Trial on All Elements of the Offense of Unlawful
                Possession of a Firearm by a Serious Violent Felon
[18]   Howard argues the trial court deprived him of his right to a jury trial under the

       federal and state constitutions in phase one of the proceedings by failing to hold

       a separate jury trial to determine whether he had committed a predicate felony

       as an element of the offense of unlawful possession of a handgun by a serious

       violent felon. In response, the State argues that there is sufficient evidence to

       sustain the conviction and, if there is any error, that Howard had invited the

       error.


[19]   We first note that the doctrine of invited error is grounded in estoppel. Wright v.

       State, 828 N.E.2d 904, 907 (Ind. 2005). A party may not take advantage of an

       error that he commits, invites, or which is the natural consequence of his own

       neglect or misconduct. Id. Invited error precludes relief from counsel’s

       strategic decisions gone awry. Hill v. State, 51 N.E.3d 446, 451 (Ind. Ct. App.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017   Page 8 of 12
       2016). Even constitutional errors may be invited. Brewington v. State, 7 N.E.3d

       946, 977 (Ind. 2014).


[20]   In this case, after the trial court had initially denied Howard’s request to

       bifurcate his trial to avoid undue prejudice so that the jury would first decide

       whether he possessed a firearm, and then decide whether he possessed the

       firearm unlawfully, Howard proposed a stipulation. Specifically, he requested

       that the first phase of the trial proceeding be limited to whether he possessed a

       firearm unlawfully. Howard further stated he would “stipulate . . . to the, uh,

       battery as a C felony conviction.” Tr. Vol. II, p. 12. The State and the trial

       court accepted Howard’s stipulation. Howard’s counsel stated the process “was

       our choice.” Id. at 13.


[21]   At trial, Howard and the State agreed to a stipulation, which was read to the

       jury, which merely explained that he was not legally allowed to possess a

       firearm, without informing the members of the jury of Howard being alleged to

       be a serious violent felon. After the conclusion of evidence, Howard informed

       the trial court if the jury found against him, he would stipulate that he had prior

       convictions. Further, he did not object to the admission into evidence of State’s

       Exhibit 9, which indicated that he had been convicted of felony battery in 1993,

       if the exhibit was not presented to the jury.


[22]   A stipulation to a fact that proves an element of an offense removes the burden

       to prove that element. See Slone v. State, 912 N.E.2d 875, 879 (Ind. Ct. App.

       2009) (State no longer needed to prove amount of drugs defendant purchased


       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017   Page 9 of 12
       because she stipulated to the amount), trans. denied. Subsequently, after the jury

       returned a guilty verdict, Howard did not object to the dismissal of the jury and

       instead told the court he stipulated to the underlying felony conviction for the

       offense of possession of a firearm by a serious violent felon.


[23]   Howard did not object to the admission of evidence that tended to prove he had

       committed a predicate felony, and he stipulated to the trial court as to the

       validity of the predicate felony when the guilty verdict was returned. In short, it

       appears that Howard may have given the trial court every reason to believe that

       if the jury found him guilty of unlawful possession of a firearm, there would be

       no need for a second phase of the trial proceedings for the State to prove the

       existence of a predicate felony. The trial court reasonably could have

       concluded during phase one that Howard waived any right to further trial

       proceedings through the stipulation on the claim that he was a serious violent

       felon. On the other hand, to the extent that the trial court may have erred in

       not holding a second phase of the proceedings on the existence of a predicate

       felony, Howard may have also invited error therein. The record is unclear.

       However, Howard has not demonstrated grounds for reversal on phase one of

       the trial proceedings, and we affirm his conviction for unlawful possession of a

       firearm by a serious violent felon. We will address in the second part of our

       opinion the issue raised regarding phase two of the trial proceedings.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017   Page 10 of 12
             II. Waiver of Right to Jury Trial on Habitual Offender
                                  Enhancement
[24]   Howard argues that the trial court erred by convicting him of the habitual

       offender enhancement without first determining that he had waived his right to

       a jury trial on that issue. The State concedes, “this matter should be remanded

       to the trial court where an appropriate waiver of the right to trial by jury can be

       secured or the evidence supporting the habitual offender can be submitted to a

       jury, assuming Howard elects not to plead guilty on the habitual offender

       count.” Appellee’s Br., p. 13.


[25]   To constitute a valid waiver of the right to a trial by jury, the defendant’s waiver

       must be voluntary, knowing, and intelligent. O’Connor v. State, 796 N.E.2d

       1230, 1233 (Ind. Ct. App. 2003). The defendant’s voluntary, knowing and

       intelligent waiver must be apparent from the court’s record, whether in the form

       of a written waiver or a colloquy in open court. Id. at 1234.


[26]   Considering the parties’ agreement that the record fails to demonstrate that

       Howard voluntarily waived his right to be tried by a jury as to the habitual

       offender enhancement, we must reverse that portion of the judgment of

       conviction pertaining to the enhancement. Further, we remand to the trial

       court with instructions to determine whether Howard waives his right to a jury

       trial on the habitual offender enhancement or to grant Howard a jury trial on

       the habitual offender enhancement and to proceed accordingly.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017   Page 11 of 12
                                                Conclusion
[27]   For the reasons stated above, we affirm Howard’s conviction for possession of a

       firearm by a serious violent felon in phase one of the trial proceedings. We

       reverse the trial court’s determination that Howard is a habitual offender and

       remand for further proceedings not inconsistent with this decision.


[28]   Affirmed in part, reversed in part, and remanded with instructions.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017   Page 12 of 12
