MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
                                                                     Apr 28 2020, 8:47 am
regarded as precedent or cited before any
court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Devin Lamont Sanders,                                    April 28, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1940
        v.                                               Appeal from the
                                                         Tippecanoe Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Kristen E. McVey, Judge
                                                         Trial Court Cause No.
                                                         79D05-1808-F6-1181



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020                Page 1 of 14
[1]   Devin Lamont Sanders (“Sanders”) was convicted after a jury trial of two

      counts of intimidation1 as Level 6 felonies, one count of resisting law

      enforcement2 as a Class A misdemeanor, and one count of criminal trespass3 as

      a Class A misdemeanor. Sanders raises the following two issues for our review:


                 I. Whether the trial court abused its discretion by not appointing
                 him standby counsel.


                 II. Whether the state presented sufficient evidence to support his
                 conviction for intimidation as a Level 6 felony.


[2]   We affirm.


                                         Facts and Procedural History

[3]   On August 10, 2018, Denise Rhymer (“Rhymer”), the general manager of the

      JCPenney store in the Tippecanoe Mall in Lafayette, Indiana, received a phone

      call from a supervisor in the men’s department that Sanders was not wearing a

      shirt, would not put his shirt back on, and requested to speak with the manager.

      Tr. Vol. 2 at 41. Rhymer and one of the store’s loss prevention officers went to

      the men’s department to ask Sanders if he needed help. Id. Sanders said

      nothing, put on his headphones, started singing “really loudly[,]” and

      eventually called Rhymer a “bitch”. Id. at 42. Rhymer asked Sanders, who

      continued to be “really loud and obnoxious”, to leave the store. Id. Rhymer


      1
          See Ind. Code § 35-45-2-1.
      2
          See Ind. Code § 35-44.1-3-1.
      3
          See Ind. Code § 35-43-2-2.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020   Page 2 of 14
      asked her loss prevention officer to call the police, and she and the loss

      prevention officer followed Sanders to the entrance of the mall. Id. At that

      point, Sanders was “up in [Rhymer’s] face . . . [s]winging his arms”, tried

      “chest bumping [Rhymer]” and continued to scream despite the presence of

      mall security officers. Id. at 43. Lafayette Police Department Officer James

      Jarrett (“Office Jarrett”), Officer Andrew McCormick (“Officer McCormick”),

      along with a recruit officer, arrived at the Tippecanoe Mall in response to the

      call from mall security. Id. at 59, 78.


[4]   Sanders continued his behavior until police arrived when he became “very lucid

      . . . very rational.” Id. at 44. Officer Jarrett spoke with both Rhymer, who was

      “pretty frantic[,]” and Sanders about the events, which Sanders characterized as

      “a misunderstanding of some sort.” Id. At the request of mall security, Officer

      Jarrett gave Sanders a trespass warning to leave the property, and Sanders

      began to leave the mall. Id. at 60-61. While he was leaving, Sanders came back

      towards Rhymer and told her that he was going “to come back and shoot

      [her].” Id. at 44, 61, 78. Officer McCormick confirmed with Rhymer that

      Sanders threatened her, and he followed Sanders out of the mall. Id. at 61, 78-

      79. Officer McCormick told Sanders he needed to leave the mall’s property or

      he would be arrested for trespass. Id. at 79. Sanders went around the outside of

      the mall toward the north side of JCPenney. Id. The officers drove around to

      the north side of the mall to be sure that Sanders was leaving the mall’s property

      and not attempting to reenter JCPenney through the north entrance. Id. at 80.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020   Page 3 of 14
[5]   Officer McCormick saw Sanders in a center island of the mall’s parking lot

      attempting to remove a bicycle that was padlocked to a pole. Id. Sanders

      abandoned his attempt to remove the bicycle and went back toward JCPenney.

      Id. at 81. Officer McCormick approached Sanders, who was hiding behind a

      pole near the entrance to the store, told Sanders that he had been warned for

      trespass and needed to leave the mall’s property. Id. Officer McCormick again

      told Sanders that he “had a couple of seconds to make it off the property or he

      was going to jail.” Id. Sanders backed away from Officer McCormick, started

      “flashing fingers” which Officer McCormick interpreted as “gang signs,

      nonverbal communication[,]” and Sanders told Officer McCormick, “on my

      soul vice lord I got you.” Id. at 81, 84, 120. Officer McCormick told Sanders

      he was under arrest, and Sanders “actively flexed and pulled forward to pull his

      hands” in a manner that prevented the officers from securing him in handcuffs.

      Id. at 82. Sanders continued to “fight and argue” and with Officer Jarrett’s

      assistance the officers were eventually able to handcuff Sanders. Id. at 83.


[6]   On August 27, 2018, the State filed an information charging Sanders as follows:

      (1) Count I, intimidation as a Level 6 felony.4 (2) Count II, resisting law

      enforcement as a Class A misdemeanor. (3) Count III, criminal trespass as a

      Class A misdemeanor. Appellant’s App. Vol. 2 at 85-87. On January 22, 2019,

      the State moved to amend the charging information to add another count of




      4
          Count I charges Sanders with intimidation of Officer McCormick.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020   Page 4 of 14
      intimidation, Count IV, as a Level 6 felony, which the trial court granted.5 Id.

      at 77-79.


[7]   On February 14, 2019, the trial court issued an order that, in part, appointed

      counsel for Sanders. Id. at 11, 67. On March 22, 2019, the trial court held a

      hearing at which Sanders, who was present with his court-appointed counsel,

      stated “it was already understood in this courtroom that I’m representing

      myself most of the times[,]” and the trial court showed Sanders’ court-

      appointed counsel as withdrawn Tr. Vol. 2 at 2-3.


[8]   On May 30, 2019, the trial court commenced a jury trial. Appellant’s App. Vol. 2

      at 13. At the outset of the trial and before seating the jury, the following

      exchange occurred between the trial court and Sanders, who was representing

      himself:


                 THE COURT: [Y]ou have on many occasions told me that you
                 do not want an attorney.


                 BY MR. SANDERS: Correct.



                 THE COURT: And that you do not - you understand your right to
                 . . . have an attorney appointed to you if you cannot afford one. In
                 fact, you have told me repeatedly that it is your wish to represent
                 yourself, you do not want an appointed attorney, and you do not
                 want to hire an attorney.

                 BY MR. SANDERS: Yes, I said that.



      5
          Count IV charges Sanders with intimidation of Rhymer.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020   Page 5 of 14
              THE COURT: And that’s accurate right?



              BY MR. SANDERS: Yes, on this case.



              THE COURT: Alright, so we’re proceeding to trial today. It is
              expected that you follow the rules of the court. Even though you
              are not [an] attorney you will be expected to follow the rules of the
              court and the rules of evidence in this case. So, even though
              you’re not [an] attorney the court[‘] s expectation[] is that you
              follow those.

[9]   Tr. Vol. 2 at 5. The trial court again asked Sanders if he wished to represent

      himself and Sanders affirmed that he wanted to proceed without counsel. Id. at

      14-15. Sanders then changed his mind and told the trial court that he wished

      for a specific attorney, Jon Phillips, from the Tippecanoe County Public

      Defender’s Office to be appointed to represent him. Id. at 21. The following

      discussion between Sanders and the trial court then ensued:


              BY THE COURT: Alright, I do find that the defendant is
              indigent and I’ll appoint the services of the public defender and
              give this case new dates. You may go to the public defender’s
              office on your date and request Jon Phillips or you can take them
              a letter to request him. They may or may not agree with you, I do
              not know.


              BY MR. SANDERS: What about one you can appoint me now?


              (Inaudible).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020   Page 6 of 14
        BY THE COURT: I’m going to appoint you — I’m going to
        appoint the public defender’s office they decide in the office who
        you get.


        BY MR. SANDERS: So, I can’t get one this instant you’re
        saying. So we just got to (indiscernible).


        BY THE COURT: No, there would be no attorney that’s
        standing by to wait for you.


        BY MR. SANDERS: Okay, but we still pick the jury — jurors?


        BY THE COURT: No, we don’t go to trial today with — if you
        want an attorney. I don’t have any way for an attorney to walk in
        the door right now and be ready for you. But, I strongly
        encourage you to have an attorney. These are trained lawyers
        that know the rules. And I’m going to hold you to the same
        standards I would for them. So...


        BY MR. SANDERS: No, it’s cool then.


        BY THE COURT: You telling me you want an attorney, we’re
        going to do that.


        BY MR. SANDERS: We can go ahead and go through with
        right now since we ain’t — since that’s going to hold up
        something. We can go ahead and get this started as fast as
        possible.


        BY THE COURT: So, you are telling me you do not want an
        attorney.

        BY MR. SANDERS: Do not want an attorney, let’s proceed.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020   Page 7 of 14
        BY THE COURT: Even though I will appoint you one right now
        and give you new dates.


        BY MR. SANDERS: They can come and sit here at nine o-six.


        BY THE COURT: I do not have the ability to appoint an
        attorney right now on the spot.


        BY MR. SANDERS: Then no, then no. I thought you were
        saying on the spot.


        BY THE COURT: I really encourage you.


        BY MR. SANDERS: Excuse me for the misunderstanding.


        BY THE COURT: I encourage you, Mr. Sanders.


        BY MR. SANDERS: No, I’m going ahead, judge. I’m good, let’s
        go ahead and proceed and pick the jury.


        BY THE COURT: Alright.


Id. at 22-23. The trial court also stated to Sanders that a risk in self

representation is the “emotional state of being involved in your own

circumstances makes it harder to be objective” and “the ability to have a

counsel that is not emotionally involved in the situation and can give you good

legal advice is critical.” Id. at 25. The trial court again asked Sanders if he was

absolutely certain he wished to proceed without an attorney, and Sanders stated

“[y]es, let’s leave it to the jury.” Id.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020   Page 8 of 14
[10]   Following the trial, the jury found Sanders guilty as charged. Id. at 147. The

       trial court held a sentencing hearing on July 31, 2019, and sentenced Sanders to

       180 days on each count to be served concurrently with ninety days executed in

       the Tippecanoe County jail and the balance served in Tippecanoe County

       community corrections. Id. at 160. Sanders now appeals.


                                      Discussion and Decision

                               I. Appointment of Standby Counsel
[11]   Sanders argues that the trial court abused its discretion by not informing him of

       the possibility of appointing standby counsel. Sanders points out that: (1) this

       was his first jury trial; (2) he had limited criminal history; and (3) he was

       unfamiliar with legal terminology and trial procedure. The State counters that

       Sanders does not have the right to standby counsel and that his dissatisfaction

       with his own representation is not an abuse of discretion on the part of the trial

       court.


[12]   The right of self-representation is implicit in the Sixth Amendment to the

       United States Constitution, and Article 1, section 13 of the Indiana

       Constitution also guarantees this right. Stroud v. State, 809 N.E.2d 274, 279

       (Ind. 2004). Appointment of standby counsel is an appropriate prophylactic

       device when a defendant assumes the burden of conducting his own defense.

       Wilson v. State, 94 N.E.3d 312, 324 (Ind. Ct. App. 2018) (citing Jackson v. State,

       441 N.E.2d 29, 33 (Ind. Ct. App. 1982)). However, a defendant who proceeds

       pro se has no right to demand the appointment of standby counsel for

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020   Page 9 of 14
       assistance. Kindred v. State, 521 N.E.2d 320, 323 (Ind. 1988). Rather, the

       decision of whether to appoint standby counsel is a discretionary one made by

       the trial court. Id.


[13]   We note at the outset that Sanders’s claim is not one that involves his failure to

       knowingly or intentionally waive his right to counsel; rather, Sanders claims

       that even though he waived his right to counsel, the trial court should have

       informed him of the possibility of standby counsel. Here, at Sanders’s

       September 10, 2018 initial hearing, he signed an advisement of rights form,

       which, with respect to self-representation, included the following:


               You also have the right to represent yourself. If you represent
               yourself, you must follow all of the laws, rules of evidence, and
               proper legal procedures. The Judge and court staff are not
               allowed to give you advice or to tell you what you should do or
               how you should do it. Before deciding to represent yourself, you
               should understand that an attorney has skills and experience in
               preparing for trial and presenting a proper and persuasive
               defense. These skills include: investigating and interrogating
               witnesses; gathering appropriate documentary evidence;
               obtaining favorable defense witnesses; preparing and filing
               pretrial motions; preparing and filing appropriate written jury
               instructions; presenting effective opening statements and closing
               arguments; examining and cross-examining witnesses at trial; as
               well as recognizing, making, and responding to objections to
               potentially prejudicial evidence, questions, and testimony. An
               attorney could explain the charges and any lesser included
               offense. An attorney could explain and properly raise any
               defenses, legal or practical, that might benefit you. An attorney
               could explain and raise any mitigating circumstances
               surrounding the charge. An attorney is usually more experienced
               in plea negotiations and better able to identify and evaluate any

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020   Page 10 of 14
        potential defenses and evidentiary or procedural problems in the
        prosecution’s case.


Appellant’s App. Vol. 2 at 82-83. The trial court’s initial hearing order, issued

that same day, contained check marks indicating that Sanders had read and

signed the advice of rights form, which included the provision regarding the

risks of self-representation, and that he was orally advised of his rights by the

judge. Id. at 84. Later, on February 14, 2019, the trial court appointed counsel

for Sanders, which he rejected at a March 22, 2019 hearing, stating “it was

already understood in this courtroom that I’m representing myself most of the

times.” Tr. Vol. 2 at 2; Appellant’s. App. Vol. 2 at 11, 67. On the day of the trial

and before seating the jury, the trial court told Sanders on multiple occasions

that he could have court-appointed counsel and a new date would be scheduled

for the trial. Tr. Vol. 2 at 5, 14-15, 21-25. Sanders instead chose to reject the

trial court’s multiple offers to appoint him counsel and to continue the trial.

We acknowledge Sanders’s lack of familiarity with the nuances of a criminal

trial and the use of standby counsel to eliminate the disadvantages associated

with pro se representation. However, under the circumstances of this case,

including Sanders’s rejection of court-appointed counsel, rejection of the trial

court’s consistent offers to appoint counsel, and his determination to represent

himself at trial notwithstanding the trial court’s warnings about the risks of

proceeding pro se, we cannot say that the trial court abused its discretion by not

discussing the possibility of standby counsel with Sanders.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020   Page 11 of 14
                            II.     Sufficiency of the Evidence
[14]   Next, Sanders challenges the sufficiency of the evidence supporting his

       conviction for intimidation as a Level 6 felony. When we review the

       sufficiency of the evidence to support a conviction, we consider only the

       probative evidence and reasonable inferences supporting the verdict. Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an appellate court to

       assess witness credibility or to weigh the evidence. Id. We will affirm the

       conviction unless no reasonable factfinder could find the elements of the crime

       proven beyond a reasonable doubt. Id.


[15]   At the time Sanders committed the offense, Indiana Code section 35-45-2-1

       (“intimidation statute”) provided, in relevant part, that “[a] person who

       communicates a threat to another person, with the intent . . . that the other

       person be placed in fear of retaliation for a prior lawful act . . . commits

       intimidation[.]” The intimidation statute also provided an enhancement for the

       offense to a Level 6 felony if the “person to whom the threat is communicated .

       . . is a law enforcement officer[.]” Ind Code § 35-45-2-1(b)(1)((B)(i). The

       intimidation statute defines “communicates” to include “posting a message

       electronically, including on a social networking web site (as defined in IC 35-

       31.5-2-307)” and defines “threat” as “an expression, by words or action, of an

       intention to . . . unlawfully injure the person threatened or another person, or

       damage property . . . [or] commit a crime[.]” Ind. Code § 35-45-2-1(c)-(d). The

       term “law enforcement officer” is also a defined term, which means, “a police

       officer (including a correctional police officer), sheriff, constable, marshal,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020   Page 12 of 14
       prosecuting attorney, special prosecuting attorney, special deputy prosecuting

       attorney, the securities commissioner, or the inspector general[.]” Ind. Code §

       35-31.5-2-185. Thus, to convict Sanders of the offense of intimidation as a

       Level 6 felony the state was required to prove that Sanders communicated a

       threat to Officer McCormick with the intent that Officer McCormick be placed

       in fear of retaliation for a prior lawful act.


[16]   Sanders argues that his statement to Officer McCormick “on my soul vice lord I

       got you” is not a threat because the communication did not “expressly threaten

       any particular action likely to cause bodily injury or death” to Officer

       McCormick. Appellant’s Br. at 10-11. He limits his argument to whether his

       statement was a threat. He does not challenge the other elements of the offense

       and does not dispute that he made the statement.


[17]   Whether a particular communication constitutes a threat is an objective

       question for the trier of fact. Owens v. State, 659 N.E.2d 466, 474 (Ind. 1995).

       Thus, whether the communication Sanders made to Officer McCormick,

       objectively viewed, was a threat was a question of fact for the jury to decide.


[18]   Here, the evidence showed that Officer McCormick warned Sanders on

       multiple occasions to leave the mall before Sanders eventually did so. Tr. Vol. 2

       at 78-81. When Sanders was outside the mall and was again approached by

       Officer McCormick to leave the mall’s property Sanders started “flashing

       fingers” and giving “gang signs” and stated to Officer McCormick “on my soul

       vice lord I got you.” Id. at 81, 84, 120. Officer McCormick testified that when


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020   Page 13 of 14
       “somebody identifies . . . as a vice lord, which is one of the most [v]iolent gangs

       . . . [w]ith over 30,000 . . . members strong, documented I do not take those

       threats lightly at all.” Id. at 81. Under the circumstances surrounding the

       interaction between Sanders and Officer McCormick, we conclude that the

       evidence presented by the State was sufficient for the jury to conclude beyond a

       reasonable doubt that Sanders’s communication to Officer McCormick was a

       threat. See Johnson v. State, 743 N.E.2d 755, 757 (Ind. 2001) (affirming

       Johnson’s intimidation conviction where Johnson displayed a firearm to an out-

       of-uniform officer and told the officer “‘don't even think it’, which was preceded

       by two obscene remarks, was sufficient for a trier of fact to conclude that

       Johnson communicated a threat within the meaning of the intimidation

       statute”); Holloway v. State, 51 N.E.3d 376, 378 (Ind. Ct. App. 2016) (affirming

       Holloway’s intimidation conviction and noting that “Holloway cites no

       authority for the proposition that a person must be capable of inflicting injury

       when the statement is made . . . in order to constitute a threat.”), trans. denied.


[19]   We find the evidence is sufficient to support Sanders’ conviction.


       Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020   Page 14 of 14
