Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                              FILED
                                                           Feb 15 2013, 9:16 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                       CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

LISA DIANE MANNING                                 GREGORY F. ZOELLER
Manning Law Office                                 Attorney General of Indiana
Danville, Indiana
                                                   CYNTHIA L. PLOUGHE
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

SHAWN J. LEE,                                      )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 32A01-1207-CR-329
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE HENDRICKS SUPERIOR COURT
                         The Honorable Stephenie LeMay-Luken, Judge
                               Cause No. 32D05-1109-FD-861



                                       February 15, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Shawn J. Lee was charged with Class D felony theft and Class D felony assisting a

criminal after an asset protection officer for the Wal-Mart store in Camby observed Lee and

Teresa Staten attempt to remove certain items from the store without paying for them. Lee’s

trial was scheduled to commence on May 22, 2012, however, the trial court, upon its own

motion, rescheduled Lee’s trial for June 26, 2012. The trial court conducted Lee’s trial in

absentia after Lee failed to appear for trial on June 26, 2012. At the conclusion of trial, the

jury found Lee guilty of Class D felony theft and not guilty of Class D felony assisting a

criminal. Lee appeals his Class D felony theft conviction, claiming that the trial court

erroneously conducted his jury trial in absentia. The State concedes that the trial court erred

in conducting Lee’s trial in absentia because the record is devoid of any evidence indicating

that Lee had any knowledge of the rescheduled trial date. Accordingly, we vacate Lee’s

Class D felony theft conviction and remand to the trial court for further proceedings.

                           FACTS AND PROCEDURAL HISTORY

       On September 25, 2011, Shannon Smith was working as an asset protection officer at

the Wal-Mart store in Camby, when she observed Lee and Staten attempting to remove

certain items from the store without paying for them. Smith intercepted Lee and Staten after

they moved past the point of sale, and escorted them to the asset protection office.

       On September 26, 2011, the State charged Lee with Class D felony theft.1 On April

19, 2012, the State sought and was granted permission to add a charge of Class D felony




       1
           Ind. Code § 35-43-4-2(a) (2011).
                                              2
assisting a criminal.2 On March 8, 2012, Lee attended a pretrial conference during which his

trial was scheduled for May 22, 2012. The trial court subsequently, on its own motion,

issued an order rescheduling Lee’s trial for June 26, 2012. The trial court sent notice of the

rescheduled trial date to the State and to Lee’s counsel, but not to Lee.

       Lee did not appear for trial on June 26, 2012. Despite Lee’s failure to appear, the trial

court moved forward with Lee’s trial in absentia. At the conclusion of trial, the jury found

Lee guilty of Class D felony theft and not guilty of Class D felony assisting a criminal. This

appeal follows.

                                 DISCUSSION AND DECISION

       On appeal, Lee contends that the trial court erroneously conducted Lee’s trial in

absentia. The State concedes that the trial court erred in conducting Lee’s trial in absentia.

In Jackson v. State, 868 N.E.2d 494, 498 (Ind. 2007), the Indiana Supreme Court

acknowledged that “[b]oth the Federal and Indiana Constitutions afford defendants in a

criminal proceeding the right to be present at all stages of their trial.” (citing U.S. Const.

amend. VI; Ind. Const. art. 1, § 13). “However, a defendant may be tried in absentia if the

trial court determines that the defendant knowingly and voluntarily waived that right.” Id.

(citing Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind. 1997)). “The best evidence that a

defendant knowingly and voluntarily waived his … right to be present at trial is the

defendant’s presence in court on the day the matter is set for trial.” Lampkins, 682 N.E.2d at

1273 (internal quotation omitted). In addition, a court’s questioning of the defendant when


       2
           Ind. Code § 35-44-3-2(a)(1) (2011).
                                                 3
he reappears can provide the necessary support for the validity of a trial in absentia. See

Murphy v. State, 555 N.E.2d 127, 129 (Ind. 1990) (providing that the court’s thorough

questioning of appellant about his absence at trial when defendant reappeared at sentencing

was sufficient to support a determination that defendant knowingly and intentionally waived

the right to be present at trial).

       As the State concedes, here, the record is devoid of any evidence indicating that Lee

knowingly or intentionally waived his right to be present at trial. Lee was present when his

trial was scheduled for May 22, 2012. However, nothing in the record suggests that Lee

knew his trial had been rescheduled for June 26, 2012. The trial court provided notice to the

State and to Lee’s counsel that it had, on its own motion, rescheduled Lee’s trial. The trial

court did not send notice to Lee personally and nothing in the record suggests that Lee’s

counsel notified Lee that his trial had been rescheduled. In addition, the trial court did not

question Lee at sentencing about whether he knew of the June 26, 2012 trial date. As such,

we conclude that the record is inadequate to support the determination that Lee knowingly

and voluntarily waived his right to be present at trial. We therefore vacate Lee’s Class D

felony theft conviction and remand to the trial court for further proceedings.

       Appellant’s conviction is vacated and the matter is remanded to the trial court for

further proceedings.

NAJAM, J., and FRIEDLANDER, J., concur.




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