MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                          May 11 2018, 9:34 am

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
Mark S. Lenyo                                           Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Duane Lamar Herron,                                     May 11, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A03-1711-CR-2741
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Paul E. Singleton,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        71D06-1708-CM-3538



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018                Page 1 of 8
                                          Case Summary
[1]   Duane Lamar Herron (“Herron”) appeals his conviction for Criminal Mischief,

      as a Class B misdemeanor.1 We affirm.



                                                   Issues
[2]   Herron presents two issues for review:


                 I.       Whether he voluntarily, knowingly, and intelligently
                          waived his right to counsel; and


                 II.      Whether sufficient evidence supports his conviction.


                                Facts and Procedural History
[3]   On May 27, 2017, Herron confronted his half-brother, David Workman

      (“Workman”), about $80.00 that Workman owed Herron for performing

      landscaping services. Dissatisfied with Workman’s protestation that he did not

      have the funds to pay Herron, Herron took a hatchet from his backpack and

      broke out the windshield of Workman’s truck. Workman summoned police

      and South Bend Police Department Officer Anne Hayes (“Officer Hayes”)

      responded. Officer Hayes observed damage to Workman’s truck.




      1
          Ind. Code § 35-43-1-2(a).


      Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018   Page 2 of 8
[4]   On August 16, 2017, the State charged Herron with Criminal Mischief. He was

      convicted in a bench trial conducted on November 8, 2017, and sentenced to

      pay $350.00 in restitution. Herron now appeals.



                                Discussion and Decision
                                Waiver of Right to Counsel
[5]   Herron, who represented himself at the bench trial, contends that he did not

      voluntarily, intelligently, and knowingly waive his right to counsel. Herron

      argues that the trial court “made virtually no inquiry” regarding Herron’s self-

      representation decision and that “the record does not demonstrate any

      acknowledgment that Herron actually understood anything about the trial

      process.” Appellant’s Brief at 10.


[6]   The Sixth Amendment, applicable to the states through the Fourteenth

      Amendment, guarantees a criminal defendant the right to counsel before he

      may be tried, convicted, and punished, and this protection also encompasses a

      right of self-representation. Hopper v. State, 957 N.E.2d 613, 617 (Ind. 2011)

      (citing Faretta v. California, 422 U.S. 806 (1975)). A defendant who waives his

      right to counsel must knowingly and intelligently forgo the relinquished

      benefits, and he should be made aware of the dangers and disadvantages of self-

      representation. Id. at 618. “There is no particular formula or script that must

      be read to the defendant.” Id. The information that must be provided depends

      on a range of case-specific factors, including the defendant’s education or


      Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018   Page 3 of 8
      sophistication, the complexity of the charge, and the stage of the proceeding.

      Id. (citing Iowa v. Tovar, 541 U.S. 77 (2004)).


[7]   A court determining whether a waiver of trial counsel was made voluntarily

      and intelligently must consider (1) the extent of the court’s inquiry into the

      defendant’s decision, (2) other evidence of record that establishes whether the

      defendant understood the dangers and disadvantages of self-representation, (3)

      the background and experience of the defendant, and (4) the context of the

      defendant’s decision to proceed pro se. Id. We review the trial court’s

      conclusion that a defendant knowingly and voluntarily waived the right to

      counsel de novo. Hart v. State, 79 N.E.3d 936, 940 (Ind. Ct. App. 2017).


[8]   On October 18, 2017, Herron signed a “Waiver of Right to Attorney and

      Acknowledgment of Dangers of Self-Representation” form. (App. Vol. II, pg.

      19.) In relevant part, the written advisement provided:


              I know I have the right to a lawyer and the right to be my own
              lawyer. The Judge has warned me that it is dangerous and
              almost always unwise to be my own lawyer, because I will be
              held to the same standards of law and procedure as a lawyer and
              will not get any special treatment from the Court. The Judge has
              warned me that I may hurt my own case, and that the State has
              an experienced lawyer.


      (App. Vol. II, pg. 19.) The waiver form additionally included an advisement

      that a lawyer possesses skills in such matters as obtaining and questioning

      witnesses, gathering documentation, recognizing objectionable evidence, and

      making favorable statements in opening and closing. Herron acknowledged

      Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018   Page 4 of 8
       that he reads English and is mentally sound. He filled in a blank to indicate

       that he had 16 years of education and checked a box to indicate that he was

       somewhat familiar with the rules of evidence and procedure.


[9]    On the day of his bench trial, Herron signed a waiver document including the

       language:


               I UNDERSTAND MY RIGHT TO HAVE OR REFUSE A
               LAWYER.


               I understand that I have the right to a lawyer and the right to get
               time to talk to one. I understand that if I can’t afford to hire a
               lawyer and am charged with a misdemeanor, a public defender
               could be appointed for me at little or no charge. I understand
               that I have the right to represent myself. I understand that an
               attorney is usually more experienced in plea negotiations and
               better able to identify and evaluate any potential defenses and
               evidentiary or procedural problems with the prosecutor’s case.


       (App. Vol. II, pg. 22.) Above his signature, Herron checked a box indicating

       that he would represent himself.


[10]   At the outset of the bench trial, the trial court addressed Herron:


               I know that we went through this the last time we were here and
               the time before that and the time before. But to get it on the
               record again, do you recall signing and dating on October 18 th,
               2017, a Waiver of a Right to an Attorney and the Dangers of
               Self-Representation sheet; is that correct, sir.


       (Tr. at 4.) Herron acknowledged that he had signed the waiver. The trial court

       then explained to Herron some of the tasks for which he would be responsible
       Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018   Page 5 of 8
       as his own attorney, emphasized that it would be in Herron’s best interests to be

       represented by counsel, and reiterated that there would be “no problem” with

       appointment of a public defender, if Herron so desired. (Tr. at 5.) Herron

       stated that he would like to proceed without a lawyer.


[11]   “If the record establishes that the defendant can read, the defendant’s signing a

       written advisement can be sufficient to inform a defendant of his rights

       discussed in the advisement and to establish that the defendant waived those

       rights.” Belmares-Bautista v. State, 938 N.E.2d 1229, 1231 (Ind. Ct. App. 2010)

       (citing Maloney v. State, 684 N.E.2d 488, 490 (Ind. 1997)). Herron does not

       deny that he signed written advisements; nor does he argue that he lacked

       ability to understand or appreciate the content. Rather, he faults the trial court

       for the brevity of the colloquy on the day of trial.


[12]   It is apparent from the trial court’s statement “we went through this the last

       time we were here and the time before that and the time before,” Tr. at 4, that

       Herron’s self-representation decision had been addressed previously. Because

       transcripts of the prior hearings were not submitted on appeal, we are not privy

       to the specific content. As such, we are not positioned to address the merits of

       Herron’s specific claim that the trial court made virtually no inquiry into his

       decision. However, even without the pre-trial transcripts, the record supports a

       determination that Herron voluntarily, knowingly, and intelligently waived his

       right to counsel.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018   Page 6 of 8
                                  Sufficiency of the Evidence
[13]   Herron argues that the State failed to present sufficient evidence to support his

       conviction. More specifically, he points to an absence of documentary evidence

       of damage and Workman’s ownership of the truck at issue.


[14]   Pursuant to Indiana Code Section 35-43-1-2(a), “[a] person who recklessly,

       knowingly, or intentionally damages or defaces property of another person

       without the other person’s consent commits criminal mischief, a Class B

       misdemeanor.”


[15]   In reviewing a claim of insufficient evidence, we do not reweigh the evidence or

       assess the credibility of witnesses. Leonard v. State, 73 N.E.3d 155, 160 (Ind.

       2017). Rather, we look to the evidence and reasonable inferences drawn

       therefrom that support the verdict. Id. We will affirm the conviction if there is

       probative evidence from which a reasonable trier of fact could have found the

       defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003,

       1005 (Ind. 2009).


[16]   Workman testified that he owned a 2003 Chevy Silverado 3500 and that, in

       Workman’s presence, Herron “pulled a hatchet out of his backpack and busted

       the windows out of my truck.” (Tr. at 9.) He denied giving consent to Herron

       to break the windows. Officer Hayes testified that she responded to a call from

       Workman and observed a truck with a broken windshield and driver’s side

       damage. There was no requirement that the State produce documentary



       Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018   Page 7 of 8
       evidence. See Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (a conviction can

       be sustained upon only the testimony of a victim-witness).



                                               Conclusion
[17]   The record supports the conclusion that Herron knowingly and voluntarily

       waived his right of representation by counsel. Sufficient evidence supports his

       conviction.


[18]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018   Page 8 of 8
