MEMORANDUM DECISION
                                                                       Feb 26 2016, 9:43 am

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as 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
Suzy St. John                                            Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dylan Theobald,                                          February 26, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A02-1506-CR-655
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Becky Pierson-
Appellee-Plaintiff.                                      Treacy, Judge
                                                         The Honorable Ronnie Huerta,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G19-1412-CM-55837



Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-655 | February 26, 2016       Page 1 of 6
                                             Case Summary
[1]   Dylan Theobald appeals his conviction for Class A misdemeanor possession of

      marijuana. We affirm.


                                                     Issue
[2]   Theobald raises one issue, which we restate as whether fundamental error

      occurred when he did not receive a jury trial on the enhancement to Class A

      misdemeanor possession of marijuana.


                                                     Facts
[3]   On December 21, 2014, the State charged Theobald with Class B misdemeanor

      possession of marijuana. In part two of the charging information, the charge

      was enhanced to a Class A misdemeanor based on Theobald’s prior conviction

      of a drug offense. At his initial hearing, Theobald was informed:


              You have the right to a trial by jury. If you are charged with a
              misdemeanor and you wish to have a trial by jury, you must
              make a request for a jury trial at least ten (10) days prior to your
              trial setting. If you do not request a jury trial at least ten (10)
              days prior to your trial setting, you waive your right to a trial by
              jury.


      App. p. 15. On May 15, 2015, Theobald filed a demand for a jury trial, which

      the trial court granted.


[4]   On June 4, 2015, a jury found Theobald guilty of Class B misdemeanor

      possession of marijuana. The following discussion then occurred:


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-655 | February 26, 2016   Page 2 of 6
        The Court: Now, how would you like to proceed?


        [Defense Counsel]: May I have a moment, Your Honor?


        The Court: Sure.


        [Defense Counsel]: Your Honor, I think that we can excuse the
        jury. And do all of the other matters in front of the Court.


        The Court: Okay, State are you in agreement?


        [Defense Counsel]: Your Honor, we would like to poll first?


        The Court: Okay, we can do that.


        [Jury is polled and excused.]


        The Court: Thank you. All right. All right, moving on. Having
        been found guilty of Count I, will now come on for the
        enhancement which is page two or part two of Count I,
        Possession of Marijuana an enhancement as a Class A
        Misdemeanor for having previously been convicted of Possession
        of Marijuana in Shelby County.


Tr. pp. 131-34. Theobald was then fingerprinted, and the State presented

evidence that Theobald’s fingerprint matched the fingerprint of the person

convicted of Class A misdemeanor possession of marijuana in Shelby County

in 2011. The trial court found that Theobald did have a prior conviction and

found him guilty of Class A misdemeanor possession of marijuana. Theobald

now appeals.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-655 | February 26, 2016   Page 3 of 6
                                                  Analysis
[5]   Theobald argues that fundamental error occurred when he received a bench

      trial on the enhancement after he had requested a jury trial. The right to a jury

      trial is guaranteed by the Indiana and United States Constitutions. Young v.

      State, 973 N.E.2d 643, 645 (Ind. Ct. App. 2012). A defendant charged with a

      felony has an automatic right to a jury trial unless he affirmatively waives the

      right, but misdemeanor charges, governed by Indiana Criminal Rule 22, are

      tried to the bench unless the defendant demands a jury trial in a timely manner.

      Stevens v. State, 689 N.E.2d 487, 489 (Ind. Ct. App. 1997). Indiana Criminal

      Rule 22 provides:


              A defendant charged with a misdemeanor may demand trial by
              jury by filing a written demand therefor not later than ten (10)
              days before his first scheduled trial date. The failure of a
              defendant to demand a trial by jury as required by this rule shall
              constitute a waiver by him of trial by jury unless the defendant
              has not had at least fifteen (15) days advance notice of his
              scheduled trial date and of the consequences of his failure to
              demand a trial by jury.


              The trial court shall not grant a demand for a trial by jury filed
              after the time fixed has elapsed except upon the written
              agreement of the state and defendant, which agreement shall be
              filed with the court and made a part of the record. If such
              agreement is filed, then the trial court may, in its discretion, grant
              a trial by jury.


[6]   According to Theobald, there is no evidence that he knowingly, voluntarily,

      and intelligently waived his right to a jury trial on the enhancement. He


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-655 | February 26, 2016   Page 4 of 6
      contends that his failure to object to a bench trial on the enhancement does not

      constitute waiver and that a violation of the right to a jury trial is not subject to

      a harmless error analysis. The State argues that Theobald invited any error.


[7]   We addressed a similar issue in Bunting v. State, 854 N.E.2d 921 (Ind. Ct. App.

      2006), trans. denied. There, a jury found the defendant guilty of “operating a

      vehicle while intoxicated, which would independently constitute a Class C

      misdemeanor.” Bunting, 854 N.E.2d at 923. The defendant’s attorney then

      advised the trial court that the defendant and the State had stipulated to the

      defendant’s prior conviction, and the jury was dismissed without objection.

      The defendant then admitted to having a prior conviction, and the trial court

      entered judgment of conviction for Class D felony driving while intoxicated.


[8]   On appeal, the defendant argued that he should have been given a jury trial on

      the Class D felony enhancement. We held, in part, that “if the jury dismissal

      did not comport with [the defendant’s] understanding of the effect of the

      stipulation, he nevertheless failed to object to the dismissal of the jury.” Id. at

      924. “A party may not sit idly by, permit the court to act in a claimed

      erroneous manner, and subsequently attempt to take advantage of the alleged

      error.” Id.


[9]   Similarly, here, although Theobald requested a jury trial, after the jury found

      him guilty of Class B misdemeanor possession of marijuana, Theobald’s

      counsel said, “I think that we can excuse the jury. And do all of the other

      matters in front of the Court.” Tr. p. 131. The trial court then excused the jury,


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-655 | February 26, 2016   Page 5 of 6
       and the State presented evidence to the trial court regarding Theobald’s prior

       conviction. The trial court found that Theobald had a prior conviction and

       found him guilty of Class A misdemeanor possession of marijuana. Theobald

       could not sit idly by, permit the trial court to act in the claimed erroneous

       manner, and then attempt to take advantage of the alleged error. We conclude

       that Theobald invited any error. “[E]ven constitutional errors may be invited.”

       Brewington v. State, 7 N.E.3d 946, 977 (Ind. 2014), cert. denied. Theobald’s

       argument regarding his right to a jury trial on the enhancement fails.


                                                 Conclusion
[10]   Theobald invited any error in the use of a bench trial rather than a jury trial

       regarding the enhancement of his conviction to a Class A misdemeanor. We

       affirm.


[11]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-655 | February 26, 2016   Page 6 of 6
