MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                Mar 18 2019, 10:04 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kevin Wild                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Devin Ray Warren,                                        March 18, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1976
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T. Rothenberg,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G02-1710-F3-37801



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1976 | March 18, 2019                 Page 1 of 13
                                          Case Summary
[1]   After representing himself at a bench trial, Devin Ray Warren (“Warren”) was

      convicted of two counts of Armed Robbery as Level 3 felonies;1 Robbery as a

      Level 5 felony;2 and Theft as a Class A misdemeanor.3 He now appeals.


[2]   We affirm.



                                                   Issues
[3]   Warren presents the following restated issues:


                 I.        Whether the trial court erred by accepting a waiver of the
                           right to counsel on the day of the bench trial.


                 II.       Whether the trial court improperly limited Warren’s cross-
                           examination of a detective.


                 III.      Whether the State presented sufficient evidence to support
                           the conviction for Theft.


                                 Facts and Procedural History
[4]   A rash of thefts and robberies took place inside Indianapolis gas stations over

      the course of a few days in September 2017. An investigation ensued, led by




      1
          Ind. Code § 35-42-5-1(a).
      2
          Id.
      3
          I.C. § 35-43-4-2(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1976 | March 18, 2019    Page 2 of 13
      Detective Paul Buchman (“Det. Buchman”) of the Indianapolis Metropolitan

      Police Department. The investigation led to Charles Hunter (“Hunter”), who

      confessed and said that Warren had driven him to some of the gas stations.


[5]   The State charged Warren as an accomplice, and a bench trial was scheduled

      for May 29, 2018, on the following charges:


          • Count 1: Theft as a Class A misdemeanor, committed on September 18,
            2017, at a Phillips 66 on East 30th Street.
          • Count 2: Robbery as a Level 5 felony, committed on September 18, 2017,
            at a Marathon on Shadeland Avenue.
          • Count 3: Theft as a Class A misdemeanor, committed on September 18,
            2017, at a Speedway on German Church Road.
          • Count 4: Armed Robbery as a Level 3 felony, committed on September
            19, 2017, at a Speedway on East Prospect Street.
          • Count 5: Armed Robbery as a Level 3 felony, committed on September
            23, 2017, at a Shell on North Post Road.

[6]   The day of trial, Warren stated that he wanted to represent himself, explaining:

      “There was . . . evidence I wanted to see yesterday evening. [Counsel] refused

      to show it to me, so I terminated him.” Tr. Vol. II at 5. During an ensuing

      colloquy, Warren said he completed two years of college. Warren confirmed

      that he could read and write English, and that he understood the charges and

      the possible penalties, that he had the right to counsel, and that he would be

      held to the same standards as an attorney. The court advised Warren against

      self-representation. Warren then confirmed that he wished to represent himself

      at trial that day, and that no one had forced or threatened him. The trial court

      found that Warren “knowingly and willingly waives his right to an attorney.”

      Id. at 10. The court then appointed standby counsel, and the trial commenced.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1976 | March 18, 2019   Page 3 of 13
[7]   At trial, there was evidence that, around 4:40 a.m. on September 18, 2017,

      Hunter took chips and a drink from the Phillips 66 on East 30th Street. Within

      the next thirty minutes, Hunter went behind the counter at a Marathon on

      Shadeland Avenue—not far from the Phillips 66—and took packs of cigarettes.

      Later that evening, around 10:30 p.m., Hunter went into the Marathon on

      German Church Road, and brought two drinks to the counter. A gas station

      employee retrieved two cartons of cigarettes and put them on the counter.

      Hunter then took the cigarettes and walked out, leaving the drinks behind.


[8]   The next evening, Hunter entered the Speedway on East Prospect Street and

      acted as if he was purchasing a drink. Hunter then showed a hammer to a gas

      station employee and went into a back office. Hunter loaded cigarettes into a

      bag, then left. A few days later, on September 23, Hunter went to a Shell on

      North Post Road. When an employee entered a door code to access a secured

      area behind the counter, Hunter followed the employee inside. Hunter was

      holding a knife. Hunter told the employee not to move, and that Hunter just

      wanted cigarettes. Hunter took about thirty cartons of cigarettes, then left.


[9]   Det. Buchman spoke with Hunter, who confessed to a series of robberies and

      thefts, and implicated Warren as his driver. Det. Buchman then spoke with

      Warren, who admitted to driving Hunter to all five gas stations. Warren was

      unsure if the Phillips 66 was the first gas station. Warren said that, at the first

      gas station, he did not know what Hunter was doing—but that, when Hunter

      returned to the truck, he said: “Go. Go. Go.” Ex. 24 at 17:26. Warren then had

      an idea of what was happening. Warren recalled Hunter taking a hammer from

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1976 | March 18, 2019   Page 4 of 13
       Warren’s truck into one gas station, and that Hunter took a knife into another

       gas station. Warren said that he would drive Hunter places to sell cigarettes,

       and that, at times, Hunter would give him “dope” and gas money. Id. at 24:20.


[10]   The trial court found Warren not guilty of Count 1—which pertained to the

       Phillips 66—and guilty of the remaining counts. Warren was sentenced to a

       combination of executed time, home detention, suspended time, and probation.


[11]   Warren now appeals.



                                   Discussion and Decision
                                   Waiver of Right to Counsel
[12]   The Sixth Amendment to the United States Constitution, applied to Indiana

       through the Fourteenth Amendment, confers both the right to the assistance of

       counsel and the conflicting right of self-representation. Faretta v. California, 422

       U.S. 806 (1975).4 “A request to proceed pro se is a waiver of the right to

       counsel, and consequently, there are several requirements to invoking the right

       of self-representation successfully.” Stroud v. State, 809 N.E.2d 274, 279 (Ind.

       2004). Indeed, the waiver of the right to counsel must be knowing, intelligent,

       and voluntary. Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003). Moreover,




       4
        Article 1, Section 13 of the Indiana Constitution also confers these rights. Stroud v. State, 809 N.E.2d 274,
       279 (Ind. 2004); Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003). However, in presenting this issue, Warren
       does not mention the Indiana Constitution, let alone offer a separate analysis under the state constitution.
       He has therefore waived any state constitutional claim. Dye v. State, 717 N.E.2d 5, 10 n.2 (Ind. 1999).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1976 | March 18, 2019                    Page 5 of 13
       “the right of self-representation must be asserted within a reasonable time prior

       to the day on which the trial begins.” Russell v. State, 270 Ind. 55, 383 N.E.2d

       309, 314 (1978). “Morning of trial requests are . . . per se untimely,” id., and a

       trial court does not offend the right of self-representation by summarily denying

       such requests, id. at 315. Nevertheless, even though summary denial is proper,

       a trial court may—as “a matter of grace”—elect to consider a belated request.

       Id. Indeed, a “request made the day of trial or later . . . is completely a matter

       of the trial court’s discretion.” Id. A trial court abuses its discretion when its

       decision is clearly against the logic and effect of the facts and circumstances.

       McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016). Moreover, “[w]e review de

       novo a trial court’s finding that a defendant waived his right to counsel.”

       Jackson v. State, 992 N.E.2d 926, 932 (Ind. Ct. App. 2013), trans. denied.


[13]   According to Warren, the trial court should not have accepted the waiver of the

       right to counsel, thereby permitting self-representation, because Warren did not

       assert the right to self-representation until the day of the trial. Warren argues

       that such a belated request “is nearly always going to be a rushed, bad idea with

       insufficient thought and reflection by the defendant.” Br. of Appellant at 16.

       Yet, there is no per se rule requiring the denial of day-of-trial requests. Rather, a

       trial court may either (1) summarily deny a belated request to proceed pro se or

       (2) consider the request as a matter of grace. See Russell, 383 N.E.2d at 315.

       Here, the court considered the request—acting within its discretion in doing so.

       See id. Warren does not direct us to any defect concerning the knowing,

       voluntary, and intelligent nature of his waiver of the right to counsel—and we

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1976 | March 18, 2019   Page 6 of 13
       discern none. Thus, we cannot say that the trial court erred by considering, and

       ultimately granting, Warren’s belated request to represent himself.


                                         Cross-examination
[14]   Warren contends that the trial court erred by limiting cross-examination of Det.

       Buchman. Warren first focuses on the following exchange:


               Q.      Does any video or any information show my truck being
                       used during the commission of any of these robberies?


               A.      Yes. The one at Prospect and Keystone.


               Q.      During the commission of a robbery? He was let out of
                       my truck. The truck pulled away, sir. Gone. Never to be
                       seen again. Is it there during the commission of a robbery?
                       Yes or no[?]


               A.      Yes.


               Q.      Where is it at?


               A.      It was in the -- that is the -- that is the start of the
                       commission of a robbery.


               Q.      Detective, please stop.


               A.      When you drop somebody off at the scene and they go in
                       and commit a robbery, that’s all part of the commission of
                       the robbery.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1976 | March 18, 2019   Page 7 of 13
               Q.      Do you know that merely giving someone a ride -- this is
                       the -- this is the Indiana case law. Just giving someone a
                       ride does not constitute breaking the law?


                       [State]:         Judge, I’m going to object to whether or not
                                        he knows that Indiana law states that merely
                                        giving a ride to somebody is not enough. I
                                        don’t think that’s in the detective’s --


                       [Court]:         It’s a legal conclusion. I’ll sustain the
                                        objection. Move on.


                       [Warren]:        I’m just saying what an inmate has to use
                                        when we research our cases. This is all we
                                        have. I’m just stating what I found, sir.


                       [Court]:         Mr. Warren, while I appreciate that, that’s
                                        something you want to argue to me.


                       [Warren]:        Oh.


                       [Court]:         That’s not evidence. Okay.


                       [Warren]:        That’s something I should argue?


                       [Court]:         That’s up to you. I’m just saying that’s
                                        something you could argue.


                       [Warren]:        Oh, okay.


       Tr. Vol. II at 119-20.


[15]   Warren next directs us to the following exchange:
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1976 | March 18, 2019   Page 8 of 13
        Q.       Okay. . . . I stated at different times for different of [sic]
                 these robberies a place where I had parked. Did you
                 investigate and confirm what the store employees had said
                 about the parking?


        A.       Not with the store employees, no.


        Q.       With who? Whom did -- did you corroborate it with?


        A.       I went back out to the scenes to see if I could find any
                 video based off where you told me you had parked at. I
                 also checked the video angles from all of the businesses. I
                 was not able to locate any video of your vehicle parked in
                 any of these places.


        A.       Thank you for that. Once again, I will say that the
                 witnesses were not here to answer questions, so I’m going
                 to have to ask you. I don’t know how you are going to
                 come up with this, but what vehicles did they see used as a
                 get-away?


                 [State]:        Objection, Your Honor. He would not know
                                 that, which -- that the victim said was the
                                 get-away car. He would not -- this would not
                                 be in the personal knowledge of the detective
                                 on each of those days.


                 [Court]:        All right. Objection is sustained.


                 [Warren]:       Okay.


Id. at 130-31.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-1976 | March 18, 2019   Page 9 of 13
[16]   Warren argues that the trial court improperly limited cross-examination on both

       occasions, affronting his constitutional rights. We note that a court has broad

       discretion to admit or exclude evidence, and we reverse its rulings only upon an

       abuse of that discretion. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).

       Further, to the extent a ruling turns on a question of law, we review questions

       of law de novo. See Fowler v. State, 829 N.E.2d 459, 465-466 (Ind. 2005).


[17]   The right to cross-examine witnesses—embodied in the Sixth Amendment to

       the United States Constitution—“is ‘one of the fundamental rights of our

       criminal justice system.’”5 Smith v. State, 721 N.E.2d 213, 219 (Ind. 1999)

       (quoting Pigg v. State, 603 N.E.2d 154, 155 (Ind. 1992)). However, this right “is

       subject to reasonable limitations placed at the discretion of the trial judge.”

       Smith, 721 N.E.2d at 219 (quoting McQuay v. State, 566 N.E.2d 542, 543 (Ind.

       1991). Indeed, “trial judges retain wide latitude . . . to impose reasonable

       limits . . . based on concerns about, among other things, harassment, prejudice,

       confusion of the issues, the witness’ safety, or interrogation that is repetitive or

       only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).




       5
         Article 1, Section 13 of the Indiana Constitution also confers this right, but Warren only cursorily mentions
       state constitutional authority. Where a party cites to the Indiana Constitution but “presents no separate
       argument specifically treating and analyzing a claim under the Indiana Constitution distinct from its federal
       counterpart, we resolve the party’s claim ‘on the basis of federal constitutional doctrine and express no
       opinion as to what, if any, differences there may be’ under the Indiana Constitution.” Myers v. State, 839
       N.E.2d 1154, 1158 (Ind. 2005) (quoting Williams v. State, 690 N.E.2d 162, 167 (Ind. 1997)).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1976 | March 18, 2019                    Page 10 of 13
[18]   In the first line of questioning, Warren seemingly sought to elicit testimony that

       Warren could not be criminally culpable for merely driving Hunter.6 Yet,

       Indiana Evidence Rule 704 provides that “[w]itnesses may not testify

       to . . . legal conclusions” or to “opinions concerning intent, guilt, or innocence

       in a criminal case.” As to the second exchange, Warren seemingly sought to

       elicit testimony that was either hearsay or outside of Det. Buchman’s personal

       knowledge—evidence that is also generally prohibited. See Ind. Evid. Rules

       602, 801 & 802. Warren has not demonstrated that these evidentiary rulings

       amounted to a constitutionally unreasonable limitation of cross-examination.

       Furthermore, even assuming error, in light of the strength of the case against

       Warren—including his confession—we conclude that any error was harmless

       beyond a reasonable doubt. See Smith, 721 N.E.2d at 219 (“[V]iolations of the

       right to cross-examine are subject to harmless-error analysis.”).


                                     Sufficiency of the Evidence
[19]   In reviewing a challenge to the sufficiency of the evidence, “[w]e neither

       reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204,

       210 (Ind. 2016). We look only at the probative evidence and reasonable

       inferences supporting the conviction and “will affirm the conviction unless no




       6
        In light of our preference to resolve cases on the merits, see Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015),
       we put aside the question of whether Warren waived this constitutional claim by failing to make an offer of
       proof pursuant to Indiana Evidence Rule 103(a).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1976 | March 18, 2019                      Page 11 of 13
       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).


[20]   Warren challenges the sufficiency of the evidence supporting his conviction for

       Theft as a Class A misdemeanor—the count pertaining to the Speedway gas

       station on German Church Road. To obtain this conviction, the State was

       obligated to prove that Warren “knowingly or intentionally aid[ed]” Hunter in

       committing the offense, I.C. § 35-41-2-4, and that Hunter had “knowingly or

       intentionally exert[ed] unauthorized control over property of another person,

       with intent to deprive the other person of any part of its value,” I.C. § 35-43-4-2.


[21]   Warren does not appear to dispute the sufficiency of evidence that he aided

       Hunter. Warren instead challenges the sufficiency of evidence that Hunter

       committed Theft. Among the evidence is surveillance footage showing the

       counter inside the gas station—on which Hunter placed two drinks, and a gas

       station employee placed two cartons of cigarettes. Hunter left the drinks and

       walked out with the cigarettes, at which point the employee hurried out behind

       Hunter. A manager—not present at the time—testified that she had reviewed

       the footage, and did not see Hunter pay with cash or a credit card. Moreover,

       Warren told Det. Buchman that Warren had parked in an apartment complex

       nearby the gas station. Warren remembered that Hunter ran back to the truck.


[22]   Warren argues that the gas station employee had not testified, and that Hunter

       could have paid through a “contactless” payment method that “does not

       require the exchange from person to person of a card or cash.” Br. of Appellant


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1976 | March 18, 2019   Page 12 of 13
       at 17. Yet, we may not reweigh the evidence. Rather, there was sufficient

       evidence from which a reasonable fact-finder could conclude that Hunter

       committed Theft, and that Warren knowingly aided Hunter in doing so.



                                               Conclusion
[23]   The court did not err by accepting—on the day of trial—a waiver of the right to

       counsel. As to any limitation of cross-examination, Warren has not identified

       reversible error. Finally, sufficient evidence supports the conviction of Theft.


[24]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1976 | March 18, 2019   Page 13 of 13
