MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Jan 13 2017, 9:48 am
court except for the purpose of establishing
the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Frederick Vaiana                                         Curtis T. Hill, Jr.
Voyles Zahn & Paul                                       Attorney General of Indiana
Indianapolis, Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Zachary Asher,                                           January 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1606-CR-1311
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1512-F5-45528



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017    Page 1 of 14
                                          Case Summary
[1]   After a bench trial, Zachary Asher (“Asher”) was convicted of Carrying a

      Handgun without a License, as a Level 5 felony,1 and two counts of Resisting

      Law Enforcement, as Class A misdemeanors.2 He now appeals.


[2]   We affirm.



                                                    Issues
[3]   Asher raises three issues for our review, which we restate as:

                    I.     Whether the trial court properly found that Asher had
                           waived his right to a jury trial;


                   II.     Whether the trial court abused its discretion in admitting
                           evidence obtained during an investigatory stop; and


                  III.     Whether there was sufficient evidence to support the
                           conviction for Carrying a Handgun without a License.


                                   Facts and Procedural History
[4]   On December 18, 2015, at around 1:40 a.m., Indianapolis Metropolitan Police

      Department (“IMPD”) Officer Michael Deskins (“Officer Deskins”) responded

      to a radio dispatch to the intersection of Tenth and LaSalle Streets in



      1
          Ind. Code § 35-47-2-1.
      2
          I.C. § 35-44.1-3-1(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017   Page 2 of 14
      Indianapolis. An individual had called 911, identified himself, and stated that

      two black males wearing bandanas over their faces were at the intersection.

      The area of the intersection was known to Officer Deskins as a high-crime area.


[5]   When Officer Deskins arrived at the intersection, he saw two youthful-looking

      individuals standing at the northeast corner of the intersection: a black male,

      later identified as Asher, wearing a black hoodie and a bandana around his

      neck, and a white male identified as Cody, who was wearing a white hoodie

      and a bandana over his face. Upon Officer Deskins’s arrival, Cody removed

      the bandana from his face. He and Asher crossed from the north to the south

      side of Tenth Street, and then crossed from the east to the west side of LaSalle

      Street. Though the traffic signal permitted them to cross Tenth Street legally,

      Asher and Cody did not wait for the signal to change to permit them to cross

      LaSalle Street legally. Throughout this time, Asher and Cody continually

      looked back toward Officer Deskins’s squad car and appeared nervous.


[6]   After seeing Asher and Cody cross LaSalle against the traffic signal, Officer

      Deskins turned south and parked his car at the intersection. He then got out of

      the car, called out to Asher and Cody, and asked them to come over to him.

      The two complied.


[7]   After Asher and Cody arrived at the intersection once more, Officer Deskins

      asked the two what they were doing in the area in the early morning hours.

      Asher stated that they were waiting for a ride to the area of Tenth and Highland

      Streets to go to Cody’s home, but Cody was unable to give the specific address


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017   Page 3 of 14
       of his purported residence. When Officer Deskins asked to see Cody’s

       identification, Cody could not produce an identification card.


[8]    While Officer Deskins spoke to Cody, he observed Asher “blade” his body,

       placing his right hip away from Officer Deskins, and saw Asher move his hands

       toward his waistline. (Tr. at 17.) Based upon his training and experience,

       Officer Deskins recognized Asher’s “blade” posture as one frequently used by

       boxers and by persons carrying weapons they wish to keep away from another

       individual. Officer Deskins then asked for Asher’s identification, and Asher

       said he did not have any with him.


[9]    Officer Deskins then told Asher that he wanted to perform a pat-down search of

       Asher’s person for weapons, and reached out and took hold of Asher’s left arm.

       Asher then tensed up and pulled away from Officer Deskins, yelling “You can’t

       search me, you can’t search me.” (Tr. at 18.) Officer Deskins grabbed hold of

       the back of Asher’s sweater, and Asher continued to struggle even after a

       second officer, Officer James Thalheimer (“Officer Thalheimer”), arrived at the

       scene to assist Officer Deskins.


[10]   Asher continued to struggle with Officers Deskins and Thalheimer. The course

       of the struggle took the three north across the intersection of Tenth and LaSalle

       Streets. Officers Deskins and Thalheimer were eventually able to handcuff

       Asher, who continued to fight; Officer Deskins eventually retrieved leg shackles

       to subdue Asher. Upon returning to Asher to place him in leg shackles, Officer

       Deskins saw an empty pistol holster that had partially slipped out of the right


       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017   Page 4 of 14
       rear pocket of Asher’s pants. After seeing the holster, Officer Deskins told

       Officer Thalheimer that there might be a gun nearby. Looking up, both officers

       quickly saw a pistol lying in the middle of the intersection along the path of

       their struggle with Asher.


[11]   Subsequent to this, Asher was arrested. On December 23, 2015, Asher was

       charged with Carrying a Handgun without a License and two counts of

       Resisting Law Enforcement.


[12]   On February 16, 2016, Asher filed a motion to suppress evidence obtained as a

       result of Officer Deskins’s stop. On March 28, 2016, a hearing was conducted

       on the motion. At the conclusion of the hearing, the trial court denied Asher’s

       motion to suppress evidence.


[13]   On April 21, 2016, a bench trial was conducted. Shortly before the beginning of

       the bench trial, Asher signed a written waiver of jury trial. The State and the

       trial court both agreed with Asher’s waiver, and the case proceeded to trial. At

       the end of the trial, the court took the matter under advisement. On May 2,

       2016, the court found Asher guilty as charged on all three counts and entered

       judgment against him.


[14]   A sentencing hearing was conducted on May 19, 2016. At the end of the

       hearing, the court sentenced Asher to three years imprisonment for Carrying a

       Handgun without a License, and one year of imprisonment on each count of

       Resisting Law Enforcement. The sentences were run concurrently with one



       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017   Page 5 of 14
       another, with one year to be served in community corrections and two years

       suspended to probation.


[15]   This appeal ensued.



                                  Discussion and Decision
                                          Jury Trial Waiver
[16]   Asher’s first contention on appeal is that he did not waive his right to a jury

       trial, and that his conviction must therefore be reversed.


[17]   “The jury trial right is a bedrock of our criminal justice system, guaranteed by

       both Article I, Section 13 of the Indiana Constitution and the Sixth

       Amendment to the United States Constitution.” Horton v. State, 51 N.E.3d

       1154, 1158 (Ind. 2016). Under Indiana constitutional jurisprudence, “in a

       felony prosecution, waiver is valid only if communicated personally by the

       defendant.” Id. Personal waiver of the right to a jury trial may be either in

       writing or in open court. Id.


[18]   Indiana has rejected the purported waiver of a right to a jury trial where such

       waiver is communicated solely by a defendant’s counsel. Id. at 1158-59 (citing,

       inter alia, Kellems v. State, 849 N.E.2d 1110 (Ind. 2006); Good v. State, 267 Ind.

       29, 366 N.E.2d 1169 (1977)). In Horton, the trial court inquired of Horton’s

       defense counsel whether jury trial on one of several counts against Horton, and

       Horton’s counsel stated an intent to proceed forward with a bench trial. Id. at

       1156. The Indiana Supreme Court held that without Horton’s personal waiver
       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017   Page 6 of 14
       of the jury trial right, “failure to confirm Horton’s personal waiver before

       proceeding to bench trial was fundamental error.” Id. at 1160. This was so

       even where the circumstances appeared to “imply waiver was the defendant’s

       choice.” Id. at 1159. Similarly, in Kellems, the Indiana Supreme Court held

       that even where Kellems had been advised of his right to a jury trial and his

       option to waive that right and had subsequently responded that he did not have

       any questions regarding his rights, counsel’s communication of waiver was not

       enough: absent questioning of the defendant or a signed writing indicating

       intent to waive a jury trial, no waiver may be deemed to have occurred.

       Kellems, 849 N.E.2d at 1172-73.


[19]   Asher contends that his case reflects flaws in the jury trial waiver process

       similar to those of Horton and Kellems. Asher draws our attention to two points

       of note. First, Asher observes that there was no personal, spoken colloquy

       between him and the trial court concerning his right to a jury trial and his intent

       to waive that right. Second, Asher notes that his written jury trial waiver bears

       a date stamp of May 20, 2016—one day after his sentencing hearing, nearly a

       month after his bench trial. Asher argues that the absence of personal

       advisement and waiver, taken together with the irregularity of the filing date of

       the written waiver, establishes that he did not waive his right to a jury trial,

       rendering his conviction constitutionally infirm and requiring reversal.


[20]   A review of the record here reveals that while the filing date of the jury trial

       waiver is later than the date of the bench trial, the document itself appears to

       have been executed by Asher on the date of his bench trial. Further, the written

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017   Page 7 of 14
       waiver appears to have been provided to the trial court in advance of the trial

       proceeding itself. Thus, while Asher insists “[t]here is nothing in this record to

       indicate Asher even executed the waiver because the trial court offered no

       inquiry regarding it” (Appellant’s Br. at 17), the waiver had already been

       disclosed to the court. In an exchange with counsel, the trial court stated, “The

       Court now has a waiver of trial by jury executed by Mr. Asher and his attorney

       and also the State of Indiana.” (Tr. at 4.)


[21]   Asher suggests that the written and signed waiver is constitutionally infirm in

       the absence of a colloquy during which the court could obtain verbal

       confirmation either of Asher’s intent to waive a jury trial or of the accuracy of

       the signature on the written waiver form—even as he acknowledges that no

       such colloquy is required by constitutional or statutory law. (Appellant’s Br. at

       15-16.) And other than the suggestion that some kind of colloquy should be

       required, Asher establishes no basis from which we may conclude that the

       signature on the waiver form is not his, other than the occasional use of the

       phrase “purportedly signed.” (Appellant’s Br. at 17.)


[22]   Asher is no doubt correct that the procedure here could have been more regular

       with respect to the date on which his waiver was file stamped. That does not,

       however, serve to render the written and signed waiver infirm—even when

       taken together with the absence of a confirmatory colloquy with the trial court.

       We accordingly find no error in the trial court’s finding that Asher had waived

       his right to a jury trial in this case.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017   Page 8 of 14
                                          Investigatory Stop
[23]   Asher’s next contention on appeal is that the trial court erred when it did not

       grant his motion to suppress evidence. Though Asher frames his issue as an

       appeal from a denial of a motion to suppress evidence, because he appeals after

       a trial, “the question of whether the trial court erred in denying a motion to

       suppress is no longer viable.” Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013)

       (citation and quotations omitted). Asher’s issue is thus more appropriately

       framed as whether the trial court abused its discretion when it admitted

       evidence at trial. Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010).


               The general admission of evidence at trial is a matter we leave to
               the discretion of the trial court. We review these determinations
               for abuse of that discretion and reverse only when admission is
               clearly against the logic and effect of the facts and circumstances
               and the error affects a party’s substantial rights.


       Clark, 994 N.E.2d at 259–60 (citations omitted).


[24]   Asher identifies as an abuse of discretion the trial court’s decision, over his

       objection, to admit into evidence a gun and a holster that were obtained as a

       result of Officer Deskins’s investigative stop of Asher and his companion,

       Cody. Investigative stops implicate federal and state protections against

       unreasonable searches and seizures. Id. at 260. Generally, searches and

       seizures are prohibited without probable cause. Id. However, “[e]ncounters

       between law enforcement officers and public citizens take a variety of forms,

       some of which do not implicate the protections of the Fourth Amendment and


       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017   Page 9 of 14
       some of which do.” Id. at 261. Nonconsensual encounters may take on the

       form of brief investigative stops that require reasonable suspicion to pass

       constitutional muster. Id.


[25]   Reasonable suspicion to conduct a brief investigatory stop requires that the

       existence of “specific and articulable facts known to the officer at the time of the

       stop that led the officer to believe that ‘criminal activity may be afoot.’” Finger

       v. State, 799 N.E.2d 528, 533-34 (Ind. 2003) (quoting Terry v. Ohio, 392 U.S. 1,

       30)). A hunch or unparticularized suspicion is not enough to satisfy the

       requirement of reasonable suspicion. Id. Rather, a police officer must be able

       to point to specific facts that give rise to a reasonable suspicion of criminal

       activity. Id. In assessing the existence of reasonable suspicion, we consider the

       totality of the circumstances and, though we review for an abuse of discretion,

       the determination of reasonable suspicion is one we review de novo. Scott v.

       State, 855 N.E.2d 1068, 1073 (Ind. Ct. App. 2003).


[26]   Whether reasonable suspicion existed in a particular case is a fact-sensitive

       question. Bridgewater v. State, 793 N.E.2d 1097, 1100 (Ind. Ct. App. 2003),

       trans. denied. Presence in a high-crime area, even accompanied by flight from

       officers, is a factor to be looked at under the totality of the circumstances but is

       not sufficient in itself to give rise to reasonable suspicion for an investigative

       stop. Id. And even where there is reasonable suspicion to conduct an

       investigative stop, “‘[a]n officer’s authority to conduct a pat-down search is

       dependent upon the nature and extent of his particularized concern for his



       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017   Page 10 of 14
       safety and that of others.’” Johnson v. State, 38 N.E.3d 658, 662 (Ind. Ct. App.

       2015) (quoting Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001)), trans. denied.


[27]   Here, Officer Deskins responded to a non-anonymous tip concerning two men

       wearing bandanas and standing at a street corner in a high-crime area at around

       1:40 a.m., when the local curfew was at 11:00 p.m. Upon arriving at the

       intersection of Tenth and LaSalle Streets, Officer Deskins stopped to observe

       Asher and Cody. Cody, whose face was covered by a bandana when Officer

       Deskins arrived, lowered the bandana and immediately appeared to Officer

       Deskins to be very young, giving Officer Deskins reason to believe that Cody

       was out in violation of the legal curfew. Asher and Cody began to walk away

       from Officer Deskins, crossing against the light as they moved west across

       LaSalle Street, giving Officer Deskins reason to believe that the two had

       committed jaywalking, an infraction.


[28]   Once Officer Deskins pulled through the intersection and stopped his vehicle,

       he called Asher and Cody over. Asher said that the two were waiting for a ride

       to Cody’s home, but Cody could not tell Officer Deskins their destination’s

       address. As Officer Deskins asked Cody questions, he saw Asher “blade” his

       body, a posture that Officer Deskins from training and experience recognized as

       a fighting stance or a stance intended to keep a weapon away from another

       person. Asher was, like Cody, unable to provide identification when asked.

       When Officer Deskins attempted to perform a pat-down search, Asher

       immediately began to pull away and attempted to flee.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017   Page 11 of 14
[29]   Under the totality of the circumstances, it was reasonable for Officer Deskins to

       suspect that criminal activity was afoot. Given Asher’s conduct while Officer

       Deskins spoke with Cody, as well as the absence of other officers present to

       help ensure safety, it was further reasonable under the circumstances for Officer

       Deskins to seek to perform a pat-down search of Asher for weapons. In light of

       the totality of the circumstances, we find no error on the trial court’s part in

       denying Asher’s objection to the admission of evidence obtained subsequent to

       Officer Deskins’s investigative stop and attempt to conduct a pat-down search.


                                  Sufficiency of the Evidence
[30]   We turn to Asher’s final contention on appeal, that there was insufficient

       evidence to sustain his conviction for Carrying a Handgun without a License.

       Our standard of review in such cases is well-settled.


               This court will not reweigh the evidence or assess the credibility
               of witnesses. Cox v. State, 774 N.E.2d 1025, 1028 (Ind. Ct. App.
               2002). Only the evidence most favorable to the judgment,
               together with all reasonable inferences that can be drawn
               therefrom will be considered. Id. If a reasonable trier of fact
               could have found the defendant guilty based on the probative
               evidence and reasonable inferences drawn therefrom, then a
               conviction will be affirmed. Id. at 1028–29.


       Sargent v. State, 875 N.E.2d 762, 767 (Ind. Ct. App. 2007).


[31]   Here, to convict Asher as charged, the State was required to prove beyond a

       reasonable doubt that Asher knowingly carried a handgun in a vehicle or on his



       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017   Page 12 of 14
       person, without being licensed as required by law, within 500 feet of a school.

       See I.C. § 35-47-2-1; App’x at 28.


[32]   Asher challenges only the sufficiency of the evidence as to his possession of the

       handgun. His argument is that, in the absence of DNA or fingerprint evidence

       connecting him to the pistol, and in light of the struggle with police officers,

       there is insufficient evidence to connect him to the firearm that Officers Deskins

       and Thalheimer found in the intersection of Tenth and LaSalle Streets.


[33]   At trial, Officer Deskins testified that when he arrived at the intersection of

       Tenth and LaSalle Streets, he did not see a gun in the intersection. Officer

       Deskins characterized the gun as large enough to see in the well-lit intersection,

       and testified that had the gun been there at his arrival, he would have seen it

       lying in the intersection while still in his squad car. After the struggle with

       Asher, both Officers Deskins and Thalheimer were able to easily and

       immediately see the gun, which Officer Deskins began to look for after seeing

       an empty holster slipping from Asher’s pocket. The officers saw the gun lying

       in the intersection along the path of Asher’s struggle with the officers, and

       Officer Deskins testified that the gun was not moved from that spot until it was

       collected by an evidence technician. Asher raises questions concerning DNA

       and fingerprint evidence, an argument that requests that we impermissibly

       reweigh evidence.


[34]   There was sufficient evidence to connect Asher to the pistol. We accordingly

       affirm the conviction for Carrying a Handgun without a License.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017   Page 13 of 14
                                               Conclusion
[35]   The trial court did not err when it found that Asher waived his right to a jury

       trial. The trial court did not abuse its discretion when it admitted evidence over

       his objection. There was sufficient evidence to sustain Asher’s conviction for

       Carrying a Handgun without a License.


[36]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1311 | January 13, 2017   Page 14 of 14
