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                             Nov 13 2013, 5:49 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JUNE E. BULES                                   GREGORY F. ZOELLER
Plymouth, Indiana                               Attorney General of Indiana

                                                MONIKA PREKOPA TALBOT
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

SHAUN A. FRY,                                   )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 50A03-1305-CR-170
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARSHALL SUPERIOR COURT
                           The Honorable Dean A. Colvin, Judge
                             Cause No. 50D02-1205-FD-233



                                    November 13, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Sometimes what appears to be a routine stop for law enforcement can evolve into

a multiple-hour struggle with a belligerent and uncooperative intoxicated arrestee.

Appellant-defendant Shaun A. Fry was convicted of Operating a Vehicle While

Intoxicated Endangering a Person,1 a class D felony; Resisting Law Enforcement,2 a class

A misdemeanor; and Operating a Motor Vehicle Without Ever Receiving a License, 3 a

class C misdemeanor.

          Fry now appeals, claiming that he did not knowingly, voluntarily, and intelligently

waive his right to a jury trial. Additionally, Fry asserts that the statute, pursuant to which

he was convicted for operating a vehicle without ever receiving a license, impermissibly

shifted the burden of proof and that the evidence is insufficient to support his conviction

on that count. Finding that Fry did not knowingly, voluntarily, and intelligently waive

his right to a jury trial as to the felony charges, but finding no other error, we affirm in

part, vacate in part, and remand with instructions that Fry be granted a new trial on the

felony count on which he was convicted.

                                                  FACTS

          At approximately 11:30 p.m. on May 12, 2012, Marshall County Deputy Sheriff

Daniel Butt was driving southbound on U.S. 31 when he saw a vehicle traveling well

above the speed limit. Deputy Butt activated his emergency lights and initiated a traffic


1
    Ind. Code § 9-30-5-3.
2
    Ind. Code § 35-44-3-3, recodified at Ind Code § 35-44.1-3-1.
3
    Ind. Code § 9-24-18-1.
                                                      2
stop. When he approached Fry, the driver, he smelled the odor of alcoholic beverage and

noticed that Fry’s eyes appeared bloodshot and his speech was slow. There were empty

alcohol containers in the vehicle.

       At that time, Deputy Sheriff Bryan Hollopeter, a certified breath test operator,

arrived and assumed the investigation. Deputy Hollopeter also noticed the strong odor of

alcoholic beverage emanating from the vehicle and that Fry had red, glassy eyes.

       When Fry exited the vehicle upon Deputy Hollopeter’s instruction, both deputies

noticed that Fry was unsteady and had to place his hand on the vehicle for balance.

When Deputy Hollopeter offered Fry a field sobriety test and a breath test, Fry refused

both and attempted to leave. Deputy Hollopeter explained to Fry that he was under

arrest, and after a brief struggle during which Fry refused to cooperate, Deputy

Hollopeter turned Fry around and handcuffed him. Because Fry had refused the breath

test, Deputy Hollopeter transported him to the hospital for a chemical test.

       Fry did not understand why he was at the hospital and refused to exit the police

vehicle; Deputy Hollopeter had to forcibly remove Fry from the vehicle. After Deputy

Hollopeter finally managed to escort Fry into the hospital emergency area, Fry pulled

away from him, causing Deputy Hollopeter to stumble and scrape his left forearm on the

edge of the countertop, which resulted in bleeding. Fry also refused to cooperate with the

nurses, and the attending physician told Deputy Hollopeter that if Fry refused to

cooperate, there was nothing that the hospital staff could do.



                                             3
       Deputy Hollopeter called his superior, Deputy Butt, who advised him to transport

Fry to the jail. After struggling with Fry again, Deputy Hollopeter placed Fry back in his

police cruiser and transported him to the jail. Once they arrived, Fry refused to exit the

vehicle, and Deputy Hollopeter had to pull him out. During the walk to the intake area,

Fry tried to pull away from Deputy Hollopeter. When Deputy Hollopeter finally sat Fry

down on a chair, Fry, who was angry, spat on the officer, and his saliva landed on the

officer’s left shoulder. After further investigation, Deputy Hollopeter learned that Fry

has previously been convicted in Oregon for operating a vehicle while intoxicated.

       On May 23, 2012, the State charged Fry with Count I, class D felony battery by

bodily waste; Count II, class A misdemeanor operating a vehicle while intoxicated

endangering a person; Count III, class A misdemeanor resisting law enforcement; and

Count IV, class C misdemeanor operating a motor vehicle without ever receiving a

license. On September 12, 2012, the State elevated Count II to a class D felony because

Fry had a prior conviction.

       On May 29, 2012, the trial court conducted an initial hearing with Fry in open

court. During the initial hearing, the trial court advised Fry of his various constitutional

rights including his right to a trial by jury. More specifically, the trial court explained

that if Fry wanted a jury trial on his misdemeanor charges, he would have to make a

written request at least twenty days prior to his scheduled trial date and that his failure to

do so could result in waiver of his right to a jury trial.



                                                4
      On January 28, 2013, Fry requested a bench trial for March 21, 2013, which was

granted. Neither Fry nor his counsel signed any document requesting the bench trial.

      Fry’s bench trial was held on March 21, 2013. Fry testified that he had resisted

Deputy Hollopeter while the officer was lawfully engaged in his duties as a law

enforcement officer. Fry further testified that he had received a driver’s license in

Washington State but that it had been suspended. Regarding the charge of battery by

bodily waste, Fry explained that sometimes he spits when he speaks because his teeth are

worn and that when he is upset, his saliva problem is exacerbated. Tr. p. 51-53.

      The trial court found Fry guilty of Count II, class D felony operating a vehicle

while intoxicated endangering a person; Count III, class A misdemeanor resisting law

enforcement; and Count IV, class C misdemeanor operating a motor vehicle without ever

receiving a license. The trial court found Fry not guilty of class D felony battery by

bodily waste.

      On April 10, 2013, the trial court held a sentencing hearing during which it

sentenced Fry to concurrent terms of three years on Count II, one year on Count III, and

sixty days on Count IV, for an aggregate term of three years imprisonment. Fry now

appeals.

                            DISCUSSION AND DECISION

                                 I. Waiver of Jury Trial

      Fry argues that his convictions must be vacated and remanded for a new trial

because he did not properly waive his right to a jury trial. The United States and Indiana

                                            5
Constitutions guarantee the right to trial by jury. Poore v. State, 681 N.E.2d 204, 206

(Ind. 1997). That right may be waived so long as the defendant does so in a voluntary

and intelligent manner. Id.

                                      A. Felony Waiver

       A person who is charged with a felony has an automatic right to a jury trial. Id. at

207. Accordingly, it is presumed that the defendant has not waived his right to a jury

trial unless he affirmatively acts to do so. Id.

       Here, Fry was charged with two class D felonies and had an automatic right to a

jury trial. At the time of the initial hearing, Fry had already been charged with one of

those felonies; however, the trial court did not explain how to waive that right. Instead,

the trial court explained to Fry and to the other defendants in the courtroom how to

request a jury trial in a misdemeanor case. Initial Hearing Tr. p. 5. Although the record

shows that on January 28, 2013, Fry filed an entry requesting a bench trial on March 21,

2013, that entry was not signed by Fry or his counsel. See Anderson v. State, 833 N.E.2d

119, 122 (Ind. Ct. App. 2005) (holding that because the defendant did not personally sign

the waiver of right to jury trial for a felony offense or express his personal desire to waive

his right to trial by jury, there was no affirmative action by the defendant to waive that

right, and the waiver was therefore invalid). Thus, as the State concedes, there is no

evidence in the record indicating that Fry knowingly, voluntarily, and intelligently

waived his right to a jury trial. Therefore, we vacate Fry’s conviction for class D felony

operating a vehicle while intoxicated endangering a person and remand for a new trial.

                                               6
                                    B. Misdemeanor Waiver

          Indiana Criminal Rule 22 governs the procedure for asserting the right to a jury

trial in misdemeanor cases. Duncan v. State, 975 N.E.2d 838, 842 (Ind. Ct. App. 2012).

Rule 22 states:

          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 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.

          Waiver does not exist where a defendant has not been advised of the consequences

of failing to demand a jury trial no later than ten days before the scheduled trial date.

Levels v. State, 972 N.E.2d 972, 974 (Ind. Ct. App. 2012). Additionally, the defendant

must be aware that the demand for a jury has to be in writing. Id.

          As noted above, at the initial hearing, the trial court advised Fry regarding

asserting his right to a jury trial on his misdemeanor charges. Specifically, the trial court

stated:

          Each of you have the right to a public and speedy trial in these matters, that
          trial can be either to the Court or to a jury, misdemeanor charges are
          initially set up for trial before the Court, if you desire a jury trial in a
          misdemeanor charge, you must make that request for that jury trial in
          writing at least twenty (20) days prior [to] the scheduled trial date, your
          failure to make that timely request for that jury trial in that manner could
          waive your right to a jury trial on a misdemeanor charge.

Initial Hearing Tr. p. 5.



                                                7
       At the outset, we observe that one glaring error is the trial court’s statement that

the demand for a jury trial must be made twenty days before trial instead of ten.

However, Fry does not complain about this mistake, stating that it was “harmless” under

his particular circumstances. Appellant’s Br. p. 12 n.1.

       Instead, Fry contends that the trial court erred by stating that if he failed to request

a jury trial within the allotted time, he “could waive [his] right to a jury trial on a

misdemeanor charge.” Initial Hearing Tr. p. 5 (emphasis added). Fry contends that the

trial court was obligated to advise him that if he failed to timely assert his right to a jury

trial, his “right to a jury trial SHALL be waived.” Appellant’s Br. p. 12.

       While we encourage trial courts to be precise when advising defendants and

caution that there is a point where imprecision will require this Court to vacate

convictions and remand for new trials, we cannot say that the imprecision which occurred

in this case requires such extreme action. More particularly, Fry was informed that if he

wanted a jury trial on his misdemeanor charges, he would have to request one in writing

within a limited time period and that waiver was a probable consequence of his failure to

do so. Compare Levels, 972 N.E.2d at 974 (holding that defendant did not knowingly

and intelligently waive his right to a jury trial for misdemeanor offenses where the trial

court’s advisement consisted only of informing the defendant that he had the right to a

jury trial; the trial court did not inform the defendant that he had to demand a jury trial in

writing and within a particular time frame). Accordingly, this argument fails.



                                              8
                                       II. Due Process

       Fry contends that Indiana Code section 9-24-18-1, Indiana’s statute prohibiting

operating a vehicle while never having received a license, violates the Due Process

Clause of the Fourteenth Amendment because it impermissibly shifts the burden of proof

to the defendant to prove one of the elements. The State counters that Fry has waived

this argument because he failed to file a motion to dismiss in the trial court.

       Indiana Code section 35-34-1-6 provides several reasons why an information may

be defective including “the statute defining the offense charged is unconstitutional or

otherwise invalid.” Furthermore, when an information is defective, it “shall be dismissed

upon motion.” Ind. Code § 35-34-1-6(c). “‘Generally, the failure to file a proper motion

to dismiss raising the Constitutional challenge waives the issue on appeal.’”

Baumgartner v. State, 891 N.E.2d 1131, 1135-36 (Ind. Ct. App. 2008) (quoting Payne v.

State, 484 N.E.2d 16, 18 (Ind. 1985)).       Thus, because Fry failed to file a motion to

dismiss, he has waived his constitutional challenge.

       Waiver notwithstanding, Fry’s argument fails on the merits. We presume that a

statute is constitutional, and it is the defendant’s burden to rebut this presumption. Id. at

1136. This Court resolves all reasonable doubts in favor of the constitutionality of the

statute. Gaines v. State, 973 N.E.2d 1239, 1243 (Ind. Ct. App. 2012).

       Fry is correct that the burden is on the State to prove all of the elements of a

criminal offense beyond a reasonable doubt. Powers v. State, 540 N.E.2d 1225, 1227

(Ind. 1989).   Nevertheless, it is the defendant who bears the burden to prove any

                                              9
affirmative defense by a preponderance of the evidence. Neese v. State, 994 N.E.2d 336,

340 (Ind. Ct. App. 2013).

      In determining whether a statutory exception is a material element of the offense

that must be proven by the State beyond a reasonable doubt or an affirmative defense that

must be proven by the defendant by a preponderance of the evidence, we look to the

location of the exception relative to the definition of the principal offense.         Id.

Specifically, if the exception is closely associated with the clause creating the offense,

then it is a material element of the offense that must be proven by the State beyond a

reasonable doubt. Id. By contrast, if the exception is located in a subsequent clause or

statute, it is an affirmative defense, and the onus is on the defendant to raise and prove

the defense by a preponderance of the evidence. Id.

      Indiana Code section 9-24-18-1, the challenged statute, provides in relevant part:

      (a) A person, except a person exempted under IC 9-24-1-7, who knowingly
          or intentionally operates a motor vehicle upon a highway and has never
          received a valid driving license commits a Class C misdemeanor.
          However, the offense is a Class A misdemeanor if the person has a prior
          unrelated conviction under this section.

                                           …

      (e) In a prosecution under this section, the burden is on the defendant to
          prove by a preponderance of the evidence that the defendant had been
          issued a driver’s license or permit that was valid at the time of the
          alleged offense.

      Here, the exception is located in a subsequent clause, making it an affirmative

defense that Fry was required to establish by a preponderance of the evidence. Thus, the


                                           10
statute does not unconstitutionally shift the burden of disproving an element of the crime

to criminal defendants and, specifically, to Fry.

                              III. Sufficiency of the Evidence

       In a related argument, Fry maintains that the State failed to prove beyond a

reasonable doubt that he operated a vehicle without ever receiving a driver’s license and

that the trial court impermissibly relied upon Fry’s failure to prove his affirmative

defense that he had been issued a driver’s license. Upon a challenge to the sufficiency of

the evidence, we neither reweigh the evidence nor judge the credibility of witnesses.

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, we consider only the

probative evidence and reasonable inferences supporting the trial court’s verdict. Id.

       As stated above, Fry was charged with driving without ever receiving a driver’s

license. And subsection (e) required Fry to show by a preponderance of the evidence that

he had a valid driver’s license at the time of the offense to establish an affirmative

defense.

       Fry’s driving record shows that his license was suspended for life at the time of

the offense. State’s Ex. 2. Furthermore, Fry testified that he had received a driver’s

license in Washington State but that it had been suspended. Tr. p. 49-50. Thus, Fry had

a suspended driver’s license at the time of the offense.

       Notwithstanding our conclusion above, Fry points out that having a suspended

driver’s license is not the same as never having received a license and that the State failed

to show that Fry had never received a valid driver’s license. While Fry’s argument seems

                                             11
logical, it misses the mark insofar as an individual can have a suspended license even

though that person never held a valid driver’s license. For instance, Indiana Code section

9-24-18-1(d) states:

         The bureau shall, upon receiving a record of conviction of a person upon a
         charge of operating a motor vehicle while never having received a valid
         driving license, prohibit the person from receiving a driving license by
         placing a suspension of driving privileges on the person’s record for a fixed
         period of at least ninety (90) days and not more than two (2) years. . . .

         As indicated above, a suspension does not necessarily mean a suspension from an

existing license. And based on the Oregon life suspension and Fry’s Indiana driving

record, which also shows a suspension, a reasonable fact-finder could have concluded

that Fry never held a valid driver’s license. State’s Ex. 1-2. Consequently, this argument

fails.

         The judgment of the trial court is affirmed in part, vacated in part, and remanded

with instructions to the trial court to hold a new trial on the charge of class D felony

operating a vehicle while intoxicated.

FRIEDLANDER, J., and VAIDIK, J., concur.




                                              12
