Pursuant to Ind. Appellate Rule 65(D), this Aug 14 2013, 5:39 am
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:
FREDERICK VAIANA GREGORY F. ZOELLER
Voyles Zahn & Paul Attorney General of Indiana
Indianapolis, Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
PHILLIP ROGERS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1212-CR-987
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Reuben B. Hill, Judge
Cause No. 49F18-1201-FD-4195
August 14, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Following a bench trial, the appellant-defendant, Phillip Rogers, was convicted of
three counts of class D felony Theft.1 The trial court sentenced Rogers to three
concurrent terms of seven hundred and thirty days in the Indiana Department of
Correction (DOC).
Rogers appeals, claiming that he did not make a knowing, voluntary, and
intelligent waiver of his right to a jury trial. He also contends that there was insufficient
evidence to sustain his convictions.
Concluding that Rogers effectively waived his right to a jury trial and finding
sufficient evidence to sustain Rogers’s convictions, we affirm the judgment of the trial
court.
FACTS
The facts most favorable to the State reveal that on December 13, 2011, the
security alarm at the Concrete Pour and Core, a business owned by Christopher
Robinett,2 went off. The alarm company contacted Robinett’s tenant, who was listed as a
primary contact, and told him to check Robinett’s business. Unfamiliar with the layout of
Robinett’s business, the tenant found nothing out of place. However, the next morning
the tenant contacted Robinett to inform him of what had happened the day before.
Robinett, upon arriving at his business, also did not notice that anything was out of place
1
Ind. Code § 35-43-4-2.
2
Although the state spells the victim’s name as Robinette, we will use the spelling set forth in the
transcript.
2
because he had an extensive amount of tools and would only have noticed that certain
items were missing when he had the occasion to use them.
On January 5, 2012, Robinett went to the Westside Loan Company, a pawn shop
in Indianapolis where he buys Shop-Vacs. According to Robinett, his business uses fifty
to one hundred Shop-Vacs a year, so he oftentimes buys them at the pawn shop to save
money. As Robinett approached the counter in the pawn shop, he looked down and
spotted a generator marked with his paint signet and his name. Realizing that the
generator must have been stolen the night his alarm went off, Robinett contacted the
police and inventoried his warehouse for other missing items. He discovered his
hydraulic ring saw, a water pump, one jigsaw, a Hilti hammer drill, and four drills,
including a Black and Decker electric drill, were also missing. Robinett recovered a total
of nine items belonging to him from the pawn shop. Robinett testified that his ring saw is
a specialty saw and that he did not notice it was missing because he rarely used it and had
put it in a case because it was valuable.
Indianapolis Metropolitan Police Department (IMPD) Detective Jerry Salluom
began his investigation on January 5, 2012. He testified that during the course of his
investigation he realized that Rogers sold Robinett’s drills, generator, and jigsaw on
December 13, 2011, that he sold the water pump on December 23, 2011, and that on
December 31, 2011, he sold the ring saw. Detective Salluom made these determinations
by matching Rogers’s fingerprints with those from the pawn shop cards. Detective
Salluom then contacted Rogers, whose residence was “less than a quarter mile” from
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Robinett’s warehouse, and interviewed him. Rogers admitted that he had pawned the
items but denied stealing them or knowing that they were stolen. He claimed he had
purchased the items from a Hispanic man named Chris because he needed the tools to
rehabilitate houses. However, Rogers gave no further description or information about
Chris.
On January 20, 2012, the State charged Rogers with three counts of class D felony
theft. During Rogers’s initial hearing on January 23, 2012, the trial court advised Rogers
of his right to a jury trial. On August 20, 2012, Rogers filed a waiver of jury trial notice
indicating that on July 9, 2012, he had signed a waiver of jury form. The form stated:
The Defendant understands that a jury consists of six fair and impartial
members of the community selected to sit and listen to the evidence
presented in this case and decide whether the defendant is not guilty or
guilty of the crimes(s) charged. The Defendant understands that if accepted
by the Court, the waiver of jury trial means that a judge, and not a jury,
would sit and hear the evidence in this case. The Defendant hereby freely
and voluntarily waives his right to a trial by jury and asks that this case be
set for trial by the Court without intervention of a jury.
Appellant’s App. p. 1.
Rogers’s bench trial commenced on October 15, 2012. However, before the trial
began, the trial court stated that it had taken Rogers’s jury trial waiver under advisement
and informed him that he had an absolute right to have the matter tried before a jury. The
trial court also explained to Rogers how a jury would be selected and how the jury
members would reach their decision, including the fact that the jury would consist of six
individuals, all of whom would have to agree on a verdict. The trial court specifically
4
asked Rogers if giving up his right to a jury trial was his own decision, and he agreed that
it was. Finally, the trial court asked Rogers if he wished to give up his right to a jury trial
and have the matter tried before the trial court. Rogers, after speaking privately with his
counsel, answered affirmatively.
The trial court accepted Rogers’s waiver of his right to a jury trial, and the bench
trial proceeded. The trial court found Rogers guilty of three counts of theft and sentenced
him to concurrent terms of seven hundred and thirty days in the DOC, with some of the
time suspended to probation and home detention. Rogers now appeals.
DISCUSSION AND DECISION
I. Waiver of Jury Trial
Rogers first contends that he did not knowingly, voluntarily, and intelligently
waive his right to a trial by jury. Specifically, Rogers asserts that his convictions must be
reversed because he did not affirmatively waive his right to a trial by jury and that the
record fails to reflect his execution of any written waiver of a trial by jury or the fact that
he understood the contents of that waiver prior to its being filed on his behalf.
Article 1, Section 13 of the Indiana Constitution guarantees criminal defendants
the right to a trial by jury. A person charged with a felony has an automatic right to a
jury trial; the defendant is presumed not to waive this right unless he affirmatively acts to
do so. Poore v. State, 681 N.E.2d 204, 207 (Ind. 1997). A defendant may waive this
right if he does so in an intelligent and voluntary manner. Id. at 206. A valid waiver of
this right requires “that an assent by the defendant be personally reflected in the record
5
before the trial begins either in writing or in open court.” Kellems v. State, 849 N.E.2d
1110, 1112 (Ind. 2006). This is to assure that the waiver is “made in a knowing,
intelligent, and voluntary manner, with sufficient awareness of the surrounding
circumstances and the consequences.” Id. “Thus, it is the duty of the trial court ‘to
assume in a criminal case that the defendant will want a trial by jury,’ unless the
defendant personally indicates a contrary desire in writing or verbally in open court.’’ Id.
(quoting Perkins v. State, 541 N.E.2d 927,927 (Ind. 1989). This waiver must be made
part of the record “so that the question of an effective waiver can be reviewed even
though no objection was made at trial.” Id.
Here, Rogers argues that the filing of his written waiver was insufficient to show
that he affirmatively waived his right to a jury trial. However, Rogers has failed to
provide this court with a copy of his written waiver, and we therefore find that Rogers
has waived his appellate rights with respect to this claim.
The Indiana Appellate Rules impose on defendants the duty to submit to this Court
“documents from the Clerk’s record in chronological order that are necessary for the
court to decide the issues presented.” Ind. Appellate Rule 50(A)(2). More particularly,
an appellant must see that the record proceeding contains all pleadings, papers, and
transcripts of testimony that have any bearing on the error he is alleging. Turner v. State,
508 N.E.2d 541, 543 (Ind. 1987). Failure to present a complete record that such an
intelligent review of the issues may be made results in waiver of the alleged errors. Id.
6
As noted above, Rogers did not present this Court with the form he signed waiving
his right to a jury trial and thus has not provided this Court with a sufficient record to
enable us to review his claim that he did not knowingly, voluntarily, and intelligently
waive his right to a trial by jury. Thus, he has waived the issue.
Waiver notwithstanding, the record clearly shows that on July 9, 2012, Rogers
signed a form waiving his right to a trial by jury. Appellant’s App. p. 1. Moreover, the
October 15, 2012 colloquy between the trial court and Rogers before his trial shows that
Rogers’s waiver was knowing, voluntary, and intelligent. The trial court advised Rogers
concerning his rights to a jury trial and the differences between a jury trial and a bench
trial before accepting his waiver. Tr. p. 1-4. At no point during this colloquy did Rogers
object to a bench trial. Accordingly, it is apparent to us that Rogers not only waived his
right to a jury trial in writing, but he also did so in open court.
II. Sufficiency of the Evidence
Rogers next contends that there was insufficient evidence to support his theft
conviction. In reviewing sufficiency of the evidence claims, we will not reweigh the
evidence or assess the credibility of the witnesses, considering instead only the evidence
supporting the conviction and any reasonable inferences that may be drawn from that
evidence. Gonzalez v. State, 908 N.E.2d 338, 340 (Ind. Ct. App. 2009). We will affirm
if there is substantial evidence of probative value to support the conviction. Cox v. State,
774 N.E.2d 1025, 1028-29 (Ind. Ct. App. 2002).
7
To convict Rogers of class D felony theft of Robinett’s drill, generator, jigsaw,
water pump and concrete saw, the State had to prove beyond a reasonable doubt that
Rogers knowingly or intentionally exerted unauthorized control over Robinett’s property
with the intent to deprive Robinett of any part of the property’s value or use. Ind. Code §
35-43-4-2.5(b).
Although Rogers does not deny that he possessed and sold Robinett’s tools and
generator to the pawn shop, he denies stealing the items or having any knowledge that
they were stolen. Instead, Rogers claims that he purchased the items from a Hispanic
man named Chris for the purpose of using the tools to rehabilitate houses. Tr. p. 24.
However, Rogers’s claims merely amount to a request to reweigh the evidence, which we
may not do.
A theft conviction may be sustained solely by circumstantial evidence. Bennett v.
State, 871 N.E.2d 316 (Ind. Ct. App. 2007). Here, the record shows that on December
13, 2011, the day Robinett’s alarm was set off, Rogers had possession of Robinett’s tools
because he pawned Robinett’s drills, generator, and jigsaw on that day. Rogers also
pawned the remaining missing items by the end of the month. Tr. p. 17-22. The short
time frame between the time when Rogers obtained possession of the tools and the time
when he pawned the items could have led a reasonable fact finder to infer that Rogers had
no intention of using the items for rehabilitating houses as he claimed but instead that he
had participated in their theft. This inference is further supported by the fact that Rogers
lived less than one quarter mile from Robinett’s business.
8
Rogers finally contends that because the State failed to prove when Robinett’s
items went missing, the State must show exclusive possession of the items by him during
the time they were missing from Robinett’s business to the time they were discovered at
the pawn shop. Id. at 13. In support of this contention, Rogers relies on Williams v.
State, 714 N.E.2d 671 (Ind. Ct. App. 1999). In Williams, this Court held that when the
length of time between the theft and the discovery of the property in the defendant’s
possession is not recent, there must be a showing that the defendant’s possession was
exclusive. 714 N.E.2d at 673. However, Rogers apparently overlooks the corresponding
rule stated in Williams that when the length of time between the theft and possession of
stolen property is short, that fact in and of itself supports an inference of theft involving
that property. Id. Here, where Rogers possessed several of the stolen items the very
same day, the inference is that those items were stolen. Thus, this argument fails.
Conclusion
In conclusion, Rogers waived his contention that his written waiver of a trial by
jury was not knowingly, voluntarily, and intelligently made. Waiver notwithstanding, we
conclude that no error was committed because Rogers not only waived his right to a trial
by jury in writing, he also did so in open court. Finally, we conclude that sufficient
evidence existed to support Rogers’s convictions for three counts of class D felony theft.
The judgment of the trial court is affirmed.
MAY, J., and MATHIAS, J., concur.
9
Phillip Rogers v. State of Indiana
Combined Opinion