MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
May 25 2017, 8:35 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard Barber, May 25, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1608-CR-1847
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Ronnie Huerta,
Appellee-Plaintiff. Commissioner
Trial Court Cause No.
49G24-1501-F6-34
Bailey, Judge.
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Case Summary
[1] Following a bifurcated trial, Richard Barber (“Barber”) was convicted of
Possession of Marijuana, as a Class B Misdemeanor, 1 and Operating a Vehicle
While Intoxicated (“OVWI”), as a Level 6 felony.2 Barber was also adjudicated
a habitual vehicular substance offender.3 Barber now appeals, presenting the
consolidated and restated issue of whether his right to a jury trial was violated.
[2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[3] At some point after midnight on January 1, 2015, Officer Stacie Hanks
(“Officer Hanks”) of the Indianapolis Metropolitan Police Department
(“IMPD”) was driving home after a shift. While Officer Hanks was waiting at
a stoplight, she saw a vehicle drive onto a median. Officer Hanks pulled behind
the vehicle. She then used her phone flashlight, peered into the vehicle, and
could see the outline of someone inside. Officer Hanks observed that the
vehicle’s doors were locked, and no one responded to her knocks. At this point,
1
Ind. Code § 35-48-4-11(a)(1). We refer throughout to the substantive provisions of the Indiana Code in
effect at the time of Barber’s offenses.
2
I.C. §§ 9-30-5-2, -5-3(a)(1).
3
I.C. § 9-30-15.5-2.
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IMPD Officers Michael Kasper (“Officer Kasper”) and Darryl Miller (“Officer
Miller”) arrived and took over the investigation.
[4] Officer Kasper and Officer Miller could see a man—later identified as Barber—
unconscious in the driver’s seat. The officers knocked on the window and
shook the vehicle, but Barber did not respond. After obtaining a lockout kit, the
officers unlocked the car, and began yelling at Barber and shaking him. When
Barber did not respond, Officer Kasper called for emergency medical services.
[5] While waiting for medical assistance, Officer Kasper rubbed Barber’s sternum,
attempting to wake him. Barber then woke up, and the officers tried to remove
him from the vehicle. Barber was unable to stand on his own. His breath
smelled of alcohol, and his clothes smelled of raw marijuana. Barber was in
and out of consciousness while the officers interacted with him. His eyes were
glassy and his speech was slurred. Barber was arrested.
[6] While searching Barber, the officers found a Crown Royal bag in his jacket
pocket with approximately thirty-four grams of marijuana. Barber’s pants
pockets contained a small baggie of marijuana and a digital scale. Officer
Kasper also saw an empty bottle of alcohol on the vehicle floorboard.
[7] The State charged Barber with Operating a Vehicle While Intoxicated, and
sought a felony elevation, alleging that Barber had a prior conviction within five
years. The State also charged Barber with Possession of Marijuana, and alleged
that Barber was a habitual vehicular substance offender. A trial was scheduled
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for April 19, 2016, and before the jury was selected, Barber’s counsel advised
the trial court as follows:
Counsel: In the event that we go to the second and
third phases, the [elevation] for the felony
OVWI, and then the habitual [vehicular
substance offender enhancement] . . . we
would stipulate to the prior convictions.”
Trial Court: All right. So in the event that it is necessary
to go to a second or a third phase, defense[,]
you agree that you would waive your right to
trial by jury on that, correct?
Counsel: Yes.
[8] (Tr. at 4-5.) A jury trial commenced and Barber was found guilty of Possession
of Marijuana, as a Class B misdemeanor, and Operating a Vehicle While
Intoxicated, which would independently constitute a Class A misdemeanor.
After the jury returned its verdict, the following exchange occurred:
Trial Court: All right. Before all of the jurors are gone,
are you going to waive the next two phases[,]
Mr. Colasessano?
Counsel: Yes, Judge. Yes.
Trial Court: All right. We’ll show then - are you okay
with that[,] Mr. Skates?
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State: Yeah. I think . . . my understanding is that
basically they were stipulating on the basis of
the underlying.
Trial Court: Okay. All right. That’s what we’ll do then.
We’ll show that the parties stipulate that
there was a prior OVWI [that] would
enhance it to the Level 6 Felony. Is that
correct?
Counsel: Yes.
Trial Court: All right, and because of that, then there will
be a third phase [because] he is also charged
with HVSO. And you agree that because of
having the prior and now this [OVWI,] that
qualifies him to be a HVSO. Is that correct?
Counsel: Yes.
(Tr. at 67-68.)
[9] The trial court then set the matter for sentencing. On July 19, 2016, a
sentencing hearing was held. Barber was sentenced on the Level 6 felony and
Class B misdemeanor, and received a habitual offender sentence enhancement.
His aggregate sentence was seven and one-half years.
[10] This appeal ensued.
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Discussion and Decision
[11] Barber argues that there was no valid waiver of his right to a jury trial, and
seeks a new trial on his felony elevation and habitual offender enhancement.
The validity of a jury trial waiver is a question of law, which we review de novo.
Horton v. State, 51 N.E.3d 1154, 1157 (Ind. 2016).
[12] “A fundamental linchpin of our system of criminal justice is the right to a trial
by jury.” Kellems v. State, 849 N.E.2d 1110, 1112 (Ind. 2006). This right has
constitutional origins. See U.S. Const. amend. VI; Ind. Const. art. 1, § 13.
Moreover, in Indiana, waiver of this right is governed by Indiana Code section
35-37-1-2.4 Kellems, 849 N.E.2d at 1112. The Indiana Supreme Court has
concluded that this “statute, largely unchanged since its original enactment in
1852, confers the authority to waive on the defendant—not the defense
attorney.” Horton, 51 N.E.3d at 1158. In other words, “the right to jury
trial . . . may be waived by one, and only one, person—the defendant. Unless
the defendant personally communicates to the judge a desire to waive that right,
he must receive a jury trial.” Id. at 1155; see Kellems, 849 N.E.2d at 1113-14.
Violation of the right to a jury trial is fundamental error, and cannot be
considered harmless. See Horton, 51 N.E.3d at 1160.
4
This statute provides: “The defendant and prosecuting attorney, with the assent of the court, may submit
the trial to the court. Unless a defendant waives the right to a jury trial under the Indiana Rules of Criminal
Procedure, all other trials must be by jury.” I.C. § 35-37-1-2.
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[13] Here, Barber was entitled to a jury trial on both the felony elevation and the
habitual enhancement. See Ind. Const. art. 1, § 13 (“In all criminal
prosecutions, the accused shall have the right to a public trial, by an impartial
jury”); see I.C. § 9-30-15.5-2(c) (providing that the “jury shall reconvene” for the
habitual phase in matters concerning habitual vehicular substance offenders).
The State does not dispute that Barber never personally waived his right to a
jury trial, as was required. Rather, the State argues that the error was invited.
[14] The “‘doctrine of invited error is grounded in estoppel,’ and forbids a party to
‘take advantage of an error that [he] commits, invites, or which is the natural
consequence of [his] own neglect or misconduct.’” Brewington v. State, 7 N.E.3d
946, 975 (Ind. 2014) (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)).
Even fundamental errors may be invited. Id. at 977.
[15] The State argues that the error was invited because Barber’s counsel stipulated
to certain facts as part of a strategic “effort to persuade the sentencing court that
he had accepted responsibility for his actions.” (Appellee’s Br. at 10.) Yet,
even assuming the stipulation was part of a sentencing strategy, we cannot say
that the stipulation—in and of itself—is what produced the instant error.
Indeed, a stipulation is a form of admission that is to be presented to the trier of
fact. See Stewart v. Alunday, 53 N.E.3d 562, 568 (Ind. Ct. App. 2016) (noting
that “evidentiary admissions can be accepted or rejected by the trier of fact” and
“judicial admissions are conclusive and binding on the trier of fact”). Here,
absent valid waiver, the proper trier of fact was the jury, and the jury could have
received the stipulation. Thus, the effect of a stipulation, standing alone, is not
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to convert a jury trial into a bench trial. Rather, here, the error arose not from
the stipulation, but from an invalid jury trial waiver that the trial court accepted.
Thus, we cannot say that Barber invited the error by electing to stipulate.5
[16] Under these circumstances, there was no valid waiver of Barber’s right to a jury
trial, and Barber did not invite the error.6 The trial court therefore erred in
depriving Barber of a jury trial on the OVWI felony elevation and the habitual
offender enhancement, and a new trial is warranted on these allegations.7
Conclusion
[17] The trial court erred in conducting a bench trial on certain allegations without
obtaining a valid jury trial waiver. We affirm Barber’s conviction of Possession
5
The State also points out that Barber’s counsel requested dismissal of the jury, but such a request cannot
constitute invited error, else the personal-waiver requirement would be rendered meaningless. Moreover, in
arguing invited error, the State directs us to reasoning articulated in Bunting v. State, 854 N.E.2d 921 (Ind. Ct.
App. 2006), trans. denied, a case in which this Court determined that the right to a jury trial was not violated.
Bunting, however, is distinguishable. In that case, after the jury had returned a guilty verdict, defense counsel
advised the trial court of a stipulation concerning the existence of a prior conviction. Thereafter, the jury was
dismissed without objection, and the defendant personally admitted in open court to having the prior
conviction. Thus, in Bunting, there was at least some degree of personal communication by the defendant
indicating the defendant’s personal desire to waive his right to a jury trial. Here, however, there was no such
personal communication.
6
We note that even if we were to conclude that Barber invited the error, we reach the merits through this
opinion as a matter of judicial economy to preclude a likely post-conviction proceeding based on ineffective
assistance of counsel on this issue.
7
Barber also argues that the stipulation lacked detail, such that there is insufficient evidence to support his
felony elevation and habitual enhancement. We disagree. Although the stipulation could have been more
artfully executed, the stipulation indicated that Barber had a prior OVWI that would enhance the instant
OVWI to a Level 6 felony and that, because of the instant OVWI, he was a habitual vehicular substance
offender. Based on these admissions, a reasonable factfinder could find Barber guilty. See Griffith v. State, 59
N.E.3d 947, 958 (Ind. 2016) (stating that we will reverse on a sufficiency-of-the-evidence claim only if “no
reasonable factfinder could find the defendant guilty”).
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of Marijuana and leave intact the jury verdict concerning OVWI as a Class A
misdemeanor. We vacate the OVWI felony elevation and the habitual offender
adjudication, and remand for a new trial on these allegations.
[18] Affirmed in part, reversed in part, and remanded with instructions.
Vaidik, C.J., and Robb, J., concur.
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