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).
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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.
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[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
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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).
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“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
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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.
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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:
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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.
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[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)).
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[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).
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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
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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.
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