Jeffrey Duncan v. State of Indiana ( 2014 )

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
establishing the defense of res judicata, May 28 2014, 10:27 am
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SCOTT KNIERIM GREGORY F. ZOELLER
The Law Office of Scott Knierim, LLC Attorney General of Indiana
Danville, Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JEFFREY DUNCAN, )
)
Appellant-Defendant, )
)
vs. ) No. 32A01-1310-CR-456
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Stephanie Lemay-Lukin, Judge
Cause No. 32D05-1203-CM-307
May 28, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Jeffrey Duncan (“Duncan”) was convicted in Hendricks Superior Court of Class A
misdemeanor operating a vehicle with a blood alcohol concentration (“BAC”) equivalent
to .15 and determined to be an habitual substance offender. The trial court sentenced
Duncan to 365 days in the Hendricks County Jail and 365 days probation. Duncan raises
two issues on appeal, which we restate as follows:
I. Whether the evidence presented by the State is sufficient to support the trial
court’s determination that Duncan is an habitual substance offender, and
II. Whether the trial court properly advised Duncan of the consequences of failing
to timely request a jury trial.
We affirm.
Facts and Procedural History
In the early morning hours of March 9, 2012, John Lee Parker (“Parker”) was
watching television in his home when he heard a vehicle pull into the driveway that
Parker’s home shared with two other houses. When Parker looked out a window of his
home, he saw a black vehicle in the driveway. Parker and his wife watched as Duncan,
who was one of their neighbors, exit the passenger’s side of the vehicle. The vehicle
departed and Duncan stumbled toward a nearby pole barn, then back to the driveway.
The Parkers continued to watch Duncan for about an hour, during which time they saw
Duncan talk to himself, shadowbox with himself, fall to the ground, stagger against the
Parkers’ fence and urinate in the driveway. Eventually, Duncan got into his truck, twice
attempted to start the engine, revved the engine, accelerated, drove over a concrete
parking block, crashed his truck into the Parkers’ fence, and finally exited the truck and
fled into his own residence.
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The Parkers called the police and Hendricks County Sheriff’s Deputies Kyle
Schaefer (“Deputy Schaefer”) and Jeffrey Hughes (“Deputy Hughes”) arrived at the
scene a few minutes later, at approximately 1:30 a.m. and 1:40 a.m., respectively. The
deputies knocked on Duncan’s door. When Duncan answered the door, the deputies
observed that Duncan’s speech was slurred; his eyes were glassy, unfocused, and
bloodshot; his stance was unsteady; and he smelled of alcohol. Duncan told the deputies
that he did not know how his truck had crashed into the Parkers’ fence. However, the
deputies located the keys to the truck in Duncan’s pocket. Duncan admitted that he had
been drinking that night at a local bar but claimed that he had not consumed any alcohol
since his return home.
The deputies transported Duncan to the Hendricks County Jail where Deputy
Hughes administered the horizontal gaze nystagmus and walk-and-turn field sobriety
tests, both of which Duncan failed. Deputy Hughes also administered a chemical breath
test. The results of the test indicated that Duncan had a BAC of .18.
On March 9, 2012, the State charged Duncan with Class A misdemeanor operating
a vehicle while intoxicated endangering a person, Class A misdemeanor operating a
vehicle with a BAC equivalent to .15, and being an habitual substance offender. An
initial hearing was held the same day, at which the trial court set a bench trial and
omnibus date for May 3, 2012. At the hearing, Duncan was advised of his rights via a
video. The video stated, in relevant part:
You have the Right to a public and speedy trial by jury. If you request a
speedy trial, I will set your case for trial within 70 days from today’s date.
If you are charged with a felony, your case will automatically be set for a
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jury trial. If you are charged with a misdemeanor only, you must make a
written request for a jury trial not later than 10 days before the trial date.
Tr. p. 5.
On August 31, 2012, a hearing was held via “video court” at which Duncan was
again advised of his rights via a video. The video stated, in relevant part:
You have the Right to a public and speedy trial by jury. If you request a
speedy trial, I will set your case for trial within 70 days from today’s date.
If you are charged with a felony, your case will automatically be set for a
jury trial. If you are charged with a misdemeanor only, you must make a
written request for a jury trial not later than 10 days before the trial date.
Tr. p. 18.
On November 28, 2012, the trial court held a hearing at which the following
exchange occurred between defense counsel and the trial court:
Counsel: Your honor, I am the third attorney that’s been on this case. I
know it’s been pending for a while. Mr. Duncan has informed me that he
wishes to request a Jury Trial. Uh, I wanted to make the court . . .
Court: And it’s far too late for that.
Counsel: Okay.
Court: You have to request that within ten (10) days of the omnibus date.
At your initial hearing sir, there was a video tape that informed you of that.
And that if you failed to do that you would uh, you waived your right to a
jury trial. So I won’t be setting a jury trial in this case. So, do you want me
to set a bench trial, Ms. Sauer?
Counsel: Yes Judge…
Tr. pp. 27-28.
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On October 7, 2013, the trial court held a bifurcated bench trial.1 The court found
Duncan guilty of operating a vehicle with a BAC of .15 or more. During the habitual
substance offender phase, the State submitted four exhibits establishing Duncan’s prior
convictions, including several Bureau of Motor Vehicle photographs of Duncan, his
social security number, his driver’s license number, and his date of birth. The trial court
found Duncan to be an habitual substance offender. The trial court ordered Duncan to
serve an aggregate sentence of 730 days in the Hendricks County Jail, with 365 days
suspended to probation.
Duncan now appeals.
I. Habitual Offender Enhancement
Duncan first argues that the State’s evidence during the habitual offender phase of
the trial was insufficient to establish Duncan’s identity.
Indiana Code section 35-50-2-10, the habitual substance offender statute, provides
that:
(b) The state may seek to have a person sentenced as an habitual substance
offender for any substance by alleging, on a page separate from the rest of
the charging instrument, that the person has accumulated two (2) prior
unrelated substance offense convictions.
(c) After a person has been convicted and sentenced for a substance offense
committed after sentencing for a prior unrelated substance offense
conviction, the person has accumulated two (2) prior unrelated substance
offense convictions.
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The bench trial was continued several times for various reasons.
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Thus, to sustain a sentence under the habitual offender statute, the State must
demonstrate that the defendant was twice convicted and twice sentenced. Devore v.
State, 650 N.E.2d 37, 40 (Ind. Ct. App. 1995).
Duncan argues that the State provided insufficient evidence as to Duncan’s two
prior offenses because it produced no witnesses to testify about his offenses, but, instead,
offered only documentation. He asserts that the State “did not, at any point in this portion
of the trial identify Jeffrey Duncan, [or] provide one witness to show how the defendant
would have been connected as the same person in the documentation submitted to the
Court.” Appellant’s Br. at 5.
The record shows that in 2000, Duncan was convicted of operating a vehicle while
intoxicated and in 2004, he was convicted of operating a vehicle while intoxicated with a
prior. To prove the prior two convictions, the State offered into evidence nine of
Duncan’s most recent driver’s license photographs from the Bureau of Motor Vehicles,
five of which depicted Duncan with a distinctive eyebrow ring over his left eye. The
State also submitted documentation noting Duncan’s birth date, social security number,
driver’s license number, and physical characteristics, including his gender, height, weight,
hair, and eye color. The trial court viewed the evidence submitted by the State, observed
Duncan in person, and determined that the “Jeffrey Duncan” present in the courtroom
was the same “Jeffrey Duncan” depicted in the photographs and described in the State’s
documents. Duncan’s request that we conclude otherwise is merely a request to reweigh
the evidence, which we will not do. See Meredith v. State, 503 N.E.2d 880, 883 (Ind.
1987) (“since the State introduced properly authenticated commitment papers of one
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‘Frederick Meredith’ which contained both photographs, and a description of his physical
characteristics, including weight, height, age, hair and eye color, complexion, and build,
the jury’s conclusion that Appellant was the same ‘Frederick Meredith’ who had
accumulated these two prior felony conviction was justified. To hold otherwise would be
to reweigh the evidence, which we cannot do.” internal citations omitted).
Under these facts and circumstances, we conclude there was sufficient evidence to
support Duncan’s habitual offender enhancement.
II. Waiver of Jury Trial
Duncan next argues that he was unlawfully denied the right to a jury trial. The
right to a jury trial is guaranteed by the Indiana and United States Constitutions. Young v.
State, 973 N.E.2d 643, 645 (Ind. Ct. App. 2012). In Indiana, the right to a jury trial is
further guaranteed by Indiana Code section 35-37-1-2, which provides that all criminal
trials be tried to a jury unless there is a joint waiver by the defendant, the prosecutor, and
the trial judge.
However, in misdemeanor cases, the right to a jury trial is not self-executing but is
controlled by Indiana Rule of Criminal Procedure 22 (“Criminal Rule 22”). Liquori v.
State, 544 N.E.2d 199, 201 (Ind. Ct. App. 1989). Criminal Rule 22 provides, in relevant
part:
A defendant charged with a misdemeanor may demand a trial by jury by
filing a written demand therefor no 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 a waiver by his of trial by jury unless
the defendant has not had at least fifteen (15) days advanced notice of his
scheduled trial date and of the consequences of his failure to demand a trial
by jury.
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Thus, when charged with a misdemeanor, a defendant can waive his right to a jury
trial by failing to make a timely demand for trial by jury. Belazi v. State, 525 N.E.2d
351, 352 (Ind. Ct. App. 1988), trans. denied. Furthermore, although a defendant must be
advised of his constitutional right to a jury trial, an advisement of his rights and the
consequences of failure to make a timely demand is sufficient to act as a waiver of said
right. Combs v. State, 533 N.E.2d 1241, 1242 (Ind. Ct. App. 1989).
Duncan claims that the two advisements he received “did not include language
that advised the defendant the consequences of not filing a written waiver within ten (10)
days. There was no mention of it constituting a waiver of his jury trial, nor any language
stating that he would then never be allowed to have a Jury Trial.” Appellant’s Br. at 7.
Duncan’s claim is without merit. The trial court advised Duncan of his right to a
jury trial twice, on March 9, 2012 and again on November 28, 2012. Both times, the trial
court notified Duncan that he “must make a written request for a jury trial not later than
10 days before the trial date.” Tr. pp. 5, 18. In its advisement, the trial court also
distinguished between a felony case, which is automatically set for jury trial, and a
misdemeanor case, where a written request for jury trial must be made. Implicit in these
advisements is the principle that if Duncan failed to request a jury trial no later than ten
days before trial, he waived the right. And, importantly, Duncan does not claim that he
was misled by the advisement or that he believed that he would receive a jury trial.
Therefore, we conclude that the advisements given Duncan were sufficient to notify him
of the consequences of his failure to timely request a jury trial. See Liquori v. State, 544
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N.E.2d 199 (Ind. Ct. App. 1989) (holding that trial judge’s statement to defendant that
defendant’s misdemeanor case was not currently set for jury trial and that in order to
secure his right to jury trial, he had to request it within certain time period was sufficient
to notify defendant that consequence of his failure to timely file request for jury trial was
bench trial).
Conclusion
For all of these reasons, we conclude that the State presented sufficient evidence to
support Duncan’s habitual offender enhancement and that the advisements the trial court
gave Duncan were sufficient to notify him of the consequences of his failure to timely
request a jury trial.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.
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