Brandon Mockbee v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 16 2018, 10:43 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandon Mockbee, March 16, 2018
Appellant-Defendant, Court of Appeals Case No.
15A01-1703-CR-483
v. Appeal from the Dearborn Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff Humphrey, Judge
Trial Court Cause No.
15C01-1607-F5-49
Crone, Judge.
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Case Summary
[1] Brandon Mockbee was convicted, following a jury trial, for two counts of level
5 felony burglary and one count of level 6 obstruction of justice. The jury also
found that he was a habitual offender. The trial court sentenced him to
consecutive terms of six years for each burglary, two and one-half years for
obstruction of justice, and six years for the habitual offender enhancement, for
an aggregate sentence of twenty and one-half years. Mockbee appealed,
asserting that the State presented insufficient evidence to support the habitual
offender enhancement and his obstruction of justice conviction. He also
claimed that the trial court abused its discretion in admitting certain evidence,
in denying his motion for severance, and in revoking his right to represent
himself at trial.
[2] In November 2017, after finding the evidence sufficient to support the habitual
offender enhancement and obstruction of justice conviction, and concluding
that the trial court did not abuse its discretion, we issued a memorandum
decision affirming Mockbee’s convictions and sentences in Mockbee v. State, No.
15A01-1703-CR-483, 2017 WL 5352718 (Nov. 14, 2017), trans. granted. After
we issued our decision, Mockbee petitioned for transfer. Ten days later, our
supreme court handed down Johnson v. State, 87 N.E.3d 471 (Ind. 2017), and
Calvin v. State, 87 N.E.3d 474 (Ind. 2017). Mockbee filed a reply brief in
support of transfer citing Johnson and Calvin, and our supreme court
subsequently issued an order granting transfer, vacating our decision, and
remanding the appeal for us to reconsider in light of Johnson and Calvin. See
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Mockbee v. State, No. 18S-CR-111, 2018 WL 1007816 (Feb. 22, 2018). Upon
such reconsideration, we affirm Mockbee’s convictions and sentences, but we
reverse the habitual offender enhancement and remand to the trial court for
further proceedings.
Facts and Procedural History
[3] On June 16, 2016, at 11:45 p.m., officers responded to a report from an alarm
company that “there was glass breakage” at Hibbett Sports in Aurora. Tr. Vol.
6 at 34. When they arrived, they observed that the front door was shattered and
a large rock was about ten feet inside the store. After investigating, officers
discovered that “a large quantity of the Air Jordan merchandise and Cincinnati
Reds merchandise was missing.” Id. at 33. Surveillance video obtained from a
nearby business revealed that a white vehicle was seen leaving Hibbett Sports at
the time of the burglary.
[4] Then, on June 27, 2016, at 11:02 p.m., officers responded to a similar report
from Tri-State Battery in nearby Lawrenceburg. Upon arrival, officers observed
that the front glass door had been smashed with “what appeared to be a red
paver, or a red round stone.” Id. at 213-14. Items such as a generator, some
water pumps, and a weed trimmer were missing. Also, two cash drawers were
gone. Lawrenceburg Police Department Detective Nicholas Beetz was
summoned to the scene. Detective Beetz recalled seeing a media release
regarding the Hibbett Sports burglary a few days earlier. When Detective Beetz
and the owner of Tri-State Battery, Terry Miller, arrived and walked around the
property, they noticed that there was an “electronic transformer box behind the
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building had been knocked off its base several inches.” Id. at 214. Surveillance
video showed a 2010 to 2012 Nissan Versa back into the transformer box
causing damage to the vehicle. The driver then drove to the front of the
building, opened the hatch of the vehicle, appeared to grab something, and then
proceeded “to throw the object inside and through the window of the business.”
Id. at 220. The suspect was “obviously wearing a light colored shirt, light
colored gloves, some sort of concealment around the face, a Cincinnati Reds
hat, dark pants and white shoes.” Id. The video showed the person going into
the store and carrying items out.
[5] Detective Beetz sent a text message to Aurora Police Department Detective
Vern McBride, the officer investigating the Hibbett Sports burglary, to let him
know about the similarities between the two crimes. Detective Beetz also asked
Miller to review Tri-State Battery’s surveillance video to see if the suspect had
been scoping out the business in the days leading up to the burglary. Miller
identified a person, and a vehicle, matching the suspect on video from June 23,
2016. The person had on white shoes, black socks, red basketball shorts, and a
white Air Jordan shirt. The person peered inside the front door and the side
window of the business for several seconds.
[6] In addition to having Miller review the surveillance video, Detective Beetz
gathered more information regarding the Nissan Versa vehicle seen in the
video. The vehicle in the video had a front vanity license plate as well as a rear
license plate. The vehicle also had a decal on the rear hatch and damage to the
right rear bumper where it struck the electrical box. Detective Beetz eventually
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discovered a vehicle matching the one in the surveillance video registered to
Rosalie Rahn in Mount Healthy, Ohio. Detective Beetz traveled to Ohio to
speak with Rahn about her vehicle. When the detective arrived, Rahn
immediately asked him if he was there about her grandson, Mockbee. Rahn
informed Detective Beetz that she had loaned her vehicle to Mockbee during
the relevant time frame. Rahn also told authorities that Mockbee was in a
relationship with a woman named Melissa Holley who drove a white vehicle.
Upon hearing this information, Detective Beetz recalled that a white vehicle
had been involved in the burglary at Hibbett Sports. Detective Beetz showed
Rahn some still photographs taken from the Tri-State Battery video surveillance
on June 23, and Rahn identified the suspect as Mockbee.
[7] Detectives Beetz and McBride gathered information regarding both Mockbee
and Holley. They determined that there was an open Department of Child
Services (“DCS”) investigation involving Holley’s children and that Holley was
living at a North Vernon residence owned by Donna Lacey. The detectives
spoke with Holley’s DCS caseworker, Elizabeth Beesley. Beesley informed the
detectives that in June 2016, Mockbee and Holley had a physical altercation at
Lacey’s house during which the children were present. Mockbee was banned
from Lacey’s residence, and DCS planned to check on the children thirty days
following the incident. Beesley told the detectives that she planned to go to
Lacey’s residence that day and asked the detectives if they would like to
accompany her. The detectives accompanied Beesley to Lacey’s residence so
that they could speak with Holley and/or Mockbee.
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[8] When Beesley and the detectives arrived, they knocked on the door. Lacey was
disabled, so her caretaker answered the door. Beesley had met the caretaker on
a prior occasion at Lacey’s residence. Beesley asked if she and the dectectives
could enter the residence to speak to Lacey, and the caretaker invited them into
the home. The caretaker led the detectives to Lacey’s bedroom. As they
walked by the open door to one of the other bedrooms, the detectives could see
several articles of clothing that were consistent with items stolen from Hibbett
Sports. The officers spoke with Lacey and explained to her why they were
there, and she consented to a search of her house, garage, and shed. The
officers subsequently obtained and executed a search warrant for the residence.
Several items were found that were consistent with the items stolen from
Hibbett Sports.
[9] Later that evening, Mockbee, driving Holley’s white vehicle, came to Lacey’s
residence. He was accompanied by Holley, and was dressed in a Cincinnati
Reds hat, white Nike shirt, red shorts, and white shoes. These apparel items
were consistent with what the suspect wore in the Tri-State Battery surveillance
video. Officers searched Holley’s vehicle and discovered several items stolen
from Hibbett Sports, as well as burglary tools such as a black mask, gloves,
rocks, a crowbar, bolt cutters, and a pry bar. Glass fragments that matched the
glass doors from Hibbett Sports and Tri-State Battery were also found in
Holley’s vehicle. Holley admitted to police that Mockbee burglarized Hibbett
Sports. Both Mockbee and Holley were arrested. Mockbee was transported to
the Dearborn County Law Enforcement Center.
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[10] The State originally charged Mockbee with two counts of level 5 felony
burglary and one count of level 5 felony conspiracy to commit burglary.
However, authorities later discovered that during the booking process at the
Dearborn County Law Enforcement Center, Mockbee threw the red shorts he
had been wearing in the garbage can instead of putting them in his property bin
as instructed. Consequently, the State amended the charging information to
include a charge of level 6 felony obstruction of justice. The State also alleged
that Mockbee was a habitual offender based on numerous prior Ohio
convictions. A jury trial was held from December 5-16, 2016. The jury found
Mockbee guilty of both counts of burglary, obstruction of justice, and being a
habitual offender. The jury found him not guilty of conspiracy to commit
burglary. The trial court sentenced Mockbee to consecutive terms of six years
for each burglary, two and one-half years for obstruction of justice, and six
years for being a habitual offender, for an aggregate sentence of twenty and one-
half years.1 This appeal ensued.
1
It appears that the trial court failed to attach the six-year habitual offender sentence enhancement to one of
Mockbee’s underlying felonies. See Ind. Code § 35-50-2-8(j) (habitual offender finding is not separate crime,
but an enhancement that attaches to felony conviction with highest sentence imposed). However, because
we reverse the habitual offender enhancement, we need not address this issue any further at this time.
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Discussion and Decision
Section 1 – The State presented insufficient evidence to
support the habitual offender enhancement.
[11] Mockbee first asserts that the State presented insufficient evidence to support
the habitual offender enhancement. Specifically, he argues that his prior Ohio
convictions are not “serious enough to qualify as prior convictions for purposes
of Indiana’s habitual offender statute[s].” Appellant’s Br. at 22. Upon a
challenge to the sufficiency of the evidence to support a habitual offender
enhancement, this Court neither reweighs the evidence nor judges the
credibility of the witnesses; rather, we examine only the evidence most
favorable to the judgment, together with all the reasonable and logical
inferences to be drawn therefrom. Woods v. State, 939 N.E.2d 676, 677 (Ind. Ct.
App. 2010), trans. denied (2011).
[12] The statute in effect at the time Mockbee committed his offenses provided that
for a person convicted of a level 5 felony to be adjudicated a habitual offender,
the State must prove beyond a reasonable doubt that the person has been
convicted of two prior unrelated felonies, “at least one of which is not a Level 6
or Class D felony,” and, if one of the alleged prior unrelated felonies is a “Level
5 or 6, or Class C or D felony,” that “not more than ten (10) years have elapsed
between the time the person was released from imprisonment, probation or
parole (whichever is latest) and the time the person committed the current
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offense.” Ind. Code § 35-50-2-8(c) (2016).2 See id. Indiana Code Section 35-50-
2-1(a) defines “Level 6 felony conviction” as follows:
(1) a conviction in Indiana for:
(A) a Class D felony, for a crime committed before July 1, 2014;
or
(B) a Level 6 felony, for a crime committed after June 30, 2014;
and
(2) a conviction, in any other jurisdiction at any time, with respect to
which the convicted person might have been imprisoned for
more than one (1) year.
(emphasis added).
[13] Here, to support the habitual offender enhancement, the State alleged that in
July 2001, in Hamilton County, Ohio, Mockbee was convicted of safecracking,
a fourth degree felony; in April 2002, in Hamilton County, Ohio, Mockbee was
convicted of robbery, a second degree felony; and in June 2012, in Scioto
County, Ohio, Mockbee was convicted of possession of drugs, a second degree
felony, theft of drugs, a third degree felony, tampering with evidence, a third
degree felony, one count of receiving stolen property, a fourth degree felony,
2
The legislature recently amended the statute to clarify that the “not more than” ten-year elapsed period
simply applies to “at least one” of the alleged prior unrelated felony convictions and not necessarily only to
alleged prior unrelated lower level felonies. Ind. Code § 35-50-2-8(c), -(d) (eff. July 31, 2017); see Johnson, 87
N.E.3d at 473 (concluding that plain meaning of prior version of subsection 8(d) required that each lower-
level felony State uses to establish subsection 8(d)(1) must meet ten-year requirement found in subsection
8(d)(2)).
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and five additional counts involving fifth degree felonies.3 In Calvin, our
supreme court held that under the plain meaning of Indiana’s habitual offender
statutes, all non-Indiana felonies count as level 6 felonies. 87 N.E.3d at 479.4
Thus, because all of Mockbee’s alleged prior unrelated felonies are Ohio
convictions, the State failed to prove that at least one of Mockbee’s alleged prior
unrelated felonies is not a level 6 or class D felony. Accordingly, we reverse the
habitual offender enhancement as unsupported by sufficient evidence and
remand to the trial court for retrial on the enhancement. See id. (citing Dexter v.
State, 959 N.E.2d 235, 240 (Ind. 2012), for proposition that “[R]etrial on a
sentencing enhancement based on a prior conviction is permitted even where
the enhancement is reversed because of insufficient evidence.”)
Section 2 – The State presented sufficient evidence to support
Mockbee’s obstruction of justice conviction.
[14] Mockbee next contends that the State presented insufficient evidence to support
his obstruction of justice conviction. When reviewing a claim of insufficient
evidence, we neither reweigh the evidence nor assess witness credibility. Bell v.
State, 31 N.E.3d 495, 499 (Ind. 2015). We look to the evidence and reasonable
inferences drawn therefrom that support the conviction, and will affirm if there
is probative evidence from which a reasonable factfinder could have found the
3
The trial court noted during sentencing that at the age of forty-one, Mockbee had been “convicted of 26
felonies and 20 misdemeanors for a total of 46 convictions.” Tr. Vol. 11 at 85.
4
Because we find Calvin dispositive, we need not discuss the implications, if any, of our supreme court’s
opinion in Johnson to the facts of this case.
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defendant guilty beyond a reasonable doubt. Id. In short, if the testimony
believed by the trier of fact is enough to support the conviction, then the
reviewing court will not disturb it. Id. at 500.
[15] To convict Mockbee of obstruction of justice, the State was required to prove
that he altered, damaged, or removed any record, document, or thing, with
intent to prevent it from being produced or used as evidence in any official
proceeding or investigation. Ind. Code § 35-44.1-2-2(a)(3). Here, the State
presented evidence that when Mockbee was arrested, “[h]e had a white Nike
shirt on and then he had red shorts that were consistent with the red shorts
[police] saw in the [Tri-State Battery] video from [June 23].” Tr. Vol. 7 at 79.
During the booking process at the law enforcement center, Mockbee was given
a bin and instructed to put all his clothing in the bin. Those items are “logged
in with any other property that the individual may have on his person” in order
“to keep track of it so when the time comes for them to leave, they would be
able to have their items back.” Tr. Vol. 8 at 22. However, a search warrant
later executed by officers revealed that although the red shorts had been logged
in, the shorts were missing from the bin. The shorts were the only item missing.
Officers viewed security camera footage from the booking area which showed
Mockbee throwing the shorts into the garbage can.5
5
The footage also showed another inmate retrieving the shorts from the garbage can. Officers were able to
speak to that inmate and to later locate and retrieve the shorts from a third inmate.
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[16] From the evidence presented, the jury could reasonably infer that Mockbee
threw his shorts in the garbage can with the intent to prevent the shorts from
being produced or used as evidence against him. The red shorts were the only
item of clothing that directly linked Mockbee to the Tri-State Battery video, and
as noted above, they were the only item that he was wearing during booking
that he did not put in the bin. The State presented sufficient evidence to
support Mockbee’s conviction for obstruction of justice.
Section 3 – The trial court did not abuse its discretion in
admitting certain evidence.
[17] Mockbee challenges the trial court’s admission of evidence discovered in
Lacey’s residence. Specifically, he claims that the police officers’ warrantless
entry into Lacey’s home violated his right against unreasonable search and
seizure pursuant to the Fourth Amendment to the United States Constitution
and Article 1, Section 11 of the Indiana Constitution, and therefore any
evidence discovered in plain view or subsequently obtained by search warrant
was inadmissible.6 The admission or exclusion of evidence falls within the
sound discretion of the trial court, and we review the admission of evidence
only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.
2002). An abuse of discretion occurs “where the decision is clearly against the
logic and effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502,
6
The Fourth Amendment and Article 1, Section 11 protect the “right of the people to be secure in their
persons, houses, papers and effects,” against unreasonable search or seizure.
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504 (Ind. 2001). Even if the trial court abuses its discretion in admitting certain
evidence, we will not reverse if the admission constituted harmless error. Fox v.
State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), trans. denied (2000). “[T]he
ultimate determination of the constitutionality of a search or seizure is a
question of law that we consider de novo.” Carpenter v. State, 18 N.E.3d 998,
1001 (Ind. 2014).
[18] While Mockbee complains that the warrantless entry into Lacey’s home
violated his constitutional rights, the State responds, and the trial court agreed,
that Mockbee failed to establish that he had a reasonable expectation of privacy
in Lacey’s residence or that he has standing to challenge the validity of the
entry or subsequent search.7 We agree with the State and the trial court.
[19] Under the Fourth Amendment, a defendant has the burden to “demonstrate
that he personally has an expectation of privacy in the place searched, and that
his expectation is reasonable[.]” Minnesota v. Carter, 525 U.S. 83, 88 (1998).
Fourth Amendment rights are personal and may not be vicariously asserted.
Rakas v. Illinois, 439 U.S. 128, 139-40 (1978). A defendant aggrieved by an
illegal search and seizure only through the introduction of damaging evidence
secured by the search of a third person’s premises has not had any of his Fourth
Amendment rights infringed. Id. at 134.
7
The State must raise a defendant’s lack of standing to the trial court in order to preserve it for appeal.
Bradley v. State, 4 N.E.3d 831, 838 (Ind. Ct. App. 2014), trans. denied. The State did so here.
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[20] Similarly, “[t]o establish standing pursuant to Article 1, Section 11, our
supreme court has stated that ‘a defendant must establish ownership, control,
possession, or interest in the premises searched or the property seized.’” Allen v.
State, 893 N.E.2d 1092, 1098 (Ind. Ct. App. 2008) (quoting Peterson v. State, 674
N.E.2d 528, 534 (Ind. 1996)), trans. denied (2009). The court has further stated
that a “defendant must show a subjective and objective expectation of privacy
in the premises.” Campos v. State, 885 N.E.2d 590, 598 (Ind. 2008).8
[21] Here, Mockbee failed to demonstrate that he had a reasonable expectation of
privacy in Lacey’s residence. Mockbee consistently maintained to authorities
that he neither resided in nor stayed in Lacey’s home, and that he instead lived
in Ohio. Mockbee produced an Ohio driver’s license when he was arrested to
prove his claim to the detectives. Lacey, Holley, and Holley’s juvenile son each
told police that Mockbee did not reside in Lacey’s home and that, after he was
previously banned from the residence during the DCS investigation, if he did
ever come to visit Holley at Lacey’s home, he would sleep in his car.
Mockbee’s grandmother, Rahn, also advised authorities that Mockbee resided
in Ohio.
8
Although the Indiana Constitution also provides protection for claimed possessions irrespective of the
defendant’s interest in the place where the possessions were found, see Campos, 885 N.E.2d at 598, where a
defendant’s interest in the seized property is not at issue, there is no difference between the results under the
federal and state constitutions. See Allen, 893 N.E.2d at 1097. Mockbee alleged solely that he had an
expectation of privacy in Lacey’s premises, not in the seized property. Therefore, our result is the same
pursuant to both constitutional provisions.
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[22] While Mockbee points to subsequent inconsistent statements by several
witnesses during both the pretrial and trial proceedings, pursuant to our
standard of review, we need only consider the evidence most favorable to the
trial court’s decision to admit the evidence. See Starks v. State, 846 N.E.2d 673,
679 (Ind. Ct. App. 2006), trans. denied.9 Based on the evidence presented, the
trial court properly concluded that Mockbee did not have a reasonable
expectation of privacy in Lacey’s residence, and that he lacked standing to
challenge the warrantless entry into Lacey’s home.
Section 4 – Mockbee has waived our review of the trial court’s
denial of his motion for severance.
[23] Mockbee next argues that the trial court erred when it denied his pretrial
motion to sever the two burglary charges. Indiana Code Section 35-34-1-9(a)
provides that
[t]wo (2) or more offenses may be joined in the same indictment
or information, with each offense stated in a separate count,
when the offenses:
(1) are of the same or similar character, even if not part of a
single scheme or plan; or
(2) are based on the same conduct or on a series of acts
connected together or constituting parts of a single scheme or
plan.
9
There was ample evidence before the trial court that Mockbee improperly attempted to influence several
witnesses to alter their testimony to say that he lived at Lacey’s residence.
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Subsection 9(a)(1) refers to the nature of the charged offenses, whereas
subsection 9(a)(2) refers to the operative facts underlying those charges. Pierce v.
State, 29 N.E.3d 1258, 1265 (Ind. 2015).
[24] The defendant shall have the right to severance of the offenses “[w]henever two
(2) or more offenses have been joined for trial in the same indictment or
information solely on the ground that they are of the same or similar
character[.]” Ind. Code § 35-34-1-11.
In all other cases the court, upon motion of the defendant or the
prosecutor, shall grant a severance of offenses whenever the court
determines that severance is appropriate to promote a fair
determination of the defendant's guilt or innocence of each
offense considering:
(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish the
evidence and apply the law intelligently as to each offense.
Id.[25] Mockbee filed a pretrial motion to sever which was denied by the trial court.
He failed to renew his motion at trial. Therefore, he has waived the right to
seek appellate review of the denial of his motion. See Ind. Code § 35-34-1-12(right to severance of offenses is waived by failure to renew motion before or at
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close of evidence during trial); Rouster v. State, 600 N.E.2d 1342, 1346 (Ind.
1992).
[26] Mockbee attempts to avoid waiver by arguing that the trial court’s denial of his
motion constituted fundamental error. However, Mockbee’s first mention of
fundamental error occurs in his reply brief. A party may not raise an issue,
such as fundamental error, for the first time in a reply brief. Curtis v. State, 948
N.E.2d 1143, 1148 (Ind. 2011). Thus, Mockbee has failed to preserve our
review of this issue as well. See id.Section 5 – The trial court did not err in determining that
Mockbee had forfeited his right to self-representation.
[27] Finally, we address Mockbee’s assertion that the trial court erred in determining
that he forfeited his right to self-representation. In short, the record indicates
that Mockbee was initially represented by counsel, but then knowingly and
voluntarily chose to represent himself while two attorneys acted as standby
counsel. After numerous warnings about his continued unruly behavior during
pretrial proceedings, the trial court subsequently determined that Mockbee had
forfeited his right to self-representation.
[28] “A trial judge may terminate self-representation by a defendant who
deliberately engages in serious or obstructionist misconduct.” German v. State,
268 Ind. 67, 73, 373 N.E.2d 880, 883 (1978) (citing Illinois v. Allen, 397 U.S.
337, 343 (1970)). Indeed, trial judges “confronted with disruptive,
contumacious, stubbornly defiant defendants must be given sufficient discretion
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to meet the circumstances of each case.” Gilmore v. State, 953 N.E.2d 583, 592
(Ind. Ct. App. 2011) (citation omitted).
[29] We need not go into much detail regarding Mockbee’s deliberately disruptive
courtroom behavior, as it already has been well documented. See Mockbee v.
State, 80 N.E.3d 917 (Ind. Ct. App. 2017) (appeal from trial court’s finding
Mockbee in direct criminal contempt). Our review of the voluminous pretrial
proceedings convinces us that the trial judge here should be commended for his
incredible patience and conscientious attempts to accommodate Mockbee’s
desire for self-representation. However, enough was simply enough.
[30] Mockbee’s claim that he was merely engaged in “spirited discussion” and his
unsubstantiated claims that his disrespectful and disruptive behavior was caused
by an “untreated mental illness” are not well taken. Appellant’s Br. at 48, 50.
The trial court did not err in determining that Mockbee forfeited his right to
self-representation.
[31] In sum, we affirm Mockbee’s convictions and sentences. However, we reverse
the six-year habitual offender enhancement as unsupported by sufficient
evidence and remand to the trial court for retrial on that enhancement.
[32] Affirmed in part, reversed in part, and remanded.
Vaidik, C.J., and Mathias, J., concur.
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