John William Stout, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] John Stout appeals his convictions for child molesting, a Level 1 felony, child molesting, a Level 4 felony, burglary, a Level 3 felony, and the habitual offender determination, claiming that he did not voluntarily and intelligently waive his right to counsel. Stout also maintains that convictions on both counts of child molesting violated the prohibition against double jeopardy, and he requests that we remand this case to the trial court to correct the sentencing order to establish that a burglary conviction was “vacated” rather than “merged.”

[2] We affirm.

Facts and Procedural History

[3] On April 26, 2021, six-year-old V.O. was living with her seven-year-old brother, M.O., her mother Ismari, and Ismari's boyfriend, in a two-story apartment in Indianapolis. The residence consisted of two bedrooms upstairs and a living room and kitchen downstairs. The children shared a bedroom with separate beds.

[4] Earlier that day, the family went to a relative's residence for a birthday party. Prior to leaving home, Ismari noticed a backpack on the apartment roof and retrieved it. Ismari opened the backpack, noticed that it smelled like “weed,” and discarded it. Transcript Vol. III at 195. After celebrating the birthday and returning to their apartment, the children went to their bedroom while Ismari and her boyfriend went to bed in their separate room.

[5] V.O. slept in her brother's bed and unbeknownst to her, the bedroom window was unlocked. At some point during the night, V.O. woke to a noise and saw a man—later identified as Stout—touching her. Stout removed his clothes and V.O.’s clothes and began kissing V.O.’s chest. Although M.O. was awake and saw what was occurring, he could not say anything because Stout had covered his mouth.

[6] Stout turned V.O. on her stomach and used his “private part” to “touch” her “private part on the front of [her] body” and “in the back” where “[p]oop comes out.” Transcript Vol. IV at 20-21, 37-38. V.O. stated that it “hurt[ ]” when Stout's “private area” was in her back “private area.” Id. at 20-21, 27-28. After the incident, Stout told V.O. not to tell her parents and then exited through the bedroom window. A sound woke Ismari and her boyfriend, and when Ismari walked into the children's bedroom, she noticed that the room “smelled like weed.” Transcript Vol. III at 201. Police were called, and an investigation ensued.

[7] At some point, detectives recovered a video taken by a neighbor who had seen a suspicious person in the apartment complex on the day prior to V.O.’s molestation. The video showed a man with a white car. The investigation eventually led to Stout, where it was established that he frequently drove his mother's white Toyota Avalon.

[8] When questioned by police, Stout admitted leaving his backpack on the apartment roof the day before the molestation. Stout's DNA was later found on swabs that were taken from V.O.’s anus, and his fingerprints were recovered from V.O.’s bedroom window. Also, cell-site-location information showed that Stout's phone was near V.O.’s residence when the molestation occurred.

[9] On January 4, 2024, the State's amended information ¹ charged Stout with the following offenses: burglary, a Level 3 felony, burglary, a Level 4 felony, child molesting, a Level 1 felony, and child molesting, a Level 4 felony. The charges regarding child molesting alleged that

[Level 1:] On or about April 27, 2021, JOHN William STOUT, a person of at least twenty-one (21) years of age did knowingly or intentionally perform or submit to other sexual conduct as defined in Indiana Code Section 35-31.5-2-221.5 with V.O., a child under the age of fourteen years (14).

[Level 4:] On or about April 27, 2021, JOHN William STOUT did perform or submit to fondling or touching with V.O., a child under the age of fourteen years, with the intent to arouse or satisfy the sexual desires of [ ] JOHN WILLIAM STOUT and/or V.O.

Appellant's Appendix Vol. III at 121-22 (emphases added). The State also alleged that Stout was a habitual offender.

[10] The trial court appointed counsel for Stout at his initial hearing. Two months later, Stout's counsel filed a motion for a status-of-counsel hearing, informing the trial court that Stout had requested him to withdraw because he desired to proceed pro se. At the hearing on July 20, 2021, the following exchange occurred:

[Court]: Sir, you understand ․ every criminal defendant is entitled to have legal representation. Do you understand that sir?

[Stout]: Yes, sir.

[Court]: That the Court can, if it finds appropriate basis to do so, allow an individual self-representation, but there are certain findings that I have to make before I can allow that. It is not an absolute right to represent oneself in a legal proceeding. Sir, what is your level of education?

[Stout]: GED. Before we go any further, Your Honor, I'd like to tell you that I'd represented myself before and—four—four years ago and I went from Courtroom 5 and I filed 17 motions and a crucial [sic] judge and I got—was honored crucial [sic] judge, went to Courtroom 2, represented myself in trial and was acquitted within 10 minutes after the trial. And so I thought maybe I'll let you know that before we went any further․

․

[Court]: That's—that's one of the factors that I must know, but I've gotta run through everything to make sure that I have covered all of the requirements. So I've got your level of education. You've now told me that you have participated in the criminal justice system and you have represented yourself in at least one prior trial ․

․

[Court]: All right. So you understand that under the law of the state of Indiana, I have to treat unrepresented litigants the same as I would treat a lawyer. You understand that sir?

[Stout]: Yes, sir.

[Court]: That all of the rules of evidence, the rules of procedure, the rules of decorum in a courtroom apply to you just as they would to an attorney. You understand that, sir?

[Stout]: Yes, sir. This could be subject to change because I haven't had—I—I need my full discovery and I'd like to know how long the prosecution has to come up with, or whatever any evidence that they—you know, the public defender said something about he was anticipating more evidence and I didn't know if there was a timeframe for that.

Transcript Vol. II at 11-13.

[11] The hearing continued with Stout's appointed counsel discussing discovery matters and mentioning that Stout had not been given a physical copy of discovery materials “because of the nature of the charges for his own safety.” Id. at 14. The exchange continued:

[Court]: All right. There are also certain special procedures, rules, and—and it's in the form of law now with respect to the protection of child witnesses and what access even a lawyer has to conducting discovery. Are you aware of those special rules and procedures?

[Stout]: No, not necessarily, huh-uh.

[Court]: You understand that could be a detriment to you in trying to prepare your case, because we are very strict in how we would approach discovery as to the child—the children victims, alleged victims in this case. Do you understand that, sir?

[Stout]: Yes, Your Honor. I'm not real concerned about that.

․

[Court]: You understand the Court would not be inclined to let you jump back and forth from representation by counsel to self-representation.

․

[Stout]: Right. That's fine, un-huh. Oh, yeah. Yeah, I'm not concerned about that. I'm concerned about having to maybe go to trial and not be prepared.

Id. at 14-17.

[12] Stout's counsel then addressed the trial court and stated that it was “never ․ a good idea for anyone to go pro se, especially on very, very serious charges.” Id. at 18. Counsel added that he did not believe Stout had “any kind of mental health issues that [were] interfering or impacting his judgment in this regard.” Id. The trial court then announced that

[T]he Court has to make certain findings. I—it has to find that the defendant has the educational level to understand and communicate, Mr. Stout clearly does, that there has to be some understanding of the criminal justice system, its processes, its rules, its procedures. Mr. Stout has satisfied me that he has that information with his prior experience and the way that he has understood the process of preparation and what is necessary. Clearly, English is his first language. I don't believe that there's an issue there. He is competent. [In] ․ my communication with Mr. Stout, he has shown a competence, he understands his Sixth Amendment Right to counsel and that it is a constitutional protection. He has demonstrated to me today a desire to waive that knowingly and voluntarily and to proceed as his own attorney. The charges are very serious․ But again, Mr. Stout is aware of the risk, he's aware of what he faces. I cannot find a basis to deny him his right to represent himself, and I therefore am allowing [counsel] to withdraw, and for Mr. Stout to proceed pro se in this matter. You are going to be held to the same standard as a lawyer, sir. So if you need to communicate with the Court, you've got to do it through motions, you have to provide orders for the Court to rule on those motions, and I've advised you that you have an August 30th jury trial date.

Id. at 19.

[13] Following the hearing, the trial court conducted numerous pre-trial conferences. At one of those hearings on June 21, 2022, Stout asked the trial court to appoint an investigator. The trial court responded that it would ask the public defender's office about assigning an investigator, but because Stout chose to represent himself, they could decline. No investigator was appointed.

[14] At another pretrial hearing, the trial court told Stout, “we've had multiple conversations about the fact that representing yourself is not the best idea and that's what you've chosen to do. So as you have chosen to represent yourself, you have to figure out how to do it.” Id. at 184.

[15] At the final pre-trial conference on December 8, 2022, the following exchange occurred:

[Court]: Let me see—okay. So I'm trying to pull up my calendar․ Are you ready for jury on Monday, sir?

[Stout]: No, Your Honor. I'd like to ask for a court-appointed attorney for maybe—if—if I can't get one for co-counsel, then I would like to go ahead and ask for one because I'm not ready.

[Court]: All right. So—well, so first of all, let me just tell you that I'm not going to appoint somebody to be co-counsel for you. You've asked to represent yourself. We don't have hybrid representation in the state of Indiana. You either represent yourself or you're represented by an attorney. There's no in-between. There's no going back and forth. So you are asking me to appoint an attorney to represent you?

[Stout]: At this point, yes, because like I said, I'm not—I'm not ready. There's things that I haven't been able to look into because being in—in jail and not having an investigator, there's things that—

․

[Court]: —here's what I'm gonna tell you. If I appoint an attorney ․ you can't later then say you're gonna go pro se again. It's one or the other; we don't go back and forth. Do you understand me, sir?

[Stout]: Yes, Your Honor. But what if this attorney that you're appointing me is not doing his job—

[Court]: [Y]ou're going to get whoever you had before ․

[Stout]: He never represented me. I didn't give him the chance to.

․

[Stout]: Well, I've already got a bad decorum with him.

․

[Court]: —Mr. Stout, I'm telling you that if you want a court-appointed attorney, it's ․ the person that was appointed to represent you before. So he will be the person who will be appointed to represent you again. That's the way it works. Do you want [counsel] as your attorney or do you wanna represent yourself?

Id. at 233–35.

[16] At that point, the trial court granted the State's motion to continue the trial because one of its witnesses was unavailable. Stout then asked, “what if I could sit co-counsel with him[?]” Transcript Vol. II at 238-39. The trial court responded:

No, sir. There's nothing that prevents you from talking to him, but you can't talk to the jurors. They're—you're not co-counsel, you're his client. And you may have a conversation with him during the trial, but you don't get to question the witnesses or do anything in the trial. It's not like you're not a part of it, you just don't get to be the person who does the work. He's either your attorney or he's not.

Id. at 239.

[17] Approximately one month later, the trial court held another status-of-counsel hearing. At that time, the trial court again asked Stout if he wanted counsel appointed or if he desired to continue to represent himself. Stout responded, “Well, if I was gonna have the same one I fired, I[’m] probably better off not to have him, (indiscernible) just go pro se.” Id. at 243. During additional pretrial conferences, the trial court denied Stout's repeated requests for co-counsel.

[18] Stout proceeded to a jury trial pro se, and at the conclusion of the trial on January 10, 2024, he was found guilty of two counts of child molesting and two counts of burglary. Stout then admitted to being a habitual offender.

[19] Thereafter, on March 7, 2024, the trial court imposed a 45-year sentence for Stout's Level 1 felony child molesting conviction that was enhanced by 20 years for the habitual offender determination. For Stout's burglary conviction, the trial court imposed a 20-year sentence to be served concurrently with the Level 1 felony child molesting sentence. And for the Level 4 child molesting conviction, the trial court imposed a six-year sentence to be served consecutively for an aggregate sentence of 71 years.

[20] At the sentencing hearing, the trial court stated that the Level 4 burglary Count “merges and is vacated,” transcript Vol. V at 215, and the minute notes from the hearing indicated, “Ct. 4 merged and vacated.” Appellant's Appendix Vol. III at 226. Additionally, a document entitled “Worksheet on Sentencing Order and Judgment of Conviction stated that the lesser burglary offense was “merged and vacated.” Id. at 239. The sentencing order, however, stated only that the burglary was “merged.” Appellant's Appendix Vol. II at 44.

[21] Stout now appeals.

Discussion and Decision

I. Waiver of Right to Counsel

[22] Stout argues that his convictions must be reversed because the trial court failed to sufficiently advise him about the dangers of self-representation. Thus, Stout claims that he did not knowingly and intelligently waive his right to counsel and the trial court, therefore, erred in permitting him to proceed pro se.

[23] The Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees a criminal defendant the right to counsel before he may be tried, convicted, and punished. Hopper v. State, 957 N.E.2d 613, 617 (Ind. 2011). This protection also encompasses an affirmative right for a defendant to represent himself in a criminal case. See Faretta v. California, 422 U.S. 806, 807 (1975). A defendant's assertion of the right of self-representation must be “unequivocal.” Wright v. State, 168 N.E.3d 244, 259 (Ind. 2021).

[24] When a criminal defendant waives his right to counsel and elects to proceed pro se, we must decide whether the trial court properly determined that the defendant's waiver was knowing, intelligent, and voluntary. Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003). Waiver of assistance of counsel may be established based upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Id. There are no prescribed “talking points” the court is required to include in its advisement to the defendant; it need only come to a considered determination that the defendant is making a voluntary, knowing, and intelligent waiver. Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001). The defendant should be made aware of the dangers and disadvantages of self-representation so the record will establish that he knows what he is doing and his choice is made “with eyes open.” Leonard v. State, 579 N.E.2d 1294, 1295 (Ind. 1991) (citing Faretta, 422 U.S. at 835).

[25] In reviewing the adequacy of the waiver of a defendant's right to counsel, we consider the totality of the circumstances, including: (1) the extent of the court's inquiry into the defendant's decision, (2) other evidence in the record that establishes whether the defendant understood the dangers and disadvantages of self-representation, (3) the background and experience of the defendant, and (4) the context of the defendant's decision to proceed pro se. Hopper, 957 N.E.2d at 619. Because a trial court is uniquely situated to assess whether a defendant has waived the right to counsel, we will most likely uphold the trial court's decision “to honor or deny the defendant's request to represent himself.” Wright, 168 N.E.3d at 259.

[26] In this case, less than three months after the trial court appointed Stout counsel, Stout informed the trial court and his counsel that he wished to represent himself. In accordance with that request, the trial court made inquiry and determined that Stout had earned a GED and had successfully represented himself in a prior criminal case. The trial court advised Stout that he would be held to the same standards as an attorney and that he would be required to adhere to “the rules of evidence, the rules of procedure, [and] the rules of decorum.” Transcript Vol. II at 11-13. The trial court also informed Stout of the “seriousness of the charges,” and that he would have to comply with “special procedures” related to “the protection of child witnesses.” Id. at 14-15. And when the trial court told Stout that his decision to represent himself would have to be final and that he could not waver between proceeding pro se and being represented by counsel, his response to the trial court was, “Right. That's fine, uh-huh. Oh, yeah. Yeah, I'm not concerned about that. ” Id. at 17.

[27] In addition, Stout's initially-appointed counsel stated on the record that it was “never ․ a good idea for anyone to go pro se, especially on very, very serious charges.” Transcript Vol. II at 18. And after assuring the trial court that he had not observed any “mental health issues” concerning Stout, counsel commented, “I would personally always advise a client against [self-representation and] I think it's ․ just always a bad call.” Id. at 18-19. The trial court again reminded Stout at a pretrial hearing that “representing yourself is not the best idea” and that he was at a “disadvantage” for proceeding pro se. Id. at 184, 224.

[28] Given Stout's previous experience representing himself, his level of education, and the extent of the trial court's and counsel's warnings and advisements against proceeding pro se, the facts and circumstances presented establish that Stout voluntarily, knowingly, and intelligently waived his right to counsel. Thus, the trial court did not err in permitting Stout to proceed pro se.

II. Double Jeopardy

[29] Stout argues that his convictions on Count I, Level 1 felony child molesting, and Count III, Level 4 felony child molesting, may not stand in light of double jeopardy prohibitions. Specifically, Stout maintains that his conviction and sentence under Count III must be vacated because it is a lesser-included offense of Count I.

[30] Whether convictions violate Indiana's prohibition against double jeopardy is a question of law reviewed de novo. Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020); Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020). In Wadle and Powell, our Supreme Court adopted two tests for addressing claims of “substantive double jeopardy” (i.e., claims concerning multiple convictions in a single prosecution, as opposed to “procedural double jeopardy” claims, which concern convictions for the same offense in successive prosecutions). Wadle, 151 N.E.3d at 248-49; Powell, 151 N.E.3d at 263. The Wadle test applies “when a single criminal act or transaction violates multiple statutes with common elements[.]” 151 N.E.3d at 247. The Powell test applies “when a single criminal act or transaction violates a single statute and results in multiple injuries.” 151 N.E.3d at 263.

[31] Stout's convictions were for violating two subsections of Ind. Code § 35-42-4-3 (the Child Molesting Statute), that provides:

(a) A person who, with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to ․ other sexual conduct (as defined in IC 35-31.5-2-221.5) commits child molesting, a Level 3 felony. However, the offense is a Level 1 felony if:

(1) it is committed by a person at least twenty-one (21) years of age.

․

(b) A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Level 4 felony.

Subsection (a) of the Child Molesting Statute incorporates by reference Indiana Code § 35-31.5-2-221.5. That statute defines “other sexual conduct” to mean “an act involving: (1) a sex organ of one ․ person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object.”

[32] Here, Stout was convicted under subsection (a) of the Child Molesting Statute for committing an act of “other sexual conduct,” and under subsection (b) for committing an act of “fondling or touching ․ with intent to arouse or to satisfy [his] sexual desires.” Thus, Wadle applies in this circumstance even though the offenses are defined within the same section of the Indiana Code. See, e.g., Carranza v. State, 184 N.E.3d 712, 716 (Ind. Ct. App. 2022) (holding that the Wadle test applied in evaluating the defendant's double jeopardy claim following his convictions for violating subsections (a) and (b) of the Child Molesting Statute).

[33] Under the multi-step analysis in Wadle, we first look to the statutes. 151 N.E.3d at 235. Id. If the language of either statute “clearly permits” multiple punishments, there is no double jeopardy. Id. at 248. Here, neither of the relevant subsections of the Child Molesting Statute clearly permits multiple punishments, so we proceed to step two of Wadle. The second step is to determine whether either of the offenses is inherently or factually included in the other. Id. at 248.

[34] An offense that is inherently included in another is one that:

(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;

(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or

(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.

Ind. Code § 35-31.5-2-168.

[35] An offense, even if not inherently included in another, is factually included in the other if the charging information alleges “that the means used to commit the crime charged include all of the elements of the alleged lesser included offense[.]” Norris v. State, 943 N.E.2d 362, 368 (Ind. Ct. App. 2011), trans. denied. If neither offense is an included offense of the other (either inherently or as charged), there is no violation of double jeopardy and “the analysis ends—full stop.” A.W. v. State, 229 N.E.3d 1060, 1067 (Ind. 2024). But if one offense is included in the other, the court must proceed to Step 3 under Wadle where the facts underlying the charged offenses are examined. Id.

[36] The Wadle test was further clarified in A.W., where the Court addressed step 2 of Wadle and determined that the analysis under that step does not authorize courts to probe other facts, such as evidence adduced from trial. Id. Rather, the factually included inquiry at Step 2 is “limited to facts on the face of the charging instrument.” Id. And where the charging information is ambiguous, courts must construe those ambiguities in the defendant's favor and thus find a presumptive double jeopardy violation at Step 2. Id. at 1069. The State, however, can “later rebut this presumption at Step 3.” Id.

[37] Here, the State's charging informations were general and factually ambiguous in that no particular conduct was alleged regarding Stout's commission of the offenses. Thus, the presumption attaches that a double jeopardy violation has occurred under Step 2 of Wadle because the elements of the offense alleged under subsection (b) of the Child Molesting Statute could be factually included in the commission of the offense that the State alleged in subsection (a). See id. That is, the means used to commit other sexual conduct could potentially also establish molestation by touching or fondling and the State did not provide facts distinguishing the two in the charges. We therefore proceed to Step 3 of the Wadle analysis where we “examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial” to determine whether Stout's actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Wadle, 151 N.E.3d at 249 (emphasis added). If the underlying facts reveal the two offenses are indeed “separate,” there is no Wadle violation, “even if one offense is, by definition, ‘included’ in the other.” Id.

[38] Here, while Level 4 child molesting may be included within Level 1 felony child molesting when considering the ambiguous charging informations, we turn to the underlying facts to determine whether the two offenses are the same. See A.W., 229 N.E.3d at 1073 (citing Wadle, 151 N.E.3d at 248). V.O. testified at trial that Stout walked into her room, undressed, removed her clothes and started kissing her chest. Stout then turned V.O. on her stomach and used his “private part” to “touch” her “private part on the front of [her] body” and “in the back” where “[poop] comes out.” Transcript Vol. IV at 20-21, 37-38. V.O. further testified that it “hurt” when Stout's “private area” was in her back “private area.” Id. at 20-21, 27-28. Additionally, the State maintained in its opening and closing statements that after Stout broke into the apartment, he “kissed V.O. on her chest,” took “his pants off,” “put his penis inside [V.O.’s] anus ․ [and] “put his penis on her vagina.” Transcript Vol. III at 177; Transcript Vol. V at 146. The State then directed the jury to find Stout guilty of the child molesting offenses as charged.

[39] Given this scenario, we cannot say that Stout's offenses were “compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” See Wadle, 151 N.E.3d at 253. In our view, the State has carried its burden of rebutting the presumptive double jeopardy violation based on the facts presented at trial to demonstrate a “distinction between what would otherwise be two of the ‘same’ offenses.” A.W., 229 N.E.3d at 1071. Thus, the offenses are not factually included and there is no double jeopardy violation. See, e.g., Heckard v. State, 118 N.E.3d 823, 832 (Ind. Ct. App. 2019) (holding that even when the two counts of child molesting were committed very close in time, the defendant committed two distinct crimes: one for performing a sexual act on the victim and one for forcing the victim to perform a sexual act), trans. denied.

III. Corrected Sentencing Order

[40] Stout argues that this case must be remanded with instructions that the trial court correct its sentencing order. Specifically, Stout maintains that it is not clear from the record that the trial court vacated—rather than merged—his conviction for burglary, a Level 4 felony.

[41] When oral and written sentencing statements conflict in non-capital cases or where there is ambiguity, we will examine both the written and oral sentencing statements to discern the trial court's findings. McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). Notwithstanding Stout's contention, the trial court specifically stated at the sentencing hearing that the lesser burglary conviction was “merged and vacated.” Transcript Vol. V at 215 (emphasis added). The minute notes and sentencing worksheet also indicated that the offense was vacated—and not simply merged. Id. at 239. Although the sentencing order stated only that the lesser burglary conviction was “merged,” appellant's appendix Vol. II at 44, the record as a whole supports the conclusion that Stout's conviction for the lesser burglary offense was vacated. Thus, because no conviction for Level 4 felony burglary was entered, remand is not warranted.

[42] Judgment affirmed.

FOOTNOTES

1.   Stout was originally charged on April 30, 2021.

Altice, Chief Judge.

Judges Vaidik and Scheele concur. Vaidik, J. and Scheele, J. concur.