JOHNSTON v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Kevin Johnston appeals his conviction for Level 6 felony operating a vehicle as an habitual traffic violator (HTV). Johnston raises three issues on appeal, which we consolidate and restate as: whether Johnston personally waived his right to a jury trial and whether the State presented sufficient evidence to sustain Johnston's conviction. Finding sufficient evidence to support Johnston operated the vehicle but that Johnston did not personally waive his right to a jury trial, we reverse and remand for a new trial.

Facts and Procedural History

[2] On June 8, 2023, Gary Police Department Corporal Dwayne Brown responded to a collision between an SUV and a Gary City Transportation bus. Corporal Brown observed the vehicle flipped on its top, with a woman inside the SUV and a man standing outside. The man, later identified as Johnston, was attempting to leave the scene.

[3] Corporal Brown spoke with Johnston before he could leave. Johnston stated a third party was driving the SUV, but that person “went through the windshield” and had already left the scene; the windshield, however, was intact. Tr. Vol. II p. 63. The woman at the scene identified Johnston as the driver. Corporal Brown ran Johnston's information through the Bureau of Motor Vehicles (BMV) and his status returned as an HTV.

[4] The State charged Johnston with Level 6 felony operating a vehicle as an HTV and Class C misdemeanor knowingly or intentionally operating a motor vehicle without ever receiving a license. Throughout eight ensuing pretrial hearings, Johnston was neither advised of his right to a jury trial nor did he personally waive this right on the record.

[5] A bench trial was held in October 2024, at which Johnston was convicted of the Level 6 felony and acquitted of the Class C misdemeanor. Johnston was sentenced to two and a half years in the Lake County Jail, where he remains. Johnston now appeals.

Discussion and Decision

[6] Johnston argues he did not personally waive his right to a jury trial and there was insufficient evidence to prove he operated the vehicle. Although sufficient evidence was presented, Johnston did not personally waive his right to a jury trial. We therefore reverse and remand for a new trial.

I. Personal Waiver of Right to a Jury Trial

[7] Johnston contends he did not personally waive his right to a jury trial, so his conviction must be vacated and his case remanded for a new trial. The State concedes as much, observing “[t]he record contains no indication that Johnston waived, let alone personally waived, his right to a jury trial” and “this matter should be remanded for a new trial.” Appellee's Br. at 7. We must agree.

[8] “The jury trial right is a bedrock of our criminal justice system, guaranteed by both Article I, Section 13 of the Indiana Constitution and the Sixth Amendment to the United States Constitution.” Horton v. State, 51 N.E.3d 1154, 1158 (Ind. 2016). Under Indiana constitutional jurisprudence, “in a felony prosecution, waiver [of the jury trial right] is valid only if communicated personally by the defendant[.]” Id. (emphasis in original). Personal waiver of the right to a jury trial may be either in writing or in open court. Id. at 1159. Indiana has rejected the purported waiver of a right to a jury trial where such waiver is communicated solely by a defendant's counsel. Id. at 1158-59 (citing, inter alia, Kellems v. State, 849 N.E.2d 1110, 1113-14 (Ind. 2006); Good v. State, 267 Ind. 29, 366 N.E.2d 1169 (1977)). In other words,

[a] defendant is presumed not to waive his jury trial right unless he affirmatively acts to do so. It is fundamental error to deny a defendant a jury trial unless there is evidence of a knowing, voluntary, and intelligent waiver of the right. The defendant must express his personal desire to waive a jury trial and such a personal desire must be apparent from the court's record, whether in the form of a written waiver or a colloquy in open court ․

Pryor v. State, 949 N.E.2d 366, 371 (Ind. Ct. App. 2011) (internal citations and quotations omitted). And the failure to confirm a defendant's personal waiver before proceeding to bench trial constitutes fundamental error. Horton, 51 N.E.3d at 1160.

[9] Here, the record is devoid of evidence that Johnston personally waived his right to a jury trial, or that he was even advised of such right.¹ The record simply indicates Johnston's case was set for a bench trial, which was confirmed at a June 2024 pretrial conference. The failure to confirm Johnston's personal waiver before proceeding to bench trial was fundamental error. Horton, 51 N.E.3d at 1160; see also Anderson v. State, 833 N.E.2d 119, 122 (Ind. Ct. App. 2005) (holding waiver invalid where defendant neither signed written waiver nor expressed personal desire to waive right to jury trial in open court). We reverse and remand for a new trial.

II. Sufficiency of the Evidence

[10] Johnston asserts the State did not present sufficient evidence to support his conviction of Level 6 felony operating a motor vehicle as an HTV. We address Johnston's sufficiency argument to dispel any question as to the State's ability to retry Johnston pursuant to our remand for a new trial. See Dexter v. State, 959 N.E.2d 235, 240 (Ind. 2012) (noting the “Double Jeopardy Clause bars retrial when the defendant's conviction is reversed due to insufficient evidence because such a reversal is tantamount to an acquittal.”).

[11] Our standard of review is well settled:

For sufficiency of the evidence challenges, we consider only probative evidence and reasonable inferences that support the judgment of the trier of fact. On sufficiency challenges, we will neither reweigh evidence nor judge witness credibility. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.

Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021) (citations omitted).

It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the judgment. A conviction may be based upon circumstantial evidence alone. Reversal is appropriate only when reasonable persons would not be able to form inferences as to each material element of the offense.

Crawley v. State, 920 N.E.2d 808, 811 (Ind. Ct. App. 2010) (internal quotations and citations omitted), trans. denied.

[12] To prove Johnston committed Level 6 felony operating a motor vehicle as an HTV, the State was required to show Johnston was: 1) operating a motor vehicle; 2) while his driving privileges were validly suspended; and 3) he knew of his suspension. Ind. Code. § 9-30-10-16(a)(1) (2015). Johnston solely challenges whether the State sufficiently established he was operating the vehicle. In support, Johnston relies on, among other things, the SUV's unmoving, inverted position; his position outside of the vehicle; a lack of evidence that the vehicle was in gear; his statement that someone else was operating the vehicle; and that no one observed the vehicle being operated. He also relies on Corporal Brown's testimony that he could not say with actual certainty Johnston was driving the vehicle.²

[13] Johnston ignores his passenger's eyewitness testimony that he was the driver. Corporal Brown also testified Johnston was attempting to leave the scene when he arrived and explained, in his experience, the reason people attempt to leave is that they are a “suspect ․ in a crime that occurred[,] or they're withholding information ․ pertaining to the crime that has occurred.” Tr. Vol. III p. 63. See Clark v. State, 6 N.E.3d 992, 999 (Ind. Ct. App. 2014) (“Evidence of flight may be considered as circumstantial evidence of consciousness of guilt.”) (quoting Brown v. State, 563 N.E.2d 103, 107 (Ind. 1990)). And Johnston's explanation—that the driver flew through the windshield and fled—does not comport with evidence the windshield was intact. The State presented sufficient evidence to show Johnston was operating the SUV at the time of the crash. Johnston's assertions to the contrary are simply invitations to reweigh the evidence, which we will not do. See Crawley, 920 N.E.2d at 811.

Conclusion

[14] The State presented sufficient evidence to support that Johnston was operating the SUV at the time of the crash. However, the trial court committed fundamental error by proceeding with a bench trial without securing Johnston's personal waiver of his right to a jury trial.

[15] Reversed and remanded for a new trial.

FOOTNOTES

1.   The “Courtroom Minutes” from July 1, 2024, indicate “advisement of rights conducted[.]”App. Vol. II. p. 42. However, the transcript of this hearing does not reflect that an advisement of rights was given to Johnston on the record, and an advisement of rights is not apparent in any other location in the record.

2.   Johnston also compares his case with the facts in Copas v. State; specifically, the fact that when Copas was located by a police officer after a vehicle crash, she was unconscious and lying on the ground outside of the vehicle. 891 N.E.2d 663 (Ind. Ct. App. 2010). However, Copas is inapposite to the case before us as it discussed whether probable cause existed to support the State's seizure of a blood sample from Copas while she was unconscious.

Scheele, Judge.

May, J., and Weissmann, J., concur.