David M. Hodges, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] After a jury trial at which he represented himself, David Hodges was convicted of Level 5 felony battery resulting in bodily injury to a public safety official,¹ Level 6 felony resisting law enforcement,² Class B misdemeanor public intoxication,³ and Class B misdemeanor disorderly conduct.⁴ Continuing to act pro se, Hodges raises a multitude of issues on appeal. Because he is not entitled to relief on any of the issues he raises, we affirm.

Facts and Procedural History

[2] In June 2023, Evansville Police Department (“EPD”) patrol officers Cage Street and DC Christian responded to a 9-1-1 call about a black male wearing a blue flannel hoodie “walking into [a] bar threatening to shoot up people, threatening to shoot up the establishment, something along those lines.” Tr. Vol. 2 at 79. It was night and the lighting around the bar was poor. When the officers arrived, they saw a black male later identified as Hodges leaving the area and believed he fit the description. Upon approaching Hodges, they realized his clothing did not fit the description, but his erratic behavior led them to investigate further.

[3] During the encounter, Officer Christian patted Hodges down and felt a “pipe of some sort” in Hodges’ pants pocket. Id. at 172. Officer Street described Hodges as “all over the place, kept looking up at things that weren't there, eyes were just everywhere, sweating profusely, fighting, moving sporadically.” Id. at 83. The officers believed Hodges was under the influence of a narcotic and called an ambulance because they were concerned about his health. But when medics arrived, Hodges “squared up” with them in a fighting stance, and the officers decided to take him to jail instead. Id. at 84. As the officers tried to put Hodges in their car, he started “fighting with everything he had,” kicking them both and causing them pain. Id. at 85. Officer Street felt Hodges reach for his service weapon during the struggle. Neither officer sought medical treatment after the encounter.

[4] The State charged Hodges with battery resulting in bodily injury to a public safety official, disarming a law enforcement officer, battery against a public safety official, resisting law enforcement, public intoxication, disorderly conduct, and possession of paraphernalia.⁵ At the initial hearing on June 28, Hodges advised the trial court he wanted to proceed pro se. He also asked to be evaluated for a mental disease or defect. The trial court appointed two doctors to conduct competency and sanity evaluations and appointed standby counsel. The trial court set Hodges’ bond at $2,000. Hodges did not pay the bond or request a bond review hearing and remained in jail throughout these proceedings.

[5] Almost immediately after the charges were filed, Hodges began filing a series of motions with the trial court requesting, among other things, that he be ordered to submit to a CT scan to establish his defense of mental disease or defect under Indiana Code Section 35-41-3-6; that paper, envelopes, and pens be provided for his use in preparing and filing legal papers; and that venue be changed from Vanderburgh County. Hodges filed numerous “Subpoena Motions” seeking court orders for attendance of witnesses and production of evidence.⁶ He moved to suppress the evidence against him and to dismiss the charges, alleging officers lacked reasonable suspicion or probable cause to stop him and the evidence was fruit of the poisonous tree. He also moved to compel Officer Street to produce his service weapon for DNA testing. The trial court construed the subpoena motions as motions for discovery and forwarded them to the State. The court took no other action on most of the motions pending the competency evaluation results but did order the jail and/or standby counsel to provide Hodges with stationery as allowed by jail rules. The court also issued an Order on Pro Se Case advising Hodges of pretrial timelines and voir dire procedures.

[6] The doctors issued reports finding Hodges competent to stand trial and able to appreciate the wrongfulness of his conduct at the time of the offense. After reviewing the reports and receiving testimony from the doctors, the trial court found Hodges competent to stand trial in an order issued January 18, 2024.

[7] On January 25, the trial court held a hearing to address Hodges’ outstanding motions. The trial court ruled on nearly thirty motions, summarily denying most. The trial court set Hodges’ motions to suppress and to dismiss for a separate hearing. Officers Cage and Street testified at the hearing on January 31. The trial court denied Hodges’ motions.

[8] Hodges’ jury trial began on February 7. Before jury selection, Hodges requested a continuance. He said he had not had time to review the body camera videos or 9-1-1 call or otherwise prepare for trial. He conceded he received those items in August, but said, “I was not preparing for trial because I was wanting to get the case dismissed ․ so that's why I didn't ask to view the bodycam․ I have no notes, I have no questions for the witnesses, basically I am not prepared for trial[.]” Tr. Vol. 2 at 7–8. He also said he had surgery on January 25 but did not allege this affected his ability to prepare or to represent himself. The trial court denied the continuance.

[9] A jury was seated after two rounds of voir dire in which Hodges participated. After the jury was selected and some preliminary matters were discussed, Hodges said, “I was holding back on my strikes because I thought I had a third round, see I would have used some of my strikes, I didn't realize that, I know it's too late now.” Id. at 58. The State called Officers Street and Christian to testify. Hodges made objections, cross-examined the witnesses, and gave testimony on his own behalf.

[10] The jury found Hodges not guilty of disarming a law enforcement officer and possession of paraphernalia and guilty of the remaining charges. The trial court merged the two battery convictions, entered judgment of conviction on the remaining guilty verdicts, and sentenced Hodges to an aggregate of five years and 182 days in the Department of Correction.

Hodges is not entitled to appellate relief.

[11] Hodges represented himself at trial and represents himself on appeal. “[A] pro se litigant is held to the same standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). “This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so.” Basic v. Amouri, 58 N.E.3d 980, 983–84 (Ind. Ct. App. 2016) (internal citations omitted). These consequences include waiver of an appellant's argument for failing to present a cogent argument. Ind. Appellate Rule 46(A)(8)(a); see Basic, 58 N.E.3d at 984.

[12] Hodges challenges “his conviction, sentence, and other unconstitutional rulings by the trial court[.]” Appellant's Br. at 32.⁷ His “Statement of Issues” consists of a list of thirty-three points related to the proceedings. To the extent he intends for these points to be considered separate arguments and has included citation to legal authority, we have attempted to address as many of them as we can discern.⁸ We also address the one claim Hodges clearly delineates as an argument: that he did not fit the description dispatch stated over the radio and police had no probable cause or reasonable suspicion to stop him.⁹ If any particular point is not addressed, however, it is waived for lack of cogent argument. See Basic, 58 N.E.3d at 984 (“We will not become an advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood.”) (internal quotation omitted).

Excessive Bond

[13] At Hodges’ initial hearing on June 28, 2023, the trial court set bond at $2,000. Hodges did not request his bond be reviewed by the trial court but claims on appeal the bond was excessive and violated his Eighth Amendment rights. This issue is moot because Hodges has been convicted and sentenced. See Spells, 225 N.E.3d at 777; Yeager v. State, 168 N.E.3d 277, 277 (Ind. 2021) (dismissing appeal of pre-trial bail decision as moot because defendant had been convicted and sentenced, disposing of the underlying case).

Provision of Stationery

[14] Hodges repeatedly requested additional paper, envelopes, and pens for his use during these proceedings. See I.C. § 11-11-3-5(a) (stating a confined person shall be provided with a “reasonable amount of stationery, envelopes, and postage for transmission of correspondence”). The trial court ordered these items be provided to him by the jail or by his standby counsel. Hodges claims he did not receive a reasonable amount of stationery from any source, alleging a violation of the statute, his Sixth Amendment right to counsel, and several Professional Conduct Rules. But the trial court granted his motions, he was provided with stationery supplies as evidenced by his voluminous filings, and his case is concluded. Therefore, his claims are moot. See Spells, 225 N.E.3d at 777.

Motion for Change of Venue

[15] Hodges moved for change of venue on August 2, 2023, claiming he would “not receive a fair and impartial trial in Vanderburgh County” because of conduct by the State, police officers, and judges in previous cases against him and because the magistrate at his initial hearing in this case did not order a CT scan as he requested. Appellant's App. Vol. 2 at 30. Hodges alleges the trial court's denial of his motion violates his Fifth and Sixth Amendment rights.

[16] A defendant may move for change of venue from the county by filing a verified motion alleging that bias or prejudice against the defendant exists in that county. I.C. § 35-36-6-1(a). A ruling on a motion for change of venue is reviewed for an abuse of discretion. Crossland v. State, 256 N.E.3d 517, 524 (Ind. 2025). Indiana Criminal Rule 2.4 (formerly Criminal Rule 12) requires a party to move for change of venue within thirty days of the initial hearing unless grounds for the change are discovered after that time expires. Hodges filed his motion thirty-five days after his initial hearing despite alleging grounds known before or on that date. Because Hodges failed to adhere to the time limits of Rule 2.4, the trial court did not abuse its discretion in denying his motion for change of venue.

Discovery

[17] Hodges alleges his Fifth and Sixth Amendment rights were violated by the trial court's rulings on his subpoena motions seeking to discover information from third parties. He also alleges his Fifth Amendment rights were violated by the trial court's denial of his motions to “order the defendant to submit to a CT scan so he can establish a defense” of mental disease or defect under Indiana Code Section 35-41-3-6.¹⁰ Appellant's App. Vol. 2 at 20. Although the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense, there is no general constitutional right to discovery in a criminal case. Rogers v. State, 60 N.E.3d 256, 261 (Ind. Ct. App. 2016), trans. denied; see State ex rel. Grammer v. Tippecanoe Circuit Ct., 377 N.E.2d 1359, 1361 (Ind. 1978) (“[D]iscovery in favor of a criminal defendant is not required by the constitutional guarantee of due process.”). Hodges’ claims that the trial court's discovery rulings denied his Fifth and Sixth Amendment rights have no merit.

[18] Discovery is designed to be self-executing with little to no supervision or assistance by the trial court. Trost-Steffen v. Steffen, 772 N.E.2d 500, 512 (Ind. Ct. App. 2002), trans. denied. But when trial court intervention is necessary, the court has broad discretion in ruling on discovery issues, and we review those decisions for abuse of that discretion. Beville v. State, 71 N.E.3d 13, 18 (Ind. 2017). Because discovery is fact-sensitive, rulings on such matters are “cloaked in a strong presumption of correctness on appeal.” Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied. The trial court must grant a discovery request in a criminal proceeding if there is “sufficient designation of the items sought to be discovered (particularity)” and the requested items are “material to the defense (relevance or materiality)” unless there is a “paramount interest” in nondisclosure. In re Crisis Connection, Inc., 949 N.E.2d 789, 794 (Ind. 2011). But when arguing for reversal, an appellant must show the error affected his substantial rights. See App. R. 66(A) (“No error or defect in any ruling or order or in anything done or omitted by the trial court ․ is ground for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.”). Hodges has neither argued the information he sought was relevant or material to his defense nor shown how the trial court's alleged errors affected his substantial rights. In other words, Hodges has not shown how the information he sought to discover would have changed the outcome of his case.

Motion for Continuance

[19] Hodges claims the trial court's denial of his day-of-trial motion for continuance violated his Fifth and Sixth Amendment rights. At trial, he claimed he had “really not prepared for trial” and had not had time to review the body camera video and 9-1-1 call he received in discovery from the State at least five months earlier. Tr. Vol. 2 at 4. The trial court denied the continuance but did allow Hodges time to review those items before proceeding. On appeal, Hodges claims he requested a continuance so he would have time to recover from surgery that diminished his capacity to represent himself. A party cannot raise one ground for relief in the trial court and a different ground on appeal. Wurster v. State, 715 N.E.2d 341, 347 (Ind. 1999). This claim of error is waived.

Jury Composition

[20] Hodges contends he did not have a fair and impartial jury. But Hodges admitted at trial he neither exercised nor exhausted his peremptory challenges when selecting a jury, and this issue is waived. See Whiting v. State, 969 N.E.2d 24, 29–30 (Ind. 2012) (explaining error is waived unless defendant complies with exhaustion rule). Even so, he alleges his Sixth Amendment right to counsel was denied because his standby counsel did not advise him to challenge the allegedly biased jurors for cause or exercise a peremptory strike. “[A] defendant who chooses to proceed pro se must accept the burdens and hazards of self-representation and may not assert a Sixth Amendment claim of ineffective assistance of counsel.” Warr v. State, 877 N.E.2d 817, 823 (Ind. Ct. App. 2007), trans. denied. “Whether a defendant may claim ineffective assistance from standby counsel depends on whether hybrid representation is more akin to a defendant proceeding pro se or is more akin to a defense controlled by counsel.” Id. Indiana has traditionally limited standby counsel to a strictly advisory role, Carter v. State, 512 N.E.2d 158, 163 n.2 (Ind. 1987), and as far as we can tell from the record, such was the case here. Hodges maintained control of his defense throughout the trial: he conducted voir dire, made an opening statement, made objections and cross-examined the State's witnesses, testified on his own behalf, and made a closing argument. As such, Hodges cannot now claim ineffective assistance of counsel.

[21] Hodges also claims his diminished capacity due to his recent surgery “hindered him during voir dire, and ․ prejudiced the jury selected.” Appellant's Br. at 25. But he did not make a claim of diminished capacity to the trial court and has therefore waived this claim. See Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004) (“[A] party may not present an argument or issue on appeal unless the party raised that argument or issue before the trial court.”).

Admission of Evidence

[22] Hodges’ overarching argument throughout these proceedings is that he did not fit the description of the person described in the 9-1-1 call, the police had no reasonable suspicion or probable cause to stop him, and all evidence against him should have been excluded as unlawfully obtained in violation of the Fourth Amendment.

[23] The primary remedy for a Fourth Amendment violation is the exclusion of evidence obtained in violation of those rights. A.V. v. State, 228 N.E.3d 504, 508 (Ind. Ct. App. 2024), trans. denied. Hodges moved to suppress all evidence stemming from his encounter with the officers. The trial court held a hearing and denied the motion. Hodges did not object at trial when the allegedly unlawfully obtained evidence was admitted. A pretrial motion to suppress does not preserve a claim for appellate review; rather, the defendant must make a contemporaneous objection at the time evidence is introduced at trial to preserve the claim. Laird v. State, 103 N.E.3d 1171, 1175 (Ind. Ct. App. 2018), trans. denied. Although a forfeited claim can still be reviewed on appeal if the court determines a fundamental error occurred, Hodges makes no claim of fundamental error. Id. at 1176. Therefore, he has not preserved this issue for appellate review.

Conclusion

[24] Hodges has not demonstrated error in any of the challenged rulings. His convictions are affirmed.

[25] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-2-1(c)(1), (g)(5) (2020).

2.   I.C. § 35-44.1-3-1(a)(1), (c)(1)(B)(ii) (2021).

3.   I.C. § 7.1-5-1-3(a)(3) (2012).

4.   I.C. § 35-45-1-3(a)(2) (2014).

5.   Later, the State filed a habitual offender enhancement. The enhancement was ultimately dismissed on Hodges’ motion, and to the extent Hodges claims error in the State's filing of the enhancement, the issue is moot. See Spells v. State, 225 N.E.3d 767, 777 (Ind. 2024) (“A case becomes moot when the controversy at issue has been ended, settled, or otherwise disposed of so that the court can give the parties no effective relief.”) (internal quotation omitted).

6.   Among other things, Hodges sought surveillance footage from the Metropolitan Evansville Transit System and various businesses around the bar where Hodges was stopped; records from EPD, the Evansville Bar Association, the Attorney General, and the Vanderburgh County Prosecutor's Office; production of transcripts from other cases in which he was involved; documents from MyCase; and information from a hospital about the side effects of a medication he was given months before this incident.

7.   The page numbers on Hodges’ handwritten brief do not match the PDF page numbers, in part because one page appears to have been scanned out of order and at least one page was duplicated. For ease of reference, we cite to the PDF page number.

8.   Although Hodges cites legal authority in most of these points, he largely fails to use this authority to develop arguments in support of his claims of error. In other words, Hodges invokes constitutional or statutory provisions and claims they have been violated but does not explain how they have been violated.

9.   Hodges does not describe in the Statement of Case section of his brief the course of the proceedings relevant to the issues presented for review. See App. R. 46(A)(5) (describing content of Statement of Case section). Instead, he appears to use this section as an extension of his argument about the stop, as he quotes extensively from the affidavit for probable cause, includes legal authority, and asserts he was unlawfully detained. Appellant's Br. at 26–30.

10.   Hodges requested several tests, including a CT scan and an “Irresistible Impulse Test,” under Trial Rules 26(A)(4) and 35, rules which allow a physical or mental examination of persons as part of discovery. See Crim. R. 1.1 (stating trial rules apply in criminal proceedings unless they conflict with the criminal rules). Because Hodges was in custody, it may have been necessary to seek the court's assistance in arranging these tests, but there was no discovery dispute requiring the trial court's intervention under these rules. Further, despite referring to a defense under Section 35-41-3-6 as the purpose for these tests, he also claimed he was “not trying to use it as an insanity defense at all,” so it is unclear why Hodges wanted these tests. Tr. Vol. 2 at 54.

Kenworthy, Judge.

Judges Bradford and Pyle concur. Bradford, J., and Pyle, J., concur.