Kinny E. Arthur, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Kinny E. Arthur appeals after a bench trial from his convictions of two counts of Class A misdemeanor battery resulting in bodily injury, arising from a road-rage incident. Arthur argues that he did not knowingly, voluntarily, and intelligently waive his right to a jury trial, and that the evidence is insufficient to support his convictions. Concluding that Arthur's jury trial waiver was valid and that there is sufficient evidence to support his convictions, we affirm.

Facts and Procedural History

[2] On September 26, 2024, Joshua Cordova and Wendy Camarena were passengers in a Ford Explorer driven by Roberto Garcia, and they were all headed toward their workplace. They planned to stop at a McDonald's restaurant located along the way. When they reached a flashing light at an intersection, they turned left toward the McDonald's restaurant. Arthur was driving a truck and quickly approached them from behind.

[3] Garcia drove the Explorer into the McDonald's parking lot and parked it. Arthur followed the group into the lot and parked directly behind their vehicle. When Garcia and Camarena exited their vehicle to enter the McDonald's restaurant, Arthur began yelling profanities at the two. Garcia stepped forward and yelled in return, but Camarena did not.

[4] Arthur then rolled down the window of his truck, reached his hand outside, and pepper sprayed Camarena and Garcia. The two were approximately ten feet away from Arthur when he sprayed them. Camarena took the brunt of the pepper spray to her face, which caused a painful burning sensation. Garcia was also sprayed, which caused painful burning and discomfort.

[5] The group returned to their vehicle and followed Arthur, who had driven away. Camarena called 911 as Garcia attempted to identify the license plate number of Arthur's truck. Monticello Police Officers Matthew Powell and Phillip Foerg responded to the 911 call. After Garcia and Camarena provided Arthur's license plate number, police dispatch used the information to provide the officers with Arthur's name and address.

[6] When the officers arrived at Arthur's address, they saw Arthur's pickup truck and felt that it was still warm to the touch. The officer knocked on Arthur's door and spoke with Arthur outside. He told the officers that he was involved in a road-rage incident, and he admitted that he followed Garcia's vehicle to the McDonald's parking lot. He stated that while he was there, he threw a drink at a man. The officers arrested Arthur.

[7] The State charged Arthur with two counts of battery resulting in bodily injury. Prior to the start of the bench trial, the trial court noted that Arthur had made a timely demand for a jury trial, but his case had inadvertently been scheduled for a bench trial. Arthur consulted with his attorney and agreed to waive his right to a jury trial The written waiver he executed reflected that Arthur was thirty-six years old, had obtained an associate degree, and could read, write and understand English. Additionally, the written waiver form stated that Arthur had been fully advised of his constitutional right to a jury trial and “hereby waive[d] [his] constitutional right to a trial by jury ․ and ask[ed] that this cause be submitted to the Court without intervention of a jury.” Appellant's App. Vol. II, p. 51. The form reflected that “this waiver is made and executed by me freely, knowingly, and voluntarily.” Id. Arthur, defense counsel, and the prosecuting attorney executed the written waiver.

[8] After Arthur presented the written waiver to the trial court, the following colloquy occurred:

THE COURT: So, Mr. Arthur, you have the ability to say, Judge, I do not wish to go forward with a bench trial today. I want my right to a jury trial to have that trial in front of a peer—a group of my peers. Or you have the ability to waive that and go forward with a bench trial. Do you understand those rights?

[ARTHUR]: Yes.

THE COURT: So, I have in front of me a waiver of trial by jury that was executed by you today. Is that your intention?

[ARTHUR]: Yes.

THE COURT: So, you understand that by waiving your right to jury trial, instead of it being in front of a jury of your peers, then the case will be tried in front of me, the judge. You understand that?

[ARTHUR]: Yes.

THE COURT: You don't have to do that. You can say, Judge, set it over. We have plenty of time. We can set it for another trial on another date and time.

[ARTHUR]: No.

THE COURT: You want to go forward today?

[ARTHUR]: Yes.

Tr. Vol. 2, pp. 4-5.  ¹ Next, the trial court reviewed the content of the written waiver with Arthur, and Arthur confirmed that he wanted to move forward with a bench trial that day. He agreed that his decision to proceed with a bench trial was well-informed and educated. He further indicated that he was freely, knowingly, and voluntarily waiving his right to a jury trial.

[9] The trial court found that Arthur sufficiently waived his right to a jury trial, and the parties took a break before the trial. Arthur chose not to present evidence in his defense. During closing argument, the State mentioned that “[t]here's been no indication that the complaining witnesses aggressed the defendant. The defendant put himself in a position to be the aggressor.” Id. at 45. Arthur's counsel argued that the trial court should not believe the victims’ testimony because it was inconsistent and that it was more likely that “the victims devised a plan, devised a story and sought retribution than it is that [Arthur] actually used pepper spray and hit both of them[.]” Id. at 46-47.

[10] The court found Arthur guilty as charged and explained that the elements of the offenses had been established. The court also explained why, hypothetically speaking, a self-defense claim did not apply:

Now, if Mr. Arthur was going to raise self-defense as a claim, he's in a vehicle, no one said the vehicle was turned off, no one has said that the vehicle's engine is running, but he easily could have turned the key, if it was off, started the vehicle and just drove away without any other interaction. There would have been no battery, there would have been nothing. We take this back even farther. If this was a situation where the Garcia vehicle pulled out in front of Mr. Arthur, [he] didn't have to follow somebody into McDonald's, [he] didn't have to have an interaction with them. And even if he was going into McDonald's to get breakfast that morning or lunch or whatever it was, he didn't have to stop right behind that vehicle of the Camarena and Garcia's. [He c]ould have just kept on going[.]

Id. at 50. Arthur now appeals.

Discussion and Decision

I. Valid Waiver of Jury Trial

[11] Arthur contends that he “was not given time to discuss the legal consequences or consider the legal advice he received in [regard] to waiving his jury trial.” Appellant's Br. p. 6.

[12] “The right to a jury trial in a criminal case is a fundamental right guaranteed by the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Indiana Constitution.” Dadouch v. State, 126 N.E.3d 802, 804 (Ind. 2019). “A defendant's waiver of the right to jury trial ‘must be made in a knowing, intelligent, and voluntary manner, with sufficient awareness of the surrounding circumstances and the consequences.’ ” Id. (quoting Doughty v. State, 470 N.E.2d 69, 70 (Ind. 1984)). “A defendant charged with a felony has an automatic right to a jury trial and ‘is presumed not to waive this right unless he affirmatively acts to do so.’ ” Id. (quoting Poore v. State, 681 N.E.2d 204, 207 (Ind. 1997)). “By contrast, a defendant charged with a misdemeanor must demand a jury trial and may waive that right by inaction.” Dadouch, 126 N.E.3d at 804.

[13] Here, Arthur requested a jury trial for his misdemeanor offenses and the trial was mistakenly set for a bench trial. The trial court acknowledged the error in open court and gave Arthur the opportunity to change his mind. Arthur also consulted with his attorney, executed a jury trial waiver form, and engaged in a colloquy with the trial court about his decision to waive his jury trial request. There is nothing in the record to suggest that Arthur was rushed into his decision. Instead, the record reflects that the trial court was willing to accommodate any decision Arthur reached regarding how his trial proceeded.

[14] Additionally, the record does not show that Arthur waived his jury trial request in a manner that was anything other than knowing, intelligent and voluntary. Arthur was thirty-six years old and had a college education. Moreover, he understood the English language, the charges against him, and the potential penalties. He confirmed that he understood his rights and wanted to proceed with a bench trial. We conclude that Arthur knowingly, intelligently, and voluntarily waived his right to a jury trial.

II. Sufficiency of the Evidence

[15] Arthur contends that the evidence is insufficient to support his convictions because there is no evidence that he had pepper spray, thus, he did not intentionally or knowingly touch Camarena or Garcia. Additionally, he argues that Camarena and Garcia were the aggressors because they brake-checked his vehicle and confronted him by exiting their vehicles in the McDonald's parking lot. Appellant's Br. pp. 6, 9.

[16] “Sufficiency-of-the-evidence claims ․ warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility.” Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020). “Rather, [appellate courts] consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence.” Id. at 262-63. On review, appellate courts “will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt.” Id. at 263.

[17] To prove that Arthur committed two counts of Class A misdemeanor battery resulting in bodily injury, the State was required to establish beyond a reasonable doubt that Arthur, knowingly or intentionally touched Camarena and Garcia in a rude, insolent, or angry manner that resulted in bodily injury to them. Ind. Code § 35-42-2-1(d) (2024). A person acts intentionally if, “when he engages in the conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a) (1977). A person acts knowingly if, “when he engages in the conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(b) (1977). And, as for the touching element, a defendant “ ‘need not personally touch another person since battery may be committed by the unlawful touching by [the] defendant or by any other substance put in motion by [the] defendant.’ ” Henson v. State, 86 N.E.3d 432, 440 (Ind. Ct. App. 2017) (quoting Matthews v. State, 476 N.E.2d 847, 850 (Ind. 1985)). Furthermore, to establish bodily injury, pain alone is sufficient. See Lewis v. State, 438 N.E.2d 289, 294 (Ind. 1982) (“It is not necessary that some physical trauma to the body be shown. It is sufficient that the victim experienced physical pain by Defendant's action.”); Ind. Code § 35-31.5-2-29 (“ ‘Bodily injury’ means any impairment of physical condition, including physical pain.”) (2012) (emphasis added).

[18] Camarena and Garcia both testified that Arthur followed them into the McDonald's parking lot, parked behind their Explorer, leaned out of his truck, and sprayed them with pepper spray and that they experienced burning, discomfort, and pain. The evidence shows that Camarena and Garcia were approximately ten feet away from Arthur when he rolled down the window of his truck, put his hand outside, and sprayed them with pepper spray. The spray was aimed at both victims but hit Camarena directly in the face and also reached Garcia. Any argument to the contrary that Arthur did not possess a can of pepper spray is a request for us to reweigh the evidence, which we will not do. Powell, 151 N.E.3d at 262. We conclude that the evidence is sufficient to support Arthur's convictions.

[19] Arthur attempts to raise a self-defense claim for the first time on appeal. But arguments raised for the first time on appeal are waived for review. State v. Allen, 187 N.E.3d 221, 228 (Ind. Ct. App. 2022). And to the extent that he raised that argument in his closing argument, we observe that statements of counsel during closing argument are not to be considered as evidence. See Ind. Pattern Criminal Jury Instruction No. 13.1900 (“Statements made by attorneys are not evidence.”).

[20] To the extent Arthur is challenging the trial court's assessment of the evidence relative to the possibility of the defense of self-defense, we agree with the trial court's assessment. Arthur did not present evidence of self-defense at trial, and, as we stated above, the arguments of counsel are not evidence. The State showed that Arthur instigated the confrontation and participated willingly in it. He had many options available to him, including not following the group into the McDonald's parking lot in the first instance. And it was Arthur who yelled profanities at the group and resorted to the use of pepper spray. Garcia and Camarena did not physically threaten Arthur. Therefore, Arthur was not justified in using that force in a situation he instigated or participated in willingly.

Conclusion

[21] We conclude that Arthur's waiver of a trial by jury was made knowingly, intelligently, and voluntarily. Furthermore, there is sufficient evidence to support Arthur's convictions of battery resulting in bodily injury. Therefore, we affirm the trial court's judgment.

[22] Affirmed.

FOOTNOTES

1.   The Table of Contents indicates that it is Volume 1 of 2. And the Transcript also indicates that it is Volume 1 of 2, when it should reflect that it is Volume 2 of 2. We will cite to the Transcript as Vol. 2.

Baker, Senior Judge.

Tavitas, C.J., and Scheele, J., concur.