text:
    Kenneth McBRIDE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1211-CR-547.
    Court of Appeals of Indiana.
    Aug. 15, 2013.
    Rehearing Denied Oct. 7, 2013.

      Michael R. Fisher, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

Following a jury trial, the appellant-defendant, Kenneth McBride, was found guilty of Counts I and II, class B felony criminal Confinement, Counts III, IV, and V, class B felony Robbery, and Count VI and VII, class C felony Battery, for which the trial court sentenced McBride to an aggregate term of thirty years.

McBride appeals, asking our Court to vacate all of his convictions or, in the alternative, to revise his sentence pursuant to our authority under Indiana Appellate Rule 7(B). Specifically, McBride claims that the trial court committed reversible error when it allowed him to proceed pro se because he did not make a knowing, voluntary, and intelligent waiver of his right to counsel. McBride also contends that the trial court committed fundamental error when it admitted evidence obtained through an improper show-up identification procedure and that his thirty-year executed sentence is inappropriate in light of the nature of the offenses and his character.

Finding no reversible error and concluding that McBride’s sentence is not inappropriate, we affirm.

FACTS

On March 7, 2012, around 4:30 p.m., Officer Ryan Irwin of the Indianapolis Metropolitan Police Department (IMPD) responded to the dispatch of a robbery in progress at the Oriental Market (Market), a grocery store on Lafayette Road owned by Bay Le Zhu (Zhu) and her husband. Officer Irwin arrived within one minute and found that the employees, two of whom had obvious injuries, and Zhu’s six-year-old son Brian were locked inside the Market. Irwin also found a twelve gauge shotgun lying on the ground next to the market.

It was later established that Zhu, Brian, Zhu’s nephew Yixiu Chen (Yixiu), Kia Wong (Wong) and his wife, Cai Nong Chen (Cai), were all at the market when McBride and two other men, each armed and wearing dark clothing, gloves, and masks, entered the Market through a back door and locked the door behind them. The men confined everyone in the kitchen, striking several of the victims with their guns and binding their hands and legs with duct tape. After the men demanded money, Zhu gave them $1200 that she had in her pocket and was escorted out of the kitchen to the cash register, where they took additional money. When Van Duong, a regular customer, came by, he noticed that the door was locked even though the lights were on and the “open” sign was displayed. Suspicious, Duong peered through the Market window and observed masked men but none of the store employees. When he looked again, he saw Zhu taking money from the register, and she gave him a sign to call for help.

McBride and the other men escaped in Wong’s vehicle, taking with them Wong’s cell phone, Yixius’s cell phone and many of his keys including his house and the Market keys, Zhu’s purse and keys, the $1200 that Zhu had on her, and the money from the cash register. Duong got a good look at McBride and provided the license plate number of the getaway vehicle to the 911 dispatcher. He also reported that the vehicle had traveled south on Lafayette Road. Officers located the vehicle after a citizen reported seeing someone flee from the vehicle.

At around 5:00 p.m., McBride and his co-defendant, Adrian Jackson, were apprehended. They were found crouched down between a wood deck area and a garage, wearing dark clothing and shoes matching those worn by the robbers. Around and under the deck where McBride and Jackson were apprehended, the officers recovered several pieces of dark clothing, including a stocking cap mask, three dark gloves, the distinctive jacket worn by one of the men during the robbery with a Bic lighter in it that matched McBride’s DNA, multiple cell phones, a set of keys, and a small purse, all of which were items taken from the victims during the robbery. Additionally, a piece of foreign currency and a rifle with Jackson’s DNA were recovered. Officers also found $622 on McBride and $1106 on Jackson.

Jackson and McBride were arrested and taken to the police station and Zhu, Cai, Wong, and Duong were brought over for a show-up identification. All but Wong identified either one or both men as the robbers with seventy to one hundred percent certainty. Duong positively identified both men, stating that Jackson was the driver and McBride was the front seat passenger in the getaway vehicle.

On March 9, 2012, the State charged McBride with Counts I and II, class B felony criminal confinement, Counts III, IV, and V, class B felony robbery, and Counts VI, VII, VIII, class C felony battery. On March 13, 2012, McBride was appointed a public defender. On that day he also made a pro se request for a speedy trial, but on May 10, 2012, his counsel requested a continuance, which the trial court granted. McBride was unhappy about his appointed counsel’s decision to request a continuance despite his speedy trial request and proceeded to file motions and briefs pro se. McBride claimed that because his appointed counsel sought a continuance against his will and was not doing what he asked her to do, she had violated his constitutional right to counsel as well as the rules of professional conduct.

On July 31, 2012, a waiver of counsel hearing was held, during which McBride asked the trial court if he could proceed as co-counsel. This request was denied because the trial court stated he was attempting to take the lead in his own defense, thus placing his counsel at risk. McBride then petitioned the trial court to proceed pro se.

At a later hearing on August 16, 2012, the trial court questioned McBride about his knowledge of the requirements for pro se litigants and advised McBride of the responsibilities, dangers, and disadvantages that he might face by proceeding pro se. The trial court also told McBride he was responsible for objections and that objections are the manner in which he could preserve issues for appeal. The trial court specifically told McBride that if objections are not made during trial, that particular issue would be waived on appeal. During the advisement of rights hearing, the trial court was not convinced that McBride would be prepared to proceed pro se and expressed this concern to McBride several times. McBride acknowledged the fact that he needed counsel but refused to allow his appointed counsel to represent him because according to him, his rights had been violated by the appointed counsel.

Having been informed of no specific instance of how McBride’s rights had been violated by his counsel, the trial court told McBride that if he felt he needed counsel, he would have to accept his appointed counsel because there was no evidence that the appointed counsel had done anything wrong, and McBride did not have the right to counsel of his choice.

The trial court also verified that McBride had the educational background and mental capacity to defend himself and that no one had made either promises or threats to coerce him into waiving his right to counsel. After the trial court read the advisement of rights, McBride still insisted on representing himself and signed a written advisement form stating that he had thoroughly reviewed all the dangers and disadvantages of self-representation and had full knowledge of them. Although the trial court granted McBride’s request to proceed pro se, it also appointed McBride with “standby counsel” that could answer questions about trial procedure.

A jury trial was held from September 17-19, 2012. On September 19, 2012, the State dismissed Count VIII, and the jury found McBride guilty on Counts I through VII. During McBride’s sentencing hearing on October 5, 2012, the trial court merged Count I into II, Count VI into Count III, and Count VII into Count IV and sentenced McBride to six years of incarceration on Count II and eight years each on Counts III, IV, and V, with each sentence to run consecutively, for a total aggregate sentence of thirty years. McBride now appeals.

DISCUSSION AND DECISION

I. Waiver of Right to Counsel

McBride first alleges that the trial court erred when it permitted him to proceed pro se because his waiver of his right to counsel was not knowing, voluntary, and intelligent. Specifically, McBride claims that he only waived his right to counsel because a judge pro tempore informed him that by his actions of filing pro se motions and interposing objections, he had waived his right to counsel.

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to counsel. Jones v. State, 783 N.E.2d 1132, 1138 (Ind.2003). Implicit in the right to counsel is the right to self-representation. Drake v. State, 895 N.E.2d 389, 392 (Ind.Ct.App.2008). However, before a defendant waives his right to counsel and proceeds pro se, the trial court must determine that the defendant’s waiver of counsel is knowing, voluntary, and intelligent. Jones, 783 N.E.2d at 1138. We review de novo a trial court’s finding that a defendant waived his right to counsel. Miller v. State, 789 N.E.2d 32, 37 (Ind.Ct.App.2003)

“The right to counsel in a criminal proceeding does not mean that the defendant has an absolute right to be represented by counsel of his own choosing.” Smith v. State, 474 N.E.2d 973, 978-79 (Ind.1985). A trial court may, in the exercise of its sound discretion, deny a defendant’s request for a new court appointed attorney. Luck v. State, 466 N.E.2d 450, 451 (Ind.1984). Such a ruling is renewable only for an abuse of discretion. Id.

Our Supreme Court has stated that there are no specific “talking points” a trial court must follow when advising a defendant of the dangers and disadvantages of proceeding without counsel. Poynter v. State, 749 N.E.2d 1122, 1126 (Ind.2001). Instead, a trial court needs only to come to a “considered determination” that the defendant is making a knowing, voluntary, and intelligent waiver of his or her right to counsel. Id. Our Supreme Court has adopted four factors for a trial court to consider when determining whether a knowing, voluntary and intelligent waiver has occurred:

the extent of the court’s inquiry into the defendant’s decision, other evidence into the record that establishes whether the defendant understood the dangers and disadvantages of self-representation, the background and experience of the defendant, and the context of the defendant’s decision to proceed pro se.

Id. at 1127-28. In making this analysis, a trial court is in the best position to assess whether the defendant has made a knowing, voluntary, and intelligent waiver, and the trial court’s finding will most likely be upheld “where the judge has made the proper inquiries and conveyed the proper information, and reaches a reasoned conclusion.” Poynter, 749 N.E.2d at 1128.

We are perplexed by McBride’s involuntary waiver claim because he does not claim that the trial court failed to advise him of the advantages of having an attorney represent him. He makes no argument that the four Poynter factors were not met in his case but instead claims that he only waived his right to counsel because at a waiver of counsel hearing on July 31, 2012, a judge pro tempore informed him that he had waived his right to counsel by his actions of filing pro se motions and interposing objections. This is inaccurate because the record clearly shows that the judge pro tempore did not explicitly tell McBride that he had waived his rights by filing motions and briefs pro se. Instead, McBride was informed that if he wished to represent himself and continue filing motions and briefs pro se, the court would have to relieve his counsel of her obligations because McBride was attempting to take the lead in his own defense, thus placing his attorney at risk. Tr. p. 435. The trial court further stated that if McBride wished to allow his counsel do her job, she would continue to represent him and that this was his choice. Id. Moreover, not once during the August 16, 2012 hearing did McBride express to the trial court that he was waiving his right to counsel because he was advised by the judge pro tempore that his rights had already been waived.

McBride also makes the argument that he had requested, more than once, that the trial court appoint him alternative counsel but that his request was denied, thus showing that his waiver of right to counsel was involuntary. We reject McBride’s contention because McBride is not entitled to appointed counsel of his choosing. Smith, 474 N.E.2d at 978-79. And he presented no evidence establishing that his appointed counsel was ineffective. Accordingly, this argument fails.

II. Show-up Identification

McBride also claims that the trial court committed fundamental error when it admitted evidence obtained through an improper show-up identification procedure. Specifically, he argues that the show-up identification was overly suggestive because he was in handcuffs and the victims were informed before the identification that the police had recovered their properties from the defendant. McBride further contends that even though he failed to object at trial, the admission of the show-up identification evidence was fundamental error.

The admission or exclusion of evidence falls within the sound discretion of the trial court, and its determination regarding the admissibility of evidence is reviewed only for an abuse of discretion. Gordon v. State, 981 N.E.2d 1215, 1217 (Ind.Ct.App.2013). An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effects of the facts and circumstances before the court. Id. To preserve an error for review, the specific objection relied upon on appeal must have been stated in the trial court as a basis for the objection. Hale v. State, 976 N.E.2d 119, 123 (Ind.Ct.App.2012). Thus, a claim may be waived for the purposes of an appeal where the defendant failed to object that the evidence was improperly admitted. Id. at 1218.

As discussed above, the trial court specifically informed McBride that he would be responsible for objections and that those objections were how McBride would preserve errors for appeal. Tr. p. 453. The trial court further advised McBride that if he failed to make objections, he would waive those errors on appeal. Id. McBride stated that he understood these advisements. Id.

McBride admits that he did not oppose the admission of the show-up identification and that he did not move to suppress this evidence or object to its admission at trial. Appellant’s Br. p. 19. Thus, these issues are waived.

McBride attempts to avoid waiver by invoking the fundamental error doctrine. In support of this contention, McBride claims that the show-up identification procedure was unduly suggestive because the suspects were the only choice offered, as opposed to a lineup or photo array where multiple options are presented to the witnesses. However, the fundamental error doctrine is an extremely narrow doctrine and “applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Gordon, 981 N.E.2d at 1218.

Even though our Supreme Court has cautioned against one-on-one show-up identifications because of their inherent suggestiveness, identification evidence gathered via a show-up procedure is not subject to a per se rule of exclusion in accordance with the fundamental error doctrine. Id. Rather, the admissibility of show-up identification evidence turns on an evaluation of the totality of the circumstances and whether those circumstances lead to the conclusion that the confrontation was conducted in a manner that could guide a witness into making a mistaken identification. Id.

In Mitchell v. State, this Court listed several factors for trial courts to consider when determining whether show-up identification evidence was permissible, including the witness’s opportunity to view the criminal, the distance between the witness and the criminal during the crime, the lighting conditions, and the length of time between the commission of the crime and the show-up identification. 690 N.E.2d 1200, 1204 (Ind.Ct.App.1998)

Here, the crime scene was well-lit, and the surveillance video shows that the mask did not completely hide their facial features. State’s Ex. 11. Yixiu testified that he could see the shape of the faces of two of the robbers because the masks were very thin. Tr. p. 85-86. The show-up identification also occurred soon after the robbery, and the other witnesses presented testimony regarding their identification of McBride. Moreover, the first officer was at the scene around 4:30 p.m., McBride and Jackson were apprehended few blocks away around 5:00 p.m., and the witnesses were brought in for the show-up identification shortly thereafter. Id. at 53-54, 86, 198.

Under these circumstances, McBride has failed to show that the show-up identification was unduly suggestive. The State presented the surveillance video at trial as well as evidence that McBride and Jackson were apprehended wearing the same clothes the robbers were said to have been wearing with other stolen items found were they were apprehended. Id. at 255-65, 283; State’s Ex. p. 11, 48-53.

Nevertheless, McBride maintains that the show-up identification was unduly suggestive because the witnesses were told by the police that they had recovered the stolen property from them before the witnesses were asked to make the identification. Appellant’s Br. p. 18. However, Cai did not testify that any police officer told her anything that would have influenced her identification, and none of the other witnesses testified that they saw the items observed by Cai or that they were influenced by anything leading up to their identifications.

As a result, when considering the circumstances here, McBride’s claim of fundamental error fails.

III. Sentencing

A. Abuse of Discretion

McBride next argues that the trial court erred in imposing consecutive sentences. Specifically, he claims that even though he was sentenced to less than the advisory term on each of the class B felonies, the trial court erred by ordering that his sentences run consecutively, especially considering the fact that he has a minor criminal history.

The decision to impose consecutive sentences lies within the discretion of the trial court. Ind.Code § 35-50-1-2; Gilliam v. State, 901 N.E.2d 72, 74 (Ind. Ct.App.2009). However, a trial court is required to state its reasoning for imposing consecutive sentences. Gilliam, 901 N.E.2d at 74. In order to impose consecutive sentences, a trial court must find at least one aggravating circumstance. Owens v. State, 916 N.E.2d 913, 917 (Ind.Ct.App.2009). It is a well-established principle that the existence of multiple crimes or victims constitutes a valid aggravating circumstance that a trial court may consider in imposing consecutive sentences. O’Connell v. State, 742 N.E.2d 943, 952 (Ind.2001).

During McBride’s sentencing hearing, the trial court stated that the sentences should run consecutively because McBride and his co-defendant had committed the crimes against multiple victims in the presence of a six-year-old. Tr. p. 428. These are indeed valid aggravating circumstances that can be used to impose consecutive sentences.

McBride also alleges that the consecutive sentences are not appropriate because he has a minor criminal history. Appellant Br. p. 20. He further claims that he is the father of a three-year-old daughter and that imprisonment would result in undue hardship to him or his dependent. Id. at 24-25. Thus, it appears that McBride is arguing that the trial court erred by failing to find mitigating factors that were supported by the evidence.

Although the failure to find mitigating circumstances that are clearly supported by the record may suggest they were overlooked, a trial court does not have to afford the same credit or weight to the proffered mitigating circumstance as a defendant may suggest. Thacker v. State, 709 N.E.2d 3, 10 (Ind.1999). Moreover, if the trial court does not find the existence of a mitigating factor after it has been argued by counsel, the trial court is not obligated to explain why it has found that the factor does not exist. Anglemyer v. State, 868 N.E.2d 482, 493 (Ind.2007).

In this case, the trial court in fact considered McBride’s contentions that he had a less severe criminal history than his co-defendant and that imprisonment would result in undue hardship to him or his three-year-old daughter. However, the trial court found that these factors were not significant and, thus, were not factors that would have an impact on the sentence. Thus, McBride’s claim fails.

McBride also alleges that because he proceeded pro se, he was unaware of the statutory factors that the trial court could have considered under Indiana Code section 35-38-1-7.1 when sentencing him. Appellant Br. p. 24. McBride’s lack of knowledge regarding this statute does not affect the trial court’s sentencing decision. As discussed above, McBride’s waiver of counsel was knowingly, voluntarily, and intelligently made. Thus, he was therefore responsible for knowing what statutory factors he should argue at his sentencing hearing.

B. Inappropriate Sentence

Finally, McBride argues that his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B). Under this rule, we have the constitutional authority to revise a sentence if, after consideration of the trial court’s decision, this Court concludes the sentence is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). It is the defendant’s burden to “persuade the appellate court that his or her sentence has met the inappropriateness standard of review.” Anglemyer, 868 N.E.2d at 494.

Here, McBride has failed to make any discernible argument regarding the nature of the robbery or his character. Thus, we find that he has failed to present a cogent argument in support of this claim and has, therefore, waived the issue. See Ind.App. Rule 46(A)(8)(a).

Waiver notwithstanding, regarding the nature of the offenses, we note that the advisory sentence is the starting point our legislature has selected as an appropriate sentence for the crime committed. Chil dress v. State, 848 N.E.2d 1073, 1080 (Ind.2006). The advisory sentence for both class B felony criminal confinement and class B felony robbery is ten years with a sentencing range from six years to twenty years. I.C. § 35-50-2-5. McBride was sentenced to six years on the felony confinement conviction and eight years each on the felony robbery convictions. Thus, for each of his convictions, McBride’s sentences fell below the advisory term.

Our review of the record reveals that McBride committed multiple crimes of violence. McBride and the other men robbed the victims while armed with guns that they used to physically assault the victims. They also bound the victims with duct tape and confined them in the kitchen with guns pointed at them. And finally, they engaged in this conduct in the presence of a six-year-old boy.

Notwithstanding these circumstances, McBride claims that the offenses should be considered as being less serious because the guns recovered were unloaded and he could not have shot anyone during this incident. However, McBride and the other men used the guns in a threatening manner causing the victims to experience substantial fear. Indeed, although the guns were not fired at the victims, the guns were used to inflict bodily injuries on the victims. Thus, McBride’s nature of the offense argument avails him of nothing.

Likewise, our review of McBride’s character reveals that McBride has a lengthy criminal history that involves prior crimes of violence. As a juvenile, McBride had four true findings for battery and one for disorderly conduct. PSI p. 4-5. As an adult, McBride has convictions for class D felony battery, class A misdemeanor resisting law enforcement, and violation of his probation. Id. at 5-6.

McBride argues that the State contended at sentencing that he was at a very high risk to reoffend but that there was nothing to support the State’s contention but for the deputy prosecutor’s speculations. Notwithstanding this claim, that McBride is likely to reoffend was not an aggravating circumstance considered by the trial court. However, McBride’s criminal and juvenile histories demonstrate that he has no respect for our judicial system despite the opportunities that were offered to him to change. As a result, McBride has failed to show that his sentence was inappropriate.

Conclusion

In sum, we conclude that McBride made a knowing, voluntary, and intelligent waiver of his right to counsel. We also conclude that McBride waived his objection to the show-up identification, and the show-up procedure did not amount to fundamental error. Finally, we conclude that the trial court neither abused its discretion in sentencing McBride nor sentenced him inappropriately.

The judgment of the trial court is affirmed.

MAY and MATHIAS, JJ., concur.

      . Ind.Code § 35-42-3-3.

      . I.C. § 35-42-5-1.

      .I.C. § 35-42-2-1

      . Adrian Jackson’s appeal has been assigned appellate cause number 49A05-121 l-CR-553, and we hand down that appeal contemporaneously with this one.


source: Caselaw Access Project

author: CRONE, Judge.

license: Public Domain

text:
    Natasha F. HORTENBERRY, Appellant-Defendant, v. Thomas PALMER, Appellee-Defendant.
    No. 10A04-1301-CT-17.
    Court of Appeals of Indiana.
    Aug. 15, 2013.
    Rehearing Denied Oct. 17, 2013.

      Larry R. Church, McNeely Stephenson Thopy & Harrold, New Albany, IN, Attorney for Appellant.
    Earl C. Mullins, Jr., Masters, Mullins & Arrington, Sellersburg, IN, Attorney for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Thomas Palmer attempted to initiate a negligence action against Natasha F. Hor-tenberry, but the check he sent to the clerk along with the complaint was $2 less than the applicable filing fee. By the time that Palmer realized the mistake and rectified it, the statute of limitations had run. Palmer filed a motion with the trial court requesting that the complaint be treated as if it had been timely filed, and the court granted the motion. On the same day that the motion was granted, an attorney entered an appearance for Hortenberry, and when he realized that Palmer’s motion had been granted, he filed a motion to set aside the order. The trial court denied that motion, and Hortenberry now appeals. Because Indiana Trial Rule 3 and Indiana Supreme Court precedent clearly indicate that paying the filing fee is required for the commencement of an action, we conclude that the trial court erred by denying Hortenberry’s motion. Therefore, we reverse and remand.

Facts and Procedural History

On August 23, 2010, Palmer and Horten-berry were in an automobile accident in Clark County. On August 10, 2012, counsel for Palmer mailed to the clerk of the Clark Circuit Court a complaint, appearance, summons, and check. Although the cover sheet indicated that the check was for $189, the applicable filing fee, the check was actually for $187. On August 22, 2012, the clerk’s office called Palmer’s counsel to inform him that an additional $2 was needed. Palmer’s counsel mailed a check for $2 the following day.

The complaint was stamped filed on August 27, 2012. Because the two-year statute of limitations had run by then, Palmer filed on August 30 a “Motion to Treat the Complaint Herein as Filed Prior to August 22, 2012.” Appellant’s App. at 18. Because no attorney had yet filed an appearance for Hortenberry, Palmer served the motion on Hortenberry. On September 10, 2012, the trial court granted Palmer’s motion, but the order was not promptly noted on the chronological case summary. The same day, an attorney filed an appearance for Hortenberry. Not realizing that Palmer’s motion had already been granted, Hortenberry’s counsel filed a response to the motion on September 14, 2012. After learning that the motion had been granted, Hortenberry’s counsel filed a “Motion to Set Aside the Court’s Order to Treat the Complaint as Filed Prior to August 22, 2012 and to Set Hearing” and a memorandum in support. Id. at 41. The memorandum argued that, pursuant to Trial Rule 3 and supreme court precedent, payment of the filing fee is a prerequisite to the commencement of an action. On October 24, 2012, Palmer filed a response, and on October 31, 2012, Hortenberry filed a reply.

The trial court heard arguments on the motion on November 9, 2012. The same day, the trial court issued an order denying Hortenberry’s motion. Relying on Trial Rule l’s provision that the Indiana Trial Rules “shall be construed to secure the just, speedy and inexpensive determination of every action,” the court concluded that “an inadvertent clerical error (a $2.00 shortfall of the fee that was only recently increased) should not deprive Plaintiff of a right to litigate his claim in court.” Id. at 69. Hortenberry filed a motion to certify the order for interlocutory appeal, which the trial court granted. On February 22, 2013, we accepted jurisdiction.

Discussion and Decision

Hortenberry argues that the trial court erred by denying her motion to set aside the order treating Palmer’s complaint as though it had been filed prior to August 22, 2012. Although they disagree on the reason, the parties agree that our standard of review is de novo.

Trial Rule 3 provides:

A civil action is commenced by filing with the court a complaint or such equivalent pleading or document as may be specified by statute, by payment of the prescribed filing fee or filing an order waiving the filing fee, and, where service of process is required, by furnishing to the clerk as many copies of the complaint and summons as are necessary.

(Emphasis added.)

The italicized language was added after our supreme court decided Boostrom v. Bach, 622 N.E.2d 175 (Ind.1993), cert. denied (1994). Boostrom attempted to commence a small claims action against Bach on January 12,1990, the same day that the statute of limitations was to run. Boos-trom sent her complaint to the clerk via certified mail, but did not enclose payment for the filing fee. The clerk sent Boos-trom a letter informing her that she needed to pay the fee. She complied on February 5, and her complaint was file-marked as of that date. Bach moved for summary judgment and argued that the action was time-barred. Boostrom filed a “Motion to Correct Minutes,” whereby she sought to have her complaint marked as having been filed on January 12. The court denied Boostrom’s motion and granted summary judgment for Bach.

Boostrom appealed, and the Court of Appeals reversed on the ground that Boostrom had complied with Trial Rule 5(E) regarding filing. Our supreme court granted transfer and concluded that Trial Rule 5(E) “only defines how a required filing may be made” and that an action was not commenced in the meaning of Trial Rule 3 until the filing fee was paid. Id. at 176-77. The supreme court rejected Boos-trom’s reliance on Brady v. Eastern Indiana Production Credit Association, 396 N.E.2d 335 (Ind.1978), in which the court had ruled that failure to tender the filing fee did not deprive the Court of Appeals of jurisdiction to hear an appeal when the record had been timely filed:

This holding was grounded on the belief that appeals ought be disposed of on the merits whenever possible, Brady, 396 N.E.2d at 335, and that there are numerous methods by which to enforce effectively the payment of filing fees other than by couching such enforcement in jurisdictional terms. Id.; Brady v. Eastern Ind. Prod. Credit Ass’n (1977), Ind.App., 360 N.E.2d 1267, 1269 (Sullivan, J., dissenting). Hinging commencement of an action under T.R. 3 to the payment of filing fees is one such method. Moreover, this Court’s desire to dispose of appeals on the merits whenever possible does not displace the legislative policy which undergirds the statute of limitations.
The Brady court rightly concluded that prepayment of the appellate filing fee was neither required by the statute then controlling nor central to accomplishing the objectives of the rules which govern submission of appeals. Those rules exist to facilitate the orderly presentation and disposition of appeals and prevent the confusing and awkward situation of having the trial and appellate courts simultaneously review the correctness of a judgment. Coulson v. Indiana & Michigan Elec. Co. (1984), Ind., 471 N.E.2d 278. The filing of a praecipe and subsequent presentation of the record fully safeguard these interests. On the other hand, the statute of limitations exists not only to spare courts from stale claims, Matter of M.D.H. (1982), Ind.App., 437 N.E.2d 119, but also “to insure that parties are given formal and seasonable notice that a claim is being asserted against them.” State ex rel. Young v. Noble Circuit Court (1975), 263 Ind. 353, 359, 332 N.E.2d 99, 103.
Tendering the prescribed court costs fee is relevant as to this latter objective. Cf. Ind.Code Ann. § 33-19-3-5 (West Supp.1992) (costs fee include cost of initiating service of process) [recodified as Ind.Code § 33-37-3-6].

Boostrom, 622 N.E.2d at 176 (footnote omitted). The court further noted that payment of the filing fee “is wholly in the hands of the plaintiff.” Id. at 177.

Trial Rule 3 was later amended to reflect the holding of Boostrom. Boostrom is the current state of the law and has been followed on a number of occasions. See, e.g., Ft. Wayne Int’l Airport v. Wilburn, 723 N.E.2d 967, 968-69 (Ind.Ct.App.2000) (action was not commenced until plaintiff tendered summons, as required by Trial Rule 3), trans. denied; Ray-Hayes v. Heinamann, 760 N.E.2d 172, 174-75 (Ind.2002) (confirming that Boostrom applies to cases on the plenary docket); Webster v. Walgreen Co., 966 N.E.2d 689, 692-93 (Ind.Ct.App.2012) (relying on Boostrom’s reasoning that payment of the fee is wholly within the plaintiffs hands, court concluded that complaint was not mailed within meaning of Trial Rule 5 unless adequate postage was affixed), trans. denied.

Palmer argues that the foregoing cases are distinguishable because they involve a complete failure to comply with one of the requirements of Trial Rule 3, whereas he “substantially complied” by tendering a payment that, through inadvertent error, was $2 short. He urges us to instead follow the reasoning of Holmes v. Celadon Trucking Services of Indiana, Inc., 936 N.E.2d 1254 (Ind.Ct.App.2010), trans. not sought. In Holmes, we held that an action was timely commenced even though plaintiffs counsel failed to file an appearance as required by Trial Rule 3.1. 936 N.E.2d at 1257-58. Despite Palmer’s protestation that he substantially complied with Trial Rule 3, Boostrom and its progeny, which dealt with interpretation of Trial Rule 3, are more directly on point than Holmes, which dealt with interpretation of Trial Rule 3.1.

In their briefs, the parties also discussed Miller v. Dobbs, which was pending before our supreme court at the time of briefing. In Miller, a majority of the Court of Appeals panel held that a medical malpractice action was timely commenced when it was mailed to the Department of Insurance within the statute of limitations even though the plaintiff had failed to enclose the required processing and filing fees. Miller v. Dobbs, 976 N.E.2d 91, 98-99 (Ind.Ct.App.2012), trans. granted (2013). Our supreme court recently issued an opinion in the case in which it also ruled in the plaintiffs favor. Miller v. Dobbs, 991 N.E.2d 562, 564-65 (Ind.2013). The court based its decision on Indiana Code Section 34-18-7-3(b), which states that a proposed malpractice complaint “is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” Miller, 991 N.E.2d at 564. The filing and processing fees, on the other hand, are set forth in a separate section of the Indiana Code. Id.

Miller does not overrule Boostrom; in fact, Miller favorably quoted portions of the Boostrom opinion. Id. Miller turned on a “straightforward statutory ground,” and did not involve interpretation of Trial Rule 3. Id. at 565 The statute at issue in Miller, unlike Trial Rule 3, does not specify that payment of the applicable fees is required for the commencement of the action. Id. at 564-65. The language of Trial Rule 3, which was promulgated by our supreme court, see Trial Rule 80 (governing amendment of the Trial Rules), remains unchanged.

While we recognize that following Boos-trom produces a harsh result in this case, Boostrom thoroughly considered the competing policy arguments. Boostrom acknowledged our preference to decide cases on their merits, yet concluded that that preference “does not displace the legislative policy which undergirds the statute of limitations,” that is, to spare courts from stale claims and insure that parties are given seasonable notice that a claim is being asserted against them. 622 N.E.2d at 176. As in Boostrom, payment of the applicable fee was wholly within the plaintiffs hands. Although Palmer asserts that substantial compliance can be judged on a case-by-case basis, he does not suggest any sort of workable standard for clerks or courts to determine what constitutes substantial compliance. We think that our supreme court intended to create a bright-line rule for determining when an action has been commenced and has left us with no discretion in the matter. Therefore, we conclude that the trial court erred by relying on Trial Rule 1 to allow the ease to proceed rather than applying the clear language of Trial Rule 8, and we reverse the ruling of the trial court and remand for further proceedings consistent with this opinion.

Reversed and remanded.

BARNES, J., and PYLE, J., concur.

      . The parties disagree as to whether this order constituted an ex parte order; however, because Hortenberry does not argue that this is a reason for setting aside the order, we will not address these contentions.

      . The parties had stipulated that the filing fee for a civil action increased by $2 on July 1, 2012.

      . Hortenberry asserts that our standard of review is de novo because the case turns on the interpretation of the Trial Rules. See Gulf Stream Coach, Inc. v. Cronin, 903 N.E.2d 109, 111 (Ind.Ct.App.2009) (interpretation of a Trial Rule is a question of law reviewed de novo). Palmer argues that Hortenberry’s motion was in effect a motion to dismiss for lack of subject matter jurisdiction due to the running of the statute of limitations. When the facts are not in dispute, a ruling on a motion to dismiss for lack of subject matter jurisdiction is reviewed de novo. GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind.2001).

      . The supreme court granted rehearing in Ray-Hayes and made the ruling prospective only. Ray-Hayes v. Heinamann, 768 N.E.2d 899, 901 (Ind.2002). Trial Rule 3 was amended on December 21, 2001 (effective April 1, 2002), while transfer was pending in Ray-Hayes.


author: BAKER, Judge.

text:
    Adrian JACKSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1211-CR-553.
    Court of Appeals of Indiana.
    Aug. 15, 2013.

      Darren Bedwell, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this case, a criminal defendant asserted his constitutional right to self-representation but unfortunately discovered that proceeding pro se is riddled with pitfalls. Following a jury trial, the appellant-defendant, Adrian Jackson, was found guilty of Counts I and II, class B felony Criminal Confinement, Counts III, IV, and V, class B felony Robbery, and Counts VI and VII, class C felony Battery. Following a sentencing hearing, the trial court sentenced Jackson to an aggregate term of thirty years.

Jackson appeals, requesting a new trial with new counsel. Jackson claims that the trial court failed to inquire into his appointed counsel’s alleged conflict of interest when Jackson advised the court that he wished to proceed pro se and that the trial court should have appointed him alternative counsel. Jackson also claims that the trial court violated his Sixth Amendment right to counsel because he did not make a knowing, voluntary, and intelligent waiver of this right.

Concluding that the trial court had no duty to inquire into Jackson’s conflict of interest allegations or to appoint Jackson alternative counsel when he decided to proceed pro se and that Jackson made a knowing, voluntary, and intelligent waiver of his right to counsel, we affirm the judgment of the trial court.

FACTS

On March 7, 2012, around 4:30 p.m., Officer Ryan Irwin of the Indianapolis Metropolitan Police Department (IMPD) responded to the dispatch of a robbery in progress at the Oriental Market (Market), a grocery store on Lafayette Road owned by Bay Le Zhu (Zhu) and her husband. Officer Irwin arrived within one minute and found that the employees, two of whom had obvious injuries, and Zhu’s six-year-old son Brian were locked inside the Market. Officer Irwin also found a twelve gauge shotgun lying on the ground next to the Market.

It was later established that Zhu, Brian, Zhu’s nephew Yixiu Chen (Yixiu), and family friends Kia Wong (Wong) and his wife, Cai Nong Chen (Cai), were all at the Market when Jackson and two other men, each armed and wearing dark clothing, gloves, and masks, entered the Market through a back door and locked the door behind them. The men confined everyone in the kitchen, striking several of the victims with their guns and binding their hands and legs with duct tape. After the men demanded money, Zhu gave them $1200 that she had in her pocket and was escorted out of the kitchen to the cash register, where the men took additional money. When Van Duong, a regular customer, came by, he noticed that the door was locked even though the lights were on and the “open” sign was displayed. Suspicious, Duong peered through the Market window and observed masked men but none of the store employees. When he looked again, he saw Zhu taking money from the register, and she gave him a sign to call for help.

Jackson and the other men escaped in Wong’s car, taking with them Wong’s cell phone, Yixiu’s cell phone and a bunch of keys, including his house and the Market keys, Zhu’s purse and keys, the $1200 that Zhu had on her, and the money from the cash register. Duong got a good look at Jackson and provided the license plate number of the getaway vehicle to the 911 dispatcher. He also reported that the vehicle had traveled south on Lafayette Road. Officers located the vehicle after a citizen reported seeing someone flee from it.

At around 5:00 p.m., Jackson and his co-defendant Kenneth McBride were apprehended. They were found crouched down between a wood deck area and a garage, wearing dark clothing and shoes matching those worn by the robbers. Around and under the deck where Jackson and McBride were apprehended, the officers recovered several pieces of dark clothing, including a stocking cap mask, three dark gloves, a distinctive jacket worn by one of the men during the robbery with a Bic lighter in it that matched McBride’s DNA, multiple cell phones, a set of keys, and a small purse, all of which were items taken from the victims during the robbery. Additionally, a piece of foreign currency and a rifle with Jackson’s DNA were recovered. Police officers also found $1106 on Jackson and $622 on McBride.

Jackson and McBride were arrested and taken to the police station, and Zhu, Cai, Wong, and Duong were brought over for a show-up identification. All but Wong identified either one or both men as the robbers with seventy to one hundred percent certainty. Duong positively identified both men, stating that Jackson was the driver and that McBride was the front seat passenger in the getaway vehicle.

On March 9, 2012, the State charged Jackson with Counts I and II, class B felony criminal confinement, Counts III, IV, and V, class B felony robbery, and Counts VI, VII, and VIII, class C felony battery. On March 13, 2012, the trial court held an initial hearing and found that Jackson was not indigent. However, during a pretrial conference hearing on April 19, 2012, the trial court found Jackson indigent and appointed him a public defender. On May 10, 2012, the trial court appointed attorney Josh Moudy to defend Jackson.

On August 9, 2012, Jackson informed the trial court that he wanted to proceed pro se. At a hearing on August 16, 2012, the trial court questioned Jackson about his knowledge of the requirements for pro se litigants and advised Jackson of the responsibilities he would have to assume by representing himself along with the disadvantages and dangers he may face. The trial court also verified that Jackson had the educational background and mental capacity to defend himself and that no one had made promises or threats to coerce him into waiving his right to counsel. After the trial court had read the advisement of rights to Jackson, he still insisted on representing himself and signed a written advisement form stating that he had thoroughly reviewed all the dangers and disadvantages of self-representation and had full knowledge of them. Although the trial court granted Jackson’s request to proceed pro se, it also appointed Jackson with “standby counsel” who could answer any of his questions about trial procedure during the trial but could not actively represent him at the trial.

A jury trial was held from September 17-19, 2012. On September 19, 2012, the State dismissed Count VIII due to eviden-tiary issues, and the jury found Jackson guilty on Counts I through VII. During Jackson’s sentencing hearing on October 5, 2012, the trial court merged Count I into Count II, Count VI into Count III, and Count VII into Count IV. The trial court then sentenced Jackson to six years of incarceration on Count II and to eight years each on Counts III, IV, and V, with each sentence to run consecutively, for a total aggregate sentence of thirty years. Jackson now appeals.

DISCUSSION AND DECISION

Jackson alleges that his Sixth Amendment right to counsel was violated because he did not make a knowing, voluntary, and intelligent waiver of his right to counsel when the trial court granted his request to proceed pro se. He points out that when he expressed his concerns about the appointed counsel working for the State, the trial court did not inquire into his allegation of this being a conflict of interest and did not appoint him with alternative counsel, thus leaving him with no choice other than to proceed pro se. Essentially, Jackson suggests that we find invalid his waiver of right to counsel not because the trial court failed to advise him properly on self-representation, but because the trial court failed to inquire into his allegation of a conflict of interest, for which he presented no evidence, or appoint him new counsel.

Jackson’s claim cannot be analyzed as one issue as he suggests. Rather, we separate Jackson’s arguments into two issues and discuss them separately, as one argument does not logically lead to the other.

I. Conflict of Interest

We review a trial court’s decision to appoint counsel to an indigent defendant only for an abuse of discretion. Smith v. State, 474 N.E.2d 973, 978-79 (Ind.1985). “The right to counsel in a criminal proceeding does not mean that the defendant has an absolute right to be represented by counsel of his own choosing.” Id. at 979. A trial court may, in the exercise of its sound discretion, deny a defendant’s request for a new court-appointed attorney. Luck v. State, 466 N.E.2d 450, 451 (Ind.1984). Our Supreme Court, in State v. Irvin, noted that the services of an attorney appointed by the trial court may not be forced upon an indigent defendant but if the defendant refuses to be represented by the appointed counsel, then the defendant must find some method to employ his own counsel or proceed pro se. 259 Ind. 610, 615-16, 291 N.E.2d 70, 74 (1973).

The Sixth Amendment generally does not impose a duty on the trial court to inquire into a defendant’s conflict of interest claim. Johnson v. State, 948 N.E.2d 331, 335-36 (Ind.2011). Instead, the presumption is that the appointed defense counsel is competent. Irvin, 259 Ind. 610, 614, 291 N.E.2d 70, 73. This presumption can be overcome only if it is shown that the attorney’s actions or inac-tions made the proceedings a mockery and constituted a shock to the conscience of the court. Id.

In the instant ease, the trial court appointed defense counsel to represent Jackson as guaranteed by the Sixth Amendment. However, prior to his trial, Jackson expressed to the trial court his concerns about his appointed counsel working for the State and asked to proceed pro se. He did not ask the court to appoint him substitute counsel. Other than his bald accusations, Jackson presented no evidence to support his allegation that his defense counsel was working for the State.

After reviewing the record, it is obvious that Jackson’s allegations concerning his appointed counsel’s alleged conflict of interest are vague, lack merit, and basically indicate Jackson’s lack of confidence in Court-appointed counsel. The trial court afforded Jackson many opportunities to present evidence or give specific instances of what his counsel did or did not do by asking him general and specific questions as to how Jackson’s counsel was “helping” the State. Tr. p. 443. Jackson could not point to any specific acts his counsel had taken that appeared detrimental to his interests and intended to assist the prosecution. Instead, Jackson kept repeating that his counsel was “helping” the State and “trying everything” against him. Id. at 443. Therefore, Jackson failed to overcome the presumption that his appointed counsel was competent to represent him.

The trial court also did not err in failing to appoint Jackson with alternative counsel because Jackson never requested substitute counsel and made it clear that he wanted to proceed pro se. However, even if Jackson had asked for alternative counsel, he was not entitled to different counsel when he presented no evidence that his appointed counsel was working for the State. Like our Supreme Court stated in Irvin, if Jackson refused to be represented by the counsel appointed by the trial court, Jackson’s options were to employ his own counsel or to proceed pro se, and Jackson opted to proceed pro se. 259 Ind. 610, 615-16, 291 N.E.2d 70, 74.

Jackson directs us to Holloway v. Arkansas and Cuyler v. Sullivan in support of his position that a conflict of interest existed in his own case. 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). However, Jackson’s reliance on these cases is inapposite as they do not apply to his situation. In Holloway, three defendants were represented by the same counsel in a single trial over defense counsel’s objection to the trial court that he could not adequately represent the defendants’ conflicting interests. 435 U.S. at 477-80, 98 S.Ct. 1173. Similarly, in Cuyler, three defendants, each accused of murder, were tried separately but represented by the same counsel. 446 U.S. at 337-39, 350, 100 S.Ct. 1708. The United States Supreme Court held that both cases dealt with potential conflicts of interest because in each case, the same counsel was appointed to either defend multiple co-defendants in a single trial or to defend multiple co-defendants in separate trials.

In this case, however, Jackson failed to show the existence of a potential conflict of interest. Put another way, we find that Jackson failed to establish that his counsel was burdened by a conflict of interest sufficient to trigger the trial court’s Sixth Amendment duty of inquiry under Holloway and Cuyler. The record thus showed no material basis for an alleged conflict of interest, leaving the trial court with nothing into which to inquire.

II. Waiver of the Right to Counsel

Jackson also alleges that the trial court violated his Sixth Amendment right to counsel because he did not make a knowing, voluntary, and intelligent waiver of his right to counsel. Jackson claims he only waived his right to counsel because he did not want to be represented by his appointed counsel and the trial court would not appoint him alternative counsel.

We review de novo a trial court’s finding that a defendant waived his right to counsel. Miller v. State, 789 N.E.2d 32, 37 (Ind.Ct.App.2003). A criminal defendant’s Sixth Amendment right to counsel is essential to the fairness of a criminal proceeding. Drake v. State, 895 N.E.2d 389, 392 (Ind.Ct.App.2008). Implicit in the right to counsel is the right to self-representation. Id. However, before a defendant waives his right to counsel and proceeds pro se, the trial court must determine that the defendant’s waiver of counsel is knowing, voluntary, and intelligent. Jones v. State, 783 N.E.2d 1132, 1138 (Ind.2003).

When a defendant asserts his or her right to proceed pro se, the trial court must “acquaint the defendant with the advantages to attorney representation and the disadvantages and the dangers of self-representation.” Id. Our Supreme Court has stated that there are no specific “talking points” a trial court must follow when advising a defendant of the dangers and disadvantages of proceeding without counsel. Poynter v. State, 749 N.E.2d 1122, 1126 (Ind.2001). Instead, a trial court needs only to come to a “considered determination” that the defendant is making a knowing, voluntary and intelligent waiver of his or her right to counsel. Id.

Our Supreme Court has adopted four factors for a trial court to consider when determining whether a knowing, voluntary, and intelligent waiver has occurred:

(1) the extent of the court’s inquiry into the defendant’s decision, (2) other evidence into 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.

Id. at 1127-28. In making this analysis, a trial court is in the best position to assess whether the defendant has made a knowing, voluntary, and intelligent waiver, and the trial court’s finding will most likely be upheld “where the judge has made the proper inquiries and conveyed the proper information, and reaches a reasoned conclusion.” Poynter, 749 N.E.2d at 1128.

We find Jackson’s involuntary waiver claim somewhat confusing because he does not claim that the trial court failed to advise him of the advantages of having an attorney represent him. He makes no argument that the four Poynter factors were not met in his case. Accordingly, we conclude that Jackson has waived this issue by failing to present a cogent argument. See Daniels v. State, 515 N.E.2d 530, 530 (Ind.1987) (waiving a defendant’s insufficiency of the evidence claim for failure to present a cogent argument). Waiver notwithstanding, we find that the Poyn-ter factors were satisfied.

The first two factors set forth in Poyn-ter focus on whether the defendant had sufficient information about the dangers and disadvantages of self-representation, either through the trial court’s inquiry or through any other evidence in the record. Here, during Jackson’s advisement of rights hearing on August 16, 2012, the trial court asked Jackson questions about proceeding pro se. Jackson told the trial court that he based his decision to proceed pro se on his perception that his counsel would not represent him adequately due to a conflict of interest. The trial court asked if Jackson understood the charges against him and explained the possibility that there might be lesser included offenses that could be part of the case. Tr. p. 447. Jackson was advised of the advantages counsel could provide him. Specifically, the trial court asked if Jackson understood that counsel would be better at investigating the case because counsel is not in confinement and could speak to people and get witnesses to testify on his behalf and also because counsel has been specifically trained in trial procedure. Id. at 444-45. Jackson answered in the affirmative but still insisted on proceeding pro se. Id.

The trial court also warned Jackson about the dangers and disadvantages of self-representation, informing him that he would be responsible for challenging any juror during voir dire and making opening and closing arguments. Tr. p. 441. Moreover, Jackson was advised that it would be harder for him to prepare and present his case while he is sitting in jail and that he is at a disadvantage because the State is represented by an attorney. Id. at 445-46. The trial court also warned Jackson that “it will be a disadvantage for him when trying to elicit testimony from himself because he would not have an attorney asking him questions and that Jackson is going to have to speak.” Id. at 446. Jackson was also asked if he understood that the State would likely be making a lot of objections and that those objections would probably be sustained and that this could lead to frustration by Jackson. Id. Finally, the trial court advised Jackson that his decision to represent himself did not mean he would be treated specially during the course of the trial. Id. at 448.

Here, the record not only showed that the trial court fully explained to Jackson the advantages of having counsel represent him and all the possible dangers and disadvantages of self-representation but also that Jackson understood the trial court’s warnings. Jackson’s obvious intelligence and grasp of the issues surrounding his trial, as well as the dangers and disadvantages impressed on him by the trial court, lead us to conclude that Jackson understood the difficulties and dangers of self-representation.

The third Poynter factor concerns whether a defendant has the background and experience necessary to make a knowing, voluntary, and intelligent waiver of his right to counsel. In Taylor v. State, this Court held that the defendant’s decision to proceed pro se was knowingly, voluntarily, and intelligently made where the trial court explained to the defendant that it was ill-advised to proceed pro se when facing serious criminal charges, warned the defendant of the charges he could face, inquired into the defendant’s education, and confirmed the defendant’s previous contacts with the criminal justice system, which included convictions for five felonies and eight misdemeanors. 944 N.E.2d 84, 91 (Ind.Ct.App.2011).

We conclude that Jackson’s case is analogous to Taylor. Here, the trial court questioned Jackson about his educational background and whether he had the mental capacity to conduct the trial on his own. Tr. p. 447. Jackson said he did not have the educational background but insisted he did not want to be represented by the court-appointed counsel. Id. He was also questioned on what he knew about the rules of evidence. He responded by saying he would stay in the library and keep working on his case the best way he could and that he would be prepared for the trial. Id. at 442. Additionally, Jackson has had previous contacts with our criminal justice system that, according to the Presentence Investigation Report, include juvenile adjudications for class D felony offenses of attempted theft and possession of cocaine, and misdemeanor offenses of criminal mischief, trespass, and conversion. PSI p. 5-7. And as an adult, Jackson had prior convictions for class D felony auto theft, class C felony carrying a handgun without a license, and misdemeanor conversion. Id. at 7-10. Thus, Jackson was no stranger to the criminal justice system and obviously knew he had the right to counsel. Tr. p. 447. Moreover, if he had any problems during the trial with the legal process, the standby counsel was there to answer his questions. Id.

Finally, the fourth Poynter factor examines the context of the defendant’s decision to proceed pro se. If a defendant’s decision to proceed pro se appears tactical, then this factor weighs in favor of finding a knowing, voluntary, and intelligent waiver. Poynter, 749 N.E.2d at 1128 n. 6. Jackson believed representing himself was to his strategic advantage because he thought his appointed counsel had a conflict of interest. He waited until a month before the trial date to express his dissatisfaction with his court-appointed counsel. Jackson brought his claim against his counsel during the advisement of rights hearing on August 16, 2012, one month prior to his trial set for September 17, 2012. If the trial court decided to appoint Jackson new counsel, this would have led to a continuance and further delay of the case.

Subsequently, Jackson was insistent that he wanted to represent himself and told the trial court that he would go to the law library to prepare his case and would be ready for his trial. Tr. p. 442. Having been convicted, Jackson now comes before this Court alleging his waiver of counsel was not knowing, voluntary, and intelligent because his strategy failed. If Jackson truly felt proceeding pro se was not in his best interest, he would have pleaded to the trial court to appoint him another counsel. This he never did. However, since Jackson has had numerous involvements with the court system, it is likely that he had been represented by a public defender in the past and felt that it would be a better tactical move to proceed pro se this time around.

Moreover, it does not appear from the record that Jackson was coerced into his decision to proceed pro se. The trial court questioned Jackson on whether anyone made any promises or threats to get him to waive his right to counsel and specifically asked if his decision to proceed pro se was made of his own free will. Jackson acknowledged that no one made any threats or promises to him about waiving his right to counsel and indicated that his decision to proceed pro se was made freely and voluntarily. Tr. p. 448. Jackson also denied being influenced to proceed pro se by his co-defendant. Id.

CONCLUSION

In conclusion, we find that the trial court properly inquired into Jackson’s request to proceed pro se and provided him with sufficient advisements related to his decision to forfeit that right. Jackson also signed a written advisement form that stated that he had thoroughly reviewed all the dangers and disadvantages of self-representation and had full knowledge of them. Jackson cannot now contend that his waiver of his right to counsel was not knowing, voluntary, or intelligent just because his choice to proceed pro se was due to his dissatisfaction with the way his appointed counsel was representing him.

We therefore conclude that Jackson was not denied his Sixth Amendment right to counsel and that the trial court properly determined that Jackson’s waiver of his right to counsel was knowing, voluntary, and intelligent. As a result, we decline to disturb Jackson’s convictions.

The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.

      . Ind.Code § 35-42-3-3.

      . I.C. § 35-42-5-1.

      .I.C. § 35-42-2-1.

      . Kenneth McBride's appeal has been assigned appellate cause number 49A05-1211-CR-547, and we hand down that appeal contemporaneously with this one.


text:
    Danny STEPHENS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1301-CR-18.
    Court of Appeals of Indiana.
    Aug. 15, 2013.

      Timothy J. Burns, Indianapolis, IN, Attorney for Appellant.
   OPINION

CRONE, Judge.

Case Summary

Danny Stephens got drunk at home, was assaulted by his niece’s boyfriend, and left the house when the police failed to arrest the boyfriend. He went to a public place and called the police, admitting that he was drunk and requesting that they take him to jail so that he would not have to return home. The State charged him with class B misdemeanor public intoxication, and a trial court convicted him as charged.

Stephens now appeals, challenging the sufficiency of evidence to support his conviction. Finding the evidence insufficient to establish that Stephens endangered either his life or another person’s life, breached the peace or was in imminent danger of breaching the peace, or harassed, annoyed, or alarmed another person, we reverse.

Facts and Procedural History

In October 2012, Stephens lived with his niece, who had guardianship over him due to a brain injury he had suffered seven years earlier. On October 6, 2012, police were dispatched to their residence to investigate an altercation between Stephens’s niece and her boyfriend, during which the boyfriend body-slammed Stephens. Police made no arrests and left the home. Shortly thereafter, Stephens, who had been drinking alcohol, walked to a nearby convenience store and called the police. Minutes later, Indianapolis Metropolitan Police Officer Freddie Haddad arrived in the store parking lot, and Stephens waved and approached his police vehicle. Officer Haddad noticed that Stephens smelled of alcohol and had bloodshot eyes, slurred speech, and an unsteady gait. Stephens told Officer Haddad that he was very drunk and had been drinking all night. He requested that the officer take him to jail, explaining that he did not want to return home because of an altercation with his niece’s boyfriend just minutes earlier. He reported to Officer Haddad that the police had responded to the altercation but had made no arrests. Stephens told the officer that he would prefer to go to jail because, if he went home, “another fight would ensue and police would just get called back there.” Tr. at 9. Officer Had-dad placed him under arrest and took him to jail.

The State charged Stephens with class B misdemeanor public intoxication. Following a bench trial, the trial court found him guilty as charged. This appeal ensued.

Discussion and Decision

Stephens challenges the sufficiency of evidence to support his conviction. To convict Stephens, the State bore the burden of proving each element of the charged offense beyond a reasonable doubt. Moore v. State, 673 N.E.2d 776, 779 (Ind.Ct.App.1996), trans. denied (1997). When reviewing insufficiency of evidence claims, we neither reweigh evidence nor judge witness credibility. Mathews v. State, 978 N.E.2d 438, 443 (Ind.Ct.App.2012), trans. denied (2013). Instead, we examine the evidence and reasonable inferences most favorable to the judgment. Id. If there is evidence of probative value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt, we will affirm. Id.

Here, the State did not file an appellee’s brief. Thus, we apply a less stringent standard of review and will reverse if Stephens establishes prima facie error, which is “error at first sight, on first appearance, or on the face of it.” Castillo-Aguilar v. State, 962 N.E.2d 667, 669 (Ind.Ct.App.2012), trans. denied. The pri-ma facie error standard relieves us of the burden of controverting Stephens’s arguments, but it does not relieve us of our obligation to properly decide the law as applied to the facts of the case. Id.

Stephens was convicted of class B misdemeanor public intoxication, which is defined in pertinent part as follows:

... it is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person’s use of alcohol or a controlled substance (as defined in IC 35-48-1-9), if the person:
(1) endangers the person’s life;
(2) endangers the life of another person;
(3) breaches the peace or is in imminent danger of breaching the peace; or
(4) harasses, annoys, or alarms another person.

Ind.Code § 7.1-5-l-3(a).

Stephens first asserts that the evidence is insufficient to establish that he was intoxicated. “ ‘Intoxicated’ means under the influence of ... alcohol ... so that there is an impaired condition of thought and action and the loss of normal control of a person’s faculties.” Ind.Code § 9-13-2-86. The State may establish impairment by presenting evidence of: “(1) the consumption of a significant amount of alcohol; (2) impaired attention and reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on the breath; (5) unsteady balance; (6) failure of field sobriety tests; and (7) slurred speech.” Williams v. State, 989 N.E.2d 366, 369 (Ind.Ct.App.2013) (citation omitted). Here, Officer Haddad testified that he smelled alcohol on Stephens’s breath and body and that Stephens had bloodshot eyes, slurred speech, and an unsteady gait. He also testified that Stephens told him that he had been drinking all night and was “very drunk.” Tr. at 8-9. Thus, the evidence most favorable to the judgment is sufficient to support a finding that Stephens was intoxicated. Stephens’s arguments to the contrary amount to an invitation to reweigh evidence and judge witness credibility, which we may not do.

Stephens also challenges the sufficiency of evidence to support a finding that he either endangered himself or others, breached or was in imminent danger of breaching the peace, or harassed, annoyed, or alarmed another person. Notably, the General Assembly added these elements to the public intoxication statute in 2012, making it no longer a crime simply to be intoxicated in public. The addition of these elements promotes public policy encouraging inebriated persons to avoid creating dangerous situations by walking, catching a cab, or riding home with a designated driver rather than driving while intoxicated. Because the amendment became effective in July 2012, we have little precedent concerning the new language.

In Williams, another panel of this Court affirmed the defendant’s conviction under the amended version of the statute, where the defendant showed signs of extreme intoxication and belligerently refused police officers’ orders to move out of the street after his friend was struck by a vehicle, requiring officers to forcibly escort him to the sidewalk. 989 N.E.2d at 370-71. The Williams court found this evidence sufficient to show that while intoxicated in public, the defendant “endangered himself or others, breached the peace, or harassed, annoyed, or alarmed another person.” Id. at 371.

In contrast, here, Stephens was initially in a private place where he had every right to be intoxicated. When police made no arrests after he was assaulted in his home by his niece’s boyfriend, Stephens sought to extricate himself from the situation by walking to a public place, calling the police, stating that he was drunk, and requesting that he be taken to jail rather than returning to the dangerous situation at home. Simply put, he was asking the police for help. The mere fact that he was intoxicated in a public parking lot did not amount to a violation of the public intoxication statute. He did not breach the peace, and to the extent the trial court reasoned that he was in “imminent danger of breaching the peace” if he returned home, we find such a conclusion to be speculative. The danger, if any, was that he would be the victim of another assault, not the perpetrator.

In sum, Stephens has made a prima facie showing that the State failed to prove beyond a reasonable doubt that he endangered either himself or others, breached or was in imminent danger of breaching the peace, or harassed, annoyed, or alarmed another person. As such, the evidence is insufficient to support his conviction for public intoxication. Accordingly, we reverse.

Reversed.

BARNES, J., and PYLE, J., concur.


author:
BRADFORD, Judge.
      RILEY, Judge,

text:
    STATE of Indiana, Appellant-Plaintiff, v. Robert OWENS, Appellee-Defendant.
    No. 49A02-1210-CR-817.
    Court of Appeals of Indiana.
    Aug. 15, 2013.

      Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
    Deborah Markisohn, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellee.
   OPINION

BRADFORD, Judge.

Indianapolis Metropolitan Police Officer Maurice Shipley observed Appellee-Defen-dant Robert Owens walk out from behind a school late at night in a high-crime neighborhood. As Officer Shipley approached, he saw Owens put something in his mouth and tuck something into the rear of his waistband. Officer Shipley told Owens to put his hands up and then handcuffed him. By this point, Officer Shipley could smell marijuana coming from Owens. When Officer Shipley asked Owens what was going on, Owens admitted that he “just threw a half a blunt in [his] mouth.” Officer Craig Solomon arrived at around this time and noticed that Owens seemed to be reaching down into the rear of his boxer shorts. When Owens denied having anything secreted in his shorts, Officer Shipley told him that if he did not want to admit that he had hidden something in his shorts, Owens would be arrested and police would find it then.

When Officer Shipley went to his vehicle to check Owens’s identification, Owens took flight. Both officers yelled at Owens to stop and gave chase, tackling Owens on the other side of the street. During the struggle, Owens was bucking and kicking and head-butted Officer Solomon in the face. As the officers were walking Owens back across the street, he again attempted to run. When the officers tackled Owens a second time, Owens kicked Officer Solomon and bit Officer Shipley on the thigh. Both officers saw that Owens had a baggie containing a white powdery substance in his hand. Officer Shipley tased Owens twice before Owens finally became compliant.

In this prosecution of Owens for Class A felony dealing in cocaine, Class A felony cocaine possession, two counts of Class D felony battery on a law enforcement officer, two counts of Class D felony resisting law enforcement, and Class D felony obstruction of justice, Appellant-Plaintiff the State of Indiana appeals from the trial court’s grant of Owens’s motion to suppress evidence. Owens concedes that any evidence relating to Owens’s alleged flight from or battery of the police officers should not have been suppressed. The State argues that (1) even if the initial stop of Owens was illegal, Owens’s subsequent criminal actions were sufficient to remove the taint of that illegal stop and (2) the officers’ actions were reasonable such that Article I, Section 11 of the Indiana Constitution does not require suppression of any evidence. Finding the State’s arguments unpersuasive, we conclude that Owens’s actions following the illegal stop were not sufficient to dissipate the taint of the stop, and so any evidence gathered pursuant to the stop should have been suppressed. Consequently, we affirm in part, reverse in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

The underlying facts of this appeal do not appear to be in dispute. At approximately 11:45 p.m. on August 13, 2011, Officer Shipley was driving east on West 21st Street in Indianapolis past School 44 when he observed Owens, who appeared to be coming out from behind the building. Officer Shipley described the area as a “very high-crime area, high-narcotics area.” Tr. p. 8. Officer Shipley, who was in full uniform and driving a fully-marked police vehicle, approached Owens. While Officer Shipley was still in his vehicle approximately twenty-five feet away from Owens, he observed Owens “throw something in his mouth and tuck something behind his waist, the rear of his waistband.” Tr. p. 10. Officer Shipley told Owens to put his hands up and then to put them behind his back. Officer Shipley detected the odor of marijuana coming from Owens as he approached on foot more closely, and handcuffed him. After Owens told Officer Shipley, “I’m not going to lie, I just threw a half a blunt in my mouth[,]” Officer Shipley noticed pieces of marijuana at Owens’s feet. Tr. p. 12. Around this time, Officer Solomon arrived.

Officer Shipley patted Owens down for weapons but did not find anything. Officer Solomon detected the odor of marijuana and noticed that Owens was “fishing about the rear of his pants [and] reaching his hands down inside his boxer shorts.” Tr. p. 89. Officer Solomon asked Owens if he had anything “down his pants or in his posteriori,]” and Owens denied that he did. Tr. p. 40. Officer Shipley then said to Owens, “if you don’t want to admit it, we’ll just have you arrested and find it at the APC.” Tr. p. 40.

When Officer Shipley attempted to “grab [Owens’s] ID to run ... his information through [his] computer!,] Owens took off running.” Tr. p. 13. Both officers yelled for Owens to stop and gave pursuit. Owens ran across the street, where he was tackled by Officer Solomon. During the ensuing struggle, Owens was “basically dofing] every manner of resisting he could while still in handcuffs” and “actively trying to grab whatever was in his shortsf.]” Tr. pp. 14, 41. At some point, Owens head-butted Officer Solomon in the face.

The officers managed to temporarily subdue Owens, but he attempted to flee again as they walked him back across the street, and the officers again took him to the ground. During the second altercation, Owens bit Officer Shipley on the inner thigh and kicked Officer Solomon in the chest with both feet. Again Owens was reaching for something in his shorts. At some point, Officer Shipley observed a baggie of white powder in Owens’s hand, and when Officer Shipley went to grab Owens’s hand, the baggie fell to the ground. After Owens failed to comply with Officer Shipley’s commands to stay on the ground, Officer Shipley tased him twice.

On August 15, 2011, the State charged Owens with Class A felony dealing in cocaine, Class A felony cocaine possession, two counts of Class D felony battery on a law enforcement officer, two counts of Class D felony resisting law enforcement, and Class D felony obstruction of justice. On January 27, 2012, Owens filed a motion to suppress evidence discovered during his August 13, 2011, encounter with police. On September 18, 2012, following a hearing, the trial court granted Owens’s motion to suppress.

DISCUSSION AND DECISION

We review a trial court’s decision to grant a motion to suppress as a matter of sufficiency. State v. Moriarity, 832 N.E.2d 555, 557-58 (Ind.Ct.App.2005). When conducting such a review, we will not reweigh evidence or judge witness credibility. Moriarity, 832 N.E.2d at 558. In such cases, the State appeals from a negative judgment and must show that the trial court’s ruling on the suppression motion was contrary to law. State v. Estep, 753 N.E.2d 22, 24-25 (Ind.Ct.App.2001). This court will reverse a negative judgment only when the evidence is without conflict and all reasonable inferences lead to a conclusion opposite that of the trial court. Id. at 25. As previously mentioned, there is no conflict regarding the underlying facts of this case. Consequently, the State’s claims come to us essentially as pure questions of law.

Fourth Amendment

The Fourth Amendment to the United States Constitution provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). “In Wolf[v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)) ] we recognized ‘(t)he security of one’s privacy against arbitrary intrusion by the police’ as being ‘at the core of the Fourth Amendment’ and ‘basic to a free society.’ ” Id.

Attenuation Doctrine

Owens concedes that evidence related to his alleged battery of the police officers and resisting of law enforcement need not be suppressed, even if the initial stop was illegal. For its part, the State concedes that the initial stop was illegal, which also amounts to a concession that evidence related to the “blunt” Owens apparently attempted to ingest should be suppressed. The only evidence at issue, then, is evidence of the suspected cocaine. The State contends that, even if the initial stop of Owens was illegal, Owens’s subsequent actions in violently resisting law enforcement were sufficient to remove any taint.

[T]he exclusion of evidence is not the result of a simple “but for” test. [U.S. v. Green, 111 F.3d 515,] 520 [ (7th Cir.1997) ]. The [Green ] court observed that not all evidence is the “ ‘fruit of the poisonous tree’ ” because it is the result of an illegal search or seizure. Id. (quoting Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963)). “Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. (internal quotations omitted). Evidence may be purged of the primary taint if the causal connection between the illegal police conduct and the procurement of the evidence is “so attenuated as to dissipate the taint of the illegal action.” Id. at 521 (internal quotations omitted).
... Three factors for consideration in determining whether the causal chain is sufficiently attenuated are: “(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” Id. (citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975)). The important consideration in the third factor is whether the evidence came from “ ‘the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Id. (quoting Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417).

Quinn v. State, 792 N.E.2d 597, 600 (Ind.Ct.App.2003), trans. denied.

The State acknowledges that the time between the initial stop and the discovery of the baggie was short but argues that Owens’s voluntary criminal acts committed after the initial detention and the absence of flagrant police misconduct were sufficient to dissipate any taint. Under the facts and circumstances of this case, we cannot agree. Although the alleged cocaine was not actually discovered until after Owens’s attempted flight from and battery of the officers, the record clearly indicates that the decision to arrest Owens was made before his flight, rendering discovery of the evidence all but inevitable. Because the cocaine had all but been discovered before Owens’s flight, his actions cannot be said to have caused its discovery in any meaningful sense. Under the circumstances of this this case, the causal connection between the illegal police conduct and the discovery of the cocaine was not broken.

Our result is consistent with the rationale underlying the attenuation doctrine. As this court observed in Cole v. State, 878 N.E.2d 882 (Ind.Ct.App.2007):

Other courts in this country have held that eluding the police and resisting arrest in response to an unconstitutional stop or pat down constitute intervening acts and therefore the evidence seized incident to those intervening criminal acts will not be subject to suppression. See [State v. ] Williams [192 N.J. 1], 926 A.2d [340,] 349 [ (2007) ].... The point of these cases is that the law should deter and give no incentive to suspects who endanger the police, themselves, and possibly others by not submitting to official authority. See id. A defendant should not have the right to use an improper stop as justification to commit a new and distinct crime of resisting law enforcement. Id. Rather, if a defendant merely stands his ground and resorts to the court for a constitutional remedy, then the unlawful stop will lead to the suppression of the evidence. Id.
As the New Jersey Supreme Court recognized in Williams, this approach balances both the right of the people to be free from unreasonable searches and seizures and their right to be free from the dangers created by suspects who physically resist the police and provides sufficient disincentives to deter both police misconduct and criminal misconduct by suspects. Id.

Id. at 888 (some citations omitted). The result in this case neither rewards Owens for his alleged flight and battery nor the police for their illegal stop of Owens, fully satisfying the rationale behind the attenuation doctrine.

The State contends that this case cannot be distinguished from Cole, in which we concluded that the act of resisting law enforcement following a detention was sufficient to purge any taint, even if the initial detention was illegal. Id. In Cole, an Officer Decker approached a car containing Cole and another person because the officer had seen several persons approach the parked car in fifteen or twenty minutes of observation. Id. at 884. When Officer Decker approached the car and asked the two occupants for identification, Cole stepped out and began walking away. Id. Officer Decker twice ordered Cole back into the car but, instead of complying, Cole ran. Id. After a foot chase, police apprehended Cole, and a pat-down uncovered a loaded .22 caliber revolver. Id. at 884-85.

The Cole court first noted the likely impropriety of the initial stop, id. at 885, but went on to conclude that “even though Officer Decker may not have had reasonable suspicion to stop Cole, he did have probable cause to believe that Cole violated the resisting law enforcement statute by fleeing after being ordered to stop and by forcibly resisting him.” Id. at 887. In Cole, however, there is no indication that the revolver was ever going to be discovered absent Cole’s flight, which neatly distinguishes that case from this one. Quite simply, Cole’s actions caused the revolver’s diseovery, not the police misconduct, in contrast to this case, where police misconduct had already made discovery of the alleged cocaine inevitable before Owens’s actions.

CONCLUSION

All agree that evidence related to Owens’s flight from and battery of Officers Shipley and Solomon should not have been suppressed. To the extent that the trial court’s order suppressed this evidence, we reverse it. We conclude, however, that any and all evidence related to the “blunt” that Owens allegedly attempted to ingest and the alleged cocaine found on his person should be suppressed, and affirm that portion of the trial court’s order.

The trial court’s order is affirmed in part, reversed in part, and remanded for further proceedings.

BROWN, J., concurs.

RILEY, J., concurs in part and dissents in part with opinion.

RILEY, Judge,

concurring and dissenting.

I concur with the majority’s decision to affirm the trial court’s suppression of evidence pertaining to Owens’s arrest for cocaine dealing, cocaine possession, and obstruction of justice. However, I respectfully dissent from the majority’s decision to reverse the trial court’s suppression of evidence pertaining to Owens’s battery upon and flight from Officers Shipley and Solomon. The majority writes that “[a]U agree that evidence related to Owens’s flight from and battery of Officers Shipley and Solomon should not have been suppressed.” Op. at 944. By merely acknowledging and recognizing an arguable point, Owens does not make such concession. As the trial court was in the best position to assess whether Owens’s actions resulted from the officers’ exploitation of the illegal stop, I would affirm the trial court.

At the suppression hearing, the State relied on Indiana case law establishing that a private citizen may not use force in resisting a peaceful arrest by an individual he knows, or had reason to know is a police officer performing his duties even though the original stop might have been unlawful. See Cole v. State, 878 N.E.2d 882, 886-87 (Ind.Ct.App.2007). However, the trial court rejected the State’s argument:

[TRIAL COURT]: My position, I just got reversed on that same argument where I found that the officer contact [sic], even though [...], but he had no right to resist.
[STATE]: Right.
[TRIAL COURT]: I was just reversed [... ] and I bought that argument from you guys the last time. We got it reversed.
[TRIAL COURT]: [...]. I don’t think that there was sufficient reasonable suspicion stated to do a stop and then a frisk. And then even if there was, I’m not sure what was done under the circumstances was reasonable.

(Transcript pp. 49, 52).

Attenuation, as an exception to the exclusionary rule, applies in cases- where the connection between the illegal police conduct and the subsequent discovery of evidence becomes so attenuated that the deterrent effect of the exclusionary rule is no longer justified. See Brown v. Illinois, 422 U.S. 590, 609, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The causal chain must be sufficiently attenuated to dissipate any taint of an illegal stop. See Quinn v. State, 792 N.E.2d 597, 601 (Ind.Ct.App.2003), trans. denied. Three factors are evaluated to determine whether the attenuation doctrine applies: “(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” Id.

With respect to the first factor, the State asserts that “[t]he time between the initial stop and the discovery of the cocaine was admittedly brief here” and that “the cocaine evidence here was not first discovered by the police until after [Owens] had committed new, distinct criminal offenses.” (Appellant’s Br. pp. 14, 16). The State thus concedes that the illegal stop and Owens’s acts of resistance occurred within a brief time frame. For the second factor, the State alleges that Owens’s crimes of flight and opposition constituted an intervening circumstance sufficiently separate from the illegal stop.

The important consideration in the third factor is whether the evidence came from the exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint. See Quinn, 792 N.E.2d at 599. Here, Officer Shipley stopped Owens admittedly on a hunch and proceeded to handcuff him. Despite smelling marijuana as he approached Owens, Officer Shipley’s pat-down revealed nothing. After Owens told him that he had swallowed marijuana, Officer Shipley threatened to arrest Owens if he did not admit to possessing drugs. By suppressing this evidence, the trial court apparently believed that Owens’s actions resulted from the officers’ exploitation of the illegal stop. As the trial court was in the best position to assess the evidence, I would uphold its suppression of evidence relating to Owens’s flight from and battery of Officers Shipley and Solomon. See People v. Felton, 78 N.Y.2d 1063, 576 N.Y.S.2d 89, 581 N.E.2d 1344, 1345 (1991).

      . This is the evidence that supports the obstruction of justice charge.

      . Because we conclude that the evidence at issue is inadmissible pursuant to the Fourth Amendment, we need not address its admissibility pursuant to Article I, Section 11 of the Indiana Constitution.

      . At oral argument, counsel for Owens conceded that his argument was limited to the physical evidence seized from Owens and that the trial court’s original order on Owens’s motion to suppress did not encompass evidence related to his resisting and battery: ”[A]t this point, I don’t believe that the actual resist and battery were something that the trial court had a chance to address or ruled on in [its] suppression [order]. I think he simply ruled on the physical evidence, the marijuana and cocaine." State of Indiana vs. Robert Owens, video recording of oral argument held on June 18, 2013, https://mycourts. in.gov/arguments/default.aspx?&id= 1526&
      view=detail&yr=&when=&page= 1&
      court=app&search=&direction=%
      20ASC&fu-
      ture=False&sort=&judge=&county=&ad-min=False&pageSize=20. We take this as a concession that no challenge is being made to the admissibility of evidence related to Owens's resisting law enforcement and battery charges.
      Even if one concludes that Owens did not concede this point, it is well-established under Indiana law that a person may not forcibly resist a peaceful arrest. See, e.g., Row v. Holt, 864 N.E.2d 1011, 1017 (Ind.2007) ("Even if the arrest for battery was invalid, resisting is still an independent offense."), Shoultz v. State, 735 N.E.2d 818, 823 (Ind.Ct.App.2000) ("The general rule in Indiana is that ‘a private citizen may not use force in resisting a peaceful arrest by an individual who he knows, or has reason to know, is a police officer performing his duties regardless of whether the arrest in question is lawful or unlawful.’ ") (quoting Casselman v. State, 472 N.E.2d 1310, 1315 (Ind.Ct.App.1985)), trans. denied. There is no indication that the encounter between Owens and the police officers was anything other than peaceful until Owens's attempted flight.