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Date: 05-03-2020

Case Style:

Devin Lamont Sanders v. State of Indiana

Case Number: 19A-CR-1940

Judge: James S Kirsch

Court: COURT OF APPEALS OF INDIANA

Plaintiff's Attorney: Curtis T. Hill, Jr.
Attorney General of Indiana

Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana

Defendant's Attorney:

Need help finding a lawyer for representation for appealing a conviction after a jury trial of two counts of intimidation1 as Level 6 felonies, one count of resisting law enforcement2 as a Class A misdemeanor, and one count of criminal trespass3 as a Class A misdemeanor in Indiana?

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On August 10, 2018, Denise Rhymer (“Rhymer”), the general manager of the
JCPenney store in the Tippecanoe Mall in Lafayette, Indiana, received a phone
call from a supervisor in the men’s department that Sanders was not wearing a
shirt, would not put his shirt back on, and requested to speak with the manager.
Tr. Vol. 2 at 41. Rhymer and one of the store’s loss prevention officers went to
the men’s department to ask Sanders if he needed help. Id. Sanders said
nothing, put on his headphones, started singing “really loudly[,]” and
eventually called Rhymer a “bitch”. Id. at 42. Rhymer asked Sanders, who
continued to be “really loud and obnoxious”, to leave the store. Id. Rhymer
1
See Ind. Code § 35-45-2-1.
2
See Ind. Code § 35-44.1-3-1.
3
See Ind. Code § 35-43-2-2.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020 Page 3 of 14
asked her loss prevention officer to call the police, and she and the loss
prevention officer followed Sanders to the entrance of the mall. Id. At that
point, Sanders was “up in [Rhymer’s] face . . . [s]winging his arms”, tried
“chest bumping [Rhymer]” and continued to scream despite the presence of
mall security officers. Id. at 43. Lafayette Police Department Officer James
Jarrett (“Office Jarrett”), Officer Andrew McCormick (“Officer McCormick”),
along with a recruit officer, arrived at the Tippecanoe Mall in response to the
call from mall security. Id. at 59, 78.
[4] Sanders continued his behavior until police arrived when he became “very lucid
. . . very rational.” Id. at 44. Officer Jarrett spoke with both Rhymer, who was
“pretty frantic[,]” and Sanders about the events, which Sanders characterized as
“a misunderstanding of some sort.” Id. At the request of mall security, Officer
Jarrett gave Sanders a trespass warning to leave the property, and Sanders
began to leave the mall. Id. at 60-61. While he was leaving, Sanders came back
towards Rhymer and told her that he was going “to come back and shoot
[her].” Id. at 44, 61, 78. Officer McCormick confirmed with Rhymer that
Sanders threatened her, and he followed Sanders out of the mall. Id. at 61, 78-
79. Officer McCormick told Sanders he needed to leave the mall’s property or
he would be arrested for trespass. Id. at 79. Sanders went around the outside of
the mall toward the north side of JCPenney. Id. The officers drove around to
the north side of the mall to be sure that Sanders was leaving the mall’s property
and not attempting to reenter JCPenney through the north entrance. Id. at 80.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020 Page 4 of 14
[5] Officer McCormick saw Sanders in a center island of the mall’s parking lot
attempting to remove a bicycle that was padlocked to a pole. Id. Sanders
abandoned his attempt to remove the bicycle and went back toward JCPenney.
Id. at 81. Officer McCormick approached Sanders, who was hiding behind a
pole near the entrance to the store, told Sanders that he had been warned for
trespass and needed to leave the mall’s property. Id. Officer McCormick again
told Sanders that he “had a couple of seconds to make it off the property or he
was going to jail.” Id. Sanders backed away from Officer McCormick, started
“flashing fingers” which Officer McCormick interpreted as “gang signs,
nonverbal communication[,]” and Sanders told Officer McCormick, “on my
soul vice lord I got you.” Id. at 81, 84, 120. Officer McCormick told Sanders
he was under arrest, and Sanders “actively flexed and pulled forward to pull his
hands” in a manner that prevented the officers from securing him in handcuffs.
Id. at 82. Sanders continued to “fight and argue” and with Officer Jarrett’s
assistance the officers were eventually able to handcuff Sanders. Id. at 83.
[6] On August 27, 2018, the State filed an information charging Sanders as follows:
(1) Count I, intimidation as a Level 6 felony.4
(2) Count II, resisting law
enforcement as a Class A misdemeanor. (3) Count III, criminal trespass as a
Class A misdemeanor. Appellant’s App. Vol. 2 at 85-87. On January 22, 2019,
the State moved to amend the charging information to add another count of
4 Count I charges Sanders with intimidation of Officer McCormick.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020 Page 5 of 14
intimidation, Count IV, as a Level 6 felony, which the trial court granted.5
Id.
at 77-79.
[7] On February 14, 2019, the trial court issued an order that, in part, appointed
counsel for Sanders. Id. at 11, 67. On March 22, 2019, the trial court held a
hearing at which Sanders, who was present with his court-appointed counsel,
stated “it was already understood in this courtroom that I’m representing
myself most of the times[,]” and the trial court showed Sanders’ courtappointed counsel as withdrawn Tr. Vol. 2 at 2-3.
[8] On May 30, 2019, the trial court commenced a jury trial. Appellant’s App. Vol. 2
at 13. At the outset of the trial and before seating the jury, the following
exchange occurred between the trial court and Sanders, who was representing
himself:
THE COURT: [Y]ou have on many occasions told me that you
do not want an attorney.
BY MR. SANDERS: Correct.
THE COURT: And that you do not - you understand your right to
. . . have an attorney appointed to you if you cannot afford one. In
fact, you have told me repeatedly that it is your wish to represent
yourself, you do not want an appointed attorney, and you do not
want to hire an attorney.
BY MR. SANDERS: Yes, I said that.
5 Count IV charges Sanders with intimidation of Rhymer.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020 Page 6 of 14
THE COURT: And that’s accurate right?
BY MR. SANDERS: Yes, on this case.
THE COURT: Alright, so we’re proceeding to trial today. It is
expected that you follow the rules of the court. Even though you
are not [an] attorney you will be expected to follow the rules of the
court and the rules of evidence in this case. So, even though
you’re not [an] attorney the court[‘] s expectation[] is that you
follow those.
[9] Tr. Vol. 2 at 5. The trial court again asked Sanders if he wished to represent
himself and Sanders affirmed that he wanted to proceed without counsel. Id. at
14-15. Sanders then changed his mind and told the trial court that he wished
for a specific attorney, Jon Phillips, from the Tippecanoe County Public
Defender’s Office to be appointed to represent him. Id. at 21. The following
discussion between Sanders and the trial court then ensued:
BY THE COURT: Alright, I do find that the defendant is
indigent and I’ll appoint the services of the public defender and
give this case new dates. You may go to the public defender’s
office on your date and request Jon Phillips or you can take them
a letter to request him. They may or may not agree with you, I do
not know.
BY MR. SANDERS: What about one you can appoint me now?
(Inaudible).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020 Page 7 of 14
BY THE COURT: I’m going to appoint you — I’m going to
appoint the public defender’s office they decide in the office who
you get.
BY MR. SANDERS: So, I can’t get one this instant you’re
saying. So we just got to (indiscernible).
BY THE COURT: No, there would be no attorney that’s
standing by to wait for you.
BY MR. SANDERS: Okay, but we still pick the jury — jurors?
BY THE COURT: No, we don’t go to trial today with — if you
want an attorney. I don’t have any way for an attorney to walk in
the door right now and be ready for you. But, I strongly
encourage you to have an attorney. These are trained lawyers
that know the rules. And I’m going to hold you to the same
standards I would for them. So...
BY MR. SANDERS: No, it’s cool then.
BY THE COURT: You telling me you want an attorney, we’re
going to do that.
BY MR. SANDERS: We can go ahead and go through with
right now since we ain’t — since that’s going to hold up
something. We can go ahead and get this started as fast as
possible.
BY THE COURT: So, you are telling me you do not want an
attorney.
BY MR. SANDERS: Do not want an attorney, let’s proceed.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020 Page 8 of 14
BY THE COURT: Even though I will appoint you one right now
and give you new dates.
BY MR. SANDERS: They can come and sit here at nine o-six.
BY THE COURT: I do not have the ability to appoint an
attorney right now on the spot.
BY MR. SANDERS: Then no, then no. I thought you were
saying on the spot.
BY THE COURT: I really encourage you.
BY MR. SANDERS: Excuse me for the misunderstanding.
BY THE COURT: I encourage you, Mr. Sanders.
BY MR. SANDERS: No, I’m going ahead, judge. I’m good, let’s
go ahead and proceed and pick the jury.
BY THE COURT: Alright.
Id. at 22-23. The trial court also stated to Sanders that a risk in self
representation is the “emotional state of being involved in your own
circumstances makes it harder to be objective” and “the ability to have a
counsel that is not emotionally involved in the situation and can give you good
legal advice is critical.” Id. at 25. The trial court again asked Sanders if he was
absolutely certain he wished to proceed without an attorney, and Sanders stated
“[y]es, let’s leave it to the jury.” Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020 Page 9 of 14
[10] Following the trial, the jury found Sanders guilty as charged. Id. at 147. The
trial court held a sentencing hearing on July 31, 2019, and sentenced Sanders to
180 days on each count to be served concurrently with ninety days executed in
the Tippecanoe County jail and the balance served in Tippecanoe County
community corrections. Id. at 160. Sanders now appeals.
Discussion and Decision
I. Appointment of Standby Counsel
[11] Sanders argues that the trial court abused its discretion by not informing him of
the possibility of appointing standby counsel. Sanders points out that: (1) this
was his first jury trial; (2) he had limited criminal history; and (3) he was
unfamiliar with legal terminology and trial procedure. The State counters that
Sanders does not have the right to standby counsel and that his dissatisfaction
with his own representation is not an abuse of discretion on the part of the trial
court.
[12] The right of self-representation is implicit in the Sixth Amendment to the
United States Constitution, and Article 1, section 13 of the Indiana
Constitution also guarantees this right. Stroud v. State, 809 N.E.2d 274, 279
(Ind. 2004). Appointment of standby counsel is an appropriate prophylactic
device when a defendant assumes the burden of conducting his own defense.
Wilson v. State, 94 N.E.3d 312, 324 (Ind. Ct. App. 2018) (citing Jackson v. State,
441 N.E.2d 29, 33 (Ind. Ct. App. 1982)). However, a defendant who proceeds
pro se has no right to demand the appointment of standby counsel for
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020 Page 10 of 14
assistance. Kindred v. State, 521 N.E.2d 320, 323 (Ind. 1988). Rather, the
decision of whether to appoint standby counsel is a discretionary one made by
the trial court. Id.
[13] We note at the outset that Sanders’s claim is not one that involves his failure to
knowingly or intentionally waive his right to counsel; rather, Sanders claims
that even though he waived his right to counsel, the trial court should have
informed him of the possibility of standby counsel. Here, at Sanders’s
September 10, 2018 initial hearing, he signed an advisement of rights form,
which, with respect to self-representation, included the following:
You also have the right to represent yourself. If you represent
yourself, you must follow all of the laws, rules of evidence, and
proper legal procedures. The Judge and court staff are not
allowed to give you advice or to tell you what you should do or
how you should do it. Before deciding to represent yourself, you
should understand that an attorney has skills and experience in
preparing for trial and presenting a proper and persuasive
defense. These skills include: investigating and interrogating
witnesses; gathering appropriate documentary evidence;
obtaining favorable defense witnesses; preparing and filing
pretrial motions; preparing and filing appropriate written jury
instructions; presenting effective opening statements and closing
arguments; examining and cross-examining witnesses at trial; as
well as recognizing, making, and responding to objections to
potentially prejudicial evidence, questions, and testimony. An
attorney could explain the charges and any lesser included
offense. An attorney could explain and properly raise any
defenses, legal or practical, that might benefit you. An attorney
could explain and raise any mitigating circumstances
surrounding the charge. An attorney is usually more experienced
in plea negotiations and better able to identify and evaluate any
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020 Page 11 of 14
potential defenses and evidentiary or procedural problems in the
prosecution’s case.
Appellant’s App. Vol. 2 at 82-83. The trial court’s initial hearing order, issued
that same day, contained check marks indicating that Sanders had read and
signed the advice of rights form, which included the provision regarding the
risks of self-representation, and that he was orally advised of his rights by the
judge. Id. at 84. Later, on February 14, 2019, the trial court appointed counsel
for Sanders, which he rejected at a March 22, 2019 hearing, stating “it was
already understood in this courtroom that I’m representing myself most of the
times.” Tr. Vol. 2 at 2; Appellant’s. App. Vol. 2 at 11, 67. On the day of the trial
and before seating the jury, the trial court told Sanders on multiple occasions
that he could have court-appointed counsel and a new date would be scheduled
for the trial. Tr. Vol. 2 at 5, 14-15, 21-25. Sanders instead chose to reject the
trial court’s multiple offers to appoint him counsel and to continue the trial.
We acknowledge Sanders’s lack of familiarity with the nuances of a criminal
trial and the use of standby counsel to eliminate the disadvantages associated
with pro se representation. However, under the circumstances of this case,
including Sanders’s rejection of court-appointed counsel, rejection of the trial
court’s consistent offers to appoint counsel, and his determination to represent
himself at trial notwithstanding the trial court’s warnings about the risks of
proceeding pro se, we cannot say that the trial court abused its discretion by not
discussing the possibility of standby counsel with Sanders.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020 Page 12 of 14
II. Sufficiency of the Evidence
[14] Next, Sanders challenges the sufficiency of the evidence supporting his
conviction for intimidation as a Level 6 felony. When we review the
sufficiency of the evidence to support a conviction, we consider only the
probative evidence and reasonable inferences supporting the verdict. Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an appellate court to
assess witness credibility or to weigh the evidence. Id. We will affirm the
conviction unless no reasonable factfinder could find the elements of the crime
proven beyond a reasonable doubt. Id.
[15] At the time Sanders committed the offense, Indiana Code section 35-45-2-1
(“intimidation statute”) provided, in relevant part, that “[a] person who
communicates a threat to another person, with the intent . . . that the other
person be placed in fear of retaliation for a prior lawful act . . . commits
intimidation[.]” The intimidation statute also provided an enhancement for the
offense to a Level 6 felony if the “person to whom the threat is communicated .
. . is a law enforcement officer[.]” Ind Code § 35-45-2-1(b)(1)((B)(i). The
intimidation statute defines “communicates” to include “posting a message
electronically, including on a social networking web site (as defined in IC 35-
31.5-2-307)” and defines “threat” as “an expression, by words or action, of an
intention to . . . unlawfully injure the person threatened or another person, or
damage property . . . [or] commit a crime[.]” Ind. Code § 35-45-2-1(c)-(d). The
term “law enforcement officer” is also a defined term, which means, “a police
officer (including a correctional police officer), sheriff, constable, marshal,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020 Page 13 of 14
prosecuting attorney, special prosecuting attorney, special deputy prosecuting
attorney, the securities commissioner, or the inspector general[.]” Ind. Code §
35-31.5-2-185. Thus, to convict Sanders of the offense of intimidation as a
Level 6 felony the state was required to prove that Sanders communicated a
threat to Officer McCormick with the intent that Officer McCormick be placed
in fear of retaliation for a prior lawful act.
[16] Sanders argues that his statement to Officer McCormick “on my soul vice lord I
got you” is not a threat because the communication did not “expressly threaten
any particular action likely to cause bodily injury or death” to Officer
McCormick. Appellant’s Br. at 10-11. He limits his argument to whether his
statement was a threat. He does not challenge the other elements of the offense
and does not dispute that he made the statement.
[17] Whether a particular communication constitutes a threat is an objective
question for the trier of fact. Owens v. State, 659 N.E.2d 466, 474 (Ind. 1995).
Thus, whether the communication Sanders made to Officer McCormick,
objectively viewed, was a threat was a question of fact for the jury to decide.
[18] Here, the evidence showed that Officer McCormick warned Sanders on
multiple occasions to leave the mall before Sanders eventually did so. Tr. Vol. 2
at 78-81. When Sanders was outside the mall and was again approached by
Officer McCormick to leave the mall’s property Sanders started “flashing
fingers” and giving “gang signs” and stated to Officer McCormick “on my soul
vice lord I got you.” Id. at 81, 84, 120. Officer McCormick testified that when
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1940| April 28, 2020 Page 14 of 14
“somebody identifies . . . as a vice lord, which is one of the most [v]iolent gangs
. . . [w]ith over 30,000 . . . members strong, documented I do not take those
threats lightly at all.” Id. at 81. Under the circumstances surrounding the
interaction between Sanders and Officer McCormick, we conclude that the
evidence presented by the State was sufficient for the jury to conclude beyond a
reasonable doubt that Sanders’s communication to Officer McCormick was a
threat. See Johnson v. State, 743 N.E.2d 755, 757 (Ind. 2001) (affirming
Johnson’s intimidation conviction where Johnson displayed a firearm to an outof-uniform officer and told the officer “‘don't even think it’, which was preceded
by two obscene remarks, was sufficient for a trier of fact to conclude that
Johnson communicated a threat within the meaning of the intimidation
statute”); Holloway v. State, 51 N.E.3d 376, 378 (Ind. Ct. App. 2016) (affirming
Holloway’s intimidation conviction and noting that “Holloway cites no
authority for the proposition that a person must be capable of inflicting injury
when the statement is made . . . in order to constitute a threat.”), trans. denied.

Outcome: We find the evidence is sufficient to support Sanders’ conviction.

Affirmed.

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