Woodward v. State

• Decision Date: 27 June 2002
• Docket Number: No. 49A05-0107-CR-319.,49A05-0107-CR-319.
• Citation: 770 N.E.2d 897
• Parties: Wesley M. WOODWARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

770 N.E.2d 897

Wesley M. WOODWARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-0107-CR-319.

Court of Appeals of Indiana.

June 27, 2002.

J.J. Paul, III, Indianapolis, Indiana, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Christopher C.T. Stephen, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

ROBB, Judge.

Wesley Woodward appeals from conviction of resisting law enforcement as a Class A misdemeanor, following a bench trial. We affirm.

Issues

Woodward raises two issues for our review which we restate as follows:

1. Whether the trial court properly tried Woodward without a jury; and

2. Whether the evidence is sufficient to support his conviction.

Facts and Procedural History

The facts most favorable to the judgment reveal that at approximately 11 o'clock on the night of April 6, 2000, Officer Woody Burton of the Marion County Sheriff's Department was returning home at the end of his shift. He was traveling south on I-65 in his marked car when a car behind him flashed his bright lights on and off four to six times. That car was later determined to be driven by Woodward. As Officer Burton exited onto Southport Road, Woodward also exited. The off-ramp has four lanes: two for right turns and two for left turns. Officer Burton was in the left-most left turn lane, and slowed on the off-ramp to check on Woodward's vehicle. Woodward passed Officer Burton in the right-most left turn lane. Officer Burton testified that when they approached the end of the off-ramp, the light to turn onto Southport Road was green. Woodward stopped at the green light, and then, after the light had turned red, proceeded to turn left onto Southport Road. At that point, Officer Burton activated his emergency lights and siren and also proceeded onto Southport Road. Woodward continued eastbound on Southport Road at approximately forty-five miles per hour for approximately a mile without stopping, slowing, or otherwise acknowledging Burton. Officer Burton radioed for backup while he followed Woodward, calling in a driver refusing to stop. Woodward finally turned into an apartment complex and parked his vehicle in a parking space. Officer Burton exited his vehicle with his gun drawn and ordered Woodward to exit his vehicle, which he did. Woodward indicated that he had been looking for a well-lit area in which to stop. When backup officers arrived, Woodward was taken into custody for resisting law enforcement. Woodward was charged with resisting law enforcement as a Class D felony. The case was originally docketed in Marion Superior Court room 5. Woodward filed a waiver of jury trial on September 5, 2000. The court set a bench trial for November 17, 2000. On November 16, 2000, the State filed an agreed motion for continuance of the bench trial and also filed a motion to transfer to a new court. The case was transferred to Marion Superior Court room 99. A pre-trial conference was held in room 99 on November 30, 2000, at which time the court set this case for jury trial on March 28, 2001. At a pre-trial conference on January 18, 2001, the court confirmed the jury trial setting for March 28, 2001. On March 22, 2001, the State requested a continuance of the March 28 jury trial. The jury trial was reset for June 27, 2001. On June 25, 2001, the parties were in court for a ruling on Woodward's motion for discharge. The motion was denied, and the court vacated the jury trial set for June 27 and reset the case for bench trial on that date. Woodward was tried to the court on June 27, 2001, and found guilty of resisting law enforcement as a Class A misdemeanor. He now appeals.

Discussion and Decision

I. Bench Trial v. Jury Trial

Woodward first contends that the trial court erred in vacating the June 27 jury trial and resetting the case for a bench trial without his and the State's agreement. Indiana Code section 35-37-1-2 states that "[t]he defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court. All other trials must be by jury." Woodward contends that this section together with a case construing an earlier, but identical, code section, dictate that the State, the defendant, and the trial court all must agree to the waiver of a jury trial and that a prior waiver is vitiated if the case is subject to a change of venue. See Schmidt v. State, 156 Ind.App. 1, 2-3, 294 N.E.2d 638, 638-39 (1973)

(construing Ind.Code § 35-1-34-1). In Schmidt, the defendant was charged in Marion County Criminal Court with theft by deception. The defendant and the State waived trial by jury and the trial court accepted the waiver. The case was thereafter transferred to Hancock County and set for trial by jury. The defendant objected on the basis of the prior waiver, but the court overruled his objection and submitted the case to a jury. On appeal, the defendant alleged that the trial by jury was prejudicial to him. We held that the change of venue to another court vitiated the prior waiver and that as a defendant has a right to a trial by jury but no corresponding right to a trial by the court, there was no error in the use of a jury. Id.

However, as the State points out, Schmidt involved a change of venue from one county to another. In this case, Woodward's case was transferred from one Marion County court to another Marion County court. Our supreme court has stated that a transfer from one court to another in the same county is neither a change of venue nor a change of judge. Beason v. State, 690 N.E.2d 277, 280 (Ind. 1998). See also Lock v. State, 273 Ind. 315, 403 N.E.2d 1360 (1980)

. In Beason, the defendant was originally charged with murder in LaPorte Superior Court Number 1. The State subsequently sought transfer to LaPorte Circuit Court pursuant to Indiana Code section 33-5-31.1-9, which provides in part that "[t]he judge of any of the [LaPorte] courts may, with consent of the judge of the circuit or another superior court, transfer any action or proceeding from the court to the circuit court or to another superior court." The defendant objected because the State did not comply with Indiana Criminal Rule 12 governing a change of judge in a criminal case. Our supreme court held that "the transfer here initiated under Ind.Code § 33-5-31.1-9 was neither a change of judge nor a change of venue, and is not subject to Crim.R. 12." 690 N.E.2d at 280. A similar result was reached in Lock on the defendant's challenge to the transfer of his case from Marshall Circuit Court to Marshall Superior Court pursuant to Indiana Code section 33-5-35.5-16, which provides that "[t]he judge of the [Marshall] circuit court may, with the consent of either of the superior courts, transfer any action, cause, or proceeding filed and docketed in the circuit court to that superior court ... to be redocketed and disposed of as if originally filed with the superior court." Lock, 403 N.E.2d at 1364.

The record before us does not disclose the reason or authority for the State's request to transfer the case from one room of the criminal division to another. However, the Marion Superior Court Criminal Division Rules provides for such transfers: "The judge of each room of the criminal division, by appropriate order entered of record may transfer and re-assign to any other room of the criminal division any cause pending in that room subject to acceptance by the receiving court." Marion Superior Court Crim. Div. Rule 1. Because the transfer of a case from circuit court to superior court or vice versa is not considered a "change of venue," we likewise cannot say that the transfer of a case between two rooms of the criminal division of the same court is a "change of venue" sufficient to vitiate an earlier waiver of jury trial. We acknowledge that in general, the identity of the judge who will be hearing the case in the absence of a jury is a motivating factor in deciding whether or not to waive a jury. We also acknowledge that in this particular case, the transferee court originally set the case for jury trial and did not correct that error until two days before trial. However, under these circumstances, we are unable to say that the trial court abused its discretion in relying on Woodward's earlier, valid waiver of a jury trial and trying the case to the bench.

II. Sufficiency of the Evidence

Woodward also contends that the evidence was insufficient to support his conviction of resisting law enforcement.

A. Standard of Review

Our standard of review for sufficiency claims is well settled: we will not reweigh the evidence or assess the credibility of witnesses. Bailey v. State, 764 N.E.2d 728, 730 (Ind.Ct.App.2002), trans. denied. Rather, we look to the evidence and reasonable inferences drawn therefrom that support the conviction and will affirm the conviction if there is probative evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. See id.

B. Evidence of Intent

Woodward was charged with resisting law enforcement. The crime is defined as follows: "A person who knowingly or intentionally... flees from a law enforcement officer after the officer has, by visible or audible means, identified himself and ordered the person to stop; commits resisting law enforcement...." Ind.Code § 35-44-3-3(a)(3). The crime was charged as a Class D felony because a vehicle was used to commit the offense. Ind.Code § 35-44-3-3(b)(1)(A). Woodward contends that there was no evidence that he intended to avoid or escape Officer Burton.

Woodward asks that we graft onto the statute the...