I N T H E

Indiana Supreme Court

Supreme Court Case No. 19S-CR-404

Mohamed M. Dadouch,

Appellant-Defendant,

–v–

State of Indiana,

Appellee-Plaintiff.

Decided: July 16, 2019

Appeal from the Knox Superior Court, No. 42D02-1706-CM-477

The Honorable Ryan S. Johanningsmeier, Judge 

On Petition to Transfer from the Court of Appeals, 

No. 18A-CR-745

Per Curiam Opinion

All Justices concur.
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Per Curiam.

Following a bench trial Mohamed Dadouch was convicted of Class A 

misdemeanor domestic battery. Dadouch claims he did not validly waive 

his right to a jury trial. We agree.

After Dadouch was charged with a misdemeanor, he appeared with his 

own attorney at an initial hearing on June 21, 2017. Dadouch’s attorney 

represented to the court that he had “gone through” Dadouch’s 

constitutional rights with him. (Tr. p. 5.) The judge asked Dadouch, 

Sir, do you understand that you have various constitutional 

rights? Your attorney said he’s gone over those rights to a trial 

and confront/cross-examine witnesses and your presumption 

of innocence and proof beyond a reasonable doubt. He says 

he’s covered all of that with you. 

I’ve also been told there are forms over there that talk about 

your rights, and so what he said is instead of me going on 

about all of those rights, he will acknowledge that you 

understand them.... 

.... Do you understand all of that?”

(Id. at 5-6.)

Dadouch answered, “Yes, I am understanding Your Honor.” (Id. at 6.)

The court set a trial date of September 11, 2017. Dadouch signed an 

advisement of rights form provided by the court. The form stated, “You 

have the right to have a trial and for that trial to be public, speedy, and by 

jury. This right to a jury can be lost if you do not meet certain deadlines.”

(Appellant’s App. Vol. II, p. 18.)

On November 21, 2017, the court held a hearing after Dadouch was 

arrested for failing to appear at a pretrial conference. The court noted the 

“bench trial date” had been continued three times and remained set for 

December 18, 2017. (Appellant’s App. Vol. III, p. 2.) Also on November 21, 

2017, Dadouch signed a second advisement of rights form stating, “For a 
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criminal charge, you have the right to have a trial and for that trial to be 

public, speedy, and by jury. In a misdemeanor case, you must request in 

writing a jury trial.” (Id. at 3.)

On December 11, 2017, Dadouch filed motions to continue the trial date 

and set the case for a jury trial. The court denied the request for jury trial 

as untimely and set the motion to continue for a hearing on December 18, 

2017.

At the hearing, Dadouch’s counsel argued that Dadouch had asked 

prior counsel to request a jury trial but no jury demand was filed and 

there may have been a “communication breakdown” due to a “linguistic 

barrier.” (Tr. p. 39.) The court again denied the request for a jury trial as 

untimely but the judge added, “Of course, I’m always open to 

reconsideration if you have some evidence that he strenuously asked 

counsel to advance that motion for him but counsel failed to do so.” (Id. at 

40.) The court granted Dadouch’s request for an interpreter and reset the 

bench trial date.

At the start of the trial, Dadouch renewed his request for a jury trial. (Id.

at 63-64.) The court denied the request. At the conclusion of the trial, the 

court found Dadouch guilty of Class A misdemeanor domestic battery.

Dadouch appealed on grounds including that he did not validly waive 

his right to a jury trial. The Court of Appeals affirmed the trial court. 

Dadouch v. State, No. 18A-CR-745 (Ind. Ct. App. Mar. 14, 2019).

The right to a jury trial in a criminal case is a fundamental right 

guaranteed by the Sixth Amendment to the United States Constitution 

and Article 1, Section 13 of the Indiana Constitution. Poore v. State, 681 

N.E.2d 204, 206 (Ind. 1997). A defendant’s waiver of the right to jury trial 

“must be made in a knowing, intelligent, and voluntary manner, with 

sufficient awareness of the surrounding circumstances and the 

consequences.” Doughty v. State, 470 N.E.2d 69, 70 (Ind. 1984). A defendant 

charged with a felony has an automatic right to a jury trial and “is 

presumed not to waive this right unless he affirmatively acts to do so.” 

Poore, 681 N.E.2d at 207. By contrast, a defendant charged with a 

misdemeanor must demand a jury trial and may waive that right by 
Indiana Supreme Court | Case No. 19S-CR-404 | July 16, 2019 Page 4 of 6

inaction. The procedure for demanding a jury trial in a misdemeanor case 

is controlled by Indiana Criminal Procedure Rule 22. 

A defendant charged with a misdemeanor may demand trial 

by jury by filing a written demand therefor not later than ten 

(10) days before his first scheduled trial date. The failure of a 

defendant to demand a trial by jury as required by this rule 

shall constitute a waiver by him of trial by jury unless the 

defendant has not had at least fifteen (15) days advance notice 

of his scheduled trial date and of the consequences of his 

failure to demand a trial by jury.

The trial court shall not grant a demand for a trial by jury filed 

after the time fixed has elapsed except upon the written 

agreement of the state and defendant, which agreement shall 

be filed with the court and made a part of the record. If such 

agreement is filed, then the trial court may, in its discretion, 

grant a trial by jury.

Ind. Crim. Rule 22.

In a misdemeanor case, a defendant waives the right to a jury trial

when the record does not contain a timely request for a jury trial and 

establishes that the defendant: (1) was advised of the right to a jury trial; 

(2) had at least fifteen days advance notice of the trial date; (3) was 

advised of the need to file a written demand for a jury trial at least ten 

days before the first scheduled trial date and that failure to do so will 

result in waiver of the right; and (4) understood the advisements. See

Hudson v. State, 109 N.E.3d 1061, 1064 (Ind. Ct. App. 2018); Duncan v. State, 

975 N.E.2d 838, 843 (Ind. Ct. App. 2012); Eldridge v. State, 627 N.E.2d 844, 

848 (Ind Ct. App. 1984), trans. denied. A defendant may be advised of his 

rights during a hearing held on the record or by a written advisement of 

rights. Hutchins v. State, 493 N.E.2d 444, 445 (Ind. 1986); Duncan, 975 

N.E.2d at 843.
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Dadouch signed two advisement of rights forms. The first stated, “You 

have the right to have a trial and for that trial to be public, speedy, and by 

jury. This right to a jury can be lost if you do not meet certain deadlines.” 

The second stated, “For a criminal charge, you have the right to have a 

trial and for that trial to be public, speedy, and by jury. In a misdemeanor 

case, you must request in writing a jury trial.”

By the time Dadouch signed the second form, the deadline to request a 

jury trial had passed. And regardless, neither form advised Dadouch he 

had to file a demand for a jury trial within ten days before the first 

scheduled trial date or that his failure to file a demand within that period 

would result in the waiver of his right. The first advisement of rights also 

did not inform Dadouch that his demand for a jury trial had to be in 

writing. The transcript of the initial hearing includes no mention of 

Dadouch’s right to a jury trial or the requirements of Criminal Rule 22.

The Criminal Benchbook provides an advisement of rights dialogue 

that clearly sets forth the Rule requirements that the trial judge must make 

certain the defendant acknowledges and understands. Using the 

Benchbook in this case would have insured that was done. While it is not 

required that trial judges use a written advisement of rights form in 

misdemeanor cases, it is the best practice and we urge all trial judges to 

incorporate an accurate one into their practices. The very best practice in 

these cases is to use both a written advisement of rights form together 

with the dialogue to insure that a reversal does not occur.

Based on this record, we hold that Dadouch did not validly waive his 

right to a jury trial. We grant transfer, thereby vacating the Court of 

Appeals opinion, see Ind. Appellate Rule 58(A), and reverse Dadouch’s 

conviction. Because we agree with the Court of Appeals that the evidence 

was sufficient to support the conviction, the State is free to retry Dadouch. 

All Justices concur.
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A T T O R N E Y F O R A P P E L L A N T

Mark Small

Indianapolis, Indiana

A T T O R N E Y S F O R A P P E L L E E

Curtis T. Hill, Jr.

Attorney General of Indiana

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana