Court of Appeals of Indiana | Memorandum Decision 18A-CR-835 | January 29, 2019 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Daniel Hageman 

Marion County Public Defender Agency 

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana 

Laura R. Anderson 

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Bomani Marsh,

Appellant-Defendant,

v. 

State of Indiana, 

Appellee-Plaintiff. 

January 29, 2019

Court of Appeals Case No.

18A-CR-835 

Appeal from the Marion Superior 

Court 

The Honorable David Hooper, 

Magistrate 

Trial Court Cause No. 

49G02-1701-CM-3159 

Brown, Judge. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-835 | January 29, 2019 Page 2 of 7

[1] Bomani Marsh appeals his misdemeanor convictions for carrying a handgun 

without a license and operating a motor vehicle without ever receiving a 

license. Marsh raises one issue which we revise and restate as whether he 

knowingly, intelligently, and voluntarily waived his right to a jury trial. We 

affirm. 

Facts and Procedural History

[2] On January 24, 2017, the State charged Marsh with: Count I, carrying a 

handgun without a license as a class A misdemeanor; and Count II, operating a 

motor vehicle without ever receiving a license as a class C misdemeanor. On 

January 31, 2017, the court held an initial hearing at which it advised Marsh of 

certain rights and stated in part that “in a criminal case you are entitled to a 

variety of rights, including the right to a public and speedy trial, by a jury if you 

want one . . . .” Supplemental Transcript Volume 2, Filed November 15, 2018, 

at 4. The court also appointed a public defender, attorney Lauren Rodriguez, 

to represent Marsh and scheduled a hearing for April 4, 2017. 

[3] On April 4, 2017, the court held a pretrial conference at which Marsh appeared 

in person and by counsel, attorney Rodriguez. The court stated: “Show the 

defendant appears in person and by Ms. Rodriguez. The matter comes before 

the court today for pretrial. Ms. Rodriguez?” Supplemental Transcript Volume 

1, Filed August 22, 2018, at 16. Defense counsel Rodriguez then stated: “Yes, 

Judge. We’re requesting a bench trial with a final pretrial two weeks before. I 

do - hold on. Sorry. We are requesting a bench trial be set in August, if that’s 
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okay with the court.” Id. The court scheduled a final pretrial conference for 

August 9, 2017, and a bench trial for August 23, 2017. On August 9, 2017, the 

court held a pretrial conference, scheduled a change of plea hearing for October 

4, 2017, and rescheduled the bench trial for January 10, 2018. On January 3, 

2018, at the State’s request, the court rescheduled the bench trial for February 

22, 2018. On February 22, 2018, the court conducted a bench trial at which 

Marsh testified and found Marsh guilty on Counts I and II. The court 

sentenced Marsh to concurrent terms of 365 days on Count I and sixty days on 

Count II all suspended except for time served. 

Discussion

[4] The issue is whether Marsh knowingly, intelligently, and voluntarily waived his 

right to a jury trial. The right to a jury trial is guaranteed by the Indiana and 

United States Constitutions. Fiandt v. State, 996 N.E.2d 421, 423 (Ind. Ct. App. 

2013) (citing Young v. State, 973 N.E.2d 643, 645 (Ind. Ct. App. 2012)). The 

right to a jury trial in misdemeanor cases is not self-executing, but is controlled 

by Ind. Criminal Rule 22. Id. (citing Young, 973 N.E.2d at 645). Criminal Rule 

22 provides in part: 

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. 
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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. 

“Thus, when charged with a misdemeanor, a defendant can waive [his or] her 

right to a jury trial by failing to make a timely demand for trial by jury.” Fiandt, 

996 N.E.2d at 423 (citing Young, 973 N.E.2d at 645). See Hutchins v. State, 493 

N.E.2d 444, 445 (Ind. 1986) (“One charged with a misdemeanor has no right to 

a jury trial pursuant to Criminal Rule 22 unless he makes a written demand for 

it. . . . Thus, a misdemeanant can waive a jury trial by failing to request it. 

More protection is given to one charged with a felony in that he has an 

automatic right to a jury trial unless he expressly waives it.”). While a 

defendant charged with a misdemeanor can therefore waive his right to a jury 

trial by inaction, the waiver must nonetheless be knowing, voluntary, and 

intelligent. Duncan v. State, 975 N.E.2d 838, 842 (Ind. Ct. App. 2012). On 

appeal, we consider the entire record to determine whether the defendant has 

made a voluntary, knowing, and intelligent waiver. Id. 

[5] Marsh argues that the trial court did not advise him of his right to a jury trial or 

the consequences of failing to make a timely, written demand for a jury trial. 

He argues that, while the trial court may infer that the accused does not wish to 

proceed to a jury trial by the accused’s decision not to file a timely written 

demand, the court is not entitled to do so where the accused has not been 
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advised of the consequences of failing to make such a demand. He requests 

that we reverse and remand for a new trial. Marsh points to Hudson v. State, 109 

N.E.3d 1061 (Ind. Ct. App. 2018), in support of his request for a new trial. 

[6] The State responds that the trial court did advise Marsh that he was entitled to a 

jury trial if he wanted but failed to advise him of the requirement that he file a 

written demand. It argues that Marsh was represented by counsel at the April 

4, 2017 hearing, affirmatively requested a bench trial, and in doing so invited 

any error. The State argues that Marsh was fully aware that he had a right to a 

jury trial and instead demanded a bench trial, that he did not merely acquiesce 

to a bench trial by failing to file a timely demand, that there is no suggestion in 

the record that he wanted or was denied a jury trial, and that it appears he is 

raising the issue now only because he wants a second chance at trial. 

[7] In Hudson v. State, the trial court advised the defendant at an initial hearing that 

he had the right to a trial by a jury if he wanted one. 109 N.E.3d at 1062. 

Later, a hearing was continued, an “off record request form,” which was signed 

by the State and defense counsel but not the defendant, was submitted to the 

court, the form noted that the reason for the continuance was that the matter 

was to be “set for BT,” and the trial court set a bench trial. Id. at 1062-1063. 

Before the bench trial began, the defendant expressed his dissatisfaction with his 

public defender and indicated that he thought the matter was set for a jury trial. 

Id. at 1063 (the defendant stated there “was an incident going on where I had 

another public defender who was supposed to set my trial for a jury trial. I get a 

new public defender, I got a bench trial” and “I thought we were going . . . to 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-835 | January 29, 2019 Page 6 of 7

jury trial. I’ve never been to a bench trial”). The trial court stated that it did not 

have any options and moved forward with the bench trial. Id. On appeal, the

Court observed that the trial court failed to advise the defendant of the 

consequences of failing to demand a jury trial or of the specific requirements for 

making such a demand. Id. at 1065. The Court held that the defendant 

established that his waiver of his right to a misdemeanor jury trial was not 

knowing, and remanded for a jury trial. Id. 

[8] In this case, at the initial hearing on January 31, 2017, the trial court advised 

Marsh that he had “the right to . . . a jury if you want one.” Supplemental 

Transcript Volume 2, Filed November 15, 2018, at 4. Thus, Marsh was advised 

of his right to a trial by jury. Of course, a more thorough advisement of rights 

including the necessity to file a written request for a jury trial by the specified 

deadline would be recommended in all cases. However, the record reveals that 

the trial was rescheduled several times, that the trial was held on February 22, 

2018, and that at no time did Marsh express that he thought he had, or wished 

to have, a trial by jury. Moreover, unlike in Hudson, where the record 

contained an “off record request” for a continuance to set a bench trial which 

was not signed by the defendant and the defendant later indicated that he 

thought the matter was set for a jury trial, the record here reveals that Marsh 

was present at the April 4, 2017 pretrial hearing during which his defense 

counsel stated “We’re requesting a bench trial with a final pretrial two weeks 

before” and “We are requesting a bench trial be set in August.” Supplemental 

Transcript Volume 1, Filed August 22, 2018, at 16. Marsh had ample 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-835 | January 29, 2019 Page 7 of 7

opportunity to discuss with counsel whether to request a jury trial. Based upon 

the entire record and under the circumstances, we conclude that reversal is not 

warranted. 

[9] For the foregoing reasons, we affirm Marsh’s convictions. 

[10] Affirmed. 

Bailey, J., and Bradford, J., concur.