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: ATTORNEYS FOR APPELLEE:

DERICK W. STEELE GREGORY F. ZOELLER

Kokomo, Indiana Attorney General of Indiana

J.T. WHITEHEAD

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ABRAHAM PATTERSON, )

)

Appellant-Defendant, )

)

vs. ) No. 34A02-1110-CR-1005

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE HOWARD SUPERIOR COURT

The Honorable Brant J. Parry, Judge

Cause No. 34D02-1103-FD-40

April 25, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
2

 Case Summary

Abraham Patterson appeals his conviction for Class D felony theft. We affirm.

Issue

Patterson raises one issue, which we restate as whether the trial court properly 

removed him from the courtroom because of his disruptive behavior.

Facts

On March 15, 2011, Patterson entered the Rural King in Kokomo and filled out a 

job application. Patterson then filled two shopping carts with merchandise and walked 

out of the store without paying for the items. Store manager Shawn Hobson followed 

Patterson and asked him to stop. Patterson did not stop, and Hobson followed Patterson 

to his vehicle. Patterson started putting the merchandise into his vehicle and refused 

Hobson’s demands to stop. Patterson started to get into his vehicle, and Hobson 

“grabbed his shirt” and pulled him out of the vehicle. Tr. p. 18. Hobson and another 

customer subdued Patterson until the police arrived. 

The State charged Patterson with Class D felony theft. Patterson filed a motion 

for psychiatric examination and to determine competency. The trial court granted the 

motion and appointed two psychiatrists or psychologists to examine Patterson. The trial 

court later determined that Patterson was competent to stand trial. Patterson then waived 

his right to a jury trial.

At Patterson’s bench trial, Officer Douglas Mason testified for the State, and 

Patterson interrupted Officer Mason’s testimony as follows: 
3

THE DEFENDANT: I’ve never seen that individual before in 

my life. 

THE COURT: Sir, you are going to have an opportunity to 

testify when it’s your turn. At this point, Mr. Mason is going 

to testify and then if you [want] to later, you are going to have 

an opportunity to testify.

* * * * *

Q: Please state what occurred when you arrived at the scene. 

A: I was dispatched there along with Officer Tom Kelly to go 

for a–the dispatch was a theft in progress. When I arrived, 

Tom Kelly had already gotten there prior to me getting there 

and he had a crowd of people around him. One of which was 

in cuffs. That’s the gentlemen sitting next to the defense . . . 

counsel. He had him detained for theft, he told me, for 

shoplifting and requested that I speak with the Store Manager 

and get some more information regarding that . . . .

THE DEFENDANT: I did not attempt any theft . . . .

THE COURT: You are going to have opportunity to tell me 

your side . . . .

THE DEFENDANT: I did not even walk (inaudible)

[DEFENSE COUNSEL]: Rodney, please . . . .

THE COURT: Rodney, you are going to have a chance . . . .

THE DEFENDANT: They got their merchandise back. I 

don’t owe Rural King anything. 

[DEFENSE COUNSEL]: Rodney, please . . . .

[DEFENSE COUNSEL]: Please, for your own good . . . .

THE COURT: You are going to have your chance to tell any 

side . . . .
4

THE DEFENDANT: I didn’t attempt theft nor shoplifting. I 

applied for work there. And I noticed that my checkbook 

wasn’t there and I tried to leave . . . .

THE COURT: RODNEY! You are going to have an 

opportunity to tell your side of the story, but you’ve got, 

we’ve got . . . .

THE DEFENDANT: And they arrested me on, like I said, . . .

.

THE COURT: Do you want your chance or . . . .

THE DEFENDANT: I asked for a Fast and Speedy Trial, you 

should have honored that by July 21st due to the Indiana 

Code of Statues, piece [sic] and dignity. . . like I said, I’m 

overdue for a Trial by at least, what, let’s see, it’s September, 

so it’s been . . . I’ve already served 6 months. So like I said, 

even if you did try to convict me of a Misdemeanor 

shoplifting, I’ve got time served. There’s no reason for me to 

be here. I’ve got an employment agenda. I’m trying to go 

back to work for either Wal-Mart or go back to IUK. Like I 

said, I’ve got a lot of work to do. Like I said, I have no prior 

convictions. And like I said, I’m not even from Indiana. 

THE COURT: Well, the longer you talk, the longer we are 

not going to get this over with. So if you want to . . . if you 

want to go through the process that we need to go through 

here, . . . .

THE DEFENDANT: Like I said, I applied for work with the 

Sheriff, with the Howard County Sheriff’s Department a few 

months ago . . . .

THE COURT: Do you want to go through this process or do 

you not . . . (inaudible) Do you want us to do this without you 

being here?

THE DEFENDANT: I just want to get the charges dismissed. 

Like I said, I’m not going to plead guilty . . . .

THE COURT: We have to go through this Trial, which . . . .
5

THE DEFENDANT: So like I said, I’m entering a plea of 

innocent . . . .

THE COURT: So do you want to just not be here . . . while 

we do this? You don’t have to be here if you are going to 

cause a disturbance of the Court. Or you can sit here and let 

us go through this and at the time when I tell you, then you 

will have your chance to tell us whatever you want to tell us.

[DEFENSE COUNSEL]: I told you that he will let you tell 

your story . . . .

THE COURT: Do you want to tell us your story later when I 

tell you it’s your turn?

THE DEFENDANT: I already did give you my side of the 

story. Like I said I don’t have . . . .

THE COURT: So you don’t want to? Do you want to be . . .

DO YOU WANT TO BE IN THE COURTROOM OR DO 

YOU WANT TO GO? Do you want to be in the Courtroom 

or do you want to go?

THE DEFENDANT: Basically, I just want to be released . . .

and go out in the community and . . . .

THE COURT: That is not one of the options I just gave you. 

Either you can be in the Courtroom while we go through this .

. . .

THE DEFENDANT: Fine. 

THE COURT: You want to be in the Courtroom or do you 

want to leave?

THE DEFENDANT: Well, like I said . . . .

THE COURT: You want to be in the Courtroom or do you 

want to leave?

THE DEFENDANT: We can follow . . . .
6

THE COURT: Do you want to be in the Courtroom or do you

want to leave?

[DEFENSE COUNSEL]: Rodney, you need to be quite [sic] .

. . .

THE COURT: Do you want to be in the Courtroom or do you 

want to leave?

THE DEFENDANT: I’m entering a plea of innocent. 

THE COURT: Do you want to be in the Courtroom or do you 

want to leave?

THE DEFENDANT: Like I said . . . whenever I’m released 

from jail, I’m seeking employer, I have . . . .

THE COURT: Do you want to be in the Courtroom right now 

and follow through the procedures or do you want to leave the 

Courtroom and we will do it without you being here? That’s 

the only question I need you to answer.

THE DEFENDANT: I’d rather follow through with the 

procedure. 

THE COURT: Then you are going to need to sit there and 

wait for your turn to talk. If you can’t do that, then we are 

going to remove you. 

[DEFENSE COUNSEL]: You are entitled to be here, just 

wait your turn, ok?

THE COURT: Go ahead Mr. Pate [deputy prosecutor].

* * * * *

Q: Ok. And what did he tell you?

A: He told me that Mr. Patterson had just entered the store 

and dropped off an application for an employment to Rural 

King. Once he had done that, he began to shop inside Rural 

King and had a grocery cart full of items. And once it was 

full of items, he said that he simply exited the store. But he 
7

was being chased, of course, after he stopped, or after he 

passed all points to pay. He said he about knocked an elderly 

female down. Ran out in the parking lot . . . .

THE DEFENDANT: No, sir. No I did not . . . .

THE COURT: You are going to have . . . .

THE DEFENDANT: I am not abusive to women . . . .

THE COURT: This is the last time. Either you are going to, 

either you are going to go through the procedure . . . .

THE DEFENDANT: That’s a, that’s a false allegation . . . .

THE COURT: Well, you are going to have a chance to 

respond to any allegation, to every allegation when it’s your 

turn. 

THE DEFENDANT: Well, I’m not going to let him 

continuously lie to me and I’m not going to give you 

authority over me anyway. Not in a Courtroom that I don’t 

necessarily respect. That’s no . . . .

THE COURT: Well then we will just remove him and we will 

do this without you, so . . . go ahead and take him out. Go 

ahead, Mr. Pate. 

Q: If you would, proceed w[h]ere you left off.

* * * * *

THE COURT: You can step down. The security is asking if 

they can transfer him back to the jail or not. He gave me his 

statement as he sat there. But he hadn’t been sworn. Um, he 

is causing a disturbance each time he is here . . . .

[DEFENSE COUNSEL]: Judge, I’m not going to bring him 

back in to testify. I don’t see . . .

THE COURT: I was going to ask. If you want him to come 

back up here and have a chance to testify . . . .
8

[DEFENSE COUNSEL]: No, sir. I would love to be able to 

put him on the stand and unfortunately, I don’t think it’s an 

option . . . I mean, I just think he’s entitled to it. I don’t know 

how much he would lend to the process. But . . .

unfortunately, I don’t think it’s an option.

Tr. pp. 5-12, 15. The trial court found Patterson guilty as charged and sentenced him to 

three years with one year suspended to probation. Patterson now appeals.

Analysis

Patterson argues that the trial court abused its discretion by removing him from 

the courtroom. A criminal defendant’s right to be present at his trial derives from the 

Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 

13 of the Indiana Constitution. Campbell v. State, 732 N.E.2d 197, 204 (Ind. Ct. App. 

2000). However, a defendant’s right to be present under either the United States 

Constitution or Indiana Constitutions may be waived if such waiver is knowing and 

voluntary. Id. (citing Harrison v. State, 707 N.E.2d 767, 785 (Ind. 1999), cert. denied). 

The United States Supreme Court has held:

a defendant can lose his right to be present at trial if, after he 

has been warned by the judge that he will be removed if he 

continues his disruptive behavior, he nevertheless insists on 

conducting himself in a manner so disorderly, disruptive, and 

disrespectful of the court that his trial cannot be carried on 

with him in the courtroom. 

Illinois v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 1060-61 (1970) (footnote omitted). 

“[T]rial judges confronted with disruptive, contumacious, stubbornly defiant defendants 

must be given sufficient discretion to meet the circumstances of each case.” Id., 90 S. Ct. 

at 1061. In Campbell, we noted that, although the United States Supreme Court in Allen
9

was only addressing the Sixth Amendment right to be present at trial, “we can perceive of 

no reason why an identical waiver rule should not also be applicable to Article I, section 

13 of the Indiana Constitution.” Campbell, 732 N.E.2d at 205.

Patterson first argues that he could only be removed due to “outrageous conduct . . 

. coupled with his express desire to leave the courtroom.” Appellant’s Br. p. 5. In 

support of his argument, Patterson relied on Perry v. State, 471 N.E.2d 270 (Ind. 1984), 

where the defendant expressly requested to be removed from the courtroom. However, 

our supreme court did not hold in Perry that both an express request and outrageous 

conduct were required to remove a defendant. In fact, such a holding would conflict with 

Allen, which held that a defendant can waive his or her right to be present during trial due 

to disruptive behavior. 

Next, Patterson argues that his removal was unnecessary. Patterson repeatedly 

interrupted Officer Mason’s testimony. The trial court provided numerous opportunities 

for Patterson to stop interrupting the proceedings, but Patterson refused to comply. The 

trial court was “extraordinarily patient” with Patterson and “provided him with every 

opportunity to remain in the courtroom.” Campbell, 732 N.E.2d at 206. It is clear that 

the trial court had the discretion to remove Patterson from the courtroom due to his 

disruptive behavior.

Finally, Patterson also argues that the trial court should have allowed Patterson “to 

reclaim his right to be present at his trial.” Appellant’s Br. p. 6. In Allen, the United 

States Supreme Court held: “Once lost, the right to be present can, of course, be 

reclaimed as soon as the defendant is willing to conduct himself consistently with the 
10

decorum and respect inherent in the concept of courts and judicial proceedings.” Allen, 

397 U.S. at 343, 90 S. Ct. at 1061. Patterson was removed from the courtroom during the 

first of two witnesses. Between the first and second witnesses, Patterson’s counsel stated 

that, although he would like to have Patterson testify, he did not think it was “an option.” 

Tr. p. 15. There is nothing in the record to indicate that Patterson was willing to conduct 

himself properly if returned to the courtroom, and his trial counsel did not believe it was 

appropriate to return Patterson to the courtroom. We cannot say that the trial court 

abused its discretion.

Conclusion

The trial court properly removed Patterson from the courtroom due to his 

disruptive behavior. We affirm.

Affirmed.

FRIEDLANDER, J., and MAY, J., concur.