Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-245 | March 20, 2015 Page 1 of 9

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

Philip R. Skodinski 

South Bend, Indiana 

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller 

Attorney General of Indiana 

Ian McLean 

Deputy Attorney General 

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

Aguila Antwon Binion, 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-Plaintiff 

March 20, 2015 

Court of Appeals Case No. 

71A03-1407-CR-245 

Appeal from the St. Joseph Superior 

Court 

Honorable Jerome Frese, Judge 

Cause No. 71D03-1112-FB-206 

Friedlander, Judge. 
Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-245 | March 20, 2015 Page 2 of 9

[1] Aguila Antwon Binion appeals his conviction for Burglary, as a class B felony.1 

He presents the following consolidated and restated issues for review: 

1. Is the conviction supported by sufficient evidence? 

2. Did the trial court abuse its discretion in rejecting Binion’s plea to a 

reduced charge? 

3. Was Binion denied a fair and impartial trial due to misconduct of 

the trial court? 

4. Did the trial court err when it refused Binion’s request to disqualify 

a deputy prosecutor? 

We affirm. 

[2] During a home invasion around 6:00 p.m. on November 28, 2011, Andre 

Harris was robbed and beaten in his apartment.2

 His multiple assailants took 

his cell phone, house and car keys, and cash. Thereafter, Harris stumbled 

across the street to his friend Hayah Binion’s home. Hayah assisted Harris until 

emergency responders arrived. Harris was transported to the hospital. 

[3] Around 11:00 p.m., Harris called Hayah and, during the conversation, 

indicated that he would be staying at his mother’s home that night because his 

 

1

 The statute in effect at the time of the offense classified burglary of a dwelling as a class B felony. Ind. Code 

Ann. § 35-43-2-1(1)(B)(i) (West, Westlaw 2013). The statute has since been revised and in its current form 

reclassifies this as a Level 4 felony. See I.C. § 35-43-2-1(1) (West, Westlaw current with all 2014 Public Laws 

of the Second Regular Session and Second Regular Technical Session of the 118th General Assembly). The 

former version is applicable in this case because the offense was committed before July 1, 2014. See id. 

2

 Harris lived in a home that had been converted into three apartments. The entry to his second-floor 

apartment was on the main level on the side of the house, though facing the street. The entrances for the 

other two apartments were in the rear and the front of the house. 
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attackers still had the keys to his apartment. Binion, Hayah’s husband, was 

next to Hayah during the call and heard much of the conversation. Though 

close friends with Hayah, Harris knew Binion only socially. 

[4] The following morning around 5:00 a.m., South Bend police officers were 

dispatched to Harris’s residence on the report of a burglary in progress. 

Responding officers detained Marcus Gregory, who was at the back of the 

house outside Rhonda Nicks’s apartment. Officers drew their weapons and 

yelled repeatedly for Gregory to freeze and put his hands up. 

[5] Within one or two minutes of Gregory’s detention, another officer came around 

the front of the house and observed Binion exiting Harris’s apartment. Binion 

was shutting the door with a sock on his right hand and wiping the knob. The 

officer immediately detained Binion, who was in possession of a crowbar. 

Binion also had several items in his pocket that belonged to Harris, including a 

game controller, an ear piece, a battery, and a watch. Binion removed these 

items from Harris’s apartment without permission. 

[6] Binion and Gregory were transported to the police station. Gregory, who was 

not found in possession of any of Harris’s property and was apparently at the 

scene to visit Nicks, was eventually released. Binion was arrested and charged 

with burglary as a class B felony. 

[7] After Binion fired two different attorneys, he chose to proceed pro se. On May 

6, 2013, a jury was selected but not yet sworn. The following day, Binion 

accepted a plea offer in which he would plead guilty to a burglary as a class C 
Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-245 | March 20, 2015 Page 4 of 9

felony. At the plea hearing, Binion prefaced his admission of the factual basis 

with “I’m really not telling the truth.” Transcript at 152. The trial court took 

the plea under advisement. After delays relating to evaluation and preparation 

for community corrections, the parties appeared for sentencing on November 6, 

2013. Binion interjected at the beginning of the hearing that he would like 

transcripts “for everything up to this point.” Id. at 172. After some discussion, 

the court asked: “You think that you weren’t treated fairly?” Id. at 174. Binion 

replied, “I know I wasn’t treated fairly.” Id. The court then rejected the plea 

and set the cause for jury trial. 

[8] The jury trial commenced June 9, 2014. Binion represented himself at trial with 

the assistance of standby counsel. After the State presented its evidence, Binion 

called three witnesses and testified in his own defense. Binion explained that he 

noticed, from across the street, Harris’s door open and a shadow present. He 

said he quickly dressed, grabbed a crowbar for a weapon, and put a sock on his 

right hand to protect his hand from blood. According to Binion, he crept up to 

Harris’s door and entered when he heard nothing. Binion then described 

having a “brain fart” and picking up some of Harris’s property. Id. at 574. 

When he heard the police stopping Gregory outside the back of the house, he 

put the items in his pocket and ran toward the door. Binion indicated that he 

was rushing out to aid the police. Finally, Binion denied wiping the doorknob, 

explaining that it just looked that way because it is difficult to twist a knob with 

a slippery cotton sock on your hand. 
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[9] The jury found Binion guilty as charged, and the trial court subsequently 

sentenced him to twelve years, with six years suspended and the remainder to 

be served in community corrections. Binion now appeals. Additional facts will 

be provided below as needed. 

1. 

[10] Binion initially challenges the sufficiency of the evidence. In this regard, he 

relies exclusively on his own testimony. He claims that he went into the 

apartment to confront an intruder and that he had no intent to take Harris’s 

property. Binion urges that his explanation was reasonable. 

[11] Our standard of review is well settled. We neither reweigh the evidence nor 

judge the credibility of witnesses. Jackson v. State, 925 N.E.2d 369 (Ind. 2010). 

Rather, we consider only the evidence favorable to the judgment and all 

reasonable inferences therefrom. Alvies v. State, 905 N.E.2d 57 (Ind. Ct. App. 

2009). 

[12] We reject Binion’s bald invitation to reweigh the evidence and judge his 

credibility. As set out in detail above, ample evidence supports the conviction. 

The jury was free to reject Binion’s self-serving and unpersuasive testimony in 

which he attempted to explain away the State’s evidence. See Scott v. State, 867 

N.E.2d 690, 696 (Ind. Ct. App. 2007) (“[t]he trier of fact is entitled to determine 

which version of the incident to credit”), trans. denied. 

2. 
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[13] Binion asserts that the trial court abused its discretion when it rejected the plea 

agreement. In his brief argument, Binion acknowledges that a trial court is not 

required to provide reasons for rejecting a plea agreement. See Meadows v. State, 

428 N.E.2d 1232, 1235 (Ind. 1981) (“when the court, after complying strictly 

with the guilty plea statutes, and after taking evidence on the factual basis for 

the plea, rejects a plea bargain, we will presume that he court has properly 

evaluated the propriety of accepting it”). Binion appears to argue, however, 

that where a plea is voluntary and supported by a sufficient factual basis, the 

trial court may reject the plea agreement only when the defendant attempts to 

contemporaneously maintain his innocence. Binion cites no authority in 

support of his undeveloped argument, and we are aware of none. 

[14] Our Supreme Court has held that a defendant has no absolute right to 

acceptance of a plea agreement. Meadows v. State, 428 N.E.2d 1232. A trial 

court “may reject a plea in the exercise of its sound judicial discretion.” Id. at 

1235. 

[15] Here, Binion’s plea was taken under advisement after a plea hearing at which 

the voluntariness of the plea and a factual basis were established. After six 

months, during which arrangements were being made regarding community 

corrections, Binion appeared for sentencing and indicated that he had not been 

treated fairly. He requested transcripts of all prior proceedings in order to prove 

his contention. Accordingly, the trial court rejected the plea agreement and 

reset the case for trial by jury. Binion has failed to establish that the trial court 

abused its discretion. 
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3. 

[16] Binion claims that he was denied a fair and impartial trial due to misconduct of 

the trial court. In this regard, he notes that the trial court “interjected itself on 

approximately 37 occasions during the trial” and had an ex parte 

communication with the jury regarding scheduling.3

 Appellant’s Brief at 6. 

With respect to the interjections, Binion expressly (though tersely) addresses 

only two and then provides a long list of pages where others occurred. 

[17] The proper procedure to preserve such error for appeal is to object to the trial 

court’s interruptions or misconduct, request an admonishment, and move for a 

mistrial. See Davis v. Garrett, 887 N.E.2d 942 (Ind. Ct. App. 2008), trans. denied. 

As Binion did not preserve the claims of error, they are waived unless he 

establishes fundamental error. Id. Binion, however, has not presented us with 

a fundamental error argument. “Simply asserting that error occurred and was 

harmful is insufficient to establish fundamental error.” Hollingsworth v. State, 

987 N.E.2d 1096, 1099 (Ind. Ct. App. 2013), trans. denied. Review for 

fundamental error is therefore waived. 

4. 

 

3

 During a brief recess, the jury inquired of the trial court how late the trial would go, and the court gave the 

jury some general information. After the recess and on the record, the trial court made the parties fully aware 

of its communication with the jury. Binion did not object. 
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[18] Finally, Binion argues that the trial court erred in refusing to disqualify Deputy 

Prosecutor A.J. Ennis from participating in the trial. The entirety of Binion’s 

argument is that he served Ennis with a subpoena,4

 which disqualified Ennis 

pursuant to Indiana Professional Conduct Rule 3.7. 

[19] Prof. Cond. R. 3.7(a) provides: 

A lawyer shall not act as advocate at a trial in which the lawyer is 

likely to be a necessary witness unless: 

(1) the testimony relates to an uncontested issue; 

(2) the testimony relates to the nature and value of legal services 

rendered in the case; or 

(3) disqualification of the lawyer would work substantial 

hardship on the client. 

More is required to disqualify a lawyer than the simple issuance of a subpoena. 

See Rhodes v. Miller, 437 N.E.2d 978, 982 (Ind. 1982) (“defendant cannot 

disqualify a prosecuting attorney by naming him as a witness”). See also 

Wilcoxen v. State, 619 N.E.2d 574, 576 (Ind. 1993) (“[t]o be disqualified to act as 

an advocate in a case, it must be shown that the attorney would be a necessary 

witness for one of the parties and that his testimony would be significantly 

useful to that party”).

[20] Binion makes no attempt to establish on appeal that Ennis was a necessary 

witness in this case. The trial court provided Binion with an opportunity to 

 

4

 Binion claimed that immediately prior to Hayah being deposed by the defense, Ennis spoke with her and 

coerced her to change her testimony. At trial, however, Hayah testified that although she privately spoke 

with Ennis at the deposition, the discussion did not change the substance of her deposition testimony. 
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make such a showing, but Binion failed to call any witnesses at the pre-trial 

hearing specifically scheduled to address this matter. Further, Binion did not 

call Ennis as a witness at trial. Under the circumstances, the trial court did not 

err in refusing to disqualify Ennis.5

[21] Judgment affirmed. 

Kirsch, J., and Crone, J., concur. 

 

5

 As a precaution, the trial court ordered the participation of a second deputy prosecutor and directed Ennis 

to refrain from participating in the questioning of Hayah.