Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 1 of 32

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

Matthew J. McGovern

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Larry Corneal Johnson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 20, 2019

Court of Appeals Case No.

18A-CR-1735

Appeal from the Vanderburgh 

Superior Court

The Honorable Robert J. Pigman, 

Judge

Trial Court Cause No.

82D03-1705-F2-2989

Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 2 of 32

Case Summary 

[1] Larry Johnson was charged with two counts of dealing in a narcotic drug, a 

Level 2 felony and a Level 5 felony, and maintaining a common nuisance, a 

Level 6 felony. After dismissing his private counsel and repeatedly asserting

that he wished to proceed pro se, the trial court denied two of Johnson’s 

requests for “co-counsel[,]” the first coming during a hearing on the morning of 

trial and the second following jury selection. Over Johnson’s objection, the 

State admitted evidence that Johnson had sold a confidential informant heroin 

on approximately ten prior occasions. Johnson was found guilty as charged 

and received an aggregate twenty-five-year sentence.

[2] Johnson, by counsel, now appeals his conviction raising two issues for our 

review, which we expand and restate as: (I) whether the trial court violated 

Johnson’s right to counsel when it allowed him to proceed pro se; (II) whether 

Johnson reasserted his right to counsel during trial and, if so, whether the trial 

court erred in denying Johnson’s request; and, (III) whether the trial court 

committed fundamental error when it permitted the State to introduce evidence 

of Johnson’s prior drug dealing. Concluding the trial court did not violate 

Johnson’s right to counsel by allowing him to proceed pro se, Johnson did not 

reassert his right to counsel, and the trial court did not commit fundamental 

error by permitting the State to introduce evidence of Johnson’s prior drug 

dealing, we affirm. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 3 of 32

Facts and Procedural History1

[3] In January 2017, L.M. and her boyfriend were arrested with a substantial 

amount of methamphetamine. L.M. became a confidential informant (“the 

C.I.”) and reported that she had purchased heroin from Johnson on 

approximately ten prior occasions. The C.I. arranged to purchase heroin from 

Johnson through a recorded phone call on May 16, 2017. The C.I. was 

provided with two recording devices disguised as a key fob and a cellphone and 

supplied with buy money to purchase the heroin. The C.I. drove to Johnson’s 

residence under the supervision of police. Once the C.I. entered the residence, 

Johnson gave her one gram of heroin packaged in aluminum foil in exchange 

for $225 of buy money. Following the exchange, Johnson made a sexual 

advance toward the C.I. which was partially captured on audio. 

[4] Police continued observation of Johnson’s residence. After Johnson left by 

vehicle, police detained several individuals who attempted to enter the 

residence and executed a search warrant. The search revealed almost eleven 

grams of heroin, three digital scales, and drug paraphernalia. Police arrested 

Johnson following a traffic stop and the buy money was located on Johnson’s 

person. 

 

1 We heard oral argument at Manchester University in North Manchester, Indiana at on March 5, 2019. We 

thank Manchester University for their generous hospitality and commend counsel for their skilled and 

informative oral advocacy. 
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[5] On May 18, the State charged Johnson with two counts of dealing in a narcotic 

drug, a Level 2 felony and a Level 5 felony, and maintaining a common 

nuisance, a Level 6 felony. Johnson moved for a speedy trial at his initial 

hearing on May 22. Attorney Ivan Arnaez entered his appearance for Johnson 

on June 6 and filed motions to suppress and dismiss. 

[6] Arnaez moved to withdraw his appearance on October 6. At an October 31 

hearing on the motion, the trial court engaged in the following colloquy with 

Johnson: 

[The Court]:Well you have, you have three options. You can 

represent yourself, you can hire someone, another 

lawyer to represent you or you can take a public 

defender. If you want a lawyer, you can’t afford 

one, the Court can appoint one for you but . . . 

[Johnson]: I did hire a lawyer. 

[The Court]: Do what? 

[Johnson]: I did hire a lawyer. 

[The Court]: Well but he just told me that you asked him to, you 

know, get off your case, to withdraw from your 

case. 

[Johnson]: But he just said he’s not going to refund any of my 

money. He’s paid in full. He’s paid in full. So he 

was hired to go to a trial, a jury trial. He’s not 

taking me to a jury trial but he still – that shouldn’t 

let him out of the – not paying the court costs. He 

still should be obligated for that but if you don’t see 

fit like that I’ll set a fast and speedy trial. If I have a 

fast and speedy trial I’ll proceed pro se. 

[The Court]: You’re going to represent yourself? 

[Johnson]: Yes sir. I’ll proceed pro se. 
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[The Court]: Okay. Why do you want to represent yourself? 

That’s not a very good idea. 

[Johnson]: Your Honor, I’m sure you are aware of the, the 

video recordings in this case. 

[....]

[The Court]: All right. I understand that. Why do you want to 

represent yourself? Why don’t you want the public 

defender to represent you or . . . 

[Johnson]: Because I paid for an attorney. I already paid for an 

attorney but I’ll represent, I’ll represent myself. I 

think I can represent myself better than this 

gentleman here. 

[The Court]: Okay. 

[Counsel]: You know I’m not going to let him bad mouth me 

like that Your Honor. We’ve filed a Motion to 

Dismiss, Motion to Suppress. If I’m out of the case, 

I’m out of the case but I’m not going to let him say 

that. 

[Johnson]: Your Honor the man has not – I don’t even know 

my cause number. 

[The Court]: Well obviously he can’t represent you. We’re past 

that point. 

[Johnson]: He has not sent me a cause number. He has not 

sent me a . . .

[The Court]: (Interrupting) Have you ever represented yourself 

before in any kind of Court proceeding? 

[Johnson]: Yes. Yes sir, Your Honor, I have. 

[The Court]: You did? 

[Johnson]: Yes but the point with him being, Your Honor, he 

has not sent me a copy of a search warrant. They 

searched my home at 3:50 – they entered my house 
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at two o’clock. The search warrant is for 3:58. He 

won’t even send me a copy of the search warrant. 

[The Court]: Okay. 

[Johnson]: I got charged with these crimes at 2:34. 

[The Court]: I understand that you and [counsel] have had a 

falling out. I’m going to grant his request – your 

request, actually, that he withdraw. If you have a 

problem with the fee arrangements, you don’t think 

you were treated fairly you have to pursue that on 

your own through other legal remedies. I can’t do 

anything about that in this case. Now . . . 

[Johnson]: (Interrupting) Is my fast and speedy trial still good? 

[The Court]: It’s set for November 16th. Do you want – you still 

want to represent yourself? 

[Johnson]: Yes sir. Yes sir. I’ll be representing myself. Thank 

you, sir. I won’t take much of the Court’s time. 

Tr., Vol. 2 at 15-18.

[7] Johnson renewed his motions to suppress and dismiss and filed a motion to 

compel. The trial court held a hearing on Johnson’s motions on November 13. 

There, Johnson claimed he was unaware of the hearing and had not 

subpoenaed any witnesses. The Court stated: 

You’ve, by moving for an early trial, the Court has to try this 

case on Thursday. Now you have not subpoenaed nor have you 

requested that the Court subpoena any witnesses. If you are 

telling the Court that you want subpoenas issued to witnesses, 

the Court can arrange that but you’re asking the Court to do that 

and to deliver subpoenas and have individuals here and you’re 

giving me – this is near the end of business on Monday so that 

gives the Court Tuesday and Wednesday to subpoena a list of

witnesses.
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Id. at 28. Over Johnson’s objection, the trial court granted the State’s motion 

for a continuance pursuant to Criminal Rule 4(D) for the State to obtain 

additional evidence from a witness who was in the hospital, explaining to 

Johnson “[n]ow it seems to me that you need that ninety days to get yourself 

prepared.” Id. at 42. 

[8] Johnson then filed a motion to dismiss or discharge on December 21. The trial 

court held a pretrial conference on January 16 and a hearing on Johnson’s 

motions to suppress and dismiss on January 26. At the beginning of the 

hearing, the trial court asked Johnson again if he wanted counsel:

[The Court]: We’re here this morning in the matter entitled State 

of Indiana vs Larry Corneal Johnson. Mr. Johnson 

is present, he’s in custody and he’s representing 

himself so he is pro se. Now you still wish to 

represent yourself, Mr. Johnson? 

[Johnson]: Yes sir. 

[The Court]: Okay. You understand you’re facing a Level 2 

Felony here, it’s pretty serious. You don’t want 

legal counsel? 

[Johnson]: Yes sir. No sir.

Id. at 51. During the ensuing suppression hearing, both Johnson and the State 

presented evidence and cross-examined witnesses. The hearing was continued 

until January 30. Following an additional officer’s testimony on that date, the 

trial court denied Johnson’s motion to suppress. 

[9] Also on January 30, the State filed a notice of Evidence Rule 404(b) evidence. 

The State indicated that “[Johnson] may introduce evidence [the C.I.] was at 
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his home prior to May 16, 2017 and [the C.I.] was in possession of heroin and 

planted the heroin in the home.” Appellant’s Appendix, Volume II at 88. 

Therefore, the State claimed that such evidence would “open the door for the 

State to introduce evidence [the C.I.] had purchased heroin from [Johnson] 

previously at his home and that he was her supplier as opposed to her obtaining 

heroin and planting it in his home.” Id. 

[10] The trial court held a hearing prior to trial on the morning of February 1. 

When Johnson asked about suppressing evidence, the trial court explained:

[The Court]: I told you when you’re going to represent yourself I 

cannot help you. 

[Johnson]: I agree with you, Your Honor.

[The Court]: I cannot stand on your side of this case. You’re 

responsible. You took responsibility for this. That’s 

why I told you to hire—get a—let the Public 

Defender represent you.

Tr., Vol. 2 at 145. The State then asked about its notice of Rule 404(B) 

evidence to which the trial court responded, “If [Johnson] alleges the 

entrapment or if he says that – if [the State] [has] evidence that that’s not true, 

the evidence is not true, certainly.” Id. at 149. 

[11] The trial court conducted a hearing on Johnson’s motion to dismiss, which it 

denied from the bench after hearing Johnson’s evidence. Johnson then 

requested Judge Robert J. Pigman recuse himself because he was the 

prosecuting attorney in a case against Johnson that reached the Indiana 
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Supreme Court in 1987.2 Judge Pigman declined to recuse himself but offered 

Johnson more time to “find some authority to support [his] position in this 

case[.]” Id. at 171. Johnson declined. 

[12] After a lengthy discussion regarding whether the C.I. had any prior convictions, 

Johnson asked:

[Johnson]: Can I have Co-Counsel get me various papers? 

[The Court]: Get you what? 

[Johnson]: Can I have Co-Counselor to assist me, CoCounselor . . . 

[The State]: Judge that’s a . . . 

[Johnson]: Well he has two people. You have two people over 

there. 

[The State]: That is a late request the morning of trial. He has 

been insistent, pro se . . . 

[The Court]: (Interrupting) I offered you that once before, Mr. 

Johnson and you didn’t want that. 

[Johnson]: No. You offered me an attorney. 

[The Court]: And I offered you standby counsel and you said you 

didn’t need a lawyer. 

[The State]: May I bring to this Court’s attention, Ms. 

Inkenbrandt was here when we did our pre-trial. 

He and I had a dialog then. I can’t remember 

which deputy was here. It may have been 

Lieutenant Ashworth and I admonished Mr. 

Johnson then, I said sir you do not know what 

you’re doing in this case. You need to be 

 

2

See Johnson v. State, 507 N.E.2d 980 (Ind. 1987). 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 10 of 32

represented by an attorney. He rebuked my 

statement and said I don’t need any counsel, I don’t 

need a Public Defender. I’m ready to go. 

[The Court]: Yeah (affirmative). I understand. You can’t have a 

trial today with co-counsel. 

[Johnson]: Your Honor. Okay. Your Honor this is the 

charging Information. 

[The Court]: Right. 

[Johnson]: This is upstairs. This is not even in this courtroom. 

[The Court]: Mr. Johnson it’s obvious to me that I was right 

months ago when I told you you’re making a big 

mistake. 

[Johnson]: (Interrupting) But I’m saying this charging 

Information is upstairs. 

[The Court]: Many of the things you’ve said and many of the 

efforts you’ve made on your behalf have not been 

successful because many of them, you just don’t 

know what you’re doing. You’re not adequately 

skilled in the law how to investigate these things, 

how these things work and that’s what I told you. 

A lawyer can do things for you that you can’t do for 

yourself. You’re right. You’re in jail. You have 

very limited access to anything. That’s why I . . .

[Johnson]: (Interrupting) But I still should be, I still should be . 

. . 

[The Court]: (Continuing) . . . on a number of occasions asked 

you to . . . 

[Johnson]: (Interrupting) I still should be entitled to a fair trial 

Your Honor. 

[The Court]: Yeah (affirmative), you are.

[Johnson]: Irregardless [sic] of that. I . . . 
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[The Court]: (Interrupting) But you’re the one who is interfering 

with that, not me. I can’t – by law I am not allowed 

to be on your side. 

[Johnson]: He was supposed to furnish me the text cell phones 

months ago. 

[The Court]: Well they just – they don’t have them and there was 

a record made months ago about that issue and the 

Court ruled on that. 

[Johnson]: But this guy here got up – Hassler just got up on the 

stand and told you he done destroyed material 

evidence. He destroyed it. 

[The Court]: Do you, do you want a lawyer to help you on this 

case or not? You can’t have a trial today if that’s 

what you want. 

[Johnson]: Okay but you going to make a ruling upon him 

destroying material evidence? He done destroyed 

the evidence. 

[The Court]: No. I am not going to make a ruling that Detective 

Hassler destroyed material evidence. 

[Johnson]: Okay. Come on. We gonna go to trial then. Come 

on. Go to trial. Let’s go. 

[The Court]: All right.

Id. at 176-78. 

[13] Following jury selection, the trial court inquired:

[The Court]: State are you ready? 

[The State]: Yes. 

[The Court]: Mr. Johnson? 

[Johnson]: No. Your Honor can I have a co-counsel? 

[The Court]: Sir you can’t – you can’t wait till the day of the trial 

to ask for that. There’s nobody in the Public 
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Defender’s Office who would be available. I did 

sort of check this morning. There’s nobody 

available and you know, nobody would feel 

competent to step in in the middle of a trial and take 

over or help out. They wouldn’t have any idea 

what the case is about or what you’re trying to do. 

[Johnson]: Well they could help me with – in objecting to 

certain evidence that Prosecutor may offer that’s, 

you know – before you kind of told me I could listen 

to my cell phone tapes and now they telling me – or 

listen to the C.I.’s cell phone tape, now they telling 

me that’s not available so I was kind of lead (sic) up 

into this, misled from the other room to come here, 

I was kind of a little misled with that one. I didn’t 

see that one coming. 

[....]

[The Court]: Okay. Well as to your request for standby counsel 

it’s too late. I mean there’s no way I can get 

somebody here now to do that. 

Tr., Vol. 3 at 33-36. 

[14] The trial court proceeded to the State’s case-in-chief. During Johnson’s crossexamination of Detective Hassler, who arranged for the controlled buy with the 

C.I., Johnson asked:

[Johnson]: Okay. Between January and May the 16th, 2017 

what controlled buys did [the C.I.] do other than 

mine?

[Hassler]: None. 

[Johnson]: None? Okay. So what make you rely on [the C.I.]

to send her to somebody’s home? 

[Hassler]: Well as I previously stated I determined that she 

was reliable and credible based on not only the 
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things she said to me before during conversations 

that I had with her but also after the buy, examining 

the video and seeing that yes, that’s corroborated. 

[Johnson]: Okay. Excuse me sir. I’m not talking about after 

the buy. I’m talking about before you sent her into 

the home, what calibration did you have – the

phone conversation didn’t speak about her 

(inaudible). She just said she’s coming over. 

[Hasler]: I understand your question. 

[The State]: Judge may we approach to that question? 

[Johnson]: It’s a yes or no question. 

[The State]: I know it is but I want to approach. 

[The Court]: Okay. Yes you may. Come up here Mr. Johnson.

(At sidebar.)

[The State]: Consistent with the Rules of Evidence, Your Honor, 

I instructed Mr. Hassler not to volunteer any 

information about the C.I. telling him she 

previously purchased heroin while he was on the 

stand unless [Johnson] opened the door. Mr. 

Hassler, I do believe, is going to answer Mr. 

Johnson’s question when he asks for corroboration, 

Mr. Hassler is going to say he was aware that she 

had been buying heroin from him prior to this date. 

[Johnson]: That’s not true. 

[The State]: I get it’s not true but if you think that’s what he’s 

asking that is what Mr. Hassler is going to say when 

he’s asking for corroboration. 

[The Court]: Yeah (affirmative). If you’re asking for 

corroboration . . . 

[The State]: (Interrupting) That is going to be the answer. 

[The Court]: Do you want to withdraw the question or you can 

go forward. It’s up to you. 
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[Johnson]: Okay. All right. 

(Sidebar concludes.)

[Johnson]: Other than the C.I., did you have any other 

information that drugs was being sold, that I was 

selling somebody heroin?

Id. at 76-78. Over objection, Detective Hassler explained that “we had been 

tipped off that [Johnson] had been selling heroin from his address from a We 

Tip [hotline tip].” Id. at 79. 

[15] Johnson eventually inquired into the C.I.’s pending charge, asking Detective 

Hassler:

[Johnson]: Did you think [the C.I.] had an incentive then to 

entrap people? 

[Hassler]: I don’t view it as entrapping. 

[Johnson]: Did you put her in jail? 

[Hassler]: I don’t know if I did or didn’t on that case. I can’t 

recall. 

[Johnson]: Did she stay out of jail to entrap people? Is this 

true? 

[Hassler]: I never entrapped anybody. 

[Johnson]: I didn’t say you. I didn’t say you. You’re a fine 

Officer. I’m saying sometimes – have you been 

tricked by any of these C.I.’s you’ve been working 

with? You said that you’ve been named T and this 

stuff. Have you ever been tricked by a C.I.?

[Hassler]: Yes . . . 

[....]

[Johnson]: Is she from Gibson County? 

[Hassler]: I don’t know. 
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[Johnson]: You don’t know. Okay. Then you just send – you 

would just send any person in somebody’s home 

and just don’t know nothing about them? 

[Hassler]: Well I think I very clearly explained the process that 

I go through and the decision that I make of how 

we select those people and I don’t just send anybody 

in any random person’s home. She obviously knew 

you somehow and she knew that she could purchase 

heroin from you so naturally I sent her into your 

house and that’s exactly what happened. 

[Johnson]: Did you ever think maybe that she maybe knew that 

she could trick me? 

[Hassler]: Well to be honest that’s not my decision to make 

whether you feel like you’ve been tricked or not. 

The end all be all result was that you’re deciding at 

the end of the day to sell heroin and that’s what you 

did to my C.I. therefore I don’t know what to tell 

you. Don’t break the law I guess.

[Johnson]: But your C.I. is breaking the law? 

[Hassler]: Okay. 

[Johnson]: I mean your C.I. broke the law driving there, 

speeding there. She’s breaking the law, bringing 

drugs into my home. She’s breaking the law having 

sexual intercourses without my consent, (inaudible) 

me. Did I agree to be in a pornography movie?

Id. at 97-99. 

[16] During redirect examination of Detective Hassler, the State asked to approach 

the bench:

[The State]: [Johnson] stated on cross Judge, the C.I. brought 

drugs into my home, (inaudible) entrapment, the 

C.I. busted for dealing. I think that opens the door 

to get into the fact that she did not bring drugs into 
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his home and I can get it in with Hassler the fact 

that [the C.I.] has [bought] drugs from him before.

[Johnson]: No she hasn’t. 

[The State]: He made that statement very clearly. 

[The Court]: I think you got to ask her.

Id. at 105. 

[17] Sometime later, the State asked the C.I. on direct examination:

[The State]: Prior to May 16th, 2017 had you purchased heroin 

from [Johnson]?

[The C.I.]: Yes.

[The State]: How many times?

[The C.I.]: Probably about ten times.

[The State]: Was he your heroin supplier?

[The C.I.]: Yes.

[The State]: Where on those prior ten times, where did that 

purchase take place?

[The C.I.]: Most of the time at his house and once or twice at 

his – where he worked at.

Id. at 128. Johnson objected because “there’s no evidence whatsoever that she 

purchased heroin from me period.” Id. at 129. 

[18] Later, on cross-examination, Johnson asked Detective Simpson:

[Johnson]: Have any of your sources from other cities or any of 

your C.I.’s that you know of told you that they sold 

some heroin to Larry Johnson at 704 Washington?

[Simpson]: They’ve never – I’ve never had a confidential source 

say anything about them directly selling heroin to 

you. We’ve had – I’ve had confidential sources tell
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me that you are dealing heroin from your house on 

Washington but I never had any confidential 

sources tell me that you – that they actually sold 

you heroin.

[Johnson]: Okay. And I assume, I’m asking you, are you 

referring to, to [the C.I.]? 

[Simpson]: No. I’m talking about other confidential 

informants. 

[Johnson]: Are you referring to We Tip? 

[Simpson]: No, I’m not referring to a We Tip. I’m referring to 

other confidential informants that provide 

information to me talked about you selling heroin 

from your address on Washington.

Tr., Vol. 4 at 17-18. 

[19] At the conclusion of the two-day trial on February 2, 2018, the jury found 

Johnson guilty as charged. On April 3, newly-appeared defense counsel filed a 

motion to set aside conviction and set a new trial. At a sentencing hearing on 

June 13, the trial court denied Johnson’s motion and sentenced Johnson to 

twenty-five years for dealing a narcotic drug, a Level 2 felony; five years for 

dealing in a narcotic drug, a Level 5 felony; and two years for maintaining a 

common nuisance, a Level 6 felony. The trial court ordered all the sentences to 

run concurrently for an aggregate sentence of twenty-five years. 

Discussion and Decision 

I. Whether Johnson Waived The Right to Counsel 

[20] Johnson argues the trial court denied him his right to counsel when he was 

permitted to proceed pro se. Johnson advances his argument under the Sixth 
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Amendment to the United States Constitution and Article 1, Section 13 of the 

Indiana Constitution, both of which protect a defendant’s right to be 

represented by counsel. Kowalskey v. State, 42 N.E.3d 97, 102 (Ind. Ct. App. 

2015). Although a defendant has a right to counsel, when a defendant “insists 

that he wants to conduct his own defense[,]” the Sixth Amendment “does not 

force a lawyer upon him.” Faretta v. California, 422 U.S. 806, 807 (1975). A 

defendant, however, “should be made aware of the dangers and disadvantages 

of self-representation, so that the record will establish that he knows what he is 

doing and his choice is made with eyes open.” Id. (quotation omitted). When 

a defendant waives the right to counsel and elects to proceed pro se, we must 

decide whether the trial court properly determined that the defendant’s waiver 

was knowing, intelligent, and voluntary. Jones v. State, 783 N.E.2d 1131, 1138 

(Ind. 2003). We review a trial court’s conclusion that a defendant knowingly 

and voluntarily waived his right to counsel de novo. Miller v. State, 789 N.E.2d 

32, 37 (Ind. Ct. App. 2003).

[21] In Poynter v. State, our supreme court adopted a four factor test for whether a 

waiver is knowing and intelligent:

(1) the extent of the court’s inquiry into the defendant’s decision, 

(2) other evidence in the record that establishes whether the 

defendant understood the dangers and disadvantages of selfrepresentation, (3) the background and experience of the 

defendant, and (4) the context of the defendant’s decision to 

proceed pro se.

749 N.E.2d 1122, 1127-28 (Ind. 2001). In making this analysis, our supreme 

court also noted that the trial court:
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is in the best position to assess whether a defendant has 

knowingly and intelligently waived counsel, and we will most 

likely uphold the trial judge’s decision to honor or deny the 

defendant’s request to represent himself where the judge has 

made the proper inquiries and conveyed the proper information, 

and reaches a reasoned conclusion about the defendant’s 

understanding of his rights and voluntariness of his decision. 

Id. at 1128. 

[22] Furthermore, this court has set forth several guidelines for how a trial court 

should advise a defendant when he considers self-representation. They are: 

(1) The defendant should know the nature of the charges against 

him, the possibility that there may be lesser included offenses, 

and the possibility of the defenses and mitigating circumstances; 

(2) the defendant should be aware that self representation is 

almost always unwise, that he may conduct a defense which is to 

his own detriment, that he will receive no special indulgence 

from the court and will have to abide by the same standards as an 

attorney, and that the State will be represented by experienced 

professional legal counsel; (3) the defendant should be instructed 

that an attorney has skills and expertise in preparing for and 

presenting a proper defense; and (4) the trial court should inquire 

into the defendant’s educational background, familiarity with 

legal procedures and rules of evidence and mental capacity.

Dowell v. State, 557 N.E.2d 1063, 1066-68 (Ind. Ct. App. 1990), trans. denied. 

Our supreme court has endorsed these guidelines but stated they do not 

“constitute a rigid mandate setting forth specific inquiries that a trial court is 

required to make before determining whether a defendant’s waiver of the right 

to counsel is knowing, intelligent, and voluntary.” Leonard v. State, 579 N.E.2d 

1294, 1296 (Ind. 1991). Indeed, “[t]here are no magic words a judge must utter 

to ensure a defendant adequately appreciates the nature of the situation.” 
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Kubsch v. State, 866 N.E.2d 726, 736 (Ind. 2007). The court “need only come to 

a considered determination that the defendant is making a voluntary, knowing, 

and intelligent waiver.” Poynter, 749 N.E.2d at 1126. With this standard in 

mind, we now turn to consideration of the Poynter factors. 

[23] Through focusing on the extent of the trial court’s inquiry and other evidence in 

the record, the first two Poynter factors consider whether the defendant had 

sufficient information about the dangers and disadvantages of selfrepresentation. Here, we conclude these factors weigh in favor of a conclusion 

that Johnson made a voluntary, knowing, and intelligent waiver. 

[24] The trial court provided Johnson with several warnings regarding dangers and 

disadvantages of self-representation. Immediately after Johnson indicated he 

wished to proceed pro se, the trial court stated, “That’s not a very good idea.”

Tr., Vol. 2 at 16. A week before trial, the court stated, “you’re facing a Level 2 

Felony here, it’s pretty serious.” Id. at 51. On the day of trial, the court 

warned, “I cannot stand on your side of this case. You’re responsible. You 

took responsibility for this. That’s why I told you to hire – get a – let a Public 

Defender represent you.” Id. at 145. When Johnson asked about the C.I.’s 

prior convictions, the trial court stated, “that’s why you needed a lawyer, to 

help to check on that stuff.” Id. at 148. The trial court also explained: 

[The Court]: Mr. Johnson it’s obvious to me that I was right 

months ago when I told you you’re making a big 

mistake. 

[Johnson]: (Interrupting) But I’m saying this charging 

information is upstairs.
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[The Court]: Many of the things you’ve said and many of the 

efforts you’ve made on your behalf have not been 

successful because many of them, you just don’t 

know what you’re doing. You’re not adequately 

skilled in the law how to investigate these things, 

how these things work and that’s what I told you. 

A lawyer can do things for you that you can’t do for 

yourself. You’re right. You’re in jail. You have 

very limited access to anything. That’s why I . . . 

[Johnson]: (Interrupting) But I still should be, I still should be 

. . . 

[The Court]: (Continuing) . . . on a number of occasions asked 

you to . . . 

[Johnson]: (Interrupting) I still should be entitled to a fair trial 

Your Honor.

[The Court]: Yeah (affirmative), you are. 

[Johnson]: Irregardless [sic] of that. I . . . 

[The Court]: (Interrupting) But you’re the one who is interfering

with that, not me. I can’t – by law I am not allowed 

to be on your side.

[....]

[The Court]: Do you, do you want a lawyer to help you on this 

case or not? You can’t have a trial today if that’s 

what you want. 

Id. at 177-78. And, even the prosecutor warned Johnson:

I said sir you do not know what you’re doing in this case. You 

need to be represented by an attorney. [Johnson] rebuked my 

statement and said I don’t need any counsel, I don’t need a 

Public Defender. I’m ready to go.

Id. at 176-77. 
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[25] On these first two Poynter factors, we view the facts similar to those of Ellerman 

v. State, 786 N.E.2d 788, 794 (Ind. Ct. App. 2003). Holding the defendant 

knowingly and voluntarily waived his right to counsel, the Ellerman court 

emphasized that the trial court had warned the defendant that the attorneys for 

the State were highly trained and knew the rules of evidence, the prosecutor had 

warned the defendant that he would not be given any special treatment simply 

because he was representing himself, and the prosecutor warned the defendant 

that his decision to represent himself was “one of the stupidest things [he had] 

ever encountered.” Id. Similarly here, the trial court repeatedly warned 

Johnson that representing himself was ill-advised, that a lawyer has special 

skills that he did not possess, that he would not be given any special treatment,

that the court could not help him or act on his behalf, and even the prosecutor 

warned Johnson that he did not know what he was doing and that he needed to 

be represented by an attorney. Therefore, as in Ellerman, we conclude the first 

two Poynter factors weigh in favor of findings that Johnson made a knowing, 

intelligent, and voluntary waiver of his right to counsel. 

[26] The third Poynter factor concerns whether the defendant has the background 

and experience necessary to make a voluntary, knowing, and intelligent waiver 

of his right to counsel. Johnson’s pre-sentence report indicates that he has five 

previous felony convictions and numerous misdemeanor convictions. See

Appellant’s Appendix, Vol. II at 159. Johnson was therefore an experienced 

criminal litigant who was more likely to understand the dangers of selfrepresentation. See Taylor v. State, 944 N.E.2d 84, 91 (Ind. Ct. App. 2011) (in 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 23 of 32

holding defendant’s waiver of counsel was knowing, intelligent, and voluntary, 

the court considered the defendant’s five prior felony convictions and noted the 

defendant “was no stranger to the criminal justice system.”). Perhaps 

recognizing that fact on appeal, Johnson argues the trial court failed to 

sufficiently inquire into his background while highlighting his “nearly 

nonsensical” trial strategy. Br. of Appellant at 21.

[27] Although the record is absent of an extensive inquiry into Johnson’s 

background, the trial court did inquire as to whether Johnson had ever 

represented himself, to which Johnson responded in the affirmative, and the 

trial court was aware of at least one of Johnson’s prior felony convictions. 

Johnson’s pre-sentence report indicates that he obtained a GED and attended 

some post-secondary education at Ball State University and IVY Tech. See

Appellant’s App., Vol. II at 158. 

[28] Additionally, Johnson’s competence was never at issue. The record reflects that 

Johnson was alert, engaged, coherent, and capable of understanding the 

proceedings and their import. At times, Johnson even displayed a sophisticated 

understanding of the charges and sentence that he faced. For example, during a 

discussion regarding a plea agreement that he had proposed to the State, 

Johnson explained:

[Johnson]: Your Honor with all due respect Your Honor you 

asking me – he’s asking me, talking about a Level 2

[felony]. That’s no Level 2 there. It’s a [sic]

inflated charge and I’m offering to plead, I’m 

offering that I would plea out, I would even give 

them all three convictions if they want all three 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 24 of 32

convictions and maybe that would give [the C.I.]

credibility, okay because if you risk going into trial 

and if you lose, then you’re going to lose her 

credibility. Now I gave you the sale, I gave you the 

possession, okay, but you . . .

[....]

But what I’m saying, Your Honor, okay. He 

dropped the Level 2 down to a – you drop the Level 

2 down to a Level 5. He can put a year on the Level 

5 and then give me eighteen months on the other 

two, the two 6’s and run them together and I think 

that, I think that’s, under the circumstances, that’s a 

fair deal.

Tr., Vol. 2 at 173-74. 

[29] Despite these facts, Johnson argues that because his trial strategy was 

“incomprehensible,” and his objections were “meaningless[,]” the trial court 

should have known that Johnson lacked the requisite legal knowledge or 

expertise to handle a major felony trial on his own. Br. of Appellant at 22. The 

trial court noted Johnson’s inadequate preparation and knowledge on the 

morning of trial, warning Johnson, “it’s obvious to me that I was right months 

ago when I told you you’re making a big mistake.” Tr., Vol. 2 at 177. The trial 

court then again offered Johnson the assistance of counsel and Johnson again 

insisted on proceeding pro se. The Sixth Amendment “does not force a lawyer 

upon [a defendant].” Faretta, 422 U.S. at 807. And, as the Supreme Court has 

noted, a defendant’s “technical legal knowledge [is] not relevant to an 

assessment of his knowing exercise of the right to defendant himself.” Id. at 

836. 
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[30] Finally, we consider the context of Johnson’s decision. Johnson was insistent 

on a speedy trial date and that he could do a better job of representing himself 

than his hired counsel. We therefore view Johnson’s decision as strategic and 

note that defendants who waive their right to counsel for strategic reasons tend 

to do so knowingly. See Kubsch, 866 N.E.2d at 738. 

[31] Although a better approach would have been to thoroughly and succinctly 

advise Johnson on the dangers and disadvantages to self-representation,

3 given 

the numerous warnings scattered about the landscape of this case and 

Johnson’s extensive criminal history, we conclude Johnson voluntarily, 

knowingly, and intelligently waived his right to counsel. The trial court offered 

Johnson counsel as late as the morning of trial and he was insistent on 

proceeding pro se. However ill-advised, this was Johnson’s right and we cannot 

now say he was unaware of the dangers and disadvantages of selfrepresentation.

II. Whether Johnson Reasserted the Right to Counsel 

[32] Next, Johnson argues the trial court erred in denying Johnson “the opportunity 

to reassert his right to counsel.” Br. of Appellant at 24. It is within the trial 

court’s discretion to determine whether a defendant may abandon his pro se 

defense after the trial has begun and reassert his right to counsel. Koehler v. 

 

3 And we take this opportunity to so remind trial courts.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 26 of 32

State, 499 N.E.2d 196, 198-99 (Ind. 1986). We will reverse only if we conclude 

that the trial court abused its discretion. Id. 

[33] Following jury selection, the trial court inquired:

[The Court]: State are you ready? 

[The State]: Yes. 

[The Court]: Mr. Johnson? 

[Johnson]: No. Your Honor can I have a co-counsel? 

[The Court]: Sir you can’t – you can’t wait till the day of the trial 

to ask for that. There’s nobody in the Public 

Defender’s Office who would be available. I did 

sort of check this morning. There’s nobody 

available and you know, nobody would feel 

competent to step in in the middle of a trial and take 

over or help out. They wouldn’t have any idea 

what the case is about or what you’re trying to do. 

[Johnson]: Well they could help me with – in objecting to 

certain evidence that Prosecutor may offer that’s, 

you know – before you kind of told me I could listen 

to my cell phone tapes and now they telling me – or 

listen to the C.I.’s cell phone tape, now they telling 

me that’s not available so I was kind of lead (sic) up 

into this, misled from the other room to come here, 

I was kind of a little misled with that one. I didn’t 

see that one coming. 

[....]

[The Court]: Okay. Well as to your request for standby counsel 

it’s too late. I mean there’s no way I can get 

somebody here now to do that. 

Tr., Vol. 3 at 33-36.
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[34] On appeal, Johnson characterizes his request as “reassert[ing] his right to 

counsel[,]” Br. of Appellant at 24, and argues that the trial erred by failing to 

consider the Koehler factors4 before denying his request. However, given 

Johnson’s previous request on the morning of trial5 and his explanation of the 

need for co-counsel to assist him in self-representation, we view Johnson’s 

request as one for hybrid representation. 

[35] In Sherwood v. State, our supreme court explained:

This Court has previously stated that the recommended 

protection for a pro se defendant is standby counsel. German v. 

State, 268 Ind. 67, 73, 373 N.E.2d 880, 883 (1978). On the other 

hand, appointment of standby counsel is discretionary; a 

defendant who proceeds pro se has no right to demand the 

appointment of standby counsel for his assistance. Kindred v. 

State, 521 N.E.2d 320, 323 (Ind. 1988). The trial court may have 

the discretion to direct standby counsel to take over at any point 

during the proceedings if the defendant’s conduct becomes 

inappropriate, German, 373 N.E.2d at 883[.]

 

4

In Koehler, our supreme court outlined the following factors for a trial court to consider when ruling on a 

defendant’s request to change from self-representation to counsel-representation:

(1) defendant’s prior history in the substitution of counsel and in the desire to

change from self-representation to counsel-representation; (2) the reasons set forth

for the request; (3) the length and stage of the trial proceedings; (4) disruption or

delay which reasonably might be expected to ensue from the granting of such

motion; and (5) the likelihood of defendant’s effectiveness in defending against

the charges if required to continue to act as his own attorney.

499 N.E.2d at 199.

5 The morning of trial, Johnson asked if he could have “Co-Counsel get [him] various papers[.]” Tr., Vol. 2 

at 176. When the trial court explained to Johnson that he had previously declined standby counsel, Johnson 

replied, “No. You offered me an attorney.” Id. 
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717 N.E.2d 131, 135 n.2 (Ind. 1999). Notably here, the trial court checked with 

the public defender’s office but there were no public defenders available. See

Tr., Vol. 3 at 33. 

[36] Our supreme court addressed a similar situation in Henley v. State, 881 N.E.2d 

639 (Ind. 2008). During the second day of trial where a pro se defendant was 

appointed standby counsel, the defendant requested of the court:

“I’d like [standby counsel] to cross examine the witnesses for 

me.” The court inquired, “You would like for him to take over 

your case?” [The defendant] responded, “Not take over it, but to 

co-counsel with me.” After the trial court explained that hybrid 

representation was not permitted, [the defendant] responded, “I 

still want to remain in charge of the case.” The trial court then 

denied [the defendant’s] request.

Id. at 647 (citations omitted). In the context of an ineffective assistance of 

appellate counsel claim, our supreme court stated, “The law is settled that ‘[t]he 

Sixth Amendment does not require a trial judge to permit hybrid 

representation[.]’” Id. (quoting Sherwood, 717 N.E.2d at 135). Therefore, the 

court concluded “[b]ecause hybrid representation was not allowed, there would 

have been no need for the trial court to consider the Koehler factors in denying 

[the defendant’s] request.” Id. at 648. As in Henley, we view Johnson’s request 

as one for hybrid representation and there was no need for the trial court to 

consider the Koehler factors in denying his request. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 29 of 32

III. Admission of Evidence 

[37] Finally, Johnson argues the “trial court committed fundamental error when it 

permitted the State to introduce irrelevant, highly prejudicial character and 

misconduct evidence.” Br. of Appellant at 30. Our standard of review for 

rulings on the admissibility of evidence is well settled. The admission or 

exclusion of evidence rests within the trial court’s sound discretion, and its 

decision is reviewed for an abuse of that discretion. McClendon v. State, 910 

N.E.2d 826, 832 (Ind. Ct. App. 2009), trans. denied. To preserve an issue for 

appeal, the defendant must contemporaneously object at trial. Brown v. State, 

929 N.E.2d 204, 207 (Ind. 2010). Because Johnson failed to 

contemporaneously object at trial for the reasons he now argues on appeal, 

Johnson must establish the trial court committed fundamental error. See 

Delarsoa v. State, 938 N.E.2d 690, 694 (Ind. 2010). The fundamental error 

exception is “extremely narrow, and applies only when the error constitutes a 

blatant violation of basic principles, the harm or potential for harm is 

substantial, and the resulting error denies the defendant fundamental due 

process.” Matthews v. State, 849 N.E.2d 578, 587 (Ind. 2006). Indiana Evidence 

Rule 401 explains that evidence is relevant if it has any tendency to make a fact 

more or less probable than it would be without the evidence and the fact is of 

consequence in determining the action. Rule 402 further provides that 

“[i]rrelevant evidence is not admissible.” 

[38] Johnson first argues that whether he sold heroin to the C.I. or other buyers did 

not make the elements of the crime more or less probable and the evidence was 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 30 of 32

therefore irrelevant, inadmissible evidence. The record reveals that prior to the 

evidence’s admission, Johnson asked Detective Hassler several questions aimed 

at raising the defense of entrapment.6 To rebut an entrapment defense, the State 

must show “either (1) there was no police inducement, or (2) the defendant was 

predisposed to commit the crime.” Griesemer v. State, 26 N.E.3d 606, 609 (Ind. 

2015). As the evidence tended to prove there was no police inducement and/or 

the defendant was predisposed to commit the crime, we conclude the evidence 

was relevant to show that the police did not entrap Johnson. 

[39] Rule 404(b)(1) provides that, in general, “[e]vidence of a crime, wrong, or other 

act is not admissible to prove a person’s character in order to show that on a 

particular occasion the person acted in accordance with the character.” 

However, the “evidence may be admissible for another purpose, such as 

proving motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident.” Evid. R. 404(b)(2). In order for this

otherwise inadmissible evidence to become admissible, the defendant must first 

“‘open the door’ to questioning on that evidence.” Jackson v. State, 728 N.E.2d 

147, 152 (Ind. 2000). To “open the door,” a defendant “must leave the trier of 

fact with a false or misleading impression of the facts related.” Gilliam v. State, 

270 Ind. 71, 383 N.E.2d 297, 301 (1978). In assessing the admissibility of 

evidence under Indiana Evidence Rule 404(b), the trial court must (1) 

 

6

Johnson asked Detective Hassler, “did you think [the C.I.] had an incentive then to entrap people?” and, 

“[d]id the C.I. stay out of jail to entrap people? Is this true?” Tr., Vol. 3 at 97. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 31 of 32

determine whether the evidence of other crimes, wrongs, or acts is relevant to a 

matter at issue other than the defendant’s propensity to commit the charged act; 

and (2) balance the probative value of the evidence against its prejudicial effect 

pursuant to Rule 403. Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997).

[40] Johnson argues the evidence of his prior drug deals with the C.I. “was flatly 

and plainly inadmissible under [Indiana Evidence Rule] 404(b).” Br. of 

Appellant at 35. In support thereof, Johnson relies on Swain v. State, 647 

N.E.2d 23 (Ind. Ct. App. 1995), and Haynes v. State, 578 N.E.2d 369 (Ind. Ct. 

App. 1991), both of which reversed a trial court’s decision to admit evidence of 

the defendant’s prior drug dealing. These cases are distinguishable by the fact 

that neither defendant presented an entrapment defense, as Johnson did here. 

In Stoker v. State, a panel of this court held an entrapment defense “affirmatively 

presented a claim of contrary intent, thereby triggering the exception to [Rule] 

404(b).” 692 N.E.2d 1386, 1391 (Ind. Ct. App. 1998). Therefore, the trial court 

did not err in allowing testimony concerning the defendant’s prior drug sales. 

Id. Similarly, in Dixon v. State, a panel of this court held that the defendant’s 

entrapment defense rendered testimony of prior drug transactions “relevant to 

proving [the defendant’s] knowledge and intent to deal in cocaine.” 712 

N.E.2d 1086, 1089 (Ind. Ct. App. 1999). In light of Stoker and Dixon, Johnson’s 

entrapment defense placed his intent at issue and the State was therefore

permitted to present the evidence in order to rebut that defense. 

[41] Even if evidence of a prior bad act is admissible, however, its probative value 

must still be weighed against the unfair prejudice that its admission may cause 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 32 of 32

to a defendant. Evid. R. 403; Jones v. State, 708 N.E.2d 37, 40 (Ind. Ct. App. 

1999), trans. denied. Given Johnson’s entrapment defense and the State’s 

burden to rebut it, we conclude the probative value of Johnson’s history of drug 

dealing outweighed the danger of unfair prejudice. Accordingly, Johnson has 

failed to show the trial court committed error, let alone fundamental error. 

Conclusion

[42] For the reasons set forth above, we conclude the trial court did not violate 

Johnson’s right to counsel by allowing him to proceed pro se, Johnson did not 

reassert his right to counsel, and the trial court did not commit fundamental 

error by permitting the State to introduce evidence of Johnson’s prior drug 

dealing. We therefore affirm in all respects. 

[43] Affirmed. 

Mathias, J., and Altice, J., concur.