FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MICHAEL R. FISHER GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

ELLEN H. MEILAENDER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

KENNETH MCBRIDE, )

)

Appellant-Defendant, )

)

vs. ) No. 49A05-1211-CR-547

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Kurt M. Eisgruber, Judge

Cause No. 49G01-1203-FB-15543

August 15, 2013

OPINION–FOR PUBLICATION

BAKER, Judge 
2

Following a jury trial, the appellant-defendant, Kenneth McBride, was found 

guilty of Counts I and II, class B felony criminal Confinement,1 Counts III, IV, and V, 

class B felony Robbery,2and Count VI and VII, class C felony Battery,

3

for which the 

trial court sentenced McBride to an aggregate term of thirty years.

McBride appeals, asking our Court to vacate all of his convictions or, in the 

alternative, to revise his sentence pursuant to our authority under Indiana Appellate Rule 

7(B). Specifically, McBride claims that the trial court committed reversible error when it 

allowed him to proceed pro se because he did not make a knowing, voluntary, and 

intelligent waiver of his right to counsel. McBride also contends that the trial court 

committed fundamental error when it admitted evidence obtained through an improper 

show-up identification procedure and that his thirty-year executed sentence is

inappropriate in light of the nature of the offenses and his character.

Finding no reversible error and concluding that McBride’s sentence is not 

inappropriate, we affirm.

FACTS

On March 7, 2012, around 4:30 p.m., Officer Ryan Irwin of the Indianapolis 

Metropolitan Police Department (IMPD) responded to the dispatch of a robbery in 

progress at the Oriental Market (Market), a grocery store on Lafayette Road owned by 

 

1

Ind. Code § 35-42-3-3.

2

I.C. § 35-42-5-1.

3

I.C. § 35-42-2-1
3

Bay Le Zhu (Zhu) and her husband. Officer Irwin arrived within one minute and found 

that the employees, two of whom had obvious injuries, and Zhu’s six-year-old son Brian 

were locked inside the Market. Irwin also found a twelve gauge shotgun lying on the 

ground next to the market.

It was later established that Zhu, Brian, Zhu’s nephew Yixiu Chen (Yixiu), Kia 

Wong (Wong) and his wife, Cai Nong Chen (Cai), were all at the market when McBride 

and two other men, each armed and wearing dark clothing, gloves, and masks, entered the 

Market through a back door and locked the door behind them. The men confined

everyone in the kitchen, striking several of the victims with their guns and binding their 

hands and legs with duct tape. After the men demanded money, Zhu gave them $1200 

that she had in her pocket and was escorted out of the kitchen to the cash register, where 

they took additional money. When Van Duong, a regular customer, came by, he noticed 

that the door was locked even though the lights were on and the “open” sign was 

displayed. Suspicious, Duong peered through the Market window and observed masked 

men but none of the store employees. When he looked again, he saw Zhu taking money 

from the register, and she gave him a sign to call for help. 

McBride and the other men escaped in Wong’s vehicle, taking with them Wong’s 

cell phone, Yixius’s cell phone and many of his keys including his house and the Market 

keys, Zhu’s purse and keys, the $1200 that Zhu had on her, and the money from the cash 

register. Duong got a good look at McBride and provided the license plate number of the 

getaway vehicle to the 911 dispatcher. He also reported that the vehicle had traveled
4

south on Lafayette Road. Officers located the vehicle after a citizen reported seeing 

someone flee from the vehicle. 

At around 5:00 p.m., McBride and his co-defendant, Adrian Jackson,

4 were 

apprehended. They were found crouched down between a wood deck area and a garage, 

wearing dark clothing and shoes matching those worn by the robbers. Around and under 

the deck where McBride and Jackson were apprehended, the officers recovered several 

pieces of dark clothing, including a stocking cap mask, three dark gloves, the distinctive 

jacket worn by one of the men during the robbery with a Bic lighter in it that matched 

McBride’s DNA, multiple cell phones, a set of keys, and a small purse, all of which were 

items taken from the victims during the robbery. Additionally, a piece of foreign 

currency and a rifle with Jackson’s DNA were recovered. Officers also found $622 on 

McBride and $1106 on Jackson. 

Jackson and McBride were arrested and taken to the police station and Zhu, Cai, 

Wong, and Duong were brought over for a show-up identification. All but Wong 

identified either one or both men as the robbers with seventy to one hundred percent 

certainty. Duong positively identified both men, stating that Jackson was the driver and 

McBride was the front seat passenger in the getaway vehicle. 

On March 9, 2012, the State charged McBride with Counts I and II, class B felony 

criminal confinement, Counts III, IV, and V, class B felony robbery, and Counts VI, VII, 

VIII, class C felony battery. On March 13, 2012, McBride was appointed a public 

 

4 Adrian Jackson’s appeal has been assigned appellate cause number 49A05-1211-CR-553, and we hand 

down that appeal contemporaneously with this one.
5

defender. On that day he also made a pro se request for a speedy trial, but on May 10, 

2012, his counsel requested a continuance, which the trial court granted. McBride was 

unhappy about his appointed counsel’s decision to request a continuance despite his 

speedy trial request and proceeded to file motions and briefs pro se. McBride claimed

that because his appointed counsel sought a continuance against his will and was not 

doing what he asked her to do, she had violated his constitutional right to counsel as well 

as the rules of professional conduct. 

On July 31, 2012, a waiver of counsel hearing was held, during which McBride 

asked the trial court if he could proceed as co-counsel. This request was denied because 

the trial court stated he was attempting to take the lead in his own defense, thus placing 

his counsel at risk. McBride then petitioned the trial court to proceed pro se. 

At a later hearing on August 16, 2012, the trial court questioned McBride about 

his knowledge of the requirements for pro se litigants and advised McBride of the 

responsibilities, dangers, and disadvantages that he might face by proceeding pro se. The 

trial court also told McBride he was responsible for objections and that objections are the 

manner in which he could preserve issues for appeal. The trial court specifically told 

McBride that if objections are not made during trial, that particular issue would be 

waived on appeal. During the advisement of rights hearing, the trial court was not 

convinced that McBride would be prepared to proceed pro se and expressed this concern 

to McBride several times. McBride acknowledged the fact that he needed counsel but 
6

refused to allow his appointed counsel to represent him because according to him, his 

rights had been violated by the appointed counsel. 

Having been informed of no specific instance of how McBride’s rights had been

violated by his counsel, the trial court told McBride that if he felt he needed counsel, he 

would have to accept his appointed counsel because there was no evidence that the 

appointed counsel had done anything wrong, and McBride did not have the right to 

counsel of his choice. 

The trial court also verified that McBride had the educational background and 

mental capacity to defend himself and that no one had made either promises or threats to 

coerce him into waiving his right to counsel. After the trial court read the advisement of 

rights, McBride still insisted on representing himself and signed a written advisement 

form stating that he had thoroughly reviewed all the dangers and disadvantages of selfrepresentation and had full knowledge of them. Although the trial court granted 

McBride’s request to proceed pro se, it also appointed McBride with “standby counsel”

that could answer questions about trial procedure.

A jury trial was held from September 17-19, 2012. On September 19, 2012, the 

State dismissed Count VIII, and the jury found McBride guilty on Counts I through VII. 

During McBride’s sentencing hearing on October 5, 2012, the trial court merged Count I 

into II, Count VI into Count III, and Count VII into Count IV and sentenced McBride to 

six years of incarceration on Count II and eight years each on Counts III, IV, and V, with 
7

each sentence to run consecutively, for a total aggregate sentence of thirty years. 

McBride now appeals. 

DISCUSSION AND DECISION

I. Waiver of Right to Counsel

McBride first alleges that the trial court erred when it permitted him to proceed 

pro se because his waiver of his right to counsel was not knowing, voluntary, and 

intelligent. Specifically, McBride claims that he only waived his right to counsel because 

a judge pro tempore informed him that by his actions of filing pro se motions and 

interposing objections, he had waived his right to counsel.

The Sixth Amendment to the United States Constitution guarantees a criminal 

defendant the right to counsel. Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003). 

Implicit in the right to counsel is the right to self-representation. Drake v. State, 895 

N.E.2d 389, 392 (Ind. Ct. App. 2008). However, before a defendant waives his right to 

counsel and proceeds pro se, the trial court must determine that the defendant’s waiver of 

counsel is knowing, voluntary, and intelligent. Jones, 783 N.E.2d at 1138. We review de 

novo a trial court’s finding that a defendant waived his right to counsel. Miller v. State, 

789 N.E.2d 32, 37 (Ind. Ct. App. 2003) 

“The right to counsel in a criminal proceeding does not mean that the defendant 

has an absolute right to be represented by counsel of his own choosing.” Smith v. State, 

474 N.E.2d 973, 978-79 (Ind. 1985). A trial court may, in the exercise of its sound 

discretion, deny a defendant’s request for a new court appointed attorney. Luck v. State, 
8

466 N.E.2d 450, 451 (Ind. 1984). Such a ruling is reviewable only for an abuse of 

discretion. Id. 

Our Supreme Court has stated that there are no specific “talking points” a trial 

court must follow when advising a defendant of the dangers and disadvantages of 

proceeding without counsel. Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001).

Instead, a trial court needs only to come to a “considered determination” that the 

defendant is making a knowing, voluntary, and intelligent waiver of his or her right to 

counsel. Id. Our Supreme Court has adopted four factors for a trial court to consider 

when determining whether a knowing, voluntary and intelligent waiver has occurred:

the extent of the court’s inquiry into the defendant’s decision, other 

evidence into the record that establishes whether the defendant understood 

the dangers and disadvantages of self-representation, the background and 

experience of the defendant, and the context of the defendant’s decision to 

proceed pro se.

Id. at 1127-28. In making this analysis, a trial court is in the best position to assess 

whether the defendant has made a knowing, voluntary, and intelligent waiver, and the 

trial court’s finding will most likely be upheld “where the judge has made the proper 

inquiries and conveyed the proper information, and reaches a reasoned conclusion.” 

Poynter, 479 N.E.2d at 1128. 

We are perplexed by McBride’s involuntary waiver claim because he does not 

claim that the trial court failed to advise him of the advantages of having an attorney 

represent him. He makes no argument that the four Poynter factors were not met in his 

case but instead claims that he only waived his right to counsel because at a waiver of 
9

counsel hearing on July 31, 2012, a judge pro tempore informed him that he had waived 

his right to counsel by his actions of filing pro se motions and interposing objections. 

This is inaccurate because the record clearly shows that the judge pro tempore did not 

explicitly tell McBride that he had waived his rights by filing motions and briefs pro se. 

Instead, McBride was informed that if he wished to represent himself and continue filing 

motions and briefs pro se, the court would have to relieve his counsel of her obligations 

because McBride was attempting to take the lead in his own defense, thus placing his 

attorney at risk. Tr. p. 435. The trial court further stated that if McBride wished to allow

his counsel do her job, she would continue to represent him and that this was his choice. 

Id. Moreover, not once during the August 16, 2012 hearing did McBride express to the 

trial court that he was waiving his right to counsel because he was advised by the judge 

pro tempore that his rights had already been waived. 

McBride also makes the argument that he had requested, more than once, that the 

trial court appoint him alternative counsel but that his request was denied, thus showing 

that his waiver of right to counsel was involuntary. We reject McBride’s contention 

because McBride is not entitled to appointed counsel of his choosing. Smith, 474 N.E.2d 

at 978-79. And he presented no evidence establishing that his appointed counsel was 

ineffective. Accordingly, this argument fails. 

II. Show-up Identification

McBride also claims that the trial court committed fundamental error when it 

admitted evidence obtained through an improper show-up identification procedure. 
10

Specifically, he argues that the show-up identification was overly suggestive because he 

was in handcuffs and the victims were informed before the identification that the police 

had recovered their properties from the defendant. McBride further contends that even 

though he failed to object at trial, the admission of the show-up identification evidence

was fundamental error. 

The admission or exclusion of evidence falls within the sound discretion of the trial 

court, and its determination regarding the admissibility of evidence is reviewed only for an 

abuse of discretion. Gordon v. State, 981 N.E.2d 1215, 1217 (Ind. Ct. App. 2013). An 

abuse of discretion occurs when the trial court’s decision is clearly against the logic and 

effects of the facts and circumstances before the court. Id. To preserve an error for 

review, the specific objection relied upon on appeal must have been stated in the trial 

court as a basis for the objection. Hale v. State, 976 N.E.2d 119, 123 (Ind. Ct. App. 2012). 

Thus, a claim may be waived for the purposes of an appeal where the defendant failed to 

object that the evidence was improperly admitted. Id. at 1218. 

As discussed above, the trial court specifically informed McBride that he would be 

responsible for objections and that those objections were how McBride would preserve 

errors for appeal. Tr. p. 453. The trial court further advised McBride that if he failed to

make objections, he would waive those errors on appeal. Id. McBride stated that he 

understood these advisements. Id. 
11

McBride admits that he did not oppose the admission of the show-up identification 

and that he did not move to suppress this evidence or object to its admission at trial. 

Appellant’s Br. p. 19. Thus, these issues are waived.

 McBride attempts to avoid waiver by invoking the fundamental error doctrine. In 

support of this contention, McBride claims that the show-up identification procedure was 

unduly suggestive because the suspects were the only choice offered, as opposed to a lineup or photo array where multiple options are presented to the witnesses. However, the 

fundamental error doctrine is an extremely narrow doctrine 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.” 

Gordon, 981 N.E.2d at 1218. 

Even though our Supreme Court has cautioned against one-on-one show-up

identifications because of their inherent suggestiveness, identification evidence gathered 

via a show-up procedure is not subject to a per se rule of exclusion in accordance with the 

fundamental error doctrine. Id. Rather, the admissibility of show-up identification 

evidence turns on an evaluation of the totality of the circumstances and whether those 

circumstances lead to the conclusion that the confrontation was conducted in a manner 

that could guide a witness into making a mistaken identification. Id.

In Mitchell v. State, this Court listed several factors for trial courts to consider 

when determining whether show-up identification evidence was permissible, including the 

witness’s opportunity to view the criminal, the distance between the witness and the 
12

criminal during the crime, the lighting conditions, and the length of time between the 

commission of the crime and the show-up identification. 690 N.E.2d 1200, 1204 (Ind. Ct. 

App. 1998) 

Here, the crime scene was well-lit, and the surveillance video shows that the mask 

did not completely hide their facial features. State’s Ex. 11. Yixiu testified that he could

see the shape of the faces of two of the robbers because the masks were very thin. Tr. p. 

85-86. The show-up identification also occurred soon after the robbery, and the other 

witnesses presented testimony regarding their identification of McBride. Moreover, the 

first officer was at the scene around 4:30 p.m., McBride and Jackson were apprehended 

few blocks away around 5:00 p.m., and the witnesses were brought in for the show-up 

identification shortly thereafter. Id. at 53-54, 86, 198. 

Under these circumstances, McBride has failed to show that the show-up 

identification was unduly suggestive. The State presented the surveillance video at trial as 

well as evidence that McBride and Jackson were apprehended wearing the same clothes 

the robbers were said to have been wearing with other stolen items found were they were 

apprehended. Id. at 255-65, 283; State’s Ex. p. 11, 48-53.

Nevertheless, McBride maintains that the show-up identification was unduly 

suggestive because the witnesses were told by the police that they had recovered the stolen 

property from them before the witnesses were asked to make the identification. 

Appellant’s Br. p. 18. However, Cai did not testify that any police officer told her 

anything that would have influenced her identification, and none of the other witnesses 
13

testified that they saw the items observed by Cai or that they were influenced by anything 

leading up to their identifications.

As a result, when considering the circumstances here, McBride’s claim of

fundamental error fails.

III. Sentencing

A. Abuse of Discretion

McBride next argues that the trial court erred in imposing consecutive sentences. 

Specifically, he claims that even though he was sentenced to less than the advisory term 

on each of the class B felonies, the trial court erred by ordering that his sentences run 

consecutively, especially considering the fact that he has a minor criminal history. 

The decision to impose consecutive sentences lies within the discretion of the trial 

court. Ind. Code § 35-50-1-2; Gilliam v. State, 901 N.E.2d 72, 74 (Ind. Ct. App. 2009). 

However, a trial court is required to state its reasoning for imposing consecutive 

sentences. Gilliam, 901 N.E.2d at 74. In order to impose consecutive sentences, a trial 

court must find at least one aggravating circumstance. Owens v. State, 916 N.E.2d 913, 

917 (Ind. Ct. App. 2009). It is a well-established principle that the existence of multiple 

crimes or victims constitutes a valid aggravating circumstance that a trial court may 

consider in imposing consecutive sentences. O’Connell v. State, 742 N.E.2d 943, 952

(Ind. 2001). 

During McBride’s sentencing hearing, the trial court stated that the sentences

should run consecutively because McBride and his co-defendant had committed the
14

crimes against multiple victims in the presence of a six-year-old. Tr. p. 428. These are 

indeed valid aggravating circumstances that can be used to impose consecutive sentences. 

McBride also alleges that the consecutive sentences are not appropriate because he 

has a minor criminal history. Appellant Br. p. 20. He further claims that he is the father 

of a three-year-old daughter and that imprisonment would result in undue hardship to him 

or his dependent. Id. at 24-25. Thus, it appears that McBride is arguing that the trial court 

erred by failing to find mitigating factors that were supported by the evidence.

Although the failure to find mitigating circumstances that are clearly supported by 

the record may suggest they were overlooked, a trial court does not have to afford the 

same credit or weight to the proffered mitigating circumstance as a defendant may 

suggest. Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999). Moreover, if the trial court does 

not find the existence of a mitigating factor after it has been argued by counsel, the trial 

court is not obligated to explain why it has found that the factor does not exist. 

Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007). 

In this case, the trial court in fact considered McBride’s contentions that he had a 

less severe criminal history than his co-defendant and that imprisonment would result in 

undue hardship to him or his three-year-old daughter. However, the trial court found that 

these factors were not significant and, thus, were not factors that would have an impact on 

the sentence. Thus, McBride’s claim fails.

McBride also alleges that because he proceeded pro se, he was unaware of the 

statutory factors that the trial court could have considered under Indiana Code section 35-
15

38-1-7.1 when sentencing him. Appellant Br. p. 24. McBride’s lack of knowledge 

regarding this statute does not affect the trial court’s sentencing decision. As discussed 

above, McBride’s waiver of counsel was knowingly, voluntarily, and intelligently made. 

Thus, he was therefore responsible for knowing what statutory factors he should argue at 

his sentencing hearing.

B. Inappropriate Sentence

Finally, McBride argues that his sentence is inappropriate pursuant to Indiana 

Appellate Rule 7(B). Under this rule, we have the constitutional authority to revise a 

sentence if, after consideration of the trial court’s decision, this Court concludes the 

sentence is inappropriate in light of the nature of the offense and the character of the 

offender. Ind. Appellate Rule 7(B). It is the defendant’s burden to “persuade the 

appellate court that his or her sentence has met the inappropriateness standard of review.” 

Anglemyer, 868 N.E.2d at 494. 

Here, McBride has failed to make any discernible argument regarding the nature of 

the robbery or his character. Thus, we find that he has failed to present a cogent argument 

in support of this claim and has, therefore, waived the issue. See Ind. App. Rule 

46(A)(8)(a). 

Waiver notwithstanding, regarding the nature of the offenses, we note that the 

advisory sentence is the starting point our legislature has selected as an appropriate 

sentence for the crime committed. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 

The advisory sentence for both class B felony criminal confinement and class B felony 
16

robbery is ten years with a sentencing range from six years to twenty years. I.C. § 35-50-

2-5. McBride was sentenced to six years on the felony confinement conviction and eight 

years each on the felony robbery convictions. Thus, for each of his convictions, 

McBride’s sentences fell below the advisory term.

Our review of the record reveals that McBride committed multiple crimes of 

violence. McBride and the other men robbed the victims while armed with guns that they 

used to physically assault the victims. They also bound the victims with duct tape and 

confined them in the kitchen with guns pointed at them. And finally, they engaged in this 

conduct in the presence of a six-year-old boy.

Notwithstanding these circumstances, McBride claims that the offenses should be 

considered as being less serious because the guns recovered were unloaded and he could 

not have shot anyone during this incident. However, McBride and the other men used the 

guns in a threatening manner causing the victims to experience substantial fear. Indeed, 

although the guns were not fired at the victims, the guns were used to inflict bodily 

injuries on the victims. Thus, McBride’s nature of the offense argument avails him of 

nothing.

Likewise, our review of McBride’s character reveals that McBride has a lengthy 

criminal history that involves prior crimes of violence. As a juvenile, McBride had four 

true findings for battery and one for disorderly conduct. PSI p. 4-5. As an adult, McBride 

has convictions for class D felony battery, class A misdemeanor resisting law 

enforcement, and violation of his probation. Id. at 5-6.
17

McBride argues that the State contended at sentencing that he was at a very high 

risk to reoffend but that there was nothing to support the State’s contention but for the 

deputy prosecutor’s speculations. Notwithstanding this claim, that McBride is likely to 

reoffend was not an aggravating circumstance considered by the trial court. However, 

McBride’s criminal and juvenile histories demonstrate that he has no respect for our 

judicial system despite the opportunities that were offered to him to change. As a result, 

McBride has failed to show that his sentence was inappropriate.

Conclusion

In sum, we conclude that McBride made a knowing, voluntary, and intelligent

waiver of his right to counsel. We also conclude that McBride waived his objection to 

the show-up identification, and the show-up procedure did not amount to fundamental 

error. Finally, we conclude that the trial court neither abused its discretion in sentencing 

McBride nor sentenced him inappropriately.

The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.