## FOR PUBLICATION

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : MICHAEL R . F ISHER 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, Judge2

Following a jury trial , the appellant

- defendant, Kenneth McBride, was found guilty o f C ounts I and II, class B felony criminal Confinement, 1 Counts III, IV, and V, class B felony Robbery, 2 and Co unt V I and VII, class C felony B attery , 3 f or which t he trial court sentenced McBride to an aggregate term of thirty years

. McBride appeals, asking our C ourt to vacate all of his convictions or, in the alternative, to revise his sentence pursuant to our a uthority under Indiana Appellate Rule 7(B). Specifically, McBride claims t hat 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. M cBride 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
in appropriate in light of the nature of the offense s 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 ( M arket), a grocery store on Lafayette R oad owned by

1 Ind. Code § 35

- 42

- 3

- 3.

2 I.C. § 35

- 42

- 5

- 1.

3 I.C. § 35

- 42

- 2

- 13

Bay Le Zhu (Zhu) and her husband. O fficer Irwin arrived within one minute and found that the employees, two of whom had obvious injuries , and Zh u’s six

- year - old son Brian

were locked inside the M arket. 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 Che n (Cai) , were all at the market when McBride and two other men, each armed and wearing dark clothing, gloves, and masks , entered the
M arket through a back door and locked the door behind them. The men confine d 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, Yix i us’s cell phone and many of his keys includ ing 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
g e t a way vehicle to the 911 dispatcher. He also reported that the ve hicle had traveled4

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 , A d rian 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, t he 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 $1 1 06 on Jackson

. Jackson and McBride were arrested and taken to the police station and Zhu, Cai, Wong, and D uong 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 th e front seat passenger in the getaway vehicle

. On March 9, 2012, the S tate charged McBride with C ounts I and II, class B felony

c riminal c onfinement, C ounts III, IV, and V, class B felony robbery, and C ounts VI, VII, VIII, class C felony battery . On Mar ch 13, 2012, McBride was appointed a public

4 A d rian Jackson’s appeal has been ass igned app ellate cause number 49 A05

- 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 claim ed that because his appointed counsel sought a continuance against his will and was not doing what he asked her to do, she ha d violated his constitutional right to counsel a s 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 be cause 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 o n August 16, 2012, the trial court questioned McBride ab out 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 object ions 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 right s 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 but6

refused to allow his appointed counsel to represent him because accordin g 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 accep t 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 ca pacity 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 adviseme nt form stating that he had thoroughly reviewed all the dangers and disadvantages of self

representation 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 M cBride’s sentencing hearing o n 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, with7

each sentence to run consecu tively, for a total aggregate sentence of thirty years. McBride now appeals.
DISCUSSION AND DECISION
I. W aiver of R ight to C ounsel 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 h is 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. Dra ke 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 d efendant’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 absolu te rig ht 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 , 74 9 N.E.2d 1122, 1126 (Ind. 2001).
I nstead , 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 t o 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 int o 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 of9

counsel hearing on July 31 , 2012, a judge pro tempore informed him that he had wa ived 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 an d brief s pro se. I nstead, McBride was informed that if he wishe d 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 wishe d 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 i t 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 p olice 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 wit hin 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 tr ial court’s decision is clearly against the logic and
effects of the facts and circumstances before the court. Id. T o 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 o bjection. Hale v. State , 976 N.E.2d 119, 123 (Ind. Ct. App. 2012).
Th us, 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 cou rt 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 w aive those errors on appeal

. Id. McBride stated that he
understood these advisement s . 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 a t 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 b ecause the suspects were the only choice offered, as opposed to a line

up 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 consti tutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defend ant fundamental due process.” Gordon , 981 N.E.2d at 1218. Even though our Supreme Court has cautioned against one

- on - o ne 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 identific ation. Id.
In Mitchell v. State , this Court listed several factors for trial c ourt s 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 the12

criminal during the crime , the lighting conditions, and the lengt h 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

. S tate’s Ex. 11. Yix i u testified that he could see the shape of the faces of two of the robbers because the mask s w ere very thin. Tr. p.
85

- 8 6. T he show

- up identification also occurred soon after the robbery , and the other witnesses presented testimony re garding 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 there af ter. Id. at 53

- 54, 86, 198. Under these circumstances, McBride has failed to show that the show

- up identification was unduly suggestive. T he State presented the surveillance video at trial as well as evidence that McBride and Jackson were apprehended we aring the same clothes the robbers were said to have been wearing with other stolen items found were they were apprehended. Id. at 25 5

- 65 , 283; State ’ s Ex. p. 11, 48

- 53. Nevertheless, McBride maintains that the show

- up identification was unduly suggest ive 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 i dentification. Appellant’s Br. p. 18. However , Cai did not testify that any police officer told her anyth ing that would have influence d her identification , and none of the other witnesses13

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 circumstan ces 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 adv isory term on each of the class B felonies, the trial court erred by ordering that his sentence s run consecutively, especially considering the fact that he ha s a minor criminal history. The decision to impose consecutive sentences lies within the discreti on 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 reason ing for imposing consecutive
sentences. Gilliam , 901 N.E.2d at 74

. In order to impose consecut ive 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 ci rcumstance 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 sentence s should run consecutively because McBride an d his co

- defendant had committed the14

crime s 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 sentence s . McBride also alleges that the consecut ive sentence s are not appropriate because he ha s a minor criminal history. Appellant Br. p. 20. He further claims t hat he is the father of a three

- year - old daughter and th at 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 t hey 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 exist ence 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 cons idered 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 significan t 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 C ode s ection 35

-15

38

- 1

- 7.1 when sentencing him

. Appellant Br. p . 24. McBride ’s lack of kn o wledge regarding this statute does not affect the trial court’s sentencing decision

. As discussed above, McBride’s waiver of counsel was knowingly, voluntarily, and i ntelligently 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, th is C ourt concludes the sentence is inappropriate in light of the nature of the offense and the character of the offend er. 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 argu ment 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 th e nature of the offense s , we note that the advisory sentence is the starting point our l egislature 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 c las s B felony c riminal c onfinement and class B felony16

r obbery 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 r obbery 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 crime s of violence. McBride and the other men robbed the victims while armed with gu ns 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, t hey engaged in this conduct in the presen ce of a six

- year - old boy

. Notwithstanding t hese circumstances, McBride claims that the offense s 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
gun s in a threaten ing 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.
Li kewise, o ur 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, McBr ide ha s convictions for class D felony b attery, 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 juv enile 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 McBri de 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 t rial 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.