Court of Appeals of Indiana | Memorandum Decision No. 79A02-1410-CR-765 | July 28, 2015 Page 1 of 10

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

Steven Knecht

Vonderheide & Knecht, P.C.

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Jodi Kathryn Stein

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Adam Horton,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 28, 2015

Court of Appeals Case No.

79A02-1410-CR-765

Appeal from the Tippecanoe

Superior Court

The Honorable Les A. Meade, Judge

Trial Court Case No. 

79D05-1401-FD-26

Mathias, Judge.

[1] Adam Horton (“Horton”) was convicted in Tippecanoe Superior Court of Class 

D felony domestic battery. Horton raises two issues on appeal, which we restate 

as: (1) whether Horton knowingly, intentionally, and voluntarily waived his 
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right to a jury trial, and (2) whether the evidence presented by the State is 

sufficient to support Horton’s Class D felony domestic battery conviction.

[2] We affirm.

Facts and Procedural History

[3] On December 4, 2013, Horton and his girlfriend, Kebran Fettig (“Fettig”), were 

spending time with Horton’s family at his father’s home near West Point, 

Indiana. At some point that evening, Horton and Fettig had an argument, and

Fettig stormed out of the house. As she began to walk along a rural gravel road 

leading away from the house, Horton followed her and continued to argue with 

her. Eventually, he pushed her to the ground and straddled her, pinning her to 

the ground. When Fettig tried to scream for help, Horton covered her mouth 

with one hand and put his other hand around her throat. Horton tried to choke 

Fettig and called her “a dumb bitch” and a “whore.” Tr. p. 38. He told her that 

she “deserve[d] to die.” Id. 

[4] After several minutes, Fettig was able to free herself and stand up, at which 

point Horton struck her in the face. The two then noticed a car approaching. 

When the car stopped at a nearby intersection, Fettig flagged down the driver 

for help. The driver took Fettig to the police station. At the police station, 

officers observed a scratch under Fettig’s nose, bruises on her arms, and 

scratches on her stomach. 

[5] On January 15, 2014, the State charged Horton with Class D felony domestic 

battery, Class A misdemeanor domestic battery, two counts of Class D felony 
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strangulation, and Class A misdemeanor intimidation. The State dismissed the 

Class A misdemeanor intimidation charge on September 25, 2014, and a jury 

trial was held the same day on the remaining charges. The jury found Horton 

guilty of Class A misdemeanor domestic battery and not guilty of the two 

strangulation charges. 

[6] Following the jury’s verdict, the following colloquy occurred: 

Court: [D]o I understand you’re waiving the jury trial on Count 

IV?

State: That’s correct judge.

Court: And we still need to proceed on Count IV now? He was 

found guilty of the domestic battery.

Defense Counsel: Yes, Judge.

Court: Ok. How do you intend to proceed? As a bench trial?

Defense Counsel: Yes.

State: I’m sorry, Judge, I didn’t . . . 

Defense Counsel: Yes, as a bench trial.

Tr. pp. 139-40.

[7] As agreed, the Class D felony domestic battery enhancement proceeded to 

bench trial. To prove that Horton had previously been convicted of domestic 

battery, as required to enhance Horton’s Class A misdemeanor conviction to a 

Class D felony conviction, the State presented evidence of Horton’s 2002

domestic battery conviction in the form of an unsigned copy of the sentencing

order, along with booking photos, the charging information, and the probable 

cause affidavit. Importantly, Horton’s previous conviction occurred in the same 

court as the present offense, and the State asked the trial court to take judicial 
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notice of its file in that cause, which the court did. The trial court took the 

matter under advisement to review the evidence. 

[8] On October 23, 2014, the trial court found Horton guilty of Class D felony 

domestic battery and sentenced him to two and one half years, with one year 

executed, one year in community corrections, and six months suspended to 

probation.

[9] Horton now appeals.

I. Sufficiency

[10] Horton contends that the evidence is insufficient to support his Class D 

domestic battery conviction. Our standard of review is well established:

When reviewing a sufficiency of the evidence claim, we neither 

reweigh the evidence nor judge the credibility of witnesses. 

Rather, we consider only the evidence that is favorable to the 

judgment along with the reasonable inferences to be drawn 

therefrom to determine whether there was sufficient evidence of 

probative value to support a conviction. We will affirm the 

conviction if there is substantial evidence of probative value from 

which a reasonable trier of fact could have drawn the conclusion 

that the defendant was guilty of the crime charged beyond a 

reasonable doubt.

Staten v. State, 844 N.E.2d 186, 187 (Ind. Ct. App. 2006) (citations omitted), 

trans. denied.

[11] To convict Horton of Class D felony domestic battery, the State first had to 

prove beyond a reasonable doubt all the elements of Class A misdemeanor 

domestic battery. Indiana Code section 35-42-2-1.3(a) provides that “[a] person 
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who knowingly or intentionally touches an individual who . . . is or was a 

spouse of the other person . . . in a rude, insolent, or angry manner that results 

in bodily injury to the person” commits Class A misdemeanor domestic battery.

[12] To enhance the Class A misdemeanor domestic battery to Class D felony 

domestic battery, the State also had to prove that Horton has a previous, 

unrelated domestic battery conviction. See Ind. Code § 35-42-2-1.3(b)(1).

1

[13] Horton argues that the State provided insufficient evidence to prove that he had 

a previous conviction for domestic battery. In order to establish the elements for 

Class D felony domestic battery, the State submitted booking photos, the 

charging information, the probable cause affidavit, and an unsigned sentencing 

order from Horton’s 2002 conviction. The State also asked the trial court to take 

judicial notice of its own file from Horton’s prior conviction, which had 

occurred in the same court. 

[14] Citing Abdullah v. State, 847 N.E.2d 1031 (Ind. Ct. App. 2006), Horton contends 

that the unsigned sentencing order, which is the only evidence submitted by the 

State that purports to prove a conviction rather than mere arrest and charging, 

is insufficient to prove his prior conviction. In Abdullah, another panel of this 

court held that an unsigned abstract of judgment, standing alone, is not 

sufficient to prove a prior conviction for purposes of proving the defendant’s 

status as a habitual offender. Id. at 1035. This court observed:

 

1

 The statute in its current form defines Class D felony domestic battery as Level 6 felony domestic battery. 

Horton committed the present offense prior to the statute’s revision. 
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Prosecutors routinely admit a wide variety of readily-available 

evidence for this purpose, including but certainly not limited to 

copies of sentencing orders, case chronologies, plea agreements, 

testimony from prosecutors or others involved in or witness to 

the prior conviction, or transcripts from the convicting court’s 

proceedings. Unfortunately, in this case the State chose to prove 

Abdullah’s prior conviction using only an abstract of judgment, 

and that abstract was not signed by the presiding judge as required

by Trial Rule 58. We can only speculate as to why the prosecutor 

here chose to forego all the other avenues typically available and 

rest his case on a piece of evidence that was subject to challenge. 

Id. at 1034-35 (citing Indiana Trial Procedure Rule 58).

[15] However, at the time Abdullah was decided, the general rule in Indiana was that 

a trial court could not take judicial notice “even of its own records in another 

case previously before the court on a related subject with related parties.” Gray 

v. State, 871 N.E.2d 408, 413 (Ind. Ct. App. 2007), trans. denied. Therefore, the 

unsigned abstract was in fact the only evidence the State submitted to prove a 

conviction. Now, however, the trial court is permitted to take judicial notice of 

its own files. See Indiana Evidence Rule 201(b) (“the court may judicially notice 

. . . records of a court of this state.”).

[16] Here, the trial court was asked to take judicial notice of its file in the previous 

case and stated that it would. Horton did not object to the State’s request. Not 

only was the trial court asked to take judicial notice of the records of a court, it 

was asked to take judicial notice of its own records. We can presume that the 

trial court did in fact review its earlier file and was aware of its contents, and 

that those contents included evidence supporting the enhancement. Moreover, 
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a trial court is presumed to know and correctly apply the law. See Crider v. State, 

984 N.E.2d 618, 624 (Ind. 2013). 

[17] Unquestionably, the State could have done a better job of proving its case for 

the enhancement and making the conviction apparent in the record, and we do 

not intend to encourage prosecutors to rely on judicial notice to fill in the gaps 

in evidence. It is still the State’s burden to prove the elements of the 

enhancement beyond a reasonable doubt, and it should do so in a way that is 

apparent on the face of the record. However, because the State asked the trial 

court to take judicial notice of its own file, the trial court took the enhancement 

under advisement to review the evidence, and the trial court is presumed to 

know the applicable law, we conclude that the State presented sufficient 

evidence to prove that Horton had a prior domestic battery conviction, and 

therefore, sufficient evidence supported his Class D felony conviction. 

II. Waiver of Jury Trial

[18] Horton next argues that because (1) no written waiver of his right to a jury trial 

on the Class D felony count exists, and (2) his counsel, rather than Horton 

himself, confirmed that Horton wished to proceed to bench trial, the waiver was 

ineffective, and his Class D felony conviction should be vacated. 

[19] The right to trial by jury is a fundamental right guaranteed by the Sixth 

Amendment to the U.S. Constitution and by Article 1, Section 13 of the 

Indiana Constitution. Coleman v. State, 694 N .E.2d 269, 278 (Ind. 1998). A 

defendant’s waiver of the right “must be voluntary, knowing, and intelligently 
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made with sufficient awareness of the relevant circumstances surrounding its 

entry and its consequences.” O’Connor v. State, 796 N.E.2d 1230, 1233 (Ind. Ct.

App. 2003) (citation omitted). 

[20] Denying a defendant a jury trial in the absence of a knowing, voluntary, and 

intelligent waiver is fundamental error. Johnson v. State, 6 N.E.3d 491, 496 (Ind.

Ct. App. 2014). A valid waiver requires affirmative action by the defendant, 

O’Connor, 796 N.E.2d at 1233, and “must be elicited personally from the 

defendant, either orally in open court or in writing.” Reynolds v. State, 703 

N.E.2d 701, 704 (Ind. Ct. App. 1999). This court has determined:

A voluntary waiver occurs if the conduct constituting the waiver 

is the product of a free will; a knowing waiver is the product of 

an informed will; an intelligent waiver is the product of a will 

that has the capacity to understand; and a waiver is personal if it 

is made by the defendant.

Id. (citation omitted).

[21] Here, nothing in the record suggests that Horton did not understand his right to 

a jury trial and the consequences of waiving that right. Although the 

defendant’s personal desire to waive the right must be apparent from the record, 

a trial court is not required to orally advise a defendant of his or her right to a 

jury trial and the consequences of waiving that right. McSchooler v. State, 15 

N.E.3d 678, 682–83 (Ind. Ct. App. 2014). Nor is counsel required “to explain 

each and every possible detail concerning a jury trial in order for the defendant 

to be sufficiently informed[.]” Reynolds, 703 N.E.2d at 704.
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[22] The fact that Horton had just been through a jury trial on the Class A 

misdemeanor count of his case suggests that he had “familiarity with the 

judicial process, making it quite likely that he knew what a ‘jury’ was.” Poore v. 

State, 681 N.E.2d 204, 207 (Ind. 1997). In addition, Horton was represented by 

counsel when he waived his right to a jury trial, and in fact, Horton’s counsel 

stated in open court and in Horton’s presence that Horton wished to waive his 

right to a jury trial on the Class D felony enhancement, and Horton did not 

object or state otherwise. It is reasonable to infer that Horton was acting upon 

the advice of legal counsel and that the decision to waive the right to a jury trial 

was a strategic one. See McSchooler, 15 N.E.3d at 683. Evidence of waiver as a 

deliberate strategy supports the trial court’s conclusion that Horton made an 

informed decision when he waived his right to a jury trial.

[23] We further note that a waiver of jury trial need not be written to be effective. See

Johnson v. State, 6 N.E.3d 491 (Ind. Ct. App. 2014) (noting that a defendant may 

express the desire to waive his right to a jury trial through a colloquy in open 

court). Here, Horton’s counsel’s confirmation that Horton wished to waive his 

right to a jury trial on the Class D felony enhancement adequately reflects 

Horton’s desire to waive this right.

[24] Under these facts and circumstances, we conclude that Horton knowingly, 

voluntarily, and intelligently waived his right to a jury trial.
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Conclusion

[25] For all of these reasons, we conclude that Horton knowingly, voluntarily, and 

intelligently waived his right to a jury trial on his Class D felony enhancement 

and that the State presented sufficient evidence to prove that Horton was guilty 

of Class D felony domestic battery.

[26] Affirmed.

May, J., and Robb, J., concur.