Roy Clifford Bebout v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 30 2019, 9:02 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Yvette M. LaPlante Curtis T. Hill, Jr.
LaPlante LLP Attorney General of Indiana
Evansville, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Roy Clifford Bebout, October 30, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1052
v. Appeal from the
Vanderburgh Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. Michael J. Cox, Magistrate
Trial Court Cause No.
82C01-1810-F3-6908
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1052 | October 30, 2019 Page 1 of 6
[1] Roy Clifford Bebout (“Bebout”) was convicted after a jury trial of attempted
rape1 as a Level 3 felony, criminal confinement2 as a Level 3 felony,
kidnapping3 as a Level 3 felony, two counts of criminal confinement,4 each as a
Level 5 felony, and strangulation5 as a Level 6 felony and was sentenced to
twenty-five years executed in the Indiana Department of Correction. Bebout
appeals and raises the following issue for our review: whether the trial court
erred when it denied Bebout’s request to represent himself.
[2] We affirm.
Facts and Procedural History
[3] On October 12, 2018, K.H., who was a juvenile at the time, was walking to her
job at a McDonald’s restaurant, which was about a five-minute walk from her
home. Tr. Vol. II at 69-70. As she crossed the parking lot of a closed grocery
store, a man, whom she later identified in a line-up as Bebout, got out of his
truck and stuck a gun in her right side, stating “This is a gun, if you try to run,
I’m going to shoot you.” Id. at 70-72. The two struggled until K.H. was inside
of Bebout’s truck on the passenger side floorboard where the scuffle continued
as Bebout attempted to handcuff K.H. Id. at 72. Bebout slammed K.H.’s head
1
See Ind. Code §§ 35-42-4-1(a); 35-41-5-1.
2
See Ind. Code § 35-42-3-3.
3
See Ind. Code § 35-42-3-2.
4
See Ind. Code § 35-42-3-3.
5
See Ind. Code § 35-42-2-9(c).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1052 | October 30, 2019 Page 2 of 6
against the console and tried to put a yellow ball with a string on it into her
mouth. Id. at 72-73. K.H. continued to struggle, and at one point, she grabbed
his gun and threw it into the backseat, but Bebout was able to retrieve it. Id. at
73. She also took the pepper spray that she was wearing around her neck and
tried to spray him, but he wiped the spray onto her face. Id. at 75. During the
struggle, K.H. tried to call police on her cell phone, and she also asked Bebout
questions. Id. at 74. She indicated that she had $16 and offered it to Bebout.
Id. He told her that he did not want her money and that he wanted her to
perform oral sex on him. Id. Bebout was eventually able to handcuff K.H., and
once he had done so, he shoved her legs into the truck and walked around to
get into the driver’s seat. Id. at 76. At that time, K.H. was able to open the
truck door and escape the vehicle. Id. She saw a bus in the parking lot and ran
across the street to where it was located. Id. She made contact with the bus
driver, who called police. Id.[4] The police arrived and cut the handcuffs off of K.H. Id. at 77. The bus driver
reported that he had observed a red Dodge pickup truck leave the parking lot.
Id. at 91. At the scene, the police located a cell phone near where the truck had
been parked. Id. at 98, 101-02. Officers later called the contact labeled “Mom”
in the cell phone. Id. at 105. The woman who answered the phone identified
herself as Bebout’s mother and identified the phone and number the police
called from as belonging to her son, Bebout. Id. Later that day, the police
located Bebout at his employment in another county, and they went to that
location to arrest him. Id. at 158-60. After arresting Bebout, the police
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1052 | October 30, 2019 Page 3 of 6
obtained a warrant to search his red Dodge pickup truck. Id. at 110, 113.
During the search of the truck, they found zip ties, rope, and a pillowcase. Id.
at 117. In their investigation, the police also recovered a yellow ball with a
string attached and an airsoft pistol that matched the description of the gun
used by Bebout. Id. at 150-51; Tr. Vol. III at 33. Officers questioned Bebout,
and he admitted to the struggle that took place between him and K.H. Tr. Vol.
III at 7-8. He denied asking her to perform a sex act on him, and instead
suggested that she had offered to do so during her plea for help. Id. at 9.
[5] On October 15, 2018, the State charged Bebout with Level 3 felony attempted
rape, Level 3 felony criminal confinement, Level 3 felony kidnapping, two
counts of Level 5 felony criminal confinement, and Level 6 felony strangulation
and alleged that he was a repeat sexual offender. Appellant’s App. Vol. II at 21-
23, 27. Bebout was appointed a public defender. Id. at 10. A jury trial was
scheduled to commence on March 11, 2019, and on the morning of the jury
trial, Bebout indicated that he wanted to represent himself at trial. Tr. Vol. II at
4. The trial court denied Bebout’s request because he was “not prepared to
represent” himself “on the morning of trial.” Id. at 18. The trial then
proceeded with Bebout being represented by his appointed counsel. Id. At the
conclusion of the trial, the jury found Bebout guilty as charged. The trial court
sentenced him to an aggregate sentence of twenty-five years executed. Bebout
now appeals.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1052 | October 30, 2019 Page 4 of 6
Discussion and Decision
[6] Bebout argues that the trial court erred when it denied his morning-of-trial
request to represent himself at trial. The Sixth Amendment to the United States
Constitution guarantees a criminal defendant the right to counsel. Wilson v.
State, 94 N.E.3d 312, 320 (Ind. Ct. App. 2018) (citing Jones v. State, 783 N.E.2d
1132, 1138 (Ind. 2003)), trans. denied. “Implicit in the right to counsel is the
right to self-representation.” Id. (citing Drake v. State, 895 N.E.2d 389, 392 (Ind.
Ct. App. 2008)). A criminal defendant has the right to waive counsel and
proceed pro se if it is shown that he does so of his own free will, knowing and
understanding his constitutional right to be represented by counsel. Campbell v.
State, 732 N.E.2d 197, 203 (Ind. Ct. App. 2000) (citing Olson v. State, 563
N.E.2d 565, 570 (Ind. 1990)). However, the right to self-representation must be
asserted within a reasonable time prior to the first day of trial. Id. Our
Supreme Court has held that a request to proceed pro se on the morning of trial
is per se untimely, and denial of a request to proceed pro se on the ground of
untimeliness is permissible. Moore v. State, 557 N.E.2d 665, 669 (Ind. 1990);
Dixon v. State, 437 N.E.2d 1318, 1321 (Ind. 1982); Russell v. State, 270 Ind. 55,
62, 383 N.E.2d 309, 314 (1978). See also Campbell, 732 N.E.2d at 204; Hotep-El
v. State, 113 N.E.3d 795, 809 (Ind. Ct. App. 2018), trans. denied.
[7] Here, Bebout did not request to represent himself until the morning of trial.
Under the circumstances of this case, Bebout’s request to proceed pro se was
per se untimely and properly denied by the trial court. We, therefore, affirm
Bebout’s convictions.
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[8] Affirmed.
Baker, J., and Crone, J., concur.
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