Rush, C.J.
The Indiana Constitution guarantees the right to jury trial, which may be waived by one, and only one, person—the defendant. Unless the defendant personally communicates to the judge a desire to waive that right, he must receive a jury trial.
Here, Defendant Adam Horton merely remained silent while his attorney requested a bench trial on the second phase of a bifurcated trial, where the State sought to prove a D-felony domestic battery charge based on a prior conviction. Because Horton’s silence falls well short of personal waiver, the trial court committed fundamental error in proceeding to a bench trial. We therefore reverse and remand for a new trial on the D-felony domestic battery charge.
Even though the ineffective jury trial waiver is dispositive, we also address Horton’s insufficient-evidence claim because it raises an important question about judicial notice of court records. The trial court convicted Horton of the felony-level domestic battery offense based on judicial notice of its own file in a prior case, in which Horton had been convicted of misdemeanor domestic battery. We conclude that when a trial court takes judicial notice of a “record of a court” under Indiana Evidence Rule 201(b)(5), unambiguously identifying the publicly available records may be minimally sufficient. But the better approach, when practical, is to enter the particular documents into the record, so that both the litigants and appellate courts can know with certainty what evidence the court considered. The trial court’s omission of those documents here impedes our review but does not constitute error.
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Horton contends that the trial court denied him his right to a jury trial on the D-felony domestic battery charge because he did not personally communicate waiver to the judge, as required by this Court’s longstanding precedent, reiterated most recently in Kellems v. State, 849 N.E.2d 1110 (Ind. 2006). The State concedes that Horton did not personally waive the right, but argues that this Court should make an exception where, as here, the defendant has just experienced a jury trial and is thus more likely “aware” of the right his attorney attempts to waive on his behalf.
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The personal waiver requirement, rooted in Indiana Code section 35-37-1-2 and longstanding precedent, eliminates an intolerable risk. It ensures that a felony prosecution will not proceed to a bench trial against the defendant’s will by demanding direct evidence that waiver is the defendant’s choice. Given the high stakes of erroneous jury-trial deprivation and the low cost of confirming personal waiver, we see no reason to dilute our time-honored personal waiver requirement by “back[ing] away from [the] standard practice” that “Indiana trial courts have clearly adopted.” Kellems, 849 N.E.2d at 1113. …
Accordingly, the failure to confirm Horton’s personal waiver before proceeding to bench trial was fundamental error. …
Even though the jury trial right violation is dispositive of this appeal, we exercise our discretion to address another issue for guidance purposes only—whether an unsigned sentencing order and a judicially noticed case file not included in the record are sufficient to support the D-felony domestic battery conviction.
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… Once a court has unambiguously identified the records of which it is taking notice, timely objecting to those records’ presumptive accuracy is the opposing party’s burden. [Citation omitted.] Otherwise, it is reasonable for a reviewing court to infer from the absence of an objection that—as here—no reason exists to dispute the record’s accuracy. Horton knew from the face of his felony charging information that the State was relying on his prior conviction in CM-195, giving him ample time to investigate any grounds for objection. Then at trial, when the State asked the court to take judicial notice of its entire CM-195 file, Horton could have requested a hearing under Evidence Rule 201(e) on “the propriety of taking judicial notice and the nature of the fact to be noticed.” [Citation omtted.] Even after trial, Horton could have invoked that same procedure, id.—or filed a Motion to Correct Error under Indiana Trial Rule 59 if he belatedly discovered an inaccuracy or inadequacy in the CM-195 file. At all times, the CCS of the judicially noticed case was publicly available online to permit quick investigation by anyone, and the entire case file was available for review upon in-person request by Horton’s attorney, his family or friends, or any other member of the general public.
Since the prior case file was readily and publicly available, and its cause number was repeatedly and unambiguously identified in the record to enable investigation and objection if warranted, the failure to formally enter the relevant documents from CM-195 into this record was not an abuse of discretion. Nevertheless, … it is by far the preferable practice to enter into the record the particular documents of which the court is taking notice.
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We decline to abandon the well-established requirement that a felony defendant personally communicate waiver of the Indiana constitutional jury trial right. By proceeding to trial absent personal waiver by Horton himself, the trial court committed fundamental error. But under the circumstances here, it was not an abuse of discretion to take judicial notice of the court records showing Horton’s prior conviction without formally entering them into the record. Therefore, although we do not disturb Horton’s conviction for Class A misdemeanor domestic battery, we reverse his conviction for D-felony domestic battery and remand with instructions to proceed to a new trial limited to that count.
Dickson, Rucker, David, and Massa, JJ., concur.
The Indiana Constitution guarantees the right to jury trial, which may be waived by one, and only one, person—the defendant. Unless the defendant personally communicates to the judge a desire to waive that right, he must receive a jury trial.
Here, Defendant Adam Horton merely remained silent while his attorney requested a bench trial on the second phase of a bifurcated trial, where the State sought to prove a D-felony domestic battery charge based on a prior conviction. Because Horton’s silence falls well short of personal waiver, the trial court committed fundamental error in proceeding to a bench trial. We therefore reverse and remand for a new trial on the D-felony domestic battery charge.
Even though the ineffective jury trial waiver is dispositive, we also address Horton’s insufficient-evidence claim because it raises an important question about judicial notice of court records. The trial court convicted Horton of the felony-level domestic battery offense based on judicial notice of its own file in a prior case, in which Horton had been convicted of misdemeanor domestic battery. We conclude that when a trial court takes judicial notice of a “record of a court” under Indiana Evidence Rule 201(b)(5), unambiguously identifying the publicly available records may be minimally sufficient. But the better approach, when practical, is to enter the particular documents into the record, so that both the litigants and appellate courts can know with certainty what evidence the court considered. The trial court’s omission of those documents here impedes our review but does not constitute error.
….
Horton contends that the trial court denied him his right to a jury trial on the D-felony domestic battery charge because he did not personally communicate waiver to the judge, as required by this Court’s longstanding precedent, reiterated most recently in Kellems v. State, 849 N.E.2d 1110 (Ind. 2006). The State concedes that Horton did not personally waive the right, but argues that this Court should make an exception where, as here, the defendant has just experienced a jury trial and is thus more likely “aware” of the right his attorney attempts to waive on his behalf.
….
The personal waiver requirement, rooted in Indiana Code section 35-37-1-2 and longstanding precedent, eliminates an intolerable risk. It ensures that a felony prosecution will not proceed to a bench trial against the defendant’s will by demanding direct evidence that waiver is the defendant’s choice. Given the high stakes of erroneous jury-trial deprivation and the low cost of confirming personal waiver, we see no reason to dilute our time-honored personal waiver requirement by “back[ing] away from [the] standard practice” that “Indiana trial courts have clearly adopted.” Kellems, 849 N.E.2d at 1113. …
Accordingly, the failure to confirm Horton’s personal waiver before proceeding to bench trial was fundamental error. …
Even though the jury trial right violation is dispositive of this appeal, we exercise our discretion to address another issue for guidance purposes only—whether an unsigned sentencing order and a judicially noticed case file not included in the record are sufficient to support the D-felony domestic battery conviction.
….
… Once a court has unambiguously identified the records of which it is taking notice, timely objecting to those records’ presumptive accuracy is the opposing party’s burden. [Citation omitted.] Otherwise, it is reasonable for a reviewing court to infer from the absence of an objection that—as here—no reason exists to dispute the record’s accuracy. Horton knew from the face of his felony charging information that the State was relying on his prior conviction in CM-195, giving him ample time to investigate any grounds for objection. Then at trial, when the State asked the court to take judicial notice of its entire CM-195 file, Horton could have requested a hearing under Evidence Rule 201(e) on “the propriety of taking judicial notice and the nature of the fact to be noticed.” [Citation omtted.] Even after trial, Horton could have invoked that same procedure, id.—or filed a Motion to Correct Error under Indiana Trial Rule 59 if he belatedly discovered an inaccuracy or inadequacy in the CM-195 file. At all times, the CCS of the judicially noticed case was publicly available online to permit quick investigation by anyone, and the entire case file was available for review upon in-person request by Horton’s attorney, his family or friends, or any other member of the general public.
Since the prior case file was readily and publicly available, and its cause number was repeatedly and unambiguously identified in the record to enable investigation and objection if warranted, the failure to formally enter the relevant documents from CM-195 into this record was not an abuse of discretion. Nevertheless, … it is by far the preferable practice to enter into the record the particular documents of which the court is taking notice.
….
We decline to abandon the well-established requirement that a felony defendant personally communicate waiver of the Indiana constitutional jury trial right. By proceeding to trial absent personal waiver by Horton himself, the trial court committed fundamental error. But under the circumstances here, it was not an abuse of discretion to take judicial notice of the court records showing Horton’s prior conviction without formally entering them into the record. Therefore, although we do not disturb Horton’s conviction for Class A misdemeanor domestic battery, we reverse his conviction for D-felony domestic battery and remand with instructions to proceed to a new trial limited to that count.
Dickson, Rucker, David, and Massa, JJ., concur.