ATTORNEYS FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER STEVE CARTER
Public Defender of Indiana Attorney General of Indiana
J. MICHAEL SAUER ROBIN HODAPP-GILLMAN
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
COURT OF APPEALS OF INDIANA
MICHAEL LYNN GOBLE, )
vs. ) No. 92A03-0103-CR-95
STATE OF INDIANA, )
APPEAL FROM THE WHITLEY CIRCUIT COURT
The Honorable Paul R. Cherry, Judge
Cause Nos. 92C01-0002-DF-034 and 92C01-0002-DF-039
February 8, 2002
OPINION - FOR PUBLICATION
Appellant, Michael Goble, challenges his convictions for two counts of Perjury,
See footnote a Class
D felony, and two counts of Filing a Fraudulent Record,See footnote a Class
A misdemeanor. Goble presents three issues for our review:
(1) Whether the trial court abused its discretion in refusing Gobles mid-trial request to
abandon his pro se defense and reassert his right to counsel;
(2) Whether there was sufficient evidence to sustain Gobles perjury convictions; and
(3) Whether Gobles convictions for filing a fraudulent record were contrary to law.
In 1998, Whitley County Consolidated Schools hired Schrader Real Estate & Auction (Schrader),
a licensed realtor auctioneer, to take bids for the sale of Thorncreek Elementary
School, for which the school corporation no longer had any use. Schrader
received seven bids for the property, including a $20 gold piece from Goble,
which he submitted on behalf of the Body of Christ Church. On
November 16, 1999, the school board accepted a bid of $63,400 from the
Wabash Book Company of Fort Wayne. Earlier that day, Goble filed a
Common Law Lien Pursuant to Indiana Code 32-8-39-1 with the Whitley County
Recorder. Under oath, Goble signed the document as Beloved, in his capacity
as pastor and trustee for Body of Christ Unlimited. Appellants Appendix at
922. As the legal basis upon which Goble asserted his right to
hold the common law lien, Goble stated that he had purchased the property
with Best Offer and best bid by payment in full . . .
of a Twenty Dollar Liberty Gold Coin . . . contained in the
sealed bid delivered by [Goble] pursuant to the advertised auction Notice and that
agents of Whitley County Consolidated Schools Corporation caused to be stolen on or
about the morning of November 12, 1999, . . . all said Property
. . . .
Id. at 920. Based on this statement,
the State filed an information on February 15, 2000, (Cause No. 34) charging
Goble with perjury and filing a fraudulent record.
In 1999, Whitley Superior Court Judge Michael Rush presided over an unrelated case
involving Goble. For undisclosed reasons, Judge Rush subsequently recused himself from Gobles
case. On December 17, 1999, after Judge Rush had recused himself, an
order to appear at a hearing scheduled for January was sent to Goble
with Judge Rushs signature stamp affixed to it. As a result of
this order, Goble filed with the Whitley County Recorder a common law lien
against Judge Rushs house. Goble signed the document under oath as Michael
Lynn., goble. Id. at 923. As the legal basis for the
lien, Goble stated in the body of the document:
This Claim is made in good faith for the reason that Michael
Lynn., goble believes that facts are that on December 22, 1999, Michael D.
Rush issued an invalid Order by Trespass on the case in CAUSE NO.
92D01-9507-DF-389 by judge . . . FRAUD upon the Court inasmuch as an
ORDER TO APPEAR, January 4, 2000 at 8:30 is as a matter of
Record without authority of a Qualified Judge and by a judge . .
. acting in administrative, or ministerial capacity as a common outlaw in place
of the special judge appointed by the Indiana Supreme Court due to the
fact also that the commission of Michael D. Rush was and still is
withdrawn from said CAUSE. That these facts constitute a Trespass of Tort
against the Civil Liberties of Michael Lynn., goble. Wherefore, in such capacity,
Michael D. Rush has no immunity from prosecution by Michael Lynn. . .
. Id. at 923.
This statement served as the basis for the information filed by the State
on February 18, 2000, (Cause No. 39) charging Goble with perjury and filing
a fraudulent record.I
On December 15, 2000, the two causes were consolidated for trial. Following
a jury trial, Goble was found guilty of two counts of perjury and
two counts of filing a fraudulent record. Under Cause No. 34, the
trial court sentenced Goble to one and a half years for perjury and
one year for filing a fraudulent record, sentences to run concurrently. Under
Cause No. 39, the trial court sentenced Goble to one and a half
years for perjury and one year for filing a fraudulent record, to be
served concurrently. The trial court further ordered that the sentences imposed under
each cause be served consecutively, for an aggregate sentence of three years.
Goble argues that he was denied his constitutional right to counsel when the
trial court refused his mid-trial request to have his standby counsel conduct the
direct examination of him, argue his motion for judgment on the evidence, and
present the closing argument. The Sixth Amendment of the United States Constitution
and Article I, § 13 of the Indiana Constitution guarantee the right to
counsel at any critical stage of prosecution where counsels absence might derogate from
the accuseds right to a fair trial. Koehler v. State, 499 N.E.2d
196, 198 (Ind. 1986) (quoting United States v. Wade, 388 U.S. 218, 228
(1967)). The right to proceed pro se is correlative to this constitutional
In the present case, at a preliminary hearing on February 21, 2000, the
trial court appointed J. Brad Voelz, a public defender, to represent Goble at
trial. At a pre-trial conference on March 20, 2000, Mr. Voelz informed
the trial court that Goble wanted to represent himself. Goble clarified for
the court that he wanted Mr. Voelz to serve as standby counsel, to
assist him with his investigation and in understanding the law.
See footnote The trial
court then appointed Mr. Voelz as standby counsel and directed Goble to advise
the court prior to trial as to whether he or Mr. Voelz would
conduct the jury trial.See footnote Goble filed all motions on his behalf, conducted
twenty to thirty depositions, and represented himself, with Mr. Voelz present as standby
counsel, at all hearings prior to the jury trial and at the jury
At trial, Goble presented an opening statement, cross-examined the States three witnesses, and
conducted direct examination of his witnesses. At the end of the lunch
break on the second day of trial, Goble informed the trial court that
he was the last witness to testify and requested that Mr. Voelz be
permitted to take over his case because of the difficulty inherent in questioning
himself. The State objected, and the trial court subsequently denied Gobles request.
Goble called several more witnesses on his behalf and then took the
stand and testified. At the conclusion of his testimony, Goble rested his
case, moved for judgment on the evidence, and then asked the trial court
if Mr. Voelz could argue the motion, asserting that he was too tired
to continue. The trial court again refused Gobles request and after hearing
Gobles argument, denied the motion for judgment on the evidence.
It is within the trial courts discretion to determine whether a defendant may
abandon his pro se defense after trial has begun and reassert his right
Koehler, 499 N.E.2d at 198-99. We will reverse only
if we conclude that the trial court abused its discretion. Id.
In Koehler, our Supreme Court identified five factors to be considered by a
trial court in order to exercise meaningful discretion in ruling on defendants request
to change from self-representation to counsel-representation by standby counsel.
See footnote Specifically, the trial
court should consider: (1) the defendants prior history in the substitution of
counsel and in the desire to change from self-representation to counsel-representation, (2) the
reasons set forth in defendants request, (3) the length and stage of the
trial proceedings, (4) any disruption or delay in the trial proceedings which might
be expected to ensue if the request is granted, and (5) the likelihood
of defendants effectiveness in defending against the charges if required to continue to
act as his own attorney.
Id. at 199. Upon making such
a request, a defendant is entitled to a consideration of the Koehler factors.
Dowell v. State, 557 N.E.2d 1063, 1068 (Ind. Ct. App. 1990) (holding
that trial court abused its discretion by summarily denying defendants request for stand-by
counsel to conduct closing statements), trans. denied, cert. denied, 502 U.S. 861 (1991).
Here, the trial court explained its reasons for denying Gobles request. The
trial court clearly considered the length and stage of the proceedings, recognizing that
the trial was almost complete when Goble requested that Mr. Voelz be permitted
to take over.
See footnote Further, in its statement, the trial court seemed to
indicate that under the circumstances, Goble had done rather well representing himself.
The trial court acknowledged that Goble had prepared his case, questioned witnesses, and
posed objections, some of which had been sustained. From this, we can
discern the trial courts consideration of Gobles effectiveness in representing himself if he
were made to continue.
As to the other
See footnote we note that Gobles reason for requesting
counsel representation at this late stage in the trial appears to be legitimate,
i.e. the difficulty inherent in questioning himself. Further, it is not clear
whether the trial court even considered what disruption or delay, if any, could
have been reasonably expected if Gobles request would have been granted. The
trial court may have believed that because Mr. Voelz was present at only
one of twenty or so depositions which Goble conducted, Mr. Voelz was not
prepared to take over as counsel for Goble, and that such may have
caused a delay. However, our review of the record indicates that any
disruption or delay would likely have been minimal. The record reveals that
Mr. Voelz informed the trial court that he felt obligated, as standby counsel,
to take over if Goble requested. Mr. Voelz further stated that he
would not decline Gobles request to take over, so long as Goble made
the request to the court. Moreover, the trial court itself noted that
Mr. Voelz had been present and very helpful to Mr. Goble throughout the
entire trial, making it more likely that Mr. Voelz was familiar with Gobles
defense and thus could immediately and adequately step in and take over.
Koehler factors to the case at bar, we recognize that this
is a close case. However, we note that Goble was never advised
of the dangers and disadvantages of waiving his right to counsel. When
a defendant elects self-representation, the trial court must elicit a knowing, intelligent, and
voluntary waiver of the right to counsel. McKeown v. State, 556 N.E.2d
3, 6 (Ind. Ct. App. 1990), trans. denied. The trial court must
also establish a record demonstrating that the defendant was made aware of the
nature, extent, and importance of the right to counsel and the dangers and
disadvantages of waiving it. Id. at 6; Dowell, 557 N.E.2d at 1066.
Waiver of assistance of counsel may not be inferred from a silent
record. Dowell, 557 N.E.2d at 1066. See also Maisonet v. State,
579 N.E.2d 660, 663 (Ind. Ct. App. 1991)(Staton, J., dissenting).
Here, in denying Gobles request for standby counsel to take over the trial,
the trial court stated that Mr. Goble [had] been advised and informed that
it would be to his disadvantage to conduct the trial himself without a
full counsel and [t]hat it would be to his advantage to be represented
fully by an attorney. Appellants App. at 984-85. However, we can
find no such advisements in the record.
See footnote Our analysis of the
factors, in conjunction with the trial courts failure to advise Goble of the
dangers and disadvantages of self-representation, leads us to conclude that the trial court
violated Gobles Sixth Amendment right to counsel, and thus, Gobles convictions must be
We note, however, that although double jeopardy bars retrial when a conviction is
reversed due to insufficient evidence, it does not bar retrial when a conviction
is reversed due to trial error. Sigler v. State, 733 N.E.2d 509,
512 (Ind. Ct. App. 2000), trans. denied. Thus, although we have reversed
Gobles convictions because of the trial courts error in refusing to permit standby
counsel to take over, retrial on all charges could be sought by the
State. We therefore address the merits of the other issues Goble has
presented to this court.
Goble argues that there was insufficient evidence to support his convictions for perjury
because the State failed to prove that he knew the statements he made
in the liens were false. To convict Goble of perjury, the State
has to prove beyond a reasonable doubt that Goble [made] a false, material
statement under oath or affirmation, knowing the statement to be false or not
believing it to be true. I.C. § 35-44-2-1(a)(1). Knowledge is
a mental state of the actor; thus the trier of fact must infer
its existence. Jernigan v. State, 612 N.E.2d 609, 613 (Ind. Ct. App.
1993), trans. denied. In determining whether Goble knowingly made false statements, the
trier of fact must rely on reasonable inferences based on the surrounding circumstances.
In the lien Goble filed against the school property, Goble stated that he
had purchased the property with his $20 gold piece, which he asserted was
the best bid received by the school corporation. Appellants App. at 920.
Goble, believing that the gold standard is the law of the land
my belief that by use of the twenty dollar Liberty gold coin standard
dollar in that denomination presented with the bid being, was a full payment
best bid is absolutely, no doubt in my mind, absolute, for sure the
highest bid and the best payment that could ever have been received, someone
could have outbid me if they had used more of that specie.
Transcript at 445-46.
From this evidence, a jury could reasonably infer that Gobles belief in the
gold standard is so beyond the reality of todays society that Goble knew
that he had not purchased the schools property with his bid of a
$20 gold piece.
In the lien filed against Judge Rushs house, Goble stated that he believed
that Judge Rush had acted without authority and that such constituted a tort
against him and that Judge Rush was not immune from prosecution. The
State asserts that these were false, material statements of fact which Goble knew
to be false. We do not agree. Generally, the alleged false
statement giving rise to a perjury conviction must be a statement of fact
and not a conclusion, opinion, or deduction from given facts. Blackburn v.
State, 495 N.E.2d 806, 808 (Ind. Ct. App. 1986), trans. denied. Furthermore,
[a] statement as to the legal effect of certain facts, or mere conclusion
of law, ordinarily will not constitute perjury. Id. We conclude that
Gobles statements that Judge Rush issued an invalid Order by Trespass, that Judge
Rush was acting in administrative, or ministerial capacity as a common outlaw in
place of the special judge, and that Judge Rush in such capacity, .
. . ha[d] no immunity from prosecution, are more properly construed as legal
conclusions and not factual statements. Appellants App. at 923. Therefore, such
statements may not serve as the basis for a perjury conviction.
Filing Fraudulent Records
Goble argues that his convictions for filing fraudulent records must be vacated because
attempts to create liens on real estate were statutorily exempted from prosecution for
this offense. The State agrees.
Here, the charges against Goble for filing fraudulent records are based upon a
violation of I.C. § 26-1-9-508(f). However, Indiana Code § 26-1-9-104(j) (Burns Code
Ed. Repl. 1999)
See footnote provides that IC 26-1-9 does not apply . . .
to the creation or transfer of an interest in or lien on real
estate. There is no dispute that the documents Goble filed with the
Whitley County Clerk purported to create common law liens against real estate, i.e.
the schools property and Judge Rushs house. Because I.C. § 26-1-9 does
not apply to liens on real estate and Gobles filings were an attempt
to place liens on real estate, Goble cannot be prosecuted for filing
fraudulent records under I.C. § 26-1-9-508(f).
The judgment of the trial court is reversed.
NAJAM, J., and MATTINGLY-MAY, J., concur.
Footnote: Ind.Code § 35-44-2-1 (Burns Code Ed. Repl. 1998).
Footnote: Ind.Code § 26-1-9-508(f) (Burns Code Ed. Repl. 1999) (repealed 2001).
Footnote: Goble told the trial court that he wanted Mr. Voelz to
help him with pre-trial preparation of motions and in obtaining discovery, but reiterated
that Mr. Voelz would not be responsible for any of the motions which
Goble himself might submit.
Footnote: The trial court clarified Mr. Voelzs role as standby counsel:
Mr. Goble you can contact Mr. Voelz as you feel necessary to gain
[advice]. Ill allow you to file your own motions. Mr. Voelz,
you will not have to review or approve those motions and I will
not, they will not be considered motions which you would have anything to
do with unless you were to sign a motion. Ill also have
you available as standby counsel to consult with [Goble] during a trial.
[Goble] will need to make a decision before the trial date if [he]
want[s] Mr. Voelz to try the case . . . . [Mr.
Voelz] will not be your co-counsel. [Mr. Voelz] will either be your
attorney or he will be standby counsel to be there to advise you
as you feel necessary. Transcript at 12-13.
Footnote: It is apparent from the treatment of the issue in
Koehler, that although a court may have appointed standby counsel for a defendant,
that defendant is representing himself pro se. Standby counsel is not considered
to have been appointed to represent the defendant. Defendant is entitled only
to confer with standby counsel. He is not entitled to have standby
counsel actively participate in the proceedings.
Specifically, the trial court stated,
Were now in the second day, after noon, or should I say the
afternoon on the second day of the jury trial. The State has
completely presented all of its [sic] evidence and rested. The defendant has
called all of [his] witnesses except one and that is Mr. Goble if
he chooses to testify. Transcript at 427.
We note that Goble had a history of requesting counsel-representation at
the last minute. However, there is nothing in the record which indicates
that the judge who presided over Gobles trial knew about Gobles history.
It was during a pre-trial conference when Mr. Voelz informed the trial court
that in another case, he had been appointed standby counsel for Goble, and
that as the jury was brought into the court room in that case,
Goble said that he could not go through with it and asked Mr.
Voelz to conduct the jury trial. We note, however, that the judge
who conducted the pre-trial conference was not the same judge who presided over
Footnote: The record is complete with transcripts from all recorded hearings that
were logged in the chronological case summary.
Footnote: This section has since been recodified as Ind.Code § 26-1-9.1-109 (Burns
Code Ed. Supp. 2001).