author: Barteau, Senior Judge.

text:
    William P. STICKROD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 79A04-1710-CR-2473
    Court of Appeals of Indiana.
    FILED August 3, 2018
    Attorney for Appellant: Bruce W. Graham, Graham Law Firm, P.C., Lafayette, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Justin F. Roebel, Supervising Deputy Attorney, General, Indianapolis, Indiana
   Barteau, Senior Judge.

Statement of the Case

[1] William P. Stickrod appeals his convictions of possession of methamphetamine, a Level 5 felony; and possession of paraphernalia, a Class C misdemeanor. We affirm in part, reverse in part, and remand with instructions.

Issues

[2] Stickrod raises three issues, which we restate as:

I. Whether the trial court erred in admitting evidence the police found in Stickrod's house while serving two arrest warrants.
II. Whether the trial court violated Stickrod's right to present evidence in his defense by barring a witness's testimony.
III. Whether Stickrod's two convictions for possession of methamphetamine violate the federal constitutional prohibition of double jeopardy.

Facts and Procedural History

[3] At 6:50 p.m. on December 17, 2016, Officer Grant Leroux of the Lafayette Police Department and other officers arrived at a house in Lafayette, Indiana. The house belonged to Stickrod's mother, but Officer Leroux knew that Stickrod lived there. The officers were there to execute warrants to arrest Stickrod for failing to appear at court hearings in two criminal cases.

[4] We discuss the circumstances in more detail below, but in summary Stickrod's girlfriend, Jessica Caliz, eventually answered the door and told Officer Leroux that Stickrod was not at home. The officers heard a "thud" coming from the house's attached garage. Caliz had previously lied to Officer Leroux about Stickrod's whereabouts. In addition, Officer Leroux had arrested Stickrod at that house a few weeks prior to December 17, 2016, after finding Stickrod hiding in the garage. The officers entered the house and discovered Stickrod hiding in the garage once again. They handcuffed him and, during a search of his person, discovered a glasses case in a pants pocket. The case contained a glass pipe and a small plastic bag which in turn contained a white powdery substance. Subsequent testing revealed the presence of .8 grams of methamphetamine in the bag and methamphetamine residue on the pipe.

[5] The State charged Stickrod with possession of methamphetamine, a Level 6 felony; possession of paraphernalia, a Class C misdemeanor; and possession of methamphetamine, a Level 5 felony. The State further alleged that Stickrod was an habitual offender. Stickrod filed a motion to suppress all evidence that the State obtained after entering his home. The trial court held a hearing and denied the motion.

[6] The court bifurcated the case, choosing to first submit the Level 6 felony and Class C misdemeanor charges to a jury. After the State rested, Stickrod's attorney informed the court outside the presence of the jury that he would not present testimony by Caliz because he believed Caliz would commit perjury on the stand. Stickrod disagreed with his attorney's decision and told the court that Caliz's testimony was "imperative for [his] defense." Tr. Vol. 2, p. 156. Stickrod further asked the court to fire his attorney. The court denied Stickrod's request to fire his attorney and did not allow Caliz to testify.

[7] The jury determined Stickrod was guilty of the Level 6 felony and the Class C misdemeanor, and the court entered a judgment of conviction. Stickrod waived his right to a jury trial on the Level 5 felony and the habitual offender sentencing enhancement. During the second phase of trial, Stickrod pleaded guilty to the Level 5 felony and to being an habitual offender.

[8] At sentencing, the court dismissed the habitual offender enhancement and imposed a sentence on the Level 6 felony, the Level 5 felony, and the Class C misdemeanor. The court further held the Level 6 felony would merge with the Level 5 felony. This appeal followed.

Discussion and Decision

I. Admission of Evidence

[9] Stickrod argues the trial court should have granted his motion to suppress. Once a case proceeds to trial, the question of whether the trial court erred in denying a motion to suppress is no longer viable. Baird v. State , 854 N.E.2d 398, 403 (Ind. Ct. App. 2006), trans. denied . Instead, we review whether the trial court erred in admitting the evidence at trial. Id.

[10] In general, rulings on the admissibility of evidence are reviewed for an abuse of discretion and reversed when admission is clearly against the logic and effect of the facts and circumstances. Thomas v. State , 81 N.E.3d 621, 624 (Ind. 2017). When a challenge to such a ruling is based on the constitutionality of the search or seizure of evidence, it raises a question of law that we review de novo. Id.

[11] Stickrod argues the officers' entry into his home violated his Fourth Amendment protection against unreasonable search and seizure. He does not present a claim under the Indiana Constitution. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The protections of the Fourth Amendment have been extended to the states through the Fourteenth Amendment. Ratliff v. State , 770 N.E.2d 807, 809 (Ind. 2002).

[12] In Payton v. New York , 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the United States Supreme Court addressed the circumstances under which an officer may enter a person's dwelling to make an arrest. The Court noted that searches and seizures without a warrant are presumptively unreasonable, and "absent exigent circumstances," officers may not enter a dwelling without a warrant. Id. at 590, 100 S.Ct. at 1382. By contrast, for purposes of the Fourth Amendment, "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Id. at 603, 100 S.Ct. at 1388. An Indiana statute provides that an officer who is serving an arrest warrant "may break open any outer or inner door or window in order to execute an arrest warrant, if the officer is not admitted following an announcement of the officer's authority and purpose." Ind. Code § 35-33-2-3 (2011).

[13] In Duran v. State , 930 N.E.2d 10 (Ind. 2010), officers attempted to execute a warrant to arrest Hernandez, but they mistakenly entered Duran's apartment rather than Hernandez's apartment. Once inside, they saw evidence of a drug dealing operation and arrested Duran. Duran claimed the officers' entry violated his Fourth Amendment rights. The Indiana Supreme Court determined that, pursuant to the holding in Payton , officers must have a reasonable belief that the dwelling is the residence of the subject of the warrant and that the subject is present at the time the officers attempt to enter on authority of an arrest warrant. The officers' belief that Hernandez was in Duran's apartment was unreasonable because their belief was based entirely on statements by an anonymous man outside the building who may not have had any connection to the building. The officers' entry violated Duran's Fourth Amendment protections.

[14] By contrast, in Carpenter v. State , 974 N.E.2d 569 (Ind. Ct. App. 2012), trans. denied , an officer arrived at Carpenter's house with an arrest warrant for Howard. Another officer had told the first officer that Howard lived at that address, but Howard had not lived there for several years. When the arresting officer and his colleagues approached Carpenter's house, there were cars in the driveway and lights were on. An officer looked in a window and saw Carpenter placing items in a toilet. Items used to manufacture methamphetamine were also visible. The officers obtained a search warrant and arrested Carpenter.

[15] Carpenter claimed the officers had no reason to approach his house because Howard was not present. A panel of this Court concluded the information the first officer received from another officer, plus the presence of cars in the driveway and lights on in the house, provided a reasonable belief that the house was Howard's residence and that he was home. The officers did not violate Carpenter's Fourth Amendment rights by approaching the house and looking in the window.

[16] In Stickrod's case, Officer Leroux and several other officers arrived at a house in Lafayette, Indiana on the evening of December 17, 2016. Stickrod's mother owned the house, but Officer Leroux knew Stickrod lived there because he had arrested Stickrod at that address a few weeks prior to the incident at issue. Officer Leroux was there to execute warrants that had been issued by a magistrate in two probation revocation cases. One case involved misdemeanor charges and the other involved a felony and several misdemeanors. Both warrants commanded officers to arrest Stickrod for failure to appear in court and to hold him without bond.

[17] A light was on in Stickrod's bedroom. Officer Leroux knew which bedroom Stickrod used because, during the last time he arrested Stickrod, Stickrod's mother had allowed Officer Leroux to enter the house and had shown him the room in which Stickrod slept. Officer Leroux knocked on the door repeatedly, but no one answered. He asked dispatch operators to call the home's number, and eventually Caliz answered the door. Caliz said that Stickrod was not home, but she had previously lied to Officer Leroux about Stickrod's whereabouts. As they talked, Officer Leroux heard a "thud" coming from the attached garage. Tr. Vol. 2, p. 147. During the prior arrest, Leroux had found Stickrod hiding in the attic of the house's garage.

[18] Caliz agreed to allow the officers to enter the house, but the officers hesitated because they did not believe her consent was valid. Officer Leroux called a prosecutor to ask for a search warrant, but the prosecutor advised that a warrant was unnecessary. Several officers entered the house and found Stickrod hiding in a gun safe in the garage. The officers discovered contraband on Stickrod's person during a search incident to arrest.

[19] We conclude the facts of this case more closely resemble the circumstances of Carpenter than the facts of Duran . Officer Leroux's visit to the house only a few weeks prior to the incident at issue provided ample reason to believe that Stickrod lived there. In addition, based on Officer Leroux's observations on the evening of December 17, 2016, he had ample reason to believe that Stickrod was present in that house on that night.

[20] Stickrod argues the officers lacked the authority to enter the house because the warrants were not true arrest warrants. He compares the warrants to the writ that was at issue in Casselman v. State , 472 N.E.2d 1310 (Ind. Ct. App. 1985). In that case, Casselman was a defendant in a civil lawsuit brought by a creditor. He twice failed to appear for court hearings, believing that he did not need to attend because he had filed for bankruptcy and an automatic stay was in effect. No one had informed the court in the civil case about the stay, and after Casselman twice failed to appear the court issued a writ of attachment, ordering the sheriff to take him into custody.

[21] An officer arrived at Casselman's house. Casselman answered the door, and the officer told him he had a body attachment "from the corporation" and that Casselman needed to come with him. Id. at 1312. The officer further stated Casselman could pay a "thousand dollars bond." Id. Casselman refused to go with the officer and retreated into his house. The officer followed Casselman into the house and took him into custody. Casselman was convicted of resisting law enforcement, and he appealed.

[22] A panel of this Court concluded the writ of attachment was "not a criminal arrest warrant" and the officer "could not claim the right to exercise the powers associated with the service of such a warrant." 472 N.E.2d at 1312. The Court further determined the officer "was not lawfully engaged in the execution of civil process when ... he prevented Casselman from closing the door to his home." Id. at 1314. Casselman had the right to close his door, and as a result he could not be convicted of resisting law enforcement.

[23] The holding in Casselman does not govern here. Casselman was a defendant in a civil suit, but Stickrod was on probation in two criminal cases when he failed to appear in court. The magistrate issued two "Bench Warrants" ordering the sheriff of Tippecanoe County to "arrest" Stickrod and hold him without bond pending the resolution of the criminal cases. Tr. Ex. Vol., State's Exhibits 11 and 12. By contrast, in Casselman's case the court issued a writ of attachment, and he had the option of paying a bond. The Bench Warrants in Stickrod's case were criminal arrest warrants. In addition, in Casselman the key issue was whether Casselman could resist the officer's entry into his home. By contrast, the offense of resisting law enforcement is not at issue in Stickrod's case. We conclude the officers' entry into Stickrod's house did not violate the Fourth Amendment, and the trial court did not err in admitting evidence the officers discovered on Stickrod's person after entering the house.

II. Right to Present a Defense

[24] Stickrod claims the trial court deprived him of his Sixth Amendment right to present a defense by barring Caliz from testifying. The State argues Stickrod has waived this claim for appellate review because: (1) he did not present the Sixth Amendment claim to the trial court; and (2) he did not present an offer of proof describing the substance of Caliz's testimony. After reviewing the record, we conclude Stickrod adequately informed the trial court that his right to present a defense was at issue, and he adequately described Caliz's proposed testimony. We reject the State's waiver claim and turn to the merits.

[25] The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

[26] The Sixth Amendment right to present witnesses in one's defense applies to the states through the Due Process Clause of the Fourteenth Amendment. Washington v. Texas , 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). "Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law." Id. at 19, 87 S.Ct. at 1923.

[27] The right to present witnesses in one's defense is not unlimited, but rather is subject to "reasonable restrictions" designed to accommodate other legitimate interests in the criminal trial process. U.S. v. Scheffer , 523 U.S. 303, 308, 118 S.Ct. 1261, 1264, 140 L.Ed.2d 413 (1998). As a result, "the accused, as is required of the State, must comply with established rules of procedure and evidence designed to ensure both fairness and reliability in the ascertainment of guilt and innocence." Chambers v. Mississippi , 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). A rule of procedure or evidence violates the Sixth Amendment when it infringes upon an accused's "weighty" interests and is disproportionate to the purposes that it is designed to serve. Holmes v. South Carolina , 547 U.S. 319, 324, 126 S.Ct. 1727, 1731, 164 L.Ed.2d 503 (2006) (quotation omitted).

[28] An accused "does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois , 484 U.S. 400, 410, 108 S.Ct. 646, 653, 98 L.Ed.2d. 798 (1988). "[T]here is no right whatever-constitutional or otherwise-for a defendant to use false evidence." Nix v. Whiteside , 475 U.S. 157, 173, 106 S.Ct. 988, 997, 89 L.Ed.2d 123 (1986).

[29] In the current case, after the State rested, the trial court and the parties held a conference outside the presence of the jury. Stickrod's attorney told the court:

Judge I know I approached before with the possibility of some ethical obligations. I just wanted to put that and make sure it was on the record and if Mr. Stickrod believes that it's an ineffective assistance kind of argument that at least it is on the record for appeal purposes or PCR purpose [sic] but I think my ethical obligations judge is [sic] that I cannot call Mr. Stickrod's girlfriend and I believe that and obviously as an officer of the court that I cannot support any kind of perjury or what I would feel possible falsehood judge so that would be my position just for the record in case there is an issue with ineffective judge.

Tr. Vol. 2, p. 154.

[30] Stickrod objected to his attorney's statement, claiming Caliz's testimony was "imperative for [his] defense" because she would testify that he had been asleep when the officers arrived and that he did not have anything on his person, such as contraband, at the time of his arrest. Id. at 156. Stickrod asked the court to discharge his counsel, accusing counsel of raising the ethical issue for the first time at trial. In response, Stickrod's attorney told the court, "I have explained this to him, I am not risking my law license or anything else on something that I think is unethical and I am not going to call her nor did I plan to call her ever when she came and first met with me." Id. at 159. The court denied Stickrod's request to fire his attorney and his request to present Caliz's testimony.

[31] We conclude that the trial court did not err in barring Caliz from testifying. Preventing the presentation of perjured testimony on the stand is a legitimate and substantial interest, and excluding Caliz's testimony was not disproportionate to that interest. See Makiel v. Butler , 782 F.3d 882, 910 (7th Cir. 2015) (no error in rejection of habeas corpus petition based on claim of unfair exclusion of witness's testimony; evidence indicated the testimony was false).

[32] Stickrod argues his attorney failed to explain why he thought Caliz would lie on the stand. The attorney's statement to the court that he believed Caliz would perjure herself on the stand was a sufficient basis upon which to exclude her testimony. Whether counsel was incorrect in his belief, or failed to render effective assistance, are matters for post-conviction proceedings.

III. Double Jeopardy

[33] Stickrod argues his convictions for possession of methamphetamine as Level 5 and Level 6 felonies violate his federal constitutional protection against double jeopardy, and that the court's merger of the counts at sentencing failed to correct the problem. We agree.

[34] A double jeopardy violation occurs when judgments of conviction are entered for the same criminal act and cannot be remedied by the "practical effect" of concurrent sentences or by merger after conviction has been entered. West v. State , 22 N.E.3d 872, 875 (Ind. Ct. App. 2014), trans. denied . A trial court's act of merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation. Id. The State agrees that "a separate but merged conviction for [a] lesser included offense cannot stand." Appellee's Br. p. 20.

[35] The jury determined Stickrod was guilty of possession of methamphetamine as a Level 6 felony, and the trial court entered a "judgment of conviction" on that count. Appellant's App. Vol. II, p. 77. Later, after Stickrod pleaded guilty to possession of methamphetamine as a Level 5 felony, the court entered another judgment of conviction. The court imposed sentences for both convictions of possession of methamphetamine but determined that the two counts would "merge." Id. at 10. The entry of judgments of convictions for both counts violated double jeopardy, and merely merging the two convictions at sentencing was insufficient to correct the violation. We reverse the conviction for possession of methamphetamine as a Level 6 felony and remand with instructions to vacate that conviction. The conviction for possession of methamphetamine as a Level 5 felony remains in effect.

Conclusion

[36] For the reasons stated above, we affirm the judgment of the trial court in part, reverse in part, and remand with instructions.

[37] Affirmed in part, reversed in part, and remanded.

Bradford, J., and Pyle, J., concur.

      Ind. Code § 35-48-4-6.1 (2014).

      Ind. Code § 35-48-4-8.3 (2015).

      Caliz's name is spelled several different ways in the record. We use the spelling set forth in the presentence investigation report.

      The trial court further stated while excluding Caliz's testimony that she had violated the court's order mandating separation of witnesses by remaining in the courtroom during the trial. We need not address this issue, but the record demonstrates that the court granted the State's motion to separate witnesses at the beginning of the trial. Tr. Vol. 2, p. 59. Further, Stickrod does not challenge the trial court's denial of his pro se request to discharge counsel.


source: Caselaw Access Project

author: Darden, Senior Judge.

license: Public Domain

text:
    D.M., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
    Court of Appeals Case No. 49A02-1711-JV-2708
    Court of Appeals of Indiana.
    FILED August 8, 2018
    Attorney for Appellant: Deborah Markisohn, Marion County Public Defender Agency, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General, Indianapolis, Indiana
    Statement of the Case
   Darden, Senior Judge.

[1] D.M. appeals the juvenile court's disposition of his case following a determination that he is a juvenile delinquent. We affirm.

Issue

[2] D.M. raises one issue, which we restate as: whether the juvenile court committed fundamental error by its failure to specifically ask D.M. whether he wanted to address the court to make a statement in allocution at the dispositional hearing.

Facts and Procedural History

[3] On October 19, 2017, the State submitted to the juvenile court a petition alleging that seventeen-year-old D.M. was a delinquent child for committing an act that, if committed by an adult, would have amounted to battery by bodily waste, a Level 6 felony. The State alleged that D.M. threw a cup of urine at an employee of the juvenile facility where he was being detained. The juvenile court found probable cause to support the State's petition and approved it for filing.

[4] Next, the parties executed an admission agreement, wherein, D.M. agreed to admit that he committed the act described by the State in the delinquency petition. The parties further agreed that final disposition of the matter would be left to the discretion of the juvenile court, with both sides free to present argument. The juvenile court accepted the admission agreement and determined that D.M. was a juvenile delinquent.

[5] The juvenile court then held a dispositional hearing on November 3, 2017. Both the State and the probation department recommended to the juvenile court that wardship of D.M. be granted to the Indiana Department of Correction (DOC). By contrast, D.M., through his attorney, asked that D.M. be released to probation as the least restrictive and most safe environment, and to remain with his family. D.M.'s attorney further submitted a proposed community supervision plan and argued for the juvenile court's approval.

[6] At that point, D.M.'s attorney stated, "I'll defer to any comments today your Honor for - that [D.M.] or his family may have." Tr. Vol. II, p. 7. The juvenile court specifically asked D.M.'s mother if she wanted to make a statement, and she declined. The juvenile court did not specifically ask D.M. if he wanted to make a statement. Rather, the juvenile court then announced its disposition, granting wardship of D.M. to the DOC for a period of time up to his twenty-first birthday, unless released earlier by the DOC. The juvenile court further stated that it would recommend that the DOC release D.M. after twelve months, thus showing some compassion, but the length of D.M.'s wardship would be left to the discretion of the DOC. This appeal followed.

Discussion and Decision

[7] D.M. argues that the juvenile court deprived him of his right to due process of law under the Fourteenth Amendment by failing to specifically ask him if he wanted to address the court prior to announcing its disposition of the case. D.M. concedes that he failed to raise this issue in the juvenile court and is entitled to reversal only if he demonstrates that the court's omission amounted to fundamental error. Reply Br. p. 4.

[8] Fundamental error is an " 'extremely narrow exception' " to the contemporaneous objection rule that allows a defendant to avoid waiver of an issue. Neville v. State , 976 N.E.2d 1252, 1258 (Ind. Ct. App. 2012) (quoting Cooper v. State , 854 N.E.2d 831, 835 (Ind. 2006) ), trans. denied . Fundamental error occurs when an error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the error deprives a party of fundamental due process. S.D. v. State , 937 N.E.2d 425, 429 (Ind. Ct. App. 2010), trans. denied . The fundamental error exception is available only in egregious circumstances. Id.

[9] In criminal cases involving adults, a defendant's right to offer a statement on his or her behalf before the trial court pronounces sentence is known as the right of allocution, which has been recognized in the common law since at least 1682. Vicory v. State , 802 N.E.2d 426, 428 (Ind. 2004). As a general rule, "[t]he standard for determining what due process requires in a particular juvenile proceeding is 'fundamental fairness.' " D.A. v. State , 967 N.E.2d 59, 64 (Ind. Ct. App. 2012) (quoting S.L.B. v. State , 434 N.E.2d 155, 156 (Ind. Ct. App. 1982) ). The General Assembly has specifically explained who must be allowed to speak at juvenile dispositional hearings, as follows:

(a) The prosecuting attorney or probation department of the juvenile court shall provide notice of the date, time, place, and purpose of the dispositional hearing under this chapter to each:
(1) party or person for whom a summons is required to be issued under IC 31-37-12-2 ; and
(2) foster parent or other caretaker with whom the child is placed for temporary care;
at the time the dispositional hearing is scheduled.
(b) The court shall:
(1) provide a person who is required to be notified under subsection (a) an opportunity to be heard; and
(2) allow a person described in subdivision (1) to make recommendations to the court;
at the dispositional hearing.

Ind. Code § 31-37-18-1.3 (2007). Indiana Code section 31-37-12-2 (2015) requires a juvenile court to issue summons to the child, the child's parent, guardian, custodian, or guardian ad litem, and "any other person necessary for the proceeding."

[10] We find it to be indisputable that the better practice in this case would have been for the juvenile court to have specifically asked D.M. if he wanted to make a statement before pronouncing disposition of the case. It would not have taken more than a few minutes and would have ensured that the court directly heard one of the most important perspectives-that of the juvenile. As has been stated in criminal cases, " 'The right of allocution is minimally invasive of the sentencing proceeding; the requirement of providing the defendant a few moments of court time is slight.' " Vicory , 802 N.E.2d at 429 (quoting United States v. Barnes , 948 F.2d 325, 331 (7th Cir. 1991) ). However, our analysis does not end here. We must look at the totality of the facts and circumstances in this case in determining whether the trial court denied D.M. fundamental fairness herein.

[11] After reviewing the arguments and recommendations of both parties, and taking into consideration the totality of the facts and circumstances herein, we cannot conclude that the juvenile court's failure to specifically ask D.M. if he wanted to make a statement prior to disposition amounted to fundamental unfairness requiring reversal.

During the dispositional hearing, it appears that D.M.'s attorney vigorously argued in favor of placing D.M. on probation and submitted a plan for the juvenile court's review. The plan provided, among other provisions, that D.M. would live with his mother, who would supervise him and agreed to report D.M. to a probation officer if he violated any terms of probation. It does not appear that D.M. was substantially harmed by not being given an opportunity to personally address the court at the hearing. See S.L.B. , 434 N.E.2d at 157 (juvenile court did not violate juvenile's due process rights by not asking if she had a statement; juvenile's attorney presented argument to the court).

[12] Further, D.M.'s juvenile record is extensive, and it is thus highly unlikely that allocution by D.M. would have persuaded the juvenile court to release him to probation or some other commitment less strict than the DOC. D.M.'s record began at age thirteen, when he was found to be a runaway. In 2014, D.M. was determined to be a juvenile delinquent for two acts of resisting law enforcement, both Class A misdemeanors, and criminal mischief, also a Class A misdemeanor. In 2015, he was adjudicated a juvenile delinquent for committing an act that, if committed by an adult, would have constituted Level 5 felony robbery. In the current case, he admitted to committing an act of battery by bodily waste while in juvenile detention. Further, while he was being detained for the current case, the State alleged D.M. committed another juvenile act, specifically battery resulting in injury to a public safety official. D.M.'s misconduct is ongoing and escalating in severity.

[13] In addition, juvenile courts had imposed less restrictive alternatives than the placement in DOC in the past, but D.M. persisted in his course of misconduct. He was placed on formal probation in 2014, but he failed to comply with the terms of probation and he was sent to an out-of-home placement. In 2015, D.M. was returned to the out-of-home placement at the conclusion of another juvenile case, but he violated the terms of his placement and was sent to the DOC for fourteen months. Upon his release, he fled from another placement and was sent to juvenile detention.

[14] Finally, D.M.'s proposed probation plan stated that he would live with his mother and be subject to her oversight, but she had previously told probation officers that D.M. had refused to comply with her curfews and had frequently left home without permission. Based on this record, the juvenile court had ample reason to conclude a placement less restrictive than the DOC would not succeed, and it is unlikely D.M. could have changed the court's mind via a personal statement at the dispositional hearing.

[15] We conclude that under the particular facts and circumstances of this case, the juvenile court's failure to specifically ask D.M. if he wanted to make a statement was not a blatant violation of basic principles, did not pose a potential of substantial harm, and did not deprive D.M. of fundamental due process. We thus decline to apply the doctrine of fundamental error and/or fundamental fairness in considering D.M.'s due process claim. On the other hand, we strongly encourage juvenile courts to take into consideration affording juvenile delinquents the opportunity to address the court before final disposition.

Conclusion

[16] For the reasons stated above, we affirm the judgment of the juvenile court.

[17] Affirmed.

Pyle, J., and Altice, J., concur.


author: Shepard, Senior Judge.

text:
    Jessica D. GRIMES, Appellant-Petitioner, v. Tia L. HOUSER, Appellee-Respondent.
    Court of Appeals Case No. 49A02-1711-MI-2695
    Court of Appeals of Indiana.
    FILED August 8, 2018
    Appellant Pro Se: Jessica D. Grimes, Indianapolis, Indiana
    Attorney for Appellee: Robert D. Haas, Blankenship & Haas, Indianapolis, Indiana
   Shepard, Senior Judge.

[1] While the mother and father of a child were engaged in ongoing litigation about visitation in the court where they had been divorced, the father's new wife filed a separate petition regarding visitation in a different court.

[2] The second court dismissed the new wife's petition on grounds that the original dissolution court had exclusive and continuing jurisdiction. It awarded attorney's fees to the child's mother.

[3] The trial court was right on both counts. We affirm.

[4] Tia and Aaron Grimes had a child, S.G. They divorced in 2011, via a decree issued by Marion Superior Court 1 in Cause Number 49D01-0810-DR-49581. The court awarded Tia, now Tia Houser, sole legal and physical custody of S.G. but granted Aaron parenting time.

[5] Aaron married Jessica Grimes ("Mrs. Grimes"), who became S.G.'s stepmother. Houser and Aaron disagreed about parenting time over the years, and their disagreements were submitted to Marion Superior Court 1. On July 28, 2017, Aaron moved to dismiss the case due to alleged inactivity. Houser objected, asserting that the parties had continuing disputes and that Aaron had failed to respond to discovery requests. The court denied Aaron's motion on August 14, 2017.

[6] On August 31st, Mrs. Grimes filed a petition for visitation in Marion Superior Court 2, claiming Houser had blocked her from seeing S.G. since April 2016. Houser filed a motion to dismiss and a request for attorney's fees, asserting Marion Superior Court 1 had exclusive, continuing jurisdiction over parenting time issues. On October 26, 2017, Marion Superior Court 2 granted Houser's motion without a hearing, dismissing the case and ordering Grimes to pay Houser $875 in attorney's fees.

[7] Grimes argues the court should not have dismissed her petition. The standard of review for dismissal pursuant to Trial Rule 12(B)(1) is a function of what occurred in the trial court. Bellows v. Bd. of Comm'rs of Cty. of Elkhart , 926 N.E.2d 96 (Ind. Ct. App. 2010). If the facts are disputed but the court rules on a paper record, the standard of review for dismissal due to lack of jurisdiction is de novo. Johnson v. Patriotic Fireworks, Inc. , 871 N.E.2d 989 (Ind. Ct. App. 2007).

[8] Indiana Code section 31-21-5-2 (2007) grants exclusive, continuing jurisdiction over child custody issues to the court that issued the original child custody determination. That statute was in play in State ex rel. Meade v. Marshall Super. Ct. II , 644 N.E.2d 87 (Ind. 1994), when a stepmother filed a petition seeking to bar a mother's visitation even though the father and mother's custody dispute was pending in a different court. The Indiana Supreme Court noted the interests of children require "stability and continuity" in the legal process, and efforts to avoid the usual procedures through collateral attack are prohibited. Id. at 89. The Supreme Court ordered the trial court to dismiss stepmother's petition due to lack of jurisdiction. See also Matter of Lemond , 274 Ind. 505, 413 N.E.2d 228 (1980) (holding trial judges and attorneys in contempt for attempting to circumvent a Court of Appeals decision in a custody dispute by pursuing a CHINS petition involving the child at issue in the custody dispute).

[9] Mrs. Grimes says she was not a party to Aaron and Houser's ongoing litigation in Marion Superior Court 1, but that issue has no more bearing on jurisdiction than it did in the Meade case. Superior Court 1 issued the dissolution decree addressing custody and parenting time and had continuing jurisdiction over parenting time issues. Superior Court 2 properly dismissed Grimes' petition for visitation.

[10] Next, Grimes argues Marion Superior Court 2 should not have awarded attorney's fees to Houser. We review the trial court's decision to award attorney's fees for an abuse of discretion. Goodrich Quality Theaters, Inc. v. Fostcorp Heating and Cooling, Inc. , 39 N.E.3d 660 (Ind. 2015).

[11] Indiana Code section 34-52-1-1 (1998) authorizes a trial court to award attorney's fees as part of the cost to the prevailing party if the court finds that either party:

(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless;
(2) continued to litigate the action or defense after the party's claim or defense clearly became frivolous, unreasonable, or groundless; or
(3) litigated the action in bad faith.

[12] We have previously stated:

A claim is "frivolous" if it is made primarily to harass or maliciously injure another; if counsel is unable to make a good faith and rational argument on the merits of the action; or if counsel is unable to support the action by a good faith and rational argument for extension, modification, or reversal of existing law. A claim is "unreasonable" if, based upon the totality of the circumstances, including the law and facts known at the time, no reasonable attorney would consider the claim justified or worthy of litigation. A claim is "groundless" if no facts exist which support the claim relied upon by the losing party.

[13] America's Directories, Inc. v. Stellhorn One Hour Photo, Inc. , 833 N.E.2d 1059, 1070-71 (Ind. Ct. App. 2005) (citations omitted), trans. denied .

[14] Mrs. Grimes filed her petition for visitation in Superior Court 2 shortly after Superior Court 1 denied Aaron's request to dismiss. Based on precedent establishing that Superior Court 1 had jurisdiction over parenting time, no reasonable attorney would have considered Grimes' petition to be justified or worthy of litigation in Superior Court 2.

[15] To the contrary, the petition appears to have been an attempt to circumvent Marion Superior Court 1 while imposing additional expenses on Houser. See Clary-Ghosh v. Ghosh , 26 N.E.3d 986 (Ind. Ct. App. 2015) (affirming award of attorney's fees to father; wife's contempt petition was frivolous and unnecessarily litigious), trans. denied . Marion Superior Court 2 properly awarded attorney's fees to Houser.

[16] For the reasons stated above, we affirm the judgment of the trial court.

[17] Affirmed.

Brown, J., and Pyle, J., concur.


author: Baker, Judge.

text:
    Jevon R. BATES-SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-307
    Court of Appeals of Indiana.
    FILED August 9, 2018
    Attorneys for Appellant: Ryan P. Dillon, Maritza K. Webb, Dillon Legal Group, P.C., Franklin, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
   Baker, Judge.

[1] Jevon Bates-Smith appeals his conviction for Level 2 Felony Dealing in a Narcotic Drug. Bates-Smith argues that the trial court erred by (1) admitting evidence stemming from a traffic stop that Bates-Smith contends was unconstitutional; and (2) admitting testimony in violation of the rule against hearsay evidence and the federal Confrontation Clause. Finding no error, we affirm.

Facts

[2] Indiana State Police Detective Joshua Allen works for the drug enforcement section and is assigned to covert operations in an undercover role investigating people who deal in cocaine, heroin, and methamphetamine. He has been involved in over 500 criminal investigations related to controlled substances. Detective Allen often employs confidential informants (CIs), who are usually low-level drug users whose cooperation leads to the arrest of higher level targets. He has used CIs over 100 times in his career.

[3] In the summer of 2015, Detective Allen began working with a CI. This CI has heroin-related cases in his criminal history, though he had not yet been convicted of any drug offense. At some point, the CI told Detective Allen that he had purchased heroin from a dealer for whom the CI had a phone number and a vague description, but no name.

[4] The CI worked with officers to contact the heroin dealer, making multiple phone calls and many contacts before finally succeeding. On September 28, 2015, after Detective Allen and the CI had been working together for a few months, police officers were able to contact the dealer using the phone number provided by the CI. They set up a meeting to purchase heroin in the amount of $800. Detective Allen contacted various troopers, sheriff's deputies, and police officers, telling them to be out of sight at the planned meeting location and to be prepared to arrest the dealer after the controlled buy occurred.

[5] The plan was for the controlled buy to take place near a Steak 'n Shake restaurant and Wal-Mart plaza in Martinsville. Based on the CI's description, law enforcement was looking for a blue four-door passenger vehicle holding a slender, tall, Black male. Detective Allen and the CI waited for the vehicle to arrive.

[6] Detective Allen saw a blue four-door vehicle arrive and park in a lot near the restaurant. The detective and CI drove past the vehicle, which held two Black males. As they drove by, the CI's cell phone rang; Detective Allen noticed that the driver of the vehicle, later identified as Bates-Smith, was on his cell phone. The incoming call to the CI was from the same number officers had contacted to arrange the controlled buy. The CI identified Bates-Smith as the dealer. Evidently, Bates-Smith was contacting the CI to cancel the deal. Appellee's Br. p. 23.

[7] Bates-Smith began to drive his vehicle out of the parking lot. Detective Allen contacted the other law enforcement officials who were waiting nearby with instructions to stop the vehicle; Detective Allen drove the CI to a gas station and let him get out of the car so that he would not be identified by Bates-Smith or his passenger.

[8] As Bates-Smith was driving his vehicle, law enforcement officials followed it and turned on their lights and sirens. Bates-Smith continued to drive through the parking lot, with the officials in pursuit. As officials had blocked the parking lot exits, Bates-Smith eventually ran out of room and had to stop. His passenger, later identified as Jeremiah Moore, jumped out of the car while it was still moving. Moore tried to run away but was apprehended by law enforcement officials. He was instructed to get down onto the pavement in a spread-eagle position. He complied, and then repeatedly attempted to shove something into his mouth but was unable to swallow it. It was later determined that the object was a golf-ball-sized baggy containing heroin.

[9] At the same time, other officials were focused on Bates-Smith, who was still in the vehicle. He eventually agreed to exit the vehicle. A later search of the vehicle revealed a loaded pistol, five cell phones, scales, and multiple bags containing a total of approximately 25.06 grams of heroin.

[10] On September 30, 2015, the State charged Bates-Smith with Level 2 felony dealing in a narcotic drug, Level 3 felony possession of a narcotic drug, Level 3 felony dealing in a narcotic drug, and Level 6 felony maintaining a common nuisance. On April 13, 2016, Bates-Smith filed a motion to suppress the evidence, arguing that the police had lacked reasonable suspicion to conduct the traffic stop. Following an August 25, 2017, hearing, the trial court denied the motion to suppress. Bates-Smith's jury trial took place on November 7 and 8, 2017, and the jury found him guilty as charged. The trial court merged all the offenses into the Level 2 felony conviction and sentenced Bates-Smith to twelve years imprisonment. Bates-Smith now appeals.

Discussion and Decision

I. Traffic Stop

[11] Bates-Smith first argues that the trial court erred by admitting the evidence obtained as a result of the traffic stop, which he argues was unconstitutional. The admission of evidence is within the discretion of the trial court, and we will reverse only if the decision is clearly against the logic and effect of the facts and circumstances before the court. Wilson v. State , 765 N.E.2d 1265, 1272 (Ind. 2002).

[12] Both the United States and Indiana Constitutions prohibit unreasonable searches and seizures by the government, including brief investigatory stops of persons or vehicles. Clarke v. State , 868 N.E.2d 1114, 1117 (Ind. 2007). In this case, the stop was not based on a warrant, so the burden was on the State to show that there was an exception to the general requirement of a warrant. Coleman v. State , 847 N.E.2d 259, 262 (Ind. Ct. App. 2006).

[13] The exception at issue in this case was set forth by the United States Supreme Court in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Terry Court held that law enforcement officials may briefly detain a person for investigatory purposes with only a reasonable suspicion that criminal activity is occurring. Moultry v. State , 808 N.E.2d 168, 170-71 (Ind. Ct. App. 2004). The determination of reasonable suspicion is based on whether the officer had a particularized and objective basis for suspecting legal wrongdoing in light of the totality of the circumstances. Id. at 171.

[14] Under certain circumstances, a CI's tip may provide the basis of a Terry stop. Coleman , 847 N.E.2d at 262. In Parker v. State , this Court considered when such a tip provides sufficient indicia of reliability to justify an investigatory stop. 662 N.E.2d 994, 996-98 (Ind. Ct. App. 1996). The Parker Court found the CI's tip in that case to be sufficient because "the officers relied on the tip of a known informant who provided the information over the phone and in person, gave specific verifiable details, accurately predicted [the defendant's] future actions, and had provided information in the past that led to other narcotics convictions." Id. at 997. The Parker Court also emphasized that the reliability of a CI's tip need not rise to the level needed to justify an arrest or search warrant. Id. at 996.

[15] Bates-Smith directs our attention to Coleman v. State in support of his contention that the stop in this case was unconstitutional. In Coleman , a new CI who was unknown to police contacted a sergeant and told him that he had previously bought cocaine at the mall from a man named "J.C." 847 N.E.2d at 261. The CI then called J.C. and arranged to meet him at the mall later that day to buy crack cocaine. Police transported the CI to the buy in an unmarked police vehicle. From inside the vehicle, the CI identified a man waiting outside of a department store as J.C.; it was eventually determined that "J.C." was Coleman. After the CI identified the man, a uniformed officer stopped Coleman and asked if he was J.C. Coleman replied affirmatively, and the officer asked Coleman if he could conduct a pat-down search of his person. Coleman agreed, and the officer found a digital scale, illegal drug residue, and parts of plastic baggies. Coleman was arrested and a subsequent search of his vehicle revealed cocaine. Id.

[16] On appeal, this Court considered whether the CI's tip had sufficient indicia of reliability to justify the stop. We found that it did not:

Here, our review of the record indicates that in stopping Coleman, the police officers relied on the C.I.'s initial tip, his subsequent telephone conversation with "J.C." arranging the meeting, and then finally his identification of Coleman as "J.C." at the pre-determined meeting place. The record further reveals that the C.I. was not a well-known informant, but rather had only given the police one reliable tip in the past, on the very same day that he provided the tip about Coleman. Also, the record discloses that the officers were only able to hear the C.I.'s side of the telephone conversation in arranging the meeting with "J.C."; thus, the police officers relied entirely on the C.I.'s statement that "J.C." would be waiting at the mall and would have cocaine with him. While the C.I. did give a general description of "J.C." as a 5'10? African American male, approximately thirty (30) years old, the record fails to show that the C.I. gave any specific description of "J.C." prior to identifying him.
We find that this set of facts presents us with a close case. However, under the totality of the circumstances, we ultimately conclude that the officers here lacked the requisite reasonable suspicion to stop Coleman.... [T]he officers here relied on a new informant who gave a tip consisting of little detail. The record shows that the C.I. had no history of drug-related crimes, and in fact was in custody on his first offense of any sort. In ... our review of the record, we also find that the officers did not independently investigate the tip on Coleman prior to stopping him. Although C.I.'s telephone conversation with "J.C." was corroborated by "J.C.'s" presence at the mall, the officers had a limited history with C.I., and little guarantee that he was telling the truth. Thus, the police officers could not corroborate that the man waiting in front of the department store was in fact "J.C." until after they stopped him. Also, Officer Long testified at the hearing on the Motion to Suppress that he did not observe Coleman committing a crime, or even acting suspiciously, before he stopped him....
In addition, we have concerns as to the hastiness of the police work in Coleman's case. From the record, it is apparent that the Greenwood Police Department conducted several pre-arranged drug buys and made numerous drug-related arrests the day Coleman was arrested. And while the record is void as to the amount of investigating that preceded the other arrests that day, the record here indicates that the police officers met with the C.I., set up the meeting between the C.I. and Coleman, and arrested Coleman all in one day....

847 N.E.2d at 263-64. We ultimately reversed the trial court's order denying Coleman's motion to suppress.

[17] Bates-Smith argues that this case is similar to Coleman and, consequently, his conviction should be reversed. Although there are some similarities, we disagree that Coleman compels a reversal. In this case, the CI was known to Detective Allen because the detective had worked on criminal cases in which the CI was a suspect. Indeed, the CI was assisting the police because he was trying to strike a bargain for leniency on another criminal case. And although there was not a years-long relationship between police and the CI, Detective Allen testified that he had worked with the CI for a few months before the incident involving Bates-Smith.

[18] With respect to Bates-Smith, officers and the CI had attempted to arrange the deal by multiple phone calls before finally succeeding. In other words, the call that set up the deal for September 28, 2015, was the culmination of a number of efforts to arrange the deal; it was the final call in a series of contacts between this CI and Bates-Smith. Unlike Coleman , this was not a same-day, hastily arranged buy. Additionally, facts provided by the CI that were immediately verifiable at the scene-before the stop-include the location of the deal, the time of the deal, a physical description of Bates-Smith, the phone number of Bates-Smith, a description of Bates-Smith's vehicle, and on-site identification of the dealer as Bates-Smith. Additionally, Detective Allen observed Bates-Smith on his phone at the same time the dealer was talking with the CI, and Bates-Smith drove his vehicle off the lot after the dealer told the CI he was cancelling the deal.

[19] When examining the totality of the circumstances surrounding the controlled buy, we find that the CI's information regarding Bates-Smith had sufficient indicia of reliability to provide the officers with a particularized and objective basis for suspecting legal wrongdoing. In other words, the State met its burden of showing that a Terry stop was proper in this case. Therefore, the trial court did not err by admitting the evidence stemming from that stop.

II. Detective Allen's Testimony

[20] Bates-Smith also argues that the trial court erred by permitting Detective Allen to testify because his testimony relied in part on information he learned from the CI. As such, Bates-Smith contends that the testimony was impermissible hearsay that, in addition to violating the rules of evidence, violated his rights under the Confrontation Clause of the United States Constitution.

[21] We must first determine whether the testimony constituted inadmissible hearsay. Hearsay is a statement, other than one made by the declarant while testifying at trial, offered into evidence to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). In some circumstances, conduct itself can constitute hearsay when it indicates an implied assertion by the declarant. Watt v. State , 412 N.E.2d 90, 96 (Ind. Ct. App. 1980).

[22] Bates-Smith directs our attention to the following testimony, which he argues is inadmissible hearsay:

During the jury trial, Detective Allen testified that he "visually observed the CI dial a phone number" to arrange the purchase of heroin, (Tr. Vol. 3, p. 51), he then drove the informant to the place in which the CI had arranged for the purchase, outside the Steak N Shake in Martinsville, (Tr. Vol. 3, p. 53). Detective Allen then testified that he and the CI waited for a "blue four door passenger vehicle containing a tall, slender, black male with tattoos on his arms." (Tr. Vol. 3, p. 55).

Appellant's Br. p. 19. According to Bates-Smith, this testimony is rooted in the inadmissible hearsay statements of the CI, who did not testify at trial.

[23] We disagree. Assuming for argument's sake that the verbal and non-verbal statements made by the CI amounted to statements underlying Detective Allen's testimony, the statements are not hearsay because they were not offered for the truth of the matter asserted. Instead, they were offered to explain the course of the investigation and to show the reason the officers stopped Bates-Smith's vehicle. See Johnston v. State , 530 N.E.2d 1179, 1181 (Ind. 1988) (holding that testimony that would otherwise be hearsay is admissible when it is offered to explain the course of police investigation rather than for the truth of the matter asserted).

[24] In some cases, it has been held that a detective's testimony about statements made by a CI was, indeed, offered for the truth of the matter asserted. See Mason v. State , 689 N.E.2d 1233, 1235 (Ind. 1997) (detective's testimony inadmissible because testimony was presented for the truth of assertion that defendant was dealing drugs and was not limited to explaining what prompted police investigation). We find that this is not such a case. Detective Allen's testimony that was based on information gained from the CI was offered solely to explain the course of the investigation. The State proved its charges against Bates-Smith based on what happened after the stop; Detective Allen merely offered the prologue to the story. Therefore, the trial court did not err by admitting this testimony.

[25] Because the statements complained of by Bates-Smith were not hearsay, their admission did not violate his rights under the federal Confrontation Clause. See, e.g. , Vaughn v. State , 13 N.E.3d 873, 879 (Ind. Ct. App. 2014) (observing that "if a statement is either nontestimonial or nonhearsay, the federal Confrontation Clause will not bar its admissibility at trial"). Therefore, this argument is unavailing.

[26] The judgment of the trial court is affirmed.

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

      Ind. Code § 35-48-4-1.

      Detective Allen later testified that in his experience, he has learned that a normal dose of heroin is one tenth of one gram. Tr. Vol. III p. 121.

      Although Bates-Smith initially names both constitutions, his analysis focuses solely on the United States Constitution. Therefore, we will not conduct a separate analysis under the Indiana Constitution. We note, however, that even if we did so, the result would not change.

      To the extent the State attempts to rely on things that occurred after officers attempted to stop Bates-Smith, we note that using those events would constitute an impermissible argument amounting to "the ends justify the means." The facts that Bates-Smith fled from police officers, that his passenger jumped out of a moving vehicle, or that his passenger attempted to swallow a bag of heroin, cannot possibly answer the question of whether the stop was proper to begin with. To answer that question, we must examine what the officers knew before the stop occurred.


author: Robb, Judge.

text:
    William R. HARR and Finster Courier, Inc. d/b/a Elite Express, Appellants-Defendants/Cross-Appellees, v. Julian HAYES and Tracey Hayes, Appellees-Plaintiffs/Cross-Appellants.
    Court of Appeals Case No. 49A02-1711-CT-2595
    Court of Appeals of Indiana.
    Filed August 15, 2018
    Attorneys for Appellants: Larry L. Barnard, Grant A. Liston, Carson LLP, Fort Wayne, Indiana
    Attorneys for Appellees: Nathaniel Lee, Jennifer Lee, Lee Cossell & Crowley LLP, Indianapolis, Indiana
    OPINION ON REHEARING
   Robb, Judge.

[1] In Harr v. Hayes , 106 N.E.3d 515, 2018 WL 3234184 (Ind. Ct. App. 2018), we held, in part, that where William R. Harr and Harr's employer, Finster Courier, Inc., d/b/a/ Elite Express (collectively, "Defendants"), failed to establish diversity jurisdiction in a removal action, under the specific facts presented, the doctrines of judicial estoppel, waiver, and/or judicial admission were inapplicable to limit a subsequent judgment in state court. Accordingly, we affirmed the trial court's denial of the Defendants' motion to correct error seeking modification of the judgment. The opinion included a footnote noting our dismay at the Defendants' omission of a crucial page of the district court's order remanding the case to state court submitted as Exhibit C to their motion to limit entry of judgment. Defendants have filed a petition for rehearing, contending we failed to acknowledge that the Defendants had corrected their "inadvertent omission of one page of the District Court's Order filed in connection with its Motion to Limit Judgment to $75,000.00." Petition for Rehearing at 4. We grant rehearing for the limited purpose of correcting this error.

[2] The opinion included the following footnote:

In Defendants' motion to limit judgment to $75,000, Defendants state that "A true and exact copy of the [district] Court's Order is attached hereto and marked as Exhibit 'C.' " Appellants' Corrected App., Vol. II at 47. Exhibit C, however, contained only pages 1-4 and 6 of the district court's order, omitting page 5 with the discussion regarding the Defendants' failure to meet their burden of proof. Id. at 54-58. The exhibit therefore misrepresented to the trial court the reasoning of the district court's order by incorrectly suggesting that the case was remanded because of Hayes' statement of the amount in controversy, not the Defendants' failure to meet their burden. We note also that Hayes brought this omission to the Defendants' attention in an email prior to filing his response, id. at 72, and yet the Defendants did not amend their motion to include the order in its entirety.
We are deeply troubled by the Defendants' all too convenient omission and we remind counsel of Indiana Professional Conduct Rule 3.3(a)(3) requiring candor to the tribunal and precluding a lawyer from knowingly providing evidence the lawyer knows to be false. "[T]he accuracy of documents and instruments utilized by a tribunal in a proceeding is of the utmost importance to the administration of justice and ... fraudulent alteration of such documents by an officer of the court is therefore severe misconduct." Matter of Fisher , 684 N.E.2d 197, 200 (Ind. 1997).

Harr , 106 N.E.3d at 524 n.3.

[3] The chronological case summary notes that on July 31, 2017, four days after filing the Motion to Limit Judgment and three days after receiving an email regarding the omission, Defendants filed an "Amended Exhibit "C" to Motion to Limit Entry of Judgment to $75,000.00." Appellant's Corrected Appendix, Volume II at 10. Although the Defendants included the "Amended Exhibit "C" to Motion to Limit Entry of Judgment to $75,000.00" in their Appellants' Corrected Appendix Volume II at pages 75-80, it was not labeled as an amended exhibit, and it was not identified in the table of contents as a separate filing. In fact, the Defendants' table of contents labels pages 63-80 as "[Hayes'] Motion to Strike Pleadings." Appellants' Corrected Appendix, Volume I at 2. Accordingly, we were unaware of the document's significance in relation to the Defendants' earlier filing, as it appeared the order in its entirety had been supplied by Hayes in his responsive pleading.

[4] Accordingly, we grant rehearing solely to acknowledge that Defendants filed an amended exhibit in the trial court to reflect the district court's order in its entirety. To the extent our opinion reflects otherwise, it is to be disregarded. We reaffirm our earlier opinion in all other respects.

Najam, J., and Altice, J., concur.


author: Bradford, Judge.

text:
    Denny HENDERSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-574
    Court of Appeals of Indiana.
    FILED August 17, 2018
    Attorney for Appellant: Benjamin D. Waite, Deppe Law Center, Hobart, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
   Bradford, Judge.

Case Summary

[1] On the morning of January 11, 2017, Denny Henderson was involved in an automobile accident outside the Porter police station when the truck he was driving collided with other vehicles parked in front of the station. He was subsequently charged with and found guilty of Class A misdemeanor driving while intoxicated, endangering a person. Henderson appeals his conviction, arguing that the trial court abused its discretion in admitting certain evidence, excluding certain evidence, and instructing the jury. Concluding otherwise, we affirm.

Facts and Procedural History

[2] On January 10, 2017, Henderson went to a party at Mike Pouche's home in Porter. Charlie Fernandez, Henderson's step-son, was at the party with Henderson. At some point, Fernandez fell asleep. He was awakened during the early morning hours of January 11, 2017, when he heard Henderson "yelling for help[, y]elling for someone to call the police." Tr. Vol. III, p. 133. Fernandez and Henderson left Pouche's home and went to a nearby police station.

[3] Once at the station, Fernandez locked the driver's side door of Henderson's truck, propped his coat underneath Henderson's head, and exited the passenger side of the truck. Fernandez entered the station and spoke with dispatcher Danielle Scott. Fernandez informed Scott that he needed help because Henderson was in the truck, bleeding and hurt. Porter Police Corporal Jason Casbon was the first to respond. Chesterton Police Sergeant Daniel Rocha also responded.

[4] Upon arriving at the station, Corporal Casbon spoke with Fernandez. After determining that he was ok, Corporal Casbon turned his attention toward the area where Henderson's truck was parked. He noticed Scott's Honda Civic, a Kia belonging to another dispatcher, and Henderson's truck. The truck's front bumper was "resting up against the back pumper of the Honda Civic." Tr. Vol. III, p. 23.

[5] As he approached the truck, Corporal Casbon observed that Henderson, the only person in the truck, was sitting in the driver's seat, leaning over into the passenger side of the cabin. Henderson appeared to be injured. Corporal Casbon also discovered that the truck was still running and that the driver's side door was locked. As he turned to walk back to his squad car to get a "lock-out tool" to unlock the driver's side door, Corporal Casbon heard the truck's "engine start to rev." Tr. Vol. III, p. 26. The truck slowly started to push the Honda Civic. It accelerated, hit Corporal Casbon's nearby squad car, and pushed the Honda Civic into the Kia. Corporal Casbon and Sergeant Rocha were eventually able to turn the truck off and remove Henderson from the vehicle.

[6] Sergeant Rocha observed that Henderson appeared confused, hurt, and agitated. His face was covered with blood and he expressed concern for Fernandez. Corporal Casbon noticed the strong odor of alcohol on Henderson's breath and clothing. His eyes were watery and his speech was slurred. Based on his training and experience, Corporal Casbon concluded that Henderson's behavior was consistent with that of a person who was under the influence. Henderson was eventually transported to the hospital where he was treated for his injuries. Each of the medical personnel that encountered Henderson that night concluded that he was intoxicated.

[7] Approximately five days later, Henderson called the police station and requested to speak with Corporal Casbon. During their conversation, Henderson "was apologetic for what happened and his behavior that night." Tr. Vol. III, p. 47. He explained "why he wouldn't let [Fernandez] drive and he said [it was] because [Fernandez] was slow." Tr. Vol. III, p. 47. Henderson admitted to driving the truck on the night in question, offered to pay for the damage to the vehicles, and thanked Corporal Casbon "for saving his life." Tr. Vol. III, p. 48.

[8] On March 7, 2017, the State charged Henderson under Cause Number 64D04-1703-CM-2189 with Count I - Class A misdemeanor operating a vehicle while intoxicated, endangering a person; Count II - Class C misdemeanor operating a vehicle with an alcohol concentration equivalent to at least .08 but less than .15; Count III - Class C misdemeanor operating a vehicle while intoxicated; and Count IV - Class A misdemeanor resisting law enforcement. On November 28, 2017, the State added nine additional counts, including a Level 6 felony count, and the matters were consolidated under Cause Number 64D04-1711-F6-11030. Henderson sought to dismiss the additional charges, and, on November 30, 2018, the trial court dismissed each of the nine additional charges as well as the original Count II. Following a two-day jury trial, Henderson was found guilty of Counts I and III and not guilty of Count IV. The trial court merged Count III into Count I and sentenced Henderson to a 365-day term with all but four days suspended to probation.

Discussion and Decision

I. Evidentiary Issues

A. Standard of Review

[9] "The admission or exclusion of evidence is a matter left to the sound discretion of the trial court, and a reviewing court will reverse only upon an abuse of that discretion." Lieberenz v. State , 717 N.E.2d 1242, 1245 (Ind. Ct. App. 1999), trans. denied . "An abuse of discretion occurs when a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court." Anderson v. State , 961 N.E.2d 19, 26 (Ind. Ct. App. 2012). "In determining the admissibility of evidence, the reviewing court will only consider the evidence in favor of the trial court's ruling and unrefuted evidence in the defendant's favor." Sallee v. State , 777 N.E.2d 1204, 1210 (Ind. Ct. App. 2002). We will not reverse the trial court's decision to admit or exclude evidence if that decision is sustainable on any ground. Crawford v. State , 770 N.E.2d 775, 780 (Ind. 2002).

B. Inclusion of Fernandez's Statement to Corporal Casbon

[10] During trial, Henderson objected to Corporal Casbon's testimony that "in the course of [his] investigation Charlie Fernandez told me that his father would not allow him to drive, he drove." Tr. Vol. III, p. 29. In making his objection, Henderson argued that the statement was hearsay. The trial court overruled Henderson's objection and allowed the statement into evidence.

[11] Henderson contends that the trial court abused its discretion in admitting this statement. "Admission of hearsay evidence is not grounds for reversal where it is merely cumulative of other evidence admitted." McClain v. State , 675 N.E.2d 329, 331-32 (Ind. 1996). Moreover, "[e]rrors in the admission of evidence are to be disregarded as harmless unless they affect the substantial rights of the party." Leonard v. State , 86 N.E.3d 406, 413 (Ind. Ct. App. 2017) (internal quotation omitted).

[12] Review of the record reveals that the challenged evidence was merely cumulative of other evidence in the record. First, and most importantly, the challenged testimony is cumulative of Henderson's admission that he was driving the truck on the night in question. The testimony is also cumulative of Corporal Casbon's and Sergeant Rocha's testimony that Henderson was sitting in the driver's seat when the truck's engine revved and the truck struck the other vehicles. We need not decide whether the challenged statement was hearsay or was improperly admitted because the testimony was merely cumulative of other evidence in the record. As such, any error in admitting the testimony was harmless. See McClain , 675 N.E.2d at 332 (providing that the evidence at issue was cumulative of other evidence, admission of the evidence was harmless and reversal was not required).

C. Exclusion of Evidence Relating to Events that Occurred at Pouche's Home

[13] Henderson also argues that the trial court abused its discretion by excluding evidence relating to how he sustained his injuries. It is undisputed that Henderson did not make an offer of proof in relation to the challenged evidence.

The purpose of an offer of proof is to convey the point of the witness's testimony and provide the trial judge the opportunity to reconsider the evidentiary ruling. Equally important, it preserves the issue for review by the appellate court. To accomplish these two purposes, an offer of proof must be sufficiently specific to allow the trial court to determine whether the evidence is admissible and to allow an appellate court to review the correctness of the trial court's ruling and whether any error was prejudicial.

State v. Wilson , 836 N.E.2d 407, 409 (Ind. 2005) (internal citations omitted). Henderson acknowledges that "[g]enerally speaking, an appealable error may not be predicated upon a ruling which excludes evidence unless the substance of the evidence was made known to the Court by a proper offer of proof or was apparent from the context within which the questions were asked." Appellant's Br. p. 15. However, Henderson asserts that his failure to make an offer of proof should be excused because both the parties and the trial court were generally aware of Henderson's claim that the injuries sustained during a fight that occurred at Pouche's home negatively impacted his mental state and ability to drive. In support, Henderson cites to the Indiana Supreme Court's decision in Baker v. State , 750 N.E.2d 781 (Ind. 2001).

[14] In Baker , the Indiana Supreme Court reiterated that after a trial court has ruled on the admissibility of the evidence in question, in order to preserve a claim of error, the proponent of the evidence must make the substance of the evidence known to the trial court by a proper offer of proof, unless the substance was apparent from the context in which the questions were asked. 750 N.E.2d at 785. The offer of proof should "reduce uncertainty as to the nature of the excluded evidence to a tolerable and acceptable level" and, by doing so, "improve the reliability of the appellate court's guesses and estimates concerning the probability that the trial court's error was either prejudicial or harmless." Id. at 786 (internal quotation omitted). The Indiana Supreme Court noted that failure to make an offer of proof "forfeits appellate review even when the trial court earlier granted a motion in limine." Id. However, it further noted that "there is such a thing as being too rigid about format." Id. The Indiana Supreme Court concluded that the record clearly showed that the trial court was aware of the evidence at issue and "at least implicitly re-affirmed [its] decision to exclude it. Given the clear-cut nature of the proposed testimony (he asserts a sexual relationship; she denies it), we find the issue sufficiently preserved for appeal." Id. at 787.

[15] The facts of this case can be distinguished from those in Baker . With regard to evidence relating to that fight, the trial court issued the following pre-trial ruling:

The Defense witnesses will limit their testimony to the injuries they observed on the Defendant prior to his driving to the police station, and may not testify as to the specifics of the fight or stabbing in which he was injured, the causes for the fight or stabbing, the perpetrators of the battery to him, or the like. The Defendant or defense witnesses may testify that Defendant was held down or bound against his will when he was battered, as that matter goes to his resistance to police and his theory of defense.

Appellant's App. p. 44. The trial court's ruling makes it clear that evidence generally explaining how Henderson sustained his injuries prior to arriving at the police station would be admitted while evidence relating to the specific nature and cause of the fight would be excluded. The crux of Henderson's defense seems to be that he was injured to the point that he was unable to operate his truck. The evidence permitted by the trial court, i.e. , that he was allegedly held down or bound and battered prior to arriving at the station, is relevant to this defense. The excluded evidence, i.e. , why the fight occurred or a detailed account of the fight itself, is not.

[16] Further, Henderson does not indicate what evidence he sought to admit beyond that deemed admissible by the trial court. The lack of information relating to what additional evidence Henderson sought to present leaves no way for either the trial court or this court to determine whether the exclusion of said evidence was prejudicial or harmless. Given that the substance of the proposed evidence was not clear, we conclude that by failing to make an offer of proof, Henderson has forfeited appellate review of this claim. See Baker , 750 N.E.2d at 786.

[17] Henderson alternatively claims that he is entitled to relief under the doctrine of fundamental error. "The fundamental error exception is extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Delarosa v. State , 938 N.E.2d 690, 694 (Ind. 2010) (internal quotation omitted). "To qualify as fundamental error, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible." Benson v. State , 762 N.E.2d 748, 755 (Ind. 2002) (internal quotation omitted).

[18] In claiming fundamental error, Henderson asserts that a "well-informed trial court prohibited the jury from learning relevant evidence about how and why Henderson arrived to the Porter [p]olice station or that he lacked the ability to cause the secondary collision due to the extent of his injuries." Appellant's Br. pp. 23-24. We disagree. The trial court allowed Henderson to present testimony relating to how he sustained the injures, the extent of his injuries, and that he went to the police station seeking assistance and treatment for his injuries. The jury heard evidence that Henderson was battered and suffered injuries to his head. It also heard Henderson's argument that his injuries left him unable to operate his truck. The fact that the jury did not hear specific details about how Henderson sustained the injuries beyond that he had been beaten in a fight did not constitute a blatant violation of due process or render a fair trial impossible.

II. Jury Instructions

[19] Henderson also contends that the trial court abused its discretion in instructing the jury.

The purpose of a jury instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. We review a trial court's instructions to the jury for an abuse of discretion. An abuse of discretion arises when the instruction is erroneous and the instructions taken as a whole misstate the law or otherwise mislead the jury. When evaluating the jury instructions on appeal this Court looks to whether the tendered instructions correctly state the law, whether there is evidence in the record to support giving the instruction, and whether the substance of the proffered instruction is covered by other instructions.

Isom v. State , 31 N.E.3d 469, 484-85 (Ind. 2015) (internal citations and quotations omitted).

[20] Henderson challenges one of the instructions relating to his conviction for Class A misdemeanor operating a vehicle while intoxicated, endangering a person. Indiana Code section 9-30-5-2 defines this offense as follows:

(a) Except as provided in subsection (b), a person who operates a vehicle while intoxicated commits a Class C misdemeanor.
(b) An offense described in subsection (a) is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person.

In Johnson v. State , 518 N.E.2d 1127, 1128 (Ind. Ct. App. 1988), we noted that in normal usage, the term operate means "to perform a function, or operation, or produce an effect." (Internal quotation omitted). Thus, "the word 'operate' requires effort, the doing of something by the operator," id. , and "[t]here must be some direct or circumstantial evidence to show that [the] defendant operated the vehicle." Hiegel v. State , 538 N.E.2d 265, 268 (Ind. Ct. App. 1989). In considering what one must do to "operate" a vehicle, we have found that merely starting the engine of the vehicle is insufficient to prove operation. Id. However, "the State does not have to prove movement of the car." Johnson , 518 N.E.2d at 1128. Operating may occur on public or private property. Id.

[21] Henderson challenges the trial court's jury instruction regarding operation, which reads as follows:

"Operate" means to navigate or otherwise be in actual physical control of a vehicle, motorboat, off-road vehicle, or snowmobile.
Several factors may be examined to determine whether a Defendant has "operated" a vehicle:
1. the location of the vehicle when it is discovered;
2. whether the car was moving when discovered;
3. any additional evidence indicating that the Defendant was observed operating the vehicle before he was discovered; and
4. the position of the automatic transmission.
In addition to these four factors, any evidence that leads to a reasonable inference should be considered.

Appellant's App. p. 64. While Henderson acknowledges that this instruction incorporates the previously-approved factors relating to operation, see Hampton v. State , 681 N.E.2d 250 (Ind. Ct. App. 1997), he argues that the instruction presents an incomplete statement of the law because it fails to inform the jury that he was required to expend some effort to operate his truck. Henderson, therefore, asserts that the trial court abused its discretion by failing to include in its instruction that the State was required to show that he expended effort to operate the truck.

[22] While Henderson correctly argues that we have previously concluded that there must be some evidence that a defendant expended effort to operate a vehicle, he has pointed to no authority indicating that a trial court is required to instruct the jury to this fact. Rather, our review of the relevant caselaw suggests that a defendant's effort is commonly inferred from the facts and circumstances of each individual case. This seems appropriate given that effort merely amounts to "the doing of something" by the defendant. See Johnson , 518 N.E.2d at 1128.

[23] Further, three of the four previously-approved factors relating to operation inherently include some form of effort by the defendant. For instance, if a vehicle is moving or if an individual is observed driving the vehicle, one may reasonably infer that some effort was expended by the driver. Likewise, if a vehicle's transmission is found to be in gear, as opposed to in park, one may reasonably infer that some effort was expended by the driver.

[24] In this case, Henderson was observed sitting in the driver's side of the seat with the truck running. Although he was observed to be leaning over at one point, he managed to "rev" the engine and put the truck in gear. Once in gear, the truck moved forward and struck the other vehicles. At the time, Henderson was the only person in the truck. These facts suggest that Henderson expended some effort in operating the truck. This evidence is in addition to evidence that Henderson admitted that he drove the vehicle from Pouche's home to the police station.

[25] Henderson's defense counsel argued before the jury that the law requires some effort by the defendant and the State failed to prove that Henderson expended any such effort. Counsel highlighted testimony indicating that Henderson had been in and out of consciousness and was slumped over the passenger seat. He argued this testimony indicated that Henderson was unable to expend the effort necessary to operate the vehicle. The matter was squarely placed before the jury's attention, and the jury found contrary to Henderson's argument.

[26] The judgment of the trial court is affirmed.

Bailey, J., and Mathias, J., concur.

      Henderson claims in his Reply Brief that his admission was struck from the record after his objection to the state's method of questioning was sustained. We disagree because our reading of the record indicates that the objection was lodged after and related to a subsequent question posed by Henderson's counsel.

      Henderson also relies on the Indiana Supreme Court's decision in Vehorn v. State , 717 N.E.2d 869 (Ind. 1999). Vehorn , however, is of no help to Henderson as the Indiana Supreme Court's decision was based largely upon the fact that the record contained an explicit assurance from the trial judge that it had considered counsel's objection to the admission of the evidence and that counsel's objection to the admission of the challenged evidence was sufficient to preserve an appellate challenge to the admission of the evidence. 717 N.E.2d at 872-73.

      It is undisputed that it takes effort to drive a vehicle from one point to another.