Oct 18 2013, 5:39 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DANIELLE L. GREGORY GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID RHODES, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1304-CR-321
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable William J. Nelson, Judge
Cause No. 49F18-1208-FD-55646
October 18, 2013
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
David Rhodes (“Rhodes”) appeals his conviction, following a bench trial, for two
counts of Class D felony theft.1
We affirm.
ISSUE
Whether the trial court abused its discretion by admitting into evidence a
cell phone and a credit card found in Rhode’s pocket during a patdown by
police.
FACTS
On August 12, 2012, around 5:30 a.m., Darryl Daniels (“Daniels”), an employee
at the InTown Suites (“the hotel”) on Post Road in Marion County, observed a lone male
walking from car to car in the hotel parking lot and entering cars that were unlocked.
Daniels called the police as he saw the man enter the first car. As Daniels talked to
police dispatch and provided them with the suspect’s description, the man entered a
second car. When the man attempted to enter a third car, the car’s alarm activated, and
the man left the parking lot.
Indianapolis Metropolitan Police Department (“IMPD”) Officer Charles King
(“Officer King”) arrived on the scene, and Daniels repeated his description of the suspect
to Officer King. Daniels told the officer that the suspect breaking into the cars was an
African American male, wearing a white t-shirt and “dark jeans” and carrying a case of
1
Ind. Code § 35-43-4-2.
2
Budlight beer.2 (Tr. 14). Daniels also told the officer that the suspect headed northbound
near 25th Street when he left the hotel parking lot. Officer King radioed this information
to other patrolling officers, including Officer Brian Durham (“Officer Durham”). Officer
King then located the two victims from the hotel and discovered that one victim, Larry
Morris (“Morris”), had a cell phone taken from his car and that the other victim, Ellen
Cullinan (“Cullinan”), had a credit card taken from her car.
Upon receiving the suspect description and information from Officer King, Officer
Durham “immediately searched” the area around the hotel and “located a black male
wearing a white t-shirt carrying a box of beer that fit the description of the alleged
suspect.” (Tr. 25). Around 5:40 a.m., Officer Durham found this man, who was Rhodes,
in a home improvement store parking lot on 25th Street, which was “immediately
adjacent” to the hotel parking lot. (Tr. 25). Officer Durham approached Rhodes, who
was carrying a case of Budlight, and asked him for his identification. Rhodes gave the
officer his name, but he stated that he did not have any identification with him. Rhodes
told the officer that he was “on parole for narcotics offenses.” (Tr. 27). At that time,
Officer Durham noticed that Rhodes had “a bulge in his pocket[.]” (Tr. 27). Officer
Durham, who “was in fear of [Rhodes] having a weapon in his pocket because [Rhodes]
told [him that] he was on parole for narcotics offenses[,]” performed a patdown to “feel
the bulge.” (Tr. 27). The officer then reached into Rhodes’s pocket and retrieved a cell
phone and a credit card. The credit card contained Cullinan’s name. When Officer
Durham asked Rhodes about the credit card, Rhodes asserted that it was his girlfriend’s
2
During Daniels’s trial testimony, he described the pants of the suspect as “dark jeans” and “dark pants”
(Tr. 14, 16).
3
card, but he was not able to provide the name on the card. Rhodes claimed that he had
just been visiting this supposed girlfriend at the hotel. When Officer Durham asked
Rhodes about the cell phone, Rhodes claimed that the phone was his, but he was unable
provide the brand or phone number of the cell phone. Officer Durham then arrested
Rhoades.
The State charged Rhodes with two counts of Class D felony theft. The trial court
held a bench trial on February 12, 2013. Rhodes did not file a written motion to suppress,
but at the beginning of the trial, Rhodes’s counsel informed the trial court that he was
going to be raising a “Motion to Suppress.” (Tr. 11). Given time constraints, Rhodes’s
counsel and the trial court agreed that the court would wait to hear the suppression
argument during trial.
During the victims’ testimony, the State offered photographs of the cell phone and
the credit card into evidence as State’s Exhibits 3 and 4 (cell phone) and Exhibits 5 and 6
(credit card). Rhodes did not object and affirmatively stated that he had “[n]o objection”
to the admission of these exhibits.3 (Tr. 21, 23). Subsequently, after Officer Durham
testified that he found a cell phone and a credit card with Cullinan’s name on it in
Rhodes’s pocket and that Rhodes admitted to being at the hotel, Rhodes’s counsel
interrupted and stated that “this is about the time that I would move to suppress.” (Tr.
28). Rhodes’s counsel then argued that the stop and search of Rhodes was
unconstitutional. (Tr. 28). The trial court denied Rhodes’s motion and found Rhodes
3
When Rhodes stated he had no objection to the admission of the cell phone, the trial court specifically
questioned him by asking, “No objection?” (Tr. 21). Rhodes then confirmed that he had “[n]o
objection.” (Tr. 21).
4
guilty as charged. The trial court imposed concurrent sentences of 730 days in Marion
County Community Corrections. Rhodes now appeals.
DECISION
Rhodes contends that the trial court abused its discretion by admitting into
evidence the cell phone and credit card recovered from his pocket, arguing that the
evidence was obtained during an illegal stop and search in violation of the Fourth
Amendment to the United States Constitution.4 The State contends that the evidence was
admissible because it was properly seized pursuant either to a search incident to arrest or
a proper Terry stop and search.
The admission and exclusion of evidence falls within the sound discretion of the
trial court, and we review the admission of evidence only for an abuse of discretion.
Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs when
the trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012), reh’g denied.
We need not, however, review whether the trial court erred in admitting the cell
phone and credit card into evidence because Rhodes failed to preserve the issue for
appeal by failing to make a contemporaneous objection at trial. “A contemporaneous
objection at the time the evidence is introduced at trial is required to preserve the issue
4
Rhodes contends that the trial court erred by denying his motion to suppress the evidence obtained
during the stop and search of his person by police. Because this is an appeal following a completed trial,
the issue is “‘more appropriately framed’” as one of whether the trial court abused its discretion by
admitting the evidence during the trial. Brown v. State, 929 N.E.2d 204, 206 n.1 (Ind. 2010) (quoting
Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003)), reh’g denied.
Rhodes also generally asserts that this evidence was admitted in violation of Article I, Section 11 of the
Indiana Constitution. Rhodes, however, has waived any state constitutional claim because he fails to
provide a separate argument and analysis under this state constitutional provision. See White v. State, 772
N.E.2d 408, 411 (Ind. 2002); Warren v. State, 760 N.E.2d 608, 610 n.3 (Ind. 2002).
5
for appeal, whether or not the appellant has filed a pretrial motion to suppress.” Brown v.
State, 929 N.E.2d 204, 207 (Ind. 2010), reh’g denied. See also Jackson v. State, 735
N.E.2d 1146, 1152 (Ind. 2000) (“The failure to make a contemporaneous objection to the
admission of evidence at trial results in waiver of the error on appeal.”); Hartman v.
State, 615 N.E.2d 455, 459-60 (Ind. Ct. App. 1993) (explaining that a party must make an
objection to an exhibit when it is offered and before it is admitted into evidence and that
an objection made after the evidence is admitted is untimely and unavailable for
argument on appeal), reh’g denied.
Here, Rhodes contends that the cell phone and credit card were inadmissible, but
he did not object when the State offered them into evidence. In fact, he affirmatively
stated that he had “[n]o objection” to the admission of this evidence. (Tr. 21, 23).
Consequently, Rhodes has waived appellate review of his claim of error. See, e.g.,
Brown, 929 N.E.2d at 207 (holding that defendant, who did not object to evidence upon
introduction of evidence and who affirmatively stated he had no objection, waived review
of his argument that evidence was unlawfully seized); Lewis v. State, 755 N.E.2d 1116,
1123 (Ind. Ct. App. 2001) (holding that defendant’s failure to challenge constitutionality
of search until after evidence had been admitted and after he had completed his initial
cross-examination of the officer resulted in waiver of appellate review).
Nevertheless, “[a] claim that has been waived by a defendant’s failure to raise a
contemporaneous objection can be reviewed on appeal if the reviewing court determines
that a fundamental error occurred.” Brown, 929 N.E.2d at 207. “The fundamental error
exception is ‘extremely narrow, and applies only when the error constitutes a blatant
6
violation of basic principles, the harm or potential for harm is substantial, and the
resulting error denies the defendant fundamental due process.’” Id. (quoting Mathews v.
State, 849 N.E.2d 578, 587 (Ind. 2006)). The Brown Court explained that a showing of
fundamental error arising from the admission of alleged illegally seized evidence is very
limited:
[A]n error in ruling on a motion to exclude improperly seized evidence is
not per se fundamental error. Indeed, because improperly seized evidence
is frequently highly relevant, its admission ordinarily does not cause us to
question guilt. That is the case here. The only basis for questioning
Brown’s conviction lies not in doubt as to whether Brown committed these
crimes, but rather in a challenge to the integrity of the judicial process. We
do not consider that admission of unlawfully seized evidence ipso facto
requires reversal. Here, there is no claim of fabrication of evidence or
willful malfeasance on the part of the investigating officers and no
contention that the evidence is not what it appears to be. In short, the
claimed error does not rise to the level of fundamental error.
Brown, 929 N.E.2d at 207.
Just as in Brown, Rhodes does not assert any such claims in this case. Instead,
Rhodes merely asserts that the evidence was improperly admitted, alleging that it was the
product of an unconstitutional search.5 Thus, Rhodes’s claim of error does not rise to the
level of fundamental error. See id. (holding that a claim of error asserting that evidence
was unlawfully seized, without more, does not constitute fundamental error). Because
Rhodes did not object to the admission of the evidence at issue and has failed to
demonstrate any fundamental error in the admission of the evidence, we need not address
the issue of whether the search of his person was lawful. See, e.g., Brown, 929 N.E.2d at
208 (explaining that it is not necessary to resolve the issue of whether a search was lawful
5
Indeed, Rhodes fails to acknowledge his lack of objection at trial and does not assert that the admission
of the evidence constituted fundamental error.
7
where the defendant had failed to preserve the issue by failing to object and where there
was no fundamental error).
Waiver notwithstanding, we conclude there is no error—fundamental or
otherwise—because the specific facts before us support the conclusion that the evidence
was properly seized pursuant to a search incident to arrest. The search incident to arrest
exception to the warrant requirement provides that a police officer may conduct a search
of “‘the arrestee’s person and the area within his immediate control.’” Stark v. State, 960
N.E.2d 887, 889 (Ind. Ct. App. 2012) (quoting Chimel v. California, 395 U.S. 752
(1969)), trans. denied. “Evidence resulting from a search incident to a lawful arrest is
admissible at trial.” Gibson v. State, 733 N.E.2d 945, 953 (Ind. Ct. App. 2000). An
arrest is lawful if it is supported by probable cause. VanPelt v. State, 760 N.E.2d 218,
222 (Ind. Ct. App. 2001), trans. denied. “Probable cause adequate to support a
warrantless arrest exists when, at the time of the arrest, the officer has knowledge of facts
and circumstances that would warrant a person of reasonable caution to believe that the
suspect committed a criminal act.” Griffith v. State, 788 N.E.2d 835, 840 (Ind. 2003).
Here, an eyewitness (the hotel employee) observed Rhodes breaking into cars in
the hotel’s parking lot in the early morning hours. This eyewitness immediately called
police and provided them with a description of Rhodes—who was wearing a white t-shirt
and dark jeans and carrying a case of Budlight—and told police that Rhodes was headed
northbound near 25th Street when he left the hotel parking lot.6 Within minutes of
6
Rhodes asserts that he did not meet the description given by the eyewitness because he asserts that he
was wearing brown pajama pants, not dark jeans, when he was stopped by police. Rhodes was the only
8
receiving radio dispatch of this suspect information, Officer Durham began to search the
area near the hotel and encountered Rhodes in a home improvement store parking lot on
25th Street, which was “immediately adjacent” to the hotel parking lot. (Tr. 25). Thus,
Rhodes matched the specific description of the suspect and was found close—both
temporally and in proximity—to the scene of the crime. These specific facts and
circumstances known to the officer provided probable cause to arrest Rhodes. See, e.g.,
Samaniego v. State, 553 N.E.2d 120, 123 (Ind. 1990) (holding that police had probable
cause to arrest defendant where he matched description given by witnesses and his truck
was found near the scene of the crime); Slaton v. State, 510 N.E.2d 1343, 1349-50 (Ind.
1987) (holding that there was probable cause to arrest defendant where police officer
immediately responded to a burglary call, had received dispatch description of suspect as
a “large black male with a red windbreaker,” and spotted defendant who matched that
description); Merritt v. State, 488 N.E.2d 340, 342 (Ind. 1986) (finding that arresting
police officer had probable cause to believe the defendant had committed crimes at issue
where the officer knew the defendant matched the description given by the victims).
Thus, the trial court did not err, let alone commit fundamental error, by admitting the cell
phone and credit card into evidence. Accordingly, we affirm Rhodes’s convictions.
Affirmed.
BARNES, J., and CRONE, J., concur.
person at trial to testify that he was wearing brown pajama pants. All other witnesses—including the
eyewitness hotel employee and police—testified that Rhodes’s pants were dark jeans.
9