MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 18 2016, 8:44 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jane H. Conley Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard Jones, October 18, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1601-CR-18
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Steven Rubick,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G01-1405-FC-25131
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-18 | October 18, 2016 Page 1 of 8
Case Summary and Issue
[1] Following a jury trial, Richard Jones was convicted of resisting law
enforcement, a Class A misdemeanor. Jones appeals, raising a single issue for
our review, which we restate as whether the trial court abused its discretion in
admitting evidence obtained by police during a warrantless entry and arrest in
his residence. Concluding Jones failed to preserve the issue for appeal with a
contemporaneous objection to the admission of that evidence, we affirm.
Facts and Procedural History
[2] Jones resides with his eighty-six-year-old grandmother, Essie Ferrell, in her
home, along with his six-year-old son, and his uncle. On the evening of May
13, 2014, Jones’ girlfriend, Shamane Roach, arrived at the home and began
arguing with Jones about her vehicle, which she accused him of stealing. The
dispute caused so much noise that Jones’ uncle called the police and reported a
disturbance. After the police were called, Roach left the home and went
outside.
[3] Shortly thereafter, Officers Timothy Elliott and Nicholas Galico of the
Indianapolis Metropolitan Police Department (“IMPD”) responded to the
report and arrived at the home. When they arrived, Jones and Ferrell were
inside the home with the door ajar, while Roach stood in the driveway. Roach
spoke with the officers and informed them Jones stole her vehicle. Officer
Elliott then approached Jones at the doorway and asked him to step outside to
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“get his side of the story.” Transcript at 182-83. However, Jones declined to
come outside and stayed inside the home with Ferrell. A few moments later,
Ferrell attempted to exit the house to speak with Officer Elliott, but Jones
grabbed her and pushed her aside in an effort to close the door. Officer Elliott
then told Jones he was under arrest for committing battery on Ferrell and
ordered him to leave the door open. Jones shut the door and locked it.
[4] Officer Elliott backed away from the door, instructed Officer Galico to watch
the rear of the house, and radioed for backup. Three additional IMPD officers
responded to the call, including Officer Elliott’s supervisor, Lieutenant Sandra
Storkman. Five to ten minutes later, the door opened and Ferrell exited the
home and spoke to Lieutenant Storkman and Officer Elliott. Both officers
testified Ferrell permitted them to enter the home as long as they “didn’t hurt
[Jones].” Id. at 36.
[5] After receiving Ferrell’s consent, Officer Elliott and the two additional IMPD
officers entered the home, while Officer Galico watched the rear of the home.
Once inside, the officers located Jones sitting on his bed holding his son. Jones
initially refused to comply with the officers’ command to release his son;
however, Jones eventually allowed his son to leave the home. Officer Elliott
then ordered Jones to stand up and put his hands behind his back, but Jones
ignored his command and rolled over on his stomach. Jones then put his hands
beneath his abdomen, preventing the officers from placing handcuffs on him.
The officers eventually forced his hands behind his back, placed him in
handcuffs, and escorted him outside.
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[6] As Officer Elliott attempted to place Jones in his police car, Jones stiffened his
body and used his legs to push off the door frame of the car. Jones continued to
struggle, forcing the officers to deploy mace and bring Jones to the ground to
subdue him. While on the ground, Jones began to twist his body and thrash
around violently with his legs, causing the officers to place him in leg shackles.
Eventually, the officers were able to gain Jones’ compliance and place him in a
police vehicle.
[7] The State charged Jones with Count I, auto theft, a Class D felony; Count II,
resisting law enforcement, a Class D felony; Count III, battery, a Class D
felony; Count IV, battery by bodily waste, a Class D felony; and Count V,
battery, a Class B misdemeanor. The State also sought to enhance Count I to a
Class C felony based on Jones’ prior conviction for auto theft. On November
19, 2014, the State dismissed Count I, Count V, and the auto theft
enhancement. Jones’ first jury trial was held the same day and resulted in a
mistrial. On May 20, 2015, Jones filed a motion to suppress evidence, alleging
the State obtained its evidence as a result of an illegal entry and arrest in
violation of the Fourth Amendment. The trial court denied the motion and the
case proceeded to a second trial. At trial, Jones neither made a continuing
objection nor did he object to the admission of any evidence on constitutional
grounds. The jury found Jones guilty of resisting law enforcement as a Class A
misdemeanor and not guilty of the two remaining counts of battery. Jones now
appeals.
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Discussion and Decision
[8] Jones contends the police officers’ warrantless entry and arrest in his residence
violated the Fourth Amendment to the United States Constitution and Article
1, Section 11 of the Indiana Constitution. Using nearly identical language, both
provisions guarantee a person’s right to be free from unreasonable searches and
seizures. Campbell v. State, 841 N.E.2d 624, 627 (Ind. Ct. App. 2006).
[9] “[S]earches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment—
subject only to a few specifically established and well-delineated exceptions.”
Katz v. United States, 389 U.S. 347, 357 (1967) (footnotes omitted) (emphasis
added). Under the Fourth Amendment, if a search is conducted without a
warrant, the State bears the burden of proving an exception to the warrant
requirement. Swanson v. State, 730 N.E.2d 205, 208 (Ind. Ct. App. 2000), trans.
denied. Search and seizure violations under Article 1, Section 11 of the state
constitution are analyzed differently. Baldwin v. Reagan, 715 N.E.2d 332, 337
(Ind. 1999). The State must show that, in the totality of the circumstances, the
police behavior was reasonable. Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995).
The provision is to receive liberal application to ensure that citizens of this state
are free from unreasonable searches and seizures. Id.
[10] Although Jones filed a pretrial motion to suppress, we note that when a
defendant challenges the constitutionality of a search following a completed
trial, we consider the issue to be whether the trial court abused its discretion by
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admitting the challenged evidence. Clark v. State, 994 N.E.2d 252, 259 (Ind.
2013). An abuse of discretion occurs “only when admission is clearly against
the logic and effect of the facts and circumstances and the error affects a party’s
substantial rights.” Id. at 260. In reviewing the trial court’s decision, we do not
reweigh the evidence and consider conflicting evidence most favorably to the
ruling. Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009). We defer to the trial
court’s factual determinations unless clearly erroneous, id., but the
constitutionality of the search is a question of law we consider de novo.
Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
[11] Jones contends the police violated his rights pursuant to the Fourth
Amendment and Article 1, Section 11 of the Indiana Constitution by
conducting a warrantless entry and arrest, and therefore his conviction should
be reversed. The State argues Jones waived any objection to the admission of
the evidence by failing to object to its admission at trial. Jones does not deny
he failed to object on constitutional grounds at trial,1 and he does not contend
the trial court committed fundamental error.
[12] We agree with the State that Jones failed to preserve his constitutional
challenge to the admissibility of the evidence. A contemporaneous objection at
the time the evidence is introduced at trial is required to preserve an issue for
1
Jones objected on several occasions at trial, but his objections were based on evidentiary concerns, such as
hearsay. However, generally a party “may not object to the admission of evidence on one basis at trial and
for a different reason on appeal.” Hart v. State, 578 N.E.2d 336, 337 (Ind. 1991).
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appeal, regardless of whether the appellant has filed a pretrial motion to
suppress. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010); see also Jackson v.
State, 735 N.E.2d 1146, 1152 (Ind. 2000) (holding the failure to make a
contemporaneous objection to the admission of evidence at trial results in
waiver of the error on appeal); Wagner v. State, 474 N.E.2d 476, 484 (Ind. 1985)
(noting that when a motion to suppress has been overruled and the evidence
sought to be suppressed is later offered at trial, no error will be preserved unless
there is an objection at that time).
[13] Here, Jones did not object during trial to the admission of any of the State’s
evidence against him on constitutional grounds. Accordingly, he has not
preserved his arguments for appellate review. Moreover, the State relies on
Jones’ lack of a trial objection in its brief on appeal, and Jones does not assert in
his initial brief or in his reply brief that this court should nonetheless review the
merits of his argument under the fundamental error doctrine or for another
reason. See Brown, 929 N.E.2d at 207 (holding “an error in ruling on a motion
to exclude improperly seized evidence is not per se fundamental error” and
“[w]e do not consider that admission of unlawfully seized evidence ipso facto
requires reversal”). We conclude Jones has waived the issue of whether the
trial court abused its discretion when it admitted the evidence at trial. 2 Thus,
2
We note that not reviewing for fundamental error does not necessarily end the matter. Jones may seek
relief, if he so desires, through a post-conviction claim of ineffective assistance of counsel. Whiting v. State,
969 N.E.2d 24, 34 (Ind. 2012); see also Pemberton v. State, 560 N.E.2d 524, 527 (Ind. 1990) (holding that
defendant was denied effective assistance of counsel when trial counsel failed to make a contemporaneous
trial objection).
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we do not address whether consent or exigent circumstances justified the
warrantless entry of Jones’ home. Accordingly, we affirm Jones’ conviction.
Conclusion
[14] At trial, Jones failed to object to the admission of evidence on the grounds that
it was obtained in violation of the federal and state constitutions, and has
waived the issue on appeal. We therefore affirm his conviction.
[15] Affirmed.
Mathias, J., and Brown, J., concur.
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Richard Jones v. State of Indiana (mem. dec.)
Combined Opinion