FILED
Jan 27 2017, 8:42 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven Ripstra Curtis T. Hill, Jr.
Jasper, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Roger Wilkinson, January 27, 2017
Appellant-Defendant, Court of Appeals Case No.
74A05-1603-CR-741
v. Appeal from the Spencer Circuit
Court.
The Honorable Jon A. Dartt, Judge.
State of Indiana, Cause No. 74C01-1504-F4-60
Appellee-Plaintiff.
Barteau, Senior Judge
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 1 of 24
Statement of the Case
[1] Roger Wilkinson appeals his convictions of possession of methamphetamine, a
1 2
Level 5 felony, unlawful possession of a syringe, a Level 6 felony, operating a
3
vehicle while intoxicated, a Class A misdemeanor, operating a vehicle with a
Schedule I or II controlled substance or its metabolite in the body, a Class C
4 5
misdemeanor, and possession of marijuana, a Class B misdemeanor. We
affirm.
Issue
[2] Wilkinson raises the following restated issues for our review:
I. Whether there was sufficient evidence to support his
convictions related to operating a vehicle;
II. Whether the warrantless search of his vehicle violated the
Indiana and Federal constitutions; and
III. Whether the trial court abused its discretion when it denied
his motion to correct error alleging juror misconduct.
1
Ind. Code § 35-48-4-6.1 (2014).
2
Ind. Code § 16-42-19-18 (2015).
3
Ind. Code § 9-30-5-2(b) (2001).
4
Ind. Code § 9-30-5-1(c) (2001).
5
Ind. Code § 35-48-4-11(a)(1) (2014).
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 2 of 24
Facts and Procedural History
[3] On April 10, 2015, at approximately 10:00 a.m., Christine Unversaw returned
home and found a strange, gray BMW parked in her driveway. She saw an
individual, later identified as Wilkinson, slumped over in the front seat.
Christine went into her house to ask her husband, Shane, if he was expecting a
visitor. Shane indicated he was not, and went outside to investigate. Christine
followed, and the two approached the vehicle and observed Wilkinson holding
his hand over his eyes and rocking back and forth. Wilkinson appeared
disoriented and unsteady. He had trouble keeping his head up, and slurred his
words. The vehicle’s windshield was damaged, and there was extensive
damage to the driver’s side. The Unversaws asked Wilkinson if he needed help.
He replied that he was “okay.” Tr. p. 296. Shane called 911 because both he
and Christine thought Wilkinson needed assistance.
[4] Officer James Faulkenburg with the Santa Claus Police Department arrived on
the scene first, followed by Sergeant Harold Gogel and Deputy Marvin
Heilman with the Spencer County Sheriff’s Department. (The officer, sergeant
and deputy will be collectively referred to as “the officers.”) The officers
determined Wilkinson was the individual seated behind the wheel, and that the
vehicle was registered to Brett Cieslack. Cieslack had loaned the car to his
6
daughter for her personal use.
6
It is unclear from the record why Wilkinson had the vehicle in his possession.
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 3 of 24
[5] Wilkinson appeared to be sleeping and was slumped over behind the steering
wheel. The officers noticed the damage to the vehicle, but determined that it
was drivable. Emergency medical personnel also responded to the scene, but
left shortly after arriving because the officers determined they were not needed.
[6] Gogel and Faulkenburg approached the driver’s side of the vehicle. Heilman
approached from the passenger side. Faulkenburg asked Wilkinson “if he was
okay” and if he needed any medical attention. Id. at 398. Wilkinson stated that
he did not know. Faulkenburg noticed that Wilkinson’s speech was slurred, but
he showed no signs of physical injury. Faulkenburg opened the driver’s side
door and observed a plastic vial laying between Wilkinson’s legs. Faulkenburg
placed the vial on top of the vehicle.
[7] Heilman, who was on the other side of the vehicle, saw a partially filled bottle
of rum on the floorboard. He opened the passenger-side door and entered the
vehicle. Once inside, he saw a hand-rolled cigarette he believed to be a
marijuana cigarette. Neither he nor Gogel smelled alcohol on Wilkinson, but
Heilman thought Wilkinson looked “lethargic,” and “seemed to be impaired,”
and might be under the influence of illegal drugs. Id. at 440. Gogel noticed a
package of cigarette rolling papers on the vehicle’s floorboard.
[8] Faulkenburg asked Wilkinson to exit the vehicle, but had to lend assistance
because Wilkinson was unable to do so on his own. Wilkinson was patted
down. A cloth bag was found in the front pocket of his hooded sweatshirt. A
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 4 of 24
syringe and a small glass jar were found inside of the bag. Wilkinson was
placed in handcuffs and seated on the ground.
[9] Heilman eventually took possession of the plastic vial that was found between
Wilkinson’s legs. Without opening the vial, he determined it contained a hand-
rolled cigarette and plastic bags that contained powdery substances. The vial
was opened and it was confirmed that it contained three plastic bags that
contained a white, powdery substance. The substances from two of the bags
were tested using a field test kit. They tested positive for methamphetamine.
[10] Gogel asked Wilkinson if he would take a field sobriety test at the scene, or a
certified test at the law enforcement center. Wilkinson declined. At some point
he was arrested and taken to jail, and the vehicle was impounded.
[11] After arriving at the jail, a warrant was obtained to take a sample of
Wilkinson’s blood. His blood tested positive for amphetamine,
methamphetamine, and THC – an active component of marijuana. The rolled
cigarettes and the substances found in the plastic bags were analyzed by the
Indiana State Police Laboratory. One of the cigarettes was found to contain
marijuana. It was confirmed that the other substances contained
methamphetamine. Wilkinson was charged with eight offenses related to
possession of drugs and paraphernalia, and operation of a vehicle while
intoxicated.
[12] Pre-trial, Wilkinson filed a motion to suppress the items found in the vehicle. A
hearing was held on the matter, following which the trial court denied the
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 5 of 24
motion. The items (the rum bottle, the hand-rolled cigarettes, the plastic
container and its contents, the cloth bag and its contents) were admitted into
evidence at trial over Wilkinson’s objection. A jury found Wilkinson guilty of
five of the eight offenses, and he was sentenced to an aggregate term of six
7
years.
[13] Post-trial, Wilkinson filed a motion to correct error, alleging juror misconduct.
It was determined that two jurors, Guy Whelan and Henry Warsinsky, both
knew State’s witness Brett Cieslack, but failed to disclose this during voir dire or
the trial. Wilkinson asked the court to order a new trial. Following a hearing
on the matter, the trial court denied the motion. Wilkinson now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
[14] Wilkinson was convicted of Class A misdemeanor operating a vehicle while
intoxicated, and operating a vehicle with a Schedule I or II controlled substance
or its metabolite in the body. He maintains the State failed to present sufficient
evidence that he actually operated the vehicle while intoxicated because
7
In addition to the offenses for which he eventually was found guilty, Wilkinson also was charged with Class
A misdemeanor possession of paraphernalia, Level 6 felony possession of paraphernalia, and Class A
misdemeanor possession of marijuana, apparently because a glass pipe was found at the scene of the incident.
However, because no officer could testify, specifically, to where the pipe was found, the trial court excluded it
from evidence. The State moved to dismiss the charges and the motions were granted.
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 6 of 24
security camera footage that allegedly showed him operating the vehicle was
8
destroyed and not placed into evidence.
[15] Facts relevant to this issue are as follows. The Unversaws had security
cameras. Their cameras captured footage of a gray BMW exiting the road that
ran in front or their house and entering their driveway. Unsuccessful attempts
were made to transfer the footage to a DVD. However, Deputy Faulkenburg
was able to make a recording of the footage using his cell phone. The original
footage was taped-over. The deputy’s recording was not made available for
trial.
[16] When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
judgment, without reweighing the evidence or reassessing witness credibility.
Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014). We affirm if there is
substantial evidence of probative value such that a reasonable trier of fact could
have concluded the defendant was guilty beyond a reasonable doubt. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009).
[17] To convict Wilkinson of operating a vehicle while intoxicated, as a Class A
misdemeanor, the State was required to prove beyond a reasonable doubt that
8
Wilkinson also seems to imply that the State’s failure to preserve the camera footage caused the jury to
consider Shane Unversaw’s testimony regarding his recollection of the footage as useful to the State’s case,
rather than as potentially exculpatory. However, because Wilkinson does not develop his argument, we
decline to address it.
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 7 of 24
he “operate[d] a vehicle while intoxicated . . . in a manner that endanger[ed]
a person.” Ind. Code § 9-30-5-2 (2001). To convict him of operating a vehicle
with a controlled substance in his body, as a Class C misdemeanor, the State
was required to prove he operated a vehicle with a controlled substance listed in
Schedule I or II of Indiana Code section 35-48-2 or its metabolite in his body.
Ind. Code § 9-30-5-1(c) (2001). Indiana Code section 9-13-2-86 (2013) defines
intoxication in pertinent part as under the influence of a Schedule I or II
substance “so that there is an impaired condition of thought and action and the
loss of normal control of a person’s faculties.” See also Ind. Code § 35-48-1-9
(1988). Impairment can be established by evidence of the following: “(1) the
consumption of a significant amount of alcohol; (2) impaired attention and
reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on the breath; (5)
unsteady balance; and (6) slurred speech.” Outlaw v. State, 918 N.E.2d 379, 381
(Ind. Ct. App. 2009), opinion adopted, 929 N.E.2d 196 (Ind. 2010). We find that
sufficient evidence was presented to establish that Wilkinson operated the gray
BMW while intoxicated.
[18] Wilkinson, who was seated behind the wheel of the BMW, told Shane
Unversaw that he had been in an accident. Shane called 911 and told the
dispatcher that a gray BMW was in his driveway, and that the individual in the
vehicle might need medical attention because he was “out of it,” “disoriented.”
State’s Exhibit 1 – Recording of 911 Call. The 911 call was entered into
evidence and played for the jury. Shane testified that he reviewed the security
camera footage which showed the gray BMW exit the road and enter his
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 8 of 24
driveway at approximately 9:30 a.m. Deputy Faulkenburg testified that he
viewed the camera footage and that it showed the BMW enter the Unversaws’
driveway from the main road. Christine Unversaw testified that when she left
her house at 6:00 a.m., the BMW was not in her driveway. Upon her return at
approximately 10:00 a.m., the vehicle was parked in her driveway. The officers
arrived at approximately 10:30 a.m. The Unversaws and the officers testified
that they observed Wilkinson slumped behind the wheel of the vehicle, and that
he appeared unsteady and lethargic. Shane testified that the security camera
footage did not show Wilkinson exiting the vehicle before the officers arrived.
[19] Wilkinson’s blood was tested following his arrest. The toxicology report
admitted into evidence showed that his blood tested positive for amphetamine
and methamphetamine (Schedule II substances), and THC (a Schedule I
substance). An expert in toxicology testified that, in her opinion, Wilkinson
was impaired due to the level of controlled substances found in his body.
[20] From this evidence, the jury could have reasonably concluded that Wilkinson
operated the gray BMW while intoxicated. Wilkinson’s arguments to the
contrary amount to nothing more than a request to reweigh the evidence, which
we will not do. See Perez v. State, 872 N.E.2d 208, 212-13 (Ind. Ct. App. 2007),
trans. denied. We conclude the jury was presented with sufficient evidence of
probative value to establish that Wilkinson operated the vehicle while
intoxicated, and to support his convictions for Class A misdemeanor operating
a vehicle while intoxicated, and Class C misdemeanor operating a vehicle with
a Schedule I or II controlled substance or its metabolite in the body.
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 9 of 24
II. Warrantless Search
[21] Wilkinson claims the warrantless search that led to the discovery of drugs in his
vehicle was improper under the Fourth Amendment to the United States
Constitution and Article 1, Section 11 of the Indiana Constitution. He
maintains there was no probable cause or reason for the search, and that upon
arriving at the scene, the officers assumed, prior to finding any evidence of
criminal activity, that “[he] must [have been] involved with drugs.” Appellant’s
Br. p. 28.
[22] Wilkinson appeals from the trial court’s admission of the evidence following a
completed trial. Thus, the issue is appropriately framed as whether the trial
court abused its discretion by admitting the evidence at trial. See Washington v.
State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). A trial court is afforded broad
discretion in ruling on the admissibility of evidence, and we will reverse such a
ruling only upon a showing of an abuse of discretion. Id. An abuse of
discretion involves a decision that is clearly against the logic and effect of the
facts and circumstances before the court. Id. We will not reweigh the evidence,
and we consider conflicting evidence in the light most favorable to the trial
court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans.
denied.
[23] The State argues that the search was permitted under the following exceptions
to the warrant requirement: the automobile exception, the plain view doctrine,
and search incident to arrest. As an appellate court, we will sustain the trial
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 10 of 24
court if it can be done on any legal ground apparent in the record. Ratliff v.
State, 770 N.E.2d 807, 809 (Ind. 2002). We find here that the search of the
vehicle and Wilkinson’s person was justified under the medical assistance and
automobile exceptions, the plain view doctrine, and a search incident to a
lawful arrest.
A. United States Constitution
[24] The Fourth Amendment states that: “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.” U.S. Const. amend. IV. A
warrantless search or seizure is per se unreasonable, and the State bears the
burden to show that one of the well-delineated exceptions to the warrant
requirement applies. Osborne v. State, 63 N.E.3d 329, 331 (Ind. 2016) (citations
and quotation omitted).
Exceptions to Warrant Requirement
[25] One such exception relevant to the circumstances in this case is that the law
enforcement officer had “an objectively reasonable basis for believing that
medical assistance was needed, or persons were in danger.” Michigan v.
Fisher, 558 U.S. 45, 49, 130 S. Ct. 546, 549, 175 L. Ed. 2d 410 (2009) (internal
quotations omitted); see also Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408,
2413, 57 L. Ed. 2d 290 (1978) (“Numerous state and federal cases have
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 11 of 24
recognized that the Fourth Amendment does not bar police officers from
making warrantless entries and searches when they reasonably believe that a
person within is in need of immediate aid.”) (footnotes omitted). Our courts
have recognized this exception. See Osbourne, 63 N.E.3d at 332.
[26] Under the plain view doctrine, a police officer is permitted to seize items when
he inadvertently discovers items of readily apparent criminality while rightfully
occupying a particular location. First, the initial intrusion must have been
authorized under the Fourth Amendment. Second, the items must be in plain
view. Finally, the incriminating nature of the evidence must be immediately
apparent. Jones v. State, 783 N.E.2d 1132, 1137 (Ind. 2003).
The immediately apparent prong of the doctrine requires that the
officer have probable cause to believe the evidence will prove
useful in solving a crime. This does not mean that the officer
must know that the item is evidence of criminal behavior.
Probable cause requires only that the information available to the
officer would lead a person of reasonable caution to believe the
items could be useful as evidence of a crime. A practical,
nontechnical probability that incriminating evidence is involved
is all that is required. A lawful seizure must be based upon a
nexus between the item seized and particular criminal behavior.
The nexus must be one known to the officers at the time of the
seizure and may not be based upon mere speculation.
State v. Figgures, 839 N.E.2d 772, 779 (Ind. Ct. App. 2005) (citations and
quotation marks omitted), trans. denied.
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 12 of 24
[27] The automobile exception is another well-recognized exception to the Fourth
Amendment’s warrant requirement. See Myers v. State, 839 N.E.2d 1146 (Ind.
2005). A search falls within this exception when a vehicle is readily mobile and
probable cause exists to believe it contains contraband or evidence of a
crime. Maryland v. Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 2014, 144 L. Ed.
2d 442 (1999). Where there is probable cause to search a vehicle, a search is
not unreasonable if it is based on facts that would justify the issuance of a
warrant, even though a warrant has not been actually obtained. Id. “If a car is
readily mobile and probable cause exists to believe it contains contraband, the
Fourth Amendment thus permits police to search the vehicle without more.”
Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed. 2d
1031 (1996) (citing California v. Carney, 471 U.S. 386, 393, 105 S. Ct. 2066,
2070, 85 L. Ed. 2d 406 (1985)). “If probable cause justifies the search of a
lawfully stopped vehicle, it justifies the search of every part of the vehicle and
its contents that may conceal the object of the search.” U.S. v. Ross, 456 U.S.
798, 825, 102 S. Ct. 2157, 2173, 72 L. Ed. 2d 572 (1982).
[28] Another exception to the warrant requirement is a search incident to a lawful
arrest. Wilson v. State, 754 N.E.2d 950, 956 (Ind. Ct. App. 2001). A suspect is
considered under arrest when a police officer interrupts his freedom and
restricts his liberty of movement. Fentress v. State, 863 N.E.2d 420, 423 (Ind. Ct.
App. 2007). The fact that a police officer does not inform a defendant he is
under arrest prior to a search does not invalidate the search incident to arrest
exception as long as there is probable cause to make an arrest. Id. Probable
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 13 of 24
cause for an arrest exists if at the time of the arrest the officer has knowledge of
facts and circumstances which would warrant a man of reasonable caution to
believe that the suspect has committed the criminal act in question. Id. A
police officer’s subjective belief concerning whether he had probable cause to
arrest a defendant has no legal effect. Id. An arrest is lawful if it is supported
by probable cause. Id. A search incident to lawful arrest allows the arresting
officer to conduct a warrantless search of the arrestee’s person and the area
within his immediate control. Wilson, 754 N.E.2d at 956. “A search incident to
a valid arrest is lawful regardless of what it reveals.” Garcia v. State, 47 N.E.3d
1196, 1200 (Ind. 2016) (quoting Farrie v. State, 255 Ind. 681, 683, 266 N.E.2d
212, 214 (1971)).
1. Medical Assistance Exception
[29] Here, the warrantless entry of Wilkinson’s vehicle was permissible under the
medical assistance exception to the Fourth Amendment because it was
reasonable for the officers to believe Wilkinson needed medical attention. The
Unversaws placed a 911 call because a strange car that had been wrecked was
parked in their driveway, and the driver of the vehicle was disoriented and
unsteady. The officers responded to the call and confirmed the Unversaws’
observations. Wilkinson was slumped over behind the wheel, his speech was
slurred, and he responded, “I don’t know” when asked if he needed help. Tr. p.
398. Under these circumstances, the officers had an objectively reasonable
basis to believe that Wilkinson might need medical assistance. The State has
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 14 of 24
carried its burden of showing an exception to the warrant requirement to justify
entry into the vehicle.
2. Plain View Doctrine
[30] Regarding the plain view doctrine, the first part of the doctrine (intrusion
authorized by the Fourth Amendment) is satisfied, as the officers were
responding to the Unversaws’ 911 call regarding a strange, wrecked vehicle
sitting in their driveway. We find the second part of the doctrine is satisfied
because the seized items were in plain view. The last part of the doctrine also is
satisfied. It was reasonable for the officers to believe the items found could be
useful as evidence of a crime based upon the 911 call, the officers’ initial
observations of the vehicle and of Wilkinson, and Wilkinson’s demeanor.
[31] The vehicle Wilkinson was driving was damaged. Deputy Heilman testified
that Wilkinson appeared lethargic and seemed impaired. Wilkinson did not
seem to suffer from any physical injuries. His speech was slurred. Heilman
looked into the vehicle and saw a partially filled bottle of rum, and a hand-
rolled cigarette he believed to be a marijuana cigarette. Officer Faulkenburg
saw a plastic vial laying on the front seat between Wilkinson’s legs, and a
package of rolling papers on the floorboard. Both Heilman and Faulkenburg
testified that Wilkinson required assistance to exit the vehicle.
[32] While additional testimony revealed that the officers did not smell alcohol on
Wilkinson or in the car, and that Heilman smelled the cigarette but did not
detect an odor of marijuana, as noted above, probable cause under the
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 15 of 24
immediately apparent clause of the plain view doctrine requires only that the
information available to the officer would lead a person of reasonable caution
to believe the items found could be useful as evidence of a crime. We conclude
that the items found in Wilkinson’s vehicle passed this test.
3. Automobile Exception
[33] As for the automobile exception, we find under these circumstances that the
exception applies. Probable cause existed for a reasonably prudent person to
believe that a search of the vehicle where Wilkinson was found would uncover
evidence of a crime. The officers, responding to a 911 call, found Wilkinson at
10:30 in the morning in a wrecked but still operational vehicle that was parked
in a strange driveway. He was slumped behind the wheel, and appeared
lethargic, unsteady, and impaired. The officers observed in plain view a
partially filled bottle of rum, a hand-rolled cigarette, cigarette rolling papers,
and a small plastic vial. These items gave the officers probable cause to believe
that evidence of the crimes for which Wilkinson ultimately was charged
(operating a vehicle while intoxicated and under the influence of controlled
substances) would be found. Once probable cause was established, the officers
were permitted to search any items in the vehicle that might conceal controlled
substances, including the plastic vial that contained methamphetamine and a
marijuana cigarette. See Ross, 456 U.S. at 825.
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 16 of 24
4. Search Incident to Lawful Arrest
[34] We find that the officers had probable cause to arrest Wilkinson, and a lawful
basis to search his person. Wilkinson was found behind the wheel of a wrecked
vehicle and in an impaired state. In plain view were a rum bottle, a hand-rolled
cigarette, cigarette rolling papers, and a small plastic vial. Based upon
Wilkinson’s demeanor and the items found in the vehicle, the officers had
probable cause to arrest him for operating a vehicle while intoxicated.
Wilkinson was assisted out of the vehicle, patted down, and handcuffed. A
cloth bag was found in the front pocket of his sweatshirt. The bag was opened
and the syringe was found inside.
[35] The cloth bag was found on Wilkinson’s person, and at the time it was opened,
the officers had established probable cause to arrest him. This was a valid
search incident to a lawful arrest. See, e.g., U.S. v. Robinson, 414 U.S. 218, 236,
94 S. Ct. 467, 477, 38 L. Ed. 2d 427 (1973) (“Having in the course of a lawful
search come upon the crumpled package of cigarettes, [the officer] was entitled
to inspect it; and when his inspection revealed the heroin capsules, he was
entitled to seize them as fruits, instrumentalities, or contraband probative of
criminal conduct.”) (internal quotation and string citation omitted).
[36] In light of these exceptions to the warrant requirement, the officers’ search and
seizure did not violate the Fourth Amendment. The items were properly
seized, and the trial court did not abuse its discretion in admitting the items into
evidence at trial.
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 17 of 24
B. Indiana Constitution
[37] Wilkinson also argues that the warrantless search violated Article I, Section 11
of the Indiana Constitution. Although the text of this provision is identical to
the Fourth Amendment, the two have been afforded somewhat different
interpretations. See Shotts v. State, 925 N.E.2d 719, 726 (Ind. 2010). More
specifically, conformity of a search to the Indiana Constitution turns on an
evaluation of the “reasonableness” of the conduct of the law enforcement
officers under the circumstances, rather than on the expectation of privacy that
is commonly associated with analysis under the Fourth Amendment. Litchfield
v. State, 824 N.E.2d 356, 359 (Ind. 2005).
[38] We determine the reasonableness of a search or seizure by balancing: (a) the
degree of concern, suspicion, or knowledge that a violation has occurred; (b) the
degree of intrusion the method of the search or seizure imposes on the citizens’
ordinary activities; and (c) the extent of law enforcement needs. Rush v.
State, 881 N.E.2d 46, 52 (Ind. Ct. App. 2008). We give Article 1, Section 11
liberal construction in favor of protecting individuals from unreasonable
intrusions on privacy, id., and the State must bear the burden of showing that,
under the totality of the circumstances, an intrusion was reasonable. Mitchell v.
State, 745 N.E.2d 775, 786 (Ind. 2001).
[39] As for the first factor, the officers had a high degree of suspicion that a violation
had occurred. Wilkinson was found in a stranger’s driveway, slumped behind
the wheel of a wrecked vehicle. He appeared impaired, and there was a
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 18 of 24
partially-filled bottle of rum, a hand-rolled cigarette, cigarette rolling papers,
and a suspicious looking plastic vial in plain view in the vehicle.
[40] Regarding the second factor, the officers’ degree of intrusion was low. After
receiving information from the 911 dispatcher that an individual appeared to
need medical attention, and shortly after discovering Wilkinson, the officers
entered his vehicle to determine whether assistance was needed. The search of
the vehicle was limited to those items that were in plain view. The items found
in plain view, along with Wilkinson’s demeanor, provided probable cause for
the arrest. Once probable cause was established for the arrest, the officers were
authorized to conduct a thorough search of Wilkinson. See Edmond v. State, 951
N.E.2d 585, 592 (Ind. Ct. App. 2011) (“Although the search of a person’s body
is a substantial intrusion, a police officer is authorized to conduct a thorough
search of an arrestee.”) The search of Wilkinson’s person was only a pat-down
search of his clothing.
[41] Under the third factor, the need of law enforcement was high because the
officers needed to enter the vehicle to determine whether Wilkinson required
medical attention.
[42] Considering all three factors, we conclude that under the totality of the
circumstances the search of the vehicle and Wilkinson’s person was reasonable.
Thus, the trial court properly denied Wilkinson’s motion to suppress regarding
his claims under Article I, Section 11 of the Indiana Constitution, and was
within its discretion to admit the items found into evidence.
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 19 of 24
III. Juror Misconduct
[43] Wilkinson next argues the trial court abused its discretion when it denied his
motion to correct error that alleged juror misconduct, and declined to grant a
new trial. Jurors Guy Whelan and Henry Warsinsky both failed to disclose
during voir dire or trial that they knew State’s witness Brett Cieslack (the owner
of the vehicle in which Wilkinson was found). Wilkinson specifically argues
that this lack of disclosure caused him harm and deprived him of a fair trial
because 1) Cieslack’s testimony implicated him as the driver of the vehicle, and
2) the jurors’ connection to Cieslack and Cieslack’s daughter (to whom the
vehicle was on loan) might have made them less likely to consider whether the
contraband found in the vehicle belonged to “someone connected to Cieslack.”
Appellant’s Br. p. 32.
[44] During voir dire, the trial court read to all prospective jurors the names of the
witnesses that would testify at trial, including Brett Cieslack’s, and asked the
jurors if they were related to any of the witnesses by blood or marriage. Neither
Guy Whelan nor Henry Warsinsky disclosed any knowledge of Cieslack.
When Whelan entered the juror box, the prosecutor asked him and fellow
jurors if they had any connection to the parties, “or anything that you’ve
thought of maybe that you hadn’t thought of initially. . . [.]” Tr. p. 159.
Whelan did not respond. When Warsinsky entered the juror box, the
prosecutor asked him and other jurors if they had “thought of any other
particular reasons that you would not be able to serve on this particular jury –
either because you know something about it or have remembered you had some
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 20 of 24
knowledge or connection to one of the parties or anything like that . . . ?
Anything at all like that?” Id. at 212. Warsinsky did not respond. Defense
counsel asked Warsinsky and other jurors if they had any “personal or prior
relationships with any of the witnesses that have been named[.]” Id. at 217.
Again, Warsinsky did not respond. When the chosen jurors, including Whelan
and Warsinsky, returned for the start of the trial, the trial court again asked,
“Has anyone of you realized that you know something about the case that you
did not disclose previously? If so[,] raise your hand.” Id. at 235. No hands
were raised.
[45] In certain circumstances, the failure of a juror to disclose a relationship to one
of the parties may entitle the prejudiced party to a new trial. Stephenson v. State,
864 N.E.2d 1022, 1055 (Ind. 2007) (citation omitted). “Generally, proof that a
juror was biased against the defendant or lied on voir dire entitles the defendant
to a new trial.” Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988). However, to
obtain a new trial based on a claim of juror misconduct, the defendant must
demonstrate that the misconduct was gross and likely harmed the defendant.
Stephenson, 864 N.E.2d at 1055. Furthermore, the defendant must present
“specific, substantial evidence” establishing that a juror was possibly biased. Id.
(quoting Lopez, 527 N.E.2d at 1130).
[46] When ruling on a motion to correct error, the trial court sits as the initial
factfinder concerning the issues raised, and we review its decision for an abuse
of discretion. Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002). We review the
trial judge’s determination on whether a defendant should be entitled to a new
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 21 of 24
trial because of juror misconduct for abuse of discretion. Griffin v. State, 754
N.E.2d 899, 901 (Ind. 2001). We find that the trial court did not abuse its
discretion in denying Wilkinson’s motion to correct error and determining he
was not entitled to a new trial.
[47] At the hearing on Wilkinson’s motion, Brett Cieslack testified that he knew
both Warsinsky and Whelan, that Warsinsky was a friend of his son, and that
Guy Whelan owned a bar and grill restaurant that was located next door to
Cieslack’s business. He testified that Warsinsky had been to his house “with a
bunch of [other friends of his son]” and that he saw the group pass through his
house “and that’s about it.” Tr. p. 974. Cieslack indicated that he was not
close friends with either juror.
[48] Henry Warsinsky testified that he did not hear during voir dire that Cieslack
was one of the individuals on the witness list. He recognized Cieslack when he
entered the witness stand but did not bring this to the court’s attention. He
testified he is good friends with Cieslack’s son, that he is a Facebook friend of
the son, but does not communicate with the son through Facebook. Warsinsky
further testified that sometime after the trial, he and Cieslack talked in general
about Warsinsky being on the jury, but “[did not] discuss the case at all[,]
really.” Id. at 997. He also testified that knowing Cieslack did not influence his
decision in Wilkinson’s case.
[49] At the same hearing, Whelan testified that when he was asked during voir dire
if he knew Cieslack, he did not at that time recognize the name because he
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 22 of 24
misheard Cieslack’s first name to be “Brent”, not Brett. He further testified that
he knew Cieslack as an “acquaintance,” but had no other contact with him
other than “occasionally going to his church” and seeing him at the restaurant.
Id. at 986. Whelan and Cieslack are friends on Facebook but do not
communicate with each other through Facebook. When asked if knowing
Cieslack kept him from being impartial in reaching his decision in Wilkinson’s
case, Whelan answered that it did not.
[50] Whelan and Warsinsky should have informed the court of their connections to
Cieslack. However, Cieslack’s connection to the two jurors was casual. No
evidence was presented that the jurors deliberately withheld their acquaintance
with Cieslack. Although Wilkinson asserts that the two jurors’ connections to
Cieslack might have made them less likely to consider whether the items found
in the BMW might have belonged to someone related to Cieslack, Wilkinson
points to no evidence that supports his assertion. Also, ample evidence was
presented, beyond Cieslack’s testimony, that Wilkinson was the driver of the
vehicle.
[51] Moreover, Wilkinson presents no specific, substantial evidence that the two
jurors were biased. “. . . [M]erely being friends on Facebook does not, per se,
establish a close relationship from which bias or partiality on the part of a juror
may reasonably be presumed.” See Slaybaugh v. State, 44 N.E.3d 111, 118 (Ind.
Ct. App. 2015) (quoting McGaha v. Commonwealth, 414 S.W.3d 1, 6 (Ky. 2013)),
aff’d, 47 N.E.3d 607 (Ind. 2016). He also has failed to show that the jurors’ lack
of disclosure was gross and harmed him.
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 23 of 24
[52] Wilkinson has failed to meet his burden of showing juror misconduct. See,
e.g., Stephenson, 864 N.E.2d at 1055 (holding that a juror’s failure to disclose
that he knew the victim’s sister, who was a witness at trial and was the Sunday
school teacher of the juror’s children, did not entitle the defendant to a new trial
because the defendant had failed to present “specific evidence” that the juror
was biased or that the juror’s “nondisclosure of this casual connection” had any
effect on the juror’s performance). The trial court was well within its discretion
to deny his motion to correct error.
Conclusion
[53] For the reasons stated above, we affirm the trial court.
[54] Affirmed.
Mathias, J., and Altice, J., concur.
Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017 Page 24 of 24