Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                              Apr 28 2014, 9:29 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                      ATTORNEYS FOR APPELLEE:

DAVID P. LYNCH                                               GREGORY F. ZOELLER
Amy Noe Law                                                  Attorney General of Indiana
Richmond, Indiana
                                                             ERIC P. BABBS
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

TRENT D. POPE,                                       )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 89A05-1307-CR-366
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE WAYNE SUPERIOR COURT
                           The Honorable Gregory A. Horn, Judge
                               Cause No. 89D02-1201-FB-7


                                           April 28, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

          Trent Pope appeals his conviction by jury of robbery as a Class B felony1 as well as

his adjudication as a habitual offender.2

          We affirm.

                                                    Issue

          The sole issue for our review is whether the trial court erred in admitting evidence.3

                                    Facts and Procedural History

          The facts most favorable to the verdict reveal that in the evening hours of March 5,

2013, Lawrence Burke picked up his friend Laura Ray, who sometimes spent the night at

Burke’s apartment, and Laura’s daughter, Crystal. This was the first time Burke had met

Crystal, who asked Burke to pick up Pope. This was also the first time Burke had met Pope.

Burke drove Laura, Crystal, and Pope to his apartment. At approximately 1:00 the following

morning, Burke allowed Crystal and Pope to borrow his 1993 green Honda Accord, which

had a missing left front hubcap and a broken out driver’s side passenger window that was

covered with plastic tape. Crystal and Pope drove to a nearby Village Pantry. Pope parked

the car and waited while Crystal went into the store and purchased a snack. Crystal asked the

cashier if she was working alone and leaned over the counter to look into the open cash

register after the cashier rang up her purchase.

1
    Ind. Code § 35-42-5-1.

2
    Ind. Code § 35-50-2-8.

3
 Pope also argues that “without the improperly admitted evidence,” there is insufficient evidence to support his
robbery conviction. However, because we find that the trial court did not err in admitting this evidence, we
need not address this issue.

                                                       2
       A few minutes after Crystal left the store, Pope entered it with a scarf covering his

face. He was brandishing a gun. He took money from the cash register, told the cashier at

gun point to lie face down on the ground, and fled the store. Pope and Crystal returned to

Burke’s apartment after the robbery. Burke, who had been drinking alcohol that night, did

not remember letting Crystal and Pope in the apartment when they got back. Pope did not

ask for permission to spend the night at Burke’s apartment, and Burke extended no such

invitation to Pope.

       Immediately after the robbery, the Village Pantry cashier called 911. The cashier told

the 911 operator that the robber was wearing a blue jacket with a noticeable tear. The cashier

also explained that the robber had a scarf wrapped around his face and brandished a gun.

Richmond Police Department Officer Jeffrey Carrico responded to a dispatch to the store

where he watched interior and exterior surveillance videos. The exterior video of the parking

lot showed a green car missing its left front hub cap. The car’s rear driver’s side window

was also covered. Officer Carrico searched for the car and found it in the parking lot of

Burke’s apartment building.

       The following morning, Officer Carter and Detective Legear knocked at Burke’s

door. When Burke opened the door, Officer Carter saw Pope run across the living room into

a bedroom. Burke gave the officer and the detective consent to search his one-bedroom

apartment. Officer Carter found Laura, Crystal, and Pope in the bedroom, where the officer

noticed a jacket with a tear, a gun, and a scarf, all in plain view. Pope admitted that the

jacket belonged to him. Detective Legear also noticed in plain view in the living room a pair


                                              3
of shoes that were similar to those worn by the robber in the surveillance video. Pope was

charged with robbery as a class B felony and was alleged to be a habitual offender. He filed

a motion to suppress the evidence found in Burke’s apartment. Specifically, Pope argued

that the officers had neither a search warrant nor Pope’s consent to the search or seizure. The

trial court denied Pope’s motion.

       On the first day of trial, the prosecuting attorney asked Detective Legear to double-

check the pocket of the jacket Pope was alleged to have worn during the robbery. Inside the

jacket’s pocket, Detective Legear found a traffic ticket that had been issued to Pope on

December 26, 2011. Pope objected to the admission of the traffic ticket based on its

untimely discovery. The trial court overruled Pope’s objection and admitted the ticket into

evidence.

       The trial court also admitted into evidence the jacket with the tear, the scarf, and

shoes found in Burke’s apartment. The jury convicted Pope of robbery as a class B felony,

and he admitted his status as a habitual offender. He now appeals.

                                  Discussion and Decision

        Pope argues that the trial court erred in admitting evidence. The admissibility of

evidence is within the sound discretion of the trial court and will not be disturbed without a

showing of an abuse of that discretion. Matson v. State, 844 N.E.2d 566, 570 (Ind. Ct. App.

2006), trans. denied. We examine the evidence most favorable to the ruling along with any

uncontradicted evidence. Id. We do not reweigh the evidence or judge witness credibility.

Id.


                                              4
       The Fourth Amendment to the United States Constitution protects citizens against

unreasonable searches and seizures performed by the government. Malone v. State, 882

N.E.2d 784, 786 (Ind. Ct. App. 2008). Generally, a search warrant is a prerequisite to a

constitutionally proper search and seizure. Id. When a search or seizure is conducted

without a warrant, the State bears the burden of proving that an exception to the warrant

requirement existed at the time of the search or seizure. Id.

       Here, Pope argues that the search and seizure of his property from Burke’s apartment

living room and bedroom, including the gun, jacket, scarf, and shoes, were unreasonable

under the Fourth Amendment of the United States Constitution and Article I, Section 11 of

the Indiana Constitution, and that the trial court abused its discretion by allowing the

evidence to be admitted. The State responds that Pope lacked an expectation of privacy in

Burke’s apartment living room and bedroom.

       A defendant must have a legitimate expectation of privacy in the premises that is the

subject of the search before he can challenge the search as unconstitutional. Matson, 844

N.E.2d at 570. An expectation of privacy gives rise to Fourth Amendment protection where

the defendant had an actual or subjective expectation of privacy and the claimed exception is

one which society recognizes as reasonable. Krise v. State, 746 N.E.2d 957, 969 (Ind. 2001).

When the constitutionality of a search is challenged, the defendant has the burden of

demonstrating a legitimate expectation of privacy in the premises searched. Matson, 844

N.E.2d at 570. An overnight guest has a legitimate expectation of privacy in the host’s home




                                             5
and may claim the protection of the Fourth Amendment, but one who is merely present with

the consent of the owner of the premises may not. Id.

       Here, Pope had just met Burke, and this was Pope’s first visit to Burke’s apartment.

Pope did not ask for permission to spend the night at Burke’s apartment, and Burke extended

no such invitation to Pope. Pope fled to Burke’s bedroom only after the police officers

knocked at the front door. Pope did not have an expectation of privacy in Burke’s apartment

living room or bedroom.

       We further note that even if Pope had a legitimate expectation of privacy in Burke’s

apartment, his argument would fail because Burke consented to the search, and the evidence

about which Pope complains was found in plain view. One of the well-recognized

exceptions to the warrant requirement is a voluntary and knowing consent to a search.

Temperly v. State, 933 N.E.2d 558, 563 (Ind. Ct. App. 2010), trans. denied. The consent

need not be given by the subject of the search, but may be given by a third person who has

authority over the premises. Primus v. State, 813 N.E.2d 370, 374 (Ind. Ct. App. 2004).

Here, Burke had the authority to consent to a search of his apartment.

       Further, under the plain view doctrine, if the police are lawfully in a position from

which they view an object, if its incriminating character is immediately apparent, and if the

officers have a lawful right of access to the object, they may seize it without a warrant.

Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). The seizure of property in plain view

involves no invasion of privacy and is presumptively reasonable if there is probable cause to

associate the property with criminal activity. Texas v. Brown, 460 U.S. 730, 741-42 (1983).


                                             6
Probable cause is a “flexible, common-sense standard” requiring that the facts available to an

officer would warrant a man of reasonable caution to believe that an item may be contraband

and does not require any showing that the belief is correct or even that it is more likely true

than false. Id. at 742. See also State v. Figgures, 839 N.E.2d 772, 779 (Ind. Ct. App. 2005),

trans. denied, (stating that a probability that incriminating evidence is involved is all that is

required).

       Here, based on the cashier’s description of the robber as well as the surveillance

videos, the officers knew what the robber wore and that he was carrying a gun. The officers

therefore had probable cause to associate the scarf, torn jacket, shoes, and gun with the

Village Pantry robbery. We therefore agree with the State that the seizure of these items in

plain view did not offend the Fourth Amendment, and the trial court did not err in admitting

them into evidence.

       Pope also argues that the search and seizure of these items violated his rights under

the Indiana Constitution. Although the language of Article I, Section 11 of the Indiana

Constitution tracks the language of the Fourth Amendment, Indiana has expressly rejected

the expectation of privacy as a test of the reasonableness of the search. Litchfield v. State,

824 N.E.2d 356, 359 (Ind. 2005). Rather, the legality of a governmental search under the

Indiana Constitution turns on an evaluation of the reasonableness of the police conduct under

the totality of the circumstances. Id. The totality of the circumstances requires consideration

of 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the




                                               7
degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary

activities, and 3) the extent of the law enforcement needs. Id. at 61.

       Here, we agree with the State that there was a high degree of suspicion that the person

who committed the robbery was inside Burke’s apartment. The officers determined that the

readily identifiable vehicle used in the robbery was registered to Burke. It was therefore

reasonable for the officers to begin their investigation at Burke’s apartment. The officers

searched Burke’s apartment after obtaining Burke’s consent. Pope did not live in the

apartment and had not even been invited to spend the night. He had just met Burke the night

before. Finally, the law enforcement need was high because the officers were attempting to

find the person who robbed the Village Pantry while armed with a weapon. We find no

violation of the Indiana Constitution, and the trial court did not err when it admitted Pope’s

jacket, scarf, shoes, and gun into evidence.

       Lastly, Pope argues that the trial court erred in admitting into evidence the traffic

ticket that Officer Legear found during trial in the pocket of the jacket Pope was alleged to

have worn during the robbery. Specifically, Pope contends that “[a]llowing its introduction

violated the discovery order.” Appellant’s Br. p. 4.

       The trial court is given broad discretion in discovery matters since it has the duty to

promote the discovery of truth and guide the proceedings. Williams v. State, 959 N.E.2d

360, 364-65 (Ind. Ct. App. 2012). Such rulings will be reversed only for an abuse of

discretion, which occurs when the trial court’s decision is against the logic and effect of the

facts and circumstances before it. Id. Due to the fact sensitive nature of discovery matters,


                                               8
the trial court’s ruling is cloaked in a strong presumption of correctness on appeal. Id.

Further, if a remedial measure is warranted, a continuance is usually the proper remedy.

Fleming v. State, 833 N.E.2d 84 (Ind. Ct. App. 2005). When a continuance is the appropriate

remedy, a defendant will waive any alleged error regarding noncompliance with the trial

court’s discovery order by failing to request a continuance. Id. Here, Pope has waived

appellate review of this issue because he failed to request a continuance.

       Waiver notwithstanding, the improper admission of evidence is harmless error when

the erroneously admitted evidence is merely cumulative of the other evidence before the trier

of fact. Purvis v. State, 829 N.E.2d 572, 585 (Ind. Ct. App. 2005), trans. denied. Here, as the

State points out, the relevance of the traffic ticket bearing Pope’s name being found inside

the jacket was to prove that that jacket belonged to Pope. However, Pope had already

admitted that the jacket belonged to him. Because the traffic ticket was cumulative of other

evidence, any error in admitting it was harmless. See id.

                                         Conclusion

       The trial court did not err in admitting evidence.

       Affirmed.

KIRSCH, J., and MAY, J., concur.




                                              9
