MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                              May 09 2019, 8:52 am

court except for the purpose of establishing                                  CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

William Tyler Johnson,                                   May 9, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1972
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D01-1708-F5-111



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1972 | May 9, 2019                     Page 1 of 7
[1]   William Tyler Johnson appeals his conviction for Level 5 felony burglary. 1

      Johnson argues the trial court erred in admitting the statement he made to

      police before being mirandized. 2 We affirm.



                                   Facts and Procedural History
[2]   On August 22, 2017, Officer Kent Hesher of the Lafayette Police Department

      was dispatched to 2000 Monon Avenue regarding a possible home invasion in

      progress. No one was living in the house at the time, but it was undergoing

      renovation. Officer Hesher was dispatched to the scene at 6:51 a.m. and

      arrived at 6:55 a.m. Upon arrival, Officer Hesher did not observe anyone enter

      the house, nor did he see anyone running from the house.


[3]   Officer Samuel Galaluck was also dispatched to the scene and arrived at 7:01

      a.m. As Officer Galaluck approached the house, he heard noises coming from

      inside a room that had an open window. The officers found Johnson inside the

      house near the open window. Just outside the open window, officers found an

      air compressor and a tool box. Johnson was wearing basketball shorts, black

      shoes, a black hooded sweatshirt, and a sock hat when the officers encountered

      him. Officer Galaluck initially handcuffed Johnson. At some point, officers

      removed the handcuffs but, when Johnson began grabbing at his pockets,




      1
          Ind. Code § 35-43-2-1.
      2
          See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1972 | May 9, 2019   Page 2 of 7
      officers reapplied the handcuffs and conducted a pat down search of Johnson.

      During that search, Officer Galaluck found a small flashlight and a black

      bandana. Officer Galaluck remained with Johnson, while Officer Hesher and

      another officer cleared the house. They did not find anyone else inside the

      house.


[4]   Johnson spoke with the officers for approximately five minutes. He indicated

      he was the one who called 911 and he saw people running away from the house

      to the east. Officers determined, however, that Johnson did not place the 911

      call. Rather, the call was placed by Mel Gregory, who lived across the street

      from 2000 Monon Avenue with Johnson and Johnson’s mother. After placing

      the 911 call, Gregory observed the officers’ arrival and saw an air compressor

      come out a side window and fall onto the ground.


[5]   Officers then put Johnson into a patrol car while they waited for the owner of

      2000 Monon Avenue to arrive. The homeowner did not store tools outside,

      where the air compressor and tool box were found. In addition, the

      homeowner discovered a “half inch hammer drill and a drill and impact wrench

      set” were missing from the house. (Tr. Vol. II at 62.) Inside the house, police

      found a trash can that contained tools, cords, rulers, and other items, but the

      homeowner did not store tools inside the home in this manner.


[6]   Police transported Johnson to the Lafayette Police Department. At the police

      station, Police read him miranda warnings and interrogated him. The State

      charged Johnson with burglary as a Level 5 felony and theft as a Level 6 felony.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1972 | May 9, 2019   Page 3 of 7
      The State also alleged that Johnson was a habitual offender. On May 30 and

      31, 2018, the trial court held a jury trial and the jury returned a guilty verdict on

      both counts. The Court entered judgment of conviction for burglary, finding

      that the theft count merged with the burglary count. Johnson admitted being a

      habitual offender, and the court imposed an aggregate sentence of seven years.



                                Discussion and Decision
[7]   Johnson contends the trial court erred in admitting statements he made to

      police at the scene. Specifically, the statements that he was the one who called

      911 and that he observed people running from the house toward the east. We

      evaluate a decision to admit or exclude evidence using an abuse of discretion

      standard because such decisions are within the trial court’s “sound discretion”

      and are “afforded great deference” on appeal. Fugett v. State, 812 N.E. 2d 846,

      848 (Ind. Ct. App. 2004). We will reverse a decision to admit evidence only

      where the admission is a “manifest abuse of discretion by the trial court

      resulting in the denial of a fair trial.” Johnson v. State, 831 N.E.2d 163, 168-69

      (Ind. Ct. App. 2005), trans. denied. “A decision is an abuse of discretion if it is

      clearly against the logic and effect of the facts and circumstances before the

      court.” Id. at 169.


[8]   Johnson failed to make contemporaneous objections when Officer Hesher

      testified regarding the statements Johnson made to the police at the scene. A

      contemporaneous objection is required at the time that evidence is introduced

      at trial in order to preserve the issue for appeal. Rhodes v. State, 996 N.E.2d 450,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1972 | May 9, 2019   Page 4 of 7
       454 (Ind. Ct. App. 2013). Officer Hesher testified, without objection, that

       Johnson said something to the police about another occupant being inside the

       house. On cross-examination by Johnson’s counsel, Officer Hesher testified

       that Johnson informed officers that he called 911.


[9]    Johnson did object when the State asked: “Did the defendant say to you the

       direction he claimed the people ran from the house in?” (Tr. Vol II at 37.)

       During a sidebar, the court indicated he would allow the State to ask about

       which direction the defendant said he saw people running. But, upon return to

       open court, the court announced that it was sustaining Johnson’s objection.

       Nevertheless, Johnson did not object when the State asked Officer Hesher “to

       which direction did the defendant say the people ran from the house?” (Tr.

       Vol. II at 40.) Consequently, Johnson has waived any claim regarding

       improper admission of this testimony. See Brown v. State, 929 N.E.2d 204, 206-

       07 (Ind. 2010) (failing to make a contemporaneous objection waives issue for

       appeal), reh’g denied.


[10]   Indiana Rule of Evidence 103(b) provides that “[o]nce the court rules

       definitively on the record at trial a party need not renew an objection or offer of

       proof to preserve a claim of error for appeal.” Here, the court did not rule

       definitively on the record because its statements during the sidebar conflicted

       with its statement upon return to open court, and Johnson did not renew the

       objection or ask for a continuing objection. See Laird v. State, 103 N.E.3d 1171,

       1180 (Ind. Ct. App. 2018) (“While the best practice would still be to object

       contemporaneously with the admission of any disputed evidence, Evidence

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1972 | May 9, 2019   Page 5 of 7
       Rule 103 was amended to allow parties to rely on the existence of a continuing

       objection after a trial court has ruled definitively at trial.”), trans denied.


[11]   As we have determined that the claim has been waived by failure to make a

       contemporaneous objection, we will reverse only upon a showing of

       fundamental error. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). As our

       Supreme Court has explained, “[t]he 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.” Id. (internal quotation marks

       omitted). The claimed error must be so egregious it renders a fair trial

       impossible or constitutes a blatant violation of basic and elementary principles

       of due process. Id. Admission of Johnson’s statements does not amount to

       fundamental error.


[12]   Admission of the statements Johnson made to the police at the scene amounts

       at most, to harmless error because they could not have affected Johnson’s

       substantial rights. See Lander v. State, 762 N.E.2d 1208, 1213 (Ind. 2002) (error

       harmless if it does not neglect substantial rights). For one, the statements

       themselves are not inculpatory. Johnson told officers at the scene only that he

       was the one that called 911 and that he saw people running from the house to

       the east. Second, there is substantial independent evidence of guilt in the

       record. A 911 call was placed regarding a possible burglary in progress at a

       house across the street from Johnson’s residence. While officers were

       responding to the call, a witness observed an air compressor come out one of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1972 | May 9, 2019       Page 6 of 7
       the house’s windows and land on the ground outside the house. Johnson was

       the only individual found inside the house. Johnson was wearing a black

       hoodie and a black sock cap in the middle of summer, with a small flashlight

       and a black bandana in his pocket. Additionally, items that were usually kept

       inside the house were found outside the house near the open window where

       Johnson was located by police. Regardless of Johnson’s comments to the

       police at the scene, the evidence overwhelmingly pointed to Johnson’s guilt.

       See Houser v. State, 678 N.E.2d 95, 102 (Ind. 1997) (holding any error admitting

       pre-miranda statements was harmless because they were repetitive of properly

       admitted statements).



                                               Conclusion
[13]   Based on the foregoing, we conclude the trial court did not abuse its discretion

       in admitting Johnson’s pre-arrest statements into evidence because Johnson

       failed to object when Officer Hesher testified to those statements. Also,

       regardless of Johnson’s pre-arrest statements, there is substantial independent

       evidence of guilt in the record to support the jury’s verdict. We accordingly

       affirm.


[14]   Affirmed.


       Baker, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1972 | May 9, 2019   Page 7 of 7
