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


      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-18 | October 18, 2016   Page 2 of 8
      “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.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-18 | October 18, 2016   Page 3 of 8
[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.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-18 | October 18, 2016   Page 4 of 8
                                  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


       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-18 | October 18, 2016   Page 5 of 8
       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).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-18 | October 18, 2016               Page 6 of 8
       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).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-18 | October 18, 2016                   Page 7 of 8
       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.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-18 | October 18, 2016   Page 8 of 8
