MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                  Apr 29 2019, 8:51 am
court except for the purpose of establishing                                     CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                       Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana

                                                          Jesse R. Drum
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth N. McFall,                                        April 29, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2322
        v.                                                Appeal from the Perry Circuit
                                                          Court
State of Indiana,                                         The Honorable Mary Lucille
Appellee-Plaintiff.                                       Goffinet, Judge
                                                          The Honorable Karen A. Werner,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          62C01-1804-F3-325



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019                      Page 1 of 17
                                        Statement of the Case
[1]   Kenneth N. McFall appeals his convictions following a jury trial for dealing in

      methamphetamine, as a Level 3 felony; possession of marijuana, as a Class B

      misdemeanor; and possession of paraphernalia, as a Class C misdemeanor. He

      presents three issues for our review, which we restate as follows:


              1.       Whether McFall preserved for appellate review his
                       argument that the trial court erred under the Fourth
                       Amendment and Article 1, Section 11 of the Indiana
                       Constitution when it admitted evidence that law
                       enforcement officers had seized pursuant to a search of his
                       residence.

              2.       Whether the trial court abused its discretion when it did
                       not allow a witness to testify in front of the jury.

              3.       Whether the trial court abused its discretion when it
                       declined to give a proffered jury instruction.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On April 23, 2018, Sergeant Jason Shadwick of the Tell City Police Department

      applied for a search warrant for McFall’s residence. In support of his request

      for the search warrant, Sergeant Shadwick filed an affidavit of probable cause

      that stated in part:


              On April 23, 2018[,] Officer Bryan Hammack and Affiant both
              observed a 2001 tan or grey Chevrolet truck park along Jefferson
              Street at 747 14th Street. Officer[s] were conducting surveillance

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019   Page 2 of 17
        in the area in reference to tips received by citizens of drug dealing
        from this residence and another nearby residence. In the past,
        Tell City Police Department has also received information of
        Kenny McFall dealing in methamphetamine. While conducting
        surveillance on this residence, Officer Hammack observed Kenny
        McFall exit his home and go to the vehicle for a short time. Mr.
        McFall then went back to his residence and the vehicle left the
        residence. A short time later, Officer Hammack and I conducted
        a traffic stop on the vehicle in question on Franklin Street after
        observing the vehicle disregard a stop sign and discovering the
        vehicle plate was false/fictitious, coming back to a 1996 maroon
        Dodge.


        I then identified the driver as Henry Kellems. Mr. Kellems
        displayed an unusual level of nervousness. Mr. Kellems also
        indicated that he didn’t have current insurance on the vehicle and
        his driver status was found to be HTV (Habitual Traffic
        Violator). During the course of the traffic stop, I deployed my
        K9 partner, “Piko” to perform a free air sniff of the vehicle.
        During the free air sniff of the vehicle, K9 “Piko” gave a positive
        alert of a narcotic odor coming from the vehicle’s interior.
        During a subsequent search of the vehicle, I located a clear
        plastic bag containing a crystal like substance that appeared to be
        methamphetamine. That substance also field tested positive for
        methamphetamine. It should be noted that K9 “Piko” is a
        certified narcotics detection and police patrol dog.


        During an interview with Mr. Kellems, he confirmed that the
        substance was methamphetamine and that Mr. McFall delivered
        it to his vehicle when he arrived. Mr. Kellems admitted to
        getting methamphetamine from Kenny McFall’s residence in the
        past. Mr. Kellems stated that today, he and Kenny made a prior
        arra[nge]ment by phone that he would trade some sandstones to
        Kenny for some meth. Mr. Kellems stated the amount wasn’t
        agreed upon prior to meeting Kellems [sic] today. However, Mr.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019   Page 3 of 17
              Kellems did cite other times of trading things to McFall for
              methamphetamine.


              Mr. Kellems admitted that Kenny McFall had provided him with
              methamphetamine in the past prior to today, as well as today.
              Mr. Kellems also corroborated Officer Hammack’s surveillance
              of McFall coming out of his residence and delivering the bag of
              methamphetamine to him (Kellems) in his vehicle.


      Appellant’s App. Vol. II at 164-65. The trial court granted the search warrant

      that same day.


[4]   Later that evening, officers executed the search warrant. During the search,

      officers found an Altoids tin that contained a baggie with 7.92 grams of

      marijuana and rolling papers, an eyeglasses case that contained a corner baggie

      of methamphetamine that was tied with a blue twist tie and a pipe that had

      methamphetamine residue in it, an Altoids tin that contained four corner

      baggies of methamphetamine that were tied with blue twist ties, plastic baggies

      missing their corners, $658 in cash, and two long guns.


[5]   The State charged McFall with two counts of dealing in methamphetamine, as

      Level 3 felonies (Counts I and II); one count of possession of

      methamphetamine, as a Level 5 felony (Count III); one count of maintaining a

      common nuisance, as a Level 6 felony (Count IV); one count of possession of

      marijuana, as a Class B misdemeanor (Count V); and one count of possession

      of paraphernalia, as a Class C misdemeanor (Count VI).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019   Page 4 of 17
[6]   On May 24, McFall filed a motion to suppress any evidence seized during the

      search of his residence. In that motion, McFall asserted that the search warrant

      was unlawful because the affidavit for probable cause that Sergeant Shadwick

      had filed in support of his request for the search warrant contained only

      untrustworthy information. During the hearing on McFall’s motion, McFall

      specifically asserted that the affidavit in support of the search warrant was based

      only on hearsay statements and that the affidavit did not contain any

      information to indicate that the hearsay statements were reliable or credible.

      The trial court denied McFall’s motion.


[7]   The trial court held a jury trial from August 6 through August 8. During the

      trial, the State called Officer Hammack as a witness and questioned him about

      the search of McFall’s house. Specifically, the State asked Officer Hammack

      what officers had found during the search, and Officer Hammack stated that

      “[t]here was marijuana found, and there was methamphetamine found.” Tr.

      Vol. III at 163. At that point, McFall objected. The trial court overruled

      McFall’s objection, but, on McFall’s request, the trial court stated that it would

      show a continuing objection.


[8]   The State moved to admit as evidence photographs that officers had taken at

      McFall’s house. Specifically, the State moved to admit the following: a picture

      of a baggie of marijuana and rolling papers; a picture of an Altoids tin with

      marijuana; a picture of an open eyeglasses case that contained a glass pipe and

      a corner baggie of methamphetamine that was tied with a blue twist tie; a

      picture of an Altoids tin that contained four corner baggies of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019   Page 5 of 17
       methamphetamine, all of which were tied with blue twist ties; and a picture of a

       trashcan that contained baggies missing their corners. The trial court asked

       McFall if he had any objection to the admission of the photographs, and

       McFall responded, “No, Your Honor.” Id. at 164.


[9]    During his testimony, Officer Hammack testified that the presence of four

       corner baggies of methamphetamine at McFall’s house “indicates . . . that this

       would be a dealing situation.” Tr. Vol. III at 169. He further testified that the

       presence of baggies with missing corners indicates “that the defendant is dealing

       in methamphetamine.” Id. Additionally, Officer Hammack testified that,

       based on his experience, “[i]t is inconsistent . . . for a user to buy four separate

       baggies of that nature. It just doesn’t happen. It’s never happened, that I can

       recall in my 12 or so years.” Id. at 178. Rather, he stated that is more common

       for an individual to get one baggie that contains the amount of

       methamphetamine that the person had purchased. Further, Officer Hammack

       testified that he had never seen methamphetamine packaged with blue twist

       ties, which he testified was “unique.” Id. at 187. Officer Hammack testified

       that, after seeing the baggies with blue twist ties in McFall’s house, “[i]t further

       confirmed [his] suspicions that the methamphetamine that Mr. Kellems had in

       his vehicle,” which was also in a baggie tied with a blue twist tie, “came from

       Mr. McFall’s residence.” Id. at 187.


[10]   The State also called Sergeant Shadwick as a witness. Sergeant Shadwick

       testified that, when he first arrived at McFall’s house, McFall told him that “he

       may have a small amount of methamphetamine in an Altoids container in the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019   Page 6 of 17
       living room.” Id. at 206. Sergeant Shadwick also testified that a corner baggie

       tied with a blue twist tie is “not something that [he has] ever seen.” Id. at 207.

       The State then moved to admit as evidence the corner baggie of

       methamphetamine that officers had found in an eyeglasses case during the

       search of McFall’s house. When the trial court asked McFall if he had any

       objections, he responded: “No objection.” Id. at 209.


[11]   The State also moved to admit as evidence the Altoids tin that contained four

       corner baggies of methamphetamine. Again, when asked if he had any

       objections to the admission of that evidence, McFall stated: “No objection.”

       Id. at 212. And when the State moved to admit the four corner baggies of

       methamphetamine, he again stated that he had no objection. Sergeant

       Shadwick testified that, based on his training, having four baggies of

       methamphetamine is not indicative of personal use. He further testified that he

       believed that the baggie of methamphetamine that Kellems had, which was tied

       with a blue twist tie, “definitely came from” McFall’s residence because it

       matched the four baggies of methamphetamine at McFall’s house that were

       also tied with blue twist ties. Id. at 210.


[12]   The State then moved to admit as evidence $658 in cash that officers had

       collected from McFall’s residence. McFall again stated that he had no

       objection. McFall also stated that he had no objection when the State moved to

       admit as evidence the Altoids tin that contained a baggie of marijuana. McFall

       again stated the he had no objection when the State moved to admit the baggie

       of marijuana that officer had seized during the search of his house.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019   Page 7 of 17
[13]   After the State concluded its case-in-chief, McFall presented evidence in his

       defense. McFall attempted to call Kellems as a witness. Because Kellems had

       a pending criminal charge against him and because he planned to invoke his

       right against self-incrimination, the trial court heard arguments from the parties

       as to whether Kellems should be allowed to testify in the presence of the jury.

       McFall asserted that, under the Sixth Amendment, he should be allowed to

       question Kellems in the presence of the jury so that the jury could hear Kellems

       invoke his Fifth Amendment right. The State responded and stated that it

       would not be proper for the jury to hear Kellems invoke his right against self-

       incrimination. The trial court permitted Kellems to testify but only outside the

       presence of the jury, where he advised the trial court that he would invoke his

       Fifth Amendment right against self-incrimination.


[14]   McFall then testified in his defense. During his testimony, he admitted that he

       had possessed the marijuana and methamphetamine. He further testified that

       he did not sell the methamphetamine to Kellems but, rather, that Kellems had

       given him the methamphetamine in exchange for work that he had done for

       Kellems.


[15]   At the conclusion of the parties’ presentation of evidence, McFall proposed the

       following jury instruction:


               Because possession with intent to deliver is a mental state, it can
               be established only by considering the behavior of the relevant
               actor, the surrounding circumstances, and the reasonable
               inferences to be drawn therefrom. Circumstantial evidence of
               intent may support a conviction. Possession of a large amount of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019   Page 8 of 17
               narcotic substance is circumstantial evidence of the intent to
               deliver. The more narcotics a person possesses, the stronger the
               inference that he intended to deliver it rather than consume it
               personally.


       Tr. Vol. IV at 43. The State objected on the ground that the instruction was

       misleading. The trial court declined to give McFall’s proffered jury instruction.


[16]   At the conclusion of the trial, the jury found McFall guilty as charged, and the

       trial court entered judgment of conviction on all six counts. The trial court then

       held a sentencing hearing on August 28. At the hearing, the court vacated

       McFall’s convictions on Counts II, III, and IV “for double jeopardy purposes.”

       Id. at 73. The court sentenced McFall to an aggregate term of eight years in the

       Department of Correction. This appeal ensued.


                                      Discussion and Decision
                                    Issue One: Admission of Evidence

[17]   McFall first contends that the trial court erred under the Fourth Amendment

       and Article 1, Section 11 of the Indiana Constitution when it admitted as

       evidence items law enforcement officers had seized during the search of his

       residence. McFall’s arguments that the search of his residence violated his

       Fourth Amendment and Article 1, Section 11 rights raise “questions of law that

       we review de novo.” Redfield v. State, 78 N.E.3d 1104, 1106 (Ind. Ct. App. 2017)

       (quotation marks omitted), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019   Page 9 of 17
[18]   On appeal, McFall contends that the search of his house was illegal “because

       the search warrant was not supported by probable cause[.]” Appellant’s Br. at

       19. Specifically, McFall asserts that the search was improper because the

       affidavit for probable cause only contained “classic hearsay statements” and

       because the affidavit “contain[ed] no information corroborating” those

       statements.” Id. at 22, 23. But we need not address whether there was probable

       cause to issue the search warrant because we agree with the State that McFall

       has failed to preserve for our review the question of the admissibility of the

       evidence obtained during the search.


[19]   During his trial, McFall requested, and the trial court granted, a continuing

       objection to the admission of any evidence that law enforcement officers had

       seized during the search of his residence. It is well settled that “Indiana

       recognizes continuing objections.” Hayworth v. State, 904 N.E.2d 684, 691 (Ind.

       Ct. App. 2009). That is because “continuing objections serve a useful purpose

       in trials. That is, they avoid the futility of and waste of time inherent in

       requiring repetition of the same unsuccessful objection each time evidence of a

       given character is offered.” Id. at 692.


[20]   However, while continuing objections are useful, “there are dangers to using

       continuing objections.” Id. For example, in Hayworth, police officers obtained

       a warrant to search Hayworth’s residence. During the search, officers found

       guns, methamphetamine, and numerous items associated with the manufacture

       of methamphetamine. Id. at 688. Prior to trial, Hayworth filed a motion to



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019   Page 10 of 17
       suppress all evidence seized during the execution of the search warrant. Id.

       Following a hearing, the trial court denied Hayworth’s motion. Id. at 689.


[21]   During Hayworth’s ensuing jury trial, the State moved to admit as evidence the

       items seized during the search. Id. at 690. Hayworth affirmatively stated that

       she did not object to the admission of a photograph of lithium, which an officer

       had testified was the main ingredient in methamphetamine. The State then

       attempted to introduce as evidence a methamphetamine shopping list. At that

       point, Hayworth lodged a continuing objection to all evidence seized from her

       house, which the trial court overruled. Id. However, Hayworth affirmatively

       stated that she had no objection when the State subsequently moved to admit

       the following specific evidence that had been seized from her house: a close-up

       photograph of firearms, the firearms, glass jars and a grinder, a photograph of a

       propane tank with anhydrous ammonia, a photograph of a reaction vessel, a

       sample taken from the reaction vessel, a photograph of another tank that

       contained anhydrous ammonia, a photograph of lithium battery packaging, and

       a methamphetamine shopping list. Id. at 691-92.


[22]   Hayworth appealed her convictions and asserted that the trial court had erred

       when it admitted as evidence the items seized from her house. On appeal, this

       Court acknowledged that Hayworth had filed a continuing objection to the

       admission of evidence obtained during the search of her house. But this Court

       stated that, after she had lodged her continuing objection, the proper procedure


               would have been for Hayworth to have remained silent when the
               State introduced those various exhibits. But Hayworth did much
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019   Page 11 of 17
               more than that. Instead, she affirmatively said, “No objection.”
               This was confusing to the trial court, the State, and now us, the
               reviewing court, leaving us to speculate as to why she bounced
               back and forth between continuing objection and no objection.


       Id. at 693-94. Further, on appeal, Hayworth “assert[ed] that ‘No objection’

       really meant ‘no objection other than the continuing objection.’” Id. at 694. But

       this Court declined to “read ‘No objection,’ a simple and powerful two-word

       phrase, to have such a meaning.” Id. Accordingly, despite her continuing

       objection, because Hayworth had explicitly stated that she had no objection to

       the admission of the vast majority of the evidence against her, this Court held

       that she had waived her objection to the admission of that evidence. Id.


[23]   Similarly, here, McFall requested, and the trial court granted, a continuing

       objection to the admission of evidence that officers had seized during the search

       of his residence. Because the trial court permitted his continuing objection, the

       proper procedure upon the State’s request to admit the specific items of

       evidence was for McFall to remain silent or to state that he had no objection

       other than the continuing objection. But McFall did not do that. Instead,

       McFall affirmatively stated that he had no objection to the admission of the

       following evidence seized from his house: numerous pictures of marijuana and

       methamphetamine, a picture of baggies missing their corners, several corner

       baggies of methamphetamine, $658 in cash, and two long guns. In essence,

       McFall stated that he had no objection to almost all of the evidence against




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019   Page 12 of 17
       him. McFall has therefore waived his objection to the admission of the

       evidence seized during the execution of the search warrant. 1 See id.


                                      Issue Two: Kellems’ Testimony

[24]   McFall next contends that the trial court abused its discretion when it did not

       allow Kellems to testify in front of the jury. As the Indiana Supreme Court has

       stated:


                 Generally, a trial court’s ruling on the admission of evidence is
                 accorded “a great deal of deference” on appeal. Tynes v. State,
                 650 N.E.2d 685, 687 (Ind. 1995). “Because the trial court is best
                 able to weigh the evidence and assess witness credibility, we
                 review its rulings on admissibility for abuse of discretion” and
                 only reverse “if a ruling is ‘clearly against the logic and effect of
                 the facts and circumstances and the error affects a party’s
                 substantial rights.’” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.
                 2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind .2013)).


       Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015).


[25]   McFall specifically contends that the trial court abused its discretion when it did

       not allow Kellems to invoke his right against self-incrimination in front of the

       jury because it was part of McFall’s “reasonable defense strategy” and because

       it would “bolster his claim that Kellems was the actual perpetrator of the

       dealing offense.” Appellant’s Br. at 37. However, our Supreme Court has held




       1
         McFall makes no argument that the admission of the evidence seized from his house constituted
       fundamental error. Indeed, McFall does not acknowledge that he affirmatively stated that he had no
       objection to the admission of any of the evidence.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019               Page 13 of 17
       that “defendants do not have a right to force a witness to invoke the Fifth

       Amendment privilege before the jury.” Stephenson v. State, 864 N.E.2d 1022,

       1047 (Ind. 2007).


[26]   McFall acknowledges that our Supreme Court’s holding in Stephenson is

       “inconsistent” with his argument. Appellant’s Br. at 37. But he also asserts

       that the holding in Stephenson is “also completely inconsistent” with our

       Supreme Court’s holding in Johnson v. State. Id. In Johnson, which was an

       appeal from the denial of a petition for post-conviction relief, the Indiana

       Supreme Court held that Johnson’s attorney had not rendered ineffective

       assistance of counsel for failing to request an immediate limiting instruction

       after Johnson’s accomplice invoked his Fifth Amendment right in the presence

       of the jury. 719 N.E.2d 812, 815 (Ind. 1999). That Court further held that the

       actions of Johnson’s attorney of pointing out to the jury that Johnson’s

       accomplice had refused to testify “could represent a reasonable trial strategy

       to . . . bolster the defendant’s theory” that the accomplice had committed the

       crime instead of Johnson. Id.


[27]   Contrary to McFall’s assertions, the Supreme Court in Johnson did not hold that

       a defendant has a right under the Sixth Amendment to force a witness to invoke

       his right against self-incrimination in front of the jury. Instead, that Court

       simply held that, if a witness does invoke that right, it was a reasonable trial




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019   Page 14 of 17
       strategy for the defendant’s attorney to use that fact to bolster his defense.

       Accordingly, McFall’s reliance on Johnson is misplaced. 2


[28]   As discussed above, the Court in Stephenson stated that a defendant does not

       have the right to force a witness to invoke the Fifth Amendment in front of the

       jury. See Stephenson, 864 N.E.2d at 1047. Because McFall did not have the

       right to call Kellems as a witness for the sole purpose of having Kellems invoke

       his Fifth Amendment right in front of the jury, we cannot say that the trial court

       abused its discretion when it did not allow Kellems to testify in front of the jury.


                                         Issue Three: Jury Instruction

[29]   Finally, McFall asserts that the trial court abused its discretion when it failed to

       tender his proffered jury instruction. Our Supreme Court has set out our

       standard of review.


                “The trial court has broad discretion as to how to instruct the
                jury, and we generally review that discretion only for abuse.”
                Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012). To determine
                whether a jury instruction was properly refused, we consider:
                “(1) whether the tendered instruction correctly states the law; (2)
                whether there was evidence presented at trial to support giving
                the instruction; and (3) whether the substance of the instruction
                was covered by other instructions that were given.” Lampkins v.
                State, 778 N.E.2d 1248, 1253 (Ind. 2002). In doing so, “we



       2
         McFall also asserts that, “[t]o the extent that there is any conflict between Johnson and Stephenson, this
       Court should adopt the rationale in Johnson.” Appellant’s Br. at 37. However, it is well settled that “we are
       bound to follow the court’s most recent pronouncement on the issue.” Howse v. State, 627 N.E.2d 441, 444
       (Ind. Ct. App. 1999). Accordingly, even if the two cases were in conflict, we would be required to follow the
       Supreme Court’s decision in Stephenson as it was decided more than seven years after Johnson.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019                  Page 15 of 17
               consider the instructions ‘as a whole and in reference to each
               other’ and do not reverse the trial court ‘for an abuse of that
               discretion unless the instructions as a whole mislead the jury as
               to the law in the case.’” Helsley v. State, 809 N.E.2d 292, 303
               (Ind. 2004) (quoting Carter v. State, 766 N.E.2d 377, 382 (Ind.
               2002)).


       McCowan v. State, 27 N.E.3d 760, 763-64 (Ind. 2015).


[30]   McFall’s tendered jury instruction stated as follows:


               Because possession with intent to deliver is a mental state, it can
               be established only by considering the behavior of the relevant
               actor, the surrounding circumstances, and the reasonable
               inferences to be drawn therefrom. Circumstantial evidence of
               intent may support a conviction. Possession of a large amount of
               narcotic substance is circumstantial evidence of the intent to
               deliver. The more narcotics a person possesses, the stronger the
               inference that he intended to deliver it rather than consume it
               personally.


       Tr. Vol. IV at 43. On appeal, McFall contends that the trial court abused its

       discretion when it declined to give that jury instruction because it is an accurate

       statement of the law, the evidence and his defense supported giving the

       instruction, and no other instruction covered the substance of that instruction.


[31]   McFall is correct that his proffered jury instruction is technically a correct

       statement of the law. See Richardson v. State, 856 N.E.2d 1222, 1227 (Ind. Ct.

       App. 2006). However, “[i]nstructions that unnecessarily emphasize one

       particular evidentiary fact, witness, or phase of the case have long been

       disapproved.” Ludy, 784 N.E.2d at 461. Here, McFall’s instruction

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019   Page 16 of 17
       emphasized one piece of evidence, namely the amount of methamphetamine

       that McFall possessed. However, the State also presented evidence to

       demonstrate McFall’s intent to deliver in addition to the amount of

       methamphetamine that was in his possession. Specifically, the State presented

       evidence that McFall had four individual baggies of methamphetamine instead

       of one baggie. Both Sergeant Shadwick and Officer Hammack testified that the

       possession of four baggies indicated that it “would be a dealing situation.” Tr.

       Vol. III at 169. Further, the State presented as evidence baggies from McFall’s

       residence that were missing their corners, which both officers again testified was

       indicative of dealing. Because McFall’s proffered jury instruction improperly

       emphasized one particular piece of evidence, we cannot say that the trial court

       abused its discretion when it declined to give that instruction.


                                                    Conclusion

[32]   In sum, we hold that McFall has waived any challenge to the admission of

       evidence that officers obtained during the search of his residence despite his

       continuing objection because he affirmatively stated that he had no objection to

       the admission of almost all of the evidence. We further hold that the trial court

       did not abuse its discretion when it did not allow Kellems to testify in front of

       the jury or when it declined to give McFall’s proffered jury instruction. We

       therefore affirm McFall’s convictions.


[33]   Affirmed.


       Pyle, J., and Altice, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2322 | April 29, 2019   Page 17 of 17
