MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Mar 27 2019, 10:04 am
court except for the purpose of establishing                            CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy E. Stucky                                        Curtis T. Hill, Jr.
Stucky, Lauer & Young, LLP                               Attorney General of Indiana
Fort Wayne, Indiana                                      Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Vincent Welty,                                           March 27, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2872
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable David M. Zent,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         02D06-1806-CM-2667



Brown, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2872 | March 27, 2019              Page 1 of 8
[1]   Vincent Welty appeals his convictions for possession of paraphernalia and

      carrying a handgun without a license as class A misdemeanors. He raises one

      issue which we revise and restate as whether the trial court erred in admitting

      certain evidence. We affirm.


                                      Facts and Procedural History

[2]   On June 6, 2018, police were dispatched to an area in reference to a male

      walking into the woods armed with a rifle with a scope. The police determined

      that Welty was the registered owner of a van located at the scene. Fort Wayne

      Police Officer Geoff Norton responded to the dispatch, looked up Welty in his

      car computer, and saw alerts that Welty was trained in martial arts, was anti-

      government, and had made threats to harm or kill police officers. After police

      gave a loud hail using a P.A. on a squad car, Welty exited the woods, and

      Officer James Rowland placed him in handcuffs, patted him down, located two

      knives, and secured them. Officers asked Welty if he had a gun, and he stated

      that it was a pellet gun and was in the woods because he did not want to exit

      the woods with it.


[3]   Officers retrieved the gun, determined it was an operational airsoft gun that

      shot metal BBs, and Officer Rowland released Welty from the handcuffs and

      returned one of the knives to him. Welty placed the knife into a sheath on his

      belt and walked back towards his van. Welty asked Officer Norton for his other


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2872 | March 27, 2019   Page 2 of 8
      knife, and Officer Norton told him he was going to place it on the floorboard of

      Welty’s van. This was customary practice for safety reasons. Officer Norton

      approached the van with Welty, and Welty entered on the driver’s side. Officer

      Norton opened the passenger door to place the knife on the floorboard, and

      Welty “placed his hand quickly and violently behind a large black bag that was

      sitting on the passenger seat.” Trial Transcript at 22. At that point, Officer

      Norton’s level of concern was “[e]xtremely high.” Id. Officer Norton stood up

      to obtain a better look to see if there was “anything . . . that should cause [him]

      concern.” Id. at 23. Upon stepping up on the step on the side of the van,

      Officer Norton saw a part of a holster between the driver’s seat and front

      passenger seat. After realizing that Welty was within reach of a firearm, Officer

      Norton peeked his head in and verified it was actually a black handgun in the

      holster. At some point, Officer Norton asked Welty, “Is that a gun?” Id. at 12.

      Welty answered affirmatively. Officer Norton then asked him if he had a

      permit, and he said no. Officer Rowland, who was standing by the driver’s side

      door, took Welty by the left arm and placed him in handcuffs. At some point,

      Welty stated that he had a shotgun inside the vehicle as well.


[4]   Officer Norton took the weapon, found there were eighteen rounds in the

      magazine and a live round in the chamber, and made the weapon safe. After

      recovering the firearm, Officer Norton searched the vehicle and found a glass

      smoking device with burnt residue which he recognized to be similar to that

      used to ingest marijuana and other narcotics.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2872 | March 27, 2019   Page 3 of 8
[5]   On June 7, 2018, the State charged Welty with possession of paraphernalia and

      carrying a handgun without a license as class A misdemeanors. On October 12,

      2018, Welty filed a motion to suppress evidence based on the Fourth

      Amendment of the United States Constitution and Article 1, Section 11 of the

      Indiana Constitution.


[6]   On October 30, 2018, the court held a hearing on Welty’s motion which it later

      denied. On November 7, 2018, a bench trial was held. On direct examination,

      Officer Rowland testified that he walked up to the van, realized that Officer

      Norton was on the passenger side, asked Officer Norton if he had an

      identification, and saw “Officer Norton kind of, he made a move that to me . . .

      .” Id. at 12. Welty’s counsel objected and stated: “You’re [sic] honor, I’m just

      going to object for the record for any testimony pertaining to after the point that

      Officer Norton opened the door and got into the van and ask that you show a

      continuing objection relating to that.” Id. The court stated: “It might be a little

      premature as he hasn’t said anything about Officer Norton opening the door.”

      Id. Welty’s counsel indicated that she understood.


[7]   During direct examination, Officer Norton testified that he opened the door to

      place the knife on the floorboard, and Welty’s counsel stated: “At this point

      you’re [sic] honor, I’m going to object based upon my previous objection.

      Anything after he opened the door, that testimony relating to those actions, we

      would ask our objection to show continuing.” Id. at 22. The court stated:

      “We’ll not [sic] your objection and show it’s overruled at this point.” Id. The

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2872 | March 27, 2019   Page 4 of 8
      prosecutor asked Officer Norton some questions regarding the recovered

      firearm as State’s Exhibit 1 and later moved to admit the exhibit into evidence.

      Welty’s counsel asked Officer Norton some preliminary questions including if

      he was the one who placed the gun into the box, if anybody handled it

      subsequently, and who tested the firearm. After further discussion, Officer

      Norton testified that he found a glass smoking device with burnt residue which

      he recognized to be similar to that used by subjects to ingest marijuana or other

      narcotics. Officer Norton then indicated that he recognized State’s Exhibit 2 as

      the same glass smoking device that he located inside the van. The prosecutor

      moved to enter State’s Exhibit 2 into evidence, and Welty’s counsel stated “I

      have no objection.” Id. at 28. After further discussion, the court asked Welty’s

      counsel, “After preliminary questions, do you have any objection to exhibit one

      . . . ?” Id. at 29. Welty’s counsel answered: “I do not you’re [sic] honor.” Id.

      During cross-examination, Officer Norton indicated that he discovered the

      handgun after opening the door. After the State rested, Welty’s counsel moved

      for judgment on the evidence on the possession of paraphernalia charge, and

      the court denied the motion and found Welty guilty as charged.


                                                  Discussion

[8]   The issue is whether the trial court erred in admitting certain evidence.

      Generally, we review the trial court’s ruling on the admission or exclusion of

      evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind.

      1997), reh’g denied. We reverse only where the decision is clearly against the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2872 | March 27, 2019   Page 5 of 8
       logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386,

       390 (Ind. 1997), reh’g denied. We will not reverse an error in the admission of

       evidence if the error was harmless. Turner v. State, 953 N.E.2d 1039, 1058 (Ind.

       2011). Failure to timely object to the erroneous admission of evidence at trial

       will procedurally foreclose the raising of such error on appeal unless the

       admission constitutes fundamental error. Stephenson v. State, 29 N.E.3d 111,

       118 (Ind. 2015). Additionally, we have found the issue waived where a

       defendant objected to only a portion of the challenged evidence. See Dickey v.

       State, 999 N.E.2d 919, 921 (Ind. Ct. App. 2013); Hutcherson v. State, 966 N.E.2d

       766, 770 (Ind. Ct. App. 2012), trans. denied.


[9]    Welty argues that the plain view doctrine does not apply because Officer

       Norton unilaterally decided to return the seized property by opening the door,

       the incriminating character of the evidence was not immediately apparent, and

       Officer Norton had no right to physically enter and inspect the interior of his

       van. He contends that the State did not identify any exigent circumstances or

       other justifications for the search of the vehicle after he was taken into custody

       and that the discovery of the glass smoking pipe was not a valid search incident

       to arrest. The State argues in part that Welty waived any objection to the

       admission of the gun and pipe below and has waived the issues he raises on

       appeal.


[10]   We note that Welty’s counsel objected during Officer Rowland’s testimony to

       “any testimony pertaining to after the point that Officer Norton opened the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2872 | March 27, 2019   Page 6 of 8
door and got into the van and ask that you show a continuing objection relating

to that.” Trial Transcript at 12. However, the court stated that it might be

premature because Officer Rowland had not said anything about Officer

Norton opening the door, and Welty’s counsel indicated that she understood.

During Officer Norton’s testimony, Welty’s counsel objected based upon her

previous objection and stated: “Anything after he opened the door, that

testimony relating to those actions, we would ask our objection to show

continuing.” Id. at 22. The court stated: “We’ll not [sic] your objection and

show it’s overruled at this point.” Id. We note that Officer Rowland testified,

without objection, that: Officer Norton asked Welty, “is that [a] gun,” Welty

said “it was,” Officer Norton asked Welty if he had a permit for it, and Welty

said he did not. Id. at 12. During cross-examination, Officer Norton indicated

that he discovered the handgun after opening the door. Further, when the State

offered the gun as State’s Exhibit 1, the court asked Welty’s counsel if she had

any objection to the exhibit, and she answered: “I do not you’re [sic] honor.”

Id. at 29. The court then stated: “We’ll show one admitted without objection.”

Id. at 29-30. Officer Norton testified that State’s Exhibit 2 was the same glass

smoking device he located in the van, and when the prosecutor moved to admit

the pipe as State’s Exhibit 2, Welty’s counsel stated, “I have no objection,” and

the court stated: “We’ll show no objection to exhibit two.” Id. at 28. We

conclude that Welty waived any objection to the admission of the gun and pipe

and that reversal is not warranted. See Hayworth v. State, 904 N.E.2d 684, 693-

694 (Ind. Ct. App. 2009) (“By stating ‘No objection,’ we find that Hayworth
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2872 | March 27, 2019   Page 7 of 8
       has waived her objection to that evidence. The proper procedure, assuming the

       trial court granted the continuing objection, would have been for Hayworth to

       have remained silent when the State introduced those various exhibits.”). We

       also note that Welty does not assert fundamental error or that any error made a

       fair trial impossible. See Brown v. State, 929 N.E.2d 204, 207-208 (Ind. 2010)

       (holding that “[w]e do not consider that admission of unlawfully seized

       evidence ipso facto requires reversal,” observing that “there is no claim of

       fabrication of evidence or willful malfeasance on the part of the investigating

       officers and no contention that the evidence is not what it appears to be,” and

       holding that “[i]n short, the claimed error does not rise to the level of

       fundamental error,” and affirming the defendant’s convictions where the

       defendant made no contention that he did not receive a fair trial other than his

       assertion that the evidence was the product of an unconstitutional search and

       seizure), reh’g denied.


                                                   Conclusion

[11]   For the foregoing reasons, we affirm Welty’s convictions.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2872 | March 27, 2019   Page 8 of 8
