MEMORANDUM DECISION
                                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Apr 08 2019, 10:47 am
this Memorandum Decision shall not be
                                                                                    CLERK
regarded as precedent or cited before any                                       Indiana Supreme Court
                                                                                   Court of Appeals
court except for the purpose of establishing                                         and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                       Curtis T. Hill, Jr.
Elkhart, Indiana                                          Attorney General of Indiana

                                                          Laura R. Anderson
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Leonard E. Standifer,                                     April 8, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1794
        v.                                                Appeal from the Elkhart Superior
                                                          Court
State of Indiana,                                         The Honorable Stephen R.
Appellee-Plaintiff.                                       Bowers, Judge
                                                          Trial Court Cause No.
                                                          20D02-1410-F4-11



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1794 | April 8, 2019                           Page 1 of 5
                                             Statement of the Case
[1]   Leonard E. Standifer appeals his convictions of unlawful possession of a
                                                                        1
      firearm by a serious violent felon, a Level 4 felony; and possession of
                                                         2
      paraphernalia, a Class A misdemeanor. We affirm.


                                                     Issue
[2]   Standifer raises two issues, which we consolidate and restate as: whether the

      trial court erred in admitting a firearm and paraphernalia into evidence at trial.


                                   Facts and Procedural History
[3]   On the night of October 1, 2014, Sergeant Michael McHenry of the Elkhart

      County Sheriff’s Department was on patrol with his K-9 unit. Sergeant

      McHenry was trained in deploying K-9 units to search for contraband. He was

      accompanied by a new officer.


[4]   Sergeant McHenry saw a Chrysler Sebring pass him. The Sebring was traveling

      eighty-five miles per hour in a seventy mile per hour zone, so the sergeant

      initiated a traffic stop.


[5]   Standifer was the Sebring’s driver, and no one else was in the car. Sergeant

      McHenry approached the car and obtained Standifer’s driver’s license. He




      1
          Ind. Code § 35-47-4-5(c) (2014).
      2
          Ind. Code § 35-48-4-8.3 (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1794 | April 8, 2019   Page 2 of 5
      smelled an odor of marijuana emanating from the Sebring. As a result,

      Sergeant McHenry had Standifer get out of the car and handcuffed him.

      Standifer admitted he had smoked marijuana several hours prior and that there

      was a small amount of that drug in the car.


[6]   Sergeant McHenry intended to have the K-9 search for the marijuana, but he

      first searched the passenger compartment to look for anything that could injure

      the K-9. He found a pill bottle, which he opened. The bottle contained a green

      leafy substance that later field-tested positive for marijuana. Sergeant McHenry

      determined at that point that he was going to arrest Standifer.


[7]   Next, Sergeant McHenry retrieved his K-9 from his car. The K-9 indicated the

      presence of controlled substances at the driver’s side door handle and at the

      trunk, near the latch. The sergeant returned the K-9 to his car and opened the

      trunk. He found a small glass pipe with burnt residue and a brillo pad in a

      container. Sergeant McHenry recognized those items as commonly used to

      smoke crack cocaine. In addition, he found a handgun in another container.

      Further investigation revealed that Standifer had a prior conviction of

      manslaughter from New York state.


[8]   On October 6, 2014, the State charged Standifer with possession of a firearm by

      a serious violent felon, possession of paraphernalia, and possession of

      marijuana, a Class A misdemeanor. Standifer filed a motion to suppress, which

      the trial court denied after a hearing. The case was tried by jury, and the jury




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1794 | April 8, 2019   Page 3 of 5
       determined he was guilty as charged. The court imposed a sentence, and this

       appeal followed.


                                    Discussion and Decision
[9]    Standifer does not challenge Sergeant McHenry’s decision to pull him over. In

       addition, Standifer does not challenge the sergeant’s search of the passenger

       compartment of his car, which led to the discovery of the marijuana. Standifer

       instead claims the search of the trunk violated his federal and state

       constitutional protections against unreasonable search and seizure. He

       concludes the trial court should not have admitted the handgun and the

       paraphernalia into evidence.


[10]   The State argues Standifer has waived his constitutional claims for appellate

       review. The State notes, and Standifer does not disagree, that Standifer failed

       to object to the admission of the handgun and paraphernalia at trial. “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.” Wagner v. State, 474 N.E.2d 476, 484 (Ind. 1985). We

       conclude Standifer has procedurally defaulted his constitutional claims.


[11]   Standifer next argues in his reply brief that regardless of waiver, admitting the

       handgun and paraphernalia into evidence was fundamentally erroneous. A

       panel of this Court has described the fundamental error doctrine as follows:


               The fundamental error doctrine is an exception to the general
               rule that the failure to object at trial constitutes a procedural

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1794 | April 8, 2019   Page 4 of 5
               default precluding consideration of an issue on appeal. The
               fundamental error exception is extremely narrow. To qualify as
               fundamental error, the error must be so prejudicial to the rights of
               the defendant as to make a fair trial impossible. The
               fundamental error exception 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.


       Hayworth v. State, 904 N.E.2d 684, 694 (Ind. Ct. App. 2009) (quotations and

       citations omitted).


[12]   The State claims an appellant may not raise issues, including fundamental

       error, for the first time in a reply brief. We agree. See Curtis v. State, 948 N.E.2d

       1143, 1148 (Ind. 2011) (declining to address claim of fundamental error; claim

       raised for first time in reply brief). As a result, we will not review Standifer’s

       search and seizure claims on the merits or for fundamental error.


                                                 Conclusion
[13]   For the reasons stated above, we affirm the judgment of the trial court.


[14]   Affirmed.


       Tavitas, J., concur.


       Pyle, J., dissent without opinion.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1794 | April 8, 2019   Page 5 of 5
