                                                                             FILED
                                                                       Jan 27 2017, 8:42 am

                                                                             CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Steven Ripstra                                             Curtis T. Hill, Jr.
Jasper, Indiana                                            Attorney General of Indiana
                                                           James B. Martin
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Roger Wilkinson,                                          January 27, 2017

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          74A05-1603-CR-741
        v.                                                Appeal from the Spencer Circuit
                                                          Court.
                                                          The Honorable Jon A. Dartt, Judge.
State of Indiana,                                         Cause No. 74C01-1504-F4-60
Appellee-Plaintiff.




Barteau, Senior Judge




Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017                     Page 1 of 24
                                            Statement of the Case
[1]   Roger Wilkinson appeals his convictions of possession of methamphetamine, a
                             1                                                     2
      Level 5 felony, unlawful possession of a syringe, a Level 6 felony, operating a
                                                                         3
      vehicle while intoxicated, a Class A misdemeanor, operating a vehicle with a

      Schedule I or II controlled substance or its metabolite in the body, a Class C
                            4                                                          5
      misdemeanor, and possession of marijuana, a Class B misdemeanor. We

      affirm.


                                                      Issue
[2]   Wilkinson raises the following restated issues for our review:

                 I. Whether there was sufficient evidence to support his
                 convictions related to operating a vehicle;
                 II. Whether the warrantless search of his vehicle violated the
                 Indiana and Federal constitutions; and
                 III. Whether the trial court abused its discretion when it denied
                 his motion to correct error alleging juror misconduct.




      1
          Ind. Code § 35-48-4-6.1 (2014).
      2
          Ind. Code § 16-42-19-18 (2015).
      3
          Ind. Code § 9-30-5-2(b) (2001).
      4
          Ind. Code § 9-30-5-1(c) (2001).
      5
          Ind. Code § 35-48-4-11(a)(1) (2014).


      Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017           Page 2 of 24
                                   Facts and Procedural History
[3]   On April 10, 2015, at approximately 10:00 a.m., Christine Unversaw returned

      home and found a strange, gray BMW parked in her driveway. She saw an

      individual, later identified as Wilkinson, slumped over in the front seat.

      Christine went into her house to ask her husband, Shane, if he was expecting a

      visitor. Shane indicated he was not, and went outside to investigate. Christine

      followed, and the two approached the vehicle and observed Wilkinson holding

      his hand over his eyes and rocking back and forth. Wilkinson appeared

      disoriented and unsteady. He had trouble keeping his head up, and slurred his

      words. The vehicle’s windshield was damaged, and there was extensive

      damage to the driver’s side. The Unversaws asked Wilkinson if he needed help.

      He replied that he was “okay.” Tr. p. 296. Shane called 911 because both he

      and Christine thought Wilkinson needed assistance.


[4]   Officer James Faulkenburg with the Santa Claus Police Department arrived on

      the scene first, followed by Sergeant Harold Gogel and Deputy Marvin

      Heilman with the Spencer County Sheriff’s Department. (The officer, sergeant

      and deputy will be collectively referred to as “the officers.”) The officers

      determined Wilkinson was the individual seated behind the wheel, and that the

      vehicle was registered to Brett Cieslack. Cieslack had loaned the car to his
                                                 6
      daughter for her personal use.




      6
          It is unclear from the record why Wilkinson had the vehicle in his possession.


      Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017           Page 3 of 24
[5]   Wilkinson appeared to be sleeping and was slumped over behind the steering

      wheel. The officers noticed the damage to the vehicle, but determined that it

      was drivable. Emergency medical personnel also responded to the scene, but

      left shortly after arriving because the officers determined they were not needed.


[6]   Gogel and Faulkenburg approached the driver’s side of the vehicle. Heilman

      approached from the passenger side. Faulkenburg asked Wilkinson “if he was

      okay” and if he needed any medical attention. Id. at 398. Wilkinson stated that

      he did not know. Faulkenburg noticed that Wilkinson’s speech was slurred, but

      he showed no signs of physical injury. Faulkenburg opened the driver’s side

      door and observed a plastic vial laying between Wilkinson’s legs. Faulkenburg

      placed the vial on top of the vehicle.


[7]   Heilman, who was on the other side of the vehicle, saw a partially filled bottle

      of rum on the floorboard. He opened the passenger-side door and entered the

      vehicle. Once inside, he saw a hand-rolled cigarette he believed to be a

      marijuana cigarette. Neither he nor Gogel smelled alcohol on Wilkinson, but

      Heilman thought Wilkinson looked “lethargic,” and “seemed to be impaired,”

      and might be under the influence of illegal drugs. Id. at 440. Gogel noticed a

      package of cigarette rolling papers on the vehicle’s floorboard.


[8]   Faulkenburg asked Wilkinson to exit the vehicle, but had to lend assistance

      because Wilkinson was unable to do so on his own. Wilkinson was patted

      down. A cloth bag was found in the front pocket of his hooded sweatshirt. A




      Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 4 of 24
       syringe and a small glass jar were found inside of the bag. Wilkinson was

       placed in handcuffs and seated on the ground.


[9]    Heilman eventually took possession of the plastic vial that was found between

       Wilkinson’s legs. Without opening the vial, he determined it contained a hand-

       rolled cigarette and plastic bags that contained powdery substances. The vial

       was opened and it was confirmed that it contained three plastic bags that

       contained a white, powdery substance. The substances from two of the bags

       were tested using a field test kit. They tested positive for methamphetamine.


[10]   Gogel asked Wilkinson if he would take a field sobriety test at the scene, or a

       certified test at the law enforcement center. Wilkinson declined. At some point

       he was arrested and taken to jail, and the vehicle was impounded.


[11]   After arriving at the jail, a warrant was obtained to take a sample of

       Wilkinson’s blood. His blood tested positive for amphetamine,

       methamphetamine, and THC – an active component of marijuana. The rolled

       cigarettes and the substances found in the plastic bags were analyzed by the

       Indiana State Police Laboratory. One of the cigarettes was found to contain

       marijuana. It was confirmed that the other substances contained

       methamphetamine. Wilkinson was charged with eight offenses related to

       possession of drugs and paraphernalia, and operation of a vehicle while

       intoxicated.


[12]   Pre-trial, Wilkinson filed a motion to suppress the items found in the vehicle. A

       hearing was held on the matter, following which the trial court denied the

       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 5 of 24
       motion. The items (the rum bottle, the hand-rolled cigarettes, the plastic

       container and its contents, the cloth bag and its contents) were admitted into

       evidence at trial over Wilkinson’s objection. A jury found Wilkinson guilty of

       five of the eight offenses, and he was sentenced to an aggregate term of six
                7
       years.


[13]   Post-trial, Wilkinson filed a motion to correct error, alleging juror misconduct.

       It was determined that two jurors, Guy Whelan and Henry Warsinsky, both

       knew State’s witness Brett Cieslack, but failed to disclose this during voir dire or

       the trial. Wilkinson asked the court to order a new trial. Following a hearing

       on the matter, the trial court denied the motion. Wilkinson now appeals.


                                       Discussion and Decision
                                     I. Sufficiency of the Evidence
[14]   Wilkinson was convicted of Class A misdemeanor operating a vehicle while

       intoxicated, and operating a vehicle with a Schedule I or II controlled substance

       or its metabolite in the body. He maintains the State failed to present sufficient

       evidence that he actually operated the vehicle while intoxicated because




       7
         In addition to the offenses for which he eventually was found guilty, Wilkinson also was charged with Class
       A misdemeanor possession of paraphernalia, Level 6 felony possession of paraphernalia, and Class A
       misdemeanor possession of marijuana, apparently because a glass pipe was found at the scene of the incident.
       However, because no officer could testify, specifically, to where the pipe was found, the trial court excluded it
       from evidence. The State moved to dismiss the charges and the motions were granted.

       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017                          Page 6 of 24
       security camera footage that allegedly showed him operating the vehicle was
                                                              8
       destroyed and not placed into evidence.


[15]   Facts relevant to this issue are as follows. The Unversaws had security

       cameras. Their cameras captured footage of a gray BMW exiting the road that

       ran in front or their house and entering their driveway. Unsuccessful attempts

       were made to transfer the footage to a DVD. However, Deputy Faulkenburg

       was able to make a recording of the footage using his cell phone. The original

       footage was taped-over. The deputy’s recording was not made available for

       trial.


[16]   When reviewing the sufficiency of the evidence to support a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       judgment, without reweighing the evidence or reassessing witness credibility.

       Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014). We affirm if there is

       substantial evidence of probative value such that a reasonable trier of fact could

       have concluded the defendant was guilty beyond a reasonable doubt. Bailey v.

       State, 907 N.E.2d 1003, 1005 (Ind. 2009).


[17]   To convict Wilkinson of operating a vehicle while intoxicated, as a Class A

       misdemeanor, the State was required to prove beyond a reasonable doubt that




       8
         Wilkinson also seems to imply that the State’s failure to preserve the camera footage caused the jury to
       consider Shane Unversaw’s testimony regarding his recollection of the footage as useful to the State’s case,
       rather than as potentially exculpatory. However, because Wilkinson does not develop his argument, we
       decline to address it.

       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017                        Page 7 of 24
       he “operate[d] a vehicle while intoxicated . . . in a manner that endanger[ed]

       a person.” Ind. Code § 9-30-5-2 (2001). To convict him of operating a vehicle

       with a controlled substance in his body, as a Class C misdemeanor, the State

       was required to prove he operated a vehicle with a controlled substance listed in

       Schedule I or II of Indiana Code section 35-48-2 or its metabolite in his body.

       Ind. Code § 9-30-5-1(c) (2001). Indiana Code section 9-13-2-86 (2013) defines

       intoxication in pertinent part as under the influence of a Schedule I or II

       substance “so that there is an impaired condition of thought and action and the

       loss of normal control of a person’s faculties.” See also Ind. Code § 35-48-1-9

       (1988). Impairment can be established by evidence of the following: “(1) the

       consumption of a significant amount of alcohol; (2) impaired attention and

       reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on the breath; (5)

       unsteady balance; and (6) slurred speech.” Outlaw v. State, 918 N.E.2d 379, 381

       (Ind. Ct. App. 2009), opinion adopted, 929 N.E.2d 196 (Ind. 2010). We find that

       sufficient evidence was presented to establish that Wilkinson operated the gray

       BMW while intoxicated.


[18]   Wilkinson, who was seated behind the wheel of the BMW, told Shane

       Unversaw that he had been in an accident. Shane called 911 and told the

       dispatcher that a gray BMW was in his driveway, and that the individual in the

       vehicle might need medical attention because he was “out of it,” “disoriented.”

       State’s Exhibit 1 – Recording of 911 Call. The 911 call was entered into

       evidence and played for the jury. Shane testified that he reviewed the security

       camera footage which showed the gray BMW exit the road and enter his


       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 8 of 24
       driveway at approximately 9:30 a.m. Deputy Faulkenburg testified that he

       viewed the camera footage and that it showed the BMW enter the Unversaws’

       driveway from the main road. Christine Unversaw testified that when she left

       her house at 6:00 a.m., the BMW was not in her driveway. Upon her return at

       approximately 10:00 a.m., the vehicle was parked in her driveway. The officers

       arrived at approximately 10:30 a.m. The Unversaws and the officers testified

       that they observed Wilkinson slumped behind the wheel of the vehicle, and that

       he appeared unsteady and lethargic. Shane testified that the security camera

       footage did not show Wilkinson exiting the vehicle before the officers arrived.


[19]   Wilkinson’s blood was tested following his arrest. The toxicology report

       admitted into evidence showed that his blood tested positive for amphetamine

       and methamphetamine (Schedule II substances), and THC (a Schedule I

       substance). An expert in toxicology testified that, in her opinion, Wilkinson

       was impaired due to the level of controlled substances found in his body.


[20]   From this evidence, the jury could have reasonably concluded that Wilkinson

       operated the gray BMW while intoxicated. Wilkinson’s arguments to the

       contrary amount to nothing more than a request to reweigh the evidence, which

       we will not do. See Perez v. State, 872 N.E.2d 208, 212-13 (Ind. Ct. App. 2007),

       trans. denied. We conclude the jury was presented with sufficient evidence of

       probative value to establish that Wilkinson operated the vehicle while

       intoxicated, and to support his convictions for Class A misdemeanor operating

       a vehicle while intoxicated, and Class C misdemeanor operating a vehicle with

       a Schedule I or II controlled substance or its metabolite in the body.

       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 9 of 24
                                         II. Warrantless Search
[21]   Wilkinson claims the warrantless search that led to the discovery of drugs in his

       vehicle was improper under the Fourth Amendment to the United States

       Constitution and Article 1, Section 11 of the Indiana Constitution. He

       maintains there was no probable cause or reason for the search, and that upon

       arriving at the scene, the officers assumed, prior to finding any evidence of

       criminal activity, that “[he] must [have been] involved with drugs.” Appellant’s

       Br. p. 28.


[22]   Wilkinson appeals from the trial court’s admission of the evidence following a

       completed trial. Thus, the issue is appropriately framed as whether the trial

       court abused its discretion by admitting the evidence at trial. See Washington v.

       State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). A trial court is afforded broad

       discretion in ruling on the admissibility of evidence, and we will reverse such a

       ruling only upon a showing of an abuse of discretion. Id. An abuse of

       discretion involves a decision that is clearly against the logic and effect of the

       facts and circumstances before the court. Id. We will not reweigh the evidence,

       and we consider conflicting evidence in the light most favorable to the trial

       court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans.

       denied.


[23]   The State argues that the search was permitted under the following exceptions

       to the warrant requirement: the automobile exception, the plain view doctrine,

       and search incident to arrest. As an appellate court, we will sustain the trial


       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 10 of 24
       court if it can be done on any legal ground apparent in the record. Ratliff v.

       State, 770 N.E.2d 807, 809 (Ind. 2002). We find here that the search of the

       vehicle and Wilkinson’s person was justified under the medical assistance and

       automobile exceptions, the plain view doctrine, and a search incident to a

       lawful arrest.


                                        A. United States Constitution

[24]   The Fourth Amendment states that: “The right of the people to be secure in

       their persons, houses, papers, and effects, against unreasonable searches and

       seizures, shall not be violated, and no Warrants shall issue, but upon probable

       cause, supported by Oath or affirmation, and particularly describing the place to

       be searched, and the persons or things to be seized.” U.S. Const. amend. IV. A

       warrantless search or seizure is per se unreasonable, and the State bears the

       burden to show that one of the well-delineated exceptions to the warrant

       requirement applies. Osborne v. State, 63 N.E.3d 329, 331 (Ind. 2016) (citations

       and quotation omitted).


                                   Exceptions to Warrant Requirement

[25]   One such exception relevant to the circumstances in this case is that the law

       enforcement officer had “an objectively reasonable basis for believing that

       medical assistance was needed, or persons were in danger.” Michigan v.

       Fisher, 558 U.S. 45, 49, 130 S. Ct. 546, 549, 175 L. Ed. 2d 410 (2009) (internal

       quotations omitted); see also Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408,

       2413, 57 L. Ed. 2d 290 (1978) (“Numerous state and federal cases have


       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 11 of 24
       recognized that the Fourth Amendment does not bar police officers from

       making warrantless entries and searches when they reasonably believe that a

       person within is in need of immediate aid.”) (footnotes omitted). Our courts

       have recognized this exception. See Osbourne, 63 N.E.3d at 332.


[26]   Under the plain view doctrine, a police officer is permitted to seize items when

       he inadvertently discovers items of readily apparent criminality while rightfully

       occupying a particular location. First, the initial intrusion must have been

       authorized under the Fourth Amendment. Second, the items must be in plain

       view. Finally, the incriminating nature of the evidence must be immediately

       apparent. Jones v. State, 783 N.E.2d 1132, 1137 (Ind. 2003).


               The immediately apparent prong of the doctrine requires that the
               officer have probable cause to believe the evidence will prove
               useful in solving a crime. This does not mean that the officer
               must know that the item is evidence of criminal behavior.
               Probable cause requires only that the information available to the
               officer would lead a person of reasonable caution to believe the
               items could be useful as evidence of a crime. A practical,
               nontechnical probability that incriminating evidence is involved
               is all that is required. A lawful seizure must be based upon a
               nexus between the item seized and particular criminal behavior.
               The nexus must be one known to the officers at the time of the
               seizure and may not be based upon mere speculation.


       State v. Figgures, 839 N.E.2d 772, 779 (Ind. Ct. App. 2005) (citations and

       quotation marks omitted), trans. denied.




       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 12 of 24
[27]   The automobile exception is another well-recognized exception to the Fourth

       Amendment’s warrant requirement. See Myers v. State, 839 N.E.2d 1146 (Ind.

       2005). A search falls within this exception when a vehicle is readily mobile and

       probable cause exists to believe it contains contraband or evidence of a

       crime. Maryland v. Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 2014, 144 L. Ed.

       2d 442 (1999). Where there is probable cause to search a vehicle, a search is

       not unreasonable if it is based on facts that would justify the issuance of a

       warrant, even though a warrant has not been actually obtained. Id. “If a car is

       readily mobile and probable cause exists to believe it contains contraband, the

       Fourth Amendment thus permits police to search the vehicle without more.”

       Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed. 2d

       1031 (1996) (citing California v. Carney, 471 U.S. 386, 393, 105 S. Ct. 2066,

       2070, 85 L. Ed. 2d 406 (1985)). “If probable cause justifies the search of a

       lawfully stopped vehicle, it justifies the search of every part of the vehicle and

       its contents that may conceal the object of the search.” U.S. v. Ross, 456 U.S.

       798, 825, 102 S. Ct. 2157, 2173, 72 L. Ed. 2d 572 (1982).


[28]   Another exception to the warrant requirement is a search incident to a lawful

       arrest. Wilson v. State, 754 N.E.2d 950, 956 (Ind. Ct. App. 2001). A suspect is

       considered under arrest when a police officer interrupts his freedom and

       restricts his liberty of movement. Fentress v. State, 863 N.E.2d 420, 423 (Ind. Ct.

       App. 2007). The fact that a police officer does not inform a defendant he is

       under arrest prior to a search does not invalidate the search incident to arrest

       exception as long as there is probable cause to make an arrest. Id. Probable

       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 13 of 24
       cause for an arrest exists if at the time of the arrest the officer has knowledge of

       facts and circumstances which would warrant a man of reasonable caution to

       believe that the suspect has committed the criminal act in question. Id. A

       police officer’s subjective belief concerning whether he had probable cause to

       arrest a defendant has no legal effect. Id. An arrest is lawful if it is supported

       by probable cause. Id. A search incident to lawful arrest allows the arresting

       officer to conduct a warrantless search of the arrestee’s person and the area

       within his immediate control. Wilson, 754 N.E.2d at 956. “A search incident to

       a valid arrest is lawful regardless of what it reveals.” Garcia v. State, 47 N.E.3d

       1196, 1200 (Ind. 2016) (quoting Farrie v. State, 255 Ind. 681, 683, 266 N.E.2d

       212, 214 (1971)).


                                      1. Medical Assistance Exception

[29]   Here, the warrantless entry of Wilkinson’s vehicle was permissible under the

       medical assistance exception to the Fourth Amendment because it was

       reasonable for the officers to believe Wilkinson needed medical attention. The

       Unversaws placed a 911 call because a strange car that had been wrecked was

       parked in their driveway, and the driver of the vehicle was disoriented and

       unsteady. The officers responded to the call and confirmed the Unversaws’

       observations. Wilkinson was slumped over behind the wheel, his speech was

       slurred, and he responded, “I don’t know” when asked if he needed help. Tr. p.

       398. Under these circumstances, the officers had an objectively reasonable

       basis to believe that Wilkinson might need medical assistance. The State has



       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 14 of 24
       carried its burden of showing an exception to the warrant requirement to justify

       entry into the vehicle.


                                            2. Plain View Doctrine

[30]   Regarding the plain view doctrine, the first part of the doctrine (intrusion

       authorized by the Fourth Amendment) is satisfied, as the officers were

       responding to the Unversaws’ 911 call regarding a strange, wrecked vehicle

       sitting in their driveway. We find the second part of the doctrine is satisfied

       because the seized items were in plain view. The last part of the doctrine also is

       satisfied. It was reasonable for the officers to believe the items found could be

       useful as evidence of a crime based upon the 911 call, the officers’ initial

       observations of the vehicle and of Wilkinson, and Wilkinson’s demeanor.


[31]   The vehicle Wilkinson was driving was damaged. Deputy Heilman testified

       that Wilkinson appeared lethargic and seemed impaired. Wilkinson did not

       seem to suffer from any physical injuries. His speech was slurred. Heilman

       looked into the vehicle and saw a partially filled bottle of rum, and a hand-

       rolled cigarette he believed to be a marijuana cigarette. Officer Faulkenburg

       saw a plastic vial laying on the front seat between Wilkinson’s legs, and a

       package of rolling papers on the floorboard. Both Heilman and Faulkenburg

       testified that Wilkinson required assistance to exit the vehicle.


[32]   While additional testimony revealed that the officers did not smell alcohol on

       Wilkinson or in the car, and that Heilman smelled the cigarette but did not

       detect an odor of marijuana, as noted above, probable cause under the


       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 15 of 24
       immediately apparent clause of the plain view doctrine requires only that the

       information available to the officer would lead a person of reasonable caution

       to believe the items found could be useful as evidence of a crime. We conclude

       that the items found in Wilkinson’s vehicle passed this test.


                                           3. Automobile Exception

[33]   As for the automobile exception, we find under these circumstances that the

       exception applies. Probable cause existed for a reasonably prudent person to

       believe that a search of the vehicle where Wilkinson was found would uncover

       evidence of a crime. The officers, responding to a 911 call, found Wilkinson at

       10:30 in the morning in a wrecked but still operational vehicle that was parked

       in a strange driveway. He was slumped behind the wheel, and appeared

       lethargic, unsteady, and impaired. The officers observed in plain view a

       partially filled bottle of rum, a hand-rolled cigarette, cigarette rolling papers,

       and a small plastic vial. These items gave the officers probable cause to believe

       that evidence of the crimes for which Wilkinson ultimately was charged

       (operating a vehicle while intoxicated and under the influence of controlled

       substances) would be found. Once probable cause was established, the officers

       were permitted to search any items in the vehicle that might conceal controlled

       substances, including the plastic vial that contained methamphetamine and a

       marijuana cigarette. See Ross, 456 U.S. at 825.




       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 16 of 24
                                    4. Search Incident to Lawful Arrest

[34]   We find that the officers had probable cause to arrest Wilkinson, and a lawful

       basis to search his person. Wilkinson was found behind the wheel of a wrecked

       vehicle and in an impaired state. In plain view were a rum bottle, a hand-rolled

       cigarette, cigarette rolling papers, and a small plastic vial. Based upon

       Wilkinson’s demeanor and the items found in the vehicle, the officers had

       probable cause to arrest him for operating a vehicle while intoxicated.

       Wilkinson was assisted out of the vehicle, patted down, and handcuffed. A

       cloth bag was found in the front pocket of his sweatshirt. The bag was opened

       and the syringe was found inside.


[35]   The cloth bag was found on Wilkinson’s person, and at the time it was opened,

       the officers had established probable cause to arrest him. This was a valid

       search incident to a lawful arrest. See, e.g., U.S. v. Robinson, 414 U.S. 218, 236,

       94 S. Ct. 467, 477, 38 L. Ed. 2d 427 (1973) (“Having in the course of a lawful

       search come upon the crumpled package of cigarettes, [the officer] was entitled

       to inspect it; and when his inspection revealed the heroin capsules, he was

       entitled to seize them as fruits, instrumentalities, or contraband probative of

       criminal conduct.”) (internal quotation and string citation omitted).


[36]   In light of these exceptions to the warrant requirement, the officers’ search and

       seizure did not violate the Fourth Amendment. The items were properly

       seized, and the trial court did not abuse its discretion in admitting the items into

       evidence at trial.


       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 17 of 24
                                            B. Indiana Constitution

[37]   Wilkinson also argues that the warrantless search violated Article I, Section 11

       of the Indiana Constitution. Although the text of this provision is identical to

       the Fourth Amendment, the two have been afforded somewhat different

       interpretations. See Shotts v. State, 925 N.E.2d 719, 726 (Ind. 2010). More

       specifically, conformity of a search to the Indiana Constitution turns on an

       evaluation of the “reasonableness” of the conduct of the law enforcement

       officers under the circumstances, rather than on the expectation of privacy that

       is commonly associated with analysis under the Fourth Amendment. Litchfield

       v. State, 824 N.E.2d 356, 359 (Ind. 2005).


[38]   We determine the reasonableness of a search or seizure by balancing: (a) the

       degree of concern, suspicion, or knowledge that a violation has occurred; (b) the

       degree of intrusion the method of the search or seizure imposes on the citizens’

       ordinary activities; and (c) the extent of law enforcement needs. Rush v.

       State, 881 N.E.2d 46, 52 (Ind. Ct. App. 2008). We give Article 1, Section 11

       liberal construction in favor of protecting individuals from unreasonable

       intrusions on privacy, id., and the State must bear the burden of showing that,

       under the totality of the circumstances, an intrusion was reasonable. Mitchell v.

       State, 745 N.E.2d 775, 786 (Ind. 2001).


[39]   As for the first factor, the officers had a high degree of suspicion that a violation

       had occurred. Wilkinson was found in a stranger’s driveway, slumped behind

       the wheel of a wrecked vehicle. He appeared impaired, and there was a


       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 18 of 24
       partially-filled bottle of rum, a hand-rolled cigarette, cigarette rolling papers,

       and a suspicious looking plastic vial in plain view in the vehicle.


[40]   Regarding the second factor, the officers’ degree of intrusion was low. After

       receiving information from the 911 dispatcher that an individual appeared to

       need medical attention, and shortly after discovering Wilkinson, the officers

       entered his vehicle to determine whether assistance was needed. The search of

       the vehicle was limited to those items that were in plain view. The items found

       in plain view, along with Wilkinson’s demeanor, provided probable cause for

       the arrest. Once probable cause was established for the arrest, the officers were

       authorized to conduct a thorough search of Wilkinson. See Edmond v. State, 951

       N.E.2d 585, 592 (Ind. Ct. App. 2011) (“Although the search of a person’s body

       is a substantial intrusion, a police officer is authorized to conduct a thorough

       search of an arrestee.”) The search of Wilkinson’s person was only a pat-down

       search of his clothing.


[41]   Under the third factor, the need of law enforcement was high because the

       officers needed to enter the vehicle to determine whether Wilkinson required

       medical attention.


[42]   Considering all three factors, we conclude that under the totality of the

       circumstances the search of the vehicle and Wilkinson’s person was reasonable.

       Thus, the trial court properly denied Wilkinson’s motion to suppress regarding

       his claims under Article I, Section 11 of the Indiana Constitution, and was

       within its discretion to admit the items found into evidence.


       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 19 of 24
                                          III. Juror Misconduct
[43]   Wilkinson next argues the trial court abused its discretion when it denied his

       motion to correct error that alleged juror misconduct, and declined to grant a

       new trial. Jurors Guy Whelan and Henry Warsinsky both failed to disclose

       during voir dire or trial that they knew State’s witness Brett Cieslack (the owner

       of the vehicle in which Wilkinson was found). Wilkinson specifically argues

       that this lack of disclosure caused him harm and deprived him of a fair trial

       because 1) Cieslack’s testimony implicated him as the driver of the vehicle, and

       2) the jurors’ connection to Cieslack and Cieslack’s daughter (to whom the

       vehicle was on loan) might have made them less likely to consider whether the

       contraband found in the vehicle belonged to “someone connected to Cieslack.”

       Appellant’s Br. p. 32.


[44]   During voir dire, the trial court read to all prospective jurors the names of the

       witnesses that would testify at trial, including Brett Cieslack’s, and asked the

       jurors if they were related to any of the witnesses by blood or marriage. Neither

       Guy Whelan nor Henry Warsinsky disclosed any knowledge of Cieslack.

       When Whelan entered the juror box, the prosecutor asked him and fellow

       jurors if they had any connection to the parties, “or anything that you’ve

       thought of maybe that you hadn’t thought of initially. . . [.]” Tr. p. 159.

       Whelan did not respond. When Warsinsky entered the juror box, the

       prosecutor asked him and other jurors if they had “thought of any other

       particular reasons that you would not be able to serve on this particular jury –

       either because you know something about it or have remembered you had some

       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 20 of 24
       knowledge or connection to one of the parties or anything like that . . . ?

       Anything at all like that?” Id. at 212. Warsinsky did not respond. Defense

       counsel asked Warsinsky and other jurors if they had any “personal or prior

       relationships with any of the witnesses that have been named[.]” Id. at 217.

       Again, Warsinsky did not respond. When the chosen jurors, including Whelan

       and Warsinsky, returned for the start of the trial, the trial court again asked,

       “Has anyone of you realized that you know something about the case that you

       did not disclose previously? If so[,] raise your hand.” Id. at 235. No hands

       were raised.


[45]   In certain circumstances, the failure of a juror to disclose a relationship to one

       of the parties may entitle the prejudiced party to a new trial. Stephenson v. State,

       864 N.E.2d 1022, 1055 (Ind. 2007) (citation omitted). “Generally, proof that a

       juror was biased against the defendant or lied on voir dire entitles the defendant

       to a new trial.” Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988). However, to

       obtain a new trial based on a claim of juror misconduct, the defendant must

       demonstrate that the misconduct was gross and likely harmed the defendant.

       Stephenson, 864 N.E.2d at 1055. Furthermore, the defendant must present

       “specific, substantial evidence” establishing that a juror was possibly biased. Id.

       (quoting Lopez, 527 N.E.2d at 1130).


[46]   When ruling on a motion to correct error, the trial court sits as the initial

       factfinder concerning the issues raised, and we review its decision for an abuse

       of discretion. Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002). We review the

       trial judge’s determination on whether a defendant should be entitled to a new

       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 21 of 24
       trial because of juror misconduct for abuse of discretion. Griffin v. State, 754

       N.E.2d 899, 901 (Ind. 2001). We find that the trial court did not abuse its

       discretion in denying Wilkinson’s motion to correct error and determining he

       was not entitled to a new trial.


[47]   At the hearing on Wilkinson’s motion, Brett Cieslack testified that he knew

       both Warsinsky and Whelan, that Warsinsky was a friend of his son, and that

       Guy Whelan owned a bar and grill restaurant that was located next door to

       Cieslack’s business. He testified that Warsinsky had been to his house “with a

       bunch of [other friends of his son]” and that he saw the group pass through his

       house “and that’s about it.” Tr. p. 974. Cieslack indicated that he was not

       close friends with either juror.


[48]   Henry Warsinsky testified that he did not hear during voir dire that Cieslack

       was one of the individuals on the witness list. He recognized Cieslack when he

       entered the witness stand but did not bring this to the court’s attention. He

       testified he is good friends with Cieslack’s son, that he is a Facebook friend of

       the son, but does not communicate with the son through Facebook. Warsinsky

       further testified that sometime after the trial, he and Cieslack talked in general

       about Warsinsky being on the jury, but “[did not] discuss the case at all[,]

       really.” Id. at 997. He also testified that knowing Cieslack did not influence his

       decision in Wilkinson’s case.


[49]   At the same hearing, Whelan testified that when he was asked during voir dire

       if he knew Cieslack, he did not at that time recognize the name because he


       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 22 of 24
       misheard Cieslack’s first name to be “Brent”, not Brett. He further testified that

       he knew Cieslack as an “acquaintance,” but had no other contact with him

       other than “occasionally going to his church” and seeing him at the restaurant.

       Id. at 986. Whelan and Cieslack are friends on Facebook but do not

       communicate with each other through Facebook. When asked if knowing

       Cieslack kept him from being impartial in reaching his decision in Wilkinson’s

       case, Whelan answered that it did not.


[50]   Whelan and Warsinsky should have informed the court of their connections to

       Cieslack. However, Cieslack’s connection to the two jurors was casual. No

       evidence was presented that the jurors deliberately withheld their acquaintance

       with Cieslack. Although Wilkinson asserts that the two jurors’ connections to

       Cieslack might have made them less likely to consider whether the items found

       in the BMW might have belonged to someone related to Cieslack, Wilkinson

       points to no evidence that supports his assertion. Also, ample evidence was

       presented, beyond Cieslack’s testimony, that Wilkinson was the driver of the

       vehicle.


[51]   Moreover, Wilkinson presents no specific, substantial evidence that the two

       jurors were biased. “. . . [M]erely being friends on Facebook does not, per se,

       establish a close relationship from which bias or partiality on the part of a juror

       may reasonably be presumed.” See Slaybaugh v. State, 44 N.E.3d 111, 118 (Ind.

       Ct. App. 2015) (quoting McGaha v. Commonwealth, 414 S.W.3d 1, 6 (Ky. 2013)),

       aff’d, 47 N.E.3d 607 (Ind. 2016). He also has failed to show that the jurors’ lack

       of disclosure was gross and harmed him.

       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 23 of 24
[52]   Wilkinson has failed to meet his burden of showing juror misconduct. See,

       e.g., Stephenson, 864 N.E.2d at 1055 (holding that a juror’s failure to disclose

       that he knew the victim’s sister, who was a witness at trial and was the Sunday

       school teacher of the juror’s children, did not entitle the defendant to a new trial

       because the defendant had failed to present “specific evidence” that the juror

       was biased or that the juror’s “nondisclosure of this casual connection” had any

       effect on the juror’s performance). The trial court was well within its discretion

       to deny his motion to correct error.


                                                 Conclusion
[53]   For the reasons stated above, we affirm the trial court.


[54]   Affirmed.


       Mathias, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 74A05-1603-CR-741 | January 27, 2017   Page 24 of 24
