MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                        Dec 28 2017, 6:01 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     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
                                                        Monika Prekopa Talbot
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Douglas Alan Burris,                                    December 28, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        22A05-1704-CR-809
        v.                                              Appeal from the Floyd Superior
                                                        Court
State of Indiana,                                       The Honorable Maria D. Granger,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        22D03-1605-F5-1170
                                                        22D03-1610-F6-2190




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017          Page 1 of 13
                               Case Summary and Issues
[1]   Following a jury trial, Douglas Burris was convicted of possession of chemical

      reagents or precursors with intent to manufacture a controlled substance, a

      Level 6 felony; visiting a common nuisance, a Class B misdemeanor; possession

      of methamphetamine, a Level 6 felony; resisting law enforcement, a Class A

      misdemeanor; false informing, a Class B misdemeanor; and possession of

      paraphernalia, a Class C misdemeanor. Burris appeals his conviction, raising

      several issues for our review, which we consolidate and restate as: 1) whether

      the trial court committed fundamental error in admitting certain evidence; and

      2) whether the trial court’s sentencing statement contains a clerical error.

      Concluding the trial court did not commit fundamental error, but that the trial

      court’s written sentencing statement contains a clerical error, we affirm Burris’

      convictions and remand to the trial court to correct the sentencing statement.



                            Facts and Procedural History
[2]   On May 28, 2016, Floyd County Deputy Sheriff Brian Case initiated a traffic

      stop of a vehicle driven by Christopher Dowdle. Burris was a passenger in the

      vehicle. Because there was an active warrant for Dowdle’s arrest, Officer Case

      immediately placed Dowdle under arrest. Shortly thereafter, Officer Theodore

      Comer, Sr., from the Georgetown Police Department arrived at the scene to

      assist Officer Case.




      Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017   Page 2 of 13
[3]   Following Dowdle’s arrest, the officers conducted an inventory search of the

      vehicle and found narcotics and precursors to the manufacture of

      methamphetamine. Specifically, the officers found heroin, methamphetamine,

      marijuana, ecstasy, and paraphernalia including plastic bottles, forty-seven

      pseudoephedrine pills, a glass jar, clear plastic tubing, plastic bags, lithium

      batteries, and lighter fluid. Burris admitted the pseudoephedrine pills belonged

      to him. Burris was arrested and subsequently released after posting bond.


[4]   The State charged Burris, under cause number 22D03-1605-F5-001170 (“Cause

      1170”), with dealing in methamphetamine, a Level 5 felony; possession of a

      narcotic drug, a Level 6 felony; possession of chemical reagents or precursors

      with intent to manufacture a controlled substance, a Level 6 felony; possession

      of paraphernalia, a Class C misdemeanor; possession of marijuana, a Class B

      misdemeanor; and visiting a common nuisance, a Class B misdemeanor.


[5]   On October 18, 2016, Officers Eric May and Lynn Darensbourg of the New

      Albany Police Department were dispatched to investigate a suspicious person.

      When the officers arrived at the residence, there was a black Ford Ranger

      parked next to the house. They discovered the Ford Ranger belonged to Burris.

      The officers also observed a man, later identified as Burris, walking away from

      the home. When speaking with officers, Burris identified himself as “Daniel M.

      Edsell” and told the officers that a friend had dropped him off before denying

      the Ford Ranger belonged to him. Doubting his story, Officer May searched

      the Ford Ranger and found a cell phone that contained photos of Burris. Burris

      then admitted his true identity. Shortly thereafter, while speaking with the

      Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017   Page 3 of 13
      officers, Burris kicked off his flip flops and attempted to flee, but the officers

      apprehended him following a fifteen-minute pursuit.


[6]   A search of Burris’ Ford Ranger revealed a bong with green liquid inside, a

      straw used to snort drugs, a bag containing a white substance, and a bag

      containing methamphetamine. The bag containing methamphetamine was

      found inside a wallet. The wallet also contained the driver’s license of Daniel

      Edsell.


[7]   The State charged Burris, under cause number 22D03-1610-F6-002190 (“Cause

      2190”), with possession of methamphetamine, a Level 6 felony; resisting law

      enforcement, a Class A misdemeanor; false informing, a Class B misdemeanor;

      and possession of paraphernalia, a Class C misdemeanor.


[8]   In December of 2016, Burris and the State agreed to consolidate Cause 1170

      and Cause 2190 for trial. At trial, due to the availability of witnesses, the State

      presented the cases in reverse chronological order, with the October 2016 case

      being presented before the May 2016 case. When Officer Comer was asked

      why he decided to come to the traffic stop to assist Officer Case, he testified he

      had “previous knowledge” of Dowdle and Burris and thought he could assist

      Officer Case. Transcript, Volume II at 180, 182, 184. Burris did not object to

      Officer Comer’s testimony. In addition, during defense counsel’s cross-

      examination of Officer Case, defense counsel inquired about Dowdle and asked

      if any other officers had “experiences with Mr. Dowdle[?]” Id. at 237. Officer

      Case responded, “I was also told by other officers that they’ve had experiences


      Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017   Page 4 of 13
      with Mr. Burris also.” Id. Following this response, Burris moved for a mistrial.

      The trial court denied Burris’ motion for a mistrial but admonished the jury

      they were to disregard Officer Case’s statement.


[9]   For the charges filed under Cause 1170, the jury found Burris guilty of

      possession of chemical reagents or precursors with intent to manufacture a

      controlled substance and visiting a common nuisance. Under Cause 2190, the

      jury found Burris guilty of possession of methamphetamine, resisting law

      enforcement, false informing, and possession of paraphernalia. The trial court

      orally sentenced Burris to 900 days in the Indiana Department of Correction

      (“DOC”) for possession of chemical reagents or precursors and 180 days for

      visiting a common nuisance. The sentences under Cause 1170 were to run

      concurrent to each other and consecutive to the sentences under Cause 2190.

      Under Cause 2190, the trial court sentenced Burris to 900 days in the DOC for

      possession of methamphetamine, 360 days for resisting law enforcement, 180

      days for false informing, and sixty days for possession of paraphernalia. The

      trial court ordered Burris’ sentence for resisting law enforcement to run

      consecutively to his sentence for possession of methamphetamine but

      concurrently with his remaining offenses of false informing and possession of

      paraphernalia. The trial court stated Burris’ total sentence is 2160 days in the

      DOC. See Tr., Vol. III at 99. Burris now appeals.



                                Discussion and Decision


      Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017   Page 5 of 13
                                        I. Admission of Evidence
[10]   Burris first argues the trial court abused its discretion in admitting evidence of

       Burris’ character and criminal history. A trial court has broad discretion in

       ruling on evidentiary admissions. Erickson v. State, 72 N.E.3d 965, 969 (Ind. Ct.

       App. 2017), trans. denied. We review its rulings for abuse of discretion, which

       occurs when its decision was clearly against the logic and effects of the facts and

       circumstances. Id.


[11]   Burris alleges the State elicited a “drumbeat repetition” of character evidence

       and criminal history which should have been excluded pursuant to Indiana

       Rule of Evidence 404.1 Brief of Appellant at 22. Specifically, Burris alleges

       Officer Case and Officer Comer offered unsolicited comments suggesting they

       had previous encounters with Burris that amounted to character evidence and




       1
           Indiana Rule of Evidence 404 provides:

                  (a) Character Evidence.

                  (1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to
                  prove that on a particular occasion the person acted in accordance with the character or
                  trait.

                  ***

                  (b) Crimes, Wrongs, or Other Acts.

                  (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a
                  person’s character in order to show that on a particular occasion the person acted in
                  accordance with the character.




       Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017                    Page 6 of 13
criminal history. Burris complains of the following testimony from Officer

Comer and Officer Case:


        [State]:                 [Y]ou were familiar with these two (2)
                                 subjects?


        [Officer Comer]:         Yes.


        [State]:                 Okay. And you had some information that
                                 you thought would be helpful in this
                                 investigation?


        [Officer Comer]:         Yes. I had knowledge of . . . knowledge and
                                 information on both subjects.


        [State]:                 [O]nce you were . . . at the scene, what did
                                 you observe?


        [Officer Comer]:         I observed the two (2) subjects that I have
                                 previous knowledge of were at the scene and
                                 they were both detained.


        ***


        [State]:                 [I]n your assisting capacity there . . . did you
                                 observe anything else that you believe would
                                 be relevant to the jury?


        [Officer Comer]:         [O]ther than the—the methamphetamine and
                                 the prior knowledge that these subjects might
                                 have had . . . these items in their possession,
                                 no.


Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017   Page 7 of 13
        ***


        [Defense]:               Were you requested to be there or did you
                                 just hear about it and decided to show up on
                                 your own?


        [Officer Comer]:         I showed up on my own for the . . . mere fact
                                 that because I had the prior information
                                 about these two subjects.


Tr., Vol. II at 180-84.


        [Defense]:               [W]as this [Dowdle’s] first rodeo [with law
                                 enforcement]?


        [Officer Case]:          This was my first experience with Mr.
                                 Dowdle . . . besides what other officers had
                                 told me.


        [Defense]:               But other officers had many experiences with
                                 Mr. Dowdle, correct?


        [Officer Case]:          And I was also told by other officers that
                                 they’ve had experiences with Mr. Burris also.


Id. at 237.




Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017   Page 8 of 13
[12]   First, we note following Officer Case’s testimony, Burris immediately moved

       for a mistrial and requested the trial court admonish the jury.2 Although the

       trial court denied his motion for a mistrial, it did admonish the jury, stating,


                [M]embers of the jury . . . the Court is striking the last response .
                . . of Officer [Case] . . . as it pertains . . . to any dealings
                involving [Burris]. [T]he Court is admonishing you . . . to
                disregard that response that has been stricken and to give it no
                further consideration.


[13]   Id. at 239. This court may presume a timely and accurate admonishment by the

       trial court will cure any defect in the admission of evidence. Green v. State, 587

       N.E.2d 1314, 1317 (Ind. 1992). Burris has not offered any valid reasons3 why

       this admonishment was insufficient, and we conclude the trial court’s

       admonishment to the jury cured any possible error in Burris’ question and

       Officer Case’s answer.


[14]   Second, Burris did not object to any of Officer Comer’s testimony.

       Consequently, he has waived this issue for appeal unless fundamental error has

       occurred. Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013). Anticipating his

       waiver of the issue, Burris alleges the trial court committed fundamental error




       2
        The State argues Burris has waived this argument because he did not object. However, Burris’ immediate
       motion for mistrial and request for an admonishment are sufficient to preserve this issue for appeal.
       3
         Burris alleges the admonishment was insufficient because the trial court failed to also admonish the jury
       regarding Officer Comer’s statements; however, as we discuss below, Burris did not object during Officer
       Comer’s testimony.

       Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017           Page 9 of 13
       in admitting this evidence. We disagree, and conclude the admission of this

       evidence does not constitute fundamental error.


[15]   Fundamental error is an extremely narrow exception to waiver that applies only

       when the error amounts to a blatant violation of basic principles, the harm or

       potential for harm is substantial, and the resulting error denies the defendant

       fundamental due process. Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006).

       The claimed error must be so prejudicial to the rights of a defendant as to make

       a fair trial impossible. Taylor v. State, 717 N.E.2d 90, 93-94 (Ind. 1999).


[16]   Burris equates his case to Oldham v. State, 779 N.E.2d 1162 (Ind. Ct. App.

       2002), trans. denied. There, the defendant was convicted of murder and carrying

       a handgun without a license. At trial, the State introduced business cards and

       photos of the defendant with text reading, “‘America’s Most Wanted,’ ‘Wanted

       for: robbery, assault, arson, jaywalking,’ ‘Considered armed and dangerous,’

       and ‘Approach with extreme caution.’” Id. at 1171. The defendant asserted the

       admission of that evidence was fundamental error that prejudiced the jury

       against him.


[17]   On appeal, we determined the State used the photographs to suggest the

       defendant was dangerous. Because the manner in which the State introduced

       the evidence suggested the defendant had the characteristics of one who would

       have guns and kill another person, its introduction would require the defendant

       to refute not only the charged crimes but also the character evidence. Id. at




       Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017   Page 10 of 13
       1173. As such, we concluded the admission of the evidence was fundamental

       error. Id. at 1174.


[18]   Burris’ comparison of his case to Oldham is inapposite. As we stated in that

       case, the State’s evidence sought “to paint [the defendant] as a dangerous

       criminal” and “was obviously inadmissible” under Indiana Rule of Evidence

       404. Oldham, 779 N.E.2d at 1172. Here, the trial court issued a timely

       admonishment following Officer Case’s unsolicited comment and Officer

       Comer’s comments he had “prior information” or “previous knowledge” of

       Dowdle and Burris were vague, innocuous, and used to explain why he assisted

       with the traffic stop. Tr., Vol. II at 180-82. Although these comments also may

       have been properly excluded upon objection or warranted an admonishment to

       the jury, any error does not rise to the level of fundamental error. See Taylor v.

       State, 86 N.E.3d 157, 161-63 (Ind. 2017) (holding no fundamental error

       occurred despite the State repeatedly referring to a defendant accused of murder

       by his nickname, “Looney the Shooter”). Moreover, by the time Officer Comer

       testified, the jury had already heard the State’s presentation of Cause 2190,

       which included overwhelming evidence Burris had an encounter with police

       officers, lied to those officers, fled from them, and had narcotics in his vehicle.

       Presumably, these comments did not cause the jury to infer a criminal character

       any more than the fact they had just heard overwhelming evidence of his

       October encounter with the police. We conclude admission of this testimony

       did not deny Burris due process and therefore does not rise to the level of

       fundamental error.


       Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017   Page 11 of 13
                                        II. Burris’ Sentence
[19]   Burris also alleges the trial court’s written sentencing statement for Cause 2190

       contains a clerical error. Specifically, Burris notes the written sentencing

       statement orders Burris’ sentences for possession of methamphetamine,

       resisting law enforcement, and false informing to run consecutively to each

       other, contrary to the trial court’s oral pronouncement. The State concedes,

       and we agree, this written sentencing statement contains an error.


[20]   When oral and written sentencing statements conflict, we examine them

       together to discern the intent of the sentencing court. Skipworth v. State, 68

       N.E.3d 589, 593 (Ind. Ct. App. 2017). We may remand the case for correction

       of clerical errors if the trial court’s intent is unambiguous. Id.


[21]   At the sentencing hearing, the trial court stated,


               [F]or the Possession of Methamphetamine . . . I’m gonna (sic)
               order nine hundred (900) days . . . . [F]or the Resisting Law
               Enforcement . . . I’m gonna (sic) order three hundred and sixty
               (360) days. It will run consecutive to . . . the Possession of
               Methamphetamine . . . so that would make a total one thousand
               two hundred and sixty (1260) day sentence. For the False
               Informing, a hundred and eighty (180) days and Possession of
               Paraphernalia, sixty (60) days. I will run those concurrent to
               each other and to the Resisting Law Enforcement offense . . . .
               [T]hat amounts to a total between the two (2) cases [Cause 1170
               and Cause 2190] of two thousand one hundred and sixty (2160)
               days.




       Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017   Page 12 of 13
       Tr., Vol. III at 99. As noted by the parties, the written sentencing statement for

       Cause 2190 orders Burris’ sentences for possession of methamphetamine,

       resisting law enforcement, and false informing to run consecutively to each

       other.


[22]   The trial court’s oral sentencing statement unambiguously evinces its intent for

       Burris to serve a total of 2160 days in the DOC, with his sentences under Cause

       1170 and Cause 2190 to be served consecutively. If the written sentencing

       statement was correct, Burris would serve a total of 2340 days in the DOC.

       Thus, we conclude the trial court’s written sentencing statement contains a

       clerical error and we remand to the trial court to correct the error and order

       Burris’ sentence for false informing to run concurrently with his sentences for

       resisting law enforcement and possession of paraphernalia.



                                               Conclusion
[23]   We conclude any error in the admission of evidence does not rise to the level of

       fundamental error. However, the trial court’s written sentencing statement

       contains a clerical error and we remand to the trial court to correct that error.


[24]   Affirmed and remanded.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A05-1704-CR-809 | December 28, 2017   Page 13 of 13
