                                                                               FILED
                                                                          Dec 14 2018, 9:04 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Daniel J. Vanderpool                                      Curtis T. Hill, Jr.
      Warsaw, Indiana                                           Attorney General of Indiana
                                                                Jesse R. Drum
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Robert H. Smith,                                          December 14, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                85A05-1712-CR-2908
              v.                                                Appeal from the Wabash Circuit
                                                                Court
      State of Indiana,                                         The Honorable Robert R.
      Appellee-Plaintiff.                                       McCallen III, Judge
                                                                Trial Court Cause No.
                                                                85C01-1608-F4-925



      Tavitas, Judge.


                                              Case Summary
[1]   Robert Smith appeals his convictions for operating a motor vehicle while

      privileges are forfeited for life, a Level 5 felony; possession of

      methamphetamine, a Level 4 felony; illegal possession of a hypodermic syringe,


      Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018                 Page 1 of 15
      a Level 6 felony; carrying a handgun without a license, a Level 5 felony, and his

      status as a habitual offender. 1 We affirm.


                                                     Issues
[2]   Smith raises two issues, which we restate as:


              I.       Whether the trial court properly admitted evidence of a
                       handgun found during a search of the vehicle Smith was
                       driving.

              II.      Whether the trial court properly admitted evidence of
                       Smith’s prior acts.


                                                      Facts
[3]   On August 16, 2016, Smith and Jerry Glenn entered the apartment of Amanda

      Snow and Johnny Gillum in Wabash while Snow and Gillum were in bed.

      Smith was previously granted access to the apartment and had a key. Smith

      had stored some personal items at the apartment. At an earlier time, however,

      when Snow and Gillum were in jail, someone stole items from the apartment.


[4]   Smith became upset because he could not find his father’s coat. Smith told

      Gillum that if he could not find the coat, “he would shoot [Gillum] right on the

      spot.” Tr. Vol. II p. 63. Gillum had seen Smith with a pink gun fifteen days

      earlier, and Gillum took this threat seriously even though he did not see Smith




      1
        We held oral argument in this case at Indiana University South Bend on November 27, 2018. We thank
      counsel for their presentations and Indiana University South Bend and the American Democracy Project for
      their hospitality.

      Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018                 Page 2 of 15
      with a gun that evening. Smith found the coat but started to go to the garage to

      look for his other items. Gillum “knew that some of [Smith’s] stuff was missing

      at that point” and was worried. Id. at 64.


[5]   On his way to the garage, Smith asked Gillum if Gillum could get some heroin.

      Gillum saw this as an opportunity to get away from Smith. Gillum feigned a

      call to his dealer and told Smith the dealer would meet Smith at a gas station

      nearby. Smith and Glenn left the apartment to go to the gas station.


[6]   After Smith and Glenn left, Gillum and Snow immediately left the apartment

      and started walking away. A friend saw them and took them to Wal-Mart. At

      Wal-Mart, Snow used a store phone 2 and contacted the police to report the

      threats made by Smith against Gillum. Snow told the dispatcher what Smith

      was driving and where Gillum had told Smith and Glenn to wait. Snow and

      Gillum waited at Wal-Mart to speak to law enforcement.


[7]   Officer Phillip Mickelson of the Wabash Police Department received a dispatch

      that Smith had threatened to shoot someone and that Smith would be at the gas

      station. Officer Mickelson went to the gas station and located the vehicle Snow

      had reported Smith was driving. The vehicle was located in a parking spot in

      the gas station’s small parking lot. 3 Officer Mickelson confirmed there were



      2
       Gillum explained his cell phone only worked on Wi-Fi, and he and Snow wanted to leave the apartment
      before Smith could return. They went to a “public setting [because they] just felt safe and it seemed right to
      go there.” Tr. Vol. II p. 68.
      3
       State’s Exhibit 1, which is an aerial photograph of the gas station, shows approximately ten to twelve
      parking spots.

      Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018                       Page 3 of 15
      two people in the vehicle. As he parked, Officer Mickelson observed the driver

      in the vehicle “reach towards the . . . passenger side, back seat area[.]” Id. at

      84. As he approached the vehicle, Officer Mickelson recognized the person in

      the driver’s seat to be Smith, and he knew Smith was a habitual traffic violator.


[8]   Officer Andrew Johnson of the Wabash Police Department arrived at the scene

      and approached the vehicle from the passenger side. Officer Mickelson

      informed Glenn and Smith of the allegations that Smith had threatened

      someone, but Glenn and Smith “advised they ha[d] no idea what [Officer

      Mickelson was] talking about.” Id. at 85. Glenn and Smith said they were at

      the gas station waiting for a friend. With respect to the vehicle they were in,

      Smith and Glenn said the car was owned by “a buddy,” and later said that they

      were “buying it from a friend.” Id. at 85, 106. The men, however, could not

      name the owner of the vehicle. 4


[9]   Deputy George Ryan Short of the Wabash County Sheriff’s Department also

      arrived at the scene. Deputy Short went inside the gas station and viewed the

      security camera footage. The footage showed Smith driving the vehicle.

      Deputy Short showed the footage to Officer Mickelson. Officer Mickelson

      proceeded to arrest Smith for operating a motor vehicle while privileges are




      4
       The owner of the vehicle was Brittney Saylor of Peru, Indiana. Smith stipulated to this fact at the hearing
      on his motion to suppress. Suppression Hearing Tr. Vol. II p. 24.

      Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018                      Page 4 of 15
       forfeited for life. When Officer Mickelson searched Smith’s person, incident to

       the arrest, he found a bag of methamphetamine and a syringe.


[10]   Officer Johnson asked Glenn to exit the vehicle, and he performed a pat down

       search. The pat down search did not reveal any illegal items. Because Glenn’s

       license was suspended, however, Glenn was not allowed to drive the vehicle.

       Glenn was released and walked away.


[11]   Officer Mickelson decided to have the vehicle impounded because (1) the

       owner of the vehicle was not there; (2) the vehicle was parked in the gas station

       parking lot; (3) the backseat of the vehicle was full of items that needed to be

       inventoried; and (4) neither Smith nor Glenn was a licensed driver. Officers

       completed an inventory search. During the search of the vehicle, officers found

       a loaded black .38 caliber revolver on the backseat passenger floorboard.


[12]   On August 17, 2016, the State charged Smith with Count I, operating a motor

       vehicle while privileges are forfeited for life, a Level 5 felony; Count II,

       possession of methamphetamine, a Level 4 felony; Count III, illegal possession

       of a hypodermic syringe, a Level 6 felony; Count IV, carrying a handgun

       without a license, a Class A misdemeanor; and Count V, carrying a handgun

       without a license, a Level 5 felony. The State also alleged Smith was a habitual

       offender.


[13]   On May 19, 2017, Smith filed a motion to suppress the handgun and alleged the

       officers had performed an “unlawful inventory search” under both the Fourth

       Amendment and Article 1, Section 11 of the Indiana Constitution. Appellant’s

       Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018   Page 5 of 15
       App. Vol. II p. 112. After a hearing on the motion to suppress, the trial court

       denied the motion to suppress.


[14]   On October 3, 2017, the State filed a notice of “404(b) Evidence” because it

       intended to have Gillum testify that he had “observed [Smith] pull a gun on

       another individual” on a prior occasion. Id. at 122. Smith filed a motion in

       limine regarding the evidence. During the hearing immediately prior to trial,

       the State clarified it intended “to present evidence that fifteen days before he –

       Johnny Gillum saw [Smith] in possession of a firearm, and then on this

       particular occasion [Smith was] threatening Johnny Gillum, to shoot Johnny

       Gillum, and that’s what led [Snow and Gillum] to call the police.” Tr. Vol. II

       p. 23.


[15]   The trial court found that the evidence of Smith’s possession of a gun fifteen

       days earlier and Smith’s threat to shoot Gillum on the day of the incident was

       admissible evidence. The trial court then stated:


                And so I’ll show that, without making an objection, unless you
                feel it’s necessary on the record, I’m going to show you’ve made
                that objection for the record. I think that issue is preserved for
                the record in fairness to your client. But the Court of Appeals, if
                necessary, would have the full authority to consider you made
                that objection timely when it was offered.


       Id. at 33.


[16]   At the jury trial, Smith did not object to Gillum’s testimony regarding Smith’s

       possession of the gun fifteen days before the incident or to Gillum’s testimony


       Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018   Page 6 of 15
       regarding the threats on the day of the incident. Smith did object to the

       admission of evidence found as a result of the inventory search, and the trial

       court overruled the objection.


[17]   The jury found Smith guilty of Counts I through IV. Smith then waived his

       right to a jury trial regarding Count V and the habitual offender allegation. The

       trial court found Smith guilty of Count V and found that Smith is a habitual

       offender. The habitual offender enhancement was applied to Count II, the

       methamphetamine possession charge. The trial court merged Count IV,

       carrying a handgun without a license, a Class A misdemeanor, with Count V,

       carrying a handgun without a license, a Level 5 felony. The trial court

       sentenced Smith to an aggregate sentence of twenty-five years in the

       Department of Correction.


                                                    Analysis
                                          I. Admission of Handgun

[18]   Smith argues that the trial court erred by denying his motion to suppress and by

       admitting the handgun at trial. According to Smith, the admission of the

       handgun violated both the Fourth Amendment and Article 1, Section 11 of the

       Indiana Constitution. Because Smith appeals from a completed jury trial, the

       issue is more appropriately framed as whether the trial court properly admitted

       the evidence at trial. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). “The

       general admission of evidence at trial is a matter we leave to the discretion of

       the trial court.” Id. at 259-60. “We review these determinations for abuse of


       Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018   Page 7 of 15
       that discretion and reverse only when admission is clearly against the logic and

       effect of the facts and circumstances and the error affects a party’s substantial

       rights.” Id. at 260.


                                            A. Fourth Amendment

[19]   The Fourth Amendment to the United States Constitution protects citizens

       against unreasonable searches and seizures by prohibiting them without a

       warrant supported by probable cause. U.S. Const. amend. IV. “The

       fundamental purpose of the Fourth Amendment to the United States

       Constitution is to protect the legitimate expectations of privacy that citizens

       possess in their persons, their homes, and their belongings.” Taylor v. State, 842

       N.E.2d 327, 330 (Ind. 2006). This protection has been “extended to the states

       through the Fourteenth Amendment.” Bradley v. State, 54 N.E.3d 996, 999

       (Ind. 2016). “As a deterrent mechanism, evidence obtained in violation of this

       rule is generally not admissible in a prosecution against the victim of the

       unlawful search or seizure absent evidence of a recognized exception.” Clark,

       994 N.E.2d at 260. “When a search is conducted without a warrant, the State

       has the burden of proving that an exception to the warrant requirement existed

       at the time of the search.” Bradley, 54 N.E.3d at 999.


[20]   The parties addressed only the inventory search exception before the trial court.

       On appeal, Smith argues only that the inventory search exception does not

       apply. The State, however, argues on appeal that the search did not violate the

       Fourth Amendment because: (1) Smith did not have standing to challenge the

       search because he did not own the vehicle and did not prove that he had the
       Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018   Page 8 of 15
       owner’s permission to drive it; (2) the handgun was admissible under the

       automobile exception; and (3) the handgun was admissible under the inventory

       search exception. Because we conclude that the handgun was admissible under

       the inventory search exception, we need not address the State’s other

       arguments.


[21]   The inventory search is one exception to the Fourth Amendment’s warrant

       requirement “since it serves an administrative, not investigatory, purpose—

       because when police lawfully impound a vehicle, they must also perform an

       administrative inventory search to document the vehicle’s contents to preserve

       them for the owner and protect themselves against claims of lost or stolen

       property.” Wilford v. State, 50 N.E.3d 371, 374 (Ind. 2016). Proper

       impoundment is the “threshold question” when determining the validity of an

       inventory search. Id. “Impoundment is reasonable if it is authorized either by

       statute or the police’s discretionary community-caretaking function.” Id. at 375.


[22]   The State argues that the impoundment was statutorily authorized. 5

       “Impoundment pursuant to a statute is necessarily reasonable because the

       Legislature has deemed that citizens’ privacy interests in their cars yield to State

       interests in those circumstances, making police inventorying a necessary

       collateral administrative function.” Id. The State relies on Indiana Code

       Section 9-22-1-5, which provides: “When an officer discovers a vehicle in the




       5
           The State makes no argument that the discretionary community-caretaking function is applicable here.


       Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018                     Page 9 of 15
       possession of a person other than the owner of the vehicle and the person

       cannot establish the right to possession of the vehicle, the vehicle shall be taken

       to and stored in a suitable place determined by the officer.”


[23]   We agree that the vehicle was properly impounded under Indiana Code Section

       9-22-1-5. The officers discovered Smith in possession of the vehicle, but Smith

       told officers that the vehicle belonged to a “buddy” and that he was “buying it

       from a friend.” Tr. Vol. II pp. 85, 106. Smith, however, could not name the

       owner of the vehicle, which was registered to Brittney Saylor from Peru,

       Indiana. Smith could not establish the right to possess the vehicle. The officers

       properly impounded the vehicle and performed an inventory search. The gun,

       which was found during the inventory search, was properly admitted and not in

       violation of the Fourth Amendment.


                                           B. Indiana Constitution

[24]   The language of Article 1, Section 11 tracks the Fourth Amendment; however,

       “Indiana has explicitly rejected the expectation of privacy as a test of the

       reasonableness of a search or seizure.” Litchfield v. State, 824 N.E.2d 356, 359

       (Ind. 2005). Instead, the legality of a search “turns on an evaluation of the

       reasonableness of the police conduct under the totality of the circumstances.”

       Id. Reasonableness is determined by balancing: (1) the degree of concern,

       suspicion, or knowledge that a violation has occurred; (2) the degree of

       intrusion imposed by the search; and (3) the extent of law enforcement needs.

       Id. at 361.


       Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018   Page 10 of 15
[25]   Smith does not engage in a detailed examination of the three reasonableness

       factors. Rather, Smith merely argues the impoundment was unreasonable

       because:


               The vehicle was properly parked in a marked space, at a public
               space, and in full view of cameras in the store. It was not a
               hazard to the motoring public. It was not reported stolen, nor
               did the police make any effort to check with the registered owner
               to see if it was being purchased as claimed by Smith. Although
               Smith was arrested, his friend was released and could easily have
               called someone to have the car moved.


       Appellant’s Br. p. 20.


[26]   The officers here had a high degree of concern, suspicion, or knowledge that a

       violation had occurred given Snow’s 911 call; the threat to shoot Gillum;

       Smith’s reaching toward the backseat when he saw the officer approach; and

       the drugs and syringe found on Smith’s person when he was arrested. As for

       the degree of intrusion imposed by the inventory search, we conclude that the

       intrusion was minimal. Smith did not even own the vehicle and could not

       identify the owner. Finally, as for the extent of law enforcement needs, given

       Smith’s arrest and the fact that Smith could not even name the owner of the

       vehicle, law enforcement had a significant need to secure the vehicle and its

       contents, which were located in a gas station’s small parking lot. A balancing

       of these factors reveals that, under the totality of the circumstances, the police

       conduct here was reasonable. As such, the admission of the handgun, which




       Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018   Page 11 of 15
       was discovered during the inventory search, did not violate Article 1, Section 11

       of the Indiana Constitution.


                                         II. Admission of Prior Acts

[27]   Next, Smith argues that the trial court abused its discretion by admitting

       evidence of prior bad acts. “A trial court has broad discretion in ruling on the

       admissibility of evidence and we will disturb the court’s rulings only where the

       petitioner has shown an abuse of that discretion.” Bowman v. State, 51 N.E.3d

       1174, 1180 (Ind. 2016). An abuse of discretion occurs only if a ruling is clearly

       against the logic and effect of the facts and circumstances and the error affects a

       party’s substantial rights. Id. “Errors in the admission or exclusion of evidence

       are to be disregarded as harmless error unless they affect the substantial rights of

       the party.” Lewis v. State, 34 N.E.3d 240, 248 (Ind. 2015). “To determine

       whether an error in the introduction of evidence affected the appellant’s

       substantial rights, this Court must assess the probable impact of that evidence

       upon the jury.” Id.


[28]   Specifically, Smith challenges the admission of Gillum’s testimony regarding

       Smith’s actions on August 1, 2016, as follows:


               Q All right, so on or about August 1st, 2016, did you see Robbie
               Smith in possession of a firearm on that day?


               A Yeah.


               Q What kind of firearm was it?


       Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018   Page 12 of 15
                A I don’t know anything about guns. It was just a pink gun.


                Q Okay. Was it a rifle, shotgun, handgun?


                A It was a handgun.


       Tr. Vol. II p. 58.


[29]   Smith also challenges the admission of Gillum’s testimony regarding Smith’s

       actions on August 16, 2016, the date of the incident:


                Q . . . Was [Smith] mad – did he say anything to you if he
                couldn’t find the coat?


                A Yeah. Yeah, he did.


                Q What did he say?


                A That if his dad’s coat wasn’t there, that he would shoot me
                right on the spot.


       Id. at 63.


[30]   Smith argues that the evidence was inadmissible under Indiana Evidence Rule

       404(b). 6 Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime,




       6
        Immediately before the trial, the trial court found that the evidence of Smith’s possession of a gun fifteen
       days earlier and Smith’s threat to shoot Gillum on the day of the incident was admissible evidence. The trial
       court then stated:
             And so I’ll show that, without making an objection, unless you feel it’s necessary on the record,
             I’m going to show you’ve made that objection for the record. I think that issue is preserved for

       Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018                    Page 13 of 15
       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.” Such evidence, however, “may be admissible for another purpose,

       such as proving motive, opportunity, intent, preparation, plan, knowledge,

       identity, absence of mistake, or lack of accident.” Evid. R. 404(b). First, the

       court must determine that the evidence of other crimes, wrongs, or acts is

       relevant to a matter at issue other than the defendant’s propensity to commit the

       charged act. Camm v. State, 908 N.E.2d 215, 223 (Ind. 2009). Second, the court

       must determine that the proponent has sufficient proof that the person who

       allegedly committed the act did, in fact, commit the act. Id. Third, the court

       must “balance the probative value of the evidence against its prejudicial effect

       pursuant to Rule 403.” Id. Indiana Evidence Rule 403 provides: “The court

       may exclude relevant evidence if its probative value is substantially outweighed

       by a danger of one or more of the following: unfair prejudice, confusing the

       issues, misleading the jury, undue delay, or needlessly presenting cumulative

       evidence.”


[31]   We conclude that the trial court erred by admitting evidence that Smith

       possessed a pink gun at an earlier date. This evidence does not meet the




             the record in fairness to your client. But the Court of Appeals, if necessary, would have the full
             authority to consider you made that objection timely when it was offered.
       Tr. Vol. II p. 33. Smith did not object to this evidence during the trial. At oral argument, the State conceded
       that this issue was preserved for appeal. We believe better practice would have been for Smith to object
       during trial and for the trial court to inform Smith that such objections are necessary. Given the State’s
       concession, however, we will address this issue.

       Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018                      Page 14 of 15
       requirements of Evidence Rule 404(b), and any minimal probative value was

       outweighed by unfair prejudice to Smith. Despite the trial court’s error,

       however, any error in admitting evidence regarding the pink gun and the threat

       to shoot Gillum was harmless. Gillum’s very brief testimony that Smith

       possessed a pink gun on August 1, 2016, would not have had a probable impact

       on the jury’s determination that Smith possessed a gun on August 16, 2016.

       The gun recovered from the vehicle on August 16, 2016 was black, and Gillum

       testified that he did not see a gun on August 16, 2016. Further, the State

       presented overwhelming evidence of Smith’s guilt. Smith drove the vehicle to

       the gas station; he was arrested with methamphetamine and a syringe in his

       pocket; and he was seen reaching behind the passenger seat of the vehicle,

       where the black handgun was later found. The admission of the evidence at

       issue here did not affect Smith’s substantial rights. Any error in the admission

       of the evidence was harmless.


                                                  Conclusion
[32]   The trial court properly admitted evidence of the handgun found in the vehicle

       pursuant to the inventory search. Additionally, any error in the admission of

       evidence of Smith’s prior bad acts was harmless error. We affirm.


[33]   Affirmed.


       Crone, J., and Barnes, S.J., concur.




       Court of Appeals of Indiana | Opinion 85A05-1712-CR-2908 | December 14, 2018   Page 15 of 15
