MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Sep 28 2017, 8:49 am
court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ronald J. Moore                                          Curtis T. Hill, Jr.
The Moore Law Firm, LLC                                  Attorney General of Indiana
Richmond, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Hassell L. Burden,                                       September 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         89A05-1704-CR-964
        v.                                               Appeal from the Wayne Superior
                                                         Court
State of Indiana,                                        The Honorable Gregory A. Horn,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         89D02-1507-F5-76



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-964 | September 28, 2017       Page 1 of 12
                                       Statement of the Case
[1]   Hassell L. Burden appeals his convictions, following a jury trial, for possession

      of cocaine or narcotic drug, as a Level 6 felony, and resisting law enforcement,

      as a Class A misdemeanor. He raises one issue on appeal, namely, whether the

      trial court abused its discretion when it admitted into evidence items obtained

      during an investigative stop. However, we hold that Burden has not preserved

      that issue for appellate review.


[2]   We affirm.


                                 Facts and Procedural History
[3]   At approximately 12:30 a.m. on July 11, 2015, Officer Andrew McClain of the

      Richmond Police Department was on patrol near the Tenth Street Park in

      Richmond. The area around that park is known as “a higher crime area” with

      “lots of burglaries in that area, vehicle thefts, intoxicated people, drug use,

      things of that nature.” Tr. Vol. I at 95. Officer McClain was driving

      southbound on 10th Street when he observed Burden walking northbound

      along the same road. He noticed that Burden wore “a long-sleeve[d] shirt” and

      “long, dark-colored pants” even though it was July and the weather was hot.

      Id.


[4]   Officer McClain observed Burden look in the direction of his patrol car and

      then walk westbound in between two houses. Officer McClain continued

      southbound on 10th Street, turned west on South C Street, and then turned

      north into an alley between South 9th and 10th Street. At this point, Officer

      Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-964 | September 28, 2017   Page 2 of 12
      McClain could not see Burden so he turned on the “scene lighting feature” on

      his overhead light board that turned “the entire front and sides of the light bar”

      bright white to help him better see the area. Id. at 97. Officer McClain

      continued to drive northbound in the alley and observed Burden “being very

      rigid and standing very tall behind a telephone pole.” Id. Officer McClain

      considered this to be very unusual behavior.


[5]   Officer McClain then saw that Burden continued to walk westbound. Officer

      McClain drove southbound and then turned westbound. As he approached

      South 9th Street, Officer McClain observed Burden walking very quickly, or

      what Officer McClain believed was “a slight jog.” Id. at 98. Officer McClain

      crossed South 9th Street going westbound and turned southbound into an alley

      between South 8th Street and South 9th Street. Officer McClain observed

      Burden walk into the parking lot of a VFW. “Based on the route of travel[,]

      [the] time of night, [and] what [Officer McClain] believed was hiding behind a

      light pole,” Officer McClain found the behavior suspicious and activated his

      overhead lights “to stop Mr. Burden to get out and speak with him.” Id.


[6]   After Officer McClain activated his lights, he saw Burden look back towards

      him and continue walking. Officer McClain then used the speaker system on

      the police car. As soon as he hit the button, the speaker “cracked,” and Burden

      ran. Id. Officer McClain followed Burden in his vehicle until he came to an

      alley where he could not drive his car any further. Officer McClain parked his

      car, exited the vehicle and yelled “Stop. Police[.]” multiple times. Id. at 99.

      Officer McClain then pursued Burden on foot southbound through the alley.

      Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-964 | September 28, 2017   Page 3 of 12
      Burden ran through the gate of a chain-link fence and through the yard of a

      residence. Officer McClain observed Burden pull things out of his pocket and

      throw them on the ground. Officer McClain continued to pursue Burden.

      Burden then dove headfirst over a chain-link fence. Officer McClain stopped at

      the fence, drew his Taser, and tased Burden when he began to get up. Officer

      McClain then crossed the fence and placed Burden in handcuffs.


[7]   At that point, Sergeant Brandon Cappa arrived to assist Officer McClain.

      Sergeant Cappa took Burden to his patrol car. Officer McClain went back to

      collect the items that Burden had thrown on the ground. Officer McClain

      collected a brown cell phone case that contained a cell phone, a set of keys, a

      cigarette pack that contained a corner baggie of heroin, and a corner baggie of

      cocaine. Sergeant Cappa told Officer McClain over the radio system that he

      had located a set of digital scales and $902.38 in cash and change in the cargo

      pockets of Burden’s pants. After officers took Burden to the jail, officers found

      that he had another corner baggie of cocaine and a corner baggie of marijuana

      in his possession.


[8]   On July 16, 2015, the State charged Burden with possession with intent to deal

      cocaine or narcotic drug, as a Level 5 felony (Count I) and two counts of

      resisting law enforcement, as Class A misdemeanors (Counts II and III). On

      March 9 and April 28, 2016, Burden filed motions to suppress, which asserted

      that Officer McClain had seized Burden without probable cause in violation of

      the Fourth Amendment to the United States Constitution and Article 1, Section

      11 of the Indiana Constitution. The trial court held a hearing on the motions to

      Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-964 | September 28, 2017   Page 4 of 12
       suppress on January 10, 2017, and it denied the motions on January 31. The

       trial court held a jury trial on March 6-7.


[9]    On the first day of trial, Burden did not seek a continuing objection to the

       admission of the seized items. To begin its case-in-chief, the State called Officer

       McClain as a witness. Officer McClain testified about the events that occurred

       on July 11, 2015, surrounding Burden’s arrest. The State moved to enter State’s

       Exhibit 1, which was a corner baggie “containing a pink[,] rock-like substance”

       and State’s Exhibit 3, which was “a Newport cigarette pack containing a corner

       baggie containing an off-white[,] powder-like substance.” Tr. Vol. I at 114.

       Burden responded: “No objection, Judge.” Id. at 115. The parties stipulated to

       the admission of State’s Exhibit 8 as evidence. Exhibit 8 is a certificate of

       analysis from the Indiana State Police Laboratory Division that determined that

       the pink, rock-like substance was cocaine and the off-white substance was

       heroin.


[10]   During Officer McClain’s testimony, the following conversation occurred,

       without objection, between the State’s counsel and Officer McClain regarding

       Burden’s actions after Officer McClain turned on his blue and red emergency

       lights:

                 Q [by counsel for the State]. Okay. And then what did he do in
                 response to the lights being activated?


                 A. Mr. Burden looked back towards me and continued walking.
                 When he did, I grabbed my [] PA, the speaker system on my


       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-964 | September 28, 2017   Page 5 of 12
               police car. And as soon I hit the button, the speaker cracked, and
               Mr. Burden took off running.


                                                      * * *


               Q. Okay. And when you got out of the vehicle, were you
               wearing a police uniform?


               A. Yes, sir, I was.


               Q. And you also indicated you had yelled and identified yourself
               as an officer and ordered him to stop; correct?


               A. Correct.


               Q. And did he comply?


               A. No, he did not.


       Tr. Vol. I at 98, 100. The State also called Manuel Burros. Burros testified,

       again without objection, that shortly after midnight he “was standing on the

       porch smoking, and this guy come [] running through my yard being chased by

       the police.” Tr. Vol. I at 141.


[11]   On the morning of the second day of the trial, outside the presence of the jury,

       the following conversation occurred:

               THE COURT: My understanding is we want to create a record
               on an upcoming objection; is that correct?



       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-964 | September 28, 2017   Page 6 of 12
        [Burden’s counsel]: Well, it’s an upcoming—well, yes, Judge. I
        mean, yesterday there was admission of evidence that we’d had a
        suppression hearing on. My mind was wrapped around the 701,
        702 issues, and I did not object. I know that’s not timely. I guess
        I would raise that objection now just for purposes of appeal,
        knowing full well the evidence is in. It’s in front of the Jury. It
        was going to come in anyways. But I just—to avoid possible
        PCR issues in the future, I guess I’d raise that objection now.
        And I don’t know if we want it for the remaining evidence, go
        ahead make a standing objection to this point in time to help
        speed things up in front the of the Jury, not to keep objecting
        going forwards with the remaining evidence that has not been
        admitted yet.


        [State of Indiana]: What—what is the specific objection again?


        [Burden’s Counsel]: It’s based off the suppression issue we
        already litigated and lost. Just for purposes of appeal for that
        suppression issue.


                                               * * *


        THE COURT: The Court would note the objection. Again, the
        Court will overrule the objection as—and you’re correct, as I
        would have had you made the objection in a timely fashion.


        [Burden’s counsel]: Yes.


        THE COURT: So the Court will note the objection and note it
        as a continuing one based upon the Court’s previous denial of the
        motion to suppress.


Tr. Vol. I at 146-47.


Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-964 | September 28, 2017   Page 7 of 12
[12]   The State continued with its case-in-chief and moved to admit Exhibit 2, a

       corner baggie of cocaine found on Burden when he arrived at the jail; Exhibit 6,

       a gray digital scale found in Burden’s pockets at the scene of the arrest; and

       Exhibit 7, $902.38 in cash and change found in Burden’s pockets at the scene of

       the arrest. Burden objected to the admission of each of these items at the time

       the State moved to introduce them, which the trial court overruled.


[13]   At the conclusion of the evidence, the State dismissed Count III. The jury

       found Burden guilty of the lesser included offense of possession of cocaine or

       narcotic drug, as a Level 6 felony, for Count I and guilty of resisting law

       enforcement, as a Class A misdemeanor, for Count II. The court entered

       judgment of conviction accordingly. On March 31, the trial court sentenced

       Burden to an executed sentence of two years with the Indiana Department of

       Correction for Count I and one year for Count II, to be served concurrently.

       This appeal ensued.


                                      Discussion and Decision
[14]   Burden contends that the trial court should have found that the investigative

       stop of Burden was unconstitutional under the United States Constitution and

       the Indiana Constitution and should have granted his motion to suppress

       evidence. In the alternative, Burden asserts that the trial court abused its

       discretion when it entered, as evidence, items seized during the unconstitutional

       stop.


[15]   As our Supreme Court has recently held:

       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-964 | September 28, 2017   Page 8 of 12
                Admission of evidence is generally left to the discretion of the
                trial court, and thus we review admissibility challenges for abuse
                of that discretion. Guilmette v. State, 14 N.E.3d 38, 40 (Ind.
                2014). When, however, admissibility turns on questions of
                constitutionality relating to the search and seizure of that
                evidence, our review is de novo. Id. at 40–41.


       Jacobs v. State, 76 N.E.3d 846, 849 (Ind. 2017).


                                                  Exhibits 1 and 3

[16]   We conclude that Burden has not preserved his challenge to the admissibility of

       Exhibit 1, the corner baggie of cocaine, and Exhibit 3, the cigarette case that

       contained a corner baggie of heroin. As the Indiana Supreme Court has held:

       “A contemporaneous objection at the time the evidence is introduced at trial is

       required to preserve the issue for appeal, whether or not the appellant has filed a

       pretrial motion to suppress.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)

       (emphasis added). “Indeed, an appellate claim will not be preserved upon an

       objection discussed or not made immediately prior to or following the admission

       of evidence.” Dilts v. State, 49 N.E.3d 617, 619 (Ind. Ct. App. 2015) (emphasis

       added). Here, Burden did not object when the State introduced the evidence

       and affirmatively stated that he had no objection to its admission. Because

       Burden did not make a contemporaneous objection to the admission of Exhibits

       1 and 3, he has waived this issue on appeal. See e.g. Brown, 929 N.E.2d at 207. 1




       1
        When the State introduced the corner baggie of heroin, as Exhibit 1, and the corner baggie of cocaine, as
       Exhibit 3, into evidence, Burden specifically stated: “No objection, Judge.” Tr. Vol. I at 115. As such, the

       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-964 | September 28, 2017          Page 9 of 12
                                                Exhibits 2, 6, and 7

[17]   Burden also contends that the trial court abused its discretion when it admitted

       into evidence Exhibit 2, the corner baggie of cocaine found on Burden when he

       was taken to the jail; Exhibit 6, the digital scale; and Exhibit 7, money that was

       found in Burden’s pockets at the scene of the arrest. However, even if Burden is

       correct, any error is harmless.


                Generally, errors in the admission of evidence are to be
                disregarded unless they affect the substantial rights of a party.
                Turner [v. State], 953 N.E.2d [1039,] 1059 [(Ind. 2011)]. In
                viewing the effect of the evidentiary ruling on a defendant’s
                substantial rights, we look to the probable impact on the fact
                finder. Id. The improper admission is harmless error if the
                conviction is supported by substantial independent evidence of
                guilt satisfying the reviewing court there is no substantial
                likelihood the challenged evidence contributed to the conviction.
                Id.


       Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012).


[18]   Here, the evidence in question is a corner baggie of cocaine found in Burden’s

       possession when he was searched upon his arrival at the jail, a gray digital scale

       found on Burden at the scene of the arrest, and $903.28 in cash and change

       seized from Burden at the scene of his arrest. But the trial court had previously

       admitted into evidence one baggie containing cocaine and one baggie




       doctrine of fundamental error is not available to Burden on appeal. See Halliburton v. State, 1 N.E.3d 670, 679
       (Ind. 2013).

       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-964 | September 28, 2017         Page 10 of 12
       containing heroin. As such, there was likely no impact on the jury from the

       additional evidence, and any error in the admission of that evidence was

       harmless because Burden’s conviction for possession of cocaine or a narcotic

       drug is supported by substantial, independent evidence. Accordingly, we affirm

       his conviction for possession of cocaine or a narcotic drug.


                               Testimony of Officer McClain and Barros

[19]   Burden further contends that his conviction for resisting law enforcement

       should be reversed. The evidence supporting this conviction is the testimony of

       Officer McClain and the testimony of Barros. However, Burden did not object

       to Officer McClain’s testimony that Burden ran away from Officer McClain

       after he had turned on his cruiser’s red and blue emergency lights and after his

       speaker cracked. Similarly, Burden did not object to Barros’ testimony that

       Barros had witnessed a man run through his yard while a police officer chased

       him. Again, “an appellate claim will not be preserved upon an objection

       discussed or not made immediately prior to or following the admission of

       evidence.” Dilts, 49 N.E.3d at 619 (emphasis added). “A claim that has been

       waived by a defendant’s failure to raise a contemporaneous objection can be

       reviewed on appeal if the reviewing court determines that a fundamental error

       occurred.” Brown, 929 N.E.2d at 207.


[20]   Burden, however, does not offer a fundamental error argument, and we will not

       provide one for him. See Ind. App. R. 46(A)(8)(a); Dilts, 49 N.E.3d at 628.

       Therefore, Burden has waived appellate review of this issue. Accordingly, we

       affirm his conviction for resisting law enforcement.
       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-964 | September 28, 2017   Page 11 of 12
[21]   In conclusion, we hold that Burden waived the issue of the admission of the

       baggie of cocaine and the cigarette case that contained the baggie of heroin as

       evidence; that any error in the trial court’s admission of the second baggie of

       cocaine, the scale, and the money as evidence was harmless; and that Burden

       waived the issue of the testimony of Office McClain and Burros. Therefore, we

       affirm Burden’s convictions.


[22]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-964 | September 28, 2017   Page 12 of 12
