MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D), this                        May 14 2020, 9:26 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                      CLERK
                                                                    Indiana Supreme Court
purpose of establishing the defense of res judicata,                   Court of Appeals
                                                                         and Tax Court
collateral 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
                                                       Tyler G. Banks
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Jonathon Luther,                                           May 14, 2020
Appellant/Defendant,                                       Court of Appeals Case No.
                                                           20A-CR-112
        v.                                                 Appeal from the Harrison
                                                           Superior Court
State of Indiana,                                          The Hon. Joseph L. Claypool,
Appellee/Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           31D01-1903-F6-245



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020                 Page 1 of 7
                                          Case Summary
[1]   In March of 2019, Harrison County authorities received a report that a fugitive

      with an outstanding felony warrant was staying at Jonathon Luther’s house.

      When confronted, Luther denied that he was harboring a fugitive. The fugitive

      was eventually found hiding on Luther’s property, and the State charged him

      with, inter alia, Level 6 felony assisting a criminal. Following Luther’s

      conviction for assisting a criminal, the trial court sentenced him to two years of

      incarceration. Luther contends that the admission of certain testimony

      amounted to fundamental error and that his sentence is inappropriately harsh.

      Because we disagree, we affirm.


                            Facts and Procedural History
[2]   At approximately 8:00 p.m. on March 22, 2019, Harrison County Sheriff’s

      Deputy Nathan Ranke arrived at Luther’s residence with two other officers in

      search of Jamie Mott, who was the subject of an outstanding arrest warrant and

      was believed to be at Luther’s address. As Deputy Ranke walked toward

      Luther’s detached garage, Luther and Robert Smith approached. When

      Deputy Ranke asked Luther if Mott was there, Luther denied that he was.

      Deputy Ranke obtained Luther’s permission to search the garage and, based on

      methamphetamine pipes observed in plain sight, obtained a search warrant for

      the garage and residence. Mott was discovered under a lean-to on the side of

      the garage during the subsequent search.

[3]   On March 26, 2019, the State charged Luther with Level 6 felony

      methamphetamine possession, Level 6 felony assisting a criminal, and Class C


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020   Page 2 of 7
      misdemeanor illegal possession of paraphernalia. On November 5, 2019, the

      State moved to dismiss the methamphetamine and paraphernalia charges,

      which motion the trial court granted. Luther’s jury trial was held on November

      7, 2019.

[4]   Before the presentation of evidence, Deputy Ranke testified outside the hearing

      of the jury that his observation of methamphetamine pipes in Luther’s garage

      had been the basis on which he had obtained the search warrant. After

      discussion, the parties agreed that Deputy Ranke would only be able to testify

      in front of the jury that “items of contraband” had been the basis of the warrant

      application, which he did. Tr. Vol. II p. 86. The prosecutor also asked Deputy

      Ranke if he had been familiar with Luther previous to March 22, 2019, and he

      replied that he had been. The jury found Luther guilty of assisting a criminal,

      and, on December 16, 2019, the trial court sentenced Luther to two years of

      incarceration, identifying his criminal history as an aggravating circumstance.


                                Discussion and Decision
                                       I. Fundamental Error
[5]   Luther contends that the admission of Deputy Ranke’s testimony that he had

      been familiar with Luther previous to March 22, 2019, and that the search

      warrant was obtained based on his observation of methamphetamine pipes

      constituted fundamental error. A trial court’s ruling on the admission or

      exclusion of evidence is reviewed for an abuse of discretion that results in

      prejudicial error. Williams v. State, 43 N.E.3d 578 (Ind. 2015). Because Luther

      did not object to the testimony of which he now complains, he has waived any


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020   Page 3 of 7
      claim related to its admission. See Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct.

      App. 2010) (“The failure to raise an issue at trial waives the issue on appeal.”),

      trans. denied. In such cases, our review is limited to determining if fundamental

      error occurred. The doctrine applies only in “extraordinary circumstances[,]”

      Hardley v. State, 905 N.E.2d 399, 402 (Ind. 2009), and is meant to cure the

      “most egregious and blatant” trial errors, “not to provide a second bite at the

      apple for defense counsel who ignorantly, carelessly, or strategically fail to

      preserve an error.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). Even an error

      that is prejudicial or that implicates a constitutional right is not in and of itself

      sufficient to constitute fundamental error. Salahuddin v. State, 492 N.E.2d 292,

      296 (Ind. 1986). Rather, a fundamental error is such a gross error that it renders

      any possibility of a fair trial “‘impossible.’” Hardley, 905 N.E.2d at 402

      (quoting Barany v. State, 658 N.E.2d 60, 64 (Ind. 1995)).

[6]   Deputy Ranke testified that had been familiar with Luther previous to March

      22, 2019, testimony that Luther claims prevented him from receiving a fair trial.

      Detective Ranke, however, indicated only that he had previously been familiar

      with Luther, elaborating no further. This simply does not qualify as evidence of

      other bad acts that is generally prohibited by Indiana Evidence Rule 404(b)(1).

      See id. (“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.”). Luther’s argument is premised on

      the notion that the jury automatically assumed that Deputy Ranke could only

      have been familiar with Luther because of Luther’s previous criminal activity.



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020   Page 4 of 7
      There is, however, absolutely nothing in the record to indicate that other bad

      acts were the reason for Deputy Ranke’s familiarity or that the jury assumed

      that they were. There are myriad innocuous ways in which Deputy Ranke

      could have been familiar with Luther prior to March 22, 2019, and Deputy

      Ranke’s testimony fell short of establishing anything more than that. Luther

      has failed to establish fundamental error with regard to Deputy Ranke’s

      testimony that he had been familiar with Luther prior to March 22, 2019.

[7]   Luther also argues that Deputy Ranke’s testimony that the search warrant was

      based on his observation of “a couple of meth pipes laying out in plain view” in

      Luther’s garage constituted fundamental error. Tr. Vol. II p. 85. The testimony

      of which Luther complains, however, was not heard by the jury, having been

      elicited solely for the purpose of evaluating Luther’s objection to its admission

      and the parties’ arguments regarding what Deputy Ranke would be allowed to

      say on the stand. Consequently, it cannot have had any effect on the jury’s

      decision. Luther has failed to establish fundamental error with regard to

      Deputy Ranke’s testimony that he sought the search warrant based on his

      observation of methamphetamine pipes in Luther’s garage.

                                              II. Sentence
[8]   Luther contends that his two-year sentence for Level 6 felony assisting a

      criminal is inappropriately harsh. We “may revise a sentence authorized by

      statute if, after due consideration of the trial court’s decision, the Court finds

      that the sentence is inappropriate in light of the nature of the offense and the

      character of the offender.” Ind. Appellate Rule 7(B). “Although appellate


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020   Page 5 of 7
      review of sentences must give due consideration to the trial court’s sentence

      because of the special expertise of the trial bench in making sentencing

      decisions, Appellate Rule 7(B) is an authorization to revise sentences when

      certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660

      (Ind. Ct. App. 2006), trans. denied (citations and quotation marks omitted).

      “[W]hether we regard a sentence as appropriate at the end of the day turns on

      our sense of the culpability of the defendant, the severity of the crime, the

      damage done to others, and myriad other factors that come to light in a given

      case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). In addition to the

      due consideration we are required to give to the trial court’s sentencing

      decision, “we understand and recognize the unique perspective a trial court

      brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873

      (Ind. Ct. App. 2007). The offender carries the burden to show that his sentence

      is inappropriate, a burden that can only be “overcome by compelling evidence

      portraying in a positive light the nature of the offense […] and the defendant’s

      character[.]” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Luther was

      convicted of a Level 6 felony, and Indiana Code section 35-50-2-7 provides, in

      part, that “[a] person who commits a Level 6 felony […] shall be imprisoned for

      a fixed term of between six (6) months and two and one-half (2 ½) years, with

      the advisory sentence being one (1) year.”

[9]   The nature of Luther’s offense does not warrant a downward adjustment to his

      sentence. Luther harbored a fugitive wanted on a 2012 felony warrant and,

      when confronted, lied to police about that fugitive being on his property.



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020   Page 6 of 7
       Moreover, the presence of methamphetamine pipes in Luther’s garage indicates

       that additional criminal conduct was either being committed or tolerated by

       Luther. Harboring a fugitive and possessing paraphernalia does not meet

       Luther’s burden to cast the nature of his offense “in a positive light,” which he

       must do to obtain relief under Rule 7(B). Stephenson, 29 N.E.3d at 122.

[10]   Luther’s character also does not justify a downward revision. While Luther

       argues that his criminal history should not be considered particularly

       aggravating, we disagree with that assessment. Luther has two 2004 felony

       convictions for intimidation, with the two acts of intimidation occurring only

       eleven days apart, and a 2009 misdemeanor conviction for illegal harvest of

       ginseng. The State petitioned to have Luther’s suspended sentence revoked in

       two of those cases. Moreover, Luther has been charged with sixteen other

       crimes in eight cases which did not result in convictions. Despite Luther’s

       convictions and many other contacts with the criminal justice system, he has

       not yet chosen to conform his behavior to societal norms. We would also note

       that Luther did not receive the maximum sentence, with the trial court

       imposing two years of incarceration when it could have added another six

       months. Luther has failed to establish that his sentence is inappropriately

       harsh.

[11]   We affirm the judgment of the trial court.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-112 | May 14, 2020   Page 7 of 7
