MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Jun 30 2017, 8:13 am
court except for the purpose of establishing                          CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Blair Todd                                               Curtis T. Hill, Jr.
Law Office of Blair Todd                                 Attorney General of Indiana
Winamac, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ryan Martin,                                             June 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         75A04-1609-CR-2098
        v.                                               Appeal from the Starke Circuit
                                                         Court
State of Indiana,                                        The Honorable Kim Hall, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         75C01-1501-F5-4



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017      Page 1 of 17
[1]   Ryan Martin appeals his conviction for dealing in methamphetamine as a level

      5 felony. He raises one issue which we revise and restate as whether the trial

      court abused its discretion in admitting testimony indicating that he was on

      probation and that the rules of his probation provided that he would waive his

      Fourth Amendment right and submit his place of residence to a reasonable

      search. We affirm.


                                           Facts and Procedural History

[2]   On January 23, 2015, Starke County Sheriff’s Chief Detective Rob Olejniczak

      and Jaime Fletcher conducted a search of a residence Detective Olejniczak

      believed was owned by Martin’s mother following Martin’s consent.1 Martin

      advised Detective Olejniczak that he was staying at the residence. Police

      discovered a bag in the corner of the front porch containing drug paraphernalia,

      syringes, and bottles. They also discovered a coffee filter with

      methamphetamine residue outside. Inside the residence, they discovered

      rolling papers, a glass smoking pipe, empty pill packages for pseudoephedrine,

      leftover remnants from meth, a coffee grinder with white residue in it, three

      containers of iodized salt in a dresser drawer in a bedroom, a bottle of sulfuric

      acid, an empty package of lithium batteries, and a spoon with white residue.

      Police discovered an active one pot methamphetamine lab in a closet and a

      spent one pot lab in the kitchen.




      1
          Outside the presence of the jury, the court stated that Jaime Fletcher was Martin’s probation officer.


      Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017                 Page 2 of 17
[3]   Detective Olejniczak interviewed Martin that evening, and Martin indicated

      that he had given consent to search. Martin stated that Dave Howard ground

      up the pills and that certain items belonged to Carl Daugherty. When asked

      what he would “get out of the cook,” Martin answered that he would receive

      fifty dollars or a half a gram of methamphetamine and that he received half a

      gram a couple of times. State’s Exhibit 56 at 11:25-11:30. When asked if he

      bought items for them, he said no. When asked if he bought Sudafed for them,

      he said he did because it was something they could obtain only so many a

      month and that he would receive fifty dollars. He indicated that others made

      methamphetamine and that they would make it upstairs and downstairs.


[4]   On January 26, 2015, the State charged Martin with: Count I, dealing in

      methamphetamine as a level 5 felony; Count II, possession of

      methamphetamine as a level 6 felony; Count III, maintaining a common

      nuisance as a level 6 felony; and Count IV, possession of paraphernalia as a

      class A misdemeanor. The State later amended the information to add the

      charge of dealing in methamphetamine (aiding, inducing or causing) as a level 5

      felony.2


[5]   In July 2016, the court held a jury trial. After the State rested, Martin testified

      that he was staying at the home “[t]emporarily, in and out” and that he had




      2
       The State also charged Martin with possession of marijuana as a class B misdemeanor. In July 2016,
      Martin pled guilty to possession of marijuana as a class B misdemeanor, and the court entered judgment of
      conviction on that count and sentenced him to zero days. The remaining counts were tried before a jury.



      Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017           Page 3 of 17
      been staying there “for probably a couple of years.” Transcript Volume II at

      245. He testified that other people stayed overnight at the residence including

      Howard, Gracie Bell, and her boyfriend, and that the property had been

      burglarized. He testified that he did not manufacture meth in the home, that he

      caught Howard and Daugherty manufacturing meth in the basement of the

      home, and that he told them he did not approve and did not like it. He stated

      that the paraphernalia found in the home did not belong to him and that he

      assumed it belonged to Daugherty and Bell because they were staying there.

      He also testified that he knew that the one pot in the brown bag was there, but

      did not know about the one in the closet.


[6]   The following exchange occurred during the direct examination of Martin:

              Q        Did you consent to the interview?


              A        Yes, I did.


              Q        Why?


              A     Because I thought my house was clean. I was – I mean it
              was clean. If I knowed [sic] that thing was there, I would have
              never consent to a search warrant – or a search.


      Transcript Volume III at 7. On cross-examination, when asked if it was right

      that he told Detective Olejniczak that he was buying Sudafed so they could

      make meth, he answered: “Not for them to make it, no, I didn’t know what was

      goin’ on at the time.” Id. at 9. He then testified: “I bought boxes to get money


      Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017   Page 4 of 17
      or another half gram, yes, ‘cause I was using.” Id. He testified that he was in

      the house a couple of days before being arrested, that he was “in and out” and

      was not staying there full-time. Id. at 11. He indicated that he was not there

      the weekend before, but that he probably remembered telling Detective

      Olejniczak in the interview that Daugherty and Bell came over to the house the

      Friday before, and that he bought Sudafed for them.


[7]   During cross-examination of Martin, the following exchange occurred:


              [Prosecutor]: May we approach, Judge?


              THE COURT: Yes.


              (Side bar at 10:36:42 a.m.)


              [Prosecutor]: (inaudible – whispering)


              [Defense Counsel]: (inaudible) object (inaudible) prejudicial.


              THE COURT: (inaudible) the very thing that the – the State is
              arguing against, and that is to give the impression that (inaudible
              – whispering). And now he’s opened the door and the State is
              allowed to go into that. Limited, very limited. (inaudible) didn’t
              have the right to deny the search. Okay? That’s all.


              END SIDE BAR


              Q Mr. Martin you told the jury just a little while ago that you
              didn’t know any of that stuff was in your house and that’s why
              you consented to the search, is that right?


      Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017   Page 5 of 17
        A Yes.


        Q That’s what you told them?


        A Uh – yeah, I assumed the officer (inaudible).


        Q That’s not true, right? You didn’t have a right to deny the
        search because you were on probation, right Mr. Martin?


        A Correct.


        Q And one of the terms of your probation is, the probation
        department can conduct a search of your home for compliance?


        A Correct. But at the time I was off – I should have been off
        probation a whole year prior to that. I had one (1) year
        probation and this was two (2) years after.


        Q Well you know why that –


        A (inaudible)


        Q -- you know why that happened though.


        A Because my fees were not paid.


        Q So you’re still on probation; you knew you were on probation
        –


        A I didn’t know – no, I didn’t know that.




Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017   Page 6 of 17
        Q Really? Jaime Fletcher was your probation officer and you
        talked with her and you had a meeting scheduled with her that
        very day, right?


        A No, I did not. I had court that very day at 9:00. When I came
        to court is when I was pulled out for probation because she
        pulled me out from court. That’s when Roger was here and
        Officer Combs was there. So they pulled me out. They took me
        out.


        Q You knew a term of your probation was that you couldn’t
        object to them doing a reasonable search of your home for
        compliance, right? You understand that as a term.


        A I didn’t object to them searchin’ the house, no.


        Q But you didn’t have a right to object. That’s what I’m trying
        to get through to you, Mr. Martin.


        A I didn’t know ‘cause I didn’t know I was – I wasn’t aware that
        I was on probation.


        Q You didn’t know that?


        A They told me they were gonna’ do a probation search and I
        said that’s fine, go ahead. I didn’t deny it. Didn’t tell ‘em not to.
        But I should have been off probation January 23rd 2014, a full
        year prior to this.


        Q You know why that’s not true, Mr. Martin.


        A Now I know, yes.


Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017   Page 7 of 17
              Q “I will not move from my residence without first contacting
              my probation officer.” So all the times that you told the jury
              about hoppin’ around, did you contact her every time you did
              that?


              A She knew I was paintin’, yes.


      Id. at 21-24.


[8]   The court then took a break and the following exchange occurred outside the

      presence of the jury:


              THE COURT: All right, everyone could have a seat. For the
              record, the jurors have left the courtroom and we had a
              conversation at the bench a few minutes ago – um – and I’ll
              make the record now that the jurors aren’t here so it’s clear that .
              . . the prosecutor represented to the Court that . . . the prosecutor
              believed [Martin] had opened the door to permit the prosecutor
              to go into the fact that he was on probation because of some of
              his testimony on direct examination. Specifically, I found that
              when [Martin] testified to the jury that he would not have
              consented, if he had known there was somethin’ in there, or in
              the other way to reference it, that he only consented because he
              believed the residence was clean, he opened the door to permit
              the State to introduce evidence that his consent wasn’t necessary.
              There was no importance placed on his consent. It was a
              different situation than a regular citizen would be in because
              jurors themselves would think, as well, if they had a clean house
              and the police came there to search, they would consent. And if
              they did not have a clean house and the police came there to
              search, they would not sign a consent. So that puts fairly
              significant weight into [Martin’s] testimony in the minds of the
              jury when they have the impression that [Martin] could have
              denied the search but he consented, suggesting he had no
              knowledge of any drugs. The State had indicated to the Court,

      Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017   Page 8 of 17
        before the trial ever started, that Jaime Fletcher, the first witness
        in the case, was in fact on the day in question, [Martin’s]
        probation officer. She was there at the residence, she conducted
        a probation search. Why anyone asked him for his consent, I
        have no idea. I suppose they could do that all they want, but, we
        end up with this confusion here with the jury, I guess,
        nevertheless, uh – the State, I permitted, to – during cross
        examination, in order to make things more fair now, to expose to
        the jury that [Martin] did not have the consent as anyone else
        might have had that same consent; that regardless of his consent,
        there was going to be a search of his residence because legally the
        authorities could search his residence, because he was on
        probation. Now I said to the prosecutor and defense lawyer that
        it needed to be narrow and they were allowed to question – to
        bring up that – that point. There’s no need to go into what the
        conviction was that led to his probation, what the sentence was.
        And . . . that has been accomplished now. And now I see things
        starting to . . . broaden. Uh – the prosecutor’s got out conditions
        of probation and is now confronting [Martin] with a specific
        condition that he notify the probation officer of his specific
        address at all times and that contradicts some of his testimony
        about how he had moved around and apparently never told the
        probation department. And this is what I don’t want to have
        happen, with the jury. So I sent the jurors out (1) to make the
        record clear as to why I even allowed the State to bring up the
        fact that [Martin] was on probation, and then 2) to make sure we
        all know what the rules are for this. . . . I’m not interested in
        going through the conditions of probation and how they –
        they’ve been violated in some capacity or not. Uh – when he
        said “I thought probation should have been over a year ago.”
        That – that does open the door some more ‘cause now he’s
        suggested that therefore his consent is important now. And so I
        think the State can go into why it’s – they don’t think his
        statement is true. He thought probation was over a year earlier
        and his consent was important. While I think we’ve covered that,
        I’m not sure, but what I don’t want to have happen is any more
        goin’ into, as far as whether he violated the terms of his
Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017   Page 9 of 17
              probation as a result of his testimony on direct or his statement.
              It was done for that limited purpose to show the jury that his
              consent wasn’t necessary because officials have the right to
              search the residence whether they consented or not. I’m done
              talkin’. Now it’s the State’s opportunity to make any record
              you’d like.


              [Prosecutor]: I understand the Court’s concern. I was shocked at
              his justification. “I should have been off of probation.” And he
              knows that he had probation violations filed against him which is
              what told [sic] the time he was on probation. And he had other
              pending cases. So, I could argue that he’s opened the door to all
              that. Um – do I think it’s necessary to jump in there? No, I – I –
              I didn’t. But, I understand what – what the Court’s saying. I – I
              appreciate that. Um – I would just ask permission at this point to
              address the one (1) area in the probation rules about waiving the
              right and they have a right to search your home. And then I’ll
              move on from that.


              THE COURT: I think that’s gonna’ be fine to summarize that
              for the break then the jurors might know that that’s what we were
              talkin’ about. Any record you’d like to make, [Defense
              Counsel]?


              [Defense Counsel]: That limited purpose is fine that the State
              was talking about.


      Id. at 24-28.


[9]   After the jury was brought back into the courtroom, the following exchange

      occurred:


              Q Part of what your rules of probation say that you’ll waive your
              Fourth Amendment right and you will submit your person, place

      Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017   Page 10 of 17
               of residence, and vehicle to a reasonable search and seizure any
               time by my probation officer and/or law enforcement officer in
               the presence of a probation officer. Do you recognize that to be
               one of the rules of probation, correct?


               A Correct.


       Id. at 28-29.


[10]   The jury found Martin guilty of maintaining a common nuisance as a level 6

       felony, possession of methamphetamine as a level 6 felony, and dealing in

       methamphetamine (aiding, inducing or causing) as a level 5 felony.


[11]   On August 15, 2016, the court entered judgment of conviction for dealing in

       methamphetamine (aiding, inducing, or causing an offense) as a level 5 felony

       and declined to enter judgments of conviction for the other counts. The court

       sentenced Martin to five years and ordered that the sentence be served

       consecutive to sentences in three other causes.


                                                   Discussion

[12]   The issue is whether the trial court abused its discretion in admitting testimony

       indicating that Martin was on probation and that the rules of his probation

       provided that he would waive his Fourth Amendment right and submit his

       place of residence to a reasonable search. Martin argues that the trial court

       erred in permitting the State to impeach him by establishing that he had been

       on probation at the time of the charged offense in violation of Ind. Evidence

       Rule 403. He asserts that the record suggests and supports that a


       Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017   Page 11 of 17
       contemporaneous objection was made as to the prejudicial nature of the cross-

       examination at issue and that, even if there was no objection, the admission

       constituted fundamental error. He asserts that he merely commented on his

       motivation for consenting to the search of his residence and that the court’s

       ruling went further than needed by allowing the State to cross-examine him

       regarding his status as a current probationer at the time of the offense. He

       contends that allowing the State to elicit testimony that he was on probation led

       the jury to understand that he had a criminal conviction and had bad character

       and that he was prejudiced.


[13]   The State argues that Martin waived his appellate claim by failing to make a

       contemporaneous objection and by agreeing that the State could introduce the

       text of the probation condition. The State also argues that, even assuming

       Martin had properly objected, the court would not have abused its discretion in

       overruling an objection under Ind. Evidence Rule 403. It asserts that Martin

       opened the door to evidence that he could not refuse a search and that the jury

       was left with a false or misleading impression that he consented to the search

       because he had no knowledge of or incriminating connection to the objects

       ultimately found in his home. The State argues that, even if error, the

       admission of the testimony was harmless because evidence of Martin’s guilt

       was overwhelming.


[14]   Generally, we review the trial court’s ruling on the admission or exclusion of

       evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind.

       1997), reh’g denied. We reverse only where the decision is clearly against the

       Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017   Page 12 of 17
       logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386,

       390 (Ind. 1997), reh’g denied. We will not reverse an error in the admission of

       evidence if the error was harmless. Turner v. State, 953 N.E.2d 1039, 1058 (Ind.

       2011). Errors in the admission of evidence are to be disregarded unless they

       affect the defendant’s substantial rights. Id. at 1059. In determining the effect

       of the evidentiary ruling on a defendant’s substantial rights, we look to the

       probable effect 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 that there is no substantial likelihood the

       challenged evidence contributed to the conviction. Id. Failure to timely object

       to the erroneous admission of evidence at trial will procedurally foreclose the

       raising of such error on appeal unless the admission constitutes fundamental

       error. Stephenson v. State, 29 N.E.3d 111, 118 (Ind. 2015). Additionally, we

       have found the issue waived where a defendant objected to only a portion of the

       challenged evidence. See Dickey v. State, 999 N.E.2d 919, 921 (Ind. Ct. App.

       2013); Hutcherson v. State, 966 N.E.2d 766, 770 (Ind. Ct. App. 2012), trans.

       denied.


[15]   The record reveals that Martin’s counsel stated the following during a sidebar:

       “(inaudible) object (inaudible) prejudicial.” Transcript Volume III at 22. After

       some testimony and discussion, the prosecutor asked for permission to address

       the one area in the probation rules “about waiving the right and they have a

       right to search your home.” Id. at 27. Defense counsel stated: “That limited

       purpose is fine that the State was talking about.” Id. at 28. At that point,

       Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017   Page 13 of 17
       Martin recognized that part of his rules of probation provided that he would

       waive his Fourth Amendment right and submit his place of residence to a

       reasonable search and seizure any time by his probation officer and/or law

       enforcement officer in the presence of a probation officer. We conclude that

       Martin waived this issue.


[16]   To the extent Martin asserts fundamental error, we observe that fundamental

       error is an extremely narrow exception that allows a defendant to avoid waiver

       of an issue. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). It is error that

       makes “a fair trial impossible or constitute[s] clearly blatant violations of basic

       and elementary principles of due process . . . present[ing] an undeniable and

       substantial potential for harm.” Id. “This exception is available only in

       ‘egregious circumstances.’” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)

       (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)), reh’g denied.

       “Fundamental error is meant to permit appellate courts a means to correct the

       most egregious and blatant trial errors that otherwise would have been

       procedurally barred, 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), reh’g denied.


[17]   Ind. 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.”



       Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017   Page 14 of 17
[18]   To the extent that Martin asserts that he was exposed to the likelihood that the

       jury would convict him not for the merits of the case but rather on the

       implication of his bad character flowing from his prior conviction, we observe

       that Ind. Evidence Rule 404(b) provides:


               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.


               (2) Permitted Uses; Notice in a Criminal Case. This evidence
               may be admissible for another purpose, such as proving motive,
               opportunity, intent, preparation, plan, knowledge, identity,
               absence of mistake, or lack of accident. On request by a
               defendant in a criminal case, the prosecutor must:


                        (A) provide reasonable notice of the general nature of any
                        such evidence that the prosecutor intends to offer at trial;
                        and


                        (B) do so before trial--or during trial if the court, for good
                        cause, excuses lack of pretrial notice.


       The rule is “designed to prevent the jury from assessing a defendant’s present

       guilt on the basis of his past propensities.” Hicks v. State, 690 N.E.2d 215, 218

       (Ind. 1997). In determining whether to admit evidence of specific acts under

       the rule, the trial court is to: (1) determine whether the evidence of other crimes,

       wrongs, or acts is relevant to a matter at issue other than the defendant’s


       Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017   Page 15 of 17
       propensity to commit the charged act; (2) determine that the proponent has

       sufficient proof that the person who allegedly committed the act did, in fact,

       commit the act; and (3) balance the probative value of the evidence against its

       prejudicial effect pursuant to Indiana Evidence Rule 403. Camm v. State, 908

       N.E.2d 215, 223 (Ind. 2009), reh’g denied. Additionally, otherwise inadmissible

       evidence may become admissible where the defendant “opens the door” to

       questioning on that evidence. Jackson v. State, 728 N.E.2d 147, 152 (Ind. 2000).

       However, “the evidence relied upon to ‘open the door’ must leave the trier of

       fact with a false or misleading impression of the facts related.” Id.


[19]   During direct examination, Martin testified that “[i]f I knowed [sic] that thing

       was there, I would have never consent to a search warrant – or a search.”

       Transcript Volume III at 7. We agree with the State that this testimony left the

       jury with a false or misleading impression. While Martin’s testimony indicated

       that he never would have consented to a search if he had known of the

       incriminating evidence, he was on probation and the rules of probation

       provided that he had waived his Fourth Amendment right and would submit to

       a search of his residence. This evidence was admissible to challenge the

       impression that Martin would not have consented and had the authority to not

       consent had he known of the incriminating evidence. We also note that the

       trial court limited the prosecutor’s questioning regarding Martin’s probation.

       We cannot say that the admission of the fact that Martin was on probation and

       that the probation rules provided he would consent to a search amounted to

       fundamental error.


       Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017   Page 16 of 17
[20]   We also observe that the trial court ultimately entered a conviction for dealing

       in methamphetamine (aiding, inducing, or causing an offense) as a level 5

       felony and there was substantial independent evidence of Martin’s guilt. The

       police discovered drug paraphernalia, syringes, rolling papers, empty pill

       packages for pseudoephedrine, a coffee filter with methamphetamine residue,

       an empty package of lithium batteries, methamphetamine residue on a plate, a

       bottle of sulfuric acid, an active one pot meth lab, and a spent one pot at the

       residence where Martin was staying. During the interview, when asked what

       “would you get out of the cook,” Martin answered that he would receive fifty

       dollars or a half a gram of methamphetamine. State’s Exhibit 56 at 11:25-

       11:30. He also stated in the interview that he bought Sudafed for the others

       because they were limited in the amount they could purchase a month. He also

       indicated that others made methamphetamine upstairs and downstairs in the

       residence. We conclude that, even assuming the admission of the fact that

       Martin was on probation and that the probation rules provided he would waive

       his Fourth Amendment right and submit his place of residence to a reasonable

       search was erroneous, there is no substantial likelihood the challenged evidence

       contributed to the conviction.


                                                   Conclusion

[21]   For the foregoing reasons, we affirm Martin’s conviction.


[22]   Affirmed.


       May, J., and Pyle, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 75A04-1609-CR-2098 | June 30, 2017   Page 17 of 17
