FOR PUBLICATION

ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                  GREGORY F. ZOELLER
Marion County Public Defender                  Attorney General of Indiana
Indianapolis, Indiana
                                               IAN MCLEAN
                                               Deputy Attorney General
                                               Indianapolis, Indiana

                                                                             FILED
                                                                         Feb 22 2013, 9:17 am


                             IN THE                                              CLERK
                                                                               of the supreme court,
                                                                               court of appeals and


                   COURT OF APPEALS OF INDIANA                                        tax court




CLEMATINE HOLLINGSWORTH,                       )
                                               )
      Appellant-Defendant,                     )
                                               )
             vs.                               )       No. 49A02-1207-CR-617
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Plaintiff.                      )


                   APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable William J. Nelson, Judge
                   The Honorable Douglass E. Hiland, Judge Pro Tempore
                           Cause No. 49F07-1205-CM-31762


                                   February 22, 2013

                             OPINION - FOR PUBLICATION


FRIEDLANDER, Judge
       Following a bench trial, Clematine Hollingsworth was convicted of Public

Intoxication, 1 a class B misdemeanor. Hollingsworth appeals and argues that the failure to

retroactively apply a recent amendment to the public intoxication statute to her offense

constituted fundamental error.

       We affirm.

       In the early evening of May 12, 2012, Indianapolis Metropolitan Police Officer

Benjamin Owens responded to a report of two women fighting in an Indianapolis apartment

complex. When Officer Owens arrived, he encountered a crowd of people, including

Hollingsworth. Some of the onlookers told Officer Owens that the women involved in the

disturbance had run into a nearby house. Officer Owens then went behind one of the

residences and found the two women trying to leave through the back door. When Officer

Owens brought the women around to the front of the residences, Hollingsworth and the

women began screaming at one another. Officer Owens told Hollingsworth to be quiet and,

when she refused, placed her in handcuffs. At that time, Officer Owens noticed that

Hollingsworth’s breath smelled like alcohol, her eyes were bloodshot and glassy, and her

speech was slurred. Believing Hollingsworth to be intoxicated, Officer Owens placed her

under arrest.

       As a result of these events, the State charged Hollingsworth with disorderly conduct

and public intoxication. A bench trial was held on July 2, 2012, at the conclusion of which



1
 Ind. Code Ann. § 7.1-5-1-3 (West, Westlaw effective through May 31, 2012), amended by Pub. L. No. 117–
2012, § 1 (effective July 1, 2012).


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Hollingsworth was acquitted of disorderly conduct and convicted of public intoxication. On

July 27, 2012, Hollingsworth filed a motion for relief from judgment under Ind. Trial Rule

60(B), which was denied without a hearing on August 1, 2012. Hollingsworth now appeals.

        The sole issue presented on appeal is whether an amendment to the public intoxication

statute that took effect on July 1, 2012, should be applied retroactively to Hollingsworth’s

offense. The version of the public intoxication statute in effect at the time of Hollingsworth

offense provided that “[i]t is a Class B misdemeanor for a person to be in a public place or a

place of public resort in a state of intoxication caused by the person’s use of alcohol or a

controlled substance (as defined in IC 35-48-1-9).” I.C. § 7.1-5-1-3 (West, Westlaw

effective through May 31, 2012). The amended statute, which was approved by the General

Assembly on March 19, 2012 and became effective on July 1, 2012, provides in relevant as

follows:

        (a) Subject to section 6.5 of this chapter,[2] it is a Class B misdemeanor for a
        person to be in a public place or a place of public resort in a state of
        intoxication caused by the person’s use of alcohol or a controlled substance (as
        defined in IC 35-48-1-9), if the person:
               (1) endangers the person’s life;
               (2) endangers the life of another person;
               (3) breaches the peace or is in imminent danger of breaching the peace;
               or
               (4) harasses, annoys, or alarms another person.

Ind. Code Ann. § 7.1-5-1-3 (West, Westlaw current through 2012 2nd Reg. Sess.).



2
 I.C. § 7.1-5-1-6.5 (West, Westlaw current through 2012 2nd Reg. Sess.), which was added to the Indiana Code
by P.L. 93-2012, § 4 and became effective on July 1, 2012, limits the circumstances under which a law
enforcement officer may take a person into custody for offenses involving alcohol. None of these limitations
are applicable here.


                                                     3
         Hollingsworth argues that the 2012 amendment was remedial in nature and should

therefore be applied retroactively to her offenses. See Brown v. State, 947 N.E.2d 486, 490

(Ind. Ct. App. 2011) (holding that “retroactive application of a statute is appropriate when:

(1) the new statute is remedial; (2) a strong and compelling reason exists for applying it

retroactively; and (3) retroactive application does not violate a vested right or a constitutional

guaranty”), trans. denied. Hollingsworth acknowledges, however, that she never brought the

amendment to the trial court’s attention or raised the issue of retroactivity at trial or through

her motion for relief from judgment, despite the fact that the amendment was approved

nearly two months prior to the commission of the offense and became effective the day

before her bench trial. In an attempt to avoid waiver, Hollingsworth argues that the failure to

retroactively apply the amended statute to her offense constitutes fundamental error.

         Assuming without deciding that error occurred, Hollingsworth has not established that

the error was fundamental. “The mere fact that error occurred and that it was prejudicial will

not satisfy the fundamental error rule.” Absher v. State, 866 N.E.2d 350, 355 (Ind. Ct. App.

2007). The fundamental error rule is “extremely narrow” and applies “only when the record

reveals a clearly blatant violation of basic and elementary principles, where the harm or

potential for harm cannot be denied, and which violation is so prejudicial to the rights of the

defendant as to make a fair trial impossible.” Jewell v. State, 887 N.E.2d 939, 942 (Ind.

2008).

         Hollingsworth has failed to provide any analysis of her claims within the context of

the fundamental error rule. In her principal appellate brief, Hollingsworth merely cites the


                                                4
fundamental error rule and makes a conclusory statement that “not applying the amended

public intoxication statute retroactively would be fundamental error.” Appellant’s Brief at 4.

In response to the State’s argument that Hollingsworth waived any claim of fundamental

error due to her failure to develop a cogent argument, Hollingsworth makes another

conclusory statement in her reply brief, without citation to authority, that “the very essence of

a ‘remedial statute’ is the notion that due process demands some laws can and should be

applied retroactively.” Reply Brief at 1 (emphasis in original).

       The general rule that statutes will be given prospective effect only and the exception

allowing retroactive application of remedial statutes when there are strong and compelling

reasons for doing so are rules of statutory construction. See Brown v. State, 947 N.E.2d 486.

Hollingsworth has not directed our attention to any authority suggesting that the rule

allowing retroactive application of remedial statutes emanates from the Due Process clause or

any other constitutional provision. Moreover, even if we assume that there exists a

constitutional right to the retroactive application of remedial statutes, the mere fact that a

constitutional right is implicated is insufficient to satisfy the fundamental error rule. Absher

v. State, 866 N.E.2d 350. Simply asserting that error occurred and was harmful is

insufficient to establish fundamental error. See id.

       Hollingsworth also argues that “this would not be the first case where the issue of

retroactive application of a remedial statute was raised for the first time on appeal.” Reply

Brief at 2. In support of this assertion, Hollingsworth cites Martin v. State, 774 N.E.2d 43

(Ind. 2002) and Palmer v. State, 774 N.E.2d 46 (2002). In both of those cases, however, the


                                               5
relevant statutory amendments at issue took place while the defendant’s appeal was pending.

In this case, the General Assembly approved the amendment to the public intoxication nearly

two months before Hollingsworth committed the instant offense, and the amendment took

effect the day before Hollingsworth’s trial. Unlike the defendants in Martin v. State and

Palmer v. State, Hollingsworth had the opportunity to raise the issue of retroactivity before

the trial court and failed to do so. The purpose of the contemporaneous objection rule is “to

promote a fair trial by precluding a party from sitting idly by and appearing to assent to an

offer of evidence or ruling by the court only to cry foul when the outcome goes against him.”

Purifoy v. State, 821 N.E.2d 409, 412 (Ind. Ct. App. 2005), trans. denied. The rule serves

this purpose by requiring parties to timely raise objections “so that harmful error may be

avoided or corrected and a fair and proper verdict will be secured.” Id. We decline to

abandon the contemporaneous objection rule here.

       Judgment affirmed.

NAJAM, J., and BRADFORD, J., concur.




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