MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Sep 28 2018, 11:16 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Talisha R. Griffin                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
                                                         Laura R. Anderson
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Beverly Louise Cratty,                                   September 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-937
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy M. Jones,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G08-1704-CM-14566



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-937 | September 28, 2018              Page 1 of 6
                                            Case Summary
[1]   Following a bench trial, Beverly Louise Cratty (“Cratty”) was convicted of two

      counts related to contraband found during a warrantless inventory search of a

      vehicle in her possession. At trial, the State asserted that it had charged one of

      the counts—Possession of Marijuana—as a Class A misdemeanor.1 However,

      the trial court observed that it did not “have charging information . . . that

      shows that,” and stated that it would enter Count I as a Class B misdemeanor.

      Tr. Vol. II at 58. The court later entered a written order identifying Count I as

      a Class A misdemeanor; the order otherwise accurately identifies Count II as a

      conviction for Possession of Paraphernalia, as a Class C Misdemeanor.2


[2]   Cratty now appeals, challenging the admission of evidence obtained during the

      inventory search. Determining that Cratty waived this argument by failing to

      contemporaneously object on this basis—and that the record does not reveal

      fundamental error—we affirm the convictions. However, having sua sponte

      identified inconsistency between the trial court’s oral and written classification

      of Count I, we remand for correction of this inconsistency.




      1
        Compare Ind. Code § 35-48-4-11(a)(1) (criminalizing the possession of marijuana and generally classifying
      the offense as a Class B misdemeanor) with I.C. § 35-48-4-11(b) (elevating the offense to a Class A
      misdemeanor if “the person has a prior conviction for a drug offense”).
      2
          I.C. § 35-48-4-8.3(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-937 | September 28, 2018                 Page 2 of 6
                                Facts and Procedural History
[3]   On April 16, 2017, Cratty called the police for help retrieving belongings that

      were locked inside a caregiver’s apartment. Officer Andrew Emmel (“Officer

      Emmel”) with the Indianapolis Metropolitan Police Department arrived and

      knocked on the apartment door.3 No one answered, and Officer Emmel told

      Cratty that there was nothing he could do. Officer Emmel then asked if Cratty

      had a vehicle or a way to leave, and Cratty said no. Shortly thereafter, Officer

      Emmel saw Cratty enter a vehicle that had no other occupants. Officer Emmel

      ran the license plate and learned that the vehicle had been reported stolen.


[4]   After running the license plate, Officer Emmel handcuffed Cratty and gave her

      a Miranda warning.4 During ensuing questioning, Cratty said that she borrowed

      the vehicle from a relative. Officer Emmel was unsuccessful in his attempt to

      contact the owner of the vehicle, and he decided to have the vehicle towed. In

      the meantime, Officer Emmel began conducting a warrantless inventory search.

      Inside the vehicle, Officer Emmel found a purse containing items that he

      believed were a marijuana pipe, a crack pipe, and a baggie of ground-up

      marijuana. Officer Emmel asked Cratty if she smoked marijuana or crack, and

      Cratty “said that she smokes marijuana.” Tr. Vol. II at 16.




      3
          Officer Emmel did not testify as to his first name, but the parties appear to agree that his name is Andrew.
      4
          See Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-937 | September 28, 2018                      Page 3 of 6
[5]   The State charged Cratty with one count of Possession of Marijuana and one

      count of Possession of Paraphernalia. A bench trial was held in March 2018,

      during which Cratty did not object to Officer Emmel’s testimony describing the

      items that he believed to be contraband. Later, the State sought to admit

      Exhibit 1—consisting of the actual contraband—and Cratty objected only on

      foundational grounds. The court then admitted the evidence over Cratty’s

      objection, noting that the evidence “would be admitted as that these items were

      found in a purse that belonged to [Cratty] in the car,” but that the court had not

      yet seen any laboratory reports. Id. After Officer Emmel had testified, and

      prior to anticipated testimony from a laboratory analyst, Cratty orally moved to

      suppress evidence obtained from the search. Cratty argued, inter alia, that the

      inventory search offended her constitutional rights. The trial court denied the

      motion. The State later sought to admit a laboratory report indicating that

      there was cocaine residue in one of the pipes and marijuana in the baggie. The

      trial court admitted the report without objection from Cratty.


[6]   After an initial phase of trial, the court found Cratty guilty of Possession of

      Marijuana and Possession of Paraphernalia. The State informed the court that

      it “had a part two as to count one,” at which point Cratty indicated that she

      would stipulate “as to the prior conviction.” Id. at 57. The court and the

      parties attempted to locate an additional charging information, which the State

      eventually conceded that it could not find. The court then remarked: “Well, at

      this point then I understand that the parties would stipulate to that, but I don’t

      have charging information for the Court that shows that. So it will be entered


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-937 | September 28, 2018   Page 4 of 6
      as a b [sic] misdemeanor.” Id. at 58. The trial court then imposed an aggregate

      sentence of 180 days with 178 days suspended. That same day, the trial court

      entered a written order identifying Count I as a Class A misdemeanor.


[7]   Cratty now appeals.



                                 Discussion and Decision
[8]   Cratty argues that the trial court erred in admitting evidence obtained from the

      inventory search. She asserts that the search was unconstitutional under federal

      and state principles, arguing—inter alia—that there was no evidence that the

      warrantless search complied with department policy. However, Cratty failed to

      contemporaneously object on this basis, resulting in waiver of the issue on

      appeal. See, e.g., Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010) (recognizing

      the general rule that “[a] failure to object when the evidence is introduced at

      trial waives the issue for appeal”). In arguing that she preserved this issue,

      Cratty points out that she objected—on foundational grounds—when the State

      sought to admit the actual contraband. Yet, a contemporaneous “objection on

      grounds other than those raised on appeal . . . is ineffective,” Raess v. Doescher,

      883 N.E.2d 790, 797 (Ind. 2008), and Cratty’s subsequent constitutional

      argument—presented after the evidence had been admitted—was untimely.


[9]   Having failed to preserve the issue at trial, Cratty may obtain relief only upon

      fundamental error. See Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). This

      “exception is ‘extremely narrow, and applies only when the error constitutes a


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-937 | September 28, 2018   Page 5 of 6
       blatant violation of basic principles, the harm or potential for harm is

       substantial, and the resulting error denies the defendant fundamental due

       process.’” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)).

       Indeed, “[t]he error claimed must either make a fair trial impossible or

       constitute clearly blatant violations of basic and elementary principles of due

       process.” Id. (quotation marks omitted).


[10]   Cratty does not argue fundamental error, and instead asks that we look past

       waiver and “address her case on the merits.” Reply Br. of Appellant at 6.

       However, as the record does not support application of the fundamental-error

       exception, we decline this request and affirm the convictions. We nonetheless

       proceed to address the issue identified sua sponte, which is the inconsistent

       classification of Count I. That is, although the trial court orally stated that it

       was entering judgment as a Class B misdemeanor, its written order shows that

       Cratty was convicted of a Class A misdemeanor. See App. Vol. II at 14

       (identifying Count I as “35-48-4-11(a)(1)/MA: Possession of Marijuana”). We

       remand for correction of this inconsistency.


[11]   Affirmed and remanded.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-937 | September 28, 2018   Page 6 of 6
