MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                      Aug 13 2015, 7:57 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan Shipley                                            Gregory F. Zoeller
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Brian Reitz
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jaime Carr,                                              August 13, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1502-CR-81
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clayton A.
Appellee-Plaintiff                                       Graham, Judge
                                                         Trial Court Cause No.
                                                         49G07-1407-CM-36695



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015         Page 1 of 6
                                             Case Summary
[1]   A police officer stopped Jaime Carr for speeding, searched her vehicle, and

      found a handgun under the driver’s seat. Carr was charged with and found

      guilty of class A misdemeanor carrying a handgun without a license.


[2]   On appeal, Carr contends that the trial court erred in admitting the handgun

      and her confession that the handgun belonged to her. We conclude that both

      arguments are waived and therefore affirm her conviction.


                                 Facts and Procedural History
[3]   On July 24, 2014, Officer Michael McKenna of the Lawrence Police

      Department stopped Carr for speeding. Her boyfriend James Henderson was in

      the front passenger seat. When Officer McKenna approached the vehicle, he

      smelled burnt marijuana and had Carr and Henderson exit the vehicle. He

      handcuffed them and sat them on the curb. He then searched the vehicle and

      found a handgun under the driver’s seat. Officer McKenna “Mirandized” Carr

      and Henderson and questioned them about the handgun. Tr. at 8. Carr first

      stated that the handgun belonged to her and “she was in the middle of

      purchasing it from her grandfather,” and she later stated that she was

      “purchasing the handgun from a guy named Mike.” Id. at 9. She told the

      officer that “she did not have a handgun permit and forgot to get one.” Id.


[4]   The State charged Carr with class A misdemeanor carrying a handgun without

      a license. At Carr’s bench trial, Officer McKenna testified largely consistent



      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015   Page 2 of 6
      with the foregoing. 1 Carr testified that she told the officer that she did not own

      a gun and did not know that there was a handgun under the seat. Michael

      Jenkins testified on Carr’s behalf and stated that he had left the handgun in her

      vehicle. The trial court found Carr guilty as charged, stating that it did not

      “believe Mr. Jenkins” and that Carr “was the driver and constructively

      possessed” the handgun that was found “under the driver’s seat[.]” Id. at 33.

      Carr now appeals.


                                      Discussion and Decision

           Section 1 – Carr has waived any argument regarding the
                        admissibility of the handgun.
[5]   Carr asserts that the trial court erred in admitting the handgun because the State

      failed to establish that Officer McKenna had sufficient training and experience

      to identify the smell of burnt marijuana, which was the basis for the warrantless

      search of her vehicle. Cf. State v. Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App.

      2002) (“[W]hen a trained and experienced police officer detects the strong and

      distinctive odor of burnt marijuana coming from a vehicle, the officer has

      probable cause to search the vehicle [without a warrant]. That is true under

      both the Fourth Amendment of our federal constitution and under Article 1,

      Section 11 of the Indiana Constitution.”), trans. denied. This argument is

      waived because Carr failed to object to the admission of the handgun at trial.




      1
        The officer did not specify when he handcuffed Carr and Henderson. Carr testified that he handcuffed
      them after they exited and before he searched the vehicle. Tr. at 27.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015            Page 3 of 6
      See Kubsch v. State, 784 N.E.2d 905, 923 (Ind. 2003) (“Failure to object at trial to

      the admission of evidence results in waiver of that issue on appeal.”). Indeed,

      this argument would be waived in any event because Carr failed to make a

      specific objection regarding the officer’s familiarity with marijuana. See

      Espinoza v. State, 859 N.E.2d 375, 384 (Ind. Ct. App. 2006) (“Under Ind.

      Evidence Rule 103(a), ‘[e]rror may not be predicated upon a ruling which

      admits or excludes evidence unless a substantial right of the party is affected,

      and … a timely objection or motion to strike appears of record, stating the

      specific ground of objection, if the specific ground was not apparent from the

      context ….’ Grounds for objection must be specific and any grounds not raised

      in the trial court are not available on appeal. The objection must be sufficiently

      specific to alert the trial judge fully of the legal issue. The complaining party

      may not object in general terms but must state the objection with specificity.”)

      (citations, quotation marks, and alterations omitted).


          Section 2 – Any argument regarding the admission of Carr’s
          confession is waived, and any error in the admission of the
               confession is harmless beyond a reasonable doubt.
[6]   Carr also contends that the trial court erred in admitting Officer McKenna’s

      testimony that she confessed that the handgun belonged to her because the State

      failed to establish that he adequately advised her of her Miranda 2 rights before

      he questioned her. Although Carr objected on foundational grounds when



      2
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015   Page 4 of 6
      Officer McKenna testified that he “Mirandized” her without specifying which

      rights he advised her of, Tr. at 8, she did not object to his testimony that she

      confessed that the handgun belonged to her. Id. at 9. Therefore, this argument

      is waived. Kubsch, 784 N.E.2d at 923.


[7]   Waiver notwithstanding, any error in the admission of this testimony is

      harmless beyond a reasonable doubt because the State presented ample

      evidence that Carr constructively possessed the handgun. Cf. Hall v. State, No.

      49S05-1412-CR-728, 2015 WL 4041306 at *6 (Ind. July 2, 2015) (“‘[B]efore a

      federal constitutional error may be held harmless, the court must be able to

      declare a belief that it was harmless beyond a reasonable doubt.’”) (quoting

      Chapman v. California, 386 U.S. 18, 24 (1967)). “Similar to a harmless error

      analysis, a court determining whether an error is harmless beyond a reasonable

      doubt must do so on review of the whole record.” Id. at *7.


[8]   “Constructive possession is established by showing that the defendant has both

      the intent and capability to maintain dominion and control over the

      contraband.” Richardson v. State, 856 N.E.2d 1222, 1228 (Ind. Ct. App. 2006),

      trans. denied (2007).


              In cases where the accused has exclusive possession of the
              premises on which the contraband is found, an inference is
              permitted that he or she knew of the presence of contraband and
              was capable of controlling it. However, when possession of the
              premises is non-exclusive, the inference is not permitted absent
              some additional circumstances indicating knowledge of the
              presence of the contraband and the ability to control it.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015   Page 5 of 6
       Id. (citation omitted). Among those additional circumstances are proximity of

       the defendant to the contraband and location of the contraband in close

       proximity to items owned by the defendant. Id. at 1229.


[9]    Here, the handgun was found in Carr’s vehicle beneath the driver’s seat in

       which she was sitting when Officer McKenna pulled her over. The State

       presented photographic evidence and testimony from the officer that it would

       have been very difficult, if not impossible, for a backseat passenger to slide the

       handgun under the seat. There was no backseat passenger in the vehicle at the

       time of the stop, and no evidence was presented that the handgun was owned

       by Henderson, Carr’s front-seat passenger. And finally, the trial court

       specifically stated that it did not believe the testimony of Jenkins, who claimed

       that the handgun belonged to him. Based on the foregoing, we conclude that

       any error in the admission of Carr’s confession was harmless beyond a

       reasonable doubt. Consequently, we affirm her conviction.


[10]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-81 | August 13, 2015   Page 6 of 6
