MEMORANDUM DECISION                                                      FILED
                                                                     Jul 15 2016, 8:33 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                             CLERK
                                                                     Indiana Supreme Court
precedent or cited before any court except for the                      Court of Appeals
                                                                          and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cynthia P. Helfrich                                       Gregory F. Zoeller
Helfrich & Harrell, LLC                                   Attorney General of Indiana
Avon, Indiana
                                                          Monika P. Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Nicholas King,                                            July 15, 2016

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          32A04-1508-CR-1258
        v.                                                Appeal from the Hendricks Superior
                                                          Court.
                                                          The Honorable Robert W. Freese,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Cause No. 32D01-1209-FC-123




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 32A04-1508-CR-1258 | July 15, 2016         Page 1 of 12
                                             Statement of the Case
                                                                                             1
[1]   Nicholas King appeals his convictions for burglary as a Class C felony, theft as
                                2                                                                       3
      a Class D felony, and possession of a controlled substance as a Class D felony.

      He alleges the trial court erred when it denied his motion to suppress and

      violated his privilege against self-incrimination. We affirm.


                                                    Issues
[2]   King raises the following restated issues for our review:

                 I. Whether the trial court abused its discretion when it admitted
                 evidence obtained from a search of his property; and


                 II. Whether comments made by the special prosecutor and the
                 trial court judge violated King’s privilege against self-
                 incrimination.


                                    Facts and Procedural History
[3]   Dennis Nottingham was a broker-owner with a real estate company. In 2012,

      Nottingham was under contract to list and sell homes for the Federal National

      Mortgage Association (hereinafter, Fannie Mae) that had been foreclosed upon.

      Nottingham hired Steven Atkins as a property inspector for the homes. Atkins




      1
          Ind. Code § 35-43-2-1 (1999).
      2
          Ind. Code § 35-43-4-2(a) (2009).
      3
          Ind. Code § 35-48-4-7(a) (2011).


      Court of Appeals of Indiana | Memorandum Decision 32A04-1508-CR-1258 | July 15, 2016   Page 2 of 12
      was responsible for ensuring the homes were secure and free from damage. In

      2012, the doors to the Fannie Mae homes were secured by key codes and all of

      the homes could be accessed with the same code. Nottingham provided Atkins

      with the code, but he did not give Atkins permission to share the code with

      third parties not affiliated with Fannie Mae.


[4]   Nottingham’s real estate company was assigned by Fannie Mae to oversee

      repairs to a property located in Danville, Hendricks County, Indiana, and to

      market and sell the property. On May 18, 2012, Fannie Mae ordered an

      electric range, a microwave combined with a range hood, and a dishwasher for

      the Danville home. The appliances, all in the color black, were delivered to the

      Danville house on June 8, 2012. Nottingham testified that the appliances were

      not defective, that they did not need to be replaced, and that he did not give

      anyone permission to remove the appliances from the Danville house.


[5]   Atkins, who had met King a few days before, provided King with the code to

      enter the Danville home so that King could remove the new appliances. King

      did not work for Nottingham; Nottingham did not know King; Nottingham did

      not give King the Danville house access code; and, Nottingham did not give

      King permission to enter the Danville house. According to Atkins, it was “just

      assumed” that King knew he would be entering the Danville house to perform

      an illegal act. Tr., Vol. I, p. 150. Atkins testified at trial that King had

      informed him he “could get like six hundred dollars for [the appliances].” Id. at

      154. Atkins instructed King to walk around the Danville house as a contractor



      Court of Appeals of Indiana | Memorandum Decision 32A04-1508-CR-1258 | July 15, 2016   Page 3 of 12
      would, to carry a camera and a clipboard, and to cover his tattoos so that he

      would not raise suspicion.


[6]   Sometime in the morning of September 11, 2012, King drove to the Danville

      house in a box truck to remove the appliances. When he arrived, he called

      Atkins to tell him the mother of the individual who was purchasing the house

      was present. Atkins told King to tell the person he was removing the black

      colored appliances to replace them with stainless steel appliances.


[7]   The next day, the buyer of the Danville house called the Danville Police

      Department and reported that the previous day his mother saw two men and a

      box truck in the driveway and that the two men removed appliances from the

      home. The mother remembered seeing the words “Van Gogh” on the side of

      the truck. A detective with the Danville Police Department drove to the

      Danville house and encountered Atkins at the house. The detective and Atkins

      entered the house and confirmed the appliances were missing.


[8]   Soon after, the detective searched for and found contact information for Paul

      Wheeler, who owned a courier business that used a white box truck with the

      name “Van Gogh” painted on its side. Wheeler had left his truck with the King

      of the Road repair shop so that the truck could be repaired. King’s father, Gary

      King, was the manager for the repair shop. The Danville police detective spoke

      with Wheeler, determined the truck was stolen because Wheeler did not give

      permission to anyone at the repair shop to drive the truck (beyond taking the




      Court of Appeals of Indiana | Memorandum Decision 32A04-1508-CR-1258 | July 15, 2016   Page 4 of 12
       truck for maintenance test drives), and learned through Wheeler’s GPS system

       that the truck was located at King’s residence.


[9]    The detective drove to King’s residence. Upon arrival, he noticed immediately

       the white Van Gogh box truck in King’s backyard and several individuals

       standing near the truck. The detective requested assistance from other police

       officers. When the officers arrived at King’s residence, King approached the

       detective and told him “this must be about the appliances.” Id. at 166. The

       officers Mirandized all of the individuals who were present and separated the

       individuals. At some point, King was placed in handcuffs. The detective asked

       for consent to search King’s property. King consented to the search. The

       missing appliances were found inside of the box truck; a glass pipe commonly

       used for drug use was found in King’s garage; and, what was later tested and
                                                                                                      4
       determined to be anabolic steroids were found in King’s residence. After the

       search was completed, King was transported by the officers to the police

       station. Upon arrival, King provided a statement to the police and aided the

       officers with the investigation.


[10]   King was arrested and the State charged him with Class C felony burglary,

       Class D felony theft, Class D felony auto theft, Class D felony receiving stolen

       property, Class D felony possession of a controlled substance, and Class A

       misdemeanor possession of paraphernalia. Prior to trial, King, pro se, filed a




       4
           Other items were found incident to the search; however, those items are not a part of this case.


       Court of Appeals of Indiana | Memorandum Decision 32A04-1508-CR-1258 | July 15, 2016                   Page 5 of 12
                                                                                5
       motion to suppress the evidence found on his property. The trial court, after

       holding a hearing, denied the motion. During the trial, the State offered several

       exhibits into evidence, consisting of pictures of items the police found when

       they searched the box truck and including the missing appliances. The State

       also offered other evidence pertaining to the items found during the search of

       King’s property. King made no objection to the admission of the evidence.


[11]   At the conclusion of the trial, the jury found King guilty of Class C felony

       burglary, Class D felony theft, and Class D felony possession of a controlled

       substance. King now appeals.


                                     Discussion and Decision
[12]   King contends the trial court erred when it denied his motion to suppress

       evidence found during the search of his property. Although King originally

       challenged the admission of the evidence through a motion to suppress, he

       appeals following a completed trial and challenges the admission of such

       evidence at trial. “Thus, the issue is . . . appropriately framed as whether the

       trial court abused its discretion by admitting the evidence at trial.” Washington

       v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). Our standard of review of

       rulings on the admissibility of evidence is essentially the same whether the

       challenge is made by a pretrial motion to suppress or by trial objection.




       5
         King had two attorneys who represented him pretrial. The first attorney withdrew from the case and a
       second attorney was appointed. The second attorney also withdrew and King elected to represent himself at
       trial. King is represented by counsel in this appeal.

       Court of Appeals of Indiana | Memorandum Decision 32A04-1508-CR-1258 | July 15, 2016          Page 6 of 12
       Ackerman v. State, 774 N.E.2d 970, 974 (Ind. Ct. App. 2002), trans. denied. We

       review the trial court’s ruling for abuse of discretion. Reinhart v. State, 930

       N.E.2d 42, 45 (Ind. Ct. App. 2010). We do not reweigh the evidence, and we

       consider conflicting evidence most favorable to the trial court’s ruling. Id. We

       also defer to the trial court’s factual determinations unless clearly erroneous. Id.

       However, we consider afresh any legal question of the constitutionality of a

       search or seizure. Id.


                             I. Consent to Search/Admissibility of Evidence

[13]   King argues the trial court erred in admitting into evidence items found during

       the police officers’ search of his property. King claims his consent to the search

       of his property is invalid because he was in police custody at the time consent

       was given and should have received the Pirtle warning prior to giving his
                  6
       consent. See Pirtle v. State, 263 Ind. 16, 29, 323 N.E.2d 634, 640 (Ind. 1975) (“a

       person who is asked to give consent to search while in police custody is entitled

       to the presence and advice of counsel prior to making the decision whether to

       give such consent”). We do not reach King’s claim.


[14]   It has long been the rule in Indiana that although a motion to suppress has been

       overruled prior to trial, when the evidence is later offered at trial no error will be

       preserved unless there is an objection at that time. See Wagner v. State, 474




       6
        In his brief, King calls into question whether he provided police consent to search his property. However,
       King does not develop this argument and we will not make the argument for him.

       Court of Appeals of Indiana | Memorandum Decision 32A04-1508-CR-1258 | July 15, 2016             Page 7 of 12
       N.E.2d 476, 484 (Ind. 1985) (“When a motion to suppress has been overruled

       and the evidence sought to be suppressed is later offered at trial, no error will be

       preserved unless there is an objection at that time.”); see also Evans v. State, 809

       N.E.2d 338, 344 (Ind. Ct. App. 2004) (observing that pro se litigants without

       legal training are held to the same standard as trained counsel and are required

       to follow procedural rules), trans. denied. A claim that has been waived by a

       defendant’s failure to raise a contemporaneous objection can be reviewed on

       appeal if the reviewing court determines that fundamental error occurred. See,

       e.g., Trice v. State, 766 N.E.2d 1180, 1182 (Ind. 2002); Hayworth v. State, 904

       N.E.2d 684, 694 (Ind. Ct. App. 2009). However, as our Supreme Court held in

       Brown v. State, 929 N.E.2d 204, 205 (Ind. 2010), “a [claim of] error in admitting

       unlawfully seized evidence at trial . . . , without more, does not assert

       fundamental error.”


[15]   King did not object at trial to the admission of the pictures of the missing

       appliances found in the box truck. When the exhibits were offered into

       evidence at trial, the trial court specifically asked King, “Objection to [Exhibits]

       2 through 14 Mr. King?” Tr., Vol. 1, p. 169. Although the transcript indicates

       that King made no audible response to the court’s question, it does not appear

       that King objected to the admission. The transcript indicates the exhibits were

       admitted into evidence.


[16]   King also did not object to the admission of the forensic scientist’s report that

       analyzed the steroids found during the search of his property and determined

       the steroids to be Testosterone, a controlled substance. When the trial court

       Court of Appeals of Indiana | Memorandum Decision 32A04-1508-CR-1258 | July 15, 2016   Page 8 of 12
       asked King if he had any objection to the introduction of the report, King

       replied, “No Sir.” Id. at 214.


[17]   King’s failure to object at trial to the admission of the evidence he sought to

       suppress has resulted in a waiver of any claim that it was error to admit the

       evidence. King’s assertion that the evidence was the product of an

       unconstitutional search and seizure, without more, does not rise to the level of a

       claim of fundamental error.


                    II. Fifth Amendment Privilege Against Self-Incrimination

[18]   King next argues comments made at trial by the prosecutor and the judge

       infringed on his right against self-incrimination. At his trial, King’s wife

       testified on his behalf regarding the police officers’ search of his property. On

       cross-examination, the prosecutor asked the wife about written notes she had

       prepared and used during a deposition, as well as the use of the notes during her

       testimony. The prosecutor then offered into evidence copies of the written

       notes, and the notes were admitted.


[19]   During re-direct examination, the following exchange between King and his

       wife took place:

               [MR. KING]. Yes, um, if I gave you three pieces of paper or six
               pieces of paper right now could you right [sic] that right now in
               front of everybody?
               [WIFE]. Yeah.
               [MR. KING]. Without nobody telling you what to right [sic]?
               [WIFE]. Yeah.

       Court of Appeals of Indiana | Memorandum Decision 32A04-1508-CR-1258 | July 15, 2016   Page 9 of 12
               [MR. KING]. Will you do it for me?
               [WIFE]. Yeah, it might take me a little bit but.
               [MR. KING]. That's fine.
               STATE: If the defendant is going to testify I am going to ask that
               he be put under oath so he can be cross examined [sic] by the
               State.
               COURT: Mr. King, you are to ask the witnesses questions, and
               so if you want to take the stand, maybe you can go ahead and do
               what he is requesting.
               MR. KING: I am not requesting you to do that, [sic] if you
               want to do that to prove the point go ahead, [sic] I am asking
               if you could do it [sic] you said yes s [sic].
               COURT: I thought you asked her to do it?
               MR. KING: I asked her if she could do [it.] I am done with
               further questions.
               COURT: Re-Cross if any?
               STATE: I don't have any judge.


[20]   Id. at 234-35. According to King, the comments of the prosecutor and judge

       regarding King testifying “constitute[d] fundamental error in that [the

       comments were] ‘clearly blatant violations of basic and elementary principles of

       due process.’” Appellant’s Br. p. 11. King asks this Court to remand this

       matter for a new trial.


[21]   Although King did not object to the statements of the trial court and the

       prosecutor, he contends the prosecutor and the trial court committed

       fundamental error reviewable without the need to preserve the error. For the

       fundamental error doctrine to apply, however, we must find the alleged error so


       Court of Appeals of Indiana | Memorandum Decision 32A04-1508-CR-1258 | July 15, 2016   Page 10 of 12
       prejudiced the defendant’s rights as to make a fair trial impossible. Corcoran v.

       State, 739 N.E.2d 649, 655 (Ind. 2000). Fundamental error is an extremely

       narrow exception that allows a defendant to avoid waiver of an issue. 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.” Benson v. State, 762 N.E.2d 748, 756 (Ind.

       2002).


[22]   The Fifth Amendment to the United States Constitution prohibits compelling a

       defendant to testify against himself and has been interpreted to bar prosecutorial

       comment on a defendant’s silence. Jenkins v. State, 725 N.E.2d 66, 69 (Ind.

       2000) (citing Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233, 14 L.

       Ed. 2d 106 (1965)). A Fifth Amendment violation occurs “‘when a prosecutor

       makes a statement that is subject to reasonable interpretation by a jury as an

       invitation to draw an adverse inference from a defendant’s silence.’” Id.

       (quoting Moore v. State, 669 N.E.2d 733, 739 (Ind. 1996)).


[23]   Even if we assume the prosecutor’s comment at King’s trial was improper, we

       conclude the comment does not rise to the level of fundamental error. “For

       prosecutorial misconduct to be fundamental error, it must be demonstrated that

       the prosecutor’s conduct subjected the defendant to grave peril and had a

       probable persuasive effect on the jury’s decision.” Hancock v. State, 737 N.E.2d

       791, 798 (Ind. Ct. App. 2000). We also do not agree the trial judge’s comments

       require reversal here.



       Court of Appeals of Indiana | Memorandum Decision 32A04-1508-CR-1258 | July 15, 2016   Page 11 of 12
[24]   The prosecutor merely stated, “If the defendant is going to testify[,] I am going

       to ask that he be put under oath so he can be cross examined [sic] by the State.”

       Tr., Vol. I, p. 234. The trial court judge was merely attempting to clarify the

       prosecutor’s comments, and to caution King that he must present questions to

       his witness and not have the witness create a written statement while on the

       stand. The comments of neither the prosecutor nor the trial court subjected

       King to grave peril, and we are not convinced the comments had any probable

       persuasive effect on the jury’s decision, given the evidence presented at trial.

       There was no fundamental error; therefore, King’s claim as to this issue fails.


                                                Conclusion
[25]   For the reasons stated above, the judgment of the trial court is affirmed.


[26]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A04-1508-CR-1258 | July 15, 2016   Page 12 of 12
