MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                          Jul 09 2015, 5:40 am
Memorandum Decision shall not be 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
Ryan P. Dillon                                            Gregory F. Zoeller
Dillon Legal Group, P.C.                                  Attorney General of Indiana
Franklin, Indiana
                                                          Justin F. Roebel
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Daniel Smith,                                             July 9, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          07A01-1411-CR-485
        v.                                                Appeal from the Brown Circuit
                                                          Court
                                                          Cause Nos. 07C01-1207-CM-251,
State of Indiana,                                         07C01-1308-CM-292
Appellee-Plaintiff                                        The Honorable Judith A. Stewart,
                                                          Judge




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 07A01-1411-CR-485 | July 9, 2015          Page 1 of 9
                                              Case Summary
[1]   Daniel Smith (“Smith”) appeals his convictions for two counts of Violating

      Orders to Vacate a Condemned Dwelling, Class B misdemeanors. 1 We affirm.



                                                    Issues
[2]   Smith presents two issues for review:

                 I.       Whether he was denied the right to present a meaningful
                          defense; and
                 II.      Whether fundamental error in the admission of evidence denied
                          Smith a fair trial.


                                Facts and Procedural History
[3]   In 2004, Smith purchased property in Nashville, Indiana, formerly occupied by

      the local American Legion chapter (“the Property”). On January 4, 2012, the

      Brown County Health Officer issued an Order to Vacate the Property, which

      apparently lacked a septic system appropriate for residential use. Copies of the

      order were left at the Property on that date. The following day, a copy was

      personally delivered to Smith. The order was not appealed.


[4]   In February and April of 2012, Brown County Health Department employee

      April Reeves (“Reeves”) visited the Property to record electric meter readings




      1
          Ind. Code §§ 16-41-20-4, 16-41-20-13.


      Court of Appeals of Indiana | Memorandum Decision 07A01-1411-CR-485 | July 9, 2015   Page 2 of 9
      and make observations relative to use of the Property. On April 13, 2012,

      Brown County Sheriff’s Deputy Michael Moore visited the Property, where he

      observed a posted condemnation notice. Deputy Moore also encountered

      Smith, who reported living on a boat parked at the Property.


[5]   On July 17, 2012, the State filed a four-count Information in Cause No. 07C01-

      1207-CM-251, charging that Smith had failed to vacate a condemned dwelling

      on or about February 1, 2012, March 1, 2012, April 1, 2012, and April 13,

      2012.


[6]   On July 18, 2013, Brown County Sheriff’s deputies executed a search warrant

      at the Property. The search yielded recent mail, fresh groceries, and

      rudimentary water drainage components. On August 19, 2013, the State filed

      an Information in Cause No. 07C01-1308-CM-292, alleging that Smith had

      failed to vacate a condemned dwelling on or about July 18, 2013.


[7]   On February 14, 2013, the Prosecutor filed a Motion in Limine, seeking to

      prevent Smith from introducing evidence to challenge the validity of the Order

      to Vacate. The State also moved to join the separate causes. At a hearing

      conducted on March 21, 2014, Smith argued that the local health department

      lacked jurisdiction to issue an order concerning a commercial building. The

      Prosecutor pointed out that the Order to Vacate had not been challenged in an

      administrative appeal. At the conclusion of the hearing, the trial court

      consolidated the charges for trial and requested the submission of briefs on the

      admissibility of evidence as to the validity of the Order to Vacate.


      Court of Appeals of Indiana | Memorandum Decision 07A01-1411-CR-485 | July 9, 2015   Page 3 of 9
[8]    On April 15, 2014, the trial court issued an order regarding the Motion in

       Limine. In relevant part, the order provided: “[Smith] cannot use this criminal

       proceeding as a per se challenge to the validity of the health officer’s Order to

       Vacate.” (App. 61.) The order further provided:

               the Court also finds that an order in limine prohibiting any reference to
               the validity of the Order to Vacate may be too broad and may prohibit
               relevant evidence of mens rea at the time of the alleged offenses, such
               as an explanation of why the defendant continued to live at the
               location, if he did.
       (App. 62.) Accordingly, Smith was to be afforded the opportunity to request an

       additional hearing at trial, outside the presence of the jury, should he seek to

       offer evidence of invalidity of the Order to Vacate relative to his criminal intent.

       On August 13, 2014, the parties convened for a pre-trial hearing and the trial

       court clarified that there remained “a big gray area on the culpability” and the

       trial court would “have to hear the testimony.” (Tr. 19-20).


[9]    On August 13, 2014, Smith was brought to trial before a jury. He was acquitted

       of three charges and convicted of two -- with respect to the dates of April 13,

       2012 and July 18, 2013. Smith was sentenced to an aggregate term of forty

       days imprisonment, all suspended. This appeal ensued.



                                  Discussion and Decision
                                       Right to Present Defense
[10]   Indiana Code Section 16-41-20-13(a) provides that a person who “recklessly

       violates or fails to comply” with the statutory chapter on Unfit Dwellings

       Court of Appeals of Indiana | Memorandum Decision 07A01-1411-CR-485 | July 9, 2015   Page 4 of 9
       commits a Class B misdemeanor. Smith contends that the trial court denied

       him a meaningful opportunity to present a defense by excluding evidence of the

       invalidity of the Order to Vacate. He concedes that he did not comply with

       Indiana Code Section 16-41-20-9(a), which provides:

               A person aggrieved by an order of a local board of health or county
               health officer issued under this chapter may, not more than ten (10)
               days after the making of the order, file with the circuit or superior
               court a petition seeking a review of the order.
[11]   However, according to Smith, “without evidence of State approved rules and

       regulations regarding the enforcement of septic systems, the Order stands

       invalid and unable to be enforced.” (Appellant’s Br. at 8.) He also observes

       that the Property was identified in county records as commercial property, and

       suggests that local county health officers may act only with respect to personal

       residences. In essence, Smith asserts that he should have been permitted to

       collaterally attack the Order to Vacate, although he failed to perfect a timely

       appeal to challenge its validity.


[12]   A trial court exercises broad discretion in ruling on the admissibility of

       evidence, and an appellate court should disturb its ruling only where it is shown

       that the court abused its discretion. Camm v. State, 908 N.E.2d 215, 225 (Ind.

       2009). Generally, the admission or exclusion of evidence will not result in a

       reversal on appeal absent a manifest abuse of discretion that results in the denial

       of a fair trial. Dorsey v. State, 802 N.E.2d 991, 993 (Ind. Ct. App. 2004).


[13]   “The right to present a defense is a fundamental element of due process of law”

       and a defendant has a right to present relevant evidence offered to challenge the

       Court of Appeals of Indiana | Memorandum Decision 07A01-1411-CR-485 | July 9, 2015   Page 5 of 9
       charges against him. Manigault v. State, 881 N.E.2d 679, 690 (Ind. Ct. App.

       2008). A defendant’s right to present a defense includes the right to present his

       or her version of the facts. Parker v. State, 965 N.E.2d 50, 53 (Ind. Ct. App.

       2012). Although this right is of the utmost importance, it is not absolute. Id.


[14]   Pursuant to Indiana Code Section 16-41-20-13(a), the State was required to

       establish that Smith had violated an order issued under the Unsafe Dwellings

       chapter and that he had acted recklessly. The elements of the charged offense

       to be established beyond a reasonable doubt did not include validity of the

       underlying order.


[15]   Smith was placed in a position of defending against the State’s allegations that

       he had recklessly violated an order that he vacate a condemned dwelling.

       Smith testified at his trial, conceding that he had seen the Notice to Vacate and

       that he had not filed a petition for review. However, he claimed that his

       property had been condemned “for no reason” and he had “not figured out

       why.” (Tr. 173, 188.) In an offer to prove, Smith testified that the Property was

       zoned commercial, he had an operating septic system, and he had been treated

       unfairly. His offer of proof, if credited, did not directly call into question the

       validity of the Order to Vacate. Regardless, defects in the Order to Vacate do

       provide a defense to the offense with which Smith was charged.


[16]   To the extent that Smith desired to collaterally attack the Order to Vacate, it is

       undisputed that he failed to challenge its validity by a timely appeal. The State

       was not required to independently establish its validity. Smith’s offer of proof


       Court of Appeals of Indiana | Memorandum Decision 07A01-1411-CR-485 | July 9, 2015   Page 6 of 9
       did not demonstrate its invalidity. To the extent that Smith desired to present

       evidence of his state of mind, personal beliefs, or mens rea, he was not denied

       the right to do so. Smith has not demonstrated that he was deprived of a

       meaningful opportunity to present a complete defense.


                                             Admission of Evidence
[17]   Without objection from Smith, 2 the State offered into evidence State’s Exhibit

       7, the Information filed in cause number 07-C01-1207-CM-251. Smith now

       asserts that the four-count allegations have negative implications regarding

       Smith’s character and violate Ind. Evidence Rule 404(b), which provides in

       relevant part:

                  Evidence of other crimes, wrongs, or acts is not admissible to prove the
                  character of a person in order to show action in conformity therewith.
                  It may, however, be admissible for other purposes, such as proof of
                  motive, intent, preparation, plan, knowledge, identity, or absence of
                  mistake or accident[.]
[18]   The defendant’s failure to lodge a contemporaneous objection at the time

       evidence is introduced at trial results in waiver of the error on appeal. Brown v.

       State, 929 N.E.2d 204, 207 (Ind. 2010). “The purpose of this rule is to allow the

       trial judge to consider the issue in light of any fresh developments and also to

       correct any errors.” Id. A claim that has been thus waived can be reviewed on

       appeal if the reviewing court determines that a fundamental error occurred. Id.

       The fundamental error exception is ‘“extremely narrow, and applies only when



       2
           Smith’s counsel stated that he had “no objection.” (Tr. 70.)


       Court of Appeals of Indiana | Memorandum Decision 07A01-1411-CR-485 | July 9, 2015   Page 7 of 9
       the error constitutes a 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)). The exception is available only in ‘“egregious circumstances.”’

       Id. (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)).


[19]   The rationale for the prohibition against bad act and character evidence is that

       the jury is precluded from making the forbidden inference that the defendant

       had a criminal propensity and therefore engaged in the charged conduct.

       Monegan v. State, 721 N.E.2d 243, 248 (Ind. 1999). However, “the rule does not

       bar evidence of uncharged acts that are ‘intrinsic’ to the charged offense.”

       Wages v. State, 863 N.E.2d 408, 411 (Ind. Ct. App. 2007). Acts are “intrinsic” if

       they occur at the same time and under the same circumstances as the crimes

       charged. Id.


[20]   State’s Exhibit 7 did not reference extrinsic conduct. Indeed, it reflected

       charged conduct. 3 The exhibit consisted of the Information alleging that Smith

       failed to vacate his condemned dwelling on four occasions in February, March,

       and April of 2012. The same Information was read to the jury as part of their

       preliminary instructions; its subsequent admission was cumulative. The trial




       3
        Smith acknowledges this in his Reply Brief, stating: “Had the cases not been joined for purposes of trial,
       Trial Exhibit 7 would have been evidence of uncharged conduct and would not have been able to be
       permitted.” (Reply Br. at 4.)

       Court of Appeals of Indiana | Memorandum Decision 07A01-1411-CR-485 | July 9, 2015                 Page 8 of 9
       court did not admit evidence of “other crimes, wrongs, or acts.” Evid. R.

       404(b). Smith has failed to demonstrate fundamental error.



                                               Conclusion
[21]   Smith was not denied the opportunity to present a meaningful defense. Nor did

       fundamental error deprive him of a fair trial.


[22]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 07A01-1411-CR-485 | July 9, 2015   Page 9 of 9
