MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                              Jun 30 2016, 9:51 am
this Memorandum Decision shall not be
                                                                         CLERK
regarded as precedent or cited before any                            Indiana Supreme Court
                                                                        Court of Appeals
court except for the purpose of establishing                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                      Gregory F. Zoeller
Kokomo, Indiana                                         Attorney General of Indiana

                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Charles R. Ellis,                                       June 30, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A04-1511-CR-1843
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable William C.
Appellee-Plaintiff.                                     Menges, Jr., Judge
                                                        Trial Court Cause No.
                                                        34D01-1505-F2-499



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1843 | June 30, 2016         Page 1 of 8
                                       Statement of the Case
[1]   Charles R. Ellis appeals his convictions for dealing in a narcotic drug, as a

      Level 2 felony; dealing in methamphetamine, as a Level 4 felony; neglect of a

      dependent, as a Level 5 felony; possession of methamphetamine, as a Level 6

      felony; and maintaining a common nuisance, as a Level 6 felony. He raises

      three issues on appeal, which we consolidate and restate as whether the trial

      court abused its discretion when it admitted certain evidence at trial. We

      affirm.


                                 Facts and Procedural History
[2]   On the evening of May 26, 2015, Officers Shane Melton, Adam Martin, and

      Charlie Fourkiller of the Kokomo Police Department were involved with

      undercover work in association with a drug task force. The officers had met

      behind a business in Kokomo to set up some plans for an investigation. Officer

      Gibson, who was patrolling on his horse nearby, saw Jeremiah Floyd and

      Christina Muncey in a truck, and he alerted Officer Melton and the other

      officers that Floyd, who had an active warrant for his arrest, was driving toward

      them. Officer Martin stopped the truck Floyd was driving, and Officer Melton,

      who had had interactions with Floyd in the past, approached the truck and read

      Floyd his Miranda warnings.


[3]   Floyd admitted to Officer Melton that he had a bag containing drugs on his

      person, and Floyd retrieved it from his underwear. The officers found more

      drugs during a pat down search of Floyd. Floyd told Officer Melton that he


      Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1843 | June 30, 2016   Page 2 of 8
      was coming from Ellis’ house, and he stated that if the police were going to go

      to Ellis’ house, they should be careful because there were a bunch of people and

      suspected guns there, and “there was more drugs there and there was more

      money.” Tr. at 85.


[4]   During the approximately thirty minutes while Floyd was stopped, officers

      were sent to Ellis’ house to conduct surveillance. Floyd told Officer Melton

      that Ellis had drugs at his house and that Floyd had dropped or lost two or

      three grams of drugs at Ellis’ house, or else they had been stolen from him.

      Floyd also told Officer Melton that there “was a lot more drugs” at Ellis’ house.

      Id. at 87. The police arrested Floyd and Muncey.


[5]   The police had been tracking Ellis through a GPS monitoring company for the

      past four months.1 The police obtained a warrant, signed at 10:14 p.m. that

      night, to search Ellis’ home at 3272 West 300 South in Kokomo. When the

      police, including Officer Melton, arrived at Ellis’ house, people were leaving the

      premises in vehicles. When police served the warrant, Ellis, his minor daughter

      A., Steve Hilligoss, and Thomas Stout were in the house. The officers found no

      illegal substances when they searched the house, and they then began to search

      the property on which the house was located.


[6]   During the search of the property, Officer Melton was in contact with Doug

      Hoover, the person responsible for monitoring Ellis by GPS. Hoover informed



      1
          The record does not disclose the reason the police were monitoring Ellis by GPS.


      Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1843 | June 30, 2016   Page 3 of 8
      Officer Melton that there had been a lot of activity along a tree line or wood

      line of the property. Officer Melton went to the area indicated by the GPS data

      and saw a Pringles can in a pile of tree limbs and leaves. Officer Melton picked

      up the Pringles can and discovered that it had a false bottom which concealed

      baggies of heroin and methamphetamine.


[7]   The State charged Ellis with Count I, dealing in a narcotic drug as a Level 2

      felony; Count II, possession of a narcotic drug as a Level 3 felony; Count III,

      dealing in methamphetamine as a Level 4 felony; Count IV, neglect of a

      dependent as a Level 5 felony; Count V, dealing in a schedule III controlled

      substance as a Level 6 felony; Count VI, possession of methamphetamine as a

      Level 6 felony; and Count VII, maintaining a common nuisance as a Level 6

      felony. At trial, Floyd testified that he and Muncey had both been living at

      Ellis’ house and that he had used heroin and methamphetamine at Ellis’ home

      earlier in the day on May 26. He testified that, a couple of days before May 26,

      Ellis had given him $2,500 to go to Indianapolis to buy heroin. Floyd testified

      that he bought four ounces of heroin and took it back to Ellis’ house where they

      divided the heroin using scales in Ellis’ basement. Floyd testified that Ellis

      planned to sell or trade his part of the heroin rather than use it himself.


[8]   The State offered into evidence the Pringles can with the false bottom and the

      contents found therein, including the heroin and methamphetamine, and the

      trial court admitted all of this evidence after Ellis’ counsel affirmatively

      expressed no objections. The State also offered recordings and transcripts of

      recordings of telephone conversations Ellis had conducted from jail while

      Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1843 | June 30, 2016   Page 4 of 8
       awaiting trial in which he had made various references to illegal drugs. The

       recordings were played for the jury, and the transcripts were published to the

       jury. Ellis’ counsel affirmatively stated that he had no objection to each of the

       transcripts as the trial court admitted them into evidence. Ellis’ counsel did

       object to the admission of four of the recordings, and those objections were

       overruled.


[9]    The jury found Ellis not guilty on Count V, dealing in a schedule III controlled

       substance, and guilty on all remaining charges. The trial court entered judgment

       and sentence accordingly. 2 This appeal ensued.


                                        Discussion and Decision
[10]   Ellis maintains that the trial court abused its discretion when it admitted the

       evidence obtained from the search of his property. In particular, Ellis contends

       that the search warrant was obtained based on a false statement and that the

       search was beyond the scope of the warrant. He also contends that the trial

       court abused its discretion when it admitted into evidence the transcripts of his

       telephone conversations from jail because the court did not give a limiting jury

       instruction. However, Ellis raises those arguments for the first time on appeal.

       Therefore, those arguments are waived. Moreover, he has failed to show that

       the admission of the challenged evidence constituted fundamental error.




       2
         The trial court merged Count II, possession of a narcotic drug, as a Level 3 felony, with Count I, dealing in
       a narcotic drug, as a Level 2 felony.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1843 | June 30, 2016                Page 5 of 8
[11]   It is well-established that we generally will not address an argument that was

       not raised in the trial court and is raised for the first time on appeal.


               [A] trial court cannot be found to have erred as to an issue or
               argument that it never had an opportunity to consider.
               Accordingly, as a general rule, a party may not present an
               argument or issue on appeal unless the party raised that
               argument or issue before the trial court. Marshall v. State, 621
               N.E.2d 308, 314 (Ind. 1993). In such circumstances the
               argument is waived. Id.


       Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). Here, Ellis admits that he

       did not object to the admission of any of the evidence obtained as a result of the

       search, and he did not request that a limiting instruction accompany any of the

       transcripts of the recordings of his telephone conversations from jail. Therefore,

       he has waived our consideration of his arguments on appeal.


[12]   Moreover, we cannot agree with Ellis’ cursory allegation that the admission of

       the evidence at issue was fundamental error. As this court has routinely stated,

       merely calling an error fundamental does not make it so. See, e.g., Taylor v.

       State, 614 N.E.2d 944, 947 (Ind. Ct. App. 1993), trans. denied. That is especially

       true where, as here, the refrain is not accompanied by cogent argument or

       citation to authority. Id. Rather, in order to be fundamental, the error must be

       so prejudicial to the rights of the defendant that he could not have received a

       fair trial. Id. We have also characterized fundamental error as error that

       constitutes a clear, blatant violation of basic and elementary principles, and that

       causes or could cause substantial harm. Id.


       Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1843 | June 30, 2016   Page 6 of 8
[13]   Ellis has provided no cogent argument as to how any potential error in the

       admission of the evidence violated basic principles of due process such that he

       was denied a fair trial, and we will not attempt to develop such arguments for

       him. Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012), trans. denied.

       Furthermore, our supreme court has held that the fundamental error exception

       to waiver does not apply in situations such as this, where a party expressly said

       “no objection” to the admission of the evidence. Haliburton v. State, 1 N.E.3d

       670, 679 (Ind. 2013). In such a situation, the trial judge has no duty to sua

       sponte second-guess the party’s decision not to object. Id. Accordingly, we

       reject Ellis’ claim of fundamental error.


[14]   In any event, and waiver notwithstanding, there is no evidence that the

       admission of the evidence obtained as a result of the search was fundamental

       error. While Ellis contends that the probable cause affidavit upon which the

       search warrant was based contained a “false statement,” namely, that Floyd

       had stated he had three more grams of heroin at the Ellis residence, the affidavit

       contains sufficient additional information to support a warrant to search Ellis’

       house. See Lundquist v. State, 834 N.E.2d 1061, 1071 (Ind. Ct. App. 2005). And

       Ellis’ contention that the search warrant only allowed the police to search his

       house, not his surrounding property where the drugs were found, is without

       merit. A warrant authorizing the search of a residence also authorizes a search

       of the yard and outbuildings of the residence. Sowers v. State, 724 N.E.2d 588,

       590-91 (Ind. 2000). Finally, even if admission of the transcripts without a

       limiting instruction was error, the error, if any, was harmless because “the


       Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1843 | June 30, 2016   Page 7 of 8
       conviction is supported by substantial independent evidence of guilt satisfying

       the reviewing court there is no substantial likelihood the challenged evidence

       contributed to the conviction.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.

       2012).


[15]   Because Ellis waived his arguments on appeal and failed to make a showing of

       fundamental error, we affirm his convictions.


[16]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1511-CR-1843 | June 30, 2016   Page 8 of 8
