 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before
 any court except for the purpose of
 establishing the defense of res judicata,                   Apr 01 2013, 8:37 am
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

JOEL M. SCHUMM                                        GREGORY F. ZOELLER
Indianapolis, Indiana                                 Attorney General of Indiana

                                                      JOSEPH Y. HO
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

AARON INGLE,                                          )
                                                      )
       Appellant-Respondent,                          )
                                                      )
               vs.                                    )      No. 49A02-1206-CR-538
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Kimberly J. Brown, Judge
                      The Honorable Teresa A. Hall, Master Commissioner
                               Cause No. 49G16-1102-FD-8691


                                            April 1, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                      Case Summary

       Aaron Ingle appeals his convictions for three counts of Class D felony neglect of a

dependent. He contends that the trial court erred in denying his motion to suppress

evidence because the police did not have consent to enter his house and there were no

exigent circumstances justifying entry, and that there is insufficient evidence to sustain

his convictions. Finding that there was consent for the police to enter Ingle’s house and

there is sufficient evidence to sustain his convictions, we affirm.

                              Facts and Procedural History

       On February 8, 2011, Ingle had full custody of his three children. That night,

Ingle made harassing phone calls and sent harassing text messages to his ex-wife,

Amanda, and her boyfriend. Ingle was slurring his words, which concerned Amanda that

he “was too intoxicated” to take care of the children. Tr. p. 7-9, 21. Around 10:00 p.m.,

Amanda called the police and asked them to check on the children’s welfare.

       Indianapolis Metropolitan Police Department Officer Justin Beaton arrived at

Ingle’s house around 10:15 p.m. to perform a “Check the Welfare of Children” run.

Officer Beaton knocked on the door and saw that all the lights were on, one of the

children was running through the house wearing a “sagging” and “apparently dirty”

diaper, id. at 67, the house was in a state of “disarray,” id. at 27, and tack strips with

exposed nails were on the floor. Id. at 122. Ingle’s uncle, Mark Pearson, answered the

door. Officer Beaton said that he was there to check on the welfare of the children and

then asked if he could come in and speak with their father. Pearson “didn’t say anything,

he opened the door, invited [Officer Beaton] into the house.” Id. at 26. At trial, Officer


                                              2
Beaton testified that Pearson’s invitation into the house consisted of him opening the

door and stepping out of his way. Id. at 123.

       Shortly after Officer Beaton arrived, Ingle “staggered out of the back bedroom . . .

and appeared to be intoxicated.” Id. at 28. Officer Beaton tried to have a conversation

with Ingle, but Ingle could not stand straight, cursed, and slurred his words. Officer

Beaton handcuffed Ingle due to his size, agitation, and level of intoxication. Id. at 29.

       Investigating the house, Officer Beaton testified at trial that he saw: “All the carpet

had been pulled out, it was on the front porch. Um, I noticed paint cans, empty paint

cans, paint rollers, tack strips, pieces of wood, exposed nails from the tack strips . . . .

condiments that were spilled all over a couch, empty beer bottles, and whiskey bottles.”

Id. at 27. As Officer Beaton walked through the living room, he stepped on a tack strip

and the nail punctured the sole of his boot. Id. at 39-40.

       In the bathroom, Officer Beaton testified that there was “an overwhelming smell

of human urine and feces.” Id. at 32. There was only subflooring and some rotting

flooring. The bathtub was filled with water, there was feces in the toilet, vomit on the

back of the toilet seat, a used diaper containing feces laying open on the floor, and an

assortment of tools scattered on the sink. Id. at 33-34. In the kitchen, Officer Beaton saw

that there was a kitchen knife on the floor, a layer of “grease and grime on the

countertop,” “many whiskey bottles, and stacks of cases of empty beer, a beer can, a

smoldering cigarette . . . . [and a] lot of decaying food.” Id. at 34.

       None of the children were wearing shoes, the youngest child was wearing only his

“diaper, or just a pair of pants,” and was covered in wet paint, and the oldest child was


                                               3
wearing only her underwear bottoms. Mice were running throughout the house, and there

were mice feces all around. Pearson attempted to clean up the house, but the officers

stopped him. Officer Beaton and the other two officers who arrived at the scene took

pictures of the conditions of the house and arrested Ingle. The Department of Child

Services came and removed the three children from the house.

       The State charged Ingle with three counts of Class D felony neglect of a

dependent. A bench trial was held, and Ingle was found guilty of all three counts. The

trial court sentenced Ingle to 365 days, with 2 days executed and the remainder

suspended to probation on each count, to run concurrently. The trial court also entered an

order granting alternative misdemeanor sentencing upon Ingle’s discharge from

probation.

       Ingle now appeals.

                                Discussion and Decision

       Ingle raises two issues on appeal: (1) whether the trial court erred in denying his

motion to suppress evidence because the police did not have consent to enter his house

and there were no exigent circumstances and (2) whether there is sufficient evidence to

sustain his three convictions for Class D felony neglect of a dependent.

                                 I. Motion to Suppress

       Ingle contends that the trial court abused its discretion by admitting the evidence

gathered by Officer Beaton as a result of his warrantless entry into his house. A trial

court has broad discretion in ruling on the admission or exclusion of evidence.

Kimbrough v. State, 911 N.E.2d 621, 631 (Ind. Ct. App. 2009). The trial court’s ruling


                                            4
on the admissibility of evidence will be disturbed on review only upon a showing of an

abuse of discretion. Id. An abuse of discretion occurs when the trial court’s ruling is

clearly against the logic, facts, and circumstances presented. Id. Error may not be

predicated upon a ruling that admits or excludes evidence unless a substantial right of the

party is affected. Ind. Evidence Rule 103.

       Ingle contends that the trial court abused its discretion in admitting the evidence

because it was the product of an unconstitutional search, in violation of his Fourth

Amendment rights.1 The Fourth Amendment to the United States Constitution provides

that

       “[t]he right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable searches and seizures, shall not be violated,
       and no Warrants shall issue, but upon probable cause, supported by Oath or
       affirmation, and particularly describing the place to be searched, and the
       person or things to be seized.”

The Fourth Amendment is made applicable to the States via the Due Process Clause of

the Fourteenth Amendment.           Mapp v. Ohio, 367 U.S. 643, 656 (1961).                 Evidence

obtained in violation of a defendant’s Fourth Amendment rights may not be introduced

against him at trial. Id. at 648-60.

       The Fourth Amendment to the United States Constitution prohibits unreasonable

searches and seizures by the government. Patterson v. State, 958 N.E.2d 478, 482 (Ind.

Ct. App. 2011). “Searches performed by government officials without warrants are per

se unreasonable under the Fourth Amendment, subject to a ‘few specifically established

and well-delineated exceptions.’” Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006)

       1
         Ingle makes no claim under Article 1, Section 11 of the Indiana Constitution and has therefore
waived review under that provision.
                                                  5
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)). When a search is conducted

without a warrant, the State bears the burden of proving that an exception to the warrant

requirement existed at the time of the search. Patterson, 958 N.E.2d at 482.

       One well-recognized exception to the warrant requirement is a voluntary and

knowing consent to search. Hill v. State, 825 N.E.2d 432, 436 (Ind. Ct. App. 2005). A

third party can give consent to the search of the premises if he has actual or apparent

authority. Id. “Under the apparent authority doctrine, a search is lawful if the facts

available to the officer at the time would cause a person of reasonable caution to believe

that the consenting party had authority over the premises.” Primus v. State, 813 N.E.2d

370, 374-75 (Ind. Ct. App. 2004).

       The evidence in this case shows that Officer Beaton knocked on the door to

Ingle’s house after 10:00 p.m. and Pearson answered. Officer Beaton explained that he

was there to check the welfare of the children and asked if he could come inside and

speak with the father. Officer Beaton did not know who Pearson was at that time, but

Pearson “didn’t say anything, he opened the door, invited [Officer Beaton] into the

house.” Tr. p. 26. Pearson’s invitation into the house consisted of him opening the door

and stepping out of Officer Beaton’s way. Id. at 123.

       Ingle contends that Pearson did not have the authority to consent to Officer

Beaton’s entry into the house, and even if he did, his actions did not rise to the level of

consent. Ingle argues that Pearson’s stepping back “may only be a retreat and not a

manifestation of consent to entry.” Ackerman v. State, 774 N.E.2d 970, 976 (Ind. Ct.

App. 2002), reh’g denied, trans. denied.


                                            6
         This court in Ackerman stated that “[t]he voluntariness of this consent to search is

a question of fact to be determined from the totality of the circumstances. [A]n express

consent is not a requirement for a valid consent search. The circumstances surrounding

the search may demonstrate that the party involved implicitly gave consent, by word or

deed.” Id. at 975 (internal citations omitted). In Ackerman, the homeowner saw that the

police were outside her door, the police knocked, the homeowner – who was crying and

on the phone at the time – opened the door and stepped aside, and the police entered the

house.     Id. at 973.   We found that the homeowner’s act of stepping aside was an

invitation to enter the house rather than a retreat because she knew that it was the police

at the door and no force, duress, fear, or intimidation was used to gain entry. Id. at 976.

         In this case, based on the totality of the facts introduced into evidence, it was not

unreasonable for Officer Beaton to conclude that Pearson, an adult who answered the

door late at night and let him inside, had the actual or apparent authority to allow his

entry into the house. While Pearson’s invitation into the house was not express, we find

that it was not unreasonable for Officer Beaton to interpret Pearson’s actions as consent

to enter the house. Officer Beaton told Pearson why he was there, asked if he could come

in and asked to speak to the children’s father. It was at that point that Pearson stepped

aside to allow Officer Beaton into the house. Like in Ackerman, Pearson was aware that

a police officer was at the door, and no force, duress, fear, or intimidation was used to

gain entry, so we similarly find that his action was an invitation and not a retreat. Ingle’s

argument is merely an invitation to reweigh the evidence, which we will not do.




                                               7
        We therefore find that the trial court did not err in denying Ingle’s motion to

suppress by finding that Officer Beaton had consent to enter Ingle’s house.2

                                 II. Sufficiency of the Evidence

        Our standard of review with regard to sufficiency claims is well settled. In

reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence

or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct.

App. 2010), reh’g denied, trans. denied. We consider only the evidence most favorable

to the judgment and the reasonable inferences draw therefrom and affirm if the evidence

and those inferences constitute substantial evidence of probative value to support the

judgment. Id. Reversal is appropriate only when a reasonable trier of fact would not be

able to form inferences as to each material element of the offense. Id.

        Ingle was convicted of Class D felony neglect of a dependent. Indiana Code

section 35-46-1-4(a)(1) governs neglect of a dependent and states in relevant part:

        (a) A person having the care of a dependent, whether assumed voluntarily
        or because of a legal obligation, who knowingly or intentionally:
               (1) places the dependent in a situation that endangers that
               dependent’s life or health;
        commits neglect of a dependent, a Class D felony.

Ingle contends that the State failed to show that there was an actual danger to the

children’s lives or health, and that Ingle was aware of any risk to his children. We

disagree.

        The evidence presented at trial showed that Ingle’s house was an unsanitary and

unsafe environment for the children. There were tack strips with exposed nails, decaying

        2
          Because we find that Officer Beaton had consent to enter Ingle’s house, we need not address the
issue of whether exigent circumstances existed.
                                                   8
food, mice, mice feces, vomit, and human feces present in the house when Officer Beaton

showed up to conduct a welfare check. The conditions were such that when the officers

began taking pictures, Pearson attempted to clean up the area. Ingle himself also admits

to the disarray in his house, but claims that it was merely temporary, Appellant’s Br. p.

10, evidencing his knowledge of the conditions of his house. However, Ingle’s claim of

the temporary nature of the situation is merely a request for us to reweigh the evidence,

which we will not do. It was not unreasonable for the trial court to conclude that Ingle

placed his children in a situation that endangered their health. We therefore affirm

Ingle’s convictions for three counts of Class D felony neglect of a dependent.

      Affirmed.

BAILEY, J., and BROWN, J., concur.




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