MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Nov 21 2018, 10:34 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Paul J. Podlejski                                       Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Glendon B. Sturgill, Jr.,                               November 21, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-602
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Angela Warner
Appellee-Plaintiff.                                     Sims, Judge
                                                        Trial Court Cause Nos.
                                                        48C01-1708-F4-1952
                                                        48C01-1604-F5-776



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-602 | November 21, 2018                  Page 1 of 9
                                 Case Summary and Issue
[1]   Following a jury trial, Glendon Sturgill, Jr., was convicted of dealing in

      methamphetamine, a Level 4 felony, and sentenced to eight years in the

      Indiana Department of Correction with three years suspended to probation.

      Sturgill appeals his conviction, raising one issue for our review: whether the

      trial court committed fundamental error in admitting evidence Sturgill claims

      was obtained in violation of the Fourth Amendment to the United States

      Constitution and Article 1, section 11 of the Indiana Constitution. Concluding

      Sturgill has not demonstrated fundamental error, we affirm.



                             Facts and Procedural History
[2]   Over a period of several weeks in 2016, Detective LeeAnn Dwiggins of the

      Madison County Drug Task Force received multiple reports that

      methamphetamine was being cooked at a particular residence in Madison

      County. Detective Dwiggins identified Sturgill and his girlfriend, Melissa

      Bowman, as the occupants of the residence and determined they each had made

      multiple purchases of pseudoephedrine and had been blocked from making

      further purchases on several other occasions.1




      1
       Although there was no specific time frame given for the purchases, Officer Dwiggins testified that Sturgill
      had made seventy-one purchases of pseudoephedrine and had been blocked from purchasing
      pseudoephedrine on an additional eighteen occasions. Bowman had made eighty-six purchases and had been
      blocked on fifteen occasions.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-602 | November 21, 2018                 Page 2 of 9
[3]   On April 13, 2016, Detective Dwiggins, who had been monitoring the logs of

      pseudoephedrine purchases, noticed Bowman had made a purchase of

      pseudoephedrine that day. Around 9:00 p.m., Detective Dwiggins,

      accompanied by three other officers, went to the residence. As Officer

      Dwiggins walked around the house trying to get to an unobstructed door to

      knock and talk with the occupants, she noticed a strong chemical odor she

      knew from her training and experience to be associated with the manufacture of

      methamphetamine. As she returned to the front of the house to tell the other

      officers what she had found, she encountered Sturgill in the driveway,

      immediately handcuffed him, and asked if anyone else was on the property.

      Sturgill said Bowman was in the detached garage and his daughter was inside

      the house. Officers entered the residence and the garage to evacuate the

      occupants. While in the garage, Detective Dwiggins observed

      methamphetamine actively cooking. Sturgill and Bowman were advised of

      their rights and gave their verbal and written consent to a search of the

      property. The search yielded items associated with the manufacture of

      methamphetamine.


[4]   The State charged Sturgill with dealing in methamphetamine, a Level 5 felony,

      and attempted dealing in methamphetamine, a Level 4 felony.2 Sturgill filed a

      motion to suppress evidence obtained as a result of the search of his property,



      2
       Additional counts of possession of chemical reagents or precursors with intent to manufacture a controlled
      substance, maintaining a common nuisance, and possession of methamphetamine, all Level 6 felonies, were
      dismissed by the State prior to trial.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-602 | November 21, 2018                 Page 3 of 9
      including physical evidence and statements he made to the officers during the

      search. The trial court denied the motion to suppress, finding the police had a

      legitimate reason to be on the property and the chemical odors they

      encountered once there created exigent circumstances supporting further action.

      At Sturgill’s request, the trial court certified its order denying the motion to

      suppress but this court denied Sturgill’s motion to accept jurisdiction over an

      interlocutory appeal. At Sturgill’s jury trial, when the State offered various

      items of evidence from the search into evidence,3 Sturgill affirmatively stated he

      had no objection to admission of the exhibits. The jury found Sturgill guilty on

      both counts. The trial court entered judgment of conviction only on the Level 4

      felony attempted dealing in methamphetamine charge and sentenced Sturgill to

      eight years with three years suspended to probation. Sturgill now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[5]   Sturgill contends the trial court erred in admitting evidence seized during the

      search of his property and the statements derived therefrom because the search

      was conducted in violation of his state and federal constitutional rights. A trial

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

      Palilonis v. State, 970 N.E.2d 713, 726 (Ind. Ct. App. 2012), trans. denied. An




      3
       The exhibits included twenty-two photographs in and around the garage, a vial of methamphetamine oil,
      and lab results.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-602 | November 21, 2018              Page 4 of 9
      abuse of discretion occurs when the trial court’s ruling is clearly against the

      logic, facts, and circumstances presented. Id. “A contemporaneous objection at

      the time the evidence is introduced at trial is required to preserve the issue for

      appeal, whether or not the appellant has filed a pretrial motion to suppress.”

      Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). The purpose of the

      contemporaneous objection rule is to allow the trial judge to consider the

      evidentiary issue in light of any “fresh developments and also to correct any

      errors.” Id.


[6]   Here, Sturgill acknowledges that, despite his pretrial motion to suppress, he did

      not object to the admission of the evidence or statements at trial. See

      Appellant’s Brief at 9 (noting Sturgill’s trial counsel “failed to raise an objection

      to the admission of the evidence . . . throughout the course of the trial”). In

      fact, not only did Sturgill fail to object to the trial court’s admission of each

      piece of evidence he now attempts to challenge on appeal, he affirmatively

      stated that he had “no objection” to admission. See Transcript, Volume II at

      214 (photographs of the property); Tr., Vol. III at 55 (items recovered from the

      property); 73 (lab report on vial of oil); and 75 (vial of methamphetamine oil).

      To avoid waiver of the issue, Sturgill contends the trial court committed

      fundamental error in allowing admission of the evidence. The fundamental

      error doctrine is an exception to the general rule that failure to object at trial

      constitutes procedural default precluding consideration of the issue on appeal.

      Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-602 | November 21, 2018   Page 5 of 9
              The fundamental error exception is extremely narrow, and
              applies only when 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. The error claimed must either make a fair trial
              impossible or constitute clearly blatant violations of basic and
              elementary principles of due process. This exception is available
              only in egregious circumstances.


      Brown, 929 N.E.2d at 207 (citations and quotation marks omitted).


                                    II. Fundamental Error
[7]   Our supreme court has held that fundamental error is not available when the

      defendant affirmatively states he has no objection to proffered evidence because

      in such a case, the defendant has invited the error in its admission. Halliburton

      v. State, 1 N.E.3d 670, 678-79 (Ind. 2013) (“The appellant cannot on the one

      hand state at trial that he has no objection to the admission of evidence and

      thereafter in this Court claim such admission to be erroneous.”). “A finding of

      fundamental error essentially means that the trial judge erred . . . by not acting

      when he or she should have, even without being spurred to action by a timely

      objection.” Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014) (internal citation

      omitted); see also Winston v. State, 165 Ind.App. 369, 376, 332 N.E.2d 229, 233

      (1975) (noting in cases in which fundamental error is found, “the error involved

      the mistake or misconduct of the trial judge in the exercise of his own

      affirmative duties”). Without a contemporaneous objection, a trial court has no

      cause to reconsider its earlier evidentiary ruling. See, e.g., Brown, 929 N.E.2d at

      207. And upon the defendant’s express declaration of “no objection,” the trial

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-602 | November 21, 2018   Page 6 of 9
      court has no obligation to interject itself on a defendant’s behalf and determine

      for itself whether the introduction of a particular piece of evidence was in the

      defendant’s best interests. Halliburton, 1 N.E.3d at 679; see also Brewington, 7

      N.E.3d at 975 (noting that fundamental error and invited error are closely

      related and that “fundamental error gives us leeway to mitigate the

      consequences of counsel’s oversights, but invited error precludes relief from

      counsel’s strategic decisions gone awry”). Thus, Sturgill has not shown any

      error by the trial court in not acting when it had a duty to do so.


[8]   Moreover, in Brown v. State, our supreme court concluded that a claim of error

      premised on admitting evidence that was the product of an unconstitutional

      search and seizure, without more, does not assert fundamental error where

      there is “no claim of fabrication of evidence or willful malfeasance” on the part

      of the investigating officers or where there is no claim the “evidence is not what

      it appears to be.” 929 N.E.2d at 207. Sturgill does not allege that evidence was

      fabricated or that the challenged evidence is not what it appears to be. He does

      assert that Dwiggins’ conduct was willful malfeasance because she knew she

      did not have probable cause that Sturgill was engaged in any illegal activity

      when officers entered the property. See Appellant’s Br. at 12-13.


[9]   “Malfeasance” is defined as:


              Evil doing; ill conduct. The commission of some act which is
              positively unlawful; the doing of an act which is wholly wrongful
              and unlawful; the doing of an act which person ought not to do
              at all or the unjust performance of some act which the party had
              no right or which he had contracted not to do.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-602 | November 21, 2018   Page 7 of 9
       Black’s Law Dictionary at 956 (9th ed. 2009). The trial court has already

       addressed Sturgill’s claim that the evidence was unlawfully seized because

       officers should not have entered his property and determined during the motion

       to suppress proceedings that the officers had acted reasonably in entering the

       property and conducting the search. Sturgill’s argument on appeal does not

       allege anything further that would rise to the level of malfeasance, willful or

       otherwise. Even if the officers had been mistaken in their assessment of the

       circumstances, this does not rise to the level of willful malfeasance. See Mamon

       v. State, 6 N.E.3d 488, 490 (Ind. Ct. App. 2014) (rejecting claim of fundamental

       error where defendant argued officer misunderstood the traffic law that formed

       the basis for a stop but did not dispute the truth of the officer’s testimony or

       exhibits). In Brown, the court noted that admission of evidence as the result of

       an improper seizure is not per se fundamental error: “because improperly

       seized evidence is frequently highly relevant, its admission ordinarily does not

       cause us to question guilt.” 929 N.E.2d at 207.


[10]   For these reasons, Sturgill’s claim does not allege fundamental error and we

       decline to review Sturgill’s challenge to the admissibility of the evidence. See id.

       at 208 (explaining that it is not necessary to resolve the issue of whether a

       search was lawful where the defendant had failed to preserve the issue at trial

       and where there was no fundamental error).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-602 | November 21, 2018   Page 8 of 9
                                              Conclusion
[11]   Because Sturgill affirmatively consented to the admission of the evidence he

       now challenges as improperly admitted and because his claim is premised on an

       admission of evidence from an allegedly unconstitutional search, without more,

       his claim is not reviewable for fundamental error, and his conviction is

       affirmed.


[12]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-602 | November 21, 2018   Page 9 of 9
